Is it constitutional to give black and indigenous people vaccine priority?

Governor Phil Scott (R) of Vermont posted this on Twitter:

"If you or anyone in your household identifies as Black, Indigenous, or a person of color (BIPOC), including anyone with Abenaki or other First Nations heritage, all household members who are 16 years or older can sign up to get a vaccine!"

How is this even legal? I understand the statistics show POC are more likely to get Covid, but that’s because they’re more likely to work frontline jobs where social distancing is impossible. Why not simply give preferential treatment on that basis, instead of using a racial classification? Why should an upper middle class black person who works from home get priority over a white restaurant worker?

Are you certain race itself is not a factor as opposed to what their jobs are? It appears that Filipino nurses have been hit much harder than others. From CNN:

From the Vermont Dept of Health website :

If you or anyone in your household identifies as Black, Indigenous, or a person of color (BIPOC), including anyone with Abenaki or other First Nations heritage, all household members who are 16 years or older can sign up to get a vaccine.

No mention of holding particular jobs, or living in a particularly hard-hit area or anything else that might result in more BIPOC being eligible, but only as a “side effect” of non-racially based criteria. Nope, anyone who lives in a household with someone who “identifies” (whatever that means) as BIPOC will be eligible. I cannot see how this as written can be constitutional. Or even useful - because what’s going to stop 100% white me from saying I identify as a POC ? My driver’s license doesn’t list a race and you cannot always tell by looking. Although, I wouldn’t actually have to lie because my Asian husband certainly can legitimately identify as a POC and I would then be eligible because I live with him.

The article explains it isn’t a racial genetic thing but circumstances …

"The major finding…was that Philippine-trained nurses were disproportionately in the ICUs, the emergency rooms, in long-term care facilities such as nursing homes, compared to White, US-trained nurses.

It also talks about the rate of deaths for Nurses in the Philippines is pretty much normal. It also details additional factors.

Nurses have been hit very hard by Corona in general. We almost lost my sister and she lost 2 co-workers in her agency. All nurses.

But Nurses aren’t the hardest hit profession. Cooks have had it the worst.

I think it’s probably unclear whether such a regulation would be constitutional, but I would argue that it is, under the circumstances. Normally, you would want a more narrowly tailored rule. But, it may not be that clear what all of the factors driving the disparities are, there are racial disparities, and time is of the essence in the pandemic. It’s a time-limited benefit in an emergency situation.

As for the fact that white people can claim to identify as BIPoC or living with someone who does, that’s irrelevant to your question, isn’t it? Why would the constitutionality of a regulation depend on the ease with which people can lie to illegally benefit from it?

Certain communities are more at risk and are underserved. There are many possible, and possibly complicated factors involved. From a public policy standpoint, you don’t want certain communities to disproportionately bear the brunt of the pandemic. The emergency requires the criteria to be quickly sorted out, and simple to implement.

That’s what I’d argue.

Since I think I’m the only person who mentioned the potential for people to lie - that sentence started out " Or even useful" . That sentence had nothing to do with my opinion about whether it’s constitutional - it was more in anticipation of an argument that the constitutionality is less important that the need to get the people most at risk vaccinated quickly. This isn’t even effective at making sure the people most at risk get vaccinated more quickly - it’s overly broad and too easy to lie. What exactly is the reason for people living in a household with someone who identifies as BIPOC to be eligible sooner than someone in the same circumstances in a household without anyone who identifies as BIPOC? The “whole household eligibility” doesn’t apply to any of the other reasons - only the healthcare worker, the public safety worker, the person over 50 or with a high risk health condition is eligible. Not their entire household. As far as I can tell, in Vermont essential public-facing workers like grocery store workers or building service workers are not eligible yet. So a white person with a public-facing job supermarket job isn’t eligible unless they happen to live in a household with someone who identifies as BIPOC. And if someone lives in a household with someone who is BIPOC, they are eligible even if everyone in the household is able to work remotely and can avoid or minimize contact with anyone outside their household.

