Instructions

Please read the following scenario carefully. After you identify the facts, respond to the questions at the end of the scenario. Please make sure to address all parts of the protocol presented. Additionally, do not forget to utilize relevant case law to justify and explain your arguments.

Hypothetical

The year is 2029 and a new strain of a deadly airborne coronavirus, COVID-29, has appeared throughout the world. In the first month after COVID-29 reaches the United States an estimated 50,000 people have died. An additional 500,000 people are infected and are inundating hospitals throughout the country seeking treatment.

Persons infected by COVID-29 can be effectively treated, with an antiviral drug called Curasin, so long as they receive the drug within 36 hours of first appearance of symptoms. Moreover, the same company that manufactures Curasin has announced the development of a COVID-29 vaccine that, once administered, protects the person vaccinated for a ten-year period. The vaccine appears to be highly effective for all segments of the population.

There are two significant problems, however, with implementing an immediate vaccination program for the entire U.S. population. First, because the vaccine is new and because it is both expensive and time-consuming to produce, there are currently only 5 million doses of the vaccine available. Despite the intention of the federal government to drastically ramp up production of the vaccine, it is anticipated that for at least the next year, no more than 10 million doses of the vaccine can be produced every month. The upshot is that, optimistically, only 40 to 50 percent of the United States residents can be effectively vaccinated within the year.

Second, it appears that not all populations are similarly vulnerable to COVID-29. For reasons that scientists cannot yet fully explain, African Americans are 15% more likely to die from the virus than whites. Latinx also seem to have a somewhat higher mortality rate than whites, although given the variation in racial make-up within the latinx population, the evidence with respect to their enhanced vulnerability is less conclusive.

Differences in mortality rates exist between males and females as well. It appears that males are 18% more likely to die from the virus than are females.
Children under the age of 13 are 25% more vulnerable to the virus than adults. The elderly are also more vulnerable to the virus than the general population, although the differences between old persons and young persons appear to correspond directly to the general health of the individual involved.

In light of this ongoing crisis, the White House, in consultation with the Center for Disease Control (the CDC), has decided to develop a strict protocol for dispensing the Curasin vaccine. The draft protocol is as follows:
1)    The CDCs first priority will be to vaccinate all children under the age of 13, starting with those living in densely populated metropolitan areas that so far have been the epicenter of virus transmission, and fanning outward to children living in less populated, rural areas,
2)    The CDCs second priority will be to vaccinate all adult males under the age of 50, again starting with males living in densely populated areas and fanning out to males living in less populated, rural areas.
3)    The CDCs third priority will be to vaccinate all adult African American females under the age of 50, with the same geographical prioritization.
4)    The CDCs fourth priority will be to vaccinate all remaining adult females under the age of 50, with the same geographical prioritization.
5)    All remaining adult U.S. citizens will then be vaccinated, starting with 50-year-old adults and advancing progressively up the age ladder.
6)    Only after all U.S. citizens have been vaccinated will the CDC vaccinate legal resident non-citizens, using the same demographic protocol as has been developed for U.S. citizens. Undocumented immigrants will receive the vaccine only after all other segments of the population have been immunized and supplies of the vaccine have stabilized.
7)    Throughout the administration of this vaccination protocol, the Curasin antiviral (of which there is an ample supply) will continue to be made available to all persons infected by COVID-29 based solely on the judgment of on-the-scene medical personnel, and without regard to age, gender, geography, or citizenship.

You are the Assistant to White House Counsel and are asked to prepare a memorandum for the President. Specifically, the President wants to know whether any of the provisions of the proposed protocol violate the Equal Protection Clause of the 14th Amendment (recall that, through a process of reverse incorporation, the Equal Protection applies to the federal government as well as the states).
Please make sure to support all conclusions with reasoning and, where possible, case law. In addition, please make sure to examine both sides of any argument you make, and feel free to suggest changes (addition, removal or modification of provisions) to the protocol that will cure it of potential constitutional problems.