A patient suffering from COVID-19 coronavirus in an intensive care unit at the Oglio Po Hospital in Cremona, Italy, March 19, 2020. (Flavio Lo Scalzo/Reuters)

Last week, Wesley Smith had a Corner post laying out some thoughts and expertise from bioethicist Charlie Camosy, reflecting on the best way to handle the ethical challenges of triaging coronavirus patients who need hospital care — especially as the number of people who need it begins to exceed the capacity of the health-care system, at least in some parts of the country.

This morning, Camosy has his own article on the subject in Religion News Service, and it is worth consulting at length:

If the stress the pandemic has put on the rest of the world is any measure, the U.S. health care system will find itself under pressure to similarly abandon our core values. There are already reports that hospitals in Spain are refusing to treat people over the age of 65. In Italy they are reportedly not treating them when over 60.

These kinds of practices — born out of the simplistic utilitarianism that dominates so much of medicine and medical ethics in the developed West — would be a direct violation of the civil rights of older U.S. Americans. Under the Age Discrimination Act of 1975, hospitals that receive federal funding (which includes Obamacare) “may not exclude, deny, or limit services to, or otherwise discriminate against, persons on the basis of age.”

Happily, New York’s state protocol for rationing ventilators rejects advanced age as a triage criterion “because it discriminates against the elderly.” Indeed, the document notes that age “already factors indirectly into any criteria that assess the overall health of an individual” and “there are many instances where an older person could have a better clinical outlook than a younger person.” Hospitals, medical teams or rationing officers “should utilize clinical factors only to evaluate a patient’s likelihood of survival” when allocating scarce resources.

But Washington state, also a center of the outbreak in the U.S., has taken a much different approach. According to reporting from NBC News, last week 280 clinicians in that state got on a conference call to discuss their own protocols. They agreed that if they reached “crisis standards” things would have to change dramatically.

“If you are above a certain age and we have a shortage of ventilators, you don’t get one,” said Cassie Sauer, CEO of the Washington State Hospital Association.

This practice in Washington State hospitals stems from guidance issued by the state’s health department for managing scarce resources during a crisis. The guidance instructs health-care providers to allocate resources to patients based on, among other criteria, their “loss of . . . physical ability, cognition and general health.”

I agree with Camosy that this likely constitutes an example of illegal and unethical age discrimination. In a March 23 memo, attorney Charles LiMandri, who serves as special counsel for the Freedom of Conscience Defense Fund and the Thomas More Society legal group, offers the following assessment, based in particular on the federal Age Discrimination Act of 1975:

Federal law requires that decisions regarding the critical care of patients during the current crisis not discriminate on the basis of disability or age. In this respect, anticipated longevity or quality of life are inappropriate issues for consideration. Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions.

Unfortunately, in a health-care crisis like the one we’re currently facing, some degree of health-care rationing is simply unavoidable. But as Smith, Camosy, and LiMandri each insist (whether from an ethical or legal perspective) those rationing decisions should be based on medical judgments discerned in the unique circumstances of each hospital and from patient to patient — not ordered clumsily by top-down instructions from government officials insisting that those with lower “quality of life” or cognitive functioning automatically lose access to care when resources are scarce.