Should We Discriminate Among Discriminations?

Abstract

The COVID-19 pandemic has demonstrated the complexities of rationing needed health care in a pandemic. It has also revealed deep, structural inequities in health care systems and societies, with certain disadvantaged groups experiencing alarmingly disproportionate rates of infection. A number of anti-discrimination statutes exist to ameliorate some of these historical inequities in the United States. Under federal law, health care facilities receiving federal funding may not discriminate on the basis of race, color, or national origin; disability; age; or sex. Three of these forms of discrimination were already prohibited by statutes that have been in effect for nearly fifty years: Title VI of the Civil Rights Act of 1964 (race, color, and national origin), the Rehabilitation Act of 1973 (disability), and the Age Discrimination Act of 1975 (age). In 2010, Section 1557 of the Affordable Care Act (ACA) referenced these three statutes and a fourth, Title IX of the Education Amendments of 1972 (sex), in a prohibition of all of these forms of discrimination by health care facilities receiving federal funding.Substantially different bodies of case law have been developed for each statute, spanning the fifty years these statutes have been in effect. The ACA’s juxtaposition of the four presents a puzzle with profound legal, policy, social, and ethical implications: Does Section 1557 bring these four anti-discrimination statutes together in order to harmonize them, offering a common approach to anti-discrimination in health care for all categories? Or should there continue to be differences among how discrimination is understood for these different protected categories? Using the examples of crisis care standards and vaccine allocation, this Article explores this puzzle in interpreting Section 1557. To do so, this Article details important differences among the statutes, including their approach to disparate impact discrimination and whether they have been interpreted to permit suits by private individuals for damages. This Article also explores the legislative histories of the Age Discrimination Act and the ACA itself. This Article concludes that Section 1557 reveals but does not resolve important questions about whether there are legally relevant reasons to discriminate among discriminations.

Keywords: health care rationing, COVID-19, anti-discrimination, Section 1557, crisis standards of care