Allocating Medicine Fairly in an Unfair Pandemic

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. How can the allocation of scarce treatments for COVID-19 and similar public health threats fairly and legally respond to these racial disparities? Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that this prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust. I argue that, to pass muster under current law, policymaking in this area must recognize a crucial distinction: prioritizing minority communities without regard to individual race is typically legal, but prioritizing individuals on the basis of their racial identity is likely not. I also explain how prioritization on the basis of Native American status is allowable and legally distinct from prioritization on the basis of race.

In Part II, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part III, I argue that randomly allocating scarce medical interventions, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part IV, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require focusing on factors other than race, or potentially considering race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part V, I examine two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in hard-hit occupations, potentially alongside race-sensitive aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in education, would narrow disparities without classifying individuals by race. The other strategy would address the starkly disparate racial impact of deaths early in life by limiting the use of age-based exclusions from vaccine of treatment access that explicitly deprioritize the prevention of early deaths and so disparately exclude minorities, and by considering policies that prioritize the prevention of early deaths.

a. Assistant Professor, University of Denver Sturm College of Law; Greenwall Foundation Faculty Scholar in Bioethics. JD, PhD, Stanford University. I am grateful to Greg Ablavsky, Stuart Benjamin, Jennifer Blumenthal-Barby, Alta Charo, Alan Chen, Jack Chin, Katie Eyer, Matthew Fletcher, Helene Gayle, Paul Gowder, Dan Ho, Adam Kern, Craig Konnoth, Sarah Krakoff, Benjamin Krohmal, Nancy Leong, Christopher Lewis, Toni Massaro, Amy McGuire, Barbara Noah, Kimani Paul-Emile, Jessica Roberts, Catherine Smith, and Aaron Tang for written comments on prior drafts and to Monica Peek, Michelle Mello, Harald Schmidt, Joseph Millum, David Wasserman, Parag Pathak, Utku Unver, Tayfun Sonmez, Robert Truog, Doug White, William Parker, Matthew Wynia, David Hoffman, RJ Leland, Lindsay Wiley, Dorit Reiss, Ruqaiijah Yearby, and audiences at the University of Chicago MacLean Center for Clinical Medical Ethics, UCSF/UC Hastings Consortium on Law, Science & Health Policy, DC Regional Bioethics Interest Group and the University of Denver Sturm College of Law Summer Faculty Workshop for helpful discussion. Thanks also to Marisa DeForest and Liza Sawyer for research assistance and to the editors at the University of Illinois Law Review for their hard work.

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