A new lawsuit has been filed against the state of New York, alleging that it violated the Constitution with a "racist" way of prioritizing patients for coronavirus vaccines.

"[W]e are suing the State of New York for deciding not merely questions of financial survival – but of physical survival – based upon skin color," America First Legal President Stephen Miller said in a statement provided to Fox News Digital on Tuesday.


Gov. Kathy Hochul addresses the media during the 2021 New York City Veterans Day Parade on Nov. 11, 2021. (John Lamparski/Getty Images)

"New York’s racist COVID decrees dispense lifesaving medicine based on the race or ethnic background of the patient. New York is deciding questions of life and death based on a New Yorker’s ancestry. This is outrageously illegal, unconstitutional, immoral and tyrannical. And that is why we are suing the state – because right and justice and morality urgently demand it. No citizen should lose his or her life because the government – of the State of New York, or anywhere, or at any level – punished them because of the color of their skin."


Miller's comments came amid a flurry of controversy surrounding New York's policy. Gov. Kathy Hochul's Dec. 27 memo tells health care providers that eligibility for anti-viral treatments should weigh race as a risk factor for severe illness. 


A woman gets tested for COVID-19 at a mobile testing site in New York, Tuesday, Jan. 11, 2022. (AP Photo/Seth Wenig)

"Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as long-standing systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19," it reads.

The Department of Health declined to comment on Tuesday, citing pending litigation. Spokesperson Erin Silk told Fox News that "no one in New York who is otherwise qualified based on their individual risk factors will be turned away from life-saving treatment because of their race or any demographic identifier."

Silk previously told Fox News: "This guidance is based on CDC guidelines that show COVID mortality rates are higher among certain demographic groups, including senior citizens, immunocompromised individuals and non-white/Hispanic communities. NYSDOH is instructing health care providers to consider an individual's health-based risk factors when providing this treatment, and has requested additional doses from the federal government because of the limited supply at this time."

Hochul recently signed legislation declaring systemic racism a public health crisis, and called for greater equity in public health.

"For far too long, communities of color in New York have been held back by systemic racism and inequitable treatment," she said.


New York isn't the first to face accusations the government discriminated with its COVID-19 policies. New Hampshire previously prioritized non-White individuals for vaccines. And at a broader level, liberals and some in the medical profession have been pushing for greater "equity."

Last week, after state health departments in Utah and Minnesota faced potential lawsuits after issuing guidance using race and ethnicity for COVID-19 treatments, Minnesota removed race as a preferential factor.