AFL Moves to Enjoin New York’s Unconstitutional Rationing Of COVID-19 Drugs Based On Race

WASHINGTON, DC – On Friday, America First Legal (AFL) filed a motion for class certification and a motion for preliminary injunction in our lawsuit on behalf of our client–Cornell Law School Professor William A. Jacobson–against the New York State Department of Health over its racist and unconstitutional directive that instructs health-care providers to ration lifesaving medical treatments for COVID-19 based on a patient’s race.

Under the Department’s policy (the “Treatment Policy”), non-Hispanic whites who test positive for COVID-19 are ineligible for oral antiviral treatments unless they demonstrate “a medical condition or other factors that increase their risk for severe illness.” But non-whites and Hispanics/Latinos who test positive for COVID-19 are automatically eligible for these life-saving antiviral treatments—regardless of the individual’s medical situation—because the Department has proclaimed that one’s status as a racial or ethnic minority is itself a “risk factor” for severe illness from COVID-19, even if the individual has no medical condition that would make him more susceptible to harm from COVID-19. In the words of the Department: “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.”

Our motions ask the court to (1) enjoin the Department’s policy; and (2) certify a class of all individuals in New York State who do not qualify as “non-white race or Hispanic/Latino ethnicity” under the Department’s guidelines. 

New York’s use of a patient’s skin color and ethnicity as a basis for rationing medical treatment is racist, appalling, and wrong. AFL will not stand by while any government attempts to establish a racial hierarchy in the provision of life-saving medicine.

Statement from America First Legal President Stephen Miller:  

As a proud civil rights organization, and as a leader in the national fight against racist equity policies, America First Legal is moving to immediately enjoin New York State’s virulently discriminatory and flagrantly illegal policy of rationing covid medicine based upon skin color,” Stephen Miller said. 

Read the motion for preliminary injunction here.

Read the motion to certify class here

To schedule an engagement with America First Legal, please email [email protected].

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