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On January 20, 2022, FAIR filed a federal lawsuit to stop New York City from enforcing its unconstitutional order prioritizing Covid-19 treatments based on racial categorization and ethnicity.

As background, the City determined that because Covid-19 treatments are in short supply, patients should be prioritized by how many “risk factors” they have (among other things). Most of the listed risk factors are medical conditions, such as cancer. However, providers are also directed to count “non-white race or Hispanic/Latino ethnicity” as a risk factor.

Therefore, a non-white or Hispanic adult patient will automatically be placed on the priority list for treatment, no matter how young and healthy they are. Additionally, a non-Hispanic white patient will always be in line behind a patient who is the same in every respect but is non-white or Hispanic. New York justifies this racial hierarchy not because of any genetic or biological predisposition to severe Covid-19, but because of “longstanding systemic health and social inequities.”

By treating individuals differently based on their ancestry, the City has violated fundamental constitutional and civil rights protections. While nominally aimed at addressing inequities, racializing healthcare harms people from all racial and ethnic groups. Non-white and Hispanic patients who are otherwise young and healthy will receive these experimental therapies, even though they likely do not need them, while similarly situated white patients will not receive them. In fact, a 64-year-old white woman with no known risk factors, but who is nonetheless at much greater risk simply because of her age, would receive lower priority than a healthy 19-year-old Hispanic woman. Furthermore, while the treatments are highly effective in the short term, their long-term consequences are unknown. Because non-white patients are automatically prioritized, they will disproportionately bear the risk of experimental treatments with as yet unknown future effects. The City’s order also furthers the vile idea that non-white people are more sickly, weak, or infectious simply because of their racial categorization.

On February 23, 2022, FAIR filed a motion for a Temporary Restraining Order (“TRO”) and Preliminary Injunction, urging the United States District Court for the Southern District of New York to issue an emergency order enjoining the New York State Department of Health and the New York City Department of Health and Mental Hygiene from enforcing portions of two identical directives that prioritize scarce COVID-19 oral antiviral and monoclonal antibody therapy treatments solely based on skin color and ancestry. In the Motion, FAIR alleges that the policy of pathologizing skin color and ancestry has injured and will continue to injure NYC residents by intentionally and unconstitutionally discriminating against them on the basis of their race and ethnicity—classifications that the Supreme Court, in Shaw v. Reno, 509 U.S. 630, 643 (1993), denounced as “odious to a free people whose institutions are founded upon the doctrine of equality.”

UPDATE: On April 20, 2022, the court denied FAIR’s motion for a temporary restraining order and preliminary injunction, but did not dismiss the case. Instead, the court recognized there is a factual issue that must be resolved: whether the NY directives are orders that providers must follow or simply non-binding guidance. The defendants must answer or move to dismiss by May 20. 

FAIR is being represented in the action by civil rights attorney Ameer Benno of Benno & Associates in New York City.