New normal is the phrase used to describe our daily lives in the year 2021. Over the past year, life has been anything but normal. From the onset of the COVID-19 pandemic to the U.S. presidential election and a revitalized Black Lives Matter movement, many social structures of the United States have been rattled to their core. Although the tumultuous year has been far from enjoyable, the repercussions of these historic events may lead to positive change in the social structures in the United States.
While calls for “defunding the police” and “counting every vote” have inspired a new wave of social movements, the COVID-19 pandemic rages on. The pandemic has exposed the harsh reality of health inequalities in the United States. New Jersey has recognized these inequalities and developed interventions aimed at addressing the inequitable impact COVID-19 has had on minority groups.
At the time of this writing, the virus has claimed the lives of nearly 600,000 Americans and infected more than 33 million.1 A disproportionate number of those deceased and infected are people of color.2 New Jersey has been one of the hardest hit states with more than 22,000 deaths and almost 840,000 confirmed cases.3 As a result, the New Jersey Department of Health has implemented a number of interventions to combat the strain of COVID-19. These interventions include the Allocation of Scarce Resources Plan4 and most recently, the COVID-19 Vaccination Plan.5
The New Jersey Department of Health’s interventions in combating COVID-19 show that COVID-19 has heightened awareness of health inequalities and prompted the State to implement interventions based the antisubordination principle. After a brief overview of racial health disparities and how they relate to COVID-19, this paper discusses Reva Siegel’s article “Equity Talks: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown” and the theory of antisubordination is expanded. Then, New Jersey’s transition from race-blind to race-conscious interventions and the New Jersey COVID-19 Vaccination Plan are discussed, as well as how the metrics used in the plan reinforce the antisubordination principle.
COVID-19 Has Disproportionately Impacted Minority Groups
To better appreciate the relationship between the metrics used in the Vaccination Plan and the inequities the plan wishes to address, an understanding of health disparities is needed. The pervasive health inequities present in society have led to COVID-19 infecting and killing people of color at a higher rate than whites.2 Bias in healthcare, as well as in the aspects of society that make up the social determinants of health, has created these health inequities.6 They result in higher rates of comorbidities that make people susceptible to COVID-19. To address the issue of health inequality, the inequalities that exist and where they came from must be understood.
Inequalities Are an Indictment of the World’s Most Complex Health System
In the article “Black Health Matters: Disparity, Community Health and Interest Convergence,” Professor Mary Crossley from the University of Pittsburgh School of Law discussed how deeply embedded racial disparities are in the United States.6 Crossley described racial health disparities as “pervasive, pernicious, pricey, and persistent.”7 This assumption is reinforced by data Crossley cited in developing her position that the health of black Americans affects all Americans; thus, reducing disparities improves overall health.6 Crossley noted that, according to the March of Dimes Fact Sheet (2015) at birth black babies are significantly more likely to be underweight and die before their first birthdays, when compared to white babies.6 Furthermore, Crossley noted that the average life expectancy of a black person is four years less than the average white person, according to the Centers for Disease Control and Prevention (CDC) Division of Vital Statistics, United States Life Tables (2014).6 Crossley also cited an article from the Journal of American Medicine (2015), which states, “Black individuals have earlier onset of multiple illnesses, greater severity and more rapid progression of diseases, higher levels of comorbidity and impairment through the life course, and increased mortality rates.”8 Crossley mentioned only some of the many examples of racial health disparities. Nevertheless, they serve as damning indictments of the U.S. healthcare system and require redress in some form.
The Social Determinants of Health Create Inequality
Health disparities come from the laws and societal structures that traditionally foster other disparities. Though science and medicine have long attempted to identify biological factors to explain the differences in health between blacks and whites, studies controlling for only non-biological factors provide support that indicates such factors, such as the social determinants of health, are the cause of such disparities.9
“The average health of people of color has suffered due to the historic disparities in these determinants.”
