Last year, with the COVID-19 pandemic still raging — and therapeutics in inexcusably short supply — several jurisdictions established protocols to guide doctors in deciding which patients should receive needed treatment first.

Establishing such priorities in a time of resource shortages is ethical when based strictly on medical criteria rather than ideological considerations. In other words, priorities should never be predicated on invidious distinctions, such as race, sex, wealth, sexual orientation, disability, and so on.

Unfortunately, medical policymakers in a few states have set priorities based, in part, on invidious categories of race and ethnicity. The pretext for discrimination comes from published “fact sheets” published by the U.S. Food and Drug Administration (FDA) providing guidance for the dispensation of certain anti-viral therapeutics. For example, for the distribution of sotrovimab, the FDA states under the “Patient Selection” provisions that certain medical conditions should be considered when determining who should receive the medicine, including factors such as older age, pregnancy, kidney disease, and having a medical-related technology dependence.

That’s all fine and good. But then the text states: 

Other medical conditions or factors (for example, race or ethnicity) may also place individual patients at high risk for progression to severe COVID-19, and authorization of sotrovimab … is not limited to the medical conditions or factors listed above.

The Virus Doesn’t Discriminate

How are race and ethnicity relevant? Equally medically situated people face a roughly equal extent of risk, no matter the color of their skin.

So, why bring that up? The answer requires us to follow a bit of a circuitous route. The FDA fact sheet refers to a Centers for Disease Control and Prevention (CDC) COVID informational tract that describes the factors associated with the risk of severe disease, which includes obesity. The guidance then directs the reader to a link that states in part: “Hispanic and non-Hispanic Black adults have a higher prevalence of obesity and are more likely to suffer worse outcomes from COVID-19.”

Another link blames this propensity on racism.

A growing body of research shows that centuries of racism in this country has had a profound and negative impact on communities of color. The COVID-19 pandemic and its disproportionate impact on people from some racial and ethnic groups is a stark example of these enduring health disparities. COVID-19 data shows that Black/African American, Hispanic/Latino, American Indian and Alaska Native persons in the United States experience higher rates of COVID-19-related hospitalization and death compared with non-Hispanic White populations.

OK. That’s certainly a societal problem worth addressing societally. But what does it have to do with assessing individual patients based on their particular medical situation? Not a thing.

Bureaucrats Had Their Marching Orders

Neither the FDA nor the CDC directs doctors to discriminate in providing COVID care. But equity bureaucrats believed they had their marching orders. Thus, the New York Department of Health (and New York City’s) recently issued a directive that allows for discrimination. After setting forth the usual medical criteria for providing anti-viral treatments at a time of “severe shortage,” the guidance states that the patient has “a medical condition or other factors that increase their risk for severe illness.” Then, “Non-white 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.”

In other words, white patients must meet strict medical eligibility criteria. But similarly situated patients of “non-white race or Hispanic/Latino ethnicity” might not because their race/ethnicity is itself considered a “risk factor,” regardless of their individual symptoms and circumstances.

If the guidance had stated something to the effect that doctors should be on the lookout for heightened medical risk factors when examining people of color and Hispanics because these populations have historically experienced systemic health inequities, I would have no problem since access would still be solely determined by each individual’s medical circumstances. Instead, the guidance establishes an invidiously based priority to treat people of color and Hispanics because of their membership in a sociological category.

There’s a word for that. Racism.

Meanwhile, the Minnesota Department of Health’s “Ethical Framework for Allocation of Monoclonal Antibodies During the COVID-19 Pandemic” was even more explicitly discriminatory, stating:

The FDA has acknowledged that in addition to certain underlying health conditions, race and ethnicity “may also place individual patients at high risk for progression to severe COVID-19.” FDA’s acknowledgment means that race and ethnicity alone, apart from other underlying health conditions, may be considered in determining eligibility for [monoclonal antibodies].

That approach should be opposed by everyone who believes in equal rights. Indeed, illustrating the politically explosive consequences of racializing access to needed medical care, when Minnesota’s invidious policy was reported by the Washington Free Beacon, it was updated on the state’s website.

Wait. There’s More

Utah similarly cited the FDA’s fact sheet: 

Utahns who identify from communities of color have a significantly higher risk of severe disease requiring hospitalization. Public health interventions may be used to attempt to mitigate these disparities in COVID-19 by recognizing the structural inequities that underlie them. One way to do this is to include race/ethnicity in the patient selection criteria.

Good grief.

Here are my questions. How is any of this constitutional? How do these discriminatory guidelines not break federal civil rights laws? For that matter, where are the lawsuits seeking injunctions barring such racial discrimination, which, I remind you, is being directed by states and municipalities?

This much is sure. Historically unjust treatment cannot be cured by inflicting present injustice on others. Nor will establishing racist COVID care priorities be the ceiling of discrimination. Rather, they will become the launching pad to an increasingly invidious system that discriminates across the depth and breadth of health care delivery.

Cross-posted from The Epoch Times.