The oral argument in the Second Circuit Court of Appeals in my case against Mary T. Bassett, the New York State Health Commissioner, over racially discriminatory Covid Therapeutic Guidelines, will take place at 10 a.m. Eastern on October 25, 2022.
There should be an audio live stream here. After it’s over, the audio link will be archived here. The case has been consolidated for argument with a related case, Roberts v. Bassett. Our argument may not start right at 10, since there are 4 cases ahead of us on the calendar. The Judges assigned to the panel are José A. Cabranes, Gerard E. Lynch, and Beth Robinson.
I will be listening live online. Want to join me? Be here.
Jeffrey Harris, Esq., of Consovoy McCarthy will be arguing for me. I also want to thank other members of the legal team assembled by America First Legal to represent me, including Gene Hamilton, Esq. (of AFL), Jonathan Mitchell, Esq., Adam Mortara, Esq., and Michael Connolly and James Hassan of Consovoy.
For those of you who don’t remember the case, you can see the full history at Jacobson v. Bassett Covid Therapeutic Litigation.
On May 18, 2022, I posted about our appeal and summarized the case:
As posted earlier, in January, 2022, I filed a lawsuit challenging the New York State Department of Health’s racially discriminatory Covid-therapeutic guidelines, which provided automatic eligibility for non-whites and Hispanics, while requiring white, non-Hispanics to demonstrate a personal medical risk factor….The state asserted several defenses, including that I lacked “standing” (because I had not contracted Covid or been denied access), and mootness (because the state was not enforcing the guidelines and had removed them from the DOH website, though the guidelines were not withdrawn). The American Medical Association as part of a coalition filed an Amicus brief supporting the use of race in health care services….The [District] Court dismissed the Complaint, finding I don’t have standing to sue….We believe the district court was wrong as a matter of law, and have appealed, filing our Opening Brief.…
Our Brief summarized why the District Court was wrong and why I have standing to sue:
Plaintiff has standing to challenge the Policy because the Department has “erect[ed] a barrier that makes it more difficult for [him] to obtain a benefit than it is for members of [other racial] group[s].” City of Jacksonville, 508 U.S. at 666. Under the Department’s policy, non-whites and Hispanics/Latinos who test positive for COVID-19 automatically qualify for oral antiviral treatments, while identically situated non-Hispanic whites are ineligible unless they demonstrate a “medical condition” or “risk factor” that increases their risk for severe illness.That is a quintessential Article III injury. The fact that Plaintiff had not yet contracted COVID-19 at the time he filed this suit is of no moment. If the district court were correct that individuals cannot challenge the Policy until they contract COVID-19—triggering a five-day window to obtain relief before oral antiviral treatments become ineffective—then the Department would have free rein to enact racially discriminatory and unconstitutional rules without fear of judicial intervention. That is not the law, and the district court’s holding to the contrary flouts a long line of precedent from this Court and the Supreme Court finding standing in similar circumstances. To establish Article III injury, Plaintiff need only show that the challenged classification puts him at increased risk of future injury—a test readily satisfied here given the undisputed prevalence of COVID-19 throughout New York and the United States.
We are asking the Appeals Court not only to reverse on the standing issue, but to issue a preliminary injunction because the racial discimination in the guidelines so clearly is unlawful. From our Reply Brief:
INTRODUCTION AND SUMMARY OF ARGUMENTThe Department’s arguments depend almost entirely on this Court concluding that the Policy is “voluntary” and simply a “suggestion” that providers consider race when deciding who should receive oral antiviral treatments for COVID-19. But this is a nonstarter. The Department entirely ignores both the text of the Policy—which orders providers to “adhere” to its racial prioritization instructions—and New York law, which punishes providers who refuse to comply with the Department’s orders. Indeed, there is not a single sentence in the Policy that informs providers that its prioritization criteria are voluntary. The Department cannot retroactively change the Policy through a declaration from a Department employee.Stripped of this pretense, the Department’s remaining arguments plainly fail. Plaintiff has demonstrated an Equal Protection injury because the Policy erects a barrier that makes it more difficult for him to obtain oral antiviral treatments because of his race and ethnicity. And the injury caused by the Policy is redressable by the relief Plaintiff seeks. Nor are Plaintiff’s claims moot. The Policy is still in effect, COVID-19 rates have once again increased sharply, and the Department concedes that a new shortage can happen “at any time.”The Department’s primary defense on the merits is, again, that the Policy is not mandatory but only a “suggestion” to providers. But the Policy imposes burdens and benefits on the basis of race and thus is subject to strict scrutiny. The Department hasn’t come close to satisfying its heavy burden under strict scrutiny, and the remaining factors weigh in Plaintiff’s favor. Rather than remand for further proceedings, the Court should instruct the district court to enter a preliminary injunction enjoining the Department from enforcing the Policy. New York, like all other states, should allocate live-saving treatments to all its residents based on neutral, objective criteria regardless of their race or ethnicity.
As it did in the District Court, the American Medical Association and a coalition of other groups filed an Amicus Brief supporting the State’s use of race in allocating medical care.
The Second Circuit upheld the District Court ruling in a Summary Order.
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