Legal Group Sues New York State Over Race-Based COVID Treatment

Policy makes minority patients automatically eligible for scarce COVID drugs

Former White House senior adviser and America First Legal president Stephen Miller (Getty Images)
January 19, 2022

A conservative legal group aligned with former Trump administration senior adviser Stephen Miller is suing New York state’s top public health official over her directive to make minority patients automatically eligible for scarce COVID-19 therapeutics.

America First Legal filed a lawsuit this week against acting New York health commissioner Mary Bassett, who in December issued a memo encouraging health care providers to treat race as a factor that increases a patient’s risk of severe COVID. New York’s guidance dictates that white patients cannot obtain COVID antivirals unless they have a medical condition that increases their risk for severe infection, such as obesity or diabetes. On the other hand, minority patients can obtain them simply by virtue of their race, regardless of other risk factors.

"Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19," the state’s guidance reads.

Progressives have infused race into almost every dimension of public health policy, from economic stimulus to frontline care. President Joe Biden’s $2 trillion COVID stimulus package included reparations for minority farmers and a grant program for struggling restaurants that prioritized non-white applicants. Public health officials in Minnesota revised their guidance on rationing anti-COVID medicine after the Washington Free Beacon reported that it privileged a patient’s race over medical ailments like hypertension and chronic pulmonary disease. Utah said it would reevaluate its system of race-based medicine rationing following the Free Beacon's reporting.

The state claims its racial rationing is based on data from the Centers for Disease Control and Prevention, and it gave no indication of backing down in spite of the lawsuit.

"Mortality rates are higher among certain demographic groups, including senior citizens, immunocompromised individuals and non-white/Hispanic communities," the state health department said. The department also denied that anyone will be denied care because of their race.

Cornell Law School professor William Jacobson is the lead plaintiff for the suit, which calls the directive patently unconstitutional. The plaintiffs argue that the very act of tying skin color to medical care is harmful, even if white patients ultimately obtain antivirals or antibody treatment.

"The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit," the lawsuit reads.

What’s more, state officials acknowledge that COVID therapeutics are extremely hard to come by. The December memo refers to a "severe shortage" of antivirals and antibody treatments, and identified fewer than 100 pharmacies outside New York City that have partnered with the state to carry therapeutics. Those locations are meant to serve over 10 million New Yorkers who live outside the downstate metropolitan area.

Jacobson teaches securities law at Cornell Law School in Ithaca, N.Y. The school’s COVID dashboard indicates that 97 percent of the on-campus population is vaccinated. The university reported almost 1,000 COVID infections in December, attributable to the omicron variant surge.

The complaint capitalizes on the same risk assessments blue state policy makers use to keep pandemic controls in place. Despite near-universal vaccination at Cornell and a leveling-off of infections, the complaint warns that Jacobson is "especially at risk for contracting COVID-19 because he teaches at Cornell University, which recently had a severe outbreak despite its extensive COVID protocols."

New York has registered 60,000 new COVID cases per day since the new year, according to the plaintiffs.

Their complaint says the state’s racial-rationing plan violates constitutional equal protection principles and Obamacare’s non-discrimination provisions. They say the state should make every effort to make therapeutics universally available, rather than "establish a racial hierarchy in the provision of life-saving medicine."

"New York’s racial preferences ignore the obvious race-neutral alternative policy of making antiviral treatments available to patients of any race who can demonstrate risk factors, such as advanced age, obesity, a compromised immune system, or other medical conditions," the lawsuit reads.

The attorneys fighting New York’s directive include Jonathan Mitchell, the architect behind Texas’s fetal heartbeat law, and the legal team attacking Harvard’s admissions practices in the Supreme Court.

The case is Jacobson v. Bassett in the U.S. District Court for the Northern District of New York.

Jacobson v. Bassett complaint by Washington Free Beacon