The Volokh Conspiracy

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Race Discrimination

Minnesota Government: "Deprioritiz[e] Access for Patients" to COVID Drugs, Based Partly on Their Being White

A rich non-white patient would be given priority over a poor white patient with precisely the same age and health conditions.

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From the Minnesota Department of Health's Ethical Framework for Allocation of Monoclonal Antibodies during the COVID-19 Pandemic (p. 8):

MOH uses the Monoclonal Antibody Screening Score-BIPOC+Pregnant (MASSBP) for MNRAP, which is a score adapted from Mayo Clinic's published Monoclonal Antibody Screening  core (MASS). The MASSBP is calculated as follows, on a scale of 0-25: age 65 years and older (2 points), BMI 35 kg/m2 and higher (2), diabetes mellitus (2), chronic kidney disease (3), cardiovascular disease in a patient 55 years and older (2), chronic respiratory disease in a patient 55 years and older (3), hypertension in a patient 55 years and older (1), and immunocompromised status (4), pregnancy (4), or BIPOC status (2). The Science Advisory Team (SAT) has recommended, and MOH has directed, that sites de prioritize low MASSBP scores in response to appointment scarcity. This means MN RAP has been instructed to begin by deprioritizing access for patients with a MASSBP of 0, and to further be ready to deprioritize MAS5BP=l, MASSBP=2, and MASSBP=3 as scarcity deepens.

Note that people who lack "BIPOC status" (basically, non-Hispanic whites) would be "deprioritiz[ed]" precisely based on their race and ethnicity, not wealth, access to health care, being in a nursing home, or anything else. A rich non-white patient would be given priority over a poor white patient with precisely the same age and health conditions.

Here is the Department's rationale:

The score was adapted after consultation with the University of Minnesota and Mayo Clinic to specifically examine the import of including pregnancy and BIPOC status in examination of poor clinical outcomes. UMN found, in an analysis of 41,000 patient records, that both pregnancy and BIPOC status, after accounting for other covariates, were independently associated with poor clinical outcomes from COVID-19 infection….

The FDA has acknowledged that in addition to certain underlying health conditions, race and ethnicity "may also place individual patients at high risk for progression to severe COVID-19." FDA's acknowledgment means that race and ethnicity alone, apart from other underlying health conditions, may be considered in determining eligibility for mAbs. It is ethically appropriate to consider race and ethnicity in mAb eligibility decisions when data show elevated risk of poor COVID-19 outcomes for Black, Indigenous and other people of color (BIPOC populations), and that this risk cannot be adequately addressed by determining eligibility based on underlying health conditions (perhaps due to underdiagnosis of health conditions that elevate risk of poor COVID-19 outcomes in these populations). At the present time, MDH has found that available data show this elevated risk. While health systems should thus consider the elevated risks of progression to severe COVID-19 associated with race and ethnicity when making decisions about whether individual patients are eligible for mAbs, it is always the case that health care providers "should consider the benefit-risk for an individual patient."

As I noted in my post about the New York COVID race discrimination scheme, this is unconstitutional: Use of race as a proxy for supposed greater risk—instead of focusing on the more directly relevant factors ("race-neutral alternatives," in doctrinal terms), such as underlying medical conditions, vaccination status, lack of access to good alternative care, or the like—would violate the Equal Protection Clause in this situation. For instance, if the Department is concerned about underdiagnosis of health conditions, it could certainly provide funds to make sure that eligible patients are properly diagnosed; but it can't just use being non-white or Hispanic as a stand-in for such supposed underdiagnosis. To quote Judge Amul Thapar in Vitolo v. Guzman (6th Cir. 2021), which rejected race-preferential COVID release funding,

The stark realities of the Small Business Administration's racial gerrymandering are inescapable. Imagine two childhood friends—one Indian, one Afghan. Both own restaurants, and both have suffered devastating losses during the pandemic. If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend. Why? Because of his ethnic heritage. It is indeed "a sordid business" to divide "us up by race." And the government's attempt to do so here violates the Constitution.

This logic would apply even more clearly, I think, when the government explicitly discriminates based on race and ethnicity not just in funding but in access to potentially lifesaving drugs.

To be sure, the Court has left open the possibility that in some extraordinary emergency situation, where it is genuinely impossible to use a proxy, race or ethnicity can be considered, perhaps even in medical care. But there seems to be very little reason to think this is so here, especially given how heterogeneous the "BIPOC" group is; for instance, the Department cites this FDA document as support for its anti-non-BIPOC discrimination, and it in turn indirectly relies (through one of its few references that mentions race) on this CDC document (Obesity, Race/Ethnicity, and COVID-19):

Obesity Worsens Outcomes from COVID-19 …

Obesity Disproportionately Impacts Some Racial and Ethnic Minority Groups

Combined data from 2018-2020 show notable racial and ethnic disparities:

Non-Hispanic Black adults had the highest prevalence of self-reported obesity (40.7%), followed by Hispanic adults (35.2%), non-Hispanic White adults (30.3%), and non-Hispanic Asian adults (11.6%).

Hard to see how there would be any reason to think that "BIPOC" status as such—combining blacks, Hispanics, Asians, and American Indians of all backgrounds and economic status—is going to offer a consistent picture of any otherwise unmeasurable variables. Rather, "BIPOC" status is simply a distinction between those groups that this Minnesota government department chooses to prefer and those groups to whom it wants to be "deprioritizing access."

Thanks to Hans Bader and to John Hinderaker (PowerLine) for the pointer.

NEXT: Interesting Litigation Pseudonyms

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  1. This remarkably White, strikingly male blog focuses relentlessly on advocacy for White, male Americans, undaunted by self-awareness.

    1. How can a blog have a race and gender?

    2. Says the person who, with complete lack of self-awarness, touts his adherence to "reason," while consistently making empty ad hominem arguments.

  2. This Eugene Volokh supports the rights of cyberstalkers, cyberharassers, cyber criminals who use "Free Speech" as an excuse to dox, harass, stalk victims who have no way of fighting back. This Eugene Volokh has been fighting every single state law that would help protect victims of cyberstalking and doxing. He has no consideration for the disruption to the lives of the victims from disclosure of harmful, private, or other malicious content online. He has no consideration for the malice and intentionality of the criminals who hide behind VPNs and perpetuate their harassment campaigns anonymously. Everything to him is "Free Speech", unless, of course, the victim becomes him or his family. Then I bet he will start singing to a different tune. This person, and the organization he supports (the Electronic Frontier Foundation, EFF) is indirectly responsible for the harms and pains of thousands of online harassment and stalking victims.

    1. Eugene is boringly mundane and not malicious in any way. You are wrong.

      You’re an idiot. I am muting you, so don’t bother to respond.

    2. Great, another copypasta douchebag. Bye.

      1. " Great, another copypasta "

        You, too, have noticed that many of the contributions from two Conspirators are repetitive and predictable, incessantly advancing a few tired, partisan complaints?

        I still wouldn't use the shabby term you used to describe those two.

      2. Sorry Artie, I still don't care what you might have to say. I'm sure it's more of your same schtick though, so I won't bother to find out.

    3. The benefit of the First Amendment is not in preserving, as high value, every last asininity barfed from the mouth of a yokel.

      It's in denying the nascent dictator his best trick: the power to silence others.

      1. That's not the only benefit of the First Amendment. Another benefit is that ideas are not restricted, and what may once seem outlandish may later become totally accepted. Ask Galileo.

        When you decide that "the science is settled" and squelch all debate, then you are increasing the chances of serious error.

