The shortage of ventilators and personal protective equipment (PPE) in parts of the country has raised the most acute equality concerns regarding the treatment of people who are gravely ill. Some jurisdictions have more protective and life-saving equipment on hand than others do, but this pre-crisis distribution is a product of many factors beyond existing need, and more likely to be correlated with differences in population size, wealth, and expectations based on past health care needs rather than those called for by COVID-19. Many pre-crisis projections will inevitably be wrong given the volatile variables that determine the size and severity of an outbreak, such as intensity of travel and the degree of compliance with mitigation measures. There will be places where there are more than enough supplies and others, like New Jersey and Louisiana, that will be in desperate straits.
Although these initial allocations of critical resources based on scattered pandemic preparation and market forces can be criticized on distributive justice grounds, I want to focus on the allocation decisions by the federal government once the crisis became apparent. After all, federal law authorizes an American president to maintain a stockpile of emergency equipment and distribute it for the common good. There are reports that some states, such as Florida, have gotten nearly everything they have requested, but others, such as New York or Michigan, have received only a fraction of their requests. The crucial question is why do some people get what they need, while others are left without enough?
In my previous post, I argued that equality was a reciprocal idea that presumed suffering should be shared whenever possible by all members of a political community. I then pointed out that departures from this ethic of burden sharing require us to evaluate both the reasons justifying unequal treatment and the harms flowing from actions that could worsen inequality.
Let’s consider reasons first. If it turns out that the distribution of life-saving equipment is being driven by a desire to help states that may vote for the President in the upcoming election, as some have queried, while leaving other states to fend for themselves, such a reason would violate the presumption of shared suffering. Allocating crucial social goods based on political affiliations or ideological differences violates our expectation of fairness when it comes to the equal distribution of a society’s important social goods. Harvard philosopher T.M. Scanlon describes this aspect of equality as the idea of “equal concern.” It would be a betrayal to learn that one’s sacrifices aren’t worth the same as that of another citizen because of personal or partisan loyalty. Instead of political bias, decisions must be based on demonstrated need, a first-come-first-serve basis, or some other criteria that maximizes the good of the whole rather than privileging those who are proximate to power.
But what about the persistent claim that politics has always had a transactional element, where people do favors for each other, often with an expectation that the favor will be returned? While such exchanges no doubt characterize certain ineradicable features of everyday politics (raising funds, winning allies, and so on), a community built on the idea of equality must regard the transactional model as an ever-present danger to that principle. If, in fact, transactionalism came to represent the sum total of politics and policy, there would be no room left for common values at all.
So much for reasons. How about harms that emanate from inequality? Here we can make two observations. First, preserving lives and health can be understood as such paramount concerns that the need to safeguard these interests are qualitatively different from other kinds of transactions and activities. We wouldn’t tolerate considerations of adoration or reprisal to be the criteria for deciding whose life is worth saving, though we might be more willing to accept unsavory decisions when smaller things are at stake.
Second, deploying ideology or affiliation as the basis for distributing life-saving care could be disastrous. Favoring one party’s welfare based on associations or beliefs isn’t a rational way of mitigating the coronavirus’s spread or relieving the bulk of suffering anyway, since diseases recognize neither ideology nor party. Human beings who don’t belong to a politician’s social network or live in his favorite parts of the country also get sick and die. In fact, allocating medical equipment this way could ultimately undermine these objectives because political outsiders, including healthcare workers in neglected states, will inevitably interact with and potentially infect political insiders. Far from ameliorating harms, political favoritism could end up exacerbating the damage from the novel coronavirus, whose effects may already be borne unequally given structural realities concerning wealth and race in America.
We can also examine the inequality of resources at the micro-level: when doctors must choose among patients in rationing dwindling resources. Given scarcity, hospital administrators and caregivers in hotspots may have to make excruciating decisions about who, among more than one patient in critical condition, will get a ventilator. Someone in critical condition denied access to a ventilator, or removed from one so another person can use it, will suffer physical and psychological injury, and possibly death. The fact that healthcare workers must make enormously consequential choices under extreme stress doesn’t exempt them from equality’s demands any more than it would relieve police officers or members of rapid-response teams from an obligation to respect basic rights.
