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  • John Lantos

Can race-based rationing be fair?


COVID-19 has been a good testing ground for theories about the fair allocation of scarce resources. Everybody agrees on the basic idea scarce life-saving resources should go to the people who are at highest risk of severe illness or death. So, most prioritization lists begin with the elderly and people with disabilities or severe medical conditions. We know that people in those groups are more likely than others to be hospitalized, need intensive care, and die. And, for the most part, they do better with treatment.

Things get tougher when we consider people who don’t meet those criteria but are also known to be at higher risk for illness and death. The biggest such group is poor people and non-White people are more likely to be poor. So should non-Whiteness be a ticket to higher priority access to scarce treatment?


A policy in New York recommended just that. It read, in part, “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.” As certified risk factors, then, race and ethnicity could, by this policy be used for allocation decisions.


A lawsuit soon followed, of course. Plaintiffs claimed that the regulations were an appalling example of racial discrimination. They had a point. Race is only imperfectly associated with risk. The plaintiffs argued for a policy of prioritizing “patients of any race who can demonstrate risk factors, such as advanced age, obesity, a compromised immune system, or other medical conditions.” Those factors should be considered. But so should non-medical factors that are also known to be associated with higher risk.


Lower courts in New York dismissed the lawsuit on procedural grounds. The plaintiffs, they said, were not at risk of actual and imminent harm. By this reasoning, the plaintiffs would have to wait until they was ill with COVID-19 and needed medication. That seems too high a burden.


Let’s hope that the Appeals Court issues a more substantive decision and tries to untangle the complex ways that race and medical risk factors overlap. Some facts are key. Chronic disease, an agreed upon risk factor, is disproportionately prevalent in vulnerable communities. Furthermore, it occurs at younger ages among people in those communities and is less likely to have been diagnosed. Thus, living in a vulnerable community may be a good way to identify those at high risk. Policies should focus on measures of disadvantage within communities, rather than race or ethnicity alone. Such measures can quickly, using zip code, identify groups with higher risk of mortality from COVID-19.


Decisions will always need to be individualized. Measures of community disadvantage will never, by themselves, be enough. Still, categorization based on indices of deprivation allows policies to avoid the use of race while achieving the goal of identifying and then reducing health disparities.

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