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

? Like I said, IANAL, but from my layperson perspective I don’t see how it can be simultaneously constitutional to prioritize vaccinations based on age (even though age discrimination is illegal in other contexts), but not constitutional to prioritize vaccinations based on race (even though racial discrimination is illegal in other contexts).

As DSeid said, if the category in question (e.g., advanced age, nonwhite race) really does significantly correlate to higher risk from COVID, then what’s unconstitutional about prioritizing that category for vaccination?

Likewise, although I’m totally not in favor of gender discrimination, if we had (Og forbid) some pandemic that was on average more deadly to men than to women, I’d be all in favor of men getting fast-tracked for the vaccine and women going to the end of the queue. I don’t see how that would be unconstitutional either.

Age discrimination is a bit of an odd one. It is mostly governed by statute, not the constitution. The constitutional limits to age discrimination would be determined just in terms of the rational basis test, as far as I’m aware.

There is federal law, however, that prohibits discrimination against workers over 40. Note it works in only one direction – you can’t bring a claim for being discriminated against due to your youth.

But yes, if there were evidence that one sec was at significantly greater risk, I think a sex-based priority could stand. Sex discrimination is subject to intermediate scrutiny.

Race discrimination is subject to strict scrutiny, which is the toughest standard. That standard requires a compelling government interest, and the rule must be narrowly tailored to address that interest. I’ve already described why I think this rule passes. There’s also a chance that it gets reviewed a different way based on states’ police powers to deal with things like a pandemic, which is a more deferential standard.

Serious question: Is there a racial genetic component that makes people of color vulnerable to Covid? My understanding was that it is based on socioeconomic factors. If that is the case, then we should prioritize based on income, place of residence, etc. The idea of racial classifications have become a dark mark on our history and we abhor them except under the most strict of circumstances.

Age is far different. All of us will be born and with some good fortune will live to an old age. Not only is there a direct scientific need to prioritize based on age, the distinction is not invidious. If you are 20 and I am 70 and I get the vaccine and not you, that cannot possibly be said that society hates you and likes me better. I was once 20, and hopefully you will be 70 some day. Age is transitory. Simply because in the employment context only we have tried to help older folks does not mean that it applies in every area of life like race would.

Does it have to be a genetic component, for the purposes of this law? Acsenray already articulated an argument that it doesn’t:

Race itself is not “genetic.” It’s a social construct. And the issue of whether the rule can be narrowly tailored to rely on other factors has been addressed.

In my view, the complexity of the factors, and what some of the factors are, make it likely impossible to capture them all or make effective rules, plus it would not be a feasible system. It is a classification that is correlated with more serious Covid risks. It’s backed up by data. Time and simplicity are of the essence in the midst of a deadly global pandemic.

Maybe, maybe not. There seem to be a whole host of factors here, with varying levels of interplay. For example, African Americans are more likely to develop type 2 diabetes even after controlling for socioeconomic status, and diabetes increases the risk of complications from COVID. On the other hand, blacks are over-represented in front-line jobs where working from home and social distancing are not possible. Which one is a more important factor?

Ten years from now, we’ll probably have good answers based on detailed statistical analyses of COVID and those who lived or died. I don’t know that we can or should wait until we know for sure, though.

As I’ve mentioned, there’s also the fact that black people get inferior medical care – as in discriminatory care. Their risks of bad outcomes are increased because of that. There’s no more salient characteristic than race there.

Back when ventilators were in the news, and hospitals were having to decide who got to be put on a vent, black people were less likely to be picked. Their symptoms are discounted, medication not prescribed, and there are myths about what diseases they can’t get.

And you can, of course, put into place rules against that sort of discrimination, and impose penalties on medical providers who give inferior care based on race. And if you do that, what you’ll have will be penalized medical providers and blacks still getting inferior care. Maybe not as inferior as they would have without the penalties, but the penalties won’t be a perfect deterrent against racism.

Yes – resolution of any of those issues would happen long after this rule won’t have any effect.

In Vermont, the vaccine will be open to all 16 and over in one week. And age groups have been phasing in all along since this discussion started.

To empathize: racial inequalities in care are very rarely the result of intentionally inferior care given. They are more often the result of structural factors (and implicit biases).

Structural factors like the access to quality care are obvious but some are even more insidious. Pulse oximeters were normed with a predominantly white population. As a result it can give incorrect reassuring readings more frequently in Black patients. That’s just one small example.

The problems are pervasive and not amenable to just looking for bad people to punish.

Even if no genetic impact at all the correlation is not just SES or job related.