Rationing healthcare based on age or disability violates federal law, legal scholars warn

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A group of high-profile legal scholars warned Monday that rationing healthcare based on age or disability is a violation of federal law as an increasing number of health systems across the country begin considering the concept amid the coronavirus pandemic.

“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,” Thomas More Society Vice President and Senior Counsel Peter Breen said in a statement.

A recent report in The New York Times says the United States already has some guidelines for healthcare rationing, which were developed with federal grants. And while the guidelines may be outdated, they are currently being revisited to respond to the coronavirus pandemic.

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The question of healthcare rationing is being discussed now in the U.S. based on situations that unfolded in China where many sick patients were denied care at hospitals as well as in Italy where doctors were forced to withhold ventilators from older, sicker adults in favor of younger, healthier patients.

On Monday, however, attorneys representing the Freedom of Conscience Defense Fund and the Thomas More Society published a legal memorandum, detailing the tenets of federal law and argued that federal civil rights statutes prohibit discrimination — including discriminatory policies established by state health officials — based on age or disability.

“Federal law requires that decisions regarding the critical care of patients during the current crisis not discriminate on the basis of disability or age. In this respect, anticipated longevity or quality of life are inappropriate issues for consideration. 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,” said the memorandum from LiMandri & Jonna LLP.

Charles LiMandri, partner at LiMandri & Jonna LLP and special counsel for the Freedom of Conscience Defense Fund and the Thomas More Society, was the lead attorney on the memorandum.

“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,” wrote LiMandri. “Doing so, however, would violate federal law regarding invidious discrimination. It will open up the purveyors of those policies to legal liability.”

“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.”

Robert P. George, who serves as McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions  at Princeton University, along with Harvard University sociologist Jacqueline Cooke-Rivers, and bioethicist Charles C. Camosy of Fordham University, asked the Freedom of Conscience Defense Fund and the Thomas More Society to prepare the five-page memorandum.

Worldwide, the number of confirmed coronavirus cases is nearing 400,000 with over 16,700 deaths, according to Johns Hopkins University. In the United States, there are now over 46,000 cases and at least 515 deaths.

A Centers for Disease Control and Prevention report noted that among 508 patients known to have been hospitalized, 9% were aged 85 years and older, 36% were aged 65–84 years, 17% were aged 55–64 years, 18% were 45–54 years, and 20% were aged 20–44 years. Less than 1% of hospitalizations were among persons aged 19 years and younger.

Also, among patients with COVID-19 in the United States, fatality was highest in persons 85 and older (from 10% to 27%), followed by those aged 65-84. Among persons aged 55-64 years, only 1% to 3% died and less than 1% of those aged 20–54 years died. The CDC reported no fatalities among persons aged 19 years old and younger.

The World Health Organization warned that young people are not immune and are still at serious risk.

According to The New York Times, little research has been done to see whether healthcare rationing would save more lives or years of life compared with a random lottery to assign ventilators or critical care beds.

Researchers also found that some commonly recommended rationing strategies could paradoxically increase the number of deaths. Protocols, the publication said, involve value judgments as much as medical ones, and have to take into account the public’s trust.

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