When Minnesota and Utah health officials started using race as a factor to determine who would get scarce covid-19 treatments, they were hailed for their efforts to bridge the pandemic’s deadly racial divide.
Miller’s fledgling group, America First Legal, also is suing New York in federal court to get it to remove race as one of many selection criteria for outpatient antiviral treatments, saying the state’s policy discriminates against Whites despite data showing that most of the medicines go to people in that group. On Monday, the group filed legal papers seeking to declare all non-Hispanic Whites in New York a legal class facing urgent harm from the state’s health guidance.
Misinformation about these policies — relayed in Miller’s lawsuit, Trump’s remarks at a recent rally and on Tucker Carlson’s show on Fox News — has energized the conservative base and contributed to the cancellation of some of the policies, experts said.
Hospitalization and death rates from covid-19 have cumulatively been higher for minorities throughout the pandemic. Minnesota and Utah officials say these racial disparities remain concerning, even if the states no longer use race as one of the factors to help decide which patients take priority when outpatient antiviral treatments are scarce.
The reality in these states shifted rapidly after prominent conservatives began to claim it was Whites who were facing discrimination. A machinery of outrage, false claims and legal threats followed — and within days, Minnesota and Utah had rewritten their guidance, removing race from the scoring systems they use to ration scarce outpatient treatments such as antiviral pills and monoclonal antibodies. State officials denied making the changes under pressure.
The states at first were seen as innovators attempting to correct for racial disparities during a pandemic, supported by real-time data. Experts on health inequality said it was just the medicine needed to reduce structural racism in U.S. health care. Yet most of the plans were short-lived, largely undefended and seemed especially vulnerable to right-wing threats and misinformation.
“Covid-19 has uncovered so many of the mechanisms that have allowed racism to fundamentally impact health and well-being in our society,” said Rachel Hardeman, a professor of health and racial equity at the University of Minnesota School of Public Health. The “most frustrating part,” Hardeman said, was that Minnesota changed its guidance days after publication of a state report showing that Black people make up 6 percent of Minnesota’s population but 11 percent of its covid hospitalizations. Other data also reinforced the need for more dedicated covid-19 resources for minorities, she said.
The risk of death from covid-19 over the course of the entire pandemic was 60 percent higher for Black people and 90 percent higher for Native Americans compared with Whites, and 80 percent higher for Hispanics compared with non-Hispanics, based on cumulative data from the Centers for Disease Control and Prevention that was adjusted for age by The Washington Post.
Shortages of the antiviral treatments that work against the omicron variant of the coronavirus have forced uncomfortable questions about which patients go first and what selection criteria should be used. Generally, states give precedence to older, pregnant or immunocompromised patients who are most likely to suffer severe disease and potentially die from infections, but these policies vary.
Omicron is more transmissible than previous variants and it evades treatment by two monoclonal antibody therapies, from Regeneron and Eli Lilly, that had been effective against previous variants. Only one monoclonal antibody therapy, an intravenous infusion from GlaxoSmithKline and Vir Biotechnology called sotrovimab, has proved effective in treating patients with omicron infections. Antiviral pills, one from Pfizer and another from Merck and its partner Ridgeback Biotherapeutics, that are taken at home and that many experts consider a breakthrough treatment were authorized in late December, but they are in short supply.
Camara Phyllis Jones, an epidemiologist and past president of the American Public Health Association, said she interpreted the actions by Minnesota and Utah as a form of denying racism.
“Health equity is not just going to magically appear,” said Jones, whose work focuses on measuring and addressing the impacts of racism on health. “It is a process, not an outcome, and clearly the government has a role in it. When you value all people equally, when you value all individuals and populations equally, you must provide resources to rectify historical injustices and you must distribute resources according to need when the data show racial inequities.”
The Food and Drug Administration issued nonbinding guidance in December on how to prioritize patients for sotrovimab infusions, listing pregnancy, obesity, diabetes, immunodeficiencies, chronic lung or kidney disease, and being over age 65 as among the conditions that could put people at risk for severe covid.
The guidance also noted that “other medical conditions or factors (for example, race or ethnicity) may also place individual patients at high risk for progression to severe COVID-19.”
On Jan. 11, Sen. Marco Rubio (R-Fla.) wrote to the FDA calling that guidance racist, demanding that it be removed and that the agency “notify all state health departments to instruct them to do the same.”
Rubio argued in the letter that it was appropriate to prioritize people with certain health conditions that put them at greater risk and even noted that many of those conditions “disproportionately impact people of color.” But he said that “by prioritizing … individuals’ medical history, healthcare providers would ensure racial minorities at highest risk of disease, including all other high-risk patients, can receive these life-saving drugs.”
As some states began to adopt the FDA guidance, other conservatives saw political opportunity, suggesting the policies in Minnesota, Utah and New York automatically prioritized minorities over Whites, although none actually did.
