There’s much concern about the ability of the health care industry in the United States to respond to the Chinese coronavirus pandemic.
If there are not enough hospital beds or other resources, how will we decide who gets help and who does not?
Whatever basis is used, it should not be age or disability, contends a legal brief arguing such criteria “would violate federal law regarding invidious discrimination.”
“It will open up the purveyors of those policies to legal liability which will likely be exploited,” explained the brief.
The memorandum explains that civil rights statutes prohibit “discriminatory policies established by state health officials – based on age or disability.”
Attorneys representing the Freedom of Conscience Defense Fund and the Thomas More Society are working together on the project.
The memo was released at the request of three prominent scholars after reports that several state authorities were considering the rationing of care based on age or disability.
Princeton University professor Robert P. George, Harvard University sociologist Jacqueline C. Rivers and Fordham University bioethicist Charles C. Camosy made the request of the two organizations.
Charles LiMandri, partner at LiMandri & Jonna LLP, in his capacity as special counsel for both organizations, was 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,” writes LiMandri. “Doing so, however, would violate federal law regarding invidious discrimination.”
Thomas More Society 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.”
The legal analysis concludes 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 said, “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.”
