Evaluating the Legality of Age-Based Criteria in Health Care: From Nondiscrimination and Discretion to Distributive Justice

63 Pages Posted: 15 Dec 2018 Last revised: 7 Apr 2019

See all articles by Govind Persad

Govind Persad

University of Denver Sturm College of Law

Date Written: December 11, 2018

Abstract

Recent disputes over whether older people should pay more for health insurance, or receive lower priority for transplantable organs, highlight broader disagreements regarding the legality of using age-based criteria in health care. These debates will likely intensify given the changing age structure of the American population and the turmoil surrounding the financing of American health care. This Article provides a comprehensive examination of the legality and normative desirability of age-based criteria.

In the Article, I defend a distributive justice approach to age-based criteria. Rather than viewing age as a personal characteristic akin to race or religion, the distributive justice approach regards age as relevant in two ways to the distribution of an extremely valuable and widely desirable good, namely years of life. First, age establishes how much life someone has already enjoyed. Second, age indicates (though imperfectly) how much more life a person is likely to gain from treatment. A distributive justice approach also differentiates justifications grounded in distributive considerations — such as the higher predicted costs of treating older patients — from justifications grounded in animus or false stereotypes about older patients. Distributive justice approaches are therefore aligned with emerging animus-focused approaches to antidiscrimination law.

The distributive justice approach I defend contrasts with two prevailing theoretical approaches to age-based criteria, which I call nondiscrimination and discretion. On the nondiscrimination approach, age-based criteria are viewed with great skepticism, analogous to race-based criteria: they are permissible — if at all — only when they advance the interests of disadvantaged groups, and they are subject to exacting judicial scrutiny. In contrast, the discretion approach, often identified with highly deferential versions of the “rational basis” test in equal protection law, views age-based criteria as broadly permissible, and defers to medical professionals’ judgments.

Part I of the Article explains that age discrimination statutes, as well as the Equal Protection Clause and similar state constitutional provisions, permit the use of age-based criteria when those criteria have a rational grounding and do not appeal to animus or bias. They therefore leave room open for the use of a distributive justice approach. Part II goes on to argue that the conceptual underpinnings of antidiscrimination law do not support the enactment of new law, or the adoption of new interpretations of existing law, that would reject the use of age-based criteria. Part III proposes a detailed normative framework for the use of age-based criteria in health care, the lifetime justice approach, that considers the future life patients can gain from treatment and the past years of life they already have experienced. The lifetime justice approach also includes a principle of nonabandonment, which supports the continued provision of supportive medical care to older people in need. It then defends this framework against objections — most prominently, the objection that it disregards the moral equality of older people. Part IV applies the analysis offered in the earlier Parts to age-based criteria employed in various areas of medical practice and health policy, including the examples of transplantation and health insurance discussed at the outset.

Keywords: medical resource allocation, health insurance, age discrimination, antidiscrimination, age, rationing, distributive justice, transplantation

JEL Classification: I13

Suggested Citation

Persad, Govind, Evaluating the Legality of Age-Based Criteria in Health Care: From Nondiscrimination and Discretion to Distributive Justice (December 11, 2018). Boston College Law Review, Vol. 60, pp. 889-949, U Denver Legal Studies Research Paper No. 18-35, Available at SSRN: https://ssrn.com/abstract=3299789

Govind Persad (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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