Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick

40 Pages Posted: 2 Feb 2012

See all articles by David Orentlicher

David Orentlicher

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: January 25, 1996


As this country faces rising health care costs, it has become increasingly clear that we cannot afford all medically beneficial care. Advances in technology are pushing health care costs to an unsustainable level. Some savings can be achieved by eliminating waste in the health care system. The health care system is plagued by a good deal of excess capacity as well as considerable inefficiency in administrative activities. Elimination of waste, however, would not free up enough resources to cover all potentially useful medical services. Moreover, the public has a host of welfare needs, including better housing, education, and environmental protection, but has a limited purse. If we are to have any money left to pay for these other goods, we must place greater limits on spending for health care services. In short, rationing of health care is inevitable.

This Article focuses on a critical issue for health care rationing: How can we ration health care in a way that does not discriminate unfairly on the basis of sickness? Many individuals have argued that health care costs can be contained by eliminating care for patients who have poor prognoses and for whom health care yields less benefit than for other patients. Proposals to control health care costs also call for less coverage for some categories of illnesses than for others. But these proposals for containing costs raise important concerns about equity. Differential funding by type of disease may reflect invidious biases against people who suffer from disfavored illnesses. Denial of care to patients who would gain less benefit from treatment appears to base rationing decisions on objectively fair criteria, but these differences in prognoses among patients often reflect the biases inherent in social policies and structures. A patient with a psychiatric disorder may realize little benefit from treatment primarily because the stigma of psychiatric illness has led researchers and funders of research to neglect psychiatric illness when developing treatments for disease. Moreover, patients may have a poor prognosis, not because their condition is inherently difficult to treat, but because it has been historically disfavored by the operation of society's policies and institutions.

Anti-discrimination statutes, in their language and legislative history, recognize that persons with disabilities need protection not only against current invidious bias but also against discrimination arising out of biases inherent in social structure. Accordingly, the statutes include a principle of reasonable accommodations that requires the implementation of measures that will help compensate for these biases. This Article argues that courts have not given adequate recognition to the principle of reasonable accommodations embedded within the Americans with Disabilities Act of 1990 ("ADA") and the Rehabilitation Act of 1973, and therefore have not fulfilled congressional intent to prevent unfair discrimination on the basis of sickness.

To remedy the deficiencies in existing standards, this Article proposes a new standard that is explicitly designed to address discrimination from biases inherent in the social structure. This "destructured disability standard" should more fully realize the goals that are an essential part of current anti-discrimination law.

Keywords: health care, rationing, discrimination, disability

JEL Classification: I18

Suggested Citation

Orentlicher, David, Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick (January 25, 1996). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 31, No. 1, 1996. Available at SSRN:

David Orentlicher (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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