PHOENIX – Today Attorney General Mark Brnovich submitted a petition for rulemaking to the U.S. Department of Health and Human Services (HHS) requesting that the agency adopt a rule prohibiting the issuing of medical therapies based on race or ethnicity.
This rule is critical to ensure that HHS is not violating the Equal Protection Clause, in light of its recent guidance imposing race-based criteria for allocating lifesaving COVID-19 treatments.
"This is another example of President Biden further dividing our country," said Attorney General Mark Brnovich. "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."
In December 2021, the Food and Drug Administration (FDA), an agency within HHS, updated its guidance for race-based allocation of the only monoclonal antibody (Sotrovimab) that appears to have efficacy against the omicron variant of COVID-19. While the FDA authorized Sotrovimab’s use for persons "who are at high risk for progression to severe COVID-19," it also instructed that “race or ethnicity” should be considered an independent risk factor justifying the administration of this scarce treatment.
The rulemaking that General Brnovich proposes is of utmost importance to ensure that all Americans are treated equally in the distribution of COVID-19 treatments.
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 APA allows any "interested person the right to petition for the issuance....of a rule."
Because of how the Biden administration has issued this guidance, requesting a rule is the only option the Attorney General's Office (AGO) has right now. If the administration ignores or denies this request and continues this blatant discrimination, the AGO could then file a lawsuit.
In Arizona, such discrimination could be a violation of the Arizona Civil Rights Act, and General Brnovich calls on anyone who has been a victim of such discrimination at any medical facility or pharmacy to file a civil rights complaint with our office.
Copy of petition here.