        1. Almost certainly Holden is a troll. However, he brings up a legitimate concern. Eugene has taken the position that disclosure of private facts with the intent to harm is protected speech. And of course, Eugene has a reasonable argument for why. On the other hand, the opposite view also has a reasonable argument such speech should not be protected and the result will not be erosion of valuable speech such as squelching debate or silencing political opponents.

    4. Rev sock puppet? Hmmm?

      1. I was wondering the same. It's certainly possible that someone decided that spammy cyberstalking might elicit censorship as a response. I can only think of two people who might complain if that happened.

  3. What is Eugene Volokh's solution to victims who are being maliciously targeted, doxed, have their personal or private information and photos leaked online in a harassment campaign targeting a non-public individual? What is his solution? Or does he ignorantly believe such cases don't exist? Is his solution to tell the victim, sorry but your harasser's free speech rights trump your right to be free of harassment?

    There have been some very blatant online harassment cases where the perpetrator takes advantage of the "Free Speech" protections to absolutely destroy someone's life far out of proportion to anything the victim actually did. The perpetrator may have some mental illness or be a sadistic motherf**ker. But what is Eugene Volokh's solution to this? What is your answer Eugene? What do you tell the victims? Or do you even care?

    1. You said this twice already. It sucks, but the alternative is far worse. Look at history, and half the planet today.

      Whipping the people into a transient frenzy to gain the power of censorship is no tough thing for a charismatic demagogue.

      It is their stock in trade.

  4. Anyone who uses BIPOC is almost guaranteed to be some form of racist. Not really surprising, since even this ultra woke term embraces racial superiority. Black and indigenous at the top, everyone else is just "other."

    1. None of this matters.

      The only ethical formula is the one that yields the least deaths. Anything else is some asshole of a politician in the modern equivalent of "sending your boys off to fight and die in a foreign war."

      You go die, so I can receive clippy-claps from people in ivory towers.

      1. Sorry, strained analogy.

  5. Why do you assume that race is being used as a proxy for some other factor? Race is an independent risk factor in several diseases. And yes, that means that in those settings a poor black person has risk more similar to a rich black person than to a poor white person.

    While lumping that together all BIPOC people may seem suspicious, it is a reasonable approach if research shows that white people, rich and poor alike, are less susceptible to covid (just as they are more susceptible to melanoma, and thus deserve special attention in melanoma prevention).

    1. Race is not an independent risk factor for anything.

      Multiple studies have proven that identical twins separated by the foster/adoption system end up having health outcomes based on social and economic activity, not race.

      Mixed race kids have the same health outcomes as fully-minority kids who live in the same neighborhoods.

      Domestic partners/spouses of different races also have similar health outcomes as their partners/spouses, especially when they met young in their lives. It’s diet, lifestyle, activity that they have in common.

      Learn a little bit before you spout racial assertions.

      1. Are you citing sociology literature? Because in medical literature, which is most relevant here, race is absolutely linked to certain diseases and certain outcomes.

        Melanoma is most definitely more common in whites than any other race. Antihypertensive medications also have different efficacy in blacks and whites, and anyone halfway through medical school knows which drugs are most effective in blacks and which are most effective in whites. They are not always the same.

        Unlike the vague measures reported by sociologists, these are biological characteristics that are not affected by the race of your parents, spouse, or anyone else in your environment. And covid response could certainly fall into the same category.

        1. Which medical studies show that "BIPOC status" is a risk factor for any disease?

          I note the claim by UMN, but they did not specify what covariates they controlled for, so it seems likely that they missed a few.

          1. The very brief, unspecified, study by UMN is also described like a cross-sectional study, which is a rather weak tool for statistical analysis. It's not a strong basis for the claim.

          2. To be a bit pedantic:
            As far as I know, there are no medical conditions for which the genes that determine race (is as much as 'race' is determined by specific genes) are the direct cause of vulnerability.

            However, the genes for 'race' are very closely associated with other genetic traits, some of which are also linked to vulnerabilities/risk for certain medical conditions. See sickle-cell anemia or Tay-Sachs.

            There are zero indicators that COVID vulnerability has any connection to genetic factors linked to race.

            1. You mean, no indicators other than medical results, analyzed by race, of people who get Covid, right? And what's with the stuff about genes? That is just you trying to get rid of racially-related social factors which affect medical outcomes right? You want those factors ruled out as extraneous because why, exactly?

              I get that you can hypothesize that any such differences must be caused by identifiable factors other than race. That could prove to be true, but my guess is you are talking about stuff nobody has yet proved. Which would mean the shorthand use of race as a policy guide is at least responding to something which has been measured, even if a cause has not been pinned down.

              But don't worry, EV has ruled all this medical uncertainty, "unconstitutional."

              1. Can you do the work that MDH was too lazy to do, and show that the UMN analysis is any more than a fig leaf?

                Through what biological mechanism do you think "race" affects clinical outcomes of COVID-19 infection? What objective markers reveal that? That is the reason for wanting clarity about the risk factors: It is rather more plausible that there are more important, and still measurable, risk factors than being not-white, than it is that being white provides special, inherent protection against COVID-19.

              2. Lathrop, COVID outcomes are not determined by any genes related to race. People have looked, and found nothing.

                COVID outcomes are related to a bunch of factors like obesity, diabetes, cancer, and other things you'll find often listed under "comorbidities". These comorbidities exist, and have identical impacts, among all racial groups - obese whites die more than healthy ones, just like obese blacks do.

                You keep trying to use race as a proxy for things that are directly measurable. There is never a valid scientific or statistical reason to do this.

                There is no "medical uncertainty" here. Just a bunch of neo-racists publicly advocating discrimination on the basis of race.

              3. "You mean, no indicators other than medical results, analyzed by race, of people who get Covid, right? "
                That is right SL. And if you looked across the world free from the distortions of US politics, you would find no such correlation.

                By the way, there is worldwide, statistically significant evidence that males have poorer outcomes from COVID-19 infections. Why no preference points for being male?
                Oh, MN does not want to piss off women voters... git it.

                1. As it happens Don Nico, "the distortions of U.S. politics," have their real effects, not excluding distortions of relative healthcare outcomes by race. Thus:

                  The FDA has acknowledged that in addition to certain underlying health conditions, race and ethnicity "may also place individual patients at high risk for progression to severe COVID-19." FDA's acknowledgment means that race and ethnicity alone, apart from other underlying health conditions, may be considered in determining eligibility for mAbs. It is ethically appropriate to consider race and ethnicity in mAb eligibility decisions when data show elevated risk of poor COVID-19 outcomes for Black, Indigenous and other people of color (BIPOC populations), and that this risk cannot be adequately addressed by determining eligibility based on underlying health conditions (perhaps due to underdiagnosis of health conditions that elevate risk of poor COVID-19 outcomes in these populations).

                  As you see, that was explicitly cited as an explanation, supported by measurement, and further narrowed on a reasonable speculative basis to focus on inferior medical records as a cause. I take it you understand that, and don't like it. That does not mean it is not happening.

                  What you should also understand is that the explanation above shows an attempt to improve equity in public health outcomes. By no reasonable inference can such an attempt to give racially-affected public health outcomes a tiny nudge toward equity be interpreted instead as an outrageous racist attack on White people.

                  Of course, your objection of anti-White racism relies on speculation. You speculate about unknowable contingent future conditions of shortage. You cannot cite measurement of any power at all in the policy to adversely affect the healthcare outcome of even one White person—except perhaps some who lack co-morbid conditions to justify use of the subject medications. Excluding those during an ongoing medication shortage is reasonable.

