Why Disability Law Permits Evidence-Based Triage in a Pandemic

130 Yale Law Journal Forum ___ (2020, Forthcoming)

U Denver Legal Studies Research Paper No. 20-10

24 Pages Posted: 8 Apr 2020 Last revised: 19 May 2020

See all articles by Govind Persad

Govind Persad

University of Denver Sturm College of Law

Date Written: April 6, 2020

Abstract

This paper explains why the two core goals of policies proposed or adopted in response to the COVID-19 pandemic that allocate scarce medical resources by using medical evidence—saving more lives and saving more years of life—are compatible with disability law. Disability law, properly understood, permits considering medical evidence about patients' probability of surviving treatment and the quantity of scarce treatments they will likely use. It also permits prioritizing health workers, and considering patients' post-treatment life expectancy. All of these factors, when assessed based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients with specific disabilities.

It then discusses why triage policies that use medical evidence to save more lives and years of life, which I call "evidence-based triage," are ethically preferable for people with and without disabilities. In doing so, I explain why recent critiques err by treating people with disabilities as a monolith, overlooking the political disadvantages of less-visible victims, and treating the social origins of scarcity as a justification for sacrificing vulnerable lives. Evidence-based triage should be recognized as similar to other responses to COVID-19, like physical distancing and postponing some medical procedures, that may burden people with specific disabilities but are nevertheless justified because they save more patients.

Keywords: triage, rationing, COVID-19, ventilators, coronavirus, health care, disability, discrimination, disparate impact

JEL Classification: I14, I18, K32

Suggested Citation

Persad, Govind, Why Disability Law Permits Evidence-Based Triage in a Pandemic (April 6, 2020). 130 Yale Law Journal Forum ___ (2020, Forthcoming); U Denver Legal Studies Research Paper No. 20-10. Available at SSRN: https://ssrn.com/abstract=3571139 or http://dx.doi.org/10.2139/ssrn.3571139

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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