The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Vaccination by Race, and Why It's Unconstitutional
The Department of Veterans Affairs will apparently be prioritizing "Black, Hispanic, and Native American" veterans for the coronavirus vaccine:
While we have a limited supply of COVID-19 vaccines, we'll offer vaccines to
Veterans based on their risk. In addition to the risk of getting infection, risk of
passing infection to others, and the risk to society if someone is unable to work, we'll
consider factors that may influence the risk of severe disease, including:
• Age. The risk of severe illness or death from COVID-19 increases with age.
• Race and ethnicity. Data shows that some groups of people have been
disproportionately affected by COVID-19. These include Black, Hispanic, and
Native American communities.
• Existing health problems. People with certain health problems (like cancer,
diabetes, or heart disease) have a higher risk of severe illness or death from
COVID-19.
• Other factors that raise risk of severe illness or death from COVID-19, such
as living in a nursing home or other group living facility.
But this would violate equal protection rights. (The Equal Protection Clause by its terms applies only to states, but Supreme Court precedents have held that similar principles apply to the federal government, including in the distribution of government-provided benefits.) First, as Sally Satel (a scholar at AEI, and a visiting professor of psychiatry at Columbia University Vagelos School of Medicine) writes,
[L]et's consider what we know about risks to Blacks and Hispanics. Members of these groups are infected with the virus at three times the rate of Whites and die at least two times as often. Their risks of exposure are increased because they are more likely than Whites to work lower-paying jobs that require interaction with the public and to travel to those jobs by public transportation. Blacks and Hispanics are also more likely to live in homes with many family members sharing close quarters.
The National Academies—non-governmental institutions that offer expert advice on science policy—have proposed an allocation plan giving priority to communities that rate high on the Centers for Disease Control's Social Vulnerability Index, which takes into account poverty, unemployment and health-insurance rates, among other socioeconomic vulnerabilities. The index would be applied to each of several priority phases, the first being healthcare workers, the second being those who are medically at risk due to concurrent illness and age, and so on.
Since certain minorities are more likely to be socially vulnerable to infection with the virus—a status with roots in past discrimination—they will disproportionately receive the vaccine early under that approach, consistent with the public-health goal of maximizing communal benefit.
But a person's race, per se, does not put him or her at greater risk for becoming infected or dying from Covid-19. Race is a correlate but risk is the cause. Therefore, allocating the vaccine based on the moral impulse to correct past injustice would not maximize communal benefit.
And, as Hans Bader (Liberty Unyielding) notes, this means that the government must use such race-neutral alternatives, instead of using race as a proxy for risk, or using vaccination as a sort of group compensation for the disparate impact of the illness on certain racial groups. Just as the government is generally not allowed "to use race as a proxy for gang membership and violence" even in prisons, and just as "[r]ace cannot be a proxy for determining juror bias or competence," so race can't be used as a proxy for vulnerability to illness, especially when the other factors that Dr. Satel identifies can gauge risk better.
