Utah’s Race-Based Allocation of COVID-19 Drugs Wasn’t Cleared by Lawyers: Emails

A nurse administers a monoclonal antibody treatment to a COVID-19 patient at the Children's Hospital of Georgia in Augusta, Ga., on Jan. 15, 2022. Hannah Beier/Reuters

Legal scholars warned officials in Utah that using race to determine which patients could get crucial COVID-19 drugs was likely illegal, but the state kept the system in place for months afterward, newly released emails show.

Utah was one of multiple states to develop systems that gave people who weren’t white a better chance of getting monoclonal antibodies, a crucial treatment for COVID-19, in 2020 and 2021.

As late as September 2021, Utah hadn’t had lawyers make sure the system there complied with state and federal law, according to one of the emails.

“I don’t believe this approach has been reviewed legally, but not for lack of us requesting long ago,” Dr. Brandon Webb, an infectious disease physician who helped come up with the guidelines, said in September 2021.

“I’m frankly surprised that this has not yet been subject to a legal challenge.”

Webb was responding to two legal scholars who said the system likely violated legal requirements.

“I’m curious about whether this has ever been reviewed legally,” said Leslie Francis, a professor at the University of Utah. “There’s been a fair amount of discussion about whether the use of characteristics such as race, sex, or age in making decisions about monoclonal antibodies is prohibited under federal anti-discrimination law, even if evidence based and (as you say) targeting high risk groups. The consensus among legal academics anyway seems to be that it does violate federal law.”

Teneille Brown, another University of Utah professor, wrote, “The use of non-white race really set off alarm bells, not because of clinical risk necessarily, but anti-discrimination law.”

They raised their concerns with Webb and other members of a Utah workgroup that was tapped to come up with a way to decide which patients should get drugs in short supply.

The emails were obtained and published by The Washington Free Beacon.

Utah kept race as a factor in its risk score calculator for months after Francis and Brown sent their messages.

In January, the state Department of Health stopped giving major points in its system to non-white people but continued awarding points to minorities. The move came after former Trump administration official Stephen Miller threatened to sue New York over a similar scheme.

Miller wrote in a letter to the Utah department that the prioritization scheme constituted “blatant discrimination” and violated the U.S. Constitution. His group, America First Legal, eventually decided against suing the state, claiming victory when Utah eventually removed all mention of race over “legal concerns.” The group did sue several states, including New York, for refusing to roll back the use of race.

Jennifer Napier-Pearce, a senior adviser to Utah Gov. Spencer Cox, told The Epoch Times in an email that the system “was one of several factors to determine whether a person could get monoclonal antibody treatments, which were exceedingly scarce.”

She said the system was adopted based on advice from the workgroup.

“The index aided providers in health systems in deciding how to utilize this scarce resource. However, we later learned that, despite the inclusion of race and ethnicity in the risk score, providers reported that communities of color did not receive monoclonal antibodies proportionate to their share of COVID-test positives,” Napier-Pearce said. “When the question came to Gov. Cox, he directed the Department of Health to find a different strategy for providing the treatments to those most likely to benefit and thus to prevent hospitalizations. At the same time, the state expanded the number of sites where eligible individuals could receive the treatments, including in underserved areas of the state.”

FDA Guidance

The race-based allocation was later adopted in other states, but Utah was one of the earliest—if not the earliest—to put such an emphasis on race.

In one of the new emails, Dr. Mark Shah, one of Webb’s colleagues, told Webb and others that the U.S. Food and Drug Administration (FDA) had reviewed its system “and used it as precedent for including ‘race and other risk factors’ as qualifiers.”

The FDA’s emergency use authorization for monoclonals, one of the best treatments against COVID-19 before the Omicron variant emerged, was only for patients deemed at high risk. In documents outlining the category, the FDA stated that race or ethnicity alone could make a patient high risk. State officials cited the FDA’s nonbinding guidance, including Webb.

The doctor wrote to the professors who raised the concerns and told them, in part, that they “may find interesting” the FDA guidance.

Webb and Shah didn’t respond to requests for comment.

The FDA guidance remains in place to this day.

An FDA spokesperson told The Epoch Times the guidance “acknowledges that certain factors (for example, race or ethnicity) may place an individual patient at high risk for progression to severe COVID-19,” but that “there are no limitations on the authorizations that would restrict their use in individuals based on race, gender, ethnicity, etc.”

Brown, one of the professors, told The Epoch Times that she still hasn’t figured out whether the race-based system is legal.

“It is complicated, and the federal courts have not resolved this,” she said. “As far as I can tell, this precise issue has not yet been decided.”