New York Sued for Using Race to Help Determine Who Receives Crucial COVID-19 Treatment

By Zachary Stieber
Zachary Stieber
Zachary Stieber
Reporter
Zachary Stieber covers U.S. and world news. He is based in Maryland.
January 19, 2022 Updated: January 19, 2022

A legal group has filed a lawsuit against the state of New York for refusing to stop using race to help determine which people should receive monoclonal antibodies, a crucial treatment for COVID-19 that has been rationed by the federal government.

America First Legal lodged the suit after the New York State Department of Health ignored a warning over the policy.

“New York’s racist COVID decrees dispense lifesaving medicine based on the race or ethnic background of the patient. New York is deciding questions of life and death based on a New Yorker’s ancestry. This is outrageously illegal, unconstitutional, immoral, and tyrannical. And that is why we are suing the state—because right and justice and morality urgently demands it,” Stephen Miller, the group’s president, said in a statement.

In a Dec. 27, 2021, directive, New York officials highlighted the “severe shortage” of monoclonal antibodies and other COVID-19 treatments and instructed providers that “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.”

In the class-action suit, filed recently in federal court in Binghamton, plaintiff William Jacobson said the result of the directive is that white people are ineligible for the treatments unless he or she demonstrates a medical condition or risk factor that increases their risk for severe illness from COVID-19, which is the disease caused by the CCP (Chinese Communist Party) virus.

“Using a patient’s skin color or ethnicity as a basis for deciding who should receive 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 antiviral treatments, is nothing more than an attempt to establish a racial hierarchy in the provision of life-saving medicine. Worse still, New York’s racial preferences ignore 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 suit says.

The New York State Department of Health and the office of Gov. Kathy Hochul, a Democrat, have not responded to requests for comment.

The Food and Drug Administration, which says that race and ethnicity are factors in determining which patients get treatments, has been urged to amend the “racist and un-American” guidance.

At least two other states had imposed policies similar to New York’s and were threatened with legal action by America First Legal.

Epoch Times Photo
Dr. Aldo Calvo, Medical Director of Family Medicine at Broward Health, shows a Regeneron monoclonal antibody infusion bag during a news conference at the Hospital in Fort Lauderdale, Fla., on Aug. 19, 2021. (Joe Cavaretta/South Florida Sun-Sentinel via AP, File)

Minnesota is using a risk score calculator that includes the same racial preferences as New York to determine which patients should get treatments in short supply.

Officials there on Jan. 11 said they were “re-evaluating the calculator” but defended the racial aspect, saying research indicated that “Hispanic/Latinx people” are 35 to 50 percent more likely to be hospitalized.

A day later, the state received notice that it may face a suit if the policy isn’t amended.

Minnesota officials, meanwhile, changed how it prioritizes treatments after Miller appeared on Fox News and said his group may sue the state.

Minnesota had been using a “monoclonal antibody screening score” that used “BIOPOC status” as a factor. BIPOC stands for black and indigenous people of color.

Officials removed mention of race from the screening score but the updated guidance says providers “may consider whether a patient has heightened risk of progression to severe COVID-19 associated with race and ethnicity when determining eligibility for mAbs,” or the antibodies.

Minnesota’s Department of Health acknowledged receipt of emailed questions about the policy but have not given answers four days later.