At the core of health inequality are the social determinants of health, and to decrease health inequality, they must be addressed. The social determinants of health as defined by the U.S. Department of Health and Human Services are economic stability, education and access and quality, healthcare access and quality, neighborhood and built environment, and social and community context.10 Generally speaking, the social determinants of health are an individual’s employment, residence, education and socioeconomic status. The average health of people of color has suffered due to the historic disparities in these determinants. Crossley notes that “[l]ower incomes, less schooling, higher unemployment and residential segregation in poorer neighborhoods all contribute to Blacks’ poorer health.”8 All of these aspects of society have threads of racial bias running through them and are exposed in the health of the disparaged population. To address health inequality, the social determinants of health must be addressed.
Individual Bias, Portrayed or Perceived, Negatively Impacts Health
In addition to the social determinants of health, individual bias also plays a role in racial health disparities. A study conducted in 2016 found that half of white medical residents surveyed believed in biological differences between blacks and whites, which contributed to bias in conducting pain assessments.11 This is only one example of racial bias in the healthcare setting, but it exposes an imbedded issue in the education of healthcare workers. Additionally, there is the impact that perceived bias has on individuals within a disparaged group. Studies have shown that living in a country that accepts racial discrimination contributes to chronic stress.11 This chronic stress increases the risk of developing a number of comorbid conditions, such as heart disease, which have long-term impacts on a person’s health.12 Bias, expressed and experienced at the individual level, continues to undermine the health of minority groups in the United States. This bias results in conditions that make groups and individuals more susceptible to diseases such as COVID-19.
Racial Inequality Meets Pandemic
The full impact of the social determinants of health and racial bias in healthcare can be gleaned from the increased rates of chronic illness in minority populations. Chronic illnesses are the most common comorbidities. Racial and ethnic minority groups are 1.5 to 2.0 times more likely to suffer from chronic illness than whites.13 Additionally, black, middle-aged men are most at risk for developing multiple, chronic illnesses or comorbidities.14 The presence of comorbidities make it harder to fight off additional diseases. This higher rate of comorbid conditions that makes minority groups more vulnerable to COVID-19.
“Information on the rates of comorbidities is critical in understanding the impact COVID-19 has had on communities of color.”
Information on the rates of comorbidities is critical in understanding the impact COVID-19 has had on communities of color. According to the National Academies of Sciences, Engineering and Medicine (NASEM), people with underlying comorbidities are 6 times more likely to be hospitalized and 12 times more likely to die due to COVID-19.2 Due to the higher prevalence of chronic illness in minority communities, the impact of COVID-19 has been devastating. As noted by NASEM, when compared to the general population, black individuals are 2.6 times more likely to contract COVID-19 and are 4.7 times more likely to be hospitalized due to the virus. This contributes to a death rate among black individuals that is 2.1 times higher than that among white individuals.2 This data highlights the disparities in health between whites and communities of color.
The existing health disparities in the United States stem from its history of racism. This racism has created a society where minority groups are more likely to develop comorbid conditions. Comorbidities place those groups at a greater risk of suffering severe health problems related to viruses and diseases like COVID-19. The disproportionate health outcomes between different racial groups must be considered in distributing the COVID-19 vaccine and must be addressed as the United States healthcare system continues to evolve.
An Antisubordination Perspective
Recognizing race is necessary in addressing health inequality and doing so adopts an antisubordination approach that helps remedy existing health disparities. Using antisubordination principles, laws and policies can be tailored to address the needs of communities that have been historically disparaged. The disproportionate impact of COVID-19 on communities of color is clear evidence of the need to develop interventions aimed at narrowing those disparities.
A number of principles inform policies constructed under the Equal Protections Clause of the 14th Amendment. In research that will be discussed later in this article, Professor Reva Siegel highlighted three of these principles: the anticlassification principle, the antisubordination principle and the antibalkanization principle. Based on these principles, the Justices of the Supreme Court and academics view laws and policies directed at addressing racial disparities, particularly challenges under the Equal Protections Clause. Of the three principles, the antisubordination principle recognizes the history of discrimination in the United States and allows for interventions to address those inequalities. Thus, the antisubordination principle offers the best way to remedy health inequalities.
