Motion For Preliminary Injunction Filed In My Lawsuit Challenging New York’s Racially Discriminatory Covid Therapeutic Guidelines

WILLIAM A. JACOBSON

FEB 5, 2022 6:01 PM

As previously posted, I’m Suing To Stop New York’s Racially Discriminatory Covid Therapeutic Guidelines. See that post for background information on the guidelines and the lawsuit, including the Complaint.There was a certain court process we had to go through before we could file any motions. On Friday, February 4, 2022, we were able to file motions for a preliminary injunction and class certification:

Motion For Preliminary Injunction

PLEASE TAKE NOTICE that, pursuant to the schedule ordered by this Court and upon the annexed memorandum of law, declaration, and all other pleadings and proceedings, Plaintiff William A. Jacobson respectfully moves this Court for a preliminary injunction restraining the Defendant and her successors from implementing and enforcing the racial preferences in the COVID-19 treatment policy issued by the New York Department of Health.***INTRODUCTIONThe New York Department of Health recently announced that it will give automatic priority to “non-white” and “Hispanic/Latino” individuals in distributing lifesaving COVID-19 treatments. Under the Department’s policy (the “Treatment Policy”), non-Hispanic whites who test positive for COVID-19 are ineligible for oral antiviral treatments unless they demonstrate “a medical condition or other factors that increase their risk for severe illness.” But non-whites and Hispanics/Latinos who test positive for COVID-19 are automatically eligible for these life-saving antiviral treatments— regardless of the individual’s medical situation— ecause the Department has proclaimed that one’s status as a racial or ethnic minority is itself a “risk factor” for severe illness from COVID-19, even if the individual has no medical condition that would make him more susceptible to harm from COVID-19. In the words of the Department: “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 Department’s explicit racial preferences in the distribution of COVID-19 treatments are patently unconstitutional and should be immediately enjoined. Using a patient’s skin color or ethnicity as a basis for deciding who should obtain 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 treatments, is nothing more than an attempt to establish a racial hierarchy in the provision of life-saving medicine. Worse still, the Department ignores 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 Treatment Policy violates the Constitution and multiple federal statutes, and Plaintiff is not just likely but certain to prevail on the merits.The other preliminary injunction factors—irreparable injury, the balance of equities, and the public interest—also favor enjoining the Department’s racial classifications. Courts have held repeatedly that plaintiffs suffer irreparable harm when they lose access to a valuable benefit or are forced to compete under more onerous terms because of a racial classification. And the balance of equities is not close. The Department cannot plausibly contend that it will be injured if it is enjoined from enforcing the express racial preferences in the Treatment Policy. Even without those preferences, the Department can continue allocating antiviral drugs to all patients—regardless of race—based on objective medical risk factors that identify the patients most in need of these lifesaving treatments. Finally, courts have repeatedly held that there is always a strong public interest in enjoining unconstitutional and unlawful government actions. This Court should grant the motion for preliminary injunctive relief and order the Department to get out of the “sordid business [of] divvying us up by race.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurringin part and dissenting in part).

Motion For Class Certification

The plaintiff respectfully moves to certify a class under Rule 23(b)(2). The proposed class will be represented by plaintiff William A. Jacobson, and it consists of all individuals in New York State who do not qualify as “[n]on-white race or Hispanic/Latino ethnicity” under the New York Department of Health’s guidelines for distributing oral antiviral COVID-19 treatments.***B. There Are Questions Of Law Or Fact Common To The Members Of The ClassMr. Jacobson seeks to litigate three questions of law common to each member of the class:

1. Whether the New York Department of Health is violating the Equal Protection Clause by rationing lifesaving COVID-19 medications on the basis of race and ethnicity.2. Whether the New York Department of Health is violating Title VI by rationing lifesaving COVID-19 medications on the basis of race and ethnicity.3. Whether the New York Department of Health is violating section 1557 of the Affordable Care Act by rationing lifesaving COVID-19 medications on the basis of race and ethnicity.

These questions affect all class members because each of them is subject to discrimination on account of their race and ethnicity, as each of them is excluded from the Department-preferred category of “[n]on-white race or Hispanic/Latino ethnicity.” Each class member will “suffer the same injury,” and that is all that needed to satisfy Rule 23(a)(2)’s commonality requirement….

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C. Mr. Jacobson’s Claims Are Typical Of The Claims Of The Class

Mr. Jacobson’s claims are more than typical: they are precisely the same as those from all members of the proposed class. The New York Department of Health has implemented a program that actively discriminates against all of the class members based on their race or ethnicity. Each class member’s claim arises from the same course of events—the Department of Health’s decision to establish and enforce racially discriminatory criteria for distributing COVID-19 medications. And each class member is making the same legal arguments to prove the defendant’s liability.

Per court order, the defendant has until February 18 to file its opposition, and we have until February 24 to file any Reply. Defendant also can file a cross-motion to dismiss if it chooses to do so.

The case has attracted a lot of media coverage with good reason.