NEW YORK (WETM) – A Cornell Law professor is filing a federal lawsuit challenging the constitutionality of New York State’s guidelines to prioritize “non-white” individuals for the COVID-19 anti-viral pill.

In late December, the New York State Department of Health announced the distribution of the new COVID-19 anti-viral pill, but because of a limited supply, distribution guidance called for prioritization to high-risk individuals. Included in the prioritization were those that are non-white.

This week, on behalf of those that are not “non-white,” Cornell Law Professor William A. Jacobson filed a lawsuit in a Southern Tier district court against the New York State Department of Health Commissioner, claiming, “New York’s use of racial preferences in the distribution of COVID-19 treatments is unconstitutional.”

“The fact that based on race, you have made it harder for one race to get it than another is a constitutional violation,” said Professor Jacobson.

The New York State Health Department cites “longstanding systemic health and social inequities,” contributing to an increased risk of severe illness and death for non-whites. Studies from the CDC show Black and Hispanic communities are at a higher risk for COVID-19 infections, hospitalizations, and deaths, compared to white communities.

But, Professor Jacobson, says studies from these studies by the CDC are irrelevant to his case.

“Those studies really are not applicable, because those are groups… Each individual in this country and in this state is entitled individually, to equal protection of the laws,” said Jacobson.

In the complaint, Jacobson accuses the NYDOH of violating the 14th Amendment, by “discriminating on account of race in determining eligibility for COVID-19 oral antiviral treatments.” The lawsuit seeks to prohibit the state from enforcing these guidelines.

“This lawsuit is about this health directive, by this health department in this state. It’s not trying to prove some bigger societal point,” said Jacobson.