Destructuring disability: Rationing of health care and unfair discrimination against the sick

Harvard Civil Rights-Civil Liberties Law Review

Volumn 31, Issue 1, 1996, Pages 48-86

  Orentlicher, David ^a,b,c,d,e  

^a INDIANA UNIVERSITY   (United States)

^b NORTHWESTERN UNIVERSITY   (United States)

^c BRANDEIS UNIVERSITY   (United States)

^d HARVARD MEDICAL SCHOOL   (United States)

^e HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 9444297819     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (181)

1. William B. Schwartz, The Inevitable Failure of Current Cost-containment Strategies: Why They Can Provide Only Temporary Relief, 257 JAMA 220 (1987).
2. TIMOTHY J. HAUSER & JAMES D. JAMESON, U.S. DEP'T OF COMMERCE, U.S. INDUSTRIAL OUTLOOK, 1993, 42-1 (1993).
3. See, e.g., Joseph A. Califano, Jr., Rationing Health Care: The Unnecessary Solution, 140 U. PA. L. REV. 1525, 1527-28 (1992); Victor R. Fuchs, No Pain, No Gain: Perspectives on Cost Containment, 269 JAMA 631, 632 (1993).
4. See, e.g., Joseph A. Califano, Jr., Rationing Health Care: The Unnecessary Solution, 140 U. PA. L. REV. 1525, 1527-28 (1992); Victor R. Fuchs, No Pain, No Gain: Perspectives on Cost Containment, 269 JAMA 631, 632 (1993).
5. See, e.g., David U. Himmelstein & Steffie Woolhandler, Cost Without Benefit: Administrative Waste in U.S. Health Care, 314 NEW ENG. J. MED. 441 (1986); Califano, supra note 3, at 1528.
6. See, e.g., Jan Blustein & Theodore R. Marmor, Cutting Waste by Making Rules: Promises, Pitfalls, and Realistic Prospects, 140 U. PA. L. REV. 1543, 1564 (1992) (observing that eliminating all "wasteful" care means cutting some medically beneficial care); Michael J. Graetz & Jerry L. Mashaw, Ethics, Institutional Complexity and Health Care Reform: The Struggle for Normative Balance, 10 J. CONTEMP. HEALTH L. & POL'Y 93, 95 (1994).
7. See, e.g., Jan Blustein & Theodore R. Marmor, Cutting Waste by Making Rules: Promises, Pitfalls, and Realistic Prospects, 140 U. PA. L. REV. 1543, 1564 (1992) (observing that eliminating all "wasteful" care means cutting some medically beneficial care); Michael J. Graetz & Jerry L. Mashaw, Ethics, Institutional Complexity and Health Care Reform: The Struggle for Normative Balance, 10 J. CONTEMP. HEALTH L. & POL'Y 93, 95 (1994).
8. See Leonard M. Fleck, Just Health Care Rationing: A Democratic Decisionmaking Approach, 140 U. PA. L. REV. 1597, 1603 (1992).
9. See David M. Eddy, Health System Reform: Will Controlling Costs Require Rationing Services?, 272 JAMA 324 (1994). As the discussion suggests, this Article is using the term "rationing" to mean the denial of health care services because the services are unaffordable rather than because there is a natural shortage of the services, as with organ transplants. Some commentators object to characterizing rationing as a denial of services on cost grounds. See, e.g., Clark C. Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PA. L. REV. 1755, 1758-64 (1992). We do not, for example, say that we are rationing houses or automobiles when people are unable to purchase their desired house or car. Nevertheless, the term "rationing" is commonly used to mean the denial of health care services because the services are unaffordable. See, e.g., Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 695 n.2 (1994); Philip G. Peters, Jr., Health Care Rationing and Disability Rights, 70 IND. L.J. 491, 492 (1995). Health care services are different from houses and automobiles because of the existence of health care insurance, which commonly promises to cover all "medically necessary" services. Since not all medically beneficial services can be covered, insurers must decide whether a particular service is medically necessary. Some patients will be denied medically unnecessary services because of the costs, but, since ability to pay is not a factor within a particular insurance plan, the denial of coverage raises the same issues and concerns as does a denial of treatment based on a natural shortage of resources.
