Two conservative Supreme Court justices warned New York officials that if they try again to ration health care based on the patient’s race—as they did with COVID-19 treatments in 2021—they will vote to take a case challenging the policy on an emergency basis.
The comments came in a statement Justice Samuel Alito filed when the court denied a request to review the plan of New York City and New York State to deprioritize the treatment of white COVID-19 patients during the recent pandemic.
Justice Clarence Thomas joined the statement.
Both justices concurred with the denial only because the “circumstances underlying the dispute below have long since come and gone,” meaning because the COVID-19 emergency has ended.
Without providing an explanation, the Supreme Court turned down the petition for certiorari, or review, in Roberts v. McDonald (court file 22-757) in an unsigned order on June 30. At least four of the nine justices have to vote to grant a petition in order for it to move forward to the oral argument stage.
The denial of the petition came a day after the court issued a landmark ruling in Students for Fair Admissions v. President and Fellows of Harvard College, in which the court found that racial discrimination in the college admissions process was unconstitutional.
Petitioners Jonathan Roberts and Charles Vavruska, both New York residents, filed a lawsuit (pdf) on Feb. 8, 2022, in the U.S. District Court for the Eastern District of New York, against the New York State Department of Health and the Department of Health and Mental Hygiene of the City of New York.
As a surge in the Omicron variant of COVID-19 took place in December 2021, the U.S. Food and Drug Administration granted emergency approval for Paxlovid, a drug that was hailed as an “antiviral superstar,” that “reduces the rate of hospitalizations by around 90 percent” with “no safety issue beyond placebo.”
Despite plans to boost production, supplies of the drug were limited when the petition was filed.
Mr. Roberts and Mr. Vavruska objected to the policy of the state and city to instruct health care providers to adhere to the state’s directive for distributing scarce COVID-19 treatments—oral antivirals Paxlovid and Molnupiravir, along with monoclonal antibodies.
“The directives require providers to prioritize treatment to individuals based on age, vaccination status, and a number of risk factors. Risk factors include medical conditions such as cancer, chronic disease, diabetes, and obesity.
“The directives also state that, apart from any medical condition, non-white race or Hispanic/Latino ethnicity must be considered as an independent risk factor,” according to the petition.
For example, “an unvaccinated 64-year-old African-American with diabetes receives priority over an unvaccinated white 64-year-old with diabetes. A vaccinated 66-year-old who is Hispanic receives priority over a vaccinated 66-year-old who is not.”
“New York’s designation of race as an independent risk factor has no basis in science. Although race may be associated with different risk factors, New York has cited no evidence that race—on its own—makes an individual more susceptible to suffering adverse effects from COVID-19.”
Such evidence “does not exist, because race does not connote any attribute inherent to any individual. It is instead an arbitrary classification that lumps in many different individuals with different attributes and different needs.
“New York’s designation of race as an independent risk factor deprives deserving individuals of much-needed medical treatments solely due to their race.”
Mr. Roberts was white and not Hispanic, vaccinated against COVID-19, and had no known risk factors for severe illness that could result from the disease. This meant Roberts did not “qualify for inclusion in any tier of the ‘risk groups’ established” by the state or city health departments.
“If he were any race but white, he would qualify for the last tier [1E] of the risk groups,” the legal complaint stated.
Mr. Vavruska was also white and not Hispanic, and vaccinated against COVID-19. He contracted the disease in March 2020 and was hospitalized for 10 days. He had at least one risk factor for severe illness that could result from the disease and therefore “qualifies for inclusion in the last tier [1E] of the risk groups for prioritization of certain COVID-19 treatments.”
The petitioners sued to gain “the ability to access oral antiviral or monoclonal antibody treatments on an equal basis, without regard to their race, if they contract COVID-19.”
The district court dismissed the case for lack of standing, and that ruling was affirmed by the U.S. Court of Appeals for the 2nd Circuit.
Mr. Alito said in his statement that the 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.”
He said if “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.”
The state’s policy “justified the use of race and ethnicity as proxies for health risk by appealing to ‘longstanding systemic health and social inequities.’”
But 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 ‘remediate specific, identified instances of past discrimination that violated the Constitution or a statute,’” Mr. Alito wrote, quoting the Harvard decision last month.
New York’s reference to “longstanding systemic health and social inequities” does not justify the state denying 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,” the justice wrote.
Jim Burling, vice president of legal affairs for the Pacific Legal Foundation (PLF), which represented Mr. Roberts and Mr. Vavruska, told The Epoch Times he agreed with Mr. Alito.
PLF is a national non-profit public interest law firm that challenges government abuses.
The idea of giving preference to a racial or ethnic group because of “‘longstanding systemic health and social inequities,’ makes no sense because all the data showed that there were no significant differences in morbidity between various ethnic groups,” Mr. Burling said in an interview.
“The court in this term, came out in no uncertain terms against racial gerrymandering for college admissions, and it shouldn’t be any different for health care,” he said.
“If there is a live case, and it gets up to the Court soon enough, they certainly could win.”
Usually, when the Supreme Court turns down a petition, it simply says “denied” and puts it on the list of denied cases, he said.
“But on those occasions where the Court comes out with a statement, or sometimes they dissent from the denial, that really gives a lot of people a roadmap to the future to try to get another similar case before the Supreme Court.”
So this Roberts v. McDonald case “is just another one of these cases where some members of the Court are saying, ‘hey, don’t give up on this. We’re interested and bring us another case and we might take it,’” Mr. Burling said.
Cornell Law School professor William Jacobson, who brought a similar case against New York for its discriminatory medical policy but did not appeal its dismissal for lack of standing to the Supreme Court, said the 2nd Circuit’s standing standard was impossible to meet.
The standard “required a plaintiff to contract Covid, be medically eligible, and be in a position to seek the medicine, before a 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,” Mr. Jacobson wrote at Legal Insurrection.
Because of Mr. Alito’s statement, “We know that at least two of the Justices are interested in hearing a case of medical racism in the right procedural posture,” he added.
The Epoch Times also asked New York State’s solicitor general, Barbara Underwood, for comment but had not received a response at the time of publication.
New York City Law Department spokesman Nick Paolucci said by email that the department “is not commenting.”
Article cross-posted from our premium news partners at The Epoch Times.
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