As we previously reported, in late December 2021, NY State Announced Racially Discriminatory Standards For Rationing COVID Therapeutic Treatment. The short summary, as Jane Coleman wrote at the time, was:
The New York State Department of Health has issued official “Guidance” regarding rationing scarce Covid therapeutics which gives preference to non-whites over whites in proving entitlement to the therapies. All people need to demonstrate certain health problems (like testing positive) but non-whites do not need to prove that they personally have an aggravated health risk, it is presumed. Whites, on the other hand, get no such presumption.
The NY Health Department issued a second similar directive also in late December. America First Legal sent a demand letter to the NY Acting Health Commissioner, as we previously reported, demanding an end to the racial preferences, to no avail. The NY Health Department vigorously defends the guidelines with an explanation that does not accurately describe the terms of the guidelines on racial preferences:
State officials have defended their guidelines by citing data from the Centers for Disease Control and Prevention, which show that Black, Hispanic and Native Americans are about twice as likely to die from Covid-19 than white Americans. A spokeswoman for New York State’s Department of Health told Fox News that race did not disqualify patients from treatment but that the guidelines instead considered race as one risk factor.
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 ordering New York State to stop this medical racism.
I am represented by a talented team of lawyers, lead by Gene Hamilton from America First Legal Foundation. Additional counsel are Jonathan F. Mitchell, Adam K. Mortara, and the law firm of Consovoy McCarthy PLLC (Jeffrey Harris, Michael Connolly, and James Hasson).
The lawsuit is against Acting Commissioner of Health Mary T. Bassett, in her official capacity.
America First Legal issued a press release containing this statement from me:
“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.”
The Complaint alleges, in the introduction and among other things:
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 explains the racial preferences, and why the Health Department’s defense that race is just used as a risk factor is no defense, something to be explained more in court proceedings:
9. 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.* * *21. 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.
The Complaint also describes my status as a plaintiff:
3. Plaintiff William A. Jacobson is a citizen and resident of Tompkins County, New York, where he teaches law at Cornell University.* * *13. Plaintiff does not qualify under the New York guidelines as “[n]on-white race or Hispanic/Latino ethnicity,” and he sues on behalf of a plaintiff class consisting of individuals in New York State who do not qualify under the New York guidelines as “[n]on-white race or Hispanic/Latino ethnicity.”14. Plaintiff 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. Madeline Rosenberg and Anil Oza, COVID-19 Update: Cornell Reports Record–High 469 Active Student Cases, Cornell Sun (Dec. 13, 2021), https://bit.ly/3GBXrx5.15. Plaintiff is suffering injury in fact from New York’s racially discriminatory policy because he and other non-Hispanic/Latino white individuals cannot obtain oral antiviral treatments in New York when they contract COVID-19 unless they demonstrate a “medical condition or other factors that increase their risk for severe illness” from the virus, while non-white and Hispanic/Latino residents of New York are not required to make such a showing. This discriminatory treatment inflicts injury in fact, regardless of whether Plaintiff and his fellow class members would ultimately obtain the antiviral treatments in the absence of New York’s racially discriminatory policy. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. 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.”).16. New York’s policy also injures Plaintiff and his fellow class members by subjecting them to an increased risk of serious illness or death when they acquire COVID-19. See Massachusetts v. EPA, 549 U.S. 497, 525 n.23 (2007) (“[E]ven a small probability of injury is sufficient to create a case or controversy—to take a suit out of the category of the hypothetical—provided of course that the relief sought would, if granted, reduce the probability”) (quoting Village of Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th Cir. 1993)); Baur v. Veneman, 352 F.3d 625, 633 (2d Cir. 2003) (“[C]ourts of appeals have generally recognized that threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes.”).17. Finally, New York’s policy injures Plaintiff by inflicting emotional and psychological harm on Plaintiff (and others) who are facing increased risk of harm from the pandemic on account of New York’s racially discriminatory policies. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2211 (2021) (“[A] plaintiff’s knowledge that he or she is exposed to a risk of future physical, monetary, or reputational harm could cause its own current emotional or psychological harm.”).18. All of these injuries are fairly traceable to the racial preferences enforced by Acting Commissioner Bassett, and they will be redressed by declaratory and injunctive relief that prohibits the Commissioner from using racial criteria in determining eligibility for COVID-19 oral antiviral treatments.
The legal Counts are:
Claim 1: The Department’s Racial Preferences Violate The Fourteenth AmendmentClaim 2: The Department’s Racial Preferences Violate Title VI Claim 3: The Department’s Racial Preferences Violate Section 1557 Of The Affordable Care Act
The following relief is sought:
DEMAND FOR RELIEF32. Plaintiff respectfully requests that the court:a. certify a class of individuals in New York State who do not qualify under the New York health department guidelines for distribution of COVID-19 therapeutics as “[n]on-white race or Hispanic/Latino ethnicity”;b. award the declaratory relief described in paragraphs 22, 26, and 30;c. enter a preliminary and permanent injunction that restrains Acting Commissioner Bassett and her successors from implementing and enforcing any discriminatory racial preferences in the Department’s programs;d. award costs and attorneys’ fees under 42 U.S.C. § 1988;e. award all other relief that the Court may deem just, proper, or equitable.
The lawsuit is just starting to get attention, having been picked up by The Albany Times Union, Fox News. The Daily Caller, Just The News, and The Federalist. I’m sure the list will grow.
America First Legal deserves credit for taking on this issue. So many people have been screaming about the blatant racism of the NY health guidelines and wanting to know, ‘when is someone going to do something about it?’ Now someone is.
William A. Jacobson v. Mary T. Bassett (NY Health Dept) – Covid Therapeutics Case – Class Action Complaint by Legal Insurrection on Scribd
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