Ventilator Rationing Guidelines Are Discriminatory

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 favoring 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, 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 the courts.