Allocating Scarce Medical Resources During a Public Health Emergency: Can We Consider Sex?
22(2) Houston Journal of Health Law and Policy, Forthcoming 2023
85 Pages Posted: 29 Nov 2022
Date Written: November 21, 2022
The past two years have witnessed back-to-back public health emergencies, the COVID-19 pandemic and, more recently, monkeypox, that share two noteworthy similarities: in each there have been critical shortages of medical resources such as vaccines and treatments, and both have been characterized by pronounced sex-based differences in risk. In the case of COVID-19, nationally there have been 25% more COVID-19 deaths among men, and numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death from COVID-19. During the height of the Omicron surge, at least one U.S. state and one multi-state healthcare system considered patient sex when allocating COVID-19 monoclonal antibody treatment. In the case of monkeypox, although the outbreak characteristics may evolve over time, currently 97% of U.S. infections have occurred in males, and at least one U.S. jurisdiction has implemented sex-specific vaccine eligibility criteria. The legality of considering sex, a protected trait, in these types of medical resource allocation decisions has not been systematically explored. In this article, we seek to address this gap in the literature by evaluating the legality of a hypothetical COVID-19 monoclonal antibody allocation algorithm, which includes male sex as a risk factor, under the Equal Protection Clause of the Fourteenth Amendment and under Section 1557 (the antidiscrimination provision) of the Affordable Care Act. As to the former, we conclude that constitutionality could depend upon whether the federal courts view the basis for differential sex-based treatment as one based primarily upon biology, or upon a combination of biology and socio-cultural factors. Although we believe there is room for the courts to find that either basis is constitutionally valid, courts would be more likely to find it so if they analyzed it as a biological difference. Under the Affordable Care Act, we conclude that it is much more difficult to predict how a federal court would rule. Section 1557 prohibits discrimination “on the basis of sex” in healthcare facilities and in the administration of healthcare. The statute permits the importation of Title IX jurisprudence in interpreting this provision. Courts, in interpreting Title IX, have also looked to Title VII case law. Whether courts would apply Title VII jurisprudence to Section 1557 for this purpose is an unknown, even if it has been imported to Title IX, and the answer to this question would likely determine the legal outcome in this case. We argue that this uncertainty will have a chilling effect on state and health care system attempts to steward scarce life-saving resources during public health emergencies and may have implications for the more general provision of medical resources in the routine course of clinical care.
Funding Information: This work was supported, in part, by grant K01HS028363 from the Agency for Healthcare Research and Quality to Dr. Goodman.
Conflict of Interests: Both authors have received no funding for this article and have no competing interests.
Keywords: COVID-19, pandemic, demographic, sex discrimination, equal protection, title IX, ACA, monoclonal antibody, public health, resource allocation
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