Racial Preferences in COVID-19 Vaccination: Legal and Practical Implications

40 Pages Posted: 15 Jan 2021

See all articles by Michael Conklin

Michael Conklin

Angelo State University - Business Law

Date Written: January 2021


The severity of COVID-19 and the limited supply of vaccines poses a pressing question: Who should receive priority for the vaccine? Many experts support the controversial plan to prioritize black and Hispanic people. For justification they point to the highly disparate health outcomes minorities experience from COVID-19 that are rooted in historical racial injustice. However, such racial classifications implicate the Equal Protection Clause of the Fourteenth Amendment.

This Article analyzes the potential outcome of such an equal protection challenge. It explains why strict scrutiny would be the controlling legal standard even though the issue has never been adjudicated by the Supreme Court in a health care context. Next, it considers how the existence of alternative vaccine distribution policies violate the narrowly tailored requirement. It considers the analogous case law of affirmative action in college admissions, in which the use of racial preferences is well established. And it considers alternative vaccine distribution plans that do not utilize racial preferences and how even they are susceptible to legal challenges.

This Article further addresses pragmatic implications that would tangentially affect the legal determinations. These implications include potential counterproductive results of racial preferences, such as increased skepticism among the most vulnerable that they are being used as guinea pigs, a stigmatizing effect that could be used by white supremacist groups to promote a perceived martyrdom status, and the dangerous conflation of disparate health outcomes with genetic superiority and inferiority. These issues are considered against the backdrop of a changing Supreme Court, which has shown a willingness to diverge from established precedent regarding racial preferences.

Keywords: coronavirus, COVID-19, equal protection, disparate impact, racial classifications, affirmative action, inequality, health care

Suggested Citation

Conklin, Michael, Racial Preferences in COVID-19 Vaccination: Legal and Practical Implications (January 2021). Available at SSRN: https://ssrn.com/abstract=3765168 or http://dx.doi.org/10.2139/ssrn.3765168

Michael Conklin (Contact Author)

Angelo State University - Business Law ( email )

United States

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