Deep Dive Episode 212 – Litigation Update: Roberts v. Bassett: NY Racial Preferences in Allocating COVID Treatments
Faced with a limited supply of recently-approved COVID-19 treatments, both the State and City of New York have issued directives instructing physicians and providers on how to prioritize treatment. One of the factors to be considered is race. In Roberts v. Bassett, two lifelong New Yorkers challenge the government’s race-based allocation of potentially lifesaving COVID-19 treatments. Wen Fa, an attorney who represents the plaintiffs, joined us to discuss the latest in the case.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
[Music and Narration]
Introduction: Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.
On March 4, 2022, the Regulatory Transparency Project hosted a virtual event featuring Wen Fa providing a litigation update on Roberts v. Bassett. The following is the audio from that event. We hope you enjoy.
Jack Derwin: Hello, and welcome to this Regulatory Transparency Project virtual event. My name is Jack Derwin, and I’m Assistant Director of RTP at The Federalist Society. Today, we’re pleased to host a litigation update on Roberts v. Bassett, a case out of New York regarding racial preferences in allocating COVID-19 treatments. To discuss the case, I’m pleased to be joined by Wen Fa, who’s representing the plaintiffs in the case.
Wen is an attorney at the Pacific Legal Foundation, where his litigation focus is on free speech and equal representation. Wen holds a bachelor’s degree from the University of Texas at Dallas, a master’s in political theory from the London School of Economics, and graduated from the University of Michigan Law School in 2013. Before joining PLF, Wen spent time at the Human Rights Initiative in Dallas and the Institute for Justice in Arizona. Wen is licensed to practice law in California, Texas, and several federal courts, including the Supreme Court of the United States. To learn more about Wen’s work, you can visit regproject.org to view his full bio.
After Wen’s presentation, we’ll go to audience Q&A if time allows, so please enter any questions into the Q&A box at the bottom of your screen. And I’ll note that, as always, all expressions of opinion are those of the guest speaker joining us. Without further ado, Wen, the floor is yours.
Wen Fa: Thank you so much, Jack. And thanks for hosting this litigation update. So this is a story about quality before the law, but it’s also a story about innovation and opportunity during a devastating pandemic. In March 2020, which was the beginning of the coronavirus outbreak in the United States, Pfizer sent one of its chemists, Dafydd Owen, back home that weekend to start working on an antiviral to treat the disease. Mr. Owen had never been the project lead before. It was the first time that he’s ever been tasked with leading such a project. But he actually liked this new role. He said it allows him to think outside the box. So he worked from home, as many of us did, in a makeshift office for 13 months, occasionally looking out at the wildlife on his porch in Massachusetts. And they had several lines of antiviral going at the same time.
Mr. Owen wasn’t working on a blank slate. So there was another outbreak 20 years ago, the SARS outbreak, and Pfizer was actually working to create an antiviral for that. But by the time they had come up with something, the SARS outbreak has largely receded in the United States. So they didn’t use that treatment, but they used sort of the research for that treatment to develop the oral antivirals that we’re talking about in this case. They had many different lines going. They’ve had breakthroughs in, I think, July of last year. And in December of 2021, at the beginning of this Omicron variant surge in coronavirus cases, they drug that we’re talking about, Paxlovid, along with another antiviral called molnupiravir, received emergency use authorization from the FDA.
So these are highly effective medications. They are hailed as an antiviral superstar. I think the effective rates are around 90 percent with no significant risk beyond placebo. So these are highly effective antivirals, and many news reports say that they could spell the end for a lot of things that we’ve been experiencing during this pandemic and to restrictions on travel and to remote learning for students and end to a lot of the restrictions that we’ve all been living under for the past two years. So in December, they came out with these antivirals. They had limited supplies and very high in demand from the Omicron surge.
So the guidance — so New York State and New York City basically put out directives, guidance documents, to direct pharmacists and physicians on how to distribute the scarce allocations. So the allocation of these antivirals were given to pharmacies. They were given by the state to pharmacies. And each state — each county in the state of New York, usually just had one or two pharmacies to distribute the supply. So for example, New York City exclusively distributed these oral antivirals from a place called Alto Pharmacy. Some other counties used CVS, and still others used Walgreens. But these were supplies given by the government to these pharmacies to distribute on the basis provided for by the government.
