Disability Law and the Case for Evidence-Based Triage in a Pandemic

130 Yale Law Journal Forum 26 (2020)

U Denver Legal Studies Research Paper No. 20-10

26 Pages Posted: 8 Apr 2020 Last revised: 7 Jul 2020

See all articles by Govind Persad

Govind Persad

University of Denver Sturm College of Law

Date Written: June 24, 2020

Abstract

This Essay explains why model policies proposed or adopted in response to the COVID-19 pandemic that allocate scarce medical resources by using medical evidence to pursue two core goals—saving more lives and saving more years of life—are compatible and consonant 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. These factors, when based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients with specific disabilities.

It then discusses the ethical advantages of triage policies that use medical evidence to save more lives and years of life, which I call “evidence-based triage,” focusing on the benefits of these policies for patients with 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 saving fewer lives. Evidence-based triage parallels other policy responses to the COVID-19 pandemic, like physical distancing and postponement of medical procedures, which may burden patients with specific disabilities or medical conditions 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, Disability Law and the Case for Evidence-Based Triage in a Pandemic (June 24, 2020). 130 Yale Law Journal Forum 26 (2020), 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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