Constructing an approach for effective social change requires understanding how these principles developed. In the article “Equality Talks: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown,”15 Siegel discussed two of the major principles in equal protections analysis: the anticlassification principle and the antisubordination principle. In a subsequent article, “From Colorblindness to Antibalkanization,”16 Siegel outlined a third principle, the antibalkanization principle. These principles are not rules that fit directly into how the Supreme Court has decided equal protection cases, but they help frame the considerations taken by the Court and aid in academic discussions about how the law should approach these issues.
Anticlassification Is Race Blind and Fails to Address Inequality
Under the anticlassification principle, there is a commitment to enforcing race-blind laws and protect individuals against all forms of racial classification.15 The Supreme Court has largely adhered to this principle when deciding equal protections cases since Brown v. Board of Education.17 Although this method has remained the primary principle in equal protections analysis, the principle falls short in addressing inequality. Siegel explained in “Equality Talks” that anticlassification developed as a principle to calm resentment in the wake of the Brown v. Board of Education decision.15 Since the Brown decision, conservative Justices on the Supreme Court have adopted the anticlassification principle to invalidate policies that adopt any use of race, regardless of the ameliorative impact that policy may have on addressing inequality.16
The anticlassification principle is the primary, but not the only, principle of consideration in the Supreme Court’s equal protections analysis. In the 1970s, a series of cases established the Equal Protections Clause to defend against all uses, even benign uses, of race.16 However, as Siegel pointed out, the Court considers aspects of all three principles in ruling in equal protections cases—specifically, in Grutter v. Bollinger18—where the Court uses the anticlassification principle to hide the more lenient antisubordination principle and acknowledge an interest in promoting diversity.15 Thus, although the anticlassification principle is the primary principle used by the Supreme Court, it is not the only principle in play.
Although sound in justiciability, the anticlassification principle is limited by its inability to promote meaningful social change. Anticlassification focuses on the rights of individuals and not the negative impacts neutral laws have on disparaged groups.15 This interpretation uses the Equal Protections Clause to restrict programs that use race to ameliorate disparity out of fear that any use of race may put other individuals at a disadvantage. This applies to the benign uses of race, which are seen as a proxy for race.15 The anticlassification principle excludes all uses of race, even if that use is to remedy past discrimination. By remaining blind to race, the anticlassification principle is ill suited to reduce existing inequalities.
The Antibalkanization Principle Remains Complacent
Antibalkanization draws on the antisubordination and anticlassification principles in an attempt to promote social equality, without threatening social cohesion. In decisions since Brown, the Supreme Court Justices who cast the deciding vote in equal protections cases sided with the anticlassification wing of the Court. However, their reasoning was not influenced by the use of race alone. These central Justices did so out of fear that uses of race to ameliorate discrimination would cause more harm than good.16 As Siegel explained in “From Color Blindness to Antibalkanization,” under the antibalkanization principle, government may allow for race to be used in a way that maintains social cohesion but joins with anticlassification ideals in limiting uses of race to maintain individual rights. If any uses of race place the rights of one group over another in a way deemed threatening to social cohesion, then the antibalkanization perspective opposes that measure. Thus, under the antibalkanization principle, even the benign use of race is suspect if individuals feel threatened by it.16
Similar to the anticlassification principle, the antibalkanization principle embraces policies that do not do enough to ameliorate discrimination. As the primary concern of antibalkanization is maintaining social cohesion, the principle is limited in ameliorating societal problems. In a society where the powerful social groups have long benefited from disparaging minority groups, those in power will protest any threat to that system. If the goal of antibalkanization is to prevent resentment from a non-benefiting group, under the antibalkanization principle the law and government are powerless from addressing the systemic inequality in the United States. By focusing on concerns about social cohesion and limiting the use of race in interventions to address inequality affirmatively, the antibalkanization principle expresses complacency with the current amount of discrimination in society.
Antisubordination Promotes Race Consciousness That Remedies Inequality
“Under the antisubordination principle, the past mistreatment of groups should force the government to treat these groups differently to account for past discrimination.”
Under the antisubordination approach, any attempt by government to enforce the inferiority of a disparaged group should be considered a violation of the Equal Protections Clause. This approach is race conscious and allows for specific and expressed uses of race to ameliorate past discrimination. Under the antisubordination principle, the past mistreatment of groups should force the government to treat these groups differently to account for past discrimination.
