Commissioners Gail Heriot and Peter Kirsanow of the U.S. Commission on Civil Rights recently wrote Veterans Affairs Secretary Robert Wilkie regarding the VA’s announcement of its initial plans for the distribution of a COVID-19 vaccine. The VA had indicated that it would prioritize Black, Hispanic, Native American, and Asian veterans in this distribution because these “communities have been disproportionately affected by COVID-19.”
After acknowledging that it was both “reasonable and prudent” of the VA to prioritize our nation’s most susceptible citizens—including the elderly and those with existing health problems—Commissioners Heriot and Kirsanow expressed their concern that the VA’s decision to distribute the vaccine partly based on race might create a constitutional equal protection problem. Specifically, the Commissioners said that if the distribution was challenged, then the reviewing court would apply a strict scrutiny test and the VA would need to show that the policy fulfills a compelling purpose and is narrowly tailored to achieve that purpose. The Commissioners noted that “if factors like age, diabetic status, or geographic areas at which outbreaks are most serious are more significant than race and yet are not given full priority over race, that, too, could make the [vaccine distribution] plan vulnerable.”
The VA has since changed its website and now writes that it will prioritize those at high risk of severe illness or death based on several other factors, including age, existing health problems, and living in a nursing home or other group-living facility. The website no longer mentions race and ethnicity.
But advocacy of vaccine distribution based on race is not confined to the VA. On November 23, Dr. Kathleen Dooling presented the findings of a study published in the Morbidity and Mortality Weekly Report to the CDC’s Advisory Committee on Immunization Practices (ACIP). Authored by several public-health professionals, including some ACIP members, the study applied ethical principles to the four potential candidate groups for the initial vaccine allocation: (1) healthcare personnel; (2) other essential workers; (3) adults with high-risk medical conditions; and (4) adults aged 65 years and older. The study determined that early distribution to essential workers would be most beneficial in “mitigat[ing] health inequities” because “[r]acial and ethnic minority groups are disproportionately represented in many essential industries.” The study found that early distribution to the elderly, however, would be less beneficial in that mitigation because “racial and ethnic minority groups are underrepresented among adults aged 65 years [and older].”
The study mirrors language used by several public-health professionals who have advocated using the vaccine as a method to “reduce health inequities.” Dr. Peter Szilagyi, an ACIP member, said that ethics “favors the essential worker group because of the high proportion of minority, low-income and low-education workers among essential workers.” And Professor Marc Lipsitch of Harvard’s T. H. Chan School of Public Health argued that if governments do choose to prioritize essential workers in early distribution, then teachers should not be considered essential because they “have middle-class salaries, are very often white, and they have college degrees.”
If individual states and government agencies determine to use racially based vaccine distribution plans similar to those advocated by some ACIP members and other public-health professionals, then constitutional equal protection claims will likely follow.
 Letter from Gail Heriot and Peter Kirsanow, Commissioners, U.S. Commission on Civil Rights, to Robert Wilkie, Secretary, U.S. Department of Veterans Affairs (Dec. 15, 2020), available at http://www.newamericancivilrightsproject.org/wp-content/uploads/2020/12/Letter-to-Secretary-Wilkie-12.15.2020.pdf.
 COVID-19 Vaccines at VA, Dep’t of Veterans Aff. (Dec. 11, 2020), https://web.archive.org/web/20201211013217/https://www.va.gov/health-care/covid-19-vaccine/.
 Letter, supra note 1.
 Centers for Disease Control and Prevention (CDC), November 2020 ACIP Meeting - Phased Allocation of COVID-19 Vaccines, YouTube (Dec. 1, 2020), https://www.youtube.com/watch?v=yF_3ALxYjv4; Kathleen Dooling, Phased Allocation of COVID-19 Vaccines (ACIP Meeting, Nov. 23, 2020), https://www.cdc.gov/vaccines/acip/meetings/downloads/slides-2020-11/COVID-04-Dooling.pdf.
 Nancy McClung et al., The Advisory Committee on Immunization Practices’ Ethical Principles for Allocating Initial Supplies of COVID-19 Vaccine — United States, 2020, 69 Morbidity and Mortality Wkly. Rep. 1782, 1784 (2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6947e3-H.pdf.
 Abby Goodnough & Jan Hoffman, The Elderly vs. Essential Workers: Who Should Get the Coronavirus Vaccine First?, N.Y. Times, Dec. 5, 2020, https://www.nytimes.com/2020/12/05/health/covid-vaccine-first.html.