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.We covered the story on December 31, 2021, NY State Announces Racially Discriminatory Standard For Rationing COVID Therapeutic Treatment:
Citing a “significant surge” in COVID cases and “severe resource limitations”, the New York State Department of Health this week announced it would ration oral antiviral and monoclonal antibody treatments based on race:
Oral antiviral treatment is authorized for patients who meet all the following criteria (emphasis added):
- Age 12 years and older weighing at least 40 kg (88 pounds) for Paxlovid, or 18 years and older for molnupiravir
- Test positive for SARS-CoV-2 on a nucleic acid amplification test or antigen test; results from an FDA-authorized home-test kit should be validated through video or photo but, if not possible, patient attestation is adequate
- Have mild to moderate COVID-19 symptoms o Patient cannot be hospitalized due to severe or critical COVID-19
- Able to start treatment within 5 days of symptom onset
- Have a medical condition or other factors that increase their risk for severe illness.
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
Based on these guidelines, non-whites do not need to show they personally are at risk for severe illness, it is presumed from their racial and ethnic status. Whites need proof, a clearly discriminatory standard.
The story has received widespread news coverage but NY officials are not backing down:
Erin Silk, a spokesperson for the New York Department of Health, told Fox News in a statement that the state’s “prioritization guidance comes directly from the CDC” and that neither “race nor ethnicity would disqualify an individual from receiving treatment.””Systemic poverty, which has clearly proven to be a risk factor in populations in New York State and nationwide, is added to the algorithm of prioritization similar to all other risk factors. It is merely mentioned as a factor that increases risk,” she wrote.
How can such blatant unapologetic racial discrimination be legal? It’s not, although as Prof. Jonathan Turley writes, there can be legal hurdles to similar suits.
This letter serves as notice of potential legal action related to the blatantly unconstitutional, immoral, and racist policies of the New York State Department of Health that direct the rationing of medicine based on race and self-selected ethnicity….* * *You must immediately rescind these unconstitutional, unlawful, and un-American policies. They violate the Constitution and numerous federal statutes—including Title VI and section 1557 of the Affordable Care Act. If we discover that any New Yorker has been denied medicine or otherwise harmed because of your reprehensible policies, we will bring legal action to pursue all available remedies under the law. Using a patient’s skin color or ethnicity—rather than the unique and specific medical circumstances of an individual patient—as a basis for deciding who should obtain lifesaving medical treatment is appalling. The color of one’s skin is not a medical condition akin to hypertension, heart disease, or obesity, which are known to aggravate the risk of death or severe illness among those infected with COVID-19. Directing medical professionals to provide or deny medical care based on immutable characteristics like skin color, without regard to the particular health conditions of the individual patients who are seeking these life-saving antiviral treatments, is nothing more than an attempt to establish a racial hierarchy in the provision of life-saving medicine.Rescind these egregious policies now.
As outrageous as this new guidance is, it’s also important to understand that it is part of a racialized trend in medicine in which “racial justice” interferes with and sometimes supplants patient care. And it is not new, though it has accelerated greatly in the past two years post-George Floyd, as we have documented repeatedly.
Here is a sampling of our posts:
This ideology of elevating race as the central focus in medical education and care is in sync with what is happening with Critical Race Theory and its variants in K-12 and higher ed. It’s all part of an ideological world view that is poisonous and has nothing to do with equality or improving care.
The rest of the nation may be shocked at this medical racism, but Legal Insurrection readers saw it coming.