This principle was evident in the original ruling of Brown v. Board of Education.15 In Brown, the Court used social science factors to decide that separate was not equal, and that the government’s use of race to promote the sense of inferiority violated the Equal Protections Clause.17 This recognition of social harm and the classification itself risked such a severe reaction from traditionally powerful groups that the Court had to walk back the language to comply with an anticlassification approach in later opinions.15 Although the antisubordination principle is not the prevailing principle in equal protections analysis, it remains the most progressive.
The legal ground on which antisubordination sits is fertile, but it has not been plentiful. Despite the Supreme Court adhering to anticlassification in analyzing challenges under the Equal Protections Clause, the Grutter ruling is a reminder that antisubordination influences can continue to infiltrate rulings decided on the anticlassification principle.15 Additionally, the antisubordination principle has not always been relegated to the background of opinions. In addition to the Court’s original Brown decision, there are cases in which the antisubordination principles was upheld. Before the Regents of University of California v. Bakke decision,19 which set the modern equal protections framework, the Supreme Court ruled in Swann v. Charlotte-Mecklenburg Board of Education that use of race to address segregation was permissible under the Equal Protections Clause.20 Although precedent has steered the Court in the anticlassification direction, Swann remains on the books and gives hope that an antisubordination approach to addressing inequalities can be achieved.
As the antisubordination principle recognizes disparities, it offers the best opportunity to address racial inequalities. Therefore, this principle of equal protections analysis is critical in understanding how to construct policies that address racial inequality. In Siegel’s discussion of the antisubordination principle, she explained that unlike the other two principles in equal protections analysis, antisubordination supports even benign uses of race to address past discrimination. By recognizing the disparities that exist based on race, the antisubordination theory is race conscious and promotes interventions that address those inequalities.
New Jersey Moves from Race Blind to Race Conscious
Being race blind when there is pre-existing inequality exacerbates that inequality. The New Jersey Department of Health’s most recent interventions reflect the antisubordination principle. Moving from an anticlassification intervention to antisubordination interventions has a greater impact on inequality. The New Jersey Department of Health’s first intervention to combat COVID-19 took an anticlassification approach to allocating scarce resources. The recent Vaccination Plan takes an antisubordination approach by recognizing health disparities. The Allocation of Critical Care Resources During a Public Health Emergency Policy (Allocation Policy)21 was intentionally blind to race to remain fair in preserving lives. The Vaccination Plan22 adopted by the New Jersey Department of Health recognizes the disparities that exist in society and addresses them. Thus, the interventions to address COVID-19 have evolved from an anticlassification to an antisubordination approach and, therefore, better address inequality.
The Race-Blind Allocation Policy
At the onset of the pandemic, healthcare facilities in New Jersey were inundated with patients with COVID-19.23 In response, the New Jersey Department of Health issued the Allocation Policy. This policy set guidelines for allocating scarce medical resources in the event healthcare facilities could not keep up with patient demand. The guidance permitted healthcare facilities to allocate critical medical equipment, such as ventilators and hospital beds, to patients based on their expected chance of survival.4
Under the Allocation Policy, a patient’s chance of survival was determined based on a number of factors, including age, but primarily the patient’s Sequential Organ Failure Assessment (SOFA) score.4 The SOFA score is a metric used in medicine to determine likelihood of patient survival, and it takes into account comorbidities.24 The SOFA score was touted by the State as being blind to race,23 as it does not consider a patient’s education, socioeconomic status or any criteria other than biological health factors. The goal of this framework was to maximize the number of life years saved by allocating medical resources to those who would benefit the most (measured in Quality Adjusted Life Years).4
By remaining race neutral, the Allocation Policy adhered to the anticlassification principle. The claim by the New Jersey Department of Health that the Allocation Policy was fair drew on the idea that race was not a consideration. There was skepticism, however, regarding the actual effectiveness of achieving the desired fairness—specifically, that the use of the SOFA score, as a method of allocation, negatively impacted people of color given the higher rates of comorbidities in that community.25 As the criteria used to allocate critical medical resources drew on comorbidities, and because people of color, specifically black individuals, have a higher rate of comorbid conditions,2 the Allocation Policy worked to exacerbate existing inequality.
