Oregon Weighs Race-Based Vaccine Preferences
States have many factors to consider when allocating their scarce vaccine doses: the age of recipients, medical conditions that put people at risk, and jobs that put workers in contact with the public, to name a few. A committee in Oregon is considering an unusual recommendation to allocate vaccines by race. The proposal is intended to address inequities but would invite legal challenges to a vaccination program that has already been off to a rocky start.
The state’s COVID-19 Vaccine Advisory Committee is a group of 27 individuals tasked with devising “a vaccine sequencing plan focused on health equity to ensure the needs of systemically affected populations, including communities of color, tribal communities and people with intellectual and developmental disabilities, are met.” The committee’s members include representatives from health providers as well as community groups such as the Oregon Pacific Islander Coalition and the Somali American Council of Oregon. Although decision making responsibility ultimately lies with the Oregon Health Authority and Governor Kate Brown, the state has pledged to follow the committee’s recommendations.
The committee concluded its first meeting in early January unable to agree even on endorsing the efficacy of coronavirus vaccines. (Both the Moderna and Pfizer/BioNTech vaccines are remarkably effective.) At the most recent meeting on January 21, the committee deliberated who should be next in line for vaccinations after healthcare workers, senior care residents, teachers, and several other groups.
The committee appears poised to prioritize allocation based on race, perhaps even ahead of those with chronic medical conditions. The Oregonian reports that when some members suggested prioritizing residents with relevant health conditions, a committee member representing a Native American group alleged that the committee was “dealing with our own conditioning of white supremacy as it is showing up in our decision making.” Black, indigenous, and other people of color (often abbreviated “BIPOC”) made the committee’s tentative list, with their priority vis-a-vis Oregonians at risk from chronic medical conditions to be determined later.
The committee’s next meeting is on Thursday and if it commits to this plan, the Oregon Health Authority will have to consider whether it can be implemented legally. Walter Olson, a senior fellow at the Cato Institute, has argued that explicitly prioritizing race in vaccination decisions would run afoul of the Equal Protection Clause. “This runs into the Fourteenth Amendment to the Constitution, which says citizens of all races are entitled to the equal protection of the laws,” he writes in a recent article. “The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a citizen’s race.”
Access to vaccines is certainly a valuable benefit, one that Olson predicts would receive strict scrutiny from courts. Unless narro
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