Government Must Not Assign Scarce COVID Therapies By Race

By Walter Olson of Cato.

"I’ve got a piece in The Dispatch this morning. Excerpt:

Governments around the country have been directing medical providers to allocate potentially lifesaving COVID therapies among patients on the basis of race, a policy that is almost certainly unconstitutional as well as morally open to question.…

For those late to this controversy, here’s a few examples of how the preferences work. In dispensing the scarce kind of monoclonal antibody that is known to retain broad effectiveness against COVID, for example, the Minnesota Department of Health prescribed a point system in which BIPOC [black, indigenous, person of color] status was worth 2 points, the same as diabetes or age greater than 65. New York state adopted a similar policy of racial discrimination in making available the breakthrough antiviral Paxlovid: access to the drug would depend on having some risk factor for severe illness, but nonwhite status would count as such by itself, whereas white patients would have to demonstrate some extra factor putting them at risk. A Utah state framework for dispensing monoclonal antibodies “gives ‘non‐​white race or Hispanic/​Latinx identity two points, more than hypertension or chronic pulmonary disease,” reports Aaron Sibarium of the Washington Free Beacon, who has broken several stories on the issue. Further, the federal Food and Drug Administration has also issued influential guidance promoting racial preferences.…

I’ve been writing about this problem for a while, including pieces back in 2020 when the question was one of racial preferences in the distribution of vaccines as distinct from therapeutics. As I noted back then, the Fourteenth Amendment provides that:

citizens of all races are entitled to the equal protection of the laws. The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a citizen’s race.

Courts thus apply “strict scrutiny” to any race‐​conscious law or policy, requiring proponents to show that it fulfills a “compelling purpose” for the government and is “narrowly tailored” to achieve that purpose, tests that this policy would be unlikely to pass.

There are a few major exceptions but they do not apply here. Compensatory preference is OK when there has been recent, systemic discrimination against a minority group by the same level of government that wants to adopt the preference. (Inequality by itself, even when traceable to society‐​wide discrimination, isn’t good reason.)

And while race can indeed correlate with COVID-19 vulnerability through the proxy role of factors like low socioeconomic status, diabetes, and asthma, courts expect government decisionmakers to make dispensing decisions based on these factors directly, rather than relying on generalizations based on race.

Much of my Dispatch piece is devoted to a critique of an Associated Press article that presents a misleading account of the controversy, quoting only once and briefly from anyone opposed to the policies — a mistaken assertion by cable host Tucker Carlson — while ignoring substantive criticism from both health and legal quarters. Why can’t the press do better?"