Government Must Not Assign a Coronavirus Vaccine by Race

This article appeared on The Bulwark on August 19, 2020.
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A federal advisory committee recommending priorities for the eventual distribution of a COVID-19 vaccine has floated a very bad idea: according priority to some beneficiaries over others because of their race. If implemented, the regime would very likely be struck down by courts as unconstitutional. But even aside from that, racial preferences on this question would constitute a dangerous betrayal of the neutrality and impartiality citizens have a right to expect from government.

The Centers for Disease Control’s Advisory Committee on Immunization Practices (ACIP) has been examining vaccine priority issues since the spring. Last month the New York Times reported that ACIP’s members were weighing what the Times called the “contentious option” of “putting Black and Latino people, who have disproportionately fallen victim to COVID-19, ahead of others in the population.” A more recent Washington Post report confirms that the idea is still under consideration.

It’s coming from some well‐​placed players, too. One is Dr. José R. Romero, who chairs the committee and is one of the four members detailed to examine the priority issue; he is also chief medical officer of the Arkansas Department of Health. The Times quotes him as saying, “They are groups that need to be moved to the forefront, in my opinion.”

The same article quotes “Dayna Bowen Matthew, dean of the George Washington University Law School, who has focused on racial inequality in health care” and is a consultant for ACIP on the prioritization issue. Matthews claims that social inequality “produced the underlying diseases,” and “it’s that inequality that requires us to prioritize by race and ethnicity.”

It’s worth pausing here to note a set of issues that are not the controversy:

  • COVID-19 is especially dangerous to persons with predisposing conditions, such as diabetes, obesity, and cardiovascular disease, and some of these predisposing conditions are found at higher rates in minority populations.
  • In addition, some occupations that place workers at elevated risk of contagion, both in healthcare and in public‐​facing jobs such as bus driving, are filled disproportionately by minorities.
  • Persons who live in crowded and multi‐​generational living situations are a third group seen as being at higher risk, and these situations, too, sometimes correlate with minority status.

It’s a straightforward application of public health principles, and not greatly controversial, to give many groups in these categories earlier access to vaccines. Priority for those with pre‐​existing conditions may reduce overall mortality, priority for those in highly connected social situations pays off in intercepting contagion, and so forth. As a result, many wholly sensible priority rules would incidentally protect relatively more minority persons—which would be perfectly proper, so long as these grounds are the basis for the decision.

On the other hand, going beyond these appropriate prioritizations—which by themselves would assist many minority members who have valid reasons to want to stand further ahead in line—in favor of explicit racial preferences in the distribution of a potentially life‐​saving vaccine would be improper and unlikely to withstand court challenge.

As attorney Hans Bader notes, the Supreme Court in cases such as Richmond v. J.A. Croson Co. (1989) has generally disapproved of government use of such racial preferences to fix inequality, except when “the government produced the inequality through its own recent, widespread, intentional discrimination.” Public health outrages of decades past, such as the notorious Tuskegee experiment, do not create some general overhang of racial/​medical guilt for which the government may impose disadvantage on blameless citizens today.

It is astounding that a racial preference scheme of this sort has gotten as far as it has. The federal government should move to repudiate it, promptly and in full.

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and the author of several books on the American legal system.