New York's racialized coronavirus priorities are illegal and warrant DOJ investigation, critics say

New York’s race-based COVID treatment plan has ‘horrible irony’: Tammy Bruce

Fox News contributor Tammy Bruce says the state’s oral antiviral treatment eligibility is harmful and illegal and could cost people’s lives.

New York is blatantly violating the Constitution and should be investigated by the Department of Justice (DOJ) for prioritizing non-White individuals for certain coronavirus treatments, critics told Fox News.

Gov. Kathy Hochul’s Dec. 27 memo tells health care providers that eligibility for anti-viral treatments should weigh race as a risk factor for severe illness. 

“Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19,” it reads.

Gov. Kathy Hochul addresses the media during the 2021 New York City Veterans Day Parade on Nov. 11, 2021.
(John Lamparski/Getty Images)

Author and former U.S. Assistant Attorney Andy McCarthy argued that this provision violates the Constitution and could be criminal.

“I believe New York’s noxious provision violates both the Fourteenth and Fifteenth Amendments, which respectively prohibit the denial of equal protection of law and the denial or abridgment of citizens’ rights based on race or color,” he said in a statement to Fox News.

“It is also a violation of the federal civil rights laws, including, very likely, a felony violation of the criminal statute that prohibits state and municipal officials, acting under color of law, from depriving people of their constitutional and legal rights by reason of those persons’ race or color.”

Former federal prosecutor Andrew McCarthy speaks during a briefing at the National Press Club in Washington. (Chip Somodevilla/Getty Images)

He added that at “minimum, the Justice Department should open a federal civil rights investigation of the state government. Unfortunately, the current Justice Department, including in particular its Civil Rights Division, is a captive of the woke Left, which theorizes that the civil rights statutes should not be enforced on behalf of White Americans because they (unlike ‘people of color’) are not deemed to be an ‘oppressed class.'”

Tom Fitton, who leads the conservative group Judicial Watch, similarly told Fox News that the Justice Department should investigate the issue as it constitutes a form of illegal discrimination.

“What’s particularly outrageous about this is that people could die because of government policies denying them treatment on the basis of race … This is where the government is required to step in to stop the discrimination – and in this case, the federal government,” he said.

Tom Fitton, president of Judicial Watch (Linda Davidson/The Washington Post via Getty Images)

He added that “we can’t have government officials standing in the hospital door, denying people treatment to people based on race. Where is the vaunted Civil Rights Division of the Justice Department? Where is the Health and Human Services Department?”

In a statement to Fox News, the New York Department of Health defended the decision. 

“No one in New York is being turned away from life-saving treatment because of their race or any demographic identifier,” said New York State Department of Health spokesperson Erin Silk.  

“This guidance is based on CDC guidelines that show COVID mortality rates are higher among certain demographic groups, including senior citizens, immunocompromised individuals and non-White/Hispanic communities. NYSDOH is instructing health care providers to consider an individual’s health-based risk factors when providing this treatment, and has requested additional doses from the federal government because of the limited supply at this time.”

On Saturday, Hochul signed legislation declaring systemic racism a public health crisis, and called for greater equity in public health.

“For far too long, communities of color in New York have been held back by systemic racism and inequitable treatment,” she said.

New York isn’t the first to face accusations the government discriminated with its COVID-19 policies. New Hampshire previously prioritized non-White individuals for vaccines. And at a broader level, liberals and some in the medical profession have been pushing for greater “equity.”

Fox News’ Jessica Chasmar contributed to this report. 

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