Pandemic diseases have a nasty history of racialization. COVID-19 is no exception. Beyond the obvious racist invocations of the "China virus" or the "Wuhan Flu" are subtler racializing dynamics that are often veiled in more benign motives but are nonetheless deeply problematic. The racialization of COVID-19 proceeded along two distinct trajectories each of which threatened to reinforce inaccurate biologized conceptions of race while diverting attention from the social, legal, and political forces historically structuring race-based health disparities. First, early on as significant racial disparities in disease incidence and mortality became evident, a frame of race-based genetic difference came to the fore as a possible explanation. Second, as vaccine development ramped up there came widespread calls for racially "diversifying" clinical trials for the vaccines being tested. The rationales for such diversification were varied but tended to reinforce genetic frames of racial difference. Most common was the assertion (without substantial evidence) that vaccines might work differently in Black or Brown bodies and so racial diversity in trials was imperative for reasons of safety and efficacy. Derrick Bell cautioned 20 years ago that "the concept of diversity … is a serious distraction in the ongoing efforts to achieve racial justice." (Derrick Bell, Diversity's Distractions, 103 Colum. L. Rev. 1622, 1622 (2003).) This article explores the dynamics of how the concept of "diversity" racialized responses to COVID-19 and considers their broader implications for understanding and responding to racial disparities in the face of pandemic emergencies and beyond. In the short term, vaccine developers did a decent job of enrolling minorities in their clinical trials and the vaccines have proven to have the same safety and efficacy across races. In the long term, diversity in the biomedical context of pandemic response not only distracts attention from important structural causes of health injustice, but it also focuses attention on the genetics of disparities in a manner that has the potential to reinforce pernicious and false ideas of essential biological difference among racial groups. This article argues that an uncritical embrace of the idea of diversity in analyzing and responding to emergent health crises has the potential to distract us from considering deeper historical and structural formations contributing to racial health disparities. It proceeds first by exploring the dynamics through which initial responses to racial disparities in COVID-19 became geneticized. It will then move on to unpack the rationales for such racialization, examine their merits (or lack thereof), and consider their implications for developing an equitable response to pandemic emergencies. The next section will examine the subsequent racialization of clinical trials for COVID-19 vaccines through the concept of "diversity." It then moves on to explore how the geneticization of COVID-19 racial disparities laid the foundations for a similar geneticization of race in vaccine development. It will argue that in failing to clearly distinguish social and biological rationales for diversity, such framings, while generally well-intentioned, are poorly supported and work in tandem with the geneticization of racial disparities in COVID-19 morbidity and mortality to locate the causes of disparities in the minds and bodies of minoritized populations; again this distracts attention from the historical and structural forces contributing to such disparities. The article concludes by recognizing a certain intractability to the problems of using race in biomedical research and practice, particularly in the context of public health emergencies. It offers modest suggestions for improvement that could have significant practical effects if taken to heart by researchers, clinicians, and policy makers.

The identification and arrest of the Golden State Killer using DNA uploaded to an ancestry database occurred shortly before recruitment for the National Institutes of Health's (NIH) All of Us Study commenced, with a goal of enrolling and collecting DNA, health, and lifestyle information from one million Americans. It also highlighted the need to ensure prospective research participants that their confidentiality will be protected and their materials used appropriately. But there are questions about how well current law protects against these privacy risks. This article is the first to consider comprehensively and simultaneously all the federal and state laws offering protections to participants in genomic research. The literature typically focuses on the federal laws in isolation, questioning the strengths of federal legal protections for genomic research participants provided in the Common Rule, the HIPAA Privacy Rule, or the Genetic Information Nondiscrimination Act. Nevertheless, we found significant numbers and surprising variety among state laws that provide greater protections than federal laws, often filling in federal gaps by broadening the applicability of privacy or nondiscrimination standards or by providing important remedies for individuals harmed by breaches. Identifying and explaining the protections these laws provide is significant both to allow prospective participants to accurately weigh the risks of enrolling in these studies and as models for how federal legal protections could be expanded to fill known gaps.

Genetic testing is becoming more frequent and the results more complex. Not infrequently, genetic testing conducted for one purpose reveals information about other features of the genome that may be of clinical significance. These unintended findings have been referred to as "incidental" or "secondary" findings. In 2013, the American College of Medical Genetics ("ACMG") recommended that clinical laboratories inform people if their genetic analyses indicate that they have certain secondary mutations. These mutations were selected because they probably cause a serious disease, which is treatable, and may go undetected. The ACMG's recommendations galvanized critical responses by the genetics and ethics community. One of the most important open questions concerns the scope of negligence liability for clinical laboratories if they failed to provide any of these SFs to patients who never requested them. To answer this question, this article argues that while there might be an ethical or professional obligation to share knowledge about these specific genetic mutations, laboratories should not be subject to tort liability for failure to share secondary findings directly with patients.

Many genetic counselors recommend that individuals secure desired insurance policies, such as life insurance, prior to undergoing predictive genetic testing. It has been argued, however, that this practice is "tantamount to fraud" and that failure to disclose genetic test results, or conspiring to secure a policy before testing, opens an individual up to legal recourse. This debate traps affected individuals in a Catch-22. If they apply for life insurance and disclose a genetic test result, they may be denied. If they apply without disclosing the information, they may have committed fraud. The consequences of life insurance fraud are significant: If fraud is found on an application, a life insurer can rescind the policy, in some cases even after the individual has passed away. Such a rescission could leave family members or beneficiaries without the benefits of the life insurance policy payment after the individual's death and place them in in economic difficulty. Although it is clear that lying in response to a direct question about genetic testing would be tantamount to fraud, few, if any, life insurance applications currently include broad questions about genetic testing. This paper investigates whether non-disclosure of unasked for genetic information constitutes fraud and explores varying types of insurance questions that could conceivably be interpreted as seeking genetic information. Life insurance applicants generally have no duty to disclose unasked for information, including genetic information, on an application. However, given the complexities of genetic information, individuals may be exposed to fraud and rescission of their life insurance policy despite honest attempts to truthfully and completely answer all application questions.