Some have advocated a strictly utilitarian approach to making these morally fraught decisions. For instance, a team of bioethicists recently published guidelines in the New England Journal of Medicine informing doctors that “[l]imited time and information in a Covid-19 pandemic make it justifiable to give priority to maximizing the number of patients that survive treatment with a reasonable life expectancy and to regard maximizing improvements in length of life as a subordinate aim.” According to their view, healthcare workers who go into respiratory failure should get priority for ventilators given their unique skills. Restoring their health means we can save more lives; losing their services makes us all worse off. Beyond that category of workers, decisions should be made by weighing a variety of factors with an eye toward “maximizing benefits” in the sense of “how long the patient is likely to live if treated.” Importantly, the authors also say that priority must not be given to “wealthy or famous persons or the politically powerful above first responders and medical staff.”
Similarly, Michigan considers it permissible for healthcare workers to take into account the fact that an individual performs an “essential social function” (which the state limits to three categories of jobs: healthcare workers on the front lines, public health experts, and critical infrastructure), but cautions that “social worth” is inappropriate, including “social standing, … belief systems, [and] political affiliations.” Others, however, have argued that elected officials should jump to the head of the queue — that a departure from the concept of equal concern is justifiable — because their deaths could be terribly destabilizing for our political system and thereby reduce everyone’s chances of recovery.
But many people worry — rightly, in my view — that a strictly utilitarian framework would inevitably devalue the lives of the elderly and those with health conditions and, as a result, deny some people “equal opportunity to benefit from medical care.” Deborah Hellman and Kate Nicholson argue, for instance, that using “quality of life” as the rubric will improperly inject “myths, fears, and stereotypes” into rationing decisions and therefore run afoul of existing anti-discrimination laws. The Americans with Disabilities Act requires decisions to be based on an individualized assessment of a person’s capacities and needs rather than broad generalizations about one’s condition. Two individuals with a history of the same kind of cancer could have a very different life expectancy depending on a host of factors.
The prospect of unequal treatment may be worse when it comes to medical generalizations about the life expectancy of disabled persons. Hellman and Nicholson think this consideration is defensible when it comes to preferring the young over the old, but it should be ruled out for making allocation decisions involving the disabled. Consider Alabama, whose existing plan would ration scarce resources during “a mass casualty event” by authorizing the denial of life-saving care to individuals with “profound mental retardation, moderate to severe dementia” and those who have suffered from a cardiac arrest or severe burns. “Children with severe neurological problems” could also be cut off from life-saving care when choosing between children. Similarly, Tennessee excludes people with Lou Gehrig’s disease from ventilators.
A practice that consistently prefers the fully capable over the disabled, or even the young over someone who is older, may be no different from a policy that forces a small class of people to bear nearly all the harms of an emergency based on who they are. Just as important, Sam Bagenstos points out that some of the structural conditions I have tried to put to the side may have helped create the scarcity of resources in the first place. If disabled people were better represented among the ranks of doctors, legislators, and policymakers, then it’s far less likely hospitals would be so unprepared in the first place. Their political vulnerability enhances their exposure to bias in triage situations.
That means if we care about equality, we need to make sure our practices don’t merely ratify, or worsen, existing inequities. Indeed, this remains a potent reason to carefully constrain “quality of life” considerations when it comes to rationing life-saving care, for that open-ended inquiry may lead to a persistent disadvantage for not just the disabled, but also poor people and racial minorities, who are already at higher risk for certain kinds of disease and other medical conditions.
What about the possibility of introducing a lottery to decide between two persons who are in a comparable situation, all things considered? It’s a provocative idea, one that has been used to allocate other valuable resources, such as specialty education programs in oversaturated communities. The solution draws on widely-shared intuitions that giving a person “a fair shot” at something can be sufficient to meet equality’s demands. Moreover, you might prefer a system that gave you a roll of the dice if the alternative were a regime that consistently consigned you to low odds. Michigan, for example, would allow a lottery as a tie-breaker to decide who gets a ventilator “in the event that all other criteria are equivalent and scarcity persists.”
Of course, something else could be lost by substituting random chance for an intelligent, yet heart-wrenching decision. A ventilator lottery may be incompatible with maximizing life years. And it may be efficient in a narrow sense — by adopting a mechanism that’s easy to employ, doctors can spend less time agonizing over decisions and more time administering care — but not in the broadest sense of ensuring that valuable resources are productively deployed during an emergency. Some patients might be granted access to life-saving care when there is little prospect for recovery, while those with better odds for leading a meaningful life would be denied what they need for no reason at all.