Recognizing Health Inequalities
Unlike the Allocation Policy, the Vaccination Plan draws on medical data to construct interventions that aim to ameliorate existing discrimination. The plan incorporates data from the National Academy of Science, Engineering and Medicine’s Ethical Framework for COVID-19 Vaccination2 as well as the COVID-19 Community Vulnerability Index26 and the CDC’s Social Vulnerability Framework27 to inform the vaccine distribution. The data take into account the populations and groups who are most vulnerable to COVID-19 and prioritizes those groups for receiving the vaccine.22 Based on the data, people of color are more likely to be deemed vulnerable and, thus, are more likely to receive the vaccine before the general population. By taking into account evidence that reflects racial health disparities, the Vaccination Plan adheres to antisubordination principles and serves to remedy those inequalities.
The race-conscious methods used by the Vaccination Plan reduce health inequality more effectively than the race-blind approach in the Allocation Policy. By recognizing racial disparities, the New Jersey Department of Health recognized the disparities that exist in society, as opposed to exacerbating them. Thus, this race-conscious approach to allocating the vaccine is more likely to achieve the fair result the State wishes to achieve in combating the COVID-19 pandemic.
The Factors Used in the Vaccination Plan Recognize Express Antisubordination
Nationally and in New Jersey, the focus shifted from treating the initial surge of patients with COVID-19 to focusing on distributing a vaccine. According to Dr. Anthony Fauci, to return to normal there will need to be broad acceptance of masking, social distancing and inoculation through vaccine.28
At the time of this writing, three COVID-19 vaccines are authorized in the United States.
Pfizer-BioNTech Vaccine: On December 11, 2020, the U.S. Food and Drug Administration (FDA) issued an emergency use authorization for this vaccine. In clinical trials, the Pfizer-BioNTech vaccine was 95 percent effective at preventing laboratory-confirmed COVID-19 illness in people without evidence of previous infection. The Pfizer-BioNTech vaccine is recommended for people age 12 years and older.29
Moderna Vaccine: On December 18, 2020, the FDA issued an emergency use authorization for the second vaccine for the prevention of COVID-19. In clinical trials, the Moderna vaccine was 94.1 percent effective at preventing laboratory-confirmed COVID-19 illness in people who received two doses who had no evidence of being previously infected. The Moderna vaccine is recommended for people age 18 years and older.30
Johnson & Johnson Vaccine: On February 27, 2021, the FDA issued an emergency use authorization for this single-dose vaccine to prevent COVID-19 in individuals 18 years of age and older. In clinical trials, the Johnson & Johnson vaccine was 66.3 percent effective at preventing laboratory-confirmed COVID-19 illness in people who had no evidence of previous infection two weeks after receiving the vaccine. The J&J vaccine is recommended for people age 18 years and older.31
Based on the need to allocate the limited supply of vaccine in the most effective way, the New Jersey Department of Health developed the Vaccination Plan. The plan is aimed at allocating the vaccines in a way that provides equitable access to all those who live and work in New Jersey, as well as achieves the most community protection.22
“By applying data that indicate health inequities to allocation of the vaccine, the Vaccination Plan adhered to the antisubordination principle and aimed to reduce the inequality exposed by COVID-19.”
The Vaccination Plan adheres to the antisubordination principle by implementing benign uses of race to allocate the COVID-19 vaccine. Factors that indicate racial health disparity constitute uses of race that are rejected by the antibalkanization and anticlassification principles.16 The plan explicitly aims to address racial health inequalities and does so by using data to address disparities that result from bias in society.22 The Vaccination Plan allocated vaccines in a three-phase approach. This discussion focuses on Phase 1B: the criteria for allocation and subsequently, the factors considered within those criteria. The equitable allocation of a vaccine in Phase 1 was critical in addressing the disproportionate impact COVID-19 has on people of color. By applying data that indicate health inequities to allocation of the vaccine, the Vaccination Plan adhered to the antisubordination principle and aimed to reduce the inequality exposed by COVID-19.
