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In hospitals and health care systems, life and death decisions are being made about who should get scarce antiviral medications from Pfizer and Merck and monoclonal antibodies from AstraZeneca and Vir/GSK. These medicines can keep people out of the hospital and save lives.

Given the limited supplies of these medicines, race — along with other variables — is being used to determine who gets them in many states battling the Omicron surge. Hospitals and health care workers are forced to make agonizing triage decisions tantamount to deciding who shall live or die.

Covid-19 and race are both cultural lightning rods in the United States. The Supreme Court’s recent announcement that it will reconsider whether colleges can use race in affirmative action decisions will further complicate things. The conservative majority may be poised to significantly restrict or even eliminate race-based preferences. Although its eventual ruling won’t directly apply to health care or Covid-19, it will likely have major implications for decisions in health care that take race into account.

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The Biden administration has purchased antiviral and antibody treatments and will distribute them to states based on up-to-date calculations of each state’s hospitalization and infection rates. The Centers for Disease Control and Prevention (CDC) has urged states to allocate the doses taking into account fair access and recognizing prior maldistribution that has resulted in a long history of disproportionate denial of access to health services in communities of color. States’ adherence to CDC guidance has been uneven at best. As STAT reported, for example, a small private clinic received a higher allocation of Evusheld, a cocktail of two monoclonal antibodies made by AstraZeneca, than any hospital in Florida.

 

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The states, in turn, will allocate the doses they get to counties, hospitals, community health centers, and physicians’ offices. Each state has its own formula for distribution, with some states favoring low-income communities with a high proportion of Black, Hispanic, and other traditionally underserved groups. At the end of the supply chain, physicians are often left holding the bag to make decisions on a patient-by-patient basis on who gets these scarce therapies. These decisions are fraught with social and political risks. Without principles guiding the process, we could witness an American reality TV version of Squid Game.

That’s why ethical guidelines must be set to avoid unfair outcomes.

Based in part on an ambiguous CDC guidance on allocation of scarce therapeutics, several states (New York, Minnesota, and Utah) and some health systems (the University of Utah hospital scoring system and the Wisconsin-based SSM health system) used race in making Covid treatment decisions. New York has the most explicit race-based guidelines, saying that longstanding “systemic health and social inequities may contribute to an increased risk of getting sick and dying from Covid-19.” As a result, health-care providers should “consider race and ethnicity when assessing individual risk.”

Two other states, Utah and Minnesota, withdrew or altered their guidance when race-based criteria were challenged in court. Taken together, states that adopted race-based allocation scoring systems generated extended press coverage and political controversy. Until the CDC makes clear that states should not dictate that individual medical decisions made by physicians be based solely or primarily on the basis of race, the controversy will continue.

On one level, race-based criteria for allocating scarce medicines are fully ethically justified. Black people and others in underserved populations have historically been given poor access to health services. They have also experienced disproportionately high rates of hospitalizations and deaths from Covid-19. Yet using race as an exclusive — or even a primary — factor in making life-or-death decisions about access to scarce medical resources fuels social divisions and invites a Supreme Court ruling striking down any race-based criteria.

The fairest ethical guidance would prioritize access based on the diverse needs of economically, socially, and racially disadvantaged communities. States could use a statistical tool such as the Area Deprivation Index (ADI) which reflects income, education, employment, and housing quality. The ADI guides state allocation decisions, but this population- or community-based tool is not designed to dictate individual clinical choices. The ADI does not use race as variable (in contrast to other tools), but still accounts for structural disadvantage and racism because people of color are more likely to be less economically advantaged. The ADI, therefore, has a better chance of gaining public support and to be upheld by a highly conservative Supreme Court — although that assessment must wait until the court rules in the college admissions cases.

States should craft plans that give priority for scarce anti-Covid-19 medicines to safety-net hospitals and community health centers, which traditionally serve disadvantaged communities. But the government — whether federal, state, or local — should not play any role in dictating clinical decisions for patients. That is solely within the discretion of treating physicians. Hospital ethical boards, however, should help guide physicians’ clinical choices. Appropriate guidance might ask clinicians to consider socioeconomic factors and clinical indicators of risk such as age, obesity, comorbidities, and immunosuppression in making clinical decisions about access to scarce Covid-19 therapeutics.

Due to the scarcity of effective therapeutics, states, hospitals, and physicians are making life-or-death decisions in the ongoing battle against Covid-19. President Biden should be launching an Operation Warp Speed 2.0 to rapidly end the shortages of Covid-fighting therapeutics. This would include two key elements. First, the Biden administration should incentivize or require pharmaceutical companies to expand manufacturing capacity for current treatments. This could entail providing financial inducements for expanded output and/or using the Defense Production Act to order companies to expand capacity and ensuring that raw materials and other key supplies are readily available. Second, like Operation Warp Speed for vaccines, the president could provide ample resources for research and development of new and better treatments.

In the meantime, if the CDC and states fail to provide fair and transparent guidance on ethical allocation of scarce Covid-19 treatments, it will cause hardship and charges of favoritism. And if race becomes a proxy for life-or-death decisions, the political rancor and social division will be palpable.

Biden needs to stop fighting yesterday’s Covid-19 battles and stop counting the number of daily infections. By the end of this surge, most people will have been exposed to the Omicron variants, and millions will continue to become infected by it and the variants that will surely follow. And when they do, they need to have access to treatments to prevent serious illness and deaths and keep U.S. hospitals from becoming overwhelmed.

But until those supplies exist, the CDC should urgently issue ethical guidelines that may include race, but not as the singular factor in making life-or-death decisions.

Lawrence Gostin is a professor at Georgetown University Law Center, director of the school’s O’Neill Institute for National and Global Health Law, and director of the World Health Organization Center on National and Global Health Law. David Beier is a managing director of Bay City Capital, a San Francisco venture firm, and former chief domestic policy adviser to Vice President Al Gore.

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