So what did the directives actually say? The directives wanted these oral antivirals to go to people who were most in need of them. The factors that these guidance documents considered were things like age, vaccination status, and risk factors. So they had several tiers, 1A, 1B, 1C. So in times of limited supply, they went down on the tiers. People in the 1A tier got them first. People from 1B got them second. People from 1C tier got them third and so forth. So what were the risk factors that we were just talking about? There were a lot of objective, scientific, race-neutral risk factors, things that included diabetes, cancer, being overweight, chronic diseases, such as chronic liver diseases, chronic kidney diseases, and so forth.
But what New York did that we found objectionable with these directives was that it put race as a separate risk factor. So, for example, if you were anybody — if you were any nonwhite race or you were Hispanic, regardless of your condition, race was automatically instituted as a risk factor for you. If you were white and non-Hispanic, regardless of any other condition, race was not a risk factor to you. So this could not only determine whether you’re eligible for the antivirals in the first place, it could get to if there were limited supply and people who are the same as you with the exact same condition who can get it. So for example, two people who are of the same age, same vaccination status, and have the exact same risk factors, if one of those people were white and one of those people was Asian, then the person who was Asian gets it because of that additional risk factor according to the directives.
At Pacific Legal Foundation, these are exactly the sort of laws that we fight, laws that promote racial centralism over individualism. We’re fighting things like this in both our litigation at the merits — our litigation involving TJ in which we represent Asian American students in a victory, I think, just last week, where the district court struck down admissions changes designed to limit the number of Asian American students enrolled at Thomas Jefferson High School in Virginia. We also fight these programs in cities like Hartford and St. Louis, where racial quotas and race-based transfer systems have kept our clients, bright African American and Hispanic students out of schools, sometimes with empty seats.
And we also fight these fights — we also fight the fight against racial centralism and for individualism in our challenges to business COVID-19 relief grants that are reserved for minority-owned businesses or farm loan forgiveness programs that offer 120 percent of farm loan forgiveness for any farmer and rancher as long as that farmer and rancher is not white. All those programs subvert the individual in favor of the collective. That’s why we think they’re wrong, and that’s why we have represented our plaintiffs in this case, Jon Roberts and Charles Vavruska, in this case.
So who are our clients? Main client is Jonathan Roberts. He’s a life-long New Yorker. His mother actually fled from Hungary at a very young age to escape the antisemitism prevalent in Europe at the time. In fact, I was just talking to Jon a couple weeks ago when he told me that in the late ‘80s or the early ‘90s, he went back to Europe to visit one of his relatives. And his relative told him that they had—they were Jewish—and they had 30 relatives back in the 1920s, but in the 1950s, they were down to 2. This is kind of what instilled a sort of equality before the law in Jon’s mind at a very young age.
So Jon Roberts is a lifelong New Yorker who lives in Manhattan. He is under 65, and he’s fully vaccinated. So because he has no known risk factors, he would not qualify for one of these treatments just because of his race. If he were any nonwhite race, he would be placed in one of the tiers, but because he is white, he is not qualified. And this has caused him stress that if caught coronavirus, he would not be eligible for these potentially lifesaving treatments.
Our other client, Charlie Vavruska, is also a lifelong New Yorker. He was hospitalized with COVID-19 for 10 days at the beginning of the coronavirus pandemic in March 2020. He actually has a risk factor, and therefore, he qualifies for COVID-19 treatments. But because of his race, he receives less priority against someone who has the identical risk factor, is the identical race, identical vaccination status, but is any nonwhite race or is Hispanic. They both object to these directives as violating the rights to equality before the law. And that’s why in early February, they filed a federal civil rights lawsuit represented by us in the United States District Court for the Eastern District of New York and sought preliminary relief stopping the use of race in the allocation of potentially lifesaving COVID-19 treatments.
So we recently just briefed the preliminary injunction motion. And what were our arguments? So our arguments include the fact that this is an expressed racial classification. And as the Supreme Court has told us over and over again in cases like Adarand and cases like Croson and cases like Parents Involved all expressed classifications that distributes benefits and burdens on the basis of race, such as these directives, are subject to strict scrutiny. They’re presumably unconstitutional. The government must show both a compelling interest for adopting the racial classification and also that the means that it’s using are narrowly tailored in furthering the goals that it believes are compelling.
We don’t believe that New York City and New York State can meet either compelling interest or narrow tailoring, meet either of those problems of strict scrutiny. With respect to compelling interest, they point to a lot of data showing correlation between race and adverse COVID-19 outcomes, but correlation isn’t the same as causation. And what courts have said over and over again is that if you want to use race, we have to show that race — you have to show a causal effect between race and the thing that you’re trying to remedy. You can’t just show a mere correlation. You can’t just get at it with a mere statistical despair.