Bolding mine:

According to the Vermont department of health, you don’t have to provide proof of your health condition. Which I think how pretty much every state is doing it. So I think we need to throw away the “you can lie about it” argument the pops up on every vaccine priority topic.

My view: If it’s done for public health reasons—not reasons related to racial discrimination —then there’s no question it’s constitutional. It doesn’t matter if it’s not crafted with precision. Under the circumstances m, precision is too difficult to determine and enforce. And ultimately if a few people lie, that’s not going to undermine the public health goal.

Whatever the worthiness of the public policy, it has to be done according to constitutional principles, one of which is equal protection under the law, which includes equal benefit of the law. There can be exceptions but they have to be narrowly tailored.

That being said, looking at the phrasing : “can sign up to get a vaccine”. Does that actually mean you’ll get a vaccine ahead of someone else? Signing up to get something isn’t the same as getting it before someone else. It could mean “You can sign up to (eventually) get a vaccine”. Are we sure that white people can’t equally sign up to get a vaccine if the individual circumstances are otherwise similar? It could just be an outreach program that says: “This is just for special you” without actually being so because it’s more effective at getting people to sign up. Haven’t you ever gotten spam that said you’d been specially selected for a prize?

I don’t know which it is, perhaps someone better informed could say.

IANAL but that makes sense to me too. For comparison, consider this summary of state laws mandating insurance coverage for colorectal cancer screening, where Alaska law specifically requires coverage for “Persons who are 35-40 in high risk group, African American or anyone over 40”.

Again, the reason there’s an explicit racial designation in that law is because African-Americans are at elevated risk for colorectal cancer and it’s recommended that people in that group start routine screening for it at an earlier age. I know of no attempts to argue that that Alaskan law is unconstitutional.

It probably is how nearly every state is doing it - but even if every state is doing it , that doesn’t mean it’s an effective way to prioritize vaccine delivery.

Yes, but for the purposes of debate, saying “you can lie about it” is pointless because there are already other things you can lie about.

Is “equal protection under the law” achieved when the law is written in a color-blind manner, or is it achieved when people of all races are equally protected from the virus? If the latter, then one might even argue that it’s unconstitutional to not give people of color some level of increased priority, since it’s established that, by default, people of color are (for some reason) at elevated risk.

Has it been established that they are at higher risk because of their race ( like the colorectal cancer screening mentioned above)? My understanding ( and I could easily have missed something ) is that the elevated risk isn’t due to race but to issues correlated to race- living in congested neighborhoods, using public transportation, working at jobs that involve a lot of contact with the public.

Indications are it is the socio-economic side and not a genetic issue.

It almost certainly isn’t directly due to race. But it’s very difficult to pin down precisely what it is due to. And it’s certain that it’s correlated to race.

Maybe the proper long-term solution is to increase economic opportunity among these demographics, or to address whatever else the indirect causes are. But this isn’t long-term legislation.

There’s also an increased risk for people of color to die from Covid, not just to catch it. That could be tied to, among other things, the increased chances for that group to have underlying conditions – which may be undiagnosed. Also, people of color get a reduced quality of care. So, it may not work to try to write the rule around race.

Also, some of the underlying conditions might be long term effects of being people of color living in America. There is starting to be a quantification of the deleterious health effects of being under the stress of that burden every day of your life. So it could be technically indirect, but very closely related to race.

As for household members being eligible, does anyone know the stated reason? I can think of some, but it would be great to start from the stated rationale.

That is something I’m pretty sure about - I’m sure they can’t. Because if they could, then Vermont would have simply said everybody over 16 could sign up ( as some states have) - because the only people who are not currently eligible are white people under 50 who don’t share a household with at least one BIPOC person.

And just to fully flesh this out, I believe VT plans to open up for all over age 16 on April 19. So this is a couple weeks’ difference.

ETA: And actually it appears to be a phased opening to all, starting with over 40 in a few days.

For the record, this is actually a change in eligibility, not merely asking them to sign up:

(The date given above is when the page was first created, not when it was most recently modified. I confirmed that by looking at the Internet Archive) .