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FIRST ON FOX: The health departments in Utah and Minnesota are facing potential lawsuits after they issued guidance using race and ethnicity as factors in prioritizing distribution of coronavirus treatments.

Letters sent Wednesday by America First Legal (AFL) allege that both states violated federal law through “blatant discrimination.”

Utah has published a scoring system by which it determines patients’ “risk” and eligibility for treatments. At the top of the list is “male,” “age” and “Non-White race or Hispanic/Latinx ethnicity.” Most of the various risk factors – including “other high-risk comorbidities” – receive one point while the racial/ethnic category receives two, the same amount designated for “highest-risk comorbidities” like diabetes, obesity and being severely immunocompromised.

Criteria for determining individuals’ risk and eligibility for coronavirus treatment in Utah. (

Age plays a considerable role as individuals are assigned 0.5 points for every decade they’ve been alive.


A health care worker attaches an IV infusion to a patient’s hand during a monoclonal antibody treatment in the parking lot at Wayne Health Detroit Mack Health Center in Detroit, Michigan, Dec. 23, 2021. (Emily Elconin/Bloomberg via Getty Images)

A document dated Wednesday shows Minnesota citing federal guidance from the Food and Drug Administration stating that race and ethnicity were relevant factors.

“FDA’s acknowledgment means that race and ethnicity alone, apart from other underlying health conditions, may be considered in determining a patient’s eligibility for [monoclonal antibodies].”

“It is ethically appropriate to consider whether a patient has elevated risk of poor COVID-19 outcomes and that this risk cannot be adequately addressed by determining eligibility based on underlying health conditions (perhaps due to impaired access to health care and underdiagnosis of health conditions that elevates risk of poor COVID-19 outcomes).”

Lurie Children’s hospital registered nurse Carolyn Ruyle prepares a dose of a Pfizer COVID-19 vaccine at Lurie Children’s hospital Friday, Nov. 5, 2021, in Chicago. (AP Photo/Nam Y. Huh)

AFL’s letters blasts both states, alleging that they employed an “appalling” system for determining eligibility.


“Using a patient’s skin color or ethnicity–rather than the unique and specific medical circumstances of an individual patient–as a basis for deciding who should obtain lifesaving medical treatment is appalling,” the letters read.

“The color of one’s skin is not a medical condition akin to hypertension, heart disease, or obesity, which are known to aggravate the risk of death or severe illness among those infected with COVID-19. Directing medical professionals to provide or deny medical care based on immutable characteristics like skin color, without regard to the particular health conditions of the individual patients who are seeking these life-saving antiviral treatments, is nothing more than an attempt to establish a racial hierarchy in the provision of life-saving medicine.”

President Biden speaks while joining the White House Covid-19 Response Team’s call with the National Governors Association discussing the omicron variant in the Eisenhower Executive Office Building in Washington, D.C., on Monday, Dec. 27, 2021. (Ken Cedeno/UPI/Bloomberg via Getty Images)

The Minnesota Department of Health did not immediately respond to Fox News’ request for comment. Utah’s department referred Fox News to a press release defending the racial/ethnic criteria on Tuesday.

“For those who do not automatically qualify, the risk score was developed to include other factors proven to increase risk of hospitalization and death from COVID-19,” the release reads. “Each factor in the risk score represents a condition or characteristic that has been shown to put a person at elevated risk for severe disease or hospitalization.”

Nobody automatically qualifies for treatment based on their race or ethnicity.


Wednesday’s letters touched on a growing trend of utilizing race and ethnicity in health care determinations. AFL sent a similar letter to New York’s health department, which said it would prioritize non-White individuals for certain coronavirus treatments. New Hampshire previously prioritized non-White individuals for vaccines.

AFL founder Stephen Miller, a former President Trump adviser, called the policies “racist” and an “abomination.”

“These racist policies decide questions of life and death based on skin color and must be rescinded immediately. It’s an abomination. They radically violate federal law, the United States Constitution, and the sacred principle of equal justice for all,” said Miler in a statement to Fox News Digital. “No right is safe if the government can award or deny medical care based on race. End this horrid injustice.”