And the CDC actually says that race is not biologically or genetically tied to a heightened risk of COVID. And the CDC data that the state of New York cites is also apparently deficient because it is not controlled. It admittedly — it does not control for thinks like socioeconomic status, occupational choices, access to healthcare, and so forth. And that’s important, because if the problem is not race based, that means the solution does not need to contain expressed racial preferences either. With respect to narrow tailoring, the state and the city of New York fares even worse. The use of race is very mechanical. It’s like the 20 points that the University of Michigan gave every underrepresented minority in the Gratz v. Bollinger case. Here, the state and city of New York give a mechanical plus one risk factor to every nonwhite or Hispanic individual in the state of New York no matter what that person’s individual circumstances actually are.
Furthermore, it’s overinclusive. The statistics cited by the state of New York, even though coronavirus has affected us all during the pandemic, the statistics cited by the state of New York show that even assuming that statistical disparities are somehow relevant, Asians actually have in general fared better than whites during the pandemic in terms of every metric that was measured by the studies they cite, including hospitalization rates, rates of cases, and also rates of death. Finally, and I think this is a really important point, narrow tailoring requires a government to exhaust race-neutral alternatives. What that means is that, if the government were to use race at all, it must use it as a last resort, not as a first resort.
And the State of New York just has not done that. When you look at the coronavirus pandemic, it’s a global pandemic. It’s not limited to the state of New York. It affects people all over the country, all over the world. When you look at what other states have done in response to a surging coronavirus outbreak and a limited supply of oral antivirals, what they’ve done is they have enacted similar programs, but ones that did not allocate COVID-19 treatments on the basis of race. And two states actually did at one point allocate COVID treatments on the basis of race, Utah and Minnesota, and they have since rescinded the use of race in allocating COVID-19 treatments. And that’s what we hope that New York City and New York State will do in this case.
Race-neutral alternatives are very obvious. New York can continue to use nonrace, race-neutral risk factors, such as chronic disease, such as cancer or anything else that they currently use. They can even add more race-neutral factors. For example, a lot of the problems that defendants — that the state of New York points to are things like lack of access to insurance and living in more crowded areas, such as apartments. Well, you can get at that problem by basing the allocation on those actual factors. Don’t use race as a proxy. Use those factors themselves, and that would be a race-neutral alternative.
So we just argued this case in Brooklyn before Judge Garaufis in the Eastern District of New York on Wednesday. Judge Garaufis seemed very skeptical of defendant’s arguments on the merits. He seemed pretty persuaded that this is — the words that he used was “bean counting” in how to allocate COVID-19 treatments. Defendants did raise many jurisdictional arguments. First of all, they said something like, “Well, we’re not imposing any penalties on physicians, so they’re free to ignore these directives.” But I think it’s very important to note that the government can’t have it both ways. They can’t say it’s so important to allocate COVID-19 treatments on the basis of race and at the same time say that, “Well, we don’t even know if physicians are really doing it.” They can’t have it both ways.
We also raised a new argument with respect to the supply of oral antivirals. They said that they’ve gotten more oral antivirals. At the same time, fortunately, the Omicron variant, cases have subsided. And therefore, they argued that this case is moot. But when you look at their own declarations that they submitted in conjunction to their opposition to our preliminary injunction motion, they concede that New York City is still under an emergency order, that community transmission remains a risk, and that, as the last two years have taught us, supply shortages can happen at any time. So there is still relief that the court can offer. There’s still a present controversy between the parties. And that’s what we argued to the judge on Wednesday.
In terms of precedent, what type of precedent are we trying to set with this case? What is this case about besides — beyond giving our clients equal access to scarce COVID-19 treatments? Well, one is that we want people to be treated rationally. We want people to be treated as individuals. We don’t want people to be treated on the basis of arbitrary racial classifications. And racial classifications are really arbitrary. When you think about things like political classifications or religious classifications, they are arbitrary in a lot of circumstances, but at least they somewhat approximate a belief system. Race is an immutable characteristic that people should be — that people are born with. They are government-created racial classifications that don’t really denote anything specific about any individual. And the government should not use race in distributing benefits and burdens, whatever they may be, including medication.
