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ALITO and THOMAS: Gov’t resorting “to racial or ethnic classifications to ration medical treatment … would be a very strong case for prompt review”

ALITO and THOMAS: Gov’t resorting “to racial or ethnic classifications to ration medical treatment … would be a very strong case for prompt review”

SCOTUS didn’t take the case involving racist anti-white NY State Covid therapeutic guidelines because the crisis has passed, but Justices Alito and Thomas issued a Statement warning that “New York’s general reference to ‘longstanding systemic health and social inequities’ would not have sufficed to allow the State to deny a person medical treatment simply because that person is viewed by the State as being a member of the wrong racial or ethnic group.”

You may recall that I was the named plaintiff in a lawsuit filed in January 2022 in the Nothern District of New York against the NY State Health Commissioner over state health guidelines that prioritized non-whites for receipt of oral Covid therapeutics, which at the time were in short supply:

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.

There was another case filed in the Eastern District of New York asserting similar claims (the “Roberts Case”).

Both cases were dismissed for lack of standing by separate judges, which rulings were affirmed by the Second Circuit. That standing decision required a plaintiff to contract Covid, be medically eligible, and be in a position to seek the medicine, before suit. Legally and substantively it’s an idiotic standard because the medication was only effective if taken within five days of symptoms. So the courts set up a standing requirement that almost no one could meet as a practical matter because of the tight time frame to seek judicial relief. The courts gave health officials almost unbridled authority to engage in racist conduct as to emergency medical treatments.

As medicine falls deeper under the sway of Critical Race Theory, this portends a bleak future. Indeed, almost the entire medical establishment from the American Medical Association on down backed the state.

We decided not so seek Supreme Court review, because it was viewed as nearly impossible to convince SCOTUS to take a case where the Covid health crisis had passed and the medications no longer were in short supply. The case was not technically moot, because it was capable of repetition (indeed, the state never withdrew the guidelines). Nonetheless, SCOTUS is so limited in which cases it takes, a stale dispute seemed unlikely to be accepted.

After the deadline passed to file for SCOTUS review, I came to regret not trying and it’s haunted me since. It’s unlike me to give up, and though the rational me agreed with the assessment that it was futile, I still wish I tried.

The plaintiffs in the Roberts Case, however, did file a Petition for a Writ of Certiorari (docket), making many of the points we would have made.

On June 30, 2023, SCOTUS denied the Petition in the Roberts Case. But Justice Alito joined by Justice Thomas issued a Statement in connection with the denial, which reads in full (emphasis added):

The petition for a writ of certiorari is denied.

Statement of JUSTICE ALITO, with whom JUSTICE THOMAS joins, respecting the denial of certiorari.

The circumstances underlying the dispute below have long since come and gone, and I therefore agree with the Court’s decision to deny review. But I write to note that this case involves an issue of ongoing importance: whether the Equal Protection Clause permits governments to use race or ethnicity as a proxy for health risk and therefore “prioritize the treatment of patients” on that basis. Roberts v. Bassett, 2022 WL 16936210, *3, n. 2 (CA2, Nov. 15, 2022) (Cabranes, J., concurring) (noting the “portentous legal issues” implicated by such policies).

When “several new COVID–19 treatments for high-risk patients” were approved in late 2021, the treatments were “briefly in short supply” relative to need. Id., at *1 (summary order). New York State “instruct[ed] providers to follow” its guidance on “higher priority risk group[s]” so long as the “supply shortage persisted.” Ibid. Echoing similar guidance from the federal Centers for Disease Control and Prevention, the State’s guidance specified that “ ‘[n]onwhite race or Hispanic/Latino ethnicity should be considered a risk factor’” when prioritizing patients. Id., at *1, *3 (alteration in original); Roberts v. Bassett, 2022 WL 785167, *2 (EDNY, Mar. 15, 2022). The State justified the use of race and ethnicity as proxies for health risk by appealing to “‘longstanding systemic health and social inequities.’” Roberts, 2022 WL 785167, at *2.

As we have stated many times and have recently reaffirmed, the Equal Protection Clause places a “daunting” obstacle in the way of any government seeking to allocate benefits or burdens based on race or ethnicity, typically giving way only when the measure in question is “ ‘narrowly tailored’ ”—that is, “ ‘necessary’ ”—to “remediat[e] specific, identified instances of past discrimination that violated the Constitution or a statute.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. ___, ___ (2023) (slip op., at 15). Therefore, government actors may not provide or withhold services based on race or ethnicity as a response to generalized discrimination or as a convenient or rough proxy for another trait that the government believes to be “‘characteristic’” of a racial or ethnic group. Id., at ___ (slip op., at 20).

Under that precedent, New York’s general reference to “longstanding systemic health and social inequities” would not have sufficed to allow the State to deny a person medical treatment simply because that person is viewed by the State as being a member of the wrong racial or ethnic group. The shortage at issue in this case appears, thankfully, to have concluded. But in the event that any government again resorts to racial or ethnic classifications to ration medical treatment, there would be a very strong case for prompt review by this Court.

I was in the wrong place at the wrong time to challenge the racist garbage sweeping medicine. A great evil has taken over the medical profession and public health bureaucracy, something we have documented at and will continue to document. If the right case and a plaintiff with standing comes along, we also will challenge racist medical guidelines through the Equal Protection Project.

We know that at least two of the Justices are interested in hearing a case of medical racism in the right procedural posture.

Next time. Next time.


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In a better world (and nation), there would be no next time. But thank you for leasing the charge.

