Legal scholarship frequently deals with the theoretical: a scholar identifies an interesting legal problem or inconsistency, and by applying an incisive legal analysis, attempts to solve it. This is the typical process of the legal academic. This endeavor and type of legal scholarship and focus is important, and may even be prescient, but—to echo a well-worn critique—it may often lack real-world and immediate practical effect.
This is not the case for Professor Jessica Mantel, who, colleagues know, is an important voice within health law scholarship, and is well-known for her clarifying work on health care finance topics in an era of dynamic change. Her work is grounded in practical import. Professor Mantel shows her range through her recent work, exemplified by Age is More Than Just a Number: A Legal and Ethical Defense of Age-Based Triage Protocols. This work is particularly important in a world and a field that has been pressure-tested and scrambled following the COVID-19 pandemic.
In this piece, Mantel spends time analyzing the legality of age-related protocols, a gap existing scholarship had failed to fill. She then addresses the ethical arguments around the triaging and tiering of scarce medical resources during a period of limited resources (like the COVID-19 pandemic). This part of her article is an impressive tour through utilitarian and egalitarian theories, procedural justice concerns, and liberty interest analysis. By canvasing the literature, she grounds her suggestions among the well-respected company of bioethics scholars.
After surveying and categorizing the ethics-related literature, Mantel then evaluates the three main types of justifications for including age-based criteria and concludes that none of them provides a convincing ethical defense for prioritizing the treatment of younger patients over older ones. These justifications include using age as a proxy for patients’ likelihood of survival (which raises major ethical concerns based on the failure to conduct individualized assessments), using age as a proxy for patients’ life expectancy and quality of life (which devalues the lives of elderly), and using age-based rationing in an effort to give younger patients the opportunity to reach a natural lifespan (which fails to account for egalitarian and democratic concerns).
Instead, Mantel defends age-based triage protocols under a theory of prudential prioritization—arguing that it is appropriate for protocols to give preference to younger patients in times of scarce resources because doing so shows regard for all individuals by working to lessen everyone’s risk of dying young. This approach uses a veil of ignorance to push protocols to ensure that patients “experience as much of their life plans as possible,” and to design protocols that lessen the risk “of dying young by giving preference to [patients’] future younger selves over their future older selves” (P. 426). Because this approach gives all people an equal opportunity—“no one knows whether they will experience medical scarcity during a public health crisis” in their lives (P. 427)—Mantel argues that it expresses equal respect and dignity for individuals of all ages. Indeed, as Mantel notes, every starting position is equal, and “whether prudent prioritization benefits or burdens any one individual is purely a matter of chance or luck” (P. 427).
But what about the law? Mantel argues that, although the Age Discrimination Act of 1975 does not ban age-based protocols, such proposals would likely violate the statute’s implementing regulations as currently interpreted. After identifying the relevant regulations adopted by the U.S. Department of Health and Human Services and explaining how they are narrower than what the statute requires, she calls for existing regulations to be amended to allow the policies for which she advocates.
Like her other scholarship, Mantel takes on a relevant problem, provides an interesting analysis of the problem, and leaves the reader with a roadmap of implementable and practical solutions—in this case, a regulatory reinterpretation. This type of work—always important within health law scholarship—is made all the more important on the heels of the devastating COVID-19 pandemic. And as she describes in the article, she presents “a more nuanced justification … that protects an individual’s interest in reducing the risk of dying young while promoting equality in the opportunity to live a long life” (P. 440). Keeping with the theme of implementable and practical solutions, she challenges the regulators’ reading of the Age Discrimination Act of 1975. Her persuasive and well-argued thesis convinces the reader, too.
