Are ventilator rationing plans unfair?

As the rise in Covid-19 infections stresses hospital resources, a legal and ethical fight is brewing over the distribution of ventilators. Activists are warning that rationing plans currently on the books, by favouring patients likely to live longest, discriminate against the elderly and the disabled. And whatever the outcome of any lawsuits, the debate tests our lofty national commitment to equality.
Let’s start with the main legal issue, the applicability of the Americans with Disabilities Act (ADA), known as the ADA. Everyone agrees that the ADA forbids hospitals to discriminate in the delivery of medical care on the basis of disability. But although scholars have puzzled over how this rule applies when resources are scarce, the question remains largely untested in courts.
A 2008 report from the Congressional Research Service, without resolving the question, warned that the transfer of a ventilator from a disabled individual to “an individual with a stronger likelihood of survival” would raise significant questions under the ADA. On the other hand, the 2006 pandemic response plan from the Homeland Security Council, an office within the White House, presupposes that during an emergency, scarce medical resources — explicitly including ventilators — “will be given to those whose medical condition suggests that they will obtain greatest benefit from them.” This recommendation is mirrored in current plans for the distribution of ventilators by overwhelmed acute care facilities.
In New York City, the epicenter of the infection in the US, an overwhelmed hospital would turn to the guidelines on ventilator allocation issued in 2015 by the state health department.
The guidelines run to 266 often impenetrable pages, but they mostly revolve around a simple point: In times of scarcity, “a patient’s likelihood of survival is the most important consideration when evaluating a patient.” The losers in this process should instead be offered “alternative forms
of medical intervention and/or palliative care.”
In other words, just as advocates for the disabled
fear, the plan is to allocate ventilators to the healthiest patients.
To justify this approach, the report undertakes some clever ethical gymnastics. For example, the guidelines suggest that a patient
who already uses a ventilator, upon arriving at a hospital facing a shortage, might find the device taken away and given to another patient. How is this possible? Get ready for some medical ethics Newspeak:
“While a policy to triage upon arrival may deter chronic care patients from going to an acute care facility for fear of losing access to their ventilator, it is unfair and in violation of the principles upon which this allocation scheme is based to allow them to remain on a ventilator without assessing their eligibility.”
—Bloomberg

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”