Professor William A. Jacobson, who filed a lawsuit Sunday against New York State’s new policy prioritizing “non-white” COVID-19 patients, told Breitbart News Tuesday that the state should “treat everyone equally without regard to skin color.”
Jacobson, who runs the respected conservative blog Legal Insurrection, filed the class action lawsuit in federal court as the lead plaintiff on Sunday and announced it on Monday, which was also Martin Luther King Jr. Day, honoring Dr. King’s commitment to ending racism.
The defendant was named as New York State Acting Commissioner of Health Mary T. Bassett.
As Breitbart News reported last month, New York has adopted a racially discriminatory policy that treats patients differently based on whether they come from racial groups with generally poorer health, rather than on individual health conditions:
New York state’s Department of Health (DOH) announced recently that non-white people should be prioritized over white people for anti-viral pills in short supply.
The DOH announcement, dated December 27, said limited supply of oral antivirals will “require providers to prioritize treatment for patients at highest risk for severe COVID-19 until more product becomes available.”
Under a list of eligibility requirements for oral antiviral treatment, it said one requirement should be “have a medical condition or other factors that increase their risk for severe illness” and that one risk factor is being a “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.”
Journalist and author Abigail Shrier called for a constitutional challenge to the guidance. “If the state can discriminate racially for medical treatment, then the 14th Amendment truly has no meaning. There needs to be a constitutional challenge to this IMMEDIATELY,” she tweeted.
Jacobson took up that challenge. His lawsuit states, in part (original emphasis):
The New York Department of Health recently established guidelines for medical providers to give automatic priority to “non-whites” and individuals with “Hispanic/Latino ethnicity” in distributing life-saving COVID-19 treatments. … Under these guidelines, non- Hispanic white individuals who test positive for COVID-19 are ineligible for oral antiviral treatments unless they also demonstrate “a medical condition or other factors that increase their risk for severe illness.” Id. at 2. But similarly situated “non-white” or “Hispanic/Latino” individuals are automatically eligible for these life-saving antiviral treatments—regardless of the individual’s medical situation—because New York 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 pre-existing condition that would make him more susceptible to harm from COVID-19.
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 New York Department of Health is violating the Fourteenth Amendment by discriminating on account of race in determining eligibility for COVID-19 oral antiviral treatments.
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.
In an exclusive statement to Breitbart News, Jacobson said:
New York State has decided to prioritize Covid therapeutics based on skin color. If two people in identical preexisting health come into the hospital with identical Covid symptoms, under these guidelines to get rationed therapeutics the non-white person does not need to show any personal medical risk factors, whereas the white person needs to show personal medical risk factors. By erecting a barrier to treatment for one race but not for another, the state is failing to provide equal protection. It is time for the State of New York to abandon these racially discriminatory policies and treat everybody equally without regard to skin color. That shouldn’t be controversial but apparently for New York State health authorities it is.
The case is Jacobson v. Bassett, in the U.S. District Court for the Northern District of New York, No. 3:22-CV-33 (MAD/ML).
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.