                  Instead of being a racist attack on Whites, the policy supplies measurable process to assure that White people who show co-morbid conditions will get medication needs met liberally—without any subtraction based on race from their ability to qualify. Folks who think otherwise have not concentrated sufficiently on how the policy is actually designed to work. Or, alternatively, they concentrate too much on deliberate racial provocations put in their path to distract them.

                  What the policy says in so many words is that Blacks too may qualify, on a like basis with Whites, despite systematic deficiencies in Blacks' medical records, which in many cases make proof of particular co-morbidities too difficult to accomplish. You don't like that. Too bad. What you object to in reality is policy which makes measured worse medical outcomes for Blacks an inference that they share alike with Whites the same co-morbid conditions which predict bad outcomes.

                  I suppose you could take your objection to an extreme. You could, for instance, assert that for other unspecified reasons Black people are inherently inferior medical subjects, and that public health equity for White people requires that Blacks suffer worse medical outcomes to keep it that way.

                  I doubt you want to do that. So try instead to supply a measurement of your hypothesized discriminatory effect on Whites. And while you are at it, measure also the causes which justify public policy to blink at worse public health outcomes for Blacks.

                  Accomplish that and I will be more inclined to credit your arguments. Show that there is some race-neutral public policy benefit to be gained, and I will join with you to try to improve your arguments.

                  1. SL,
                    I see that when confronted with scientific data you go ob your usual tactic of the lengthy screed devoid of anything but your political prejudices/
                    "Black people are inherently inferior medical subjects," That pathetically insulting paragraph is testimony to the shallowness of your thinking.
                    By the way, I never said that the policy was a racist attack on Whites. That is another of your pathetic, neighborhood newspaperman mentality. But words in peoples mouths and then rant about them.
                    What I object to in policy is political preference, most likely associated with loyalty electioneering disguised as science. You may but it, or even practice it. I don't. I don't care whether you credit my arguments or not. Why? Because you have showed no intellectual basis on which to make any judgement in either direction.
                    If you have a scientific or medical comment to make, let's hear it. But I won't hold my breath waiting.

                  2. Note the qualifier “may” in the guidance. Because it’s bullshit and they know it, so they’ve left themselves some wiggle room.

            2. In those cases, we understand the root causes, and in the case of sickle-cell anemia we have a good explanation for why the mutation is differentially prevalent among people of African descent. That's quite different from a post-hoc association study, which I suspect is what UMN did.

              To clarify my earlier comment: MDH's description of the UMN study is what is very brief (only what EV quoted), and the study is not cited in a way that lets one find the study itself. It is a lousy way to justify a facially racist policy.

        2. "And covid response could certainly fall into the same category."

          The word "could" is doing all the work there. As others here have pointed out, there is zero evidence that racially linked biological characteristics have any connection to susceptibility to COVID or COVID-related complications and morbidities.

          1. If the effect could be measured, but not explained, would policy based on the measurement be justified—assuming medical policy was judged to be the proper province of medical experts, I mean?

            1. Has the effect been measured and it so where is the evidence?

              It is well established that African Americans have a higher rates of obesity, hypertension, diabetes (especially Type 2) and other conditions than other groups. One could fairly easily control for the known factors and calculate a variation between groups. You could even calculate whether the effects of the known conditions were worse between different groups.

              I recall early on seeing a notice of a study done by the NHS in the UK which concluded that South Asians had worse outcomes across across all economic groups. It stopped short of saying it was genetic and implied it may be cultural, like a tendency of multi-generational families to live in close proximity, promoting spread.

              1. There are genetic predispositions and culture. When you say this
                "race" has metabolic issues it is cultural choices not genetic.

                A medical professional has to look at the individual not the "race" and the entire system becomes corrupted if you start to play "god" based on sunk costs anyway which is what this is about.

              2. It is well established that African Americans have a higher rates of obesity, hypertension, diabetes (especially Type 2) and other conditions than other groups. One could fairly easily control for the known factors and calculate a variation between groups. You could even calculate whether the effects of the known conditions were worse between different groups.

                The OP describes that process as already accomplished, leaving an unexplained disparity, which the policy is meant to alleviate. I speculate that at least part of that disparity could lie in under-diagnosis of auto-immune disorders among blacks.

                Note that immune compromise is among the highest rated co-morbid conditions on the list, and thus estimated as more likely than others to deliver bad Covid outcomes.

                The process to diagnose accurately auto-immune disorders is typically protracted (sometimes leaving in doubt certain diagnosis among diverse choices after decades of effort by the most sophisticated practitioners). That can be true even in cases where the effects of disease are pronounced.

                Ability to diagnose auto-immune disorders is also spread especially thin among America's less-sophisticated medical facilities. Major urban medical centers with big reputations predominate.

                It may be that that state of medical affairs works to the disadvantage of members of American racial minorities. It could leave a non-trivial percentage of them with undiagnosed co-morbidities of the more dangerous kind (in Covid context), of which the sufferers were not even aware.

                1. " immune compromise is among the highest rated co-morbid conditions on the list"
                  It is also the least systematically reported and the least uniformly quantified except on an individual basis that you be a per person basis for priority. And once again, MN's perference is for all BIPOCs, despite NO evidence that indivdual medical issues are share across East Asians, West Asians, Native Americans, African American and Central Americans.
                  But there you have it, SL's uninformed speculation about residuals.

        3. Indeed, it has been known for decades that diuretics have a greater efficacy in lowering hypertension in those of African heritage than in Caucasians

          1. It’s bullshit, taught as fact, proven to be myth by higher quality research.

            Go look up why there’s a recommendation for 8 glasses of water per day, when you have time. It’s also a myth.

            https://theconversation.com/amp/why-is-race-still-in-the-british-blood-pressure-guidelines-144971

        4. You’re talking about the blood pressure myth.

          Get hip to the latest research. Like something from the past twenty years.

          Here’s a good summary.

          https://theconversation.com/amp/why-is-race-still-in-the-british-blood-pressure-guidelines-144971

          1. I read your citation. It is a general speculation, admittedly by a physician, but very far from a scientific study.

          2. When you have serious medical evidence, please post the link.

      2. Multiple studies have proven that identical twins separated by the foster/adoption system end up having health outcomes based on social and economic activity, not race.

        Oh nonsense! If they are identical twins, you can't vary race. I

        1. Are you being intentionally obtuse?

          When a black twin gets raised by an affluent family and the other gets raised by a middle class family, they have different health outcomes. Race is not the risk factor.

      3. " Race is not an independent risk factor for anything. "

        That is the type of profoundly stupid statement a flailing bigot would make in attempting to turn back the clock to the 'good old days' when racism was open, official, common, and casual.

    2. You can't have it both ways. Either race matters or it doesn't. What the Left is doing is making the exact same type of arguments they've accused their caricature 1950s political opponents of doing for decades where the ground rules are any reference to any difference due to race is a bad thing full stop and its all a social delusion. So you're saying the white nationalists were right all along?

      1. White nationalists are on the right . . .

    3. " if research shows that white people, rich and poor alike, are less susceptible to covid"

      Yeah, they missed that step. I got no problem if the actually show a link between a race linked characteristic, that is hard to test for on its own, and putting in a treatment preference, like the hypertension example.

      But of course that isn't anywhere near what they did here.

    4. "Why do you assume that race is being used as a proxy for some other factor? Race is an independent risk factor in several diseases."

      Biologically, that's not true. The best example, as you note, is skin color and skin cancer. Even there, though, the mechanism is skin color, not race - African albinos have a rather different skin cancer risk than their normally pigmented relatives. Likewise for whites, very fair people of Irish descent have a different risk than, say, less fair people of Greek descent. There is a continuum of melanin amounts, and your skin cancer risk is more accurately predicted by where you lie on that continuum than by the binary variable of race.

