Arizona’s attorney general has asked the U.S. Department of Health and Human Services (HHS) to make clear that health care providers cannot use race as a factor in determining who can receive COVID-19 treatments.
The Food and Drug Administration, an agency inside HHS, recently issued guidance advising health care providers to take race into account when allocating doses of Sotrovimab, a monoclonal antibody treatment.
Several states have also recently included race in points-based systems of allocation.
Arizona Attorney General Mark Brnovich, a Republican, said that such criteria “are a breach of our Constitution and our belief that every patient deserves the highest quality of care.”
Brnovich, who is running for a U.S. Senate seat, on Jan. 31 petitioned HHS to issue a rule barring the issuing of therapeutics on the basis of race or ethnicity.
The petition notes that the Centers for Disease Control and Prevention, another HHS office, currently claims that being from certain racial and ethnic minority groups is a risk factor for contracting severe cases of COVID-19.
The guidance violates the U.S. Constitution, including the Fourteenth Amendment’s Equal Protection Clause, the petition states.
“Ultimately, the Constitution demands that HHS save as many lives as possible, all else being equal, rather than allowing some to die to achieve a ‘better’ racial mix in the death count,” it says.
HHS didn’t respond to a request for comment.
If the agency doesn’t act on the request, Brnovich is planning to file a lawsuit, according to his office.
The attorney general also said that discrimination based on race in Arizona could violate the Arizona Civil Rights Act, and urged anyone who may have been a victim of such discrimination to file a civil rights complaint with the office.
The federal guidance has influenced some states to dole out medicines based, in part, on race, including New York, Utah, and Minnesota.
That sparked legal threats from America First Legal, a group started by former Trump administration officials.
Utah said in January it was re-evaluating its risk-score calculator, which includes race as a factor.
Minnesota’s Department of Health updated its risk-score around the same time, removing “BIPOC status” as a factor. BIPOC stands for black, indigenous, people of color.
America First Legal sued New York in mid-January after the state’s health department refused to adjust its directive concerning COVID-19 treatments.
New York officials haven’t responded to requests for comment.