People at Risk for Severe Illness and Essential Workers
The Vaccination Plan had three phases, but for addressing inequities, only the first phase is relevant. (The subsequent phases outline the allocation of vaccine in addressing issues related to dispersing vaccine when ample supply became available, as well as issues related to public uptake of the vaccine.) Phase 1 had two sub-phases, Phase 1A and Phase 1B. Phase 1A designated the very first tranche of vaccine to front-line healthcare workers treating patients with COVID-19. Phase 1B expanded allocation to include “people of higher risk of severe COVID-19 illness” and “other essential workers.”22 The phrasing of the allocation is important. On the face, the allocation appears to be blind to race. However, the criteria used to determine “people of higher risk of severe COVID-19 illness” was supported by data from NASEM that highlight the racial health disparities that exist due to a history of systemic racism in healthcare.32
The New Jersey Vaccination Plan used the same criteria as the CDC to determine who and what groups are at higher risk of severe COVID-19. These criteria were used to allocate the early phases of vaccine.22 Under the CDC criteria, those who are 65 years of age or older, or those with cancer, chronic kidney disease, chronic obstructive pulmonary disease (COPD), Down syndrome, heart disease, immunocompromised state from solid organ transplant, obesity, severe obesity, pregnancy, sickle cell disease, smoking or type 2 diabetes were considered at higher risk of severe COVID-19. Those who have more than one of these conditions are at exponentially higher risk of severe illness due to COVID-19.33
In prioritizing distribution of the vaccine to people who have a higher risk of severe illness, New Jersey recognized existing disparities and intervened to reduce those disparities. According to the CDC, chronic medical conditions are found to put individuals at a higher risk of severe illness due to COVID-19.33 In the United States, people of color are 1.5 to 2.0 times more likely to develop a chronic illness.13 Additionally, middle-aged, black men are the group most at risk of developing multiple chronic illnesses,14 which the CDC has indicated exponentially increases a person’s risk of severe illness due to COVID-19.33 Thus, although in the allocation of vaccine this factor was not explicitly based on race, the criteria used to substantiate the factor were race conscious and helped protect those who have suffered due to that inequality.
Issues of inequality exposed by COVID-19 were also addressed in the second eligible group in Phase IB of the Vaccination Plan. Phase 1B included those who work in essential positions outside direct healthcare.22 Research NASEM conducted to develop their equitable allocation plan showed that in urban areas like New York City the majority of front-line essential workers are people of color.34 Therefore, again, allocating vaccine to those put at risk due to the nature of their employment is a critical social determinant of health and a way to indirectly address racial health disparities.
Equitable Factors Considered
In addition to the criteria specifying the allocation groups for Phase 1B, the Vaccination Plan outlines additional factors in allocating vaccine in this phase that contribute to equitably distributing the vaccine. These equitable factors, drawn from the Framework for Equitable Allocation of COVID-19 Vaccine (the NASEM plan), include:
- Risk of acquiring infection
- Risk of severe morbidity and mortality
- Risk of negative societal impact
- Risk of transmitting the disease to others.2
In addition to the factors included in the NASEM plan, the Vaccination Plan considers the Social Vulnerability Index of Residence Location developed by the CDC.35 All of these factors use race to some extent to address health inequalities.
“Although this factor does not on its face indicate race, the NASEM plan discusses in the description of these equitable factors that minority groups are at a higher risk of acquiring COVID-19.”
In taking into account the risk of acquiring infection, the Vaccination Plan gave higher priority to those who had a greater probability of contracting COVID-19. Although this factor does not on its face indicate race, the NASEM plan discusses in the description of these equitable factors that minority groups are at a higher risk of acquiring COVID-19. The black population has a case rate 2.6 times that of the non-Hispanic white population. Furthermore, Hispanics/Latinx have a case rate 2.8 times that of non-Hispanic whites.2 This factor aims at addressing the gap in acquiring the disease. By addressing the disparity, the factor takes race into account. Recognition of the disparity, and use of race to address it, follows the antisubordination principle.
