Of all the pandemic-fighting elements in short supply, the situation with monoclonal antibodies, a potentially life-saving drug that’s effective against omicron, is particularly grim. Minnesota, a state of over five million, received fewer than 600 doses this week. There is another antibody drug that could protect immunocompromised people whose bodies would reject a vaccine—many of whom have remained on lockdown for close to two years—but it’s nearly impossible to find. By some estimates, the original number of doses ordered by the federal government covered less than one-tenth of people who demonstrated a need nationwide. All of which is to say: Across the country, there is a mad rush for a tiny number of incredibly consequential drugs.
An unexpected party is rushing in to exploit this crisis, and I’m not talking about a pharmaceutical company or health insurance firm. These dire circumstances have inspired a round of conservative legal challenges and talking points that accuse health systems of racism against white people—spearheaded by an organization led by notorious former Trump immigration adviser Stephen Miller, called America First Legal. Its legal threats have been successful enough to overturn a handful of state-level guidelines this month related to Covid-19 treatment.
Here’s how the situation unfolded: By late 2021, it was settled science that race and ethnicity are determining factors in how likely a person was to die of Covid-19, a fact reflected in federal guidelines concerning treatments. (As a reminder, most data shows people of color are at least twice as likely to die of the disease.) These guidelines, based on over a year’s worth of irrefutable evidence, made it into a few state memos in which race was described as a “risk factor,” along with a person’s health status and age, for providers to consider when deciding who is most likely to suffer severe illness and to need monoclonal antibodies.
Most of those guidelines have since been wiped: On January 17, America First Legal sued health officials in New York for what it called a “racist and illegal directive.” Citing “legal concerns,” Utah soon removed language around race and sex; Minnesota nixed a similar process around the same time. Barely a year into its existence, Miller’s post-Trump project has been most successful in framing such well-informed institutional jabs toward equity as gross violations of civil rights.
Launched in the spring of 2021, America First Legal frames itself as a sort of conservative American Civil Liberties Union, a coalition of right-wing lawyers organizing with friendly attorneys general to challenge Joe Biden’s executive overreach on a variety of issues. Just as liberal legal outfits challenged the previous administration’s border policies, the thinking went, America First would counter progressive overreach in the courts.
Just on the legal premise, there’s a false equivalence here: Where the Trump administration favored executive orders to facilitate hundreds of dubious and poorly considered policies, Biden has been unable or unwilling to use adjacent tactics to institutionalize even his most popular promises. Still, America First has found tentative success in a few state-level battles focused on perceived slights against the white race, which makes sense considering Miller’s widespread reputation as a “Waffen-SS” guy with a fondness for white nationalist memes. (Miller has explicitly bragged that the organization wouldn’t be subject to the politically correct squeamishness of major donors, freeing it to go after issues like “critical race theory” and immigration.) Over the last year, America First has challenged aid programs from both the Department of Agriculture and the Small Business Administration that provided monetary relief to people of color. As a result, pandemic-era restaurant grants are no longer prioritized according to the gender and race of the applicant, while a Texas program canceling Black farmers’ debt has been temporarily halted as the case makes its way through the courts.
But Miller’s firm may have found its ideal campaign in the issue of scarce Covid-19 treatments, a complex ethical problem prime to be oversimplified and recast. That the right is currently drawing its starkest culture-war lines around “critical race theory” and imagined pandemic-era persecution makes it an even more canny move. Unlike previous challenges, this isn’t just about suggesting white people are being passed over for material resources; it’s about suggesting the government is conspiring to let them die. (Naturally, the organization is also aggressively pursuing action over “draconian” vaccine mandates, an obvious fit for a right-wing legal outfit, if one that’s rather at odds with its current fight.)
Both the drug that is effective against omicron and the one protecting immunocompromised populations are in extremely short supply; for now, the federal government and then state-level departments determine where they will go. Nearly 400,000 doses of the latter medication have been shipped to health care providers to date, though, by some estimates, seven million people could benefit from its effects. Right now, in hospitals and health centers across the country, providers are making impossible decisions as they ration the tiny number of doses they’re allowed. In many cases, people considered “at risk” are fed into a computer system that chooses a random name, the kind of situation that provokes a lot of fear.
It’s worth remembering that there are so many other factors that contribute to whether a person even has access to these drugs than the memos sent out by their states: the availability of a nearby health care facility, for instance. Recently, a Centers for Disease Control and Prevention study found that Hispanic patients had received antibody treatments in American hospitals 58 percent less often than white patients over the last two years. As with the maternal mortality rate or staggering amputation rate for Black Americans, there are any number of intersecting forces that are making those numbers what they are.
It’s not as if the way these drugs are offered is starting from a place that’s even close to fair: In Florida, a tiny concierge clinic got more of an antibody drug than a major hospital system, and patients flew in from out of state on short notice to get access to it. But in the conservative fever dreams of Stephen Miller, state health systems are picking Black and brown patients for treatment over white ones. And unfortunately, even just that suggestion is having a tangible effect.