10. See David M. Eddy, Health System Reform: Will Controlling Costs Require Rationing Services?, 272 JAMA 324 (1994). As the discussion suggests, this Article is using the term "rationing" to mean the denial of health care services because the services are unaffordable rather than because there is a natural shortage of the services, as with organ transplants. Some commentators object to characterizing rationing as a denial of services on cost grounds. See, e.g., Clark C. Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PA. L. REV. 1755, 1758-64 (1992). We do not, for example, say that we are rationing houses or automobiles when people are unable to purchase their desired house or car. Nevertheless, the term "rationing" is commonly used to mean the denial of health care services because the services are unaffordable. See, e.g., Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 695 n.2 (1994); Philip G. Peters, Jr., Health Care Rationing and Disability Rights, 70 IND. L.J. 491, 492 (1995). Health care services are different from houses and automobiles because of the existence of health care insurance, which commonly promises to cover all "medically necessary" services. Since not all medically beneficial services can be covered, insurers must decide whether a particular service is medically necessary. Some patients will be denied medically unnecessary services because of the costs, but, since ability to pay is not a factor within a particular insurance plan, the denial of coverage raises the same issues and concerns as does a denial of treatment based on a natural shortage of resources.
11. See David M. Eddy, Health System Reform: Will Controlling Costs Require Rationing Services?, 272 JAMA 324 (1994). As the discussion suggests, this Article is using the term "rationing" to mean the denial of health care services because the services are unaffordable rather than because there is a natural shortage of the services, as with organ transplants. Some commentators object to characterizing rationing as a denial of services on cost grounds. See, e.g., Clark C. Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PA. L. REV. 1755, 1758-64 (1992). We do not, for example, say that we are rationing houses or automobiles when people are unable to purchase their desired house or car. Nevertheless, the term "rationing" is commonly used to mean the denial of health care services because the services are unaffordable. See, e.g., Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 695 n.2 (1994); Philip G. Peters, Jr., Health Care Rationing and Disability Rights, 70 IND. L.J. 491, 492 (1995). Health care services are different from houses and automobiles because of the existence of health care insurance, which commonly promises to cover all "medically necessary" services. Since not all medically beneficial services can be covered, insurers must decide whether a particular service is medically necessary. Some patients will be denied medically unnecessary services because of the costs, but, since ability to pay is not a factor within a particular insurance plan, the denial of coverage raises the same issues and concerns as does a denial of treatment based on a natural shortage of resources.
12. See David M. Eddy, Health System Reform: Will Controlling Costs Require Rationing Services?, 272 JAMA 324 (1994). As the discussion suggests, this Article is using the term "rationing" to mean the denial of health care services because the services are unaffordable rather than because there is a natural shortage of the services, as with organ transplants. Some commentators object to characterizing rationing as a denial of services on cost grounds. See, e.g., Clark C. Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?, 140 U. PA. L. REV. 1755, 1758-64 (1992). We do not, for example, say that we are rationing houses or automobiles when people are unable to purchase their desired house or car. Nevertheless, the term "rationing" is commonly used to mean the denial of health care services because the services are unaffordable. See, e.g., Mark A. Hall, Rationing Health Care at the Bedside, 69 N.Y.U. L. REV. 693, 695 n.2 (1994); Philip G. Peters, Jr., Health Care Rationing and Disability Rights, 70 IND. L.J. 491, 492 (1995). Health care services are different from houses and automobiles because of the existence of health care insurance, which commonly promises to cover all "medically necessary" services. Since not all medically beneficial services can be covered, insurers must decide whether a particular service is medically necessary. Some patients will be denied medically unnecessary services because of the costs, but, since ability to pay is not a factor within a particular insurance plan, the denial of coverage raises the same issues and concerns as does a denial of treatment based on a natural shortage of resources.
