Monday, March 30, 2020

Would triage plans for the use of ventilators (etc.) that favored those who were younger and healthier violate civil rights law?

I'm curious to hear what informed readers make of this story.   Comments may take awhile to appear (as they are moderated when I have time), please submit your comment only once.  Thanks.

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I’m not a constitutional lawyer, but it strikes me that it depends a lot on the degree of scrutiny that pertains to the category in question. “No respirators for women” or “No respirators for African-Americans” seems clearly unconstitutional: I doubt anyone would argue it. But something like life expectancy is probably taken into account all the time in medical decisions. Certain types of disabilities, which correlate with life expectancy but also have a history of irrational prejudice, might be somewhere in between. So I doubt there is one single answer to this question; it’s probably that worst of legal nightmares, a continuum . . . .

Posted by: Mike Livingston | Mar 30, 2020 9:32:12 AM

I have a quick piece up on this: .

Posted by: Sam Bagenstos | Mar 30, 2020 10:38:05 AM

I have studied fundamental rights for a long time and I think the directive is absolutely right. First, I do not think levels of scrutiny should or actually will make a difference. Under such a rationale, the poor may be denied medical care (rational basis) but, in theory, a race- or sex-based standard would immediately fall. Moreover, there is doubt at the Supreme Court level about the level of scrutiny for LGBTQ discrimination, Some circuits have accorded strict scrutiny, but if there is no consensus among the courts, does that mean the likelihood that, if a state limited care to heterosexual individuals, the legality of withholding medical care based on LGBTQ discrimination depends on the particular state the ill person live?

No, I think this crisis will confirm what the so-called "rationality with bite" cases and Obergefell tell us, that indeed, that rights derive from a basic, objective (dare I say natural rights) concept of human dignity (actually quite Kantian in its way).

There may be a question in odd cases, such as if Dr. Fauci needed medical. But, as a general matter, I think the human dignity -- we are all equal regarding innate dignity, is correct.

Posted by: Peter Bayer | Mar 30, 2020 4:59:39 PM

A question for Peter Bayer: when you say that "rights derive from a basic, objective (dare I say natural rights) concept of human dignity (actually quite Kantian in its way)" are you making a claim about the existing law in the United States? That's compatible, of course, with the non-existence of natural rights, but I wasn't clear whether you were making a more ambitious philosophical claim or describing the structure of the existing legal doctrine?

Posted by: Brian Leiter | Mar 31, 2020 10:14:53 AM

My analysis predicting certain law suits related to the foreseeable ventilator shortage can be found at:

How to Sue Hospitals Over Ventilator Shortage Deaths;
And Even Stronger Law Suits Over Failure to Use FDA-Approved Alternatives

NYS, Others, to Use CPAP-Like Machines During Ventilator Shortag
Modifying Sleep Apnea Machines to Supplement Ventilators Could Save Many Lives

By the way, my earlier prediction about coronavirus law suits has now come through in Arizona.

Coronavirus-Related Dorm Evictions Likely to Spur Class-action Lawsuits, Law Professor Warns

Law Prof: Campus Dorm Closures Will Lead to Class Action Lawsuits

Posted by: LawProf John Banzhaf | Mar 31, 2020 12:02:01 PM

Military medics have long practiced battlefield triage, as do those in emergency rooms that are overwhelmed. There's a long rich, and well established history of triage in medicine. These health provision plans are not a knee jerk response. These issues have been considered for more than a century.

In the U.S., triage dates back to the Civil War. Not using triage early in the conflict led to disastrously high battlefield fatality rates. By WWI, triage prioritized those whose lives could be saved the quickest and at lowest cost because not everyone could be saved, and this became even more pronounced in WWII. Those triage policies have been adapted for civilian medicine in disaster situations that overwhelm the capacity of healthcare systems.

If you start from the moral view that every year and every minute of human life is equally valuable and that it is desirable to extend human life by as much as possible subject to the constraint of limited resources, it rationally leads to the conclusion that limited healthcare resources should be dedicated to those who stand to benefit from them the most in terms of extensions of life. It also stands to reason that we should increase taxes as much as necessary to increase availability of resources that extend human life as long as removing those resources from the private sector doesn't reduce life expectancy more.

Taxes and spending on healthcare are the right policy lever. Lawsuits against healthcare providers that divert the limited resources available away from providing care and toward defending against lawsuits and fighting over limited resources are not the right policy lever. When there are enough resources for everyone, more resources go to those with the most serious injuries. When there are not enough resources, the resources go to those with the greatest chance of surviving.

After 9/11, Congress provided a federally funded payout to the families of victims, conditional on waiving the right to sue the airlines.

It may be sensible to consider similarly immunizing the healthcare system from suits.

COVID preparations to save lives are massively costly for medical providers because hospitals and doctors across the country have cancelled elective procedures to free up resources for an expected wave of COVID patients. Those elective procedures are what pays the bills and keeps the lights on. Treating COVID patients is not reimbursed at high rates.

Hospitals are hemorrhaging money. Many surgeons are going to go for months without being paid because they are not operating. Many hospitals do not have extensive reserves and many will be out of money within a few months absent injections of money from the government.

But the bailout that was passed by Congress is expected to go in part to help the shareholders of Boeing and airlines and hotel chains. It's unclear how much is actually going to go to healthcare provides, which for the most part do not have public shareholders and therefore have limited political influence.

Doctors and nurses who interact directly with COVID patients are at higher risk than most of the rest of the population, and are in short supply. They're also often operating with inadequate personal protective equipment. Directing the healthcare system that it cannot prioritize saving the lives of healthcare providers if they are infected and become ill could lead to healthcare workers simply refusing to provide care. Hospitals are already dealing with higher than usual levels of absenteeism and early retirements.

Opening the door to lawsuits against doctors and hospitals for making difficult decisions, at a time when they are making incredible sacrifices, doesn't seem advisable to me. I doubt that many judges would be sympathetic to these kinds of claims.

Posted by: Michael Simkovic | Apr 2, 2020 11:53:10 AM

I think the civil rights laws permit providers to consider medical evidence about a patient's probability of survival, probable time on a ventilator, or post-treatment life expectancy: basically, triage is allowed to use medical evidence to save more lives and years of life. (And because most disabilities don't affect probability of survival, etc., saving more lives will be better for patients with disabilities as a group even if worse for those patients whose disabilities do affect benefit.) This is different from the position being taken by some disability advocacy groups, including Prof. Bagenstos' clients, although I agree with them that triage should not be based on unsupported stereotypes or quality of life judgments.

My paper that examines the doctrinal and ethical issues in this area, "Why Disability Law Permits Evidence-Based Triage," was just accepted at the Yale Law Journal Forum (where Prof. Bagenstos’ paper will also appear). Here is the link on SSRN:

I also summarize the paper on the Harvard Law Petrie-Flom Center Blog -, and on Twitter -

Posted by: Govind Persad | Apr 14, 2020 7:17:21 AM

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