      My wife had breast cancer, and they sequenced the tumor cells to determine variants of a dozen plus genes. Her treatment is tailored to the exact set of genes she has. We have other friends who have also had breast cancer that was seemingly identical but when sequenced had a very different genetic profile, and they are getting very different treatment. That's doing medicine right, and that is what we should be aspiring to.

    5. Yes. "Race is an independent risk factor in several diseases". Sickle cell anemia is an example.
      The problem with your argument is that what Professor Volokh has written about is divvying up TREATMENT according to race, not the RISK of getting the disease to begin with. Both Africans and Italians get sickle cell anemia. Should Italians be deprioritized for treatment when they HAVE the disease merely because they are statistically less likely to GET the disease? Many people would find that an odd stance.

      1. I think you're using the wrong risk - the risk is not of contracting, but of dying.

        Thus, the risk and treatment align.

        1. I was responding to FSE who wrote, "it is a reasonable approach if research shows that white people, rich and poor alike, are less susceptible to covid".

          But sure, you have a valid point that if one race dies more than another, because of some physical characteristic of their race, that race would be a risk factor like obesity. As Professor Volokh points out it seems that race is being used as a proxy and that may run up against the law. It also just seems kinda sus.
          I'm willing to hear someone step in and clear up the science.

          1. As you will see below, I more or less agree. Though I do allow that the 'science' may merely be the lack of understanding of the cause behind the correlation.

            But I'd like to see even those numbers, and so far nothing.

          2. But RGnome, are you willing to have a judge step in and clear up the science?

            1. Are you offering me the chance to setup how the system works? Oh, this could be fun!!! Horrible, but fun.
              I already feel ashamed of myself... so much tragedy...

            2. "Clear up" which science? There is no science in the state's decision to be racist.

              1. Yes. This argument is getting way too long and way too ridiculous. Black and white people get equally fat and are equally dumb. And this policy is stupid.

        2. S_0,
          Let me address your point directly with respect to the MN scoring.
          "Obesity Worsens Outcomes from COVID-19 …"
          and
          "Obesity Disproportionately Impacts Some Racial and Ethnic Minority Groups"
          Based on a study of 5.5 people world wide, " "Risk Factors of SARS-CoV-2 Infections: A Global Epidemiological Study" JMIRx Med doi: 10.2196/28843 finds no statistically significant correlation between obesity or BMI and severity of outcome of COVID-19. And update of this study on medRxiv finds that results unchanged for the several variants of concern in 2021.

          Many of the criteria used in the scoring are of questionable validity. Although I would trust an examination based finding by Mayo. GIven the expense of MBA infusions an edditional medical screening is a very smll ask.

          1. My understanding (which is, I will admit, 8 months old) is that independent variables such as obesity, and socioeconomic class, and the like, have all been excluded and there's still a disparity.

            Maybe that's spurious data, but then go after the data, not the policy.

            Luckily, even I think the policy is somewhat hinky. Just not quite as 'woke beyond sanity' as some here may imply.

            1. S_0,
              As there is a disparity between between many medical, dietary and physical fitness practices across ethnic communities, I can believe that there can be difference, but whether those are statistically significant or free of systematic error, I won't comment on without seeing the data.
              I do know that there are differences in rates of obesity and asthma, but those do not of themselves lead to large correlations with severity of covid outcomes. As chronic kidney disease is the largest single covariate with respect to outcomes, differences in CKD would be a suspect covariate, BUT it is more than highly unlikely that any disparity is the same (or even in the same directions across all of the political BIPOC categories. For example. hypertension has a significant positive correlation in Asia and the EU, but not in Africa, The Middle East or the Americas.

              In other words, these broad lumping together of ethnic groups has at best weak scientific justification. Whether more nuanced scoring is appropriate, is a matter for a detailed look, but nuances do not satisfy the MN government's political goals.

              As I mentioned elsewhere, where is the preference for men?

              1. Yeah, the lumping across BIPOC is pretty suspect, I cannot deny.

    6. There are some diseases that do seem to affect different race groups differently. (Sickle cell anemia, for one) But there doesn't seem to be any indication that Covid is one. All of the discrepancies with Covid have been based on access to medical care, distrust for government medical care, and other similar factors. So basing your treatment based on race instead of "people without access to medical care," the actual risk factor, is being racist.

      1. Isn't it more accurate to say 'sickle cell affects people with the gene(s) for it, regardless of race'?

        "The U.S. incidence estimate for sickle cell trait (based on information provided by 13 states) was 73.1 cases per 1,000 black newborns, 3.0 cases per 1,000 white newborns, and 2.2 cases per 1,000 Asian or Pacific Islander newborns. The incidence estimate for Hispanic ethnicity (within 13 states) was 6.9 cases per 1,000 Hispanic newborns."

        So the rate varies a lot between races/ethnicity, but whether any specific individual has it depends on their individual genes, not their race or ethnicity.

        Source (CDC)

        1. It even varies a lot between different African Populations largely based on the historic prevalence of malaria.

      2. Access to care is not a big deal with Covid. It’s fat and old people who bear the brunt of this disease. City people are more fat. Suburbs have more old people. Race isn’t a factor.

    7. re: "Why do [we] assume that race is being used as a proxy for some other factor?"

      Because the underlying study cannot support the claim that melanin deficiency is even slightly related to covid risk. The methodology provides very weak indicators of possible areas of future research. Couple that with the inadequate data sample and their conclusions are inadequate to support public policy decisions. Any reasonable statistician will know that, and presumably the public health agencies hire at least a few competent doctors trained in the use of statistics. The fact that the agencies established this policy anyway suggests ulterior motives unrelated to the actual medical research.

      1. Rossami, are you aware that susceptibility to entire constellations of auto-immune disorders have been shown to depend almost entirely on genetic factors? It also happens that to contract a specific lifetime auto-immune disorder, you may need to carry a particular genetic marker, plus suffer some unknown triggering environmental exposure. Thus, for instance, almost everyone (or perhaps everyone except the misdiagnosed) who suffers from ankylosing spondylitis (U.S. prevalence approximately 0.2-0.5%) carries a particular genetic marker. People without that marker do not suffer that condition. But people who do have that marker still do not all, or even mostly, get ankylosing spondylitis. Nobody knows what the environmental trigger is.

        1. Fancy, whataboutism, but whataboutism just the same.

        2. None of that remotely addresses my criticisms of the underlying study or of the public health agencies making policy decisions based on that study.

          Yes, there are lots of diseases that have genetic risk factors. And, yes, there are some genetic factors that are correlated with specific ethnic heritages. There are none that are correlated with the broad category of 'being a BIPOC' but, again, even if there were, that study and its supporting data were statistically inadequate to identify it.

  6. Based on Eugene Volokh's dishonest and dangerous "absolutist" interpretation of the First Amendment, the following malicious online activities would be COMPLETELY legal, and even encouraged.

    1. Making a website dedicated to doxing a private individual (someone not in the public eye), revealing their picture, private information, social media handles (previously anonymous), detailed personal information, etc... to harass, intimidate, and cause emotional distress. Eugene would categorize this malicious behavior as "one to many" speech which is, in his view, "precious" and "sacrosanct", completely ignoring the reality that actions like this is a gross invasion of privacy and amounts to criminal harassment.

    2. Using blogs to write about private details of individuals (again, those not already public) in an effort to harass them or cost them employment opportunities. Eugene would view this not as cyberstalking, but as "precious" free speech. Again, no consideration is given to the disruption to the victim's life, or whether or not the malicious behavior is out of proportion with what the victim has done to the perpetrator (if anything). There is no consideration given to the reality that posts online, whether false or true, are difficult to remove, may be viewed forever, and may be viewed globally.

