Recent reports indicate that because of the surge of coronavirus patients, healthcare providers in the U.S. are considering protocols to allocate respirators and other critical medical supplies based on age and disability. Their reasoning is simple: “Desperate times call for desperate measures.” But does that mean that during a pandemic, doctors can play God and choose who may live and who may die? That is a question of ethics. But it is also legal one. Rationing healthcare to exclude the aged and disabled in treating COVID-19 violates federal anti-discrimination laws and traditional principles of justice.
To explain why age- and disability-based healthcare rationing is discriminatory, my legal team partnered with attorneys at the Thomas More Society to publish a groundbreaking legal memorandum on the current coronavirus crisis. In it, we warn in detail that allocating scarce resources on the basis of age and disability, even during a pandemic, violates federal civil rights laws, including the following: the Age Discrimination Act of 1975, the Rehabilitation Act of 1973, Americans With Disabilities Act of 1990, and The Affordable Care Act of 2010.
We prepared the memo at the request of three prominent scholars, Princeton University’s Professor of Jurisprudence Dr. Robert P. George, Harvard University sociologist Dr. Jacqueline C. Rivers, and bioethicist Dr. Charles C. Camosy of Fordham University. These scholars are well-versed in the ethical implications of healthcare rationing. They wanted to know what legal guidance is available, for example, when a doctor is faced with the decision as whether to administer the last respirator to either a 72-year old handicapped man or a 25-year-old mother of two children.
In a nutshell, we concluded that federal anti-discrimination laws ensure that the aged and disabled receive equal consideration for medical services even during a pandemic. That means that clinical decisions must be made based on not only who has the greatest need, but also the best chance of a good medical outcome.
So, going back to the example of the 72-year old man, the doctor may not simply give the respirator to the young mother because—in his view—she has more to lose. Naturally, most people would be biased in favor of saving the mother. But that is why federal anti-discrimination laws exist: to ensure the elderly and disabled are treated reasonably and fair.
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To comply with these laws, the doctor must assess each patient individually and objectively, based on clinical factors, and then make his decision. Easier said than done, say the proponents of healthcare rationing. They argue that federal anti-discrimination laws do not necessarily apply during public health emergencies. But that is not the case. In fact, these protections are needed more than ever during crises like the present coronavirus pandemic. To be sure, the laws do not prohibit the triage of patients needing critical medical care. But even during a raging epidemic, a doctor may not categorically divide patients along such lines young vs. old or able-bodied vs. disabled.
Some rationing proponents argue that allocation protocols need not expressly discriminate based on age and disability. They offer several “neutral” procedures based on a “quality of life” assessment or an evaluation of how long the patient would need intensive care (thus using up scarce medical supplies). Their arguments are bolstered with claims that these determinations are medical judgments, which courts have typically upheld. Absent objective evidence, however, these options are often far from neutral. Nor are they deferential medical judgments. To the contrary, they are usually subjective assumptions ultimately based on whether the patient “deserves” to live.
In legal terms, anti-discrimination laws prohibit any action that would deprive a patient of equal services simply because of his or her age or disability. On a broader level, they reflect the American ideal that no person should be denied the rights that are afforded to similarly situated persons. That includes the patient on the other side of the curtain lying in an identical hospital bed.
At the beginning of this article, I noted the saying, “Desperate times call for desperate measures.” Perhaps not coincidentally, this phrase is attributed to Hippocrates, the ancient Greek physician described as the “Father of Medicine.” But Hippocrates did not use this saying to justify letting a patient die. Indeed, doing so would violate the fundamental principle of the Hippocratic Oath, which doctors for thousands of years have sworn to uphold: “Primum non nocere—first do no harm.
Letting the aged and disabled die without proper care is both immoral and unlawful. Even during the chaos of a terrible pandemic, doctors may not play God. The law prohibits it. And their Hippocratic Oath forbids it.
LifeNews Note: Charles S. LiMandri is double-board certified in Pre-Trial Practice and Trial Advocacy by the National Board of Trial Advocacy. He is licensed to practice in CA, NY, D.C. and before the U.S. Supreme Court. He is Special Counsel for the Freedom of Conscience Defense Fund (fcdflegal.org) and the Thomas More Society (thomasmoresociety.org).