Today, the ACR Project demanded that New York State abandon its illegal, unconstitutional policy of rationing access to scarce COVID-19 treatments based on patient race and ethnicity.
The New York Department of Health has imposed a hierarchy governing access to two of the most effective COVID-19 treatments: monoclonal antibodies and oral antivirals. The hierarchy divides patients into five tiers based on immunocompromised status, age, vaccination status, and a number of other “risk factors for severe illness,” with doctors instructed to prioritize treatment for higher tiers (and among them, based in part on the number of risk factors). Because the Department has declared “[n]on-white race or Hispanic/Latino ethnicity” to be a risk factor, independent of any actual medical condition, under the policy, race and ethnicity dictate allocation of the most effective COVID-19 treatments away from those most at risk.
That violates the 14th Amendment’s equal protection clause, Title VI of the Civil Rights Act, and New York’s own Human Rights Law.
The state’s justification for the policy, that “longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19” for all non-white Americans, contradicts publicly available data from the Centers for Disease Control and Prevention (CDC).
A copy of the ACR Project’s demand letter is below.