FDA Rules Push Racial Discrimination In Distributing COVID Therapeutics

State governments around the nation have been receiving sharp criticism because of racial discrimination schemes implemented to distribute COVID-19 therapeutic medications. New York considers racial minorities eligible regardless of medical condition or age. Utah scores “Latinx” ethnicity as more critical than congestive heart failure in calculating a “risk score.” Minnesota’s system gives a higher priority to an 18-year-old black patient over a 64-year-old white.

Even though the state governments are drawing the blame, the discriminatory distribution standards directly result from federal Food and Drug Administration actions. The FDA conditioned its approval of emergency use authorizations for oral antivirals and monoclonal antibodies, only provided to “high risk” patients. In defining what high risk means for the approval, the FDA said one risk factor to be considered is race.

The FDA has issued “fact sheets” for the drugs that include “race or ethnicity” and “systemic health and social inequities” as factors that are to be considered in determining whether or not a patient is at “high risk.” The agency found that those factors put minority populations at an increased risk of illness and death from COVID.

Even though the sheets are not technically binding, several states have relied on them to create a race-based triage system that they feel safely complies with federal requirements. The FDA has declined to comment on individual state plans other than saying they do not place limitations on states based on race.

The trend toward using racial categories to address alleged health disparities has caused alarm in some commentators. Former civil rights director at the Department of Health and Human Services Roger Severino called the use of racial classifications in establishing medical preferences a “corrosive and grossly unfair” procedure. He said that even during a public health emergency, a person’s skin color should never be the reason for denial of life-saving health care.

A patient’s race carries more weight than their age or gender in several states, classifying them for treatment eligibility. George Mason University law professor told the Washington Free Beacon that it is “clearly unconstitutional” to use racial classifications in this way.