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Arizona AG Asks HHS To Prohibit Racial Discrimination In COVID-19 Treatments

Arizona Attorney General Mark Brnovich submitted a petition for rulemaking to the U.S. Department of Health and Human Services (HHS) asking for the agency to adopt a rule that would prohibit the use of race or ethnicity when determining who should get medical therapies.

“This is another example of President Biden further dividing our country,” Brnovich said in a press release about his petition. “Race-based decisions in the distribution of medicine are a breach of our Constitution and our belief that every patient deserves the highest quality of care.”

The press release noted that the Administrative Procedure Act (APA) “allows agencies to issue rules and regulations. This is done through the development and publishing of proposed and final rules, allowing for public input into each regulation.”

The AG’s office said that due to the way the Biden administration issued its guidance on race-based medical care, requesting a rule is the only option currently available to Brnovich. If the administration “ignores or denies this request and continues this blatant discrimination,” however, the AG could file a lawsuit.

Brnovich also suggested the administration’s guidance could violate the Arizona Civil Rights Act, and told people to file a civil rights complaint with his office if they were the “victim of such discrimination.”

As The Daily Wire previously reported, multiple states have began prioritizing COVID-19 treatments for non-white residents, thanks to guidance from the Food and Drug Administration (FDA).

“In New York, racial minorities are automatically eligible for scarce COVID-19 therapeutics, regardless of age or underlying conditions. In Utah, ‘Latinx ethnicity’ counts for more points than ‘congestive heart failure’ in a patient’s ‘COVID-19 risk score’—the state’s framework for allocating monoclonal antibodies. And in Minnesota, health officials have devised their own ‘ethical framework’ that prioritizes black 18-year-olds over white 64-year-olds—even though the latter are at much higher risk of severe disease,” the Washington Free Beacon reported.

The racial discrimination stems from the FDA’s guidance when authorizing monoclonal antibodies and oral antivirals for emergency use. The FDA only authorized these treatments for “high risk” patients, and included race as a factor determining someone to be “high risk.” As the Free Beacon noted:

The FDA “fact sheet” for Sotrovimab, the only monoclonal antibody effective against the Omicron variant, states that “race or ethnicity” can “place individual patients at high risk for progression to severe COVID-19.” The fact sheet for Paxlovid, Pfizer’s new antiviral pill, uses the Centers for Disease Control and Prevention’s definition of “high risk,” which states that “systemic health and social inequities” have put minorities “at increased risk of getting sick and dying from COVID-19.”

Even though the guidance is nonbinding, several states have used them to justify extremely harmful race-based triage, to the detriment of those at a higher risk of dying from COVID-19.

Minnesota, for example, explicitly cites the FDA as the reason it is discriminating against higher-risk white people in favor of lower-risk minorities.

“The FDA has acknowledged that in addition to certain underlying health conditions, race and ethnicity ‘may also place individual patients at high risk for progression to severe COVID-19,’” Minnesota’s racial triage plan states. “FDA’s acknowledgment means that race and ethnicity alone, apart from other underlying health conditions, may be considered in determining eligibility for [monoclonal antibodies].”

Utah justifies the race-based triage similarly, stating that the FDA “specifically states that race and ethnicity may be considered when identifying patients most likely to benefit from this lifesaving treatment.”

Further, as The Daily Wire reported, New York’s triage stated that “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.”

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