“Having a racial preference for a Covid-19 vaccine is not only ethically permissible, but I think it’s an ethical imperative,” said Lawrence Gostin, a professor of global health law at Georgetown University. “The reason is both because of historic structural racism that’s resulted in grossly unequal health outcomes for all kinds of diseases, and because Covid-19 has so disproportionately impacted the lives of people of color.”

There are concerns, however, about legal objections to any framework that uses race and ethnicity when determining vaccine allocation and the way it might be interpreted in court. For instance, judicial scrutiny would not allow health care workers to skip a white person in line for a vaccine in favor of a person of color, as Gostin wrote recently in the Journal of the American Medical Association. He also noted that legally, a public health agency could probably not distribute vaccines to geographic locations based solely on race.

“My worry is that if there was explicit racial priority given to the Covid-19 vaccine, we could be embroiled in litigation that would really undermine implementation of the vaccine process, and also be at great risk of being overturned by the Supreme Court, particularly with its new conservative majority,” Gostin told STAT.