Amid the Biden administration’s efforts to increase racial equity across government agencies, the America First Legal Foundation (AFL) has filed a Freedom of Information Act (FOIA) request with the Department of Health and Human Services (HHS) to investigate what it suspects to be a forthcoming “racist overhaul” of the nation’s organ transplant system.

Filed on April 3, the conservative legal group’s request (pdf) seeks all of the department’s records relating to organ transplantation that include mentions of race, ethnicity, discrimination, and other such terms, charging that the Biden administration plans to make race a factor in prioritizing organ transplant recipients.

“On February 16, 2023, President Biden continued his radical, racist, and fundamentally anti-American overhaul of every federal function under the guise of ‘equity’ by signing a new ‘Executive Order on Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,’” the document notes.

The referenced executive order instructed federal agencies to establish “equity-focused” leadership teams to “prevent and remedy discrimination, including by protecting the public from algorithmic discrimination.”

One of the many agencies identified in the directive was HHS, which oversees the Health Resources and Service Administration (HRSA) Organ Procurement and Transplantation Network (OPTN).

According to AFL, the order, combined with recent HHS efforts to “racialize” health policy, suggests that the Biden administration plans to “unlawfully alter” the OPTN to allocate organs based on the race of the recipient rather than medical need.

Racializing Health Policy

In December 2021, the HHS Centers For Medicare and Medicaid Services (CMS) issued a request for information soliciting public comments on “potential changes to the requirements that transplant programs, organ procurement organizations, and end-stage renal disease facilities must meet” to participate in Medicare and Medicaid programs.

One issue CMS sought input on was how to increase equity in organ transplantation.

“Organ transplantation and donation in the United States remains highly inequitable amongst racial and ethnic minorities as compared to white Americans,” CMS asserted, noting that it was “actively working” to address such inequities.

Meanwhile, HRSA has not only modified how it reports data on organ transplants by creating new categories of racial identifiers for patients, but also launched a new “Modernization Initiative” last month to “strengthen accountability, equity, and performance” in the organ donation and transplantation system.

“As ordered by President Biden, HHS is trying to push through an arbitrary and breathtakingly racist once-in-a-generation overhaul of the nation’s organ transplant system,” AFL contends in its request.

“Given the Biden Administration’s deep-seated obsession with dividing Americans based on their race, there is a clear and present danger that Biden’s HHS, HRSA, and CMS plan to allocate donated organs based on the race of the recipient rather than on medical criteria as Congress has required.”

Legal Concerns

Through the National Organ Transplant Act of 1984 (pdf), the OPTN was created and directed to establish a national list of people who need organs and a system for matching and allocating organs to those patients. That law specifies that the organ matching and allocation processes are to be done in accordance with “established medical criteria.”

Under current law, the only context where race is listed as a relevant factor to organ transplantation is in relation to temporary “studies and demonstration projects” on how the organ procurement and allocation process might be improved among populations with “special needs,” including children, “members of racial or ethnic minority groups,” and those with limited access to transportation.

“President Biden’s executive orders on so-called ‘equity’ have essentially ordered all Executive Branch agencies to focus on favoring certain Americans because of the color of their skin. For organ transplants, though, Congress has already spoken,” AFL Senior Counsel James Rogers told The Epoch Times in an emailed statement.

“The only factors that can be used to allocate lifesaving organ transplants are ‘medical criteria,’ not race. However, HHS has been fixating more and more on race and increasingly ignoring the medical criteria it’s supposed to focus on. This is a dangerous path, and Americans deserve to know exactly what’s happening behind the scenes.”

AFL’s latest FOIA request follows another the legal group filed in February with the Treasury Department and the Internal Revenue Service to investigate suspected tax policy changes that would unfairly target white and Asian taxpayers for audits.

“America First Legal has established a strong record of getting to the bottom of the Biden Administration’s secret machinations,” Rogers added. “This investigation will help hold HHS accountable for what it is doing.”

The Epoch Times has contacted HHS for comment.

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