    3. Eugene Volokh is working hard to strike down any federal or state legislation that would clamp down on the 2 types of activities described above. To him, the suffering of the victims is just collateral damage that doesn't deserve to be addressed, because a mentally ill psychopath's "free speech" (including his "right" to destroy someone else's life) is just too fuc*en important for Eugene.

    4. Eugene Volokh works with Google behind the scenes to try to destroy all legislation that would clamp down on doxing, true online harassment, true online stalking, all in the name of "free speech" - any empty definition that does not implicate privacy violations of personal, individual information.

    5. Eugene Volokh's view that any information posted online = "precious", "valuable" free speech is idiotic and beyond laughable. There is no discussion of individual privacy and emotion/psychological harm to victims from him. He ignores the reality that many cyberstalkers are truly bad people with mental problems who need to be restrained or stopped from harming their victims.

    6. Of course, Eugene Volokh peddles this "absolutist" view of the First Amendment because he likely gets funding from Google, and Google wants no restrictions on information on the internet, not because they really care about "Free Speech", but because they want to maximize profits. Organizations such as the ACLU and the EFF are also working with Volokh and Google to harm the victims of cyberstalking by striking down legislation that would protect them.

    7. Volokh's implied view that "Free Speech" = the "right" for psychos to plaster your private information all over the web to ruin or harass you is laughable. This is obviously not the direction that other smart countries like the EU, Japan, Canada, Hong Kong, Australia, New Zealand are going, yet Eugene continues to peddle this dangerous, irresponsible, and outdated interpretation of "Free Speech" that gives unrestricted freedom to mentally ill stalkers and no protection to victims.

    Prove me wrong Eugene.

    1. You made your claims it’s up to you to prove them not for others to prove the claims wrong.

    2. Spamming your rants only shows that you are an unhinged cyberstalker. Congratulations?

    3. All of my assertions are backed by facts that are open and publicly found online. I am fully protected by the First Amendment of the US Constitution. My actions do not constitute cyberstalking because 1) what I have said is FACTUALLY TRUE, and 2) I have not issued any threats to anyone.

      Eugene or any of his sycophants are free to dispute me or prove me wrong, but the fact is none of them has done it, suggesting my assertions are true.

      It is true that some of Eugene's papers are directly funded by Google. For example, in this paper, Eugene argues that Google is a publisher (https://www.nytimes.com/2012/05/21/business/media/eugene-volokh-ucla-professor-makes-a-case-for-google-as-publisher.html). The paper is funded by Google. So I would dispute the accuracy and impartiality of the conclusion. The paper is obviously a mouthpiece for Google's "anti-regulation" propaganda.

      Other papers, although not directly stated, are also likely funded by Big Tech. Everything that Eugene argues for is to kill regulations against Big Tech and harm victims of cyber harms. Eugene's arguments and position is disingenuous at best and harmful to society at best.

      Give me a single time that Eugene has ever taken into consideration the disproportionate and sometimes permanent damage to the VICTIMS of online crimes like doxing, stalking, harassment that he cites as legal.

      That's right, you can't find one. Eugene has never taken into consideration the impact to innocent victims of harms perpetuated by mentally ill perverts taking advantage of Eugene's expansive "First Amendment" interpretation that includes basically the full spectrum of crimes that can be committed online.

      1. Give me a single time that Eugene has ever taken into consideration the disproportionate and sometimes permanent damage to the VICTIMS of online crimes like doxing, stalking, harassment that he cites as legal.

        If they're legal then they aren't crimes. HTH.

    4. Neither the EU nor Hong Kong are countries. HTH.

  7. What if there are no race-neutral alternatives that explain racial disparities? I would need to ask around to be sure, but it looks like that's what's going on.

    That could mean hidden variables, or it could mean that genetics is a variable, for which race is as close a proxy as we can get.

    I don't know if that'd pass strict scrutiny, but it allows this policy to be a lot more rational than is implied by this post.

    1. If that's true, could health insurance companies charge certain races more than other races for premiums, based on their risk of adverse outcomes?

      Why or why not?

      1. Armchair, charge more? They could exclude people from coverage altogether. And they have.

        Decades ago, after a particular genetic marker was discovered to be testable, and diagnostic for a condition I probably had, I was advised by my rheumatologist never to take that test. She said, "It won't tell us anything we do not already know about how to treat you, and if it comes back positive you will never be able to get health insurance."

        So I never got the test until I got on Medicare. It came back positive, of course. None of the many specialists who treated me in the interim ever doubted it.

        Why couldn't that happen if a similar marker showed up, strongly correlated with race. Only because social outrage protects against it. Try not to oppose appropriate social outrage.

        1. "Armchair, charge more? They could exclude people from coverage altogether. And they have."

          That's called racism. They banned that a long time ago. More than 50 years ago.

          1. Yeah but that didn't change much as evidenced by the comments. Its their fault that they have worse outcomes not the "system"!

    2. We know how to gene-sequence. Race is not longer a necessary proxy for genetics.

    3. S_0,
      If there were truly race based covariates, one would expect to see gross differences in COVID-19 outcomes in Africa after controlling for malnutrition, lack of adequate health care facilities, % of population living in slums. Yet one see no such statistically significant correlation.
      I think that MN public health is seeing what they want to see.

      1. Fair.

        But I said there may be hidden variables beyond genetics we just don't know about. In that case, good practice is to stick with the corollary you know.

        Neither you nor I know the underlying data they're looking at. But such unknowns can remain unknown - no need to speculate since the legal analysis of the policy require that knowlege.

        I'm more taking issue with the 'they had no reason to do this but hating white people' narrative.

        1. "'they had no reason to do this but hating white people' narrative"
          Indeed, I also discard that as a motive.

    4. "What if there are no race-neutral alternatives that explain racial disparities? I would need to ask around to be sure, but it looks like that's what's going on."

      Then that would mean that White People are genetically superior to every other race.

      Sarcastro...White Supremacist.

      1. Or, it might mean there is inherent racism in how blacks are treated in our healthcare system.

        Having said that, I think the burden of proof should fall on the state to show that there aren't other factors that account for the disparity.

        1. Josh R, they say that has been done. Read the OP.

          1. They said

            in an analysis of 41,000 patient records, that both pregnancy and BIPOC status, after accounting for other covariates, were independently associated with poor clinical outcomes from COVID-19 infection

            Further scrutiny is justified as to what those covariates are and more generally the analysis itself.

            1. I am sure if you ask the authors they will be happy to send you documentation of their analysis. And you'll be able to see what covariates are.

              1. Go read Retraction Watch and read up on the reproducibility problem in the sciences.

                You probably won’t get their data and if you got it, it’s probably wrong.

                1. Read these examples, and then massively generalize to prejudge everything from now on.

        2. Ah yes, the secret inherent racism theory....

    5. There is more genetic variation within races than between races. Race is not a proxy for genetic traits and to use it for public policy is unscientific.

      It’s a little counterintuitive, but it’s because so little of what divides us by racial appearance and geography is actually based on genetic differences. Race is scientifically insignificant.

      For a layman’s explanation, try this

      https://www.nytimes.com/2000/08/22/science/do-races-differ-not-really-genes-show.html

  8. "What if there are no race-neutral alternatives that explain racial disparities?"

    That's a possibility, but I think 'this is the best we can do' claims ought to be squinted at pretty carefully.

    For example, what if an insurance company says 'we've looked at the data, and our black customers get in more wrecks, so we want to charge them more. We've looked for better predictors, but race is the best we can do'.