13. See Eddy, supra note 7.
14. Health care is already being rationed by denying care to patients who will derive less benefit than other patients. For example, when decisions are made about allocating the limited supply of organs for transplantation, preference is given to the patients in whom the organs will survive the longest. Council on Ethical and Judicial Affairs, American Medical Association, Ethical Considerations in the Allocation of Organs and Other Scarce Medical Resources Among Patients, 155 ARCH. INTERNAL MED. 29, 36 (1995). Under some proposals, care would be withheld from the elderly, the terminally ill, or the permanently unconscious. See, e.g., Lawrence J. Schneiderman, Nancy S. Jecker et al., Medical Futility: Its Meaning and Ethical Implications, 112 ANNALS INTERNAL MED. 949 (1990); Gov. Lamm Asserts Elderly, If Very III, Have "Duty to Die," N.Y. TIMES, Mar. 29, 1984, at A16; see generally DANIEL CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING SOCIETY (1987).
15. Health care is already being rationed by denying care to patients who will derive less benefit than other patients. For example, when decisions are made about allocating the limited supply of organs for transplantation, preference is given to the patients in whom the organs will survive the longest. Council on Ethical and Judicial Affairs, American Medical Association, Ethical Considerations in the Allocation of Organs and Other Scarce Medical Resources Among Patients, 155 ARCH. INTERNAL MED. 29, 36 (1995). Under some proposals, care would be withheld from the elderly, the terminally ill, or the permanently unconscious. See, e.g., Lawrence J. Schneiderman, Nancy S. Jecker et al., Medical Futility: Its Meaning and Ethical Implications, 112 ANNALS INTERNAL MED. 949 (1990); Gov. Lamm Asserts Elderly, If Very III, Have "Duty to Die," N.Y. TIMES, Mar. 29, 1984, at A16; see generally DANIEL CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING SOCIETY (1987).
16. Health care is already being rationed by denying care to patients who will derive less benefit than other patients. For example, when decisions are made about allocating the limited supply of organs for transplantation, preference is given to the patients in whom the organs will survive the longest. Council on Ethical and Judicial Affairs, American Medical Association, Ethical Considerations in the Allocation of Organs and Other Scarce Medical Resources Among Patients, 155 ARCH. INTERNAL MED. 29, 36 (1995). Under some proposals, care would be withheld from the elderly, the terminally ill, or the permanently unconscious. See, e.g., Lawrence J. Schneiderman, Nancy S. Jecker et al., Medical Futility: Its Meaning and Ethical Implications, 112 ANNALS INTERNAL MED. 949 (1990); Gov. Lamm Asserts Elderly, If Very III, Have "Duty to Die," N.Y. TIMES, Mar. 29, 1984, at A16; see generally DANIEL CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING SOCIETY (1987).
17. Health care is already being rationed by denying care to patients who will derive less benefit than other patients. For example, when decisions are made about allocating the limited supply of organs for transplantation, preference is given to the patients in whom the organs will survive the longest. Council on Ethical and Judicial Affairs, American Medical Association, Ethical Considerations in the Allocation of Organs and Other Scarce Medical Resources Among Patients, 155 ARCH. INTERNAL MED. 29, 36 (1995). Under some proposals, care would be withheld from the elderly, the terminally ill, or the permanently unconscious. See, e.g., Lawrence J. Schneiderman, Nancy S. Jecker et al., Medical Futility: Its Meaning and Ethical Implications, 112 ANNALS INTERNAL MED. 949 (1990); Gov. Lamm Asserts Elderly, If Very III, Have "Duty to Die," N.Y. TIMES, Mar. 29, 1984, at A16; see generally DANIEL CALLAHAN, SETTING LIMITS: MEDICAL GOALS IN AN AGING SOCIETY (1987).
18. For example, as many private health insurers currently do, President Clinton's health care reform proposal would have funded psychiatric care less generously than non-psychiatric care. See H.R. 3600, 103d Cong., 1st Sess. § 1115 (1993).
19. See McGann v. H & H Music Co., 946 F.2d 401 (5th Cir. 1991), cert. denied, 113 S. Ct. 482 (1992) (holding that reducing maximum medical benefits given to an employee with AIDS was not unlawful discrimination under ERISA because the reduction applied equally to all employees).
