Cornell law professor sues to stop state’s discriminatory therapeutic guidelines

Cornell Law School professor William Jacobson is suing Acting Commissioner of Health Mary T. Bassett in federal court over the state’s guidance for rationing COVID-19 therapeutics.

Jacobson announced on his website, Legal Insurrection:

I have now filed a class action lawsuit as the named plaintiff in the United States District Court in and for the Northern District of New York, seeking, among other things, a declaration that the racial preferences are illegal and an injunction ordering New York State to stop this medical racism.

He also announced that he is being represented by Gene Hamilton of the America First Legal Foundation, a non-profit group led by former Trump administration officials, including former director of speechwriting Stephen Miller, chief-of-staff Mark Meadows, and acting attorney general Matthew Whitaker.

Jacobson’s complaint alleges, in part, that:

New York’s policy creates a racial hierarchy in the distribution of life-saving COVID-19 medication. Non-white and Hispanic/Latino individuals who test positive for COVID-19 automatically qualify for oral antiviral treatments, while an identically situated non-Hispanic/Latino white individual is ineligible unless he demonstrates a “medical condition” or “risk factor” that increases his risk for severe illness from COVID-19.

His complaint asks the court to “enter a preliminary and permanent injunction” to prevent Commissioner Bassett from “implementing and enforcing any discriminatory racial preferences in the Department’s programs,” as well as giving equal status for treatment to those who do not qualify, due to their race. It also seeks attorneys’ fees.

The lawsuit comes after New York State’s Department of Health issued eligibility criteria for oral antiviral treatments late last month. Though all patients are required to, “Have a medical condition or other factors that increase their risk for severe illness,” the health department told providers that, “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.”

The guidance has received criticism from conservative lawmakers. Congressman and N.Y.S. gubernatorial candidate Lee Zeldin (R) took to Twitter and said, “Dividing New Yorkers by the color of their skin like this can’t be more wrong.” Rep. Claudia Tenney (R-N.Y.) slammed the guidance and said, “Any New Yorker who needs medical care and attention should receive it. Your race, gender, or beliefs shouldn’t matter.”

The state’s Department of Health continues to defend the guidance. Fox News reported, “a spokesperson for the New York Department of Health, told Fox News in a statement that the state’s ‘prioritization guidance comes directly from the CDC’ and that neither ‘race nor ethnicity would disqualify an individual from receiving treatment.’” This was echoed in a New York Times piece, which noted, “State officials have defended their guidelines by citing data from the Centers for Disease Control and Prevention, which show that Black, Hispanic and Native Americans are about twice as likely to die from Covid-19 than white Americans.” 

Read the full complaint here.