    Claims like that deserve a really hard look before being accepted.

    1. I agree with you that my speculation is not established - it only provides a potential avenue for the policy to be rational.

      And also that even if such facts were established to be the underlying rationale, it is not clear that'd pass strict scrutiny.

      But I don't like your analogy to insurance, because health risk to an individual is not the same as economic risk to a company, morally or legally.

      1. "But I don't like your analogy to insurance, because health risk to an individual is not the same as economic risk to a company, morally or legally."

        This isn't for reinsurance that Allstate is getting from General Re, it is for the very individualized risk that Fred Smith has of wrecking his car. The insurance company predicts that based on, for example, how many speeding tickets he gets. And the company's position is that when it does the actuarial work, Fred's individual risk is predicted by how many speeding tickets he gets, his age, his sex, the kind of car he drives, his sex, his credit score, and his race. Again, I have nothing against looking hard at whether those are the best set of predictive variables, but you may find they are the best set available. After all, if you assume the insurance company is run by greedy capitalists, the best way for them to make money is to accurately predict risks, so it's not in the company's best interest to say 'we don't like Ford drivers'.

        And the people who bear the cost of inaccurate predictions aren't the company shareholders or CEOs, they are the low risk customers. My state just banned using credit scores to set rates, even though they are predictive. Our rates are going up, and the rates of people with lower scores are going down. The insurance company profits are unchanged, but statistically safer drivers are now subsidizing less safe drivers. It's not clear to me how that makes for a more just society

        1. Absaroka, do you suppose public health policy works more like reinsurance, or more like an underwriting decision on Fred Smith?

          1. I suppose that making medical decisions for patient care is more the latter. A doctor who is treating some aggregate patient rather than the actual patient in front of him is guilty of malpractice.

            1. Absaroka, your conclusion about malpractice is mistaken. Many, many individual treatment decisions are guided in part by exactly the kind of aggregate racial adjustments under discussion here, and for particular treatments those are accepted as the standard of practice.

              Sometimes that becomes controversial. There is a review now under way with regard to that kind of adjustment applied to kidney disease. It may be the standard of practice for Blacks who suffer kidney disease is about to change, based on more particularized methods of gathering patient data. Or, that might not happen.

              So it goes. When the facts change, or insight improves, practitioners adjust. That cannot mean that practitioners should not use the best insights they have discovered until something better comes along. Seems like standards of practice concede that.

              1. " That cannot mean that practitioners should not use the best insights they have discovered ..."

                ...for the individual patient in front of them. FIFY.

                1. Absaroka, did you just discount my first paragraph to zero? If you did not, you ought to get that I was telling you that gold-plated standard-of-care decisions about many medical procedures for individual patients incorporate racial fudge-factors of exactly the kind being objected to here. It is accepted medical practice.

                  Maybe you do not like that. Maybe EV does not like that. Maybe EV thinks the Supreme Court would not like that. But I doubt it will be good for medical outcomes if we let any of you guys start making the medical decisions.

              2. "It may be the standard of practice for Blacks who suffer kidney disease is about to change,"
                That review was to ake place a year ago. If a standard changes it should change for all not just for one race. See how that goes?

        2. I had a really good response, but reason ate it.

          Bottom line - bankruptcy is not the same as death, insurance's function is to pool risk, healthcare's function is not.

          These are not comparable.

          1. "I had a really good response, but reason ate it."

            Bummer. The short version isn't persuasive, but the long one might have been.

          2. The outcome is irrelevant. Absaroka's point (which I agree with) is about the predictive power of the actuarial analysis.

            That said, the data is quite clear that bankruptcy is causally-correlated with increased death rates - and the correlation is var stronger than the correlations alleged in the covid study above. So even on an outcome-measured basis, they are comparable - and the comparison is not in your favor.

            1. 1. Second order effects as from bankruptcy aren't generally a required part of policy analysis.
              2. Insurance is *supposed* to pool people. Healthcare is just doing triage.

              1. The BIPOC effects discussed above are at best second order effects and are more likely tertiary effects. By your own argument, therefore, they should be ignored.

                Healthcare delivery involves triage. Actuarial analysis of healthcare effectiveness involves the same statistical analysis as is used by insurance actuaries.

              2. "Insurance is *supposed* to pool people"

                Well, it pools risks, sure, that's what it does by definition. But *rates* are usually set on as individual a basis as is practicable. Life insurance companies only lump someone into the '40-45 non-smoker obese diabetic with family history of lymphoma' rate class because they like to lump people - if they could tailor the rates more accurately they would.

              3. Rossami - I said from bankruptcy. If it's death, we tend to be a bit more diligent.

                Are we talking about actuarial analysis here? Such pure utilitarianism is not the only way to make public health policy.

                But *rates* are usually set on as individual a basis as is practicable
                Except government regs forces them not to individualize too much. Lest the lose out on the risk pooling we want. The subsidy of the young to the old is a feature, not a bug!

                1. "The subsidy of the young to the old is a feature, not a bug!"

                  You sure you have priced life insurance or car insurance recently? The rates didn't depend on age?

                  1. Broad age categories--less than 25 eg.

      2. Health insurance and life insurance companies are in the business of assessing risk, and adjusting premiums to account for that risk.

        If you're saying that the "only" way to assess some of the risk is by the color of one's skin, then insurance companies will adjust for that.

        1. Armchair, maybe the law should say medical researchers can do that, and insurance companies cannot do that. Why not? Do you suppose the activities of medical research and insurance management are precisely alike?

          1. It's the same supposed "risk factor". To say it applies in one case, but not a different case is hypocritical in the extreme. And they aren't medical researchers but medical treatment options.

            1. Armchair, you ignored my question. I will ask it again. Do you suppose the activities of medical research and insurance management are precisely alike?

              1. When you are talking about assessing risk management, yes, they are exactly alike. It's the same risk being managed.

                  1. Bankruptcy risk is not the same as death risk.

                    And risk pooling is not the same as triage.

                    1. Who is talking about bankruptcy risk? That's a red herring.

                      Both the insurance companies and the medical personnel are assessing the same risk. The risk of adverse health outcomes.

                      If you say that race is a direct risk factor for adverse health outcomes, then yet, medical personnel will treat it differently. But at the same time, health and life insurance companies should also treat it differently. If, say, black people are at higher risk of death BECAUSE they are black, then sure, medical personnel should take that into account.

                      But so should health and life insurance companies, and black people should see higher premiums BECAUSE they are black BECAUSE being black is a direct risk factor for adverse health outcomes.

                    2. Adverse health outcomes is not the risk insurance companies analyze.
                      Payout is not the same thing as death.

                      I explicitly say race may not be a direct risk factor. Here is my OP again:
                      That could mean hidden variables, or it could mean that genetics is a variable, for which race is as close a proxy as we can get.

                      Read better.

                    3. "Adverse health outcomes is not the risk insurance companies analyze."

                      Of course it is. That's the most idiotic thing you may have said. Death, for example, is an adverse health outcome. And it is literally what life insurance companies analyze, every day, the risk of death for a given person or group of people.

                    4. Death means an insurance company no longer needs to pay out.
                      Illness, on the other hand, means $$.

                      Payout is not the same as health outcome.

                    5. "Death means an insurance company no longer needs to pay out."

                      A LIFE INSURANCE COMPANY doesn't need to pay out upon death?

                      Seriously....

                    6. Did you just switch from health insurance to life insurance? Because life insurance *only* cares about death, which is also not a great proxy for health outcome.

