RATIONING AND DISABILITY: THE CIVIL RIGHTS AND WRONGS OF STATE TRIAGE PROTOCOLS
68 Pages Posted: 7 Apr 2020 Last revised: 30 Mar 2021
Date Written: February 4, 2021
The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.
To date, scholarly attention has focused on explicit exclusions of people with particular medical conditions or the standards’ failure to be sufficiently individualized. Amending the protocols to address these concerns, while important, will simply tinker at the margins. The more consequential and harder question is how states should balance the demand to save as many lives as possible while also ensuring that people with disabilities and other vulnerable groups are treated fairly.
To answer that question, this Article distills and analyzes four rationing principles that animate the state standards and contends that none ultimately balances these two important aims in a manner consistent with the Americans With Disabilities Act [ADA] and the moral commitments on which it rests. It thus provides a moral and legal framework to guide the ongoing revision of the standards. The Article concludes by proposing a novel, alternative rationing system that reserves resources to accommodate both efficiency and equity, thereby better instantiating the balance that undergirds the ADA.
Keywords: Covid-19, Disability, Rationing, Health care, Discrimination, Disparate Impact
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