To be frank, it came as little surprise that the New York State health department decided to be so flagrant in its rationing of Covid drugs.

This was the case as the vaccines rolled out, with eligibility by age, job and need for some and race for others. There is a rationale behind it, that the co-morbidity associated with bad outcomes were higher for black people, which made race a proxy for need.

Sick non-Hispanic whites can only get oral antivirals if they have a medical condition or unspecified “other factors that increase their risk for severe illness”; sick “[n]on-white[s]” and “Hispanic[s]” don’t face such a requirement.

And as Eugene Volokh notes, this flagrant use of race would violate the equal protection clause.

Thanks to Hans Bader (Liberty Unyielding) for the pointer; as he points out, such use of race as a proxy for supposed greater risk—instead of focusing on the more directly relevant factors (“race-neutral alternatives,” in doctrinal terms), such as underlying medical conditions, vaccination status, lack of access to good alternative care, or the like—would violate the Equal Protection Clause in this situation.

But what it serves is two institutional purposes, the first being a state recognition of bias by explicitly using race as a favorable factor for treatment, perhaps as virtue signaling or perhaps in “reparations” for the perceived historic treatment of black people, which it is argued created the circumstances under which they developed the co-morbidities that give rise to the worse outcomes, such as obesity, hypertension and asthma.

As Eugene and Hans point out, the rationing of health care could accomplish the same things with “race-neutral alternatives,” but decided instead to make race, in itself, a qualifying criterion. This could produce some untoward rationing.

That means that a healthy twenty-year-old Asian football player or a 17-year-old African-American marathon runner from a wealthy family will be automatically deemed at heightened risk to develop serious COVID illness—making them instantly eligible for monoclonal treatments upon testing positive and showing symptoms—while a White person of exactly the same age and health condition from an impoverished background would not be automatically eligible.

Then again, how often would this type of scenario arise? Sure, it sounds bad, but is it likely to have any negative impact on white people based on race that “a 17-year-old African-American marathon runner from a wealthy family” will be “instantly eligible for monoclonal treatments”? If this turns out to be a real medical issue, that’s one thing, but it seems far more likely to be a theoretical issue to explain why the automatic eligibility for people based on race could be deadly.

The Minnesota Department of Health has done pretty much the same as New York.

MOH uses the Monoclonal Antibody Screening Score-BIPOC+Pregnant (MASSBP) for MNRAP, which is a score adapted from Mayo Clinic’s published Monoclonal Antibody Screening  core (MASS).

It provides its rationale.

The score was adapted after consultation with the University of Minnesota and Mayo Clinic to specifically examine the import of including pregnancy and BIPOC status in examination of poor clinical outcomes. UMN found, in an analysis of 41,000 patient records, that both pregnancy and BIPOC status, after accounting for other covariates, were independently associated with poor clinical outcomes from COVID-19 infection….

The argument isn’t that race causes poor clinical outcomes.

It is ethically appropriate to consider race and ethnicity in mAb eligibility decisions when data show elevated risk of poor COVID-19 outcomes for Black, Indigenous and other people of color (BIPOC populations), and that this risk cannot be adequately addressed by determining eligibility based on underlying health conditions (perhaps due to underdiagnosis of health conditions that elevate risk of poor COVID-19 outcomes in these populations).

Like New York’s, this seems to be flagrantly unconstitutional. But is it substantively wrong? Will it produce harm to white people based on their not being BIPOC, the acronym du jour, based on lack of treatment due to race?

There is another concern here, however, that is implicated by the overt use of race as a qualifier for Covid treatment eligibility. The notion that the government would openly assert that any person receive or be denied a right based on their race is, or at least should be, shocking. Even if putting the concept into concrete terms doesn’t present a scenario of serious and significant concern, these health department directives make an express racial distinction. They say it out loud, and they say it as the government.

Is this the first step in a shift toward express recognition of race as a proxy criterion for differing outcomes? The same rationale that justifies the overt use of race as a per se factor in the rationing of Covid drugs would serve to use race as an express factor in many criminal law decisions, such as bail and sentence. Will the fact that a black person has worse criminal law outcomes give rise to its inclusion as an express factor in such matters?

Will the fact that black people are arrested or convicted at a disproportionate rate for certain crimes justify the modification of criminal laws, not because the conduct should not be criminal or is not harmful to others, but because of disparate outcomes?

It may well be that this use of race as a flagrant distinction between who is automatically entitled to Covid treatment will go no further, and this is a one-off situation to address an exigent need during the pandemic. And much as it might be theoretically wrong to use race as a proxy when the Constitution demands equal, not equitable, protection, theory can be argued after the emergency is over. But it’s baby steps like this that create precedent that creeps into other areas such as criminal law. By the time the argument is fully joined, it’s gained sufficient acceptability that something as shocking and unconstitutional as race-based laws are back in fashion.