  9. The sad and dangerous reality is, under Eugene Volokh's definition of "Free Speech", almost all types of cyberstalking and cyberharassment, including intentional posting of private facts about people to harm and humiliate them on blogs that show up high on search engines, would be legal and victims would not have recourse. There are many malicious, mentally ill stalkers who do exactly this, where victims have not done anything against these people other than to "leave them". In any civilized country outside the USA, this type of online harm would be criminal conduct, but in the USA, strangely, this behavior is celebrated and even encouraged, thanks in no small part due to the contributions of Eugene Volokh in trying to overturn any law concerning internet speech that would make America more civilized and protect American victims of cyberharassment.

    It's incredible you people can't see this reality.

    1. Just like lawyers here are not your lawyers, any psychiatrists here are not your psychiatrists. Neither can ethically provide the kind of counseling you need. For your own sake, please seek help.

  10. As I noted in my post about the New York COVID race discrimination scheme, this is unconstitutional: Use of race as a proxy for supposed greater risk—instead of focusing on the more directly relevant factors ("race-neutral alternatives," in doctrinal terms), such as underlying medical conditions, vaccination status, lack of access to good alternative care, or the like—would violate the Equal Protection Clause in this situation.

    I wonder how aware EV is of how many healthcare outcome analyses have relied upon race as a proxy—often with awareness that race may be standing in for other factors which have not yet been isolated or measured. One problem in EV's approach is that he seems to be treating as legal equivalents medical research analysis, business policy analysis, and government policy analysis. Is the law really ready for that conflation?

    I doubt society wants standards to which the law holds insurance companies, for instance, to become a yardstick which the law uses to tell medical researchers what they can and cannot conclude in their own quite different activities. I don't think society wants lawyers and judges sticking their noses into the particulars of responsibly done medical research at all. Who thinks legitimately-researched medical data, after they become widely adapted as standards to guide medical practice, can legitimately be pronounced, "unconstitutional," as guides for public health policy? That seems bizarre.

    1. There is an important difference between "healthcare outcome analyses" and "government policy". The only bizarre thing is that you act like you don't know that.

      1. Michael P, assume public health policy based on healthcare outcome analysis, and explain the difference. Are you insisting public health policy cannot be based on healthcare outcome analysis?

        1. It's not my job to explain basic facts to you. Make your own damn argument, but please educate yourself first, so that you don't ask stupid things like "what's the difference between government policy and healthcare outcome analysis?".

          1. I recall hearing on NPR some doctor from the UK advocating certain health care policies based on the economic effect of those policies. He, for example, suggested that measuring longevity, especially among the elderly was counterproductive because decreased longevity actually conserved societal resources including medical resources and pension funds without enhancing quality of live. He said similar things about smoking.

            To think that government policy in a government healthcare system would not be influenced by Healthcare outcome analysis is somewhat naive.

            1. Yes, government healthcare policies not being influenced by analyses was a straw man that Lathrop made up, apparently because he can't argue against actual US law on the topic (which EV outlined in the original blog post).

            2. Whereas, rsteinmetz, to think that healthcare outcome analysis ought to be dictated by government policy (or court interventions!) is bonkers.

              I suggest the idea is that healthcare outcome analysis gets done by healthcare experts, according to their own lights. They then advise government on how to make policy which conforms to what their research has demonstrated. The political process then determines which bricks get made with that straw.

              This is a blog were alleged conservatism takes some remarkable Big Government turns.

    2. Setting aside everything else you get wrong, you are being disingenuous. We are talking about medical treatment, not medical "research."

  11. Amazing how the left can label people as inferior and requiring more medical priority than another without causing people to stop and realize exactly what is being said.

    Poor lifestyle choices tend to lead to more health issues and while race may introduce some complications the idea that we exclude people based on race after the same government officials declare a near state of hysteria really brings home the point that they don't truly are shooting from the hip and everyone is a target if not casualty

  12. Wonder how many folks will die due to this virtue signaling, and if that's the whole idea.

    1. This could be a backdoor way of promoting equity of outcome.

  13. Note that people who lack "BIPOC status" (basically, non-Hispanic whites) would be "deprioritiz[ed]" precisely based on their race and ethnicity, not wealth, access to health care, being in a nursing home, or anything else.

    Well, sure, if they cannot show any demonstrable need for scarce medicine. Note that, "deprioritized," does not even remotely mean, "cannot get the medicine." If they demonstrate risk factors, they get the medicine. What EV objects to is apparently the alarming prospect that some Black folks may also get it, a tiny bit easier.

    Has math-genius EV even compared the arithmetic factors in the published scale to the recommended levels of deprioritization? At the anticipated extreme end of the deprioritization scale, they are talking about, deprioritizing "MASSBP=3 as scarcity deepens." MASSBP=3 is not very high risk. Age 65, plus type 2 diabetes, puts you at MASSBP=4, and being white is not going to reduce that number.

    Compare the table guidelines above to state guidelines which came out for first-priority vaccination, and you can see that folks the states judged to be at high-priority risk would generally score higher than 4. Someone at really serious risk would probably be at 6 or higher.

    And on top of all of that, use of the scale isn't even mandatory. It is a guide for practice which doctors can ignore if they think a particular patient's condition warrants heightened concern.

    In short, this post by EV is not serious. It is more red meat tossed to the White victimization crowd. It is disappointing to see that now. This nation is working its way toward what may turn out to be an historic crisis of division, goaded in part on the basis of exaggerated fears of the kind EV encourages here. Why?

    1. But EV didn't produce this red meat, the Minnesota government did. There would have been nothing for him to toss but for them.

      So, there's no exaggerated fear here, they really did put out a racist policy, even if it was just a "guideline". And this sort of thing appears to be getting more and more common, as the left's rejection of race blind policies takes root and spreads.

      1. Lathering the rubes
        Lathering the rubes
        A UCLA law prof
        Lathering his rubes

        How sad it must be
        to see progress a bad fog
        through white-tinted lens

        A white and male blog
        ranting against improvements;
        carry on, clingers

      2. It’s frightening because a guideline by some loony bureaucrat essentially becomes the standard of care in front of a jury, when the shit hits the fan.

        From the stroke of a pen to destroying lives. This stuff does have an impact and it’s up to those trained in the dark art of lawyering to push back against the bureaucratic state.

    2. But why should BIPOC status show increased need for the scarce resource? It is a political grouping developed by race hustlers to build a majority to oppose non Hispanic Whites. Nothing more. It has no genetic consistency or legitimacy. To the extent that the group, as a whole, may show increased susceptibility to the virus, it is highly likely that is a result of increased risk of obesity, which in turn, is much more socioeconomic than racial. If the actual need for the treatment is due to obesity, then test for that - it is something that any physician can do easily (e.g. BMI7). And if the reason is socioeconomic, then means test. But don’t give priority to the Barack Obama (rich and skinny) BIPOCs.

      1. Hayden, re-read the OP. Your obesity rant was canceled out in the policy analysis.

    3. Why does division have to be a crisis?

    4. Note that, "deprioritized," does not even remotely mean, "cannot get the medicine."

      Yes, it does. If there's no scarcity, then there's no need to "prioritize."

      1. Sure, Nieporent. And if there is no medicine, nobody gets it.

        If there is insufficient medicine, the most compromised get it, and the others don't.

        And all the time, if your Doctor thinks your condition puts you at special risk, you get the medicine.

        That is the policy in a nutshell, except that the policy also makes allowances based on the assumption that members of racial minorities will have less capacity to demonstrate co-morbidities, and more likelihood of being affected by them.

        Now address what everyone worried about White victimization is worried about. Show how the policy reduces the numerical entitlements applied to making those decisions. You will not be abled to do that, because that does not happen.

