According to the CDC, race and ethnicity are risk markers for other underlying conditions that affect health including socioeconomic status, access to health care, and exposure to the Covid-19 virus.[1] For example, American Indian or Alaska Natives are 4 times more likely to be hospitalized for Covid-19 and 2.6 more times to die, compared to White non Hispanic persons. Black or African American non Hispanics are 3.7 times more likely to be hospitalized and 2.8 times more likely to die from Covid-19 compared to White non-Hispanic persons.[2] The disparate impact of the Coronavirus has drawn national attention to how public health resources are used in times of emergency. In light of these circumstances, if states were to prioritize racial minorities in public health emergencies, such as distribution of vaccines during a pandemic, for example, would that focus survive equal protection challenge? Put succinctly, can we triage public health services based on race?
As an example, California’s Covid-19 vaccination plan includes this statement: “One of the primary efforts of the Community Vaccine Advisory Committee will be to help ensure vaccine planning supports all Californians, but particularly for individuals in communities that are disproportionally impacted, including Latinos, African, Americans, Native Hawaiians, Pacific Islanders, and other Asians including Filipinos.”[3] Will this plan pass constitutional muster?
The Supreme Court has countenanced the use of race in public programs when it is narrowly tailored to achieve a compelling governmental interest. The downside of this standard of review is that public health agencies, particularly those offering services to the underprivileged or victims of poverty, may be barred from giving preferential treatment in services to groups based on ethnicity, even if those groups may be in dire need of those services.”[4]
Professors Schmidt, Gostin and Williams, writing on whether it is lawful and ethical to prioritize racial minorities for Covid-19 vaccines, note that “there is no direct precedent in which courts have considered race in allocating scarce health care resources.[5] They write that “[s]trict judicial scrutiny would not permit vaccine priority strategies. First, a healthcare worker could not give priority to vaccinating persons from minority groups, for instance, by skipping White people waiting in line at a health care facility. Second, public health agencies could not provide vaccines exclusively, or in large shares, to geographic areas identified by race alone.”[6] Nevertheless, they suggest that a vaccine distribution formula could lawfully prioritize populations based on factors like geography, socioeconomic status and housing density status that would favor minorities de facto, but not explicitly include race.”[7]
The geographic/ proportional distribution suggested by Schmidt et al., would be consistent with other race neutral suggestions or solutions for other affirmative action-based programs, such as school admissions. In Fisher v. University of Texas at Austin, 136 S.Ct. 2198 (2016) (Fisher II), the Court affirmed diversity in higher education as a compelling state interest, and held the race-conscious admissions program in use at the time of petitioner's application lawful under the Equal Protection Clause. We could analogize the geographical distribution to University of Texas, Austin's use of top 10% plan, where the university used a race neutral method of equalizing the structural inequities by guaranteeing acceptance of students who graduate in the top 10% of their graduating class. This plan cures the obstacles that minorities often face in getting admitted to elite universities: parental educational background, attending under-resourced schools because they are located in economically depressed neighborhoods, kids having to work to support the family, language barriers, low socio-economic status, etc.[8]
However, this legal analogy flounders in times of a pandemic. Unlike the school admission cases (where the lack of diversity that elite schools are trying to improve is a self-inflicted wound), Covid-19 is an emergency, a disaster of epic proportions. As of this writing, there are over 21 million confirmed cases and over 356,000 deaths in the United States.[9] During a pandemic, there is more urgency and a race neutral alternative might not be as equally effective. For example, vulnerable populations might slip through the cracks while waiting for their priority groups. One can conclude that race-based policies have the greatest chance of passing strict scrutiny during pandemics.[10] But will they? This will depend on how the Justices view racial inequalities during a pandemic. For example, after acknowledging the serious nature of the pandemic, Justice Kavanaugh, in his concurring opinion in Roman Catholic Diocese of Brooklyn, New York v. Cuomo writes, “[B]ut judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”[11]
All in all, focusing on vulnerable populations in vaccine distribution is likely to succeed only if it doesn’t explicitly use racial categories. Even though using a race neutral distribution plan presents little or no constitutional challenges, if success (and here success is defined as getting the vaccine to the most neediest people to reduce the pandemic) means focusing on vulnerable groups, whether delineated by race or socioeconomic status, shouldn’t such a distribution plan be countenanced? Put differently, if admission to colleges and universities based on race can be narrowly tailored to achieve a compelling governmental interest, then surely a plan that benefits a race can be upheld on the basis of urgency due to COVID-19. Then again, maybe not. In July 2020, Oregon state lawmakers passed the Oregon Cares Fund. This state fund was meant to steer coronavirus relief money directly to black Oregonians and black-owned businesses.[12] The state earmarked $62 million of its $1.4 billion in federal Covid-19 relief money to provide grants to black residents, business owners and community organizations enduring pandemic-related hardships. However, a Mexican-American and two white business owners sued the state, arguing that the fund discriminated against them.[13] Although the lawsuit has not been decided yet, the outcome will have far reaching implications on any state planning to distribute vaccines or any public health services based on racial categories.
[1] CDC COVID-19 Hospitalization and Death by Race/Ethnicity, available at https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html (Updated Nov 30, 2020).
[2] Id.
[3] See Covid-19 Vaccination Plan, State of California. Interim Draft, 14-15 (Cal. Dept. Pub Health, 10-16-2020).
[4] Christopher Ogolla, Will The Use of Racial Statistics Survive Equal Protection Challenges? A Prolegomenon for The Future, 31 N.C. Cent. L. Rev, 1, 19 (2008).
[5] Harald Schmidt, Lawrence Gostin & Michelle Williams, Is it Lawful and Ethical to Prioritize Racial Minorities for Covid 19-Vaccines? 324 JAMA 2023 (Nov. 2020).
[6] Id., at 2024.
[7] Id.
[8] Professor Eang Ngov, Barry University Dwayne O. Andreas School of Law. (Pers. Comm., Dec 6, 2020).
[9]See John Hopkins University, Corona Virus Resource Center available at https://coronavirus.jhu.edu/ (last visited on Jan 5, 2021).
[10] Ngov, supra note 8.
[11] Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 2020 WL 6948354 * 8 (Nov. 25, 2020) (Kavanaugh, J., concurring).
[12] Dirk VanderHart, Fund to help Black Oregonians cope with Covid-19 put on hold. OPB Dec. 18, 2020. https://www.opb.org/article/2020/12/18/oregon-cares-fund-black-community-business-covid-19/
[13] John Eligon, A Covid-19 relief fund was only for black residents. Then came the lawsuits. N.Y. Times Jan. 3, 2021. https://www.nytimes.com/2021/01/03/us/oregon-cares-fund-lawsuit.html
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