Thanks to the coronavirus pandemic, the threat of medical rationing is now clear and present. Hospitals faced with a crush of patients must now seriously confront questions of how to allocate scarce resources—notably life-saving ventilators—at a time of severe shortage. In their protocols for addressing this situation, hospitals and state agencies often employ explicitly disability-based distinctions. For example, Alabama’s crisis standards of care provide that “people with severe or profound intellectual disability ‘are unlikely candidates for ventilator support.’” This essay, written as this crisis unfolds, argues that disability-based distinctions like these violate the law. The Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act all prohibit health care providers from discriminating against qualified individuals with disabilities because of their disabilities. The explicit discrimination embodied in numerous state policies on its face violates these prohibitions. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. Longstanding and authoritative interpretations of the law bar the use of such circular techniques to insulate disability discrimination from legal challenge. Although a proper interpretation of the law may permit medical providers to use disability as a basis for a rationing decision where an individual’s underlying disability will kill the individual in the immediate term regardless of the treatment, those circumstances will be narrow. And a proper interpretation of the law requires assurances that such imminent-death determinations will be made based on the best available objective evidence, free from bias against people with disabilities or devaluation of their lives. Medical providers retain substantial discretion to make resource allocation decisions in a time of triage. They may make decisions based on non-disability factors. And where those factors do not dictate a decision, they may employ a lottery process. Such a process is more fair and democratically legitimate than placing the burden on disabled individuals—individuals who already experience disadvantage as a result of societal discrimination, and who disproportionately lack access to the political processes that frame policies concerning medical rationing.
Constitutional Law | Disability Law | Health Law and Policy | Law and Economics | Public Law and Legal Theory
Date of this Version
Working Paper Citation
Bagenstos, Samuel R., "May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing" (2020). Law & Economics Working Papers. 169.