- - Wednesday, March 3, 2021

A disturbing trend appears to have emerged in determining where in line for the COVID-19 vaccine American citizens should be placed. Some groups, such as the Vaccine Advisory Committee of the Oregon Health Authority, that are charged with making recommendations on sequencing populations have shown a desire to prioritize citizens based on their race or ethnicity. 

Even top public officials — like Dr, Raymond Crowell, director of the Montgomery County, Maryland, Department of Health and Human Services — have commented that “doses will be allocated based on case rate and death rates by race and ethnicity for folks living in the ZIP codes that have been disproportionately impacted.” The trend has now reached the Commonwealth of Virginia. Officials should resist any urge to sequence its population in this unlawful, unscientific and un-American way.

For starters, the 14th Amendment of the U.S. Constitution prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws.” This means, if a state or local authority within the United States were to prioritize its citizens for, in this case, vaccination based on their race the state would have an exceedingly high bar to clear for a court to uphold this scheme.

Moreover, state rollout of COVID-19 vaccines is inextricably intertwined with federal financial support and therefore, Title VI of the Civil Rights Act of 1964 forbids discriminating “on the basis of race, color, or national origin.” Adopting this method of sequencing thus makes a state seriously vulnerable to legal action.

Some supporters claim that these race-based vaccination schemes are necessary because they account for the supposed facts that: “BIPOC [black, Indigenous, and people of color] and tribal communities bear a disproportionate burden of certain chronic conditions that place them at a higher risk of severe or fatal outcomes from COVID-19,” “[m]ultigenerational households are traditional and valued among many BIPOC and tribal communities,” and “BIPOC and tribal communities constitute many essential workers.”

For the sake of argument, assume this is all true. Why then use race and ethnicity as a proxy for conditions any health authority can easily determine such as preexisting health conditions, living in multigenerational households, and status as an essential worker? That would be the lawful and logical approach even if, ironically, the impact of that facially neutral policy might disproportionately benefit BIPOC citizens.

Indeed, science and reason seem to be substantially disregarded by proponents of restricting vaccine access based on race. Take, for example, a finding published in the American Journal of Human Genetics indicating that “[o]n average, we estimate that Latinos in the US carry 18.0% Native American ancestry, 65.1% European ancestry, and 6.2% African ancestry.”

If the percentage of COVID-19 cases within the Hispanic/Latino population is disproportionate, such as in Oregon at 35% when Hispanics make up 13% of the total population, it seems a hard sell to claim that Hispanic biology plays a significant role when the majority of their genetic makeup is European.

The more likely scenario is that there are numerous other factors that contribute to various impacts on any community, including BIPOC communities, such as income, geography and behavior. The complexity of this matter should not be so easily ignored. So, what then accounts for this factually unsupported focus on racial classification?

The sad reality is that these health authorities, and many other public and private American institutions and citizens, are under great pressure to conform to an outlandish social and racial justice agenda. Never mind whether any part of that agenda has a basis in science or reason. And these authorities and institutions are putting up little resistance, or in many cases, joining the chorus of social justice warriors.

A substantial part of this radical agenda is to divide American citizens into victims and perpetrators, not based on deeds but instead based on immutable characteristics like race and ethnicity. By abusing the English language with terms like “White privilege” and “systemic racism” — whose definitions would likely not comport with the average American understanding of the words — supporters of this agenda can brand dissenters racist, which today could mean professional and personal ruin.

Authorities, therefore, get in line. Two unfortunate results of this ploy are the obfuscation of the many factors that give rise to societal disparities — upon which we should focus — and the deepening of racial discord among the American people.

If former FDA Commissioners, Scott Gottlieb and Mark McClellan have it right, the COVID-19 vaccine supply will very soon outstrip demand. A better goal for state and local health authorities than restricting vaccination based on race would be to encourage those communities with higher risk portfolios and greater skepticism of government and medicine to seek vaccination when it is available.

The Rev. Martin Luther King Jr. was maybe never more prophetic when he remarked, “[w]e must learn to live together as brothers or perish as fools.” In this case, perhaps quite literally.

• Devon Westhill is president and general counsel of the Center for Equal Opportunity (CEO). Immediately prior to his selection as president and general counsel of CEO, he served as the top civil rights official at the U.S. Department of Agriculture.

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