20. For example, patients with chronic lung disease may do poorly with some treatments for coronary artery disease because the treatments are designed on the assumption that coronary artery disease patients will have normal lung function. See, e.g., Roger W. Evans, Need, Demand, and Supply in Organ Transplantation, 24 TRANSPLANTATION PROCEEDINGS 2152 (1992).
21. 42 U.S.C. §§ 12101-12213 (Supp. 1993).
22. 29 U.S.C. § 794 (Supp. 1995).
23. See, e.g., Mary A. Crossley, Of Diagnoses and Discrimination: Discriminatory Nontreatment of Infants with HIV Infection, 93 COLUM. L. REV. 1581, 1646-55 (1993); E. Haavi Morreim, Futilitarianism, Exoticare, and Coerced Altruism: The ADA Meets Its Limits, 25 SETON HALL L. REV. 883, 894-97, 922-25 (1995); Peters, supra note 7, at 523-25, 545-46.
24. See, e.g., Mary A. Crossley, Of Diagnoses and Discrimination: Discriminatory Nontreatment of Infants with HIV Infection, 93 COLUM. L. REV. 1581, 1646-55 (1993); E. Haavi Morreim, Futilitarianism, Exoticare, and Coerced Altruism: The ADA Meets Its Limits, 25 SETON HALL L. REV. 883, 894-97, 922-25 (1995); Peters, supra note 7, at 523-25, 545-46.
25. See, e.g., Mary A. Crossley, Of Diagnoses and Discrimination: Discriminatory Nontreatment of Infants with HIV Infection, 93 COLUM. L. REV. 1581, 1646-55 (1993); E. Haavi Morreim, Futilitarianism, Exoticare, and Coerced Altruism: The ADA Meets Its Limits, 25 SETON HALL L. REV. 883, 894-97, 922-25 (1995); Peters, supra note 7, at 523-25, 545-46.
26. In addition to ability to pay, other factors have played an important role in determining access to care. Health care plans, both public and private, have denied coverage for treatments when costs are high and benefits uncertain. See, e.g., William P. Peters & Mark C. Rogers, Variation in Approval by Insurance Companies of Coverage for Autologous Bone Marrow Transplantation for Breast Cancer, 330 NEW ENG. J. MED. 473 (1994) (reporting on the variability among private health insurers in approving coverage for breast cancer patients in clinical research trials).
27. See, e.g., Daniel E. Singer, Phyllis L. Carr, Albert G. Mulley, & George E. Thibault, Rationing Intensive Care - Physician Responses to a Resource Shortage, 309 NEW ENG. J. MED. 1155 (1983) (recounting one hospital's response to reduction in ICU capacity).
28. Tennessee once took this approach to limit its Medicaid expenditures. See Alexander v. Choate, 469 U.S. 287 (1985) (allowing a reduction in inpatient days covered by Medicaid).
29. See George W. Wood II, Lower Back Pain and Disorders of Intervertebral Discs, in CAMPBELL'S OPERATIVE ORTHOPAEDICS 3715 (A.H. Crenshaw ed., 8th ed. 1992) (discussing disc disease and its treatment).
30. This is essentially how the British health care system works. See generally HENRY A. AARON & WILLIAM B. SCHWARTZ, THE PAINFUL PRESCRIPTION: RATIONING HEALTH CARE (1984).
31. See, e.g., H.R. 3600, 103d Cong., 1st Sess. § 1115(c)(2)(D) (1993). The Oregon Health Plan, which serves state Medicaid beneficiaries presents another example of rationing primarily by service. Under the Oregon plan, 696 different health care services have been ranked in terms of priority, and coverage is provided through number 565. Michael Janofsky, Oregon Starts to Extend Health Care, N.Y. TIMES, Feb. 19, 1994, at 6.
32. As the preceding discussion suggests, when the issue is discrimination against persons with disabilities in access to health care, we are often dealing with comparisons between persons with different kinds of disabilities (for example, heart disease vs. psychiatric disease) or comparisons between persons with different degrees of the same disability (for example, mild vs. severe psychiatric disease), rather than simple comparisons between persons with or without disabilities. This is largely because most people who need medical treatment are considered disabled under the definitions of anti-discrimination law. See infra notes 35-38 and accompanying text.