At a Jan. 15 rally in Arizona, Trump attacked New York’s policies, falsely claiming: “The left is now rationing lifesaving therapeutics based on race … to determine who lives and who dies. … If you’re White, you don’t get therapeutics.”
Carlson on his prime time Fox News show on Jan. 10 called policies such as New York’s “the definition of evil.”
Miller’s group, America First Legal, began to argue in letters to state health officials that such policies subject “an entire class of citizens to unequal treatment based on the color of their skin.”
Miller also threatened to sue Minnesota and Utah shortly before they revised their guidance, and takes credit on his group’s website for Utah’s decision to change its policy.
Although Minnesota and Utah rolled back their criteria, New York continues to use race as one of many factors in allocating the antiviral treatments. Miller’s group filed a lawsuit in federal court on Jan. 16 to stop the state’s criteria with respect to newly authorized pills.
The central claim in Miller’s lawsuit is that under New York’s guidelines, White people “who test positive for COVID-19 are ineligible for oral antiviral treatments unless they also demonstrate ‘a medical condition or other factors that increase their risk for severe illness.’” The lawsuit asserts that “‘non-White’ or ‘Hispanic/Latino’ individuals are automatically eligible for these life-saving antiviral treatments — regardless of the individual’s medical situation.” Miller referred questions to a spokesman who quoted the lawsuit.
New York Health Department spokeswoman Erin Silk said in an emailed statement that she could not comment on pending litigation, but that state officials have advised providers to consider a number of health-based risk factors for individuals when providing this treatment. “These are neither qualifications, nor requirements for treatments,” she said. “Qualifying risk factors include a long list of medical conditions, as well as age and vaccination status.”
She said the state requires patients seeking scarce antiviral treatments to fulfill five criteria, including having a high-risk condition that could lead to severe covid. Minority status fulfills only the high-risk requirement.
“It is important to note that no one in New York who is otherwise qualified based on their individual risk factors will be turned away from lifesaving treatment because of their race or any demographic identifier,” Silk said.
Doctors and public health experts in Minnesota and Utah said they found the decisions to withdraw race as a factor for treatment puzzling, given what they described as strong and persistent evidence of racial disparities in severe disease and deaths.
In the same Jan. 21 news release announcing that race would no longer be used as a factor to distribute treatments, for instance, Utah health officials reported that minorities were more likely than Whites to be hospitalized with covid-19.
“Race and ethnicity increased the likelihood of hospitalization for some groups,” the Utah Health Department wrote. “Compared to the non-Hispanic White population, Native Hawaiian or Pacific Island people were 2.3 times more likely, American Indian or Alaska Native people were 1.8 times more likely, Asian Americans were 1.5 times more likely, and Latinx people were 1.4 times more likely to be hospitalized for COVID-19.”
Utah officials said this analysis helped justify the removal of “race and ethnicity from the risk score calculator,” but did not explain why.
“Instead of using race and ethnicity as a factor in determining treatment eligibility, [Utah Department of Health] will work with communities of color to improve access to treatments by placing medications in locations easily accessed by these populations,” according to the announcement.
Utah Health Department spokesman Tom Hudachko said the revised policy was not a response to Miller’s threats. “Concerns were raised with the Affordable Care Act, Civil Rights Act and Equal Protection Clause,” Hudachko said. He did not respond when asked who raised those concerns.
Brandon Webb, an epidemiologist in Salt Lake City who had helped develop Utah’s criteria, said in an email that it has been well established in national and local studies that “people who identify with certain race and/or ethnicity groups also have poorer COVID-19 outcomes. In our research in Utah, we have consistently found this to be true — even after accounting for the other factors (age, vaccination status, comorbidities).”
In Minnesota, the mortality gap between Whites and people of color more than tripled in 2020, with “most of that … directly attributable to covid,” said JP Leider, a University of Minnesota School of Public Health professor who had helped design the state’s scoring system that included race.
As of early February, he said, the state is no longer rationing antibody treatments. But under the previous guidance, patients were required to have more than four points to enter a lottery for scarce treatments. Minority status conferred two points, which was not enough by itself to qualify for the lottery.
The state’s current guidance includes provisions in case antiviral treatments start to run out again. Race would no longer be a factor. When its new guidance was rolled out, Minnesota state officials said their decision to remove race as a factor was colorblind but did not respond to questions from The Washington Post.
Some experts slammed the decision to back away from efforts to address the higher incidence of disease and death among members of minority groups.
“Not using the best evidence possible to make these determinations, including race as a proxy, might limit our ability to use limited medical resources efficaciously and fairly,” said Margarita Alegria, a professor at Harvard Medical School and chief of a disparities research unit at Massachusetts General Hospital.
Leider, the Minnesota public health professor, warned that the issue was likely to become urgent once again.
“To me, the question now is: How can we set up our states to protect those most at risk for when the next surge comes?” he said. “Or are we going to keep moving toward a ‘first come, first served’ model, which is about as far from fair as you can get?”
Dan Keating contributed to this report.