The issue is gaining steam in both the establishment and MAGA activist wings of the party. Sen. Marco Rubio is among several lawmakers pushing the Food and Drug Administration to rescind the recommendation, calling it “racist and un-American.” Former President Donald Trump during his rally in Arizona earlier this month claimed that the Biden administration is “denigrating white people to determine who lives and who dies.” The Wall Street Journal recently ran an editorial blasting New York’s version of the policy as “unfair and possibly illegal” and warned that “Democrats could pay a lasting political price” for it. Former White House policy adviser Stephen Miller, who is suing New York over the policy and threatened legal action against Minnesota and Utah, railed against the efforts as “unconstitutional, immoral, and tyrannical.”
A senior aide to one of the GOP members of Congress focused on the issue told POLITICO that Republicans are looking for ways to squeeze Democrats on the race criteria leading up to the November midterms and beyond.
“There’s not a ton we can do now. But if there’s another vote-a-rama, expect an amendment on this. It’ll be a tough vote for Democrats,” he said. “And if Republicans take back Congress, expect investigations and oversight. We will make the officials who signed off on it come up here and defend it.”
The FDA’s December guidance on the use of sotrovimab — the only monoclonal antibody proven effective against Omicron — notes people of color may be at higher risk for severe Covid-19 and said it’s one factor among several that doctors can consider when doling out the drugs given that they remain in short supply.
The nonbinding recommendations and similar criteria from a handful of state health departments are intended to reduce the racial disparities that have been present since the beginning of the pandemic. As recently as October, for example, Hispanic, Black and Asian people in the U.S. were twice as likely to die of Covid than white people when adjusted for age, according to the Kaiser Family Foundation.
Recent CDC data also shows that white Americans are, if anything, at the front of the line for still-scarce Covid treatments. Monoclonal antibodies were given to Hispanic patients 58 percent less often than to white patients over the past year, and rates for Black, Asian, and other race patients similarly lagged, according to an agency study released in January.
Some states have gone further than the Biden administration and explicitly required race and ethnicity be considered when determining whether someone should receive the medication.
In Utah and Minnesota, state health departments had established risk scoring systems that used race or ethnicity as a preferential factor to decide who receives monoclonal antibody treatments. In New York, the state health department released guidance instructing providers that “non-white race or Hispanic/Latino ethnicity” should be considered a risk factor for Covid-19 because “longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19.”
Defenders of such policies stress that while there’s no genetic or biological reason people of color are at higher risk from Covid, there is ample evidence that they’re far likelier to lack health insurance, work in a higher-exposure environment, experience discrimination in the health care system, and have an undiagnosed underlying medical condition — making their race or ethnicity a helpful flag for doctors to further investigate their situation.
“This policy is trying to combat racial and ethnic disparities that are already happening,” explained Taison Bell, a doctor and assistant professor of medicine at the University of Virginia’s division of infectious diseases. “But it’s perceived as an attack. Well, I can’t think of any victory for racial equality that didn’t upset some folks.”
Some influential Republicans see a political opportunity and consider this fight — which they compare to ongoing crusades against affirmative action and Critical Race Theory — as advantageous for conservatives and a political liability for anyone supporting the racial equity push at the ballot box in November.
“It is a huge vulnerability for anyone that does this,” said Hans von Spakovsky, senior legal fellow at the Heritage Foundation. “Any elected official, whether they are a Democrat or Republican, who goes along with this or approves this is going to face the wrath of voters everywhere.”
Roger Severino, who led HHS’ Office of Civil Rights under the Trump administration, argued a “fairly straight” line can be drawn from the Critical Race Theory movement to the Biden administration’s recommendation and New York’s Covid treatment prioritization. He and other conservatives are confident they will be able to harness the same energy from their base that they saw whipped up over race in education.
“We saw that Critical Race Theory had been creeping into our public schools, and the dam broke in a kind of response, as we saw in the Virginia elections,” Severino said. “Parents, once they found out, said they had enough of it and if the same move starts happening in health care, you will see the same visceral reaction.”
Woodhouse, however, believes Republicans won’t have as much success attacking the new Covid guidance as they had in hammering Democrats over Critical Race Theory because it will invite scrutiny of what he called the GOP’s own “sorry record” on the pandemic.
“Because of that, it’ll be harder for them to use this as a wedge issue,” he said. “They’re going to be held accountable on their own records and can’t just play offense on this race card. So, Democrats should respond by reminding people that Republicans are perfectly fine with racial inequities in Covid care. They don’t give a damn. We need to make that case and not let them get away with this.”
The political backlash is already having an effect, further fraying the already patchwork policy at the state level.
Following the legal threats from Miller’s group, health officials in both Minnesota and Utah removed race and ethnicity as criteria for allocating scarce monoclonal antibody treatments. The Midwest hospital system SSM Health also publicized a change to its policy on the use of race and ethnicity as a factor for treatment allocation after a legal threat from a conservative Wisconsin law firm.
New York state, meanwhile, stood by its guidance after America First Legal filed suit. The state’s health commissioner, Mary Bassett, told state lawmakers last week that the guidance “reflects the social consequences of racial ethnic classification in our society, which has had an enduring and longstanding impact on peoples’ ability to live a long and healthy life.”
A New York health department spokesperson declined to comment on the pending litigation but said in a statement that no one “who is otherwise qualified based on their individual risk factors will be turned away from life-saving treatment because of their race or any demographic identifier.”
Through a spokesperson, CDC Director Rochelle Walensky told POLITICO that while she was not involved in creating the guidance, she believes that “the data demonstrating the impacts of COVID-19 on racial and ethnic minorities seemed to justify the recommendation.”
Those in charge of implementing the recommendation at the local level say this is rarely an issue clinicians confront and that no one is being denied Covid pills based on their race.
Michael Liebl, director for clinical pharmacy services at Houston Methodist Hospital, said supplies of monoclonal antibodies are so limited right now that his facility is only offering the treatment to what it considers “Tier 1” patients — those on immunosuppressants or who are older than 65 with high risk factors.
Even when supplies were more readily available, Liebl said, race was essentially a non-factor because the federal government’s emergency use authorization for the drugs is so broad. For instance, all adults considered overweight are eligible for the treatment.
“Is there a situation where a person would not qualify but only for the additional risk factor or consideration of race or ethnicity? Certainly, that could be a situation. In the thousands of patients that we’ve treated have we seen that particular criterion be the only criterion for a patient? It would be incredibly small,” Liebl said.
Other medical experts warn that if the backlash pushes states to strip all race considerations from the distribution of life-saving drugs, already stark disparities in Covid deaths could worsen.
“People think that if we don’t take race into account things will be distributed equally. That’s not true,” Bell stressed. As an example, he cited the Biden administration’s early vaccine distribution program that relied on local pharmacies, which left many communities of color without access during the rollout’s first few months. “A policy like that on its face seems equitable, but it isn’t really.”
Erin Banco contributed reporting.