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Excerpted From: Govind Persad, Evaluating the Legality of Age-based Criteria in Health Care: from Nondiscrimination and Discretion to Distributive Justice, 60 Boston College Law Review 889 (March, 2019) (296 Footnotes) (Full Document)


GovindPersadIn 2017, proposals to weaken the Affordable Care Act's (ACA) limits on health insurance premiums for older purchasers faced opposition from the American Association for Retired Persons (AARP), which exhorted its members to help “ax the age tax.” A proposed 2011 change in kidney allocation guidelines that would have given organs from younger donors to younger recipients was defended on the basis that, under current policy, “there are years of life being left on the table.” These debates demonstrate the importance and currency of this Article's topic: whether age-based criteria for access to medical treatment should be legal.

I define age-based criteria for access to medical treatment as the use of an individual's chronological age as a factor for determining access to medical care. The following examples, based on real-life scenarios or proposals, illustrate the use of such criteria:

1. Anne, fifty-five, is charged higher premiums for health insurance than Bashirah, twenty-five because Anne is actuarially predicted to need more treatment.

2. Charlotte, sixty-five, is assigned lower priority for kidney transplantation than younger candidates because she already has enjoyed many years of life and likely has fewer future years of life.

3. Deepa, forty-five, is refused infertility treatment because providers believe her prospect of conception is so low that treatment would be futile.

4. Eric, seventy-five, is not encouraged to get a colonoscopy because the evidence base for colonoscopy in his age group is lacking.

5. Francisco, eighty-five, receives poorer quality long-term care because caregivers find it repulsive to care for older people.

6. Gail, fifty, is refused infertility treatment by a provider who believes it is unnatural for older women to give birth.

The two prevailing theoretical approaches to age-based criteria are what I call nondiscrimination and discretion. The nondiscrimination approach identifies with the use of “heightened scrutiny” in equal protection doctrine. Under this approach, age-based criteria are viewed with great skepticism, analogous to race-based criteria: they are permissible--if at all-- only when they advance the interests of disadvantaged groups. The nondiscrimination approach would prohibit the use of age-based criteria in many of the above cases, with the possible exception of Eric's; even in Eric's case, this approach would likely grant him a right to individualized review if he sought a colonoscopy. In contrast, the discretion approach, identified with the use of highly deferential versions of “rational basis” scrutiny in equal protection doctrine, views age-based criteria as broadly permissible and gives wide leeway to medical professionals' judgments. This approach would likely permit the use of age-based criteria in all the above cases, with Gail's case presenting the closest question.

Rather than adopting either the nondiscrimination or the discretion approach, or engaging in an ad hoc balancing of these approaches, this Article defends a distributive justice approach to age-based criteria. Instead of viewing age as a personal characteristic akin to race or sex, the distributive justice approach regards age as relevant in two ways to the distribution of an extremely valuable and widely desirable good, namely years of life.

First, age establishes how much life someone has already enjoyed. Second, age indicates (though imperfectly) how much more life a person is likely to gain from treatment. A distributive justice approach also differentiates justifications grounded in distributive considerations--such as the higher predicted costs of treating older patients--from justifications grounded in animus or false stereotypes about older patients. The former can be justifiable, but the latter never are, and a distributive justice approach would therefore reject the rationales offered in Francisco's and Gail's cases. The distributive justice approach is therefore aligned with the emerging animus-focused approach to antidiscrimination law. The distributive justice approach does better than the discretion approach at addressing genuine unfairness faced by older people, and it does better than the nondiscrimination approach at avoiding reliance on intrusive, costly, and divisive individualized judgments or the adoption of simplistic distributive frameworks that waste precious resources and ignore the compelling moral claims of younger people. The distributive justice approach, however, requires abandoning simple rhetoric, like the claim that “charging older people more” for health insurance is obviously wrong, in favor of more nuanced positions, such as the stance that age-rated premiums can be appropriate but must be designed to be fair to people in different age groups.

Justifications for using age-based criteria can be grouped into at least four different categories: (1) those grounded in the interests of older patients themselves, (2) those grounded in the interests of medical care providers, (3) those grounded in the interests of society as a whole, and (4) those grounded in factors other than interests. I call these justifications “patient-based,” “provider-based,” “societal,” and “non-interest.” Patient-based justifications typically involve safety or harmful side effects. They can also involve patients' financial interests, especially when treatments have higher costs or lower efficacy in older patients. Provider-based justifications can also reflect safety fears: a physician may refuse to be complicit in inflicting harm even on a willing patient. They can also reflect concerns about futility or inefficacy. More controversially, they may involve providers protecting their own financial interests by, for instance, refusing to perform risky procedures on older patients because a failed procedure would hurt their success rates and thereby lower their reimbursements. Societal justifications for age-based criteria typically reflect concerns about the fair distribution of medical resources, especially resources that are scarce (such as transplantable organs) or expensive (such as chemotherapy medications or intensive care beds). These justifications often appeal to the ethical principles that scarce and expensive resources should go to individuals who (1) have a greater prospect of benefit, or (2) are at risk of dying young if they are not helped. Last, non-interest justifications aim to prevent “free-floating evils” that do not implicate interests at all. Table 1 categorizes the above examples using this schema.

