Playing God: The Legality of Plans Denying Scarce Resources to People with Disabilities in Public Health Emergencies

Wendy F. Hensel, Georgia State University
Leslie E. Wolf, Georgia State University

Abstract

The threat of an international pandemic captivated much of the news media in 2009. The spread of H1N1 in the United States ultimately prompted President Obama to declare a state of national emergency. It was predicted that hospitals would be overburdened and shortages would occur, necessitating difficult decisions about who should get access to scarce medical resources, such as ventilators and critical care beds. Few questions are more ethically or legally loaded than determining who will receive scarce medical resources in the event of a wide-spread public health emergency. The answer will often mean the difference between life and death for affected Americans. Despite this reality, or perhaps because of it, there has been little guidance from the federal and state governments on how to prioritize distribution of those resources among individuals. To fill this gap, some public health and medical organizations promulgated protocols that set forth a hierarchy of resource allocation in response to the predicted H1N1 pandemic. Although these efforts at advance planning are to be lauded, they raise a number of troubling civil rights issues. Several of the protocols exclude some people with disabilities from receiving care even when their disabilities do not affect the likely success of the medical interventions at issue. Both the legality of such plans and the ethical implications of promoting the health of the community at the expense of people with disabilities are highly problematic. Although the H1N1 threat appears to be waning in 2010, similar public health emergencies will certainly arise in the future. This paper explores the legality of the proposed allocation protocols under the Americans with Disabilities Act and the Rehabilitation Act. It also evaluates their compatibility with the ethical principles that guide public health decisions and discusses their implications for people with disabilities in the pre-planning of public health emergencies.