Current anxiety about the COVID-19 pandemic has been multiplied by the suggestion of “health care rationing” based on the age or disability of infected patients. Attorneys representing the Freedom of Conscience Defense Fund and the Thomas More Society have published a legal memorandum detailing the tenets of federal law and explaining that federal civil rights statutes prohibit discrimination – including discriminatory policies established by state health officials – based on age or disability.
The memorandum was prepared and released at the request of three prominent scholars after reports that several state level authorities were considering the rationing of care based on age or disability in the wake of critical medical supply shortages and severe strains on health systems, facilities, and staffs.
Charles LiMandri, partner at LiMandri & Jonna LLP, in his capacity as Special Counsel for the Freedom of Conscience Defense Fund and the Thomas More Society, was the lead attorney on the memorandum that confirms the prohibitions of discriminatory health care decisions under federal civil rights laws.
“The present pandemic may be used to try to justify the ‘hard decision’ to issue policies rationing care on the basis of disability or age,” writes LiMandri. “Doing so, however, would violate federal law regarding invidious discrimination. It will open up the purveyors of those policies to legal liability.”
Thomas More Society Vice President and Senior Counsel Peter Breen explained, “We’re reading the unthinkable – the Seattle Times reported that Washington state and hospital officials have been meeting to consider how to decide who lives and dies. In our nation’s capital, the Washington Post is running editorials about the ‘nightmare’ of rationing health care, as is the National Review in the hard-hit state of New York. The horrific idea of withholding care from someone because they are elderly or disabled, is untenable and represents a giant step in the devaluation of each and every human life in America.”
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Princeton University’s Dr. Robert P. George, along with Harvard University sociologist Dr. Jacqueline Cooke-Rivers, and bioethicist Dr. Charles C. Camosy of Fordham University, made the request of the Freedom of Conscience Defense Fund and the Thomas More Society, both of whom LiMandri serves as litigation counsel.
The three have heavyweight credentials. George, Princeton’s McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, has also served on the U.S. Commission on Civil Rights and the President’s Council on Bioethics. Cooke-Rivers is a lecturer at Harvard and is the director of the Seymour Institute for Black Church and Policy Studies. Carmosy has authored five books examining cultural ethics, including the healthcare focused Too Expensive to Treat?
The joint legal analysis concluded that withholding care based on age or disability would indeed be contrary to federal law, which requires that, “Decisions regarding the critical care of patients during the current crisis must not discriminate on the basis of disability or age. Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions.”
LiMandri observed that, “All those involved in making critical decisions concerning who gets such life-saving care, including the use of a limited supply of respirators, would be wise to heed this advice.”
Read the March 23, 2020, Memorandum on Federal Law on Rationing Medical Care on the Bases of Disability and Age, published by attorney Charles LiMandri, of LiMandri & Jonna LLP, in the capacity of Special Counsel with the Freedom of Conscience Defense Fund and the Thomas More Society here [https://www.thomasmoresociety.org/wp-content/uploads/2020/03/Age-and-Disability-Discrimination-Memo_FINAL.pdf].