The factor taking into account the risk of severe morbidity and mortality draws on similar criteria as those most at risk of severe illness due to COVID-19. According to the NASEM plan, severe morbidity and mortality relate to “individuals who have a greater probability of severe disease or death if they acquire infection.”2 This factor is supported in the NASEM plan with data indicating that blacks are more than four times as likely to be hospitalized and more than twice as likely to die as a result of COVID-19. Furthermore, non-white Hispanics are more than 4 times as likely to be hospitalized and 10 percent more likely to die as a result of COVID-19 than Whites.2 The existing disparities in the impact of COVID-19 are used to allocate early allotments of vaccine to help remedy those disparities.
The next equitable factor used to guide the allocation of vaccine in Phase 1B was the risk of negative societal impact.22 According to the Vaccination Plan, negative societal impact is determined based on “societal function and upon whom other people’s lives and livelihood depend directly and would be imperiled if they fell ill.”36 This factor relates to the front-line workers—individuals with jobs that society needs performed to survive. The Vaccination Plan states that this factor “does not consider their wealth or income, or how readily an individual could be replaced in a work setting, given labor market conditions.”36 This reiterates the focus of allocating vaccine to other essential workers who traditionally have been represented by people of color.2 The allocation based on occupation directly addresses the social determinants of health, which is key to reducing health inequality.
Another factor the Vaccination Plan pulls from the NASEM plan is the risk of transmitting disease to others.22 According to the NASEM description for this factor, the consideration relates to those working in essential roles and have high exposure to others in their community.2 Those who work in grocery stores, transit or other areas where human contact cannot be avoided but is necessary for society are included in this factor. Thus, again, this directly addresses some of the social determinants of health that have resulted in the present disparities in health.
The final equitable factor the Vaccination Plan incorporated into Phase 1B allocation was the CDC’s Social Vulnerability Index of Residence Location (Vulnerability Index). This index considers such factors as, social determinants of health, indicators of access, infection transmission and increased risk of adverse COVID-19 symptoms.35 According to the CDC, the domains that form the basis of the Vulnerability Index are 1) socioeconomic status, 2) household composition and disability, 3) minority status and language and 4) housing and transportation.27 These criteria mirror the social determinants of health, which have historically explained the gap in health equality among races. This is the only factor in Phase 1B of the Vaccination Plan that specifically uses race as a subfactor, thus, adhering to the Vaccination Plan’s aim to reduce health inequalities by promoting equitable allocation of vaccine.22
These factors construct an intervention that adheres to the antisubordination principle through distributing a life-saving vaccine to the populations who have suffered the most due to COVID-19. Under the Vulnerability Index, the Vaccination Plan adopted a subfactor that specifically references race to remedy past and present inequality. The use of race this way falls in line with antisubordination by considering past discriminatory practices and tailoring remedies to address those inequalities. The Vaccination Plan allocated vaccine to groups that need it most and draws on criteria that understand the history of discrimination. 22
The New Jersey Department of Health interventions have evolved from an anticlassification approach to an antisubordination approach; thus the Department has adopted the best way to address racial health disparities. The Allocation Policy instituted by the New Jersey Department of Health followed the anticlassification principle, which was blind to race. By being blind to race, this policy only exacerbated the existing inequalities in healthcare. These existing inequalities in healthcare have been constructed by the racism and bias grounded in the U.S. healthcare system, as well as in the social determinants of health. In creating a vaccine allocation plan that draws on data that indicate health inequalities, the New Jersey Department of Health has adopted an antisubordination approach to addressing these inequalities. This approach remains the best method for creating policies aimed at reducing health inequalities because it recognizes the history of inequality and takes affirmative actions to remedy that inequality.
Applying the data developed from the COVID-19 pandemic presents an opportunity to address issues of health inequality on a larger scale. Governments may use the clear data on race to derive metrics that account for race more appropriately. Although the COVID-19 pandemic has been a cataclysmic event, the recovery efforts offer an opportunity to reconstruct interventions aimed at remedying racial health disparities. The hope is that the “new normal” is a healthier future for everyone regardless of race.