Disputes about age-based criteria in medicine often have deeply personal stakes: many of us fear the prospect of ourselves, or our parents, being assigned lower priority for medical treatment in old age. Although I do not expect to defuse controversy, a few clarifications can help avert potential misinterpretations. First, the distributive justice approach regards the use of age-based criteria that may disadvantage some older patients as a fallback option. Treating everyone, if it can be done without sacrificing anything of moral importance, is ethically preferable to denying beneficial treatment to some. That some treatments are less effective in older patients, which supports a patient-based justification for the use of age-based criteria, should also motivate a search for treatments that are effective in all population groups. Similarly, when evaluating societal justifications grounded in resource scarcity, the first option should always be to assess whether genuine scarcity exists, rather than treating scarcity as fixed or unchangeable. Scarcity exists on a spectrum, ranging from conflicts over access to organs (where increasing supply is difficult) to conflicts over access to medicines (where the only barrier is money). Older people's claims to scarce treatment, even if weaker than the claims of younger people, may be stronger than wealthy people's claims to retain wealth that could be used to ameliorate scarcity. But even though scarcity frequently stems from background injustice and resource misallocation, the need to allocate scarce resources fairly persists. Last, because the distributive justice approach appeals to scarcity, it differs from the approach taken by Daniel Callahan and others, which regards the provision of life-extending treatment to older adults as undesirable even in the absence of scarcity.

Second, the distributive justice approach is not committed to the view that age must be the decisive factor in every decision. Hypotheticals that compare deserving older people to undeserving younger ones, or greater numbers of older people to lesser numbers of younger ones, are therefore beside the point. Such hypotheticals do not show that age is irrelevant, but only that it can be outweighed by other considerations. This Article's goal is not to offer a complete theory of justice in health, but to defend the proposition that age-based criteria can be part of a just health care system.

Part I of this Article explains that age discrimination statutes, as well as the Equal Protection Clause and similar state constitutional provisions, permit the use of age-based criteria when those criteria have a rational grounding and do not appeal to animus or bias. These laws therefore leave room open for the use of a distributive justice approach.

Part II argues that the conceptual underpinnings of antidiscrimination law do not support the enactment of new law, or the adoption of new interpretations of existing law, that would reject the use of age-based criteria.

Part III proposes a detailed normative framework for the use of age-based criteria in health care, the lifetime justice approach, that considers the future life patients can gain from treatment and the past years of life they already have experienced. The lifetime justice approach also includes a principle of nonabandonment, which supports the continued provision of supportive medical care to older people in need. Part III then defends this framework against objections--most prominently, the objection that it disregards the moral equality of older people.

Part IV applies the analysis offered in the earlier Parts to age-based criteria employed in various areas of medical practice and health policy, including the examples of transplantation and health insurance discussed at the outset.

[. . .]

I have argued that the law neither does nor should adopt a general skepticism toward age-based criteria. The law, however, also should not leave unchallenged the operation of genuinely invidious age bias. Rather, the law should understand the use of age-based criteria as a way of fairly distributing the important good of years of life. I have proposed an account of how that good should be distributed and have applied my approach to several contexts where age-based criteria are currently in use. I hope that some readers who balk at details of the lifetime justice approach have nevertheless come to see the plausibility of a distributive justice approach to age-based criteria, and that the taxonomy I have provided is useful even to readers who disagree entirely with my conclusions.

One goal of this project is to assist those--including judges, administrators, and legislators, as well as providers and private individuals--who are involved in evaluating age-based criteria. Beyond this aim, the lifetime justice approach I propose can serve as a springboard for future research in law, ethics, and social science. Though I have not discussed how the lifetime justice approach might apply to administrative and legislative decisions regarding the social determinants of health, such as decisions about environmental policy or public health surveillance, this area is an important one for further analysis. So is the use of age-based criteria in private law contexts, such as the calculation of tort damages. I have also intentionally bypassed the challenge of incorporating quality of life considerations into the lifetime justice approach. This task requires identifying a way to measure quality of life that does not discriminate against people with disabilities. Although I was too quick in earlier work to dismiss the possibility of a normatively defensible quality-of-life measure that avoids discrimination against people with disabilities, quality of life is a crucial area for future research. Meanwhile, turning to social science, research into the history of the social movements that have pushed to regulate the use of age-based criteria and into the empirical effects of adopting such criteria would be tremendously valuable.

I close by discussing a final concern: some argue that the adoption of age-based criteria is politically impossible, either because of the political power of older voters or because of widespread public distaste for such criteria. As a descriptive matter, the adoption of age-based criteria is not a political impossibility--many age-based criteria are in wide use. More importantly, even if political barriers to adopting age-based criteria exist at present, analyzing their merits is important because political circumstances can and do change. As Joseph Carens argues, “even if we must take deeply rooted social arrangements as givens for purposes of immediate action in a particular context, we should never forget about our assessment of their fundamental character,” because “otherwise we wind up legitimating what should only be endured.” Changes in the demographics of American society and upheaval in our health care system make the present moment one where changes in existing social arrangements are likely. Careful analysis of the role age should play in those arrangements can help ensure that those changes are steps toward, rather than away from, greater justice.

Assistant Professor, University of Denver Sturm College of Law. JD, Stanford Law School; Ph.D., Stanford University.