This draft legal analysis addresses whether existing protocols for rationing scarce resources comply with moral principles and with anti-discrimination laws, including the Americans with Disabilities Act (ADA), and concludes that existing approaches adopting a utilitarian approach will have the effect of discriminating against persons with disabilities and therefore fail to meet ethical and legal requirements.

The article notes that disability rights advocates have already challenged some existing state rationing protocols with explicit exclusionary criteria based on disabilities (as discussed in other posts), but the primary focus of the analysis is protocols that are facially neutral but may be discriminatory in their effect because they will disproportionately disfavor persons with disabilities.

The authors frame the discussion using four simplified scenarios to highlight the potential moral and legal problems raised:

• Efficiency – different time to achieve roughly the same result (allocate to save the most lives)
• Probability of success – different probability of achieving roughly the same result (allocate to those most likely to survive with treatment)
• Life expectancy – different years of survival likely after treatment, if successful (allocate to those with longest life expectancy after treatment)
• Quality of life – different quality of life after treatment, if successful (allocate to those with most expected quality adjusted life years after treatment).

The authors cite existing state protocols that emphasize three of the four approaches (Minnesota – efficiency; Colorado – probability of success; Washington and Oregon – life expectancy) and note that the fourth (quality of life) more commonly arises due to implicitly through undervaluing of a person’s life due to disability status. The article also discusses rationing protocols in New York and Alabama.

According to the article, existing state protocols all appear to adopt a utilitarian perspective with the stated goal of saving the most lives, an approach in tension with existing federal anti-discrimination laws because of the likelihood they will have an adverse effect on access to treatment for persons with disabilities.

The authors conclude that policies or protocols based on quality of life are the most clearly impermissible under the ADA because they conflict with the ADA’s prohibition on use of “myths, fears, and stereotypes” by mischaracterizing the quality of life experienced by persons with disabilities, as well as presenting morally problematic messaging by demeaning the value of such persons’ lives. The authors emphasize the importance of an individualized inquiry focused on actual capacity, rather than use of generalizations about a disability or persons with disabilities. They also conclude that policies based on life expectancy likely violate the ADA and basic moral principles because the long-term life expectancies of persons with disabilities may be shorter on average that those of non-disabled persons.

The authors note that efficiency and probability of success are more complicated because they will likely save more lives in the aggregate, but are likely to produce a significant disparate impact on persons with disabilities. Between the two, however, the authors acknowledge efficiency as a more acceptable rationing principle than probability of success because the former in consistent with weighing all lives equally.

The authors conclude that existing approaches fail to appropriately balance saving lives with ensuring equitable distribution of harms and benefits across the population, arguing that existing protocols focus too heavily on aggregate cost-benefit ratios without due consideration of fair distribution of access to beneficial resources.