Legality of Explicit Racial Discrimination in the Distribution of Lifesaving COVID-19 Treatments

Abstract

In 2021, the Federal Drug Administration released a statement advocating for race and ethnicity to be used in rationing lifesaving COVID-19 treatments. By January 2022, three states had implemented policies explicitly prioritizing treatments based on race, which resulted in multiple legal challenges. This Article analyzes the uphill battle such policies would face in an equal protection challenge. It also rebuts the attempt to analogize these policies to the legally acceptable practice of racial preferences in college admissions. Finally, nonlegal, pragmatic consequences are considered, such as how the policy risks disproportionately favoring the wealthy reduces trust in future government pronouncements regarding COVID-19, perpetuates harmful stereotypes about racial inferiority, breeds racial resentment, and causes unnecessary delays in treatment.

The racially disparate outcomes from the COVID-19 pandemic illuminate numerous background factors that disadvantage minority groups. However, the implementation of racial preferences in lifesaving treatments is not the answer. As demonstrated in this Article, such policies spectacularly fail judicial scrutiny. Furthermore, the nonlegal, pragmatic considerations establish that such a policy does far more harm than good. These considerations are of paramount importance not only for the current COVID-19 crisis but also for future pandemics and the rationing of other limited medical resources, such as organ transplants and intensive care unit beds.