What a disgrace the lawless, totalitarian and racist Dumb-o-crats are. We’re in the 21st century and the Dumbs are unabashedly instituting the most brazenly racist and inequitable policies, rationalized under their hypocritical and corrosive “social justice” banner.

    Pinochle in reply to guyjones. | July 5, 2023 at 4:32 am

    Maybe they do these things because it forces their enemies to allocate and expend resources.?


      Edward in reply to Pinochle. | July 5, 2023 at 9:23 am

      Far more likely that many actually believe a wrong can be made right by another wrong. They just don’t see discrimination of which they approve as a “wrong”. Besides, they believe it is good for garnering votes.

henrybowman | July 4, 2023 at 9:37 pm

You got the big guns to fire a shot across their bow, then reload the cannon for next time.
That’s way more than anybody else managed.

Wow. They denied cert and then kind-a sort-a ruled on it anyway.

But will the left, or even New York, get the message?


    1073 in reply to irv. | July 5, 2023 at 8:34 am

    How many times has NY been slapped for their 2A laws and they just write new ones that do the same thing?

      Edward in reply to 1073. | July 5, 2023 at 9:32 am

      In their snit to “show” the SCOTUS majority what they think of Bruen, they even go beyond NY statute which preceded the decision, all the while complaining about (and claiming to adhere to) the decision. Their snit will ultimately cost the taxpayers in legal costs, but they couldn’t care less about public moneys as they see any effort to denigrate the Second Amendment as part of the holy crusade to disarm the proles.

“A great evil has taken over the medical profession and public health bureaucracy…”

The required bond of trust between patient and doctor has been irretrievably broken. It is no longer possible to determine whether decisions are based on medical necessity or political bias. It will take generations – if ever – to restore that trust, and only if the medical establishment backs away from, and stays out of, politics.

    alaskabob in reply to Rusty Bill. | July 5, 2023 at 8:48 pm

    Watching the witch hunts launched by the Covidians against physicians questioning the abandonment of time tested assessment of drugs and closing the door on potential adjunct meds that weren’t spelled “$$$$$”… darn toot’n they should step back. The only silver lining may be that the Covidians will be the first to faulter healthwise.

    BierceAmbrose in reply to Rusty Bill. | July 10, 2023 at 7:20 pm

    “The required bond of trust between patient and doctor has been irretrievably broken.”

    The vet doesn’t work for the livestock, but the overseer. What the overseer wants might not be what the livestock wants, til in the end, the livestock goes to be ended for consumption, or some other, others’ good. (Paging Tiny Dancer’s Brother Doc.)

    Pehaps some would go willingly. Until they say so, what trust should they have in a “doctor” working for someone else’s ends?

Oregon Mike | July 4, 2023 at 11:09 pm

The Court should have the same urgency for “prompt review” of cases infringing on our fundamental Second Amendment rights. Too often it dithers, or sends them back for “review in light of today’s decision.”

    Edward in reply to Oregon Mike. | July 5, 2023 at 9:40 am

    Sending a case back to the District Court or Circuit Court of Appeals is a time honored way of enforcing a decision. Unfortunately there are judges today who will ignore the obvious enforcement effort and double down on their original decision using different terms. Such obviously political decisions by judges need to result in a judicial “spanking”, lest the affront to the Court spreads. Thus far the Court has been less than swift in dealing with this situation, primarily because our judicial system simply isn’t designed to readily and speedily handle this sort of judicial revolt.

      Oregon Mike in reply to Edward. | July 5, 2023 at 12:40 pm

      Edward, I agree with your statement completely. I think the 9th Circuit really needs the spanking. And, I think the Court needs to act with the urgency in dealing with these situations. Otherwise, our rights “languish” in the interim.



It’d be nice if Dr. Bassett puts a mask over the rest of her face – after putting a ball of toilet paper in her mouth.

This sounds like something the Klan would find appealing. Maybe when the case finally comes to the Court New York could request an amicus curiae brief from the Grand Wizard.

    Edward in reply to Ruckweiler. | July 5, 2023 at 9:42 am

    I highly doubt any FBI asset acting as Grand Wizard would agree with white folks being denied medical care in preference to POC receiving the care in short supply.

The_Mew_Cat | July 5, 2023 at 7:50 am

Ah, but the next time will be different. If a virus is engineered for the Ukraine War, or for a coup or communist power struggle, it is likely to be designed to be very selective in its lethality. Certainly selective by sex (in war one targets males), and possibly selective by race. And the race selectivity could be accidental since a war virus is likely to only be tested for sex selectivity, and Russians and Ukrainians are the same race. For instance, what if a virus designed to kill Russian males just happens to slaughter Blacks?

Steven Brizel | July 5, 2023 at 8:37 am

Justices Alito and Thomas hit the nail on the head-during the early days of the much heralded vaccine, the nYC DOH sites clearly were scannng anyone who was interested by race and ethnicity

JohnSmith100 | July 5, 2023 at 8:59 am

Wondering if blacks received preferences for mRNA vaccines?

Not only in New York state but also in Minnesota. My wife was denied monoclonal antibodies by the Mayo Clinic no less under the racist protocol. Damn near died. Her primary doctor sent her home of course without any help and told her to navigate her own way around the “system” and warned her that she would be denied although she is obese, diabetic, and has only one kidney. She lacked the proper pigmentation.

    stella dallas in reply to ekimremmit. | July 9, 2023 at 9:51 pm

    In determining who would get treatment, New York State protocols gave an extra two points to blacks. That put blacks ahead of whites and Asians in priority for limited resources.

E Howard Hunt | July 5, 2023 at 10:42 am

I would consult her for constipation because just looking at her scares the shit out of me.