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

Public health emergencies can arise in a number of different ways. They can follow a natural disaster, such as Hurricane Katrina, the 2004 tsunami, and the recent earthquakes in Haiti and Chile. They may be man-made, such as the September 11 attacks and the anthrax scare. They may also be infectious. While no pandemic flu had yet reached the severity of the 1918 flu, there have been several scares, including avian flu and most recently H1N1. Few questions are more ethically or legally loaded than determining who will receive scarce medical resources in the event of a widespread 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. This Article explores the legality of the proposed allocation protocols under the Americans with Disabilities Act (ADA) 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 preplanning for public health emergencies