        Of course, sorry about the shortages. Nobody can prevent them. The policy is an attempt to systematize managing shortages to reduce to a minimum the harm of not having medicine enough for everyone, including for people who do not need it at all, but might like to hoard some.

        1. "If there is insufficient medicine, the most compromised get it"
          And being a BIPOC does not make you compromised. Full stop.

  14. The problem is that BIPOC is a political, and not genetic or racial, categorization. The biggest COVID-19 risk factors appear to be age and obesity, with diabetes possibly a third (if it can be disaggregated from obesity). Obesity is far more socioeconomic than racial. Some BIPOC groups (west Central African Blacks and Pacific Islanders) appear to have a higher propensity for obesity, but other BIPOC groups, such as eastern African Blacks, have the opposite. For example, why should skinny, younger Barack Obama have priority over older, more obese Donal Trump? Trump is probably at least 5x more vulnerable to COVID-19 than is Obama, but Obama is (arguably) BIPOC, and Trump clearly is not.

    If the characteristic that increases the risk to the (manufactured by race hustlers) BIPOC community is obesity, it is far easier to test for that characteristic directly, instead of using an artificial, politically contrived, grouping that is, at best, a poor proxy.

    1. 1. Until we isolate the racial correlation for Covid mortality, it is still a relevant classification. Whether it's compelling enough to overcome strict scrutiny, I am doubtful.

      2. Your analysis of Trump v. Obama is treating race as determinative, not a risk factor.

      I'm quite skeptical of this policy; there's no need to exaggerate what it means to criticize it.

      1. You missed his point that BIPOC is not a race. It is a political construct with no scientific basis whatsoever.

        1. So what? A corollary that cannot be explained with the variables we know about is still a corollary.

          1. ???corollary???

            Maybe you meant correlation?

            1. Two things that are correlated are corollaries.

              1. Ah. I got stuck on the math definition.

      2. Unless there's evidence that "non-Hispanic white" race means better COVID outcomes than all other racial or ethnic groups, BIPOC is the wrong clarification to use. If that outcome is true, well, the Minnesota Department of Health seems like an odd entity to be arguing that there is a scientific basis for white supremacy. (To be clear, I don't think such a basis actually exists. I think they relied on a flawed analysis instead.)

        1. And in fact, Asians generally see the same or better COVID outcomes when compared to whites.

          1. Isn't current Democrat doctrine to treat Asians as in-practice white people, though? Otherwise they are inconvenient counterexamples to white supremacy and structural racism.

        2. They seem to be claiming there is a correlation, not the causation you posit.

          And that's not white supremacy, you weirdo.

      3. "it is still a relevant classification"
        it is a political construct, not a medical category. It is simply trolling for votes.

    2. Maybe they are thinking of sickle cell anemia or something

    3. I agree and wrote about that earlier in the comments which you can find.

  15. Meanwhile, the fact that mononclonal antibody treatments need to be rationed is a national scandal. They have already been used for some time for a virus that has been around almost two years. (My wife and I got infusions in late October, and we had no trouble getting them. )

    1. Lets try this again, if 30-40%of the population refuses vaccination and boosting with the expectation that monoclonals will be available that will create a supply shortage given the different production processes. Maybe the triage should be break through infections have priority followed by a morbidity based treatment protocol. The outcome will be more dead white guys than under the currently favored protocol.

  16. https://www.nature.com/articles/s41467-020-19741-6

    If a point system is needed for allocation of scarce resources, a male patient should get points for being male. It's about equivalent to eight years of attained age.

    -dk

  17. Hey FEDGOV can we get some more stuff like this??? Please!!!!!

    I'm gonna need more popcorn.....

  18. At some point, fascist policies reveal a racist foundation.

  19. Well, if Hans Bader of Liberty Unyielding ("Promoting and defending liberty, as defined by the nation's founders"), John Hinderaker of Powerline ("a side that features commentary on the news from a conservative perspective"), and Eugene Volokh all agree that this policy is unconstitutional, then I think we have all sides covered.

    Minnesota and New York should be rescinding their health policies soon given this authoritative ruling on their constitutionality

    1. I mean, it looks problematic to me. Dunno if it's slam dunk, but it's a racial classification without a clear narrow tailoring.

      1. I agree that the policy appears problematic.

      2. Sarcastr0, do you get that this is not public health policy about social distancing, where the entire debate takes place in a political arena, where Americans are accustomed (maybe too accustomed) to legal intervention? This is public health policy about the evaluation of medical practice, where Americans are not accustomed to think of lawyers as supreme authorities. Do you know of any instances where the courts have involved themselves in that subject, except in the tangential—and far simpler—question of medical malpractice in an individual case?

        EV's insistence that this is unconstitutional strikes me as a ground-breaking call for expansion of legal authority at the expense of medical expertise. I find that chilling.

        By the way, do you see any saving power against legal attack in the fact that the policy explicitly invites doctors to ignore it according to their own judgment of patient necessity?

        1. "EV's insistence that this is unconstitutional strikes me as a ground-breaking call for expansion of legal authority at the expense of medical expertise. I find that chilling."
          SL, wear a warmer coat. Maybe your chills are from COVID-19.
          But seriously, this MN ruling is not from medical expertise. It is from political power and quite rightly subject to review in the courts.

        2. "EV's insistence that this is unconstitutional strikes me as a ground-breaking call for expansion of legal authority at the expense of medical expertise. I find that chilling."

          So much for all your paeans to "sovereignty"!

  20. Since race is self-identified, I would imagine that there would be a strong ethical case to be made for lying to medical personal in order to get life-saving COVID treatment.

    1. AtR, did you notice that Minnesota's policy makes that completely unnecessary?

      A whole bunch of commenters here got their White-victims buttons pushed. I did not previously understand that Professor Volokh was drifting into that button-pushing part of America's movement conservative phenomenon. Maybe I should have caught on when he endorse Ted Cruz.

      1. "their White-victims buttons pushed. "
        You have no real answer to the obvious and compelling objections so resort to race-baiting and name calling just like you did in your neighborhood newspaper

  21. Hard to see how there would be any reason to think that "BIPOC" status as such—combining blacks, Hispanics, Asians, and American Indians of all backgrounds and economic status—is going to offer a consistent picture of any otherwise unmeasurable variables.

    Yes, hard, but not impossible. Maybe it would be worth looking at the studies before concluding that they must be wrong.

    After all,

    UMN found, in an analysis of 41,000 patient records, that both pregnancy and BIPOC status, after accounting for other covariates, were independently associated with poor clinical outcomes from COVID-19 infection….

    Maybe they did a sloppy job, maybe not. Anyway, sight unseen, I'd go with that study rather than whatever Bader and Hinderaker have to say.

    Lie down with dogs, Eugene, get up with fleas.

    1. Bernard,
      "combining blacks, Hispanics, Asians, and American Indians of all backgrounds and economic status—is going to offer a consistent picture of any otherwise unmeasurable variables. "
      It is difficult to believe that you actually believe what you wrote. Especially as ALL of the categories are ill-defined at best with such a wide range of physical characteristics except for the common feature of being of the same species.
      I am afraid that this time the fleas are on you and not on EV.

  22. Maybe they did a sloppy job, maybe not. Anyway, sight unseen, I'd go with that study rather than whatever Bader and Hinderaker have to say.

    Lie down with dogs, Eugene, get up with fleas.

    "Science"! Nice appeal to authority and ad hominem.

    It appears that you are confused about who has fleas right now.

    1. Reply and html fail... C'mon Reason, would it really be that bad to allow post editing?

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