New York physicians will now have to take a patient’s race into consideration when prescribing hard-to-come-by coronavirus treatments under a new policy that’s drawn the ire of doctors and legal experts who argue the new guidelines could violate the Constitution.
To receive the treatment, a patient must meet certain criteria including having a "medical condition or other factors that increase their risk for severe illness," according to the document.
One of the listed risk factors: being nonwhite.
Official guidance published on the state Department of Health website directs medical personnel to "consider race and ethnicity when assessing individual risk," and notes that "longstanding systemic health and social inequities" can contribute to an increased risk of dying from COVID-19.
The race directive was contained in a document outlining the New York Department of Health’s plan to distribute items such as monoclonal antibody treatment and antiviral pills.
Dr. Robert Lahita, director of the Institute for Autoimmune and Rheumatic Disease at Saint Joseph Health and author of the upcoming book "Immunity Strong," said it is "unusual to make race a defining factor" in determining what medical action a doctor can take when treating a patient.
"People are skating on thin ice when they use something like race as a defining factor," he said.
While there is evidence that Black and Hispanic patients who have become infected with COVID-19 have fared worse than Caucasians, Lahita said to "limit care to certain races and ethnic groups is unethical" and could even infringe on the Hippocratic Oath, the ethical guideline that all doctors swear to abide.
"It’s not something that we as physicians ascribe to," he said. "People of color should not be treated any differently. I don’t notice people who are Black, Hispanic, pink, or yellow. I treat everyone the same. [Doctors] aren’t going to selectively eliminate people because they are one race and not another. Race is not a comorbidity."
Dr. Jane Orient, a Newsmax insider and executive director of the Association of American Physicians and Surgeons, agrees. "Risk assessment should be blind to politics, and no one should be denied equal treatment because of race."
"The ethical medical position is to do your best for every patient, not to stratify by political considerations," she said.
Lahita added that focusing on a patient’s socioeconomic status — a factor that could include people of any race — can be a more important indicator.
He said he understands the goal of New York public health officials, and Lahita notes that people who have a low socioeconomic status often tend to be misinformed about the pandemic and may have less access to top-of-the-line medical treatments. But he said the state is trying to even the playing field in a "rather awkward way" by focusing on race.
Erin Silk, a spokesperson for the New York Department of Health, told Fox News that the state’s "prioritization guidance comes directly from the CDC" and that neither "race nor ethnicity would disqualify an individual from receiving treatment."
"Systemic poverty, which has clearly proven to be a risk factor in populations in New York State and nationwide, is added to the algorithm of prioritization similar to all other risk factors," she said. "It is merely mentioned as a factor that increases risk."
Legal scholar Jonathan Turley of George Washington University wrote in an opinion piece on his blog that the policy "may have triggered a new constitutional challenge."
"Using race as a factor in such medical decisions immediately triggers constitutional concerns," he wrote. "When you delve deeper into the basis for the race preferences, the constitutional concerns only multiply."
Turley pointed out that if the state were to eliminate the race criteria it would "avoid clearly discriminatory cases where someone with a more serious medical risk profile could be prioritized lower due to being white."
He said using race preferences when the state "could base medical decisions on specific medical risk criteria" is "not only legally problematic but practically unnecessary."
Ultimately, Turley said the policy will "only add more uncertainty and division over pandemic care at a time when the scarcity of testing kits and therapeutics are increasing tensions in the country."
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