Factoring Race and Ethnicity into Covid Risk Assessments – Legal Concerns and Possible Solutions

Most new treatments and preventive interventions for Covid-19 were initially in short supply, necessitating strategic allocation of these resources among those who could benefit. The basic framework that the Centers for Disease Control and Prevention (CDC) and other government agencies have recommended for allocating limited resources is based on a 2020 report by the National Academies of Sciences, Engineering, and Medicine on the allocation of Covid-19 vaccines, which recommended considering the risks to individuals and society and the mitigation of health inequalities.

Risk factors for SARS-CoV-2 infection and severe disease include being black, Indigenous, or Latino. The explicit inclusion of race or ethnicity as a factor in government resource allocation, however, raises serious legal issues under the Equal Protection Clause of the US Constitution and federal anti-discrimination laws. While this issue has not been the subject of significant litigation in health care settings, court rulings in education and other settings limit the government’s ability to prioritize members particular racial or ethnic groups in the allocation of resources. Recent litigation challenging the consideration of race and ethnicity in the allocation of rare Covid-19 antibody treatments in New York highlights these issues.

It is well documented that Black, Indigenous and Latinx people have been at high risk of poor outcomes during the Covid-19 pandemic. For example, blacks were hospitalized at 2.3 times the rate and died at 1.7 times the rate of non-Hispanic whites, and Hispanics or Latinx were hospitalized at 2.2 times the rate and died at 1. .8 times the rate of non-Hispanics. Hispanic whites.1 Additionally, black, Indigenous and Latinx people died of Covid-19 at younger ages than white people, on average.

Many structural factors contribute to higher Covid-related risks in these populations than in whites. These factors include lower socioeconomic status and poorer living conditions, on average; more limited access to preventive interventions and treatment; and increased viral exposure among frontline, essential and critical infrastructure workers, who are disproportionately members of historically marginalized groups. An additional factor may be the long-term effect of stress caused by discrimination. Although race and ethnicity are social constructs rather than biological characteristics, screening for economic, social, or medical factors independently does not fully account for the increased risks of Black, Indigenous, and Latinx people.

Both federal and state governments have recognized being a member of a historically marginalized racial or ethnic group as an independent risk factor for Covid-19 throughout the pandemic. One of the reasons given by the CDC for initially prioritizing essential frontline workers for vaccination over older or sicker people was that these workers tended to be members of racial or ethnic groups that were at increased risk. of Covid-19. The Food and Drug Administration‘s guidelines for assigning the monoclonal antibody sotrovimab mention consideration of race and ethnicity. The CDC’s general guidelines on Covid-19 also identified being “from certain racial and ethnic minority groups” as a factor associated with a higher likelihood of becoming seriously ill from Covid-19.

However, government rationing of scarce resources based on race or ethnicity is legally problematic. The Equal Protection Clause and Title VI of the Civil Rights Act prohibits government discrimination based on race or ethnicity, except in very limited circumstances.2 Laws or policies that treat people differently on the basis of racial or ethnic classifications are generally subject to “rigorous scrutiny” by the courts, which means that they must be narrowly defined and represent the least restrictive means of achieve a compelling government interest. They rarely survive a legal challenge.

In response to the omicron push in December 2021, the New York State and New York City Health Departments released guidance on the use of Covid-19 drug treatments and other therapies which were then in limited supply. Oral antiviral treatments were to be authorized for patients over a certain age and weight who had tested positive for SARS-CoV-2, had mild to moderate symptoms of Covid-19 and had “a medical condition or other factors that increase their risk of serious illness.” As the state guidelines clarified, “non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as long-standing systemic inequalities in health and society have contributed to increased risk. increased serious illness and death from COVID-19″.3 City councils included similar language. The health services also recommended a schedule for prioritizing Covid-19 antibody treatment, grouping patients into five categories based on age, vaccination status and various risk factors, including race and ethnicity.

Three lawsuits have been filed in federal court asking that this guidance be immediately blocked. Two of the lawsuits, Jacobson vs. Bassett and Roberts vs. Bassett, claimed he was discriminating against white people by categorizing them as lower priority for treatment. A third, New York City Against Intolerance and Racism Foundationwas filed by an organization that says its mission is to protect members of all racial and ethnic groups and claimed that the councils discriminated against not only white people but also members of other racial and ethnic groups by labeling them as more prone to disease and thereby contributing to stigma and subjecting them to experimental treatments.4

The fear that members of marginalized groups could be used as “guinea pigs” for experimental treatment has a historical basis, notably in the Tuskegee experiments on syphilis. Some medical and public health experts have argued that prioritizing new interventions based solely on skin color could contribute to mistrust or be stigmatizing.5 The New York guidance, however, clearly ties consideration of race and ethnicity to structural factors, not biology. The only amicus brief filed in the cases to date was co-signed by the National Medical Association, which represents African-American doctors, and strongly supported the guidelines.

Two of the lawsuits were dismissed. The courts did not conduct a rigorous review to assess the merits of the advice, but instead ruled that the plaintiffs had not shown that the advice had harmed them: the state and city had not required favorable treatment of blacks, aboriginals and Latinx people, they had simply provided scientific information to medical professionals, who themselves made clinical decisions about treatment. The courts also ruled that the white plaintiffs failed to explain how the advice affected them personally, as they did not have Covid-19 or need treatment, and the antiviral treatments were not rarer. Plaintiffs in these cases appealed to the United States Court of Appeals for the Second Circuit. The judge in the case alleging discrimination against white people and members of other racial and ethnic groups suspended it pending decisions in the appeals of the other two cases.

The issue of discrimination in the allocation of Covid-19 interventions has also been raised in other contexts. The Arizona Attorney General has asked the Department of Health and Human Services to revoke any guidance recommending considering race or ethnicity as risk factors for Covid-19 and adopt a rule prohibiting the the use of criteria based on race or ethnic origin in the allocation of medical care. resources, unless an explanation is provided as to why the guidance would survive rigorous scrutiny. Utah and Minnesota reportedly recommended considering race and ethnicity in rationing rare Covid-19 treatments, but reversed course under threat of legal action.

The question of how data on racial and ethnic disparities in severe Covid-19 risk should be translated into prevention and treatment policy is likely to persist. Although Covid-19 treatments and preventive interventions are not currently in short supply, there could be further shortages if Congress continues to block funding for federal Covid-19 programs. New York court rulings may offer a way forward. As long as governments are content to provide evidence-based scientific information, leaving healthcare professionals the freedom and responsibility to make clinical decisions for their patients, advice may be safer from legal challenge than would be policies that explicitly ration interventions.

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