What happens when affirmative action literally decides who lives or dies?
As I discuss in my article this week, the various SIV ‘vulnerability’ metrics are being used to prioritze minorities for the vaccine. The real battle over that is shaping up at the CDC level, but multiple statues are using SIV to various disagrees, and the VA is also using racial prioritization based on CDC guidelines.
Gail Heriot and Peter Kirsanow at the U.S. Commission on Civil Rights are pushing back.
The Honorable Robert Wilkie Secretary of Veterans Affairs 810 Vermont Avenue NW Washington, DC 20420 Dear Mr. Secretary: We write as two members of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. We write to express our concerns regarding a recent announcement by the Department of Veterans Affairs.
On December 10, the Department announced its initial plans for the distribution of a COVID-19 vaccine. The Department indicated that it would prioritize Black, Hispanic, Native American, and Asian veterans in this distribution because these “communities have been disproportionately affected by COVID-19.” We recognize that COVID-19 is particularly dangerous to people who fall within certain categories, including the aged and those with existing health problems. And we further acknowledge that it is both reasonable and prudent for the Department to prioritize many of our most susceptible fellow citizens. We are concerned, however, that your decision to distribute the vaccine in part based on race might create a constitutional equal protection problem.
Under the Constitution, a court would be obliged to apply “strict scrutiny” to any law or policy that treats individuals differently based on race, no matter how well meaning. That requires proponents of the law or policy to show that it fulfills a “compelling purpose” and that it is “narrowly tailored” to achieve that purpose. “Strict scrutiny,” as the name implies, is intended to be a very tough standard. If, for example, differing rates of susceptibility to COVID-19 among racial groups can be largely accounted for through such things as differing rates of diabetes, coronary disease, or obesity, there is a substantial likelihood that the VA’s plan to prioritize some races over others would be vulnerable to legal challenge. Similarly, if factors like age, diabetic status, or geographic areas at which outbreaks are most serious are more significant than race and yet are not given full priority over race, that, too, could make the plan vulnerable.
Harald Schmidt, the German academic, whose New York Times quote about the lives of the elderly being less worth saving because they’re white, first alerted people to this has already been gaming this out.
Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines? – JAMA
The US Supreme Court uses a demanding legal standard in reviewing race-based classifications. There is no direct precedent in which courts have considered race in allocating scarce health care resources. The closest parallels are found in rulings on school access and university admissions. The critical question is whether government is permitted to consider race when seeking to ameliorate the effects of past and current discrimination…
The court has increasingly moved toward limiting the explicit consideration of race, requiring policies categorizing individuals by race to meet a “strict scrutiny” standard. Under strict scrutiny, race-based policies must be narrowly tailored to achieve a compelling governmental interest. Even if the court were to rule that promoting equity is a compelling state interest, it would still require government, wherever possible, to use means other than race to achieve equitable outcomes. Likewise, the future of race-based discrimination to remedy past and future disadvantage remains uncertain. The consideration of race in COVID-19 vaccine allocation could be a potentially attractive test case for the court given its changing composition.7
Strict judicial scrutiny would not permit 2 vaccine priority strategies. First, a health care worker could not give priority to vaccinating persons from minority groups, for instance, by skipping White people waiting in line at a health care facility. Second, public health agencies could not provide vaccines exclusively, or in larger shares, to geographic areas identified by race alone. This would not preclude distribution in proportion to the population of a vaccine through community health centers, many of which serve largely urban minority populations.
For strategies that would increase the allocation ratio above that proportionate to the population, the Supreme Court is likely to uphold racially neutral vaccine allocation criteria, which are designed to capture worse-off minorities but not explicitly. A vaccine distribution formula, therefore, could lawfully prioritize populations based on factors like geography, socioeconomic status, and housing density that would favor racial minorities de facto, but not explicitly include race.
An example of such a legally permissible approach would be to use a measure called the Area Deprivation Index (ADI), which is similar to the SVI, but does not explicitly prioritize on the basis of race. The ADI reflects the level of socioeconomic deprivation of a geographic area at the block-group level (600-3000 people) and is associated with health outcomes.
So the bad guys are well aware that the legality of affirmative action eugenics is bad. It might be too much even for Chief Justice Roberts. That’s why they’ve been trying to get around it by using socioeconomic variables that were intended, as the National Academies report admitted, to achieve the same outcome.