We’re also advancing — we also want to advance liberty through innovation. There are a lot of barriers that the government, I think, actually maybe correctly noted in its response, things like insurance, things like language barriers, things like limited number of supplies. But how do we remove those things? We don’t do it by allocating things on the basis of race. We do it by human flourishing. We do it through innovation. We remove the scarcity by added production, innovation from the leading companies in the United States with more capitalism. Let the private market figure it out. The best way to tear down these language barriers to solve issues with insurance, that was actually a product, a byproduct, of waste laws created by the federal government in the New Deal era.
So we want equality before the law, but we want also equality in opportunity for everybody. And that’s what this case is about. It’s about ensuring that everybody has access to things like oral antivirals and, at the very least, in times of limited supply, that the government does not discriminate against people on the basis of arbitrary racial classifications in allocating these scarce oral antivirals. Thank you.
Jack Derwin: Thanks so much, Wen. And I’ll note to our audience that you can enter any questions into the Q&A box at the bottom of your screen, and we’ll start to address those in a moment here. Before that though, I’ll exercise my host discretion and ask a couple questions of my own. First of all, you noted that opposing counsel tried to moot out the case on grounds that the emergency is for the most part behind us. Somewhat similarly, supply of these antivirals seems to be increasing every day. Is there any chance that the scarcity becoming less of a problem will moot out your case?
Wen Fa: So we welcome the lack of scarcity. We want everybody to have access to these drugs. So we do have a claim first for nominal damages, which I think is still puts the past discriminatory program at issue. But further, I think we would be more than happy if the state and the city of New York said that in times of limited supply, we’re not going to use race anymore. But they haven’t said that. They’ve said that in times of limited supply, they would use the exact same factors. And they concede that supply shortages can happen at any time.
I mean, we certainly didn’t predict, or I certainly didn’t predict that the Omicron variant—which was by the state’s own admission the most coronavirus cases was from November of last year to January of this year, and it affected people who were already thought to be immune from coronavirus—things like that can happen at any time. So what we really want to see is the state retract their guidance and to at least publish an updated guidance using all the same factors with the exception of race.
Jack Derwin: So you noted how the guidance is structured, but I don’t believe that you touched how it’s actually enforced. As I understand it, there actually aren’t any penalties for physicians who just ignore the law, correct?
Wen Fa: No. There aren’t any penalties. But that goes back to what I said earlier. The state can’t have it both ways. The city has sent this to 75,000 email addresses directing them to allocate scarce COVID-19 treatments in this way. If the city thinks that this is such a big deal and the city acts on that by sending it out to tens of thousands of email addresses, you’d presume that the state wants to be influencing behavior. So I think a lot of the enforcement is happening, not directly from the state, but from the physicians that prescribe these treatments and also from the pharmacies that approve these prescriptions. That’s just as wrong. Just as the state itself cannot directly discriminate on the basis of race, it should not be encouraging others to be discriminating on the basis of race.
Jack Derwin: So you talked a little bit about your clients. One sort of interesting factor here is actually that—correct me if I’m wrong—but I believe neither of them actually have COVID at the moment. Did that play into the decision of when to sue? For example, why not wait until one of them contracted the virus? Hopefully, they don’t. But if they did, why not wait until that point to sue?
Wen Fa: Yeah. That’s a great question. We didn’t want to wait because these are antivirals that must be taken within five days of symptom onset. So usually people have symptoms for a couple days before they even go to a doctor. So basically, the time period is much too short. We would have to have the clients, get them represented by lawyers—maybe by us—file a complaint and a temporary restraining order, get a decision on that temporary restraining order all within the five days for us to have any chance for them to get the treatments in a time period in which they would be meaningful. And that’s why we decided to go ahead with the lawsuit in early February.
Jack Derwin: So we have a question here from the audience. You touched on a few anecdotes from other states. But generally, are there other states doing this sort of discriminatory guidelines, and are there other cases in New York other than yours?
Wen Fa: So New York is an outlier. There are two other cases. There’s a case in the Northern District of New York by I believe a professor at Cornell. There’s also lawsuit in the Southern District of New York brought by an organization. But New York is an outlier in terms of distributing scarce COVID-19 treatments on the basis of race. Many other states such as Washington, the state of Washington, naturally said that race is not correlated with any adverse outcomes, and racial stereotyping can have adverse effects. So they expressly do not use race. And states like Minnesota and the state of Utah have walked back their use of race in the allocation of COVID-19 treatments. And then your second question I think I forgot what it is.
