Biden administration planning to prioritize race over competence in kidney transplants

Biden administration planning to prioritize race over competence in kidney transplants

The Biden administration is encouraging hospitals to focus more on what demographic they give kidney transplants to, and less on whether they perform kidney transplants successfully. It has a racial motive for this perverse policy.

The Washington Free Beacon reports:

The Biden administration unveiled a plan that would push American hospitals to prioritize low-income patients when performing kidney transplants, a move Health and Human Services secretary Xavier Becerra says is aimed at rooting out “racial inequities” in the “transplant process.”

The proposal, which Becerra’s agency announced on May 8, would place 90 of the nation’s 257 transplant hospitals into a pilot program that uses an annual point system to grade participants. Under the system, a successful kidney transplant counts as one point. A transplant furnished to a low-income patient, however, counts as 1.2 points thanks to a “health equity performance adjustment,” thus incentivizing the hospitals to prioritize such patients.

At the end of each year, those points are applied to a transplant quota. Hospitals that meet their quota receive as much as $8,000 per transplant; those that don’t may have to pay up to $2,000 per transplant.

While the proposal uses income to categorize patients rather than race, Becerra made clear that the scoring system is meant to address racial concerns. In his statement announcing the proposal, he said. “Black Americans disproportionately struggle with life-threatening kidney disease, yet they receive a smaller percentage of kidney transplants.”…

For Dr. Stanley Goldfarb, a kidney specialist, the Biden administration’s proposal attempts to sidestep the legal thorniness that would accompany making race an explicit factor in kidney transplants—while still achieving the same effect…

For Goldfarb, the incentive structure at the core of the Biden administration’s proposed equity initiative is misguided. He cited research showing that relatives of black patients are less likely to donate a kidney—often due to issues that are unrelated to finances, such as preexisting conditions. Medicare, meanwhile, covers the final stage of kidney failure for Americans of any age.

“I’m quite in favor of outreach to patients who have trouble accessing the health care system,” Goldfarb told the Free Beacon. “I’m just not sure this is the case with kidney transplants. I think it’s much more a case of patient unwillingness to pursue this and families’ unwillingness to donate kidneys.”

The Biden administration is using low income as a proxy for race, in order to discriminate against whites, which is legally problematic: “A 1978 Supreme Court case, Village of Arlington Heights v. Metropolitan Housing, held that using proxies for race to discriminate is generally as unlawful as using race itself.” And making decisions for racial reasons is generally unconstitutional, even when it involves discrimination against white people, as the Supreme Court made clear in Richmond v. J.A. Croson Co. (1989) and Students for Fair Admissions v. Harvard (2023), which struck down policies that discriminated against whits.

But despite Supreme Court rulings against using race as a proxy, liberal judges sometimes let institutions get away with using geographic or demographic characteristics as a proxy to discriminate against whites or Asians, as in the recent 2-to-1 federal appeals court ruling upholding Fairfax County’s use of various admissions criteria as proxies to discriminate against Asians.

By contrast, other judges recognize that the use of race as a proxy is presumptively unconstitutional, even when it is used to discriminate against whites — as in a decision by the Fifth Circuit Court of Appeals in Walker v. City of Mesquite (1999), saying that discriminating by census tract can be racial discrimination.

Given the division among judges, it is unclear whether a court would order the Biden administration to stop going through with its race-conscious proposal, if a white person needing a kidney sued over it. But courts should stop the Biden administration from doing this, in light of Supreme Court rulings like Richmond v. J.A. Croson Co. and Village of Arlington Heights v. Metropolitan Housing.

What the Biden administration is doing is unconstitutional, although the constitutional violation is veiled rather than blatant.

The government can give minorities a preference to remedy its own recent discrimination, if that discrimination is both systematic and intentional. But here, there is no discrimination of that sort, either by the government itself, or the organ transplant industry. The racial disparity the government cites has a non-discriminatory explanation, the one offered by Dr. Stanley Goldfarb, in the Free Beacon article. So using income as a proxy to increase the number of black transplant recipients is likely unconstitutional. (See Vitolo v. Guzman, 999 F.3d 353, 361-62 (6th Cir. 2021); Coral Construction v. King County, 941 F.2d 910, 919 (9th Cir. 1991);  Brunet v. City of Columbus, 1 F.3d 390, 409 (6th Cir. 1993)).

Giving organ transplants to low-income people instead of middle-class people might be dumb even apart from the racial angle. Low-income people have shorter lifespans and more health conditions on average, than middle class people, meaning that low-income people, on average, will derive fewer years of life from an organ transplant than a middle class person will.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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