33. This analysis easily generalizes to other kinds of rationing decisions. Once we move to methods for rationing other than ability to pay, the issues and concerns that are raised by decisions about allocating limited resources are the same whether the resource is limited because of natural shortage or cost constraints. See supra note 7. 24 See, e.g., James L. Levenson & Mary Ellen Olbrisch, Psychosocial Evaluation of Organ Transplant Candidates: A Comparative Survey of Process, Criteria, and Outcomes in Heart, Liver, and Kidney Transplantation, 34 PSYCHOSOMATICS 317 (1993).
34. H.R. REP. NO. 485 (II), 101st Cong., 2d Sess., at 22 (1990).
35. 42 U.S.C. §§ 12111-12117 (Supp. 1993).
36. 42 U.S.C. § 12132 (Supp. 1993).
37. 42 U.S.C. § 12181(7)(J) (Supp. 1993).
38. 42 U.S.C. §§ 12132, 12184 (Supp. 1993).
39. 42 U.S.C. § 12181(7)(F) (Supp. 1993).
40. 42 U.S.C. §§ 12132, 12182(a) (Supp. 1993).
41. 29 U.S.C. § 794(a) (West Supp. 1995).
42. 42 U.S.C. §§ 12111(2), 12131(1), 12181(6),(7) (Supp. 1993).
43. See infra notes 72-73 and accompanying text.
44. See Peters, supra note 7, at 505-08.
45. See 28 C.F.R. § 36.104 (1994); 29 C.F.R. § 1630.2 (1994).
46. H.R. REP. NO. 485 (II), supra note 25, at 52.
47. Id.
48. 42 U.S.C. § 12102(2) (Supp. 1993). Common conditions that qualify as a disability include diabetes, 28 C.F.R. § 36.104, epilepsy, id., alcoholism, id., and morbid obesity, Cook v. Rhode Island, 10 F.3d 17 (1st Cir. 1993).
49. See David Orenthlicher, Rationing and the Americans with Disabilities Act, 271 JAMA 308, 309 (1994).
50. 42 U.S.C. § 12182(a) (Supp. 1993).
51. Id.
52. 42 U.S.C. § 12181(7)(F) (Supp. 1993).
53. Disparate impact discrimination occurs when a policy that is facially neutral with respect to a particular group nevertheless affecls members of that group differently from others.
54. 42 U.S.C. § 12182(b)(2)(A)(i) (Supp. 1993) (defining discrimination to include "the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability").
55. See Levenson & Olbrisch, supra note 24, at 319. Potential rejection of a transplanted organ by the recipient's body is delayed or prevented by transplanting organs between people who are immunologically similar and by giving drugs to the recipient that block the immune system from rejecting the organ.
56. See, e.g., Albert R. Jonsen, Ethical Issues in Compliance, in COMPLIANCE IN HEALTH CARE 114 (R. Brian Haynes et al. eds., 1979); David Orentlicher, Denying Treatment to the Noncompliant Patient, 265 JAMA 1579, 1580-81 (1991).
57. See, e.g., Albert R. Jonsen, Ethical Issues in Compliance, in COMPLIANCE IN HEALTH CARE 114 (R. Brian Haynes et al. eds., 1979); David Orentlicher, Denying Treatment to the Noncompliant Patient, 265 JAMA 1579, 1580-81 (1991).
58. 42 U.S.C. § 12201(c)(1) (Supp. 1993). 49 42 U.S.C. § 12182(b)(2)(A)(i) (Supp. 1993).
59. Transplanted organs may not function as long in persons with schizophrenia because they are less likely than persons without schizophrenia to take the anti-rejection drugs.
60. See text accompanying note 32.
61. 729 F.2d 144 (2d Cir. 1984).