Jack Derwin: Are there other cases in New York? I believe you —
Wen Fa: Yeah. Yeah, yeah. Okay.
Jack Derwin: There’s another question here that you’ve touched on some of these studies and analysis. And specifically, was any statistical analysis done by either side in this litigation to determine whether racial classification controlled for other risk factors demonstrated an independent correlation to morbidity or mortality risk? Quoting here, “I can imagine the state arguing that in a public health emergency it must be allowed to use an administratively convenient surrogate to control an epidemic.”
Wen Fa: Yeah. So many — so this at a preliminary stage. We just filed a month ago and haven’t really had the opportunity to start [inaudible 27:04] and submit expert reports and things like that. But what I can say is that the state has submitted a bunch of evidence that they believe supports their arguments. But the studies that they’ve submitted actually cuts against their arguments because many of them, all of them, show that you can control for things that might be correlated with race, but that race isn’t by itself an independent factor.
With respect to the thing about emergency, I think this is an emergency. I will stipulate that at the time the directives were published, there was an ongoing health emergency with limited supply and also with the surge in Omicron cases. But in an emergency, I think just as race shouldn’t be used in any other case, it should not be used in an emergency. And with respect to whether this is administratively convenient, I have two points with respect to that.
First, I don’t think administrative convenience is a good justification to discriminate on the basis of race. Second, I think they could have easily used other race neutral factors, socioeconomic status, things like that, that are just as administratively convenient, that only involve asking someone a question or requiring them to submit maybe a document even. But those things would not — they might benefit people of certain races more than people of other races. But they would not categorically include or exclude in some cases people solely on the basis of race regardless of any other individual circumstance.
Jack Derwin: One sort of housekeeping question here, are the state’s submissions and studies available somewhere for the public to access?
Wen Fa: Yes. So they are publicly available on pace here, the court’s website. The complaint and I believe additional case materials are also available on Pacific Legal’s website at pacificlegal.org. And the name of this case is called Roberts v. Bassett.
Jack Derwin: Great. Great. Thanks. Another question here, do plaintiffs have any objection to the state collecting data on a person’s race? A questioner notes that that occurred in Illinois.
Wen Fa: Yeah. I don’t think so. I mean, it’s certainly not their primary concern. Their primary concern is that coronavirus can affect anybody at any time. And their primary concern’s that if they were seeking treatment for coronavirus, they would not be able to get these treatments because of their race, and that’s a main thing that we’re trying to address with this lawsuit.
Jack Derwin: So I’ll give one final call for audience questions here. Feel free to enter any questions you might still have. While we possibly wait for a couple more to come in, I’m curious, as someone who’s litigated equal representation cases in some other areas, like education, how do you think these cases in the area of the medical field compare? Are there special considerations here? Should we feel differently about race preferences being used in this sort of context?
Wen Fa: No. I think we should object to racial preferences in any field, including in the field of medical treatment. I think in medical treatment, one, I don’t think this is a divisive difference. But one difference is that it’s very — it ought to be very objective. And I think a lot of educational disciplines are very objective too, math and sciences. But you do have disciplines which are a little bit more subjective. But in any field, we oppose racial preferences. We advocate for equality before the law, and we also advocate for opportunity.
So in the context of medicine, we advocate for opportunity in the context of eliminating unnecessary barriers, for example, unnecessary occupational licensing restrictions, things like that. In the field of education, we advocate for more innovative prep programs, programs that treat every individual child as an individual and gives that child the best opportunity to succeed based on his or her interests and abilities and not on the basis of his or her race. And that’s what we advocate for in every field that we do, equality and opportunity.
Jack Derwin: So in closing, getting back to this case, what are the next steps here, and do you have any sense of when a decision might come down?
Wen Fa: So we are awaiting for a decision. We fully briefed and just argued the preliminary injunction motion. We are waiting for a decision any day now. I would expect it in the next week or so. And hopefully, it’s a favorable one that eliminates, that prevents a government from treating people on the basis of race.
Jack Derwin: Well, thanks so much, Wen, for joining us today. We’ll also be awaiting the decision. It’ll be interesting to see how it shakes out. A big thank you to our audience for tuning into today’s virtual event as well. You can check out our website at regproject.org or throw us a follow on any of the major social media platforms @fedsocrtp to stay up to date. And with that, we are adjourned. Thanks again, Wen.
Wen Fa: Thank you.
Conclusion: On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.
This has been a FedSoc audio production.