Groups Warn Against Basing Life And Death Decisions In The COVID-19 Pandemic On Age And Disability

Who will survive the COVID-19 pandemic if there is just one ventilator available?

Journalist Ted Koppel, 80, or John Doe, 25? 

Koppel asked that question to various doctors and bioethicists on CBS Sunday morning and, not surprisingly, did not get a definitive response. However, the unstated premise is that people of advanced age or those with a disability will draw the short straw.

However, attorneys for the Thomas More Society , a public interest law firm, and the Freedom of Conscience Defense Fund, a civil rights organization, Monday published a legal memorandum stating that health care rationing based on age or disability violates federal law even in the face of overwhelming demand for scarce resources during the coronavirus pandemic.

“Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions,” states the memorandum.

The memorandum was written by Charles LiMandri, special counsel for the Freedom of Conscience Defense Fund and the Thomas More Society, and Peter Breen, Thomas More Society Vice President and Senior Counsel.

Unthinkable?

Breen labelled “unthinkable” reports in various newspapers that state officials are meeting to consider how to decide who lives and who dies in the pandemic.

“The horrific idea of withholding care from someone because they are elderly or disabled is untenable and represents a giant step in the devaluation of each and every human life in American,” said Breen.

LiMandri, the lead attorney on the memorandum, said the “present pandemic may be used to try to justify the  ‘hard decision’ to issue policies on rationing care on the basis of disability or age” but such policies “would violate federal laws regarding invidious discrimination. It will open up the purveyors of those policies to legal liability.”

It’s not for the government or hospitals to decide whose life is more valuable.

According to the memo, it is not for the government or private hospitals to decide whose life is more valuable. Moreover, the authors write that age is not “a dispositive or exclusive indicator of mortality risk. Pre-existing conditions and sex are other factors that correlate to the probability of dying from COVID-19.”

Various Factors

The authors note research shows “life expectancy” also varies by gender and racial group “and so if a hospital or state ‘decides to set an age threshold for medical care, it must logically vary that threshold for race and gender as well as age.”

The Society states the memorandum was prepared at the request of Princeton University’s Dr. Robert P. George, Harvard University sociologist Dr. Jacqueline Cooke-Rivers, and bioethicist Dr. Charles C. Camosy of Fordham University. They requested advice after reports that several state level authorities were considering rationing of care based on age or disability in the wake of critical medical supply shortages and severe strains on health systems, facilities, and staffs.

The number of confirmed cases of COVID-19, the novel coronavirus that originated in China in December, exceeded 40,000 in the U.S. as of Monday, with 472 deaths.

Specifically, the authors state the federal Age Discrimination Act of 1975 prohibits age discrimination in programs or activities that receive financial assistance form the federal government, including hospitals.

With respect to disability, the memorandum cites the Rehabilitation Act of 1973, which prohibits discrimination based on disability in programs conducted by federal agencies or programs receiving federal financial assistance., and the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disability, including by state and local governments.