62. See id. at 146.
63. Id. Both the parents and the physicians agreed not to treat the infant.
64. Id. at 156-60.
65. See id. at 156.
66. For example, a physician would be prohibited from entirely refusing to provide care to persons with HIV infection. See United States v. Morvant, 843 F. Supp. 1092, 1094-96 (E.D. La. 1994) (holding that a dentist could be liable under the ADA for denying services on account of a patient's HIV infection).
67. Joe Leigh Simpson, Genetic Counseling and Prenatal Diagnosis, in OBSTETRICS: NORMAL AND PROBLEM PREGNANCIES 269, 278 (Steven G. Gabbe et al. eds., 2d ed. 1991).
68. Susan P. & Stephen G. Pauker, Prenatal Diagnosis - Why Is 35 a Magic Number?, 330 NEW ENG. J. MED. 1151 (1994).
69. See University Hospital, 729 F.2d at 156 ("[The Rehabilitation Act] prohibits discrimination against a handicapped individual only where the individual's handicap is unrelated to . . . the services in question."); Crossley, supra note 15, at 1648-50.
70. University Hospital, 729 F.2d at 157.
71. See Bower v. American Hospital Association, 476 U.S. 610, 654-55 (1986) (White, O'Connor, and Brennan, JJ., dissenting).
72. While fewer than 1 in 1000 persons are born with an obstruction of their small intestine, see Deborah C. Rubin, Small Intestine: Anatomy and Structural Anomalies, in TEXTBOOK OF GASTROENTEROLOGY 1555, 1567 (Tadataka Yamada et al. eds., 2d ed. 1995), more than 1 in 10 infants with Down syndrome are born with such an obstruction. MARK SELIKOWITZ, DOWN SYNDROME: THE FACTS 85-86 (1990).
73. While fewer than 1 in 1000 persons are born with an obstruction of their small intestine, see Deborah C. Rubin, Small Intestine: Anatomy and Structural Anomalies, in TEXTBOOK OF GASTROENTEROLOGY 1555, 1567 (Tadataka Yamada et al. eds., 2d ed. 1995), more than 1 in 10 infants with Down syndrome are born with such an obstruction. MARK SELIKOWITZ, DOWN SYNDROME: THE FACTS 85-86 (1990).
74. Physicians could, for example, deny dialysis or laser treatment to prevent loss of vision to patients with diabetes. Cf. Crossley, supra note 15, at 1649-50 (discussing how HIV-infected children might not be protected against unfair denials of immunization since the decision to immunize would likely be affected by the child's compromised immune status). 65 Physician prognostications in these cases may be inaccurate. In one case, physicians predicted that the baby would have no self-awareness, would experience only pain, and would live for only a short time, yet an article recently reported that the child was 10 years old and attending a school for developmentally disabled children. See B.D. Colen, What Ever Happened to Baby Jane Doe?, 24(3) HASTINGS CENTER REP. 2 (1994).
75. Glanz v. Vernick, 756 F. Supp. 632, 638 (D. Mass. 1991).
76. See Crossley, supra note 15, at 1650-55 (arguing for this approach and calling it "The Medical Effects Approach"); Einer Elhauge, Allocating Health Care Morally, 82 CAL. L. REV. 1449, 1515 n.205 (1994).
