Allocating Medicine Fairly in an Unfair Pandemic

57 Pages Posted: 28 Sep 2020 Last revised: 12 Oct 2020

See all articles by Govind Persad

Govind Persad

University of Denver Sturm College of Law

Date Written: September 25, 2020

Abstract

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. In this Essay, I focus on the pressing question of how the allocation of scarce treatments for COVID-19 should respond to these racial disparities. Many policymakers and popular commentators have recognized that the inevitable initial scarcity of COVID-19 vaccines presents questions about racial disparity. Novel treatments like remdesivir, convalescent plasma, and monoclonal antibodies raise similar questions, as do emergency interventions such as ventilators and ICU beds. Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that such a prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust.

In Part I, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part II, I argue that randomly allocating COVID-19 treatments, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part III, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require policies that avoid such classifications, though they may consider race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part IV, I propose two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in occupations hard-hit by COVID-19, potentially alongside aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in school assignment policies, would narrow disparities without classifying individuals by race. The other approach would address stark racial disparities in mortality among younger patients by avoiding policies that prioritize all patients over a certain age without regard to risk.

Keywords: vaccines, COVID-19, health disparities, racial disparities, allocation, scarce medical resources, Fourteenth Amendment, Section 1981, Civil Rights Act, Equal Protection, Native Americans

JEL Classification: I14, I18, K32

Suggested Citation

Persad, Govind, Allocating Medicine Fairly in an Unfair Pandemic (September 25, 2020). University of Illinois Law Review, Forthcoming, U Denver Legal Studies Research Paper No. 20-26, Available at SSRN: https://ssrn.com/abstract=3699769

Govind Persad (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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