Amicus Brief: Roberts v. McDonald

The Manhattan Institute has filed a brief supporting a petition asking the Supreme Court to review a case involving the ability to challenge government directives instructing medical providers to allocate Covid-19 treatments on the basis of race. In December 2021, during the Omicron surge, the Food and Drug Administration (FDA) approved Emergency Use Authorization for two highly effective antivirals, Paxlovid and Molnupiravir, of which there was a severe supply shortage. Many states adopted directives instructing medical providers to prioritize high-risk patients. New York did the same, but also instructed medical providers to prioritize individuals based on race.

Specifically, New York’s guidelines directed providers to prioritize individuals based on the number of risk factors they possess, with non-white race (and Hispanic ethnicity) treated as an independent risk factor on par with health disease, obesity, and cancer. Petitioners are lifelong New York City residents who were disadvantaged by the directives because they are white and non-Hispanic. Given that the antivirals must be taken within five days of symptom onset, they filed their case in early February 2022 when treatments were still in limited supply. In briefing the initial motion for preliminary injunction, the government represented that supplies were no longer scarce, but that community transmission remained an ongoing threat and supply chain disruptions could lead to shortages at any time. New York issued an updated directive, but informed the district court that its race-based directive had not been superseded and remains in force during supply shortages.

The district court dismissed the case, holding, in relevant part, that petitioners could no longer claim an imminent injury. The Second Circuit affirmed, holding petitioners not just to the task of demonstrating another supply shortage, but also that they have been denied treatments by a provider who specifically did so for purposes of adhering to the directives. Judge José Cabranes joined that procedural ruling, but wrote separately to express his view that government “guidance” directing healthcare providers to prioritize the treatment of patients based on race/ethnicity may indeed present portentous legal issues.

MI’s brief, joining the Center for Equal Opportunity, Kirkwood Center, and Reason Foundation, urges the Court to take the case because the imposition of a race-based barrier to the receipt of a public benefit manifestly creates standing; the Second Circuit contradicted the Court’s decisions on standing in educational cases; and the race-based distribution of antiviral treatments is plainly unconstitutional.

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Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitterhere.

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