Cornell Law professor William A. Jacobson is suing the acting commissioner of the New York Department of Health in order to stop the state from providing COVID-19 treatments based on race.
Jacobson, acting on his own behalf and not as a member of the Cornell community, filed the lawsuit last week, writing on his website, Legal Insurrection, that “I am serving as the plaintiff in this case because whether or not medical treatment should be provided should not be decided by the color of someone’s skin. I call on New Yorkers of all races and ethnicities to unite against these discriminatory government guidelines.”
As The Daily Wire reported, multiple states, including New York, issued guidance that prioritized treatment based on race, letting certain medical comorbidities take a back seat.
“In New York, racial minorities are automatically eligible for scarce COVID-19 therapeutics, regardless of age or underlying conditions. In Utah, ‘Latinx ethnicity’ counts for more points than ‘congestive heart failure’ in a patient’s ‘COVID-19 risk score’—the state’s framework for allocating monoclonal antibodies. And in Minnesota, health officials have devised their own ‘ethical framework’ that prioritizes black 18-year-olds over white 64-year-olds—even though the latter are at much higher risk of severe disease,” the Washington Free Beacon reported.
Further, as The Daily Wire reported, New York’s triage stated that “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.”
As Jacobson noted, America First Legal demanded acting commissioner Mary Bassett end the racist preferences, but the New York Health Department defended them.
“I have now filed a class action lawsuit as the named plaintiff in the United States District Court in and for the Northern District of New York, seeking, among other things, a declaration that the racial preferences are illegal and an injuction [sic] ordering New York State to stop this medical racism,” Jacobson wrote.
Jacobson noted that the complaint alleges:
Using a patient’s skin color or ethnicity as a basis for deciding who should receive lifesaving medical treatment is appalling. And directing medical professionals to award or deny medical care based on immutable characteristics such as skin color, without regard to the actual health condition of the individual who is seeking these antiviral treatments, is nothing more than an attempt to establish a racial hierarchy in the provision of life-saving medicine. Worse still, 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 complaint further alleges that the Health Department’s claim that race is simply used as a risk factor is no defense:
New York’s policy creates a racial hierarchy in the distribution of life-saving COVID-19 medication. Non-white and Hispanic/Latino individuals who test positive for COVID-19 automatically qualify for oral antiviral treatments, while an identically situated non-Hispanic/Latino white individual is ineligible unless he demonstrates a “medical condition” or “risk factor” that increases his risk for severe illness from COVID-19.
The Department’s policy fails any level of constitutional scrutiny. Even if the Department has an interest in ensuring that only the most at-risk patients will receive scarce antiviral treatments, the policy’s racial preferences are not closely or narrowly tailored to achieving that interest. The Department could have effectively pursued the same goals through the obvious race-neutral alternative of requiring all patients to have enumerated medical conditions or risk factors in order to receive antiviral treatments.
Jacobson is represented by Gene Hamilton of America First Legal Foundation as well as Jonathan F. Mitchell, Adam K. Mortara, and the law firm of Consovoy McCarthy PLLC.