Cornell law professor files motion for preliminary injunction in COVID treatment discrimination suit

Cornell Law School professor William Jacobson filed two motions in the U.S. District Court for the Northern District of New York last Friday.

Jacobson revealed the news this past Saturday on his website. This comes after New York State’s Department of Health told providers that, “Non-white race or Hispanic/Latino ethnicity” should be considered a “risk factor” as part of its eligibility criteria for oral antiviral treatments in late December. Jacobson announced his lawsuit last month.

Jacobson, who is being represented by Gene Hamilton of the American First Legal Foundation, filed a motion for a preliminary injunction to restrain Acting N.Y.S. Commissioner of Health Mary T. Bassett “from implementing and enforcing the racial preferences in the COVID-19 treatment policy issued by the New York Department of Health.” The motion reads, in part:

The Department’s explicit racial preferences in the distribution of COVID-19 treatments are patently unconstitutional and should be immediately enjoined. Using a patient’s skin color or ethnicity as a basis for deciding who should obtain lifesaving medical treatment is appalling… Worse still, the Department ignores the obvious race-neutral alternative policy of making antiviral treatments available to patients of any race who can demonstrate risk factors such as advanced age, obesity, a compromised immune system, or other medical conditions. The Treatment Policy violates the Constitution and multiple federal statutes, and Plaintiff is not just likely but certain to prevail on the merits.

The law professor also filed a motion to certify a class for the lawsuit, which “consists of all individuals in New York State who do not qualify as ‘[n]on-white race or Hispanic/Latino ethnicity’ under the New York Department of Health’s guidelines for distributing oral antiviral COVID-19 treatments.” The motion reads, in part:

With respect to the class, the Commissioner has expressly rationed and prioritized the distribution of COVID-19 treatments on account of race and ethnicity. Because this discriminates against all class members, it makes ‘final injunctive relief or corresponding declaratory relief . . . appropriate respecting the class as a whole.’ Fed. R. Civ. P. 23(b)(2); see also Wal–Mart, 564 U.S. at 360.

In a Fox Business interview on Varney & Co, Jacobson said that he has not yet received any backlash or feedback at Cornell, due to his lawsuit. “But it’s the right thing to do, and I think most people will agree with me, regardless of your political persuasion, that discriminating on the basis of race is wrong.”

You can read the full motion for a preliminary injunction here. The full motion for class certification is available here.