77. Glanz, 756 F. Supp. at 638.
78. In the Baby Doe cases, the parents declined surgery for their children. Johnson v. Thompson, 971 F.2d 1487, 1491 (10th Cir. 1992); United States v. University Hospital, 729 F.2d 144, 146 (2d Cir. 1984). Subsequent court decisions have suggested that the Baby Doe courts found no unlawful discrimination because there was no denial of treatment by the physicians or hospitals; rather, the babies were not treated because their parents decided against treatment. See In re Baby "K", 832 F. Supp. 1022, 1028 (E.D. Va. 1993), aff'd, 16 F.3d 590 (4th Cir.), cert. denied, 115 S. Ct. 91 (1994); Glanz v. Vernick, 750 F. Supp. 39, 46 (D. Mass. 1990). However, the Baby Doe opinions are written as if treatment were denied by the health care providers. Moreover, as Justice White wrote, anti-discrimination law is concerned not only with physicians' decisions but also their advice or recommendations to patients. Bowen v. American Hospital Association, 476 U.S. 610, 653 n.7 (1986) (White, J., dissenting). Patients and families are heavily influenced by the recommendations of their physicians. Indeed, in one of the cases, parents who originally agreed with the physicians' recommendations later brought a suit charging unlawful discrimination. Johnson, 971 F.2d at 1491. In many cases, the patients and families will not realize that the physician's recommendations may reflect value judgments about quality of life with which the patient or family disagrees. See, e.g., Johnson, 971 F.2d at 1491; see also David Orentlicher, The Illusion of Patient Choice in End of Life Decisions, 267 JAMA 2101 (1992); David Orentlicher, The Limitations of Legislation, 53 MD. L. REV. 1255, 1280-88 (1994) (both articles discussing studies that have demonstrated that decisions about life-sustaining medical treatment reflect the values and preferences of physicians much more than those of their patients or their surrogate decisionmakers).
79. See, e.g., Shashi Kumar et al., Orthotopic Liver Transplantation for Alcoholic Liver Disease, 11 HEPATOLOGY 159 (1990). But see Steven Schenker et al., Should Patients with End-Stage Alcoholic Liver Disease Have a New Liver?, 11 HEPATOLOGY 314 (1990).
80. See, e.g., Shashi Kumar et al., Orthotopic Liver Transplantation for Alcoholic Liver Disease, 11 HEPATOLOGY 159 (1990). But see Steven Schenker et al., Should Patients with End-Stage Alcoholic Liver Disease Have a New Liver?, 11 HEPATOLOGY 314 (1990).
81. For example, when Crossley argues for the bona fide medical judgment standard, she concedes its inconsistency with the ADA's principle of reasonable accommodations. Crossley, supra note 15, at 1654-55 & n.280.
82. 42 U.S.C. § 12182(b)(2)(A)(ii) (Supp. 1993).
83. 42 U.S.C. § 12182(b)(2)(A)(iii) (Supp. 1993).
84. For example, employers engage in unlawful discrimination if they do not make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee." 42 U.S.C. § 12112(b)(5)(A) (Supp. 1993). Similarly, providers of public services must make "reasonable modifications to rules, policies, or practices" to enable persons with disabilities to receive their services or participate in their programs. 42 U.S.C. § 12131(2) (Supp. 1993); see also Peters, supra note 7, at 507-08 (describing the principle of reasonable accommodations).
85. Psychiatric illness interferes with a person's ability to follow routines and keep schedules. Consequently, people with psychiatric illness usually need more external guidance in exercising control over their lives. These individuals could have better compliance with medical regiments if they were able to live in a more structured environment. Yet our society has evolved with a low level of external structure because most people can muster high levels of internal structure. Had we designed our society with the needs of the disabled in mind, we would have a society in which disabilities had much less of an impact on a person's ability to function.
86. See MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 21-22 (1990); Cass R. Sunstein, Why Markets Don't Stop Discrimination, in REASSESSING CIVIL RIGHTS 22, 33 (Ellen Frankel Paul et al. ed., 1991) (discussing how "markets incorporate the norms and practices of advantaged groups").
87. See MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 21-22 (1990); Cass R. Sunstein, Why Markets Don't Stop Discrimination, in REASSESSING CIVIL RIGHTS 22, 33 (Ellen Frankel Paul et al. ed., 1991) (discussing how "markets incorporate the norms and practices of advantaged groups").
88. Race-based affirmative action programs apply this principle in recognizing that it is not enough simply to cease racial discrimination; it is also necessary to compensate for the effect of past discrimination. Glen Loury, Why Should We Care About Group Inequality?, 5 SOC. PHIL & POL'Y 249 (1987). Similarly, the Supreme Court has upheld federal statutes that compensate for past discrimination against women when the statutes have been challenged as discriminating against men. See Califano v. Webster, 430 U.S. 313, 318 (1977) (allowing Congress to exclude more lower-earning years for women than for men when calculating average monthly wages for Social Security retirement benefits in order to compensate for historical gender discrimination in well-paying jobs); Schlesinger v. Ballard, 419 U.S. 498, 508 (1975) (allowing Congress to give female officers in the Navy a longer period of active service than male officers before mandatory discharge for lack of promotion, because women generally had fewer opportunities for the kind of accomplishments that would lead to a promotion).
89. The interpretations of the Rehabilitation Act are important because the ADA includes a provision stating that it should be construed to apply no more lenient a standard than that applied under the Rehabilitation Act. 42 U.S.C. § 12201(a) (Supp. 1993); see also Myers v. Hose, 50 F.3d 278, 281 (4th Cir. 1995) (holding that "whether suit is filed against a federally-funded entity under the Rehabilitation Act or against a private employer under the ADA, the substantive standards for determining liability are the same").
90. 469 U.S. 287 (1985) (upholding Tennessee's 14-day annual cap on coverage for hospitalization under Medicaid against a claim that the cap amounted to discriminatory rationing by service against persons with disabilities, given the greater need of such persons for hospitalization).
91. Id. at 296-97.
92. Id. at 295-96.
93. This lack of consideration appears to reflect both the paucity of rationing cases decided under anti-discrimination law and the view that anti-discrimination law has little to say about rationing by patient. The Choate case is the only Supreme Court case to address rationing decisions on substantive grounds. The Court summarily rejected the plaintiffs' reasonable accommodation claim on the ground that their proposed remedy would impose unduly burdensome administrative costs but provided little evidence for such a holding. Choate, 469 U.S. at 306-09.
94. See, e.g., New Mexico Ass'n for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir. 1982); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
95. New Mexico Ass'n for Retarded Citizens, 678 F.2d at 854-55.
96. See S. Takemoto & P.I. Terasaki, A Comparison of Kidney Transplant Survival in White and Black Recipients, 21 TRANSPLANTATION PROCEEDINGS 3865, 3866 (1989).
97. See Peters, supra note 7, at 529 (arguing that the principle of reasonable accommodations may impose such a requirement); cf. TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 295-96 (3d ed. 1989) (arguing that principles of justice may require the provision of support services to organ recipients).
98. See JEROME E. BICKENBACH, PHYSICAL DISABILITY AND SOCIAL POLICY 11 (1993). This is not to say that there is no measurable biological component to disability. Indeed, persons with disabilities often do have an identifiable abnormality, but the mere existence of a biological component does not tell us what its functional effects will be. Id. at 14. Accordingly, in its definitions, the United Nations distinguishes between the existence of an abnomality of a person's structure, an "impairment," and the effects that result from the interaction of the abnormality with the person's environment, a "handicap." Susan Wendell, Toward a Feminist Theory of Disability, in FEMINIST PERSPECTIVES IN MEDICAL ETHICS 63, 65 (Helen B. Holmes & Laura M. Purdy eds., 1992) (quoting United Nations definitions).
99. See JEROME E. BICKENBACH, PHYSICAL DISABILITY AND SOCIAL POLICY 11 (1993). This is not to say that there is no measurable biological component to disability. Indeed, persons with disabilities often do have an identifiable abnormality, but the mere existence of a biological component does not tell us what its functional effects will be. Id. at 14. Accordingly, in its definitions, the United Nations distinguishes between the existence of an abnomality of a person's structure, an "impairment," and the effects that result from the interaction of the abnormality with the person's environment, a "handicap." Susan Wendell, Toward a Feminist Theory of Disability, in FEMINIST PERSPECTIVES IN MEDICAL ETHICS 63, 65 (Helen B. Holmes & Laura M. Purdy eds., 1992) (quoting United Nations definitions).
100. See Sunstein, Why Markets Don't Stop Discrimination, in REASSESSING CIVIL RIGHTS, supra note 76, at 33.
101. See, e.g., Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, 44 J. SOCIAL ISSUES 39, 40 (1988); Wendell, supra note 87, at 63, 67-70 (claiming that prior policy decisions create a subsequent environment with discriminatory effects on people with disabilities).
102. CAROLYN L. VASH, THE PSYCHOLOGY OF DISABILITY 72-73