Two conservative Supreme Court justices warned New York officials that if they try again to ration health care based on the patient’s race—as they did with COVID-19 treatments in 2021—they will vote to take a case challenging the policy on an emergency basis.
The comments came in a statement Justice Samuel Alito filed when the court denied a request to review the plan of New York City and New York State to deprioritize the treatment of white COVID-19 patients during the recent pandemic.
Justice Clarence Thomas joined the statement.
Both justices concurred with the denial only because the “circumstances underlying the dispute below have long since come and gone,” meaning because the COVID-19 emergency has ended.
Without providing an explanation, the Supreme Court turned down the petition for certiorari, or review, in Roberts v. McDonald (court file 22-757) in an unsigned order on June 30. At least four of the nine justices have to vote to grant a petition in order for it to move forward to the oral argument stage.
The denial of the petition came a day after the court issued a landmark ruling in Students for Fair Admissions v. President and Fellows of Harvard College, in which the court found that racial discrimination in the college admissions process was unconstitutional.
Petitioners Jonathan Roberts and Charles Vavruska, both New York residents, filed a lawsuit (pdf) on Feb. 8, 2022, in the U.S. District Court for the Eastern District of New York, against the New York State Department of Health and the Department of Health and Mental Hygiene of the City of New York.
As a surge in the Omicron variant of COVID-19 took place in December 2021, the U.S. Food and Drug Administration granted emergency approval for Paxlovid, a drug that was hailed as an “antiviral superstar,” that “reduces the rate of hospitalizations by around 90 percent” with “no safety issue beyond placebo.”
Despite plans to boost production, supplies of the drug were limited when the petition was filed.
Mr. Roberts and Mr. Vavruska objected to the policy of the state and city to instruct health care providers to adhere to the state’s directive for distributing scarce COVID-19 treatments—oral antivirals Paxlovid and Molnupiravir, along with monoclonal antibodies.
“The directives require providers to prioritize treatment to individuals based on age, vaccination status, and a number of risk factors. Risk factors include medical conditions such as cancer, chronic disease, diabetes, and obesity.
“The directives also state that, apart from any medical condition, non-white race or Hispanic/Latino ethnicity must be considered as an independent risk factor,” according to the petition.
For example, “an unvaccinated 64-year-old African-American with diabetes receives priority over an unvaccinated white 64-year-old with diabetes. A vaccinated 66-year-old who is Hispanic receives priority over a vaccinated 66-year-old who is not.”
“New York’s designation of race as an independent risk factor has no basis in science. Although race may be associated with different risk factors, New York has cited no evidence that race—on its own—makes an individual more susceptible to suffering adverse effects from COVID-19.”
Such evidence “does not exist, because race does not connote any attribute inherent to any individual. It is instead an arbitrary classification that lumps in many different individuals with different attributes and different needs.
“New York’s designation of race as an independent risk factor deprives deserving individuals of much-needed medical treatments solely due to their race.”
Mr. Roberts was white and not Hispanic, vaccinated against COVID-19, and had no known risk factors for severe illness that could result from the disease. This meant Roberts did not “qualify for inclusion in any tier of the ‘risk groups’ established” by the state or city health departments.
“If he were any race but white, he would qualify for the last tier [1E] of the risk groups,” the legal complaint stated.
Mr. Vavruska was also white and not Hispanic, and vaccinated against COVID-19. He contracted the disease in March 2020 and was hospitalized for 10 days. He had at least one risk factor for severe illness that could result from the disease and therefore “qualifies for inclusion in the last tier [1E] of the risk groups for prioritization of certain COVID-19 treatments.”
The petitioners sued to gain “the ability to access oral antiviral or monoclonal antibody treatments on an equal basis, without regard to their race, if they contract COVID-19.”
The district court dismissed the case for lack of standing, and that ruling was affirmed by the U.S. Court of Appeals for the 2nd Circuit.
Mr. Alito said in his statement that the case: “Involves an issue of ongoing importance: whether the Equal Protection Clause permits governments to use race or ethnicity as a proxy for health risk and therefore ‘prioritize the treatment of patients’ on that basis.”
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He said if “any government again resorts to racial or ethnic classifications to ration medical treatment, there would be a very strong case for prompt review by this Court.”
The state’s policy “justified the use of race and ethnicity as proxies for health risk by appealing to ‘longstanding systemic health and social inequities.’”
But the Equal Protection Clause “places a ‘daunting’ obstacle in the way of any government seeking to allocate benefits or burdens based on race or ethnicity, typically giving way only when the measure in question is ‘narrowly tailored’—that is, ‘necessary’—to ‘remediate specific, identified instances of past discrimination that violated the Constitution or a statute,’” Mr. Alito wrote, quoting the Harvard decision last month.
New York’s reference to “longstanding systemic health and social inequities” does not justify the state denying a person medical treatment “simply because that person is viewed by the State as being a member of the wrong racial or ethnic group.”
“The shortage at issue in this case appears, thankfully, to have concluded. But in the event that any government again resorts to racial or ethnic classifications to ration medical treatment, there would be a very strong case for prompt review by this Court,” the justice wrote.
Jim Burling, vice president of legal affairs for the Pacific Legal Foundation (PLF), which represented Mr. Roberts and Mr. Vavruska, told The Epoch Times he agreed with Mr. Alito.
PLF is a national non-profit public interest law firm that challenges government abuses.
The idea of giving preference to a racial or ethnic group because of “‘longstanding systemic health and social inequities,’ makes no sense because all the data showed that there were no significant differences in morbidity between various ethnic groups,” Mr. Burling said in an interview.
“The court in this term, came out in no uncertain terms against racial gerrymandering for college admissions, and it shouldn’t be any different for health care,” he said.
“If there is a live case, and it gets up to the Court soon enough, they certainly could win.”
Usually, when the Supreme Court turns down a petition, it simply says “denied” and puts it on the list of denied cases, he said.
“But on those occasions where the Court comes out with a statement, or sometimes they dissent from the denial, that really gives a lot of people a roadmap to the future to try to get another similar case before the Supreme Court.”
So this Roberts v. McDonald case “is just another one of these cases where some members of the Court are saying, ‘hey, don’t give up on this. We’re interested and bring us another case and we might take it,’” Mr. Burling said.
Cornell Law School professor William Jacobson, who brought a similar case against New York for its discriminatory medical policy but did not appeal its dismissal for lack of standing to the Supreme Court, said the 2nd Circuit’s standing standard was impossible to meet.
The standard “required a plaintiff to contract Covid, be medically eligible, and be in a position to seek the medicine, before a suit.
“Legally and substantively it’s an idiotic standard because the medication was only effective if taken within five days of symptoms. So the courts set up a standing requirement that almost no one could meet as a practical matter because of the tight time frame to seek judicial relief.
“The courts gave health officials almost unbridled authority to engage in racist conduct as to emergency medical treatments,” Mr. Jacobson wrote at Legal Insurrection.
Because of Mr. Alito’s statement, “We know that at least two of the Justices are interested in hearing a case of medical racism in the right procedural posture,” he added.
The Epoch Times also asked New York State’s solicitor general, Barbara Underwood, for comment but had not received a response at the time of publication.
New York City Law Department spokesman Nick Paolucci said by email that the department “is not commenting.”
Article cross-posted from our premium news partners at The Epoch Times.
Five Things New “Preppers” Forget When Getting Ready for Bad Times Ahead
The preparedness community is growing faster than it has in decades. Even during peak times such as Y2K, the economic downturn of 2008, and Covid, the vast majority of Americans made sure they had plenty of toilet paper but didn’t really stockpile anything else.
Things have changed. There’s a growing anxiety in this presidential election year that has prompted more Americans to get prepared for crazy events in the future. Some of it is being driven by fearmongers, but there are valid concerns with the economy, food supply, pharmaceuticals, the energy grid, and mass rioting that have pushed average Americans into “prepper” mode.
There are degrees of preparedness. One does not have to be a full-blown “doomsday prepper” living off-grid in a secure Montana bunker in order to be ahead of the curve. In many ways, preparedness isn’t about being able to perfectly handle every conceivable situation. It’s about being less dependent on government for as long as possible. Those who have proper “preps” will not be waiting for FEMA to distribute emergency supplies to the desperate masses.
Below are five things people new to preparedness (and sometimes even those with experience) often forget as they get ready. All five are common sense notions that do not rely on doomsday in order to be useful. It may be nice to own a tank during the apocalypse but there’s not much you can do with it until things get really crazy. The recommendations below can have places in the lives of average Americans whether doomsday comes or not.
Note: The information provided by this publication or any related communications is for informational purposes only and should not be considered as financial advice. We do not provide personalized investment, financial, or legal advice.
Secured Wealth
Whether in the bank or held in a retirement account, most Americans feel that their life’s savings is relatively secure. At least they did until the last couple of years when de-banking, geopolitical turmoil, and the threat of Central Bank Digital Currencies reared their ugly heads.
It behooves Americans to diversify their holdings. If there’s a triggering event or series of events that cripple the financial systems or devalue the U.S. Dollar, wealth can evaporate quickly. To hedge against potential turmoil, many Americans are looking in two directions: Crypto and physical precious metals.
There are huge advantages to cryptocurrencies, but there are also inherent risks because “virtual” money can become challenging to spend. Add in the push by central banks and governments to regulate or even replace cryptocurrencies with their own versions they control and the risks amplify. There’s nothing wrong with cryptocurrencies today but things can change rapidly.
As for physical precious metals, many Americans pay cash to keep plenty on hand in their safe. Rolling over or transferring retirement accounts into self-directed IRAs is also a popular option, but there are caveats. It can often take weeks or even months to get the gold and silver shipped if the owner chooses to close their account. This is why Genesis Gold Group stands out. Their relationship with the depositories allows for rapid closure and shipping, often in less than 10 days from the time the account holder makes their move. This can come in handy if things appear to be heading south.
Lots of Potable Water
One of the biggest shocks that hit new preppers is understanding how much potable water they need in order to survive. Experts claim one gallon of water per person per day is necessary. Even the most conservative estimates put it at over half-a-gallon. That means that for a family of four, they’ll need around 120 gallons of water to survive for a month if the taps turn off and the stores empty out.
Being near a fresh water source, whether it’s a river, lake, or well, is a best practice among experienced preppers. It’s necessary to have a water filter as well, even if the taps are still working. Many refuse to drink tap water even when there is no emergency. Berkey was our previous favorite but they’re under attack from regulators so the Alexapure systems are solid replacements.
For those in the city or away from fresh water sources, storage is the best option. This can be challenging because proper water storage containers take up a lot of room and are difficult to move if the need arises. For “bug in” situations, having a larger container that stores hundreds or even thousands of gallons is better than stacking 1-5 gallon containers. Unfortunately, they won’t be easily transportable and they can cost a lot to install.
Water is critical. If chaos erupts and water infrastructure is compromised, having a large backup supply can be lifesaving.
Pharmaceuticals and Medical Supplies
There are multiple threats specific to the medical supply chain. With Chinese and Indian imports accounting for over 90% of pharmaceutical ingredients in the United States, deteriorating relations could make it impossible to get the medicines and antibiotics many of us need.
Stocking up many prescription medications can be hard. Doctors generally do not like to prescribe large batches of drugs even if they are shelf-stable for extended periods of time. It is a best practice to ask your doctor if they can prescribe a larger amount. Today, some are sympathetic to concerns about pharmacies running out or becoming inaccessible. Tell them your concerns. It’s worth a shot. The worst they can do is say no.
If your doctor is unwilling to help you stock up on medicines, then Jase Medical is a good alternative. Through telehealth, they can prescribe daily meds or antibiotics that are shipped to your door. As proponents of medical freedom, they empathize with those who want to have enough medical supplies on hand in case things go wrong.
Energy Sources
The vast majority of Americans are locked into the grid. This has proven to be a massive liability when the grid goes down. Unfortunately, there are no inexpensive remedies.
Those living off-grid had to either spend a lot of money or effort (or both) to get their alternative energy sources like solar set up. For those who do not want to go so far, it’s still a best practice to have backup power sources. Diesel generators and portable solar panels are the two most popular, and while they’re not inexpensive they are not out of reach of most Americans who are concerned about being without power for extended periods of time.
Natural gas is another necessity for many, but that’s far more challenging to replace. Having alternatives for heating and cooking that can be powered if gas and electric grids go down is important. Have a backup for items that require power such as manual can openers. If you’re stuck eating canned foods for a while and all you have is an electric opener, you’ll have problems.
Don’t Forget the Protein
When most think about “prepping,” they think about their food supply. More Americans are turning to gardening and homesteading as ways to produce their own food. Others are working with local farmers and ranchers to purchase directly from the sources. This is a good idea whether doomsday comes or not, but it’s particularly important if the food supply chain is broken.
Most grocery stores have about one to two weeks worth of food, as do most American households. Grocers rely heavily on truckers to receive their ongoing shipments. In a crisis, the current process can fail. It behooves Americans for multiple reasons to localize their food purchases as much as possible.
Long-term storage is another popular option. Canned foods, MREs, and freeze dried meals are selling out quickly even as prices rise. But one component that is conspicuously absent in shelf-stable food is high-quality protein. Most survival food companies offer low quality “protein buckets” or cans of meat, but they are often barely edible.
Prepper All-Naturals offers premium cuts of steak that have been cooked sous vide and freeze dried to give them a 25-year shelf life. They offer Ribeye, NY Strip, and Tenderloin among others.
Having buckets of beans and rice is a good start, but keeping a solid supply of high-quality protein isn’t just healthier. It can help a family maintain normalcy through crises.
Prepare Without Fear
With all the challenges we face as Americans today, it can be emotionally draining. Citizens are scared and there’s nothing irrational about their concerns. Being prepared and making lifestyle changes to secure necessities can go a long way toward overcoming the fears that plague us. We should hope and pray for the best but prepare for the worst. And if the worst does come, then knowing we did what we could to be ready for it will help us face those challenges with confidence.
