1 Cite as: 600 U. S. ____ (2023)

Statement of A LITO , J. 

## SUPREME COURT OF THE UNITED STATES
JONATHAN ROBERTS, ET AL

. v. JAMES V. M C DONALD, COMMISSIONER, NEW YORK STATE DEPARTMENT OF HEALTH, ET AL

.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 22–757. Decided June 30, 2023 The petition for a writ of certiorari is denied. Statement of J USTICE A LITO , with whom J USTICE T HOMAS joins, respecting the denial of certiorari. The circumstances underlying the dispute below have long since come and gone, and I therefore agree with the Court’s decision to deny review. But I write to note that this case involves an issue of ongoing importance: whether the Equal Protection Clause permits governments to use race or ethnicity as a proxy for health risk and therefore “prioritize the treatment of patients” on that basis. Roberts

v. Bassett , 2022 WL 16936210, *3, n. 2 (CA2, Nov. 15, 2022) (Cabranes, J., concurring) (noting the “portentous legal is

sues” implicated by such policies). When “several new COVID–19 treatments for high-risk patients” were approved in late 2021, the treatments were “briefly in short supply” relative to need. Id. , at *1 (sum

mary order). New York State “instruct[ed] providers to fol

low” its guidance on “higher prio rity risk group[s]” so long as the “supply shortage persisted.” Ibid. Echoing similar guidance from the federal Centers for Disease Control and Prevention, the State’s guidance specified that “ ‘[n]on

white race or Hispanic/Latino ethnicity should be consid

ered a risk factor’ ” when prioritizing patients. Id. , at *1, *3 (alteration in original); Roberts v. Bassett , 2022 WL 785167, *2 (EDNY, Mar. 15, 2022). The State justified the use of2 ROBERTS v. M C DONALD

Statement of A LITO , J. race and ethnicity as proxies fo r health risk by appealing to

“ ‘longstanding systemic health and social inequities.’ ” Rob

erts , 2022 WL 785167, at *2. As we have stated many times and have recently reaf

firmed, the Equal Protection Clause places a “daunting” ob

stacle in the way of any government seeking to allocate benefits or burdens based on race or ethnicity, typically giv

ing way only when the measure in question is “ ‘narrowly tailored’ ”—that is, “ ‘necessary’ ”—to “remediat[e] specific, identified instances of past di scrimination that violated the Constitution or a statute.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College , 600 U. S. ___, ___ (2023) (slip op., at 15). Therefore, government ac

tors may not provide or withhold services based on race or ethnicity as a response to generalized discrimination or as a convenient or rough proxy for another trait that the gov

ernment believes to be “ ‘characteristic’ ” of a racial or ethnic
group. Id. , at ___ (slip op., at 20). Under that precedent, New York’s general reference to “longstanding systemic health and social inequities” would not have sufficed to allow the State to deny a person medi

cal treatment simply because t hat person is viewed by the State as being a member of the wrong racial or ethnic group. The shortage at issue in this case appears, thankfully, to have concluded. But in the event that any government again resorts to racial or et hnic classifications to ration medical treatment, there would be a very strong case for prompt review by this Court.