NY’s racial ‘risk factor’ for COVID treatment is illegal and immoral

New York City’s and state’s departments of health have reached a divisive and destructive low. In new guidelines rationing scarce, lifesaving oral antiviral medications and the one monoclonal antibody preparation that is effective against the Omicron variant of the SARS-CoV-2 virus that causes COVID-19, they instruct providers to “consider race and ethnicity” and give preference to those who are “Black, Indigenous, and People of Color.” These directives are immoral, illegal and bear no relation to the science.

The city’s Health Advisory #39 directs providers to adhere to the state Department of Health’s prioritization guidance for utilization of these COVID-19 treatments that are in short supply. It asks providers to consider whether patients are immunocompromised, their age, their vaccine status and the number of risk factors (medical conditions) they have for severe illness.

The problem with the state’s guidance is the instruction that “nonwhite race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19.” Hence, all other risk factors such as age, immune, and vaccination status being equal, “nonwhite” and “Hispanic/Latino” patients will be granted superior treatment access compared with whites.

NY’s racial ‘risk factor’ for COVID treatment is illegal and immoral
According to the guidelines, “nonwhite race or Hispanic/Latino ethnicity” should be considered a risk factor and given preference for COVID-19 treatments.
Photo by HANDOUT/Pfizer/AFP via Getty Images

Far and away the most significant factor associated with severe COVID-19 disease and death is age. Taking the 18-39 age group as a reference (Risk Ratio of 1), the risk of death doubles for the 40-49 age group (RR=2.2), doubles again in the 50-64 group (RR=4.3), and reaches an RR of 6.7 for those 65-74. The RR tops out for those 85 and older at 10.6.

Minority populations are younger than the white population. But they suffer from more of the underlying medical conditions that are associated with severe ­COVID-19 illness.

These include: obesity, diabetes with complications and chronic kidney disease. The risk increases with more conditions.

While it is possible that “longstanding systemic health and social inequities” could lead to an increased incidence of these conditions in minority communities, race and minority status do not, on their own, lead to more severe COVID-19 disease. If discrimination causes one the medical conditions, the condition itself should be counted in drug-distribution decisions. Crediting minority status and the medical condition is double counting. And counting minority status as a risk factor, when there is no resulting medical condition, is unfair and unwarranted.

Discrimination on the basis of race must meet the legal standard of strict scrutiny — the government must demonstrate its action addresses a compelling interest and is narrowly tailored to achieve that interest. Arguably, New York has an important interest in assuring that the limited supply of ­COVID-19 medications is allocated to maximize medical benefit. But New York’s guidelines are not even reasonably or rationally related toward achieving that end. They may direct the medicines toward minority patients and away from sicker, more vulnerable white patients who would benefit more.

This sort of discriminatory, politically correct decision-making should not be tolerated. New York health-department bureaucrats should revise these guidelines immediately or risk having them struck down in court.

Joel Zinberg, MD, is a senior fellow at the Competitive Enterprise Institute, an associate clinical professor of surgery at the Icahn School of Medicine at Mount Sinai in Manhattan and the director of Paragon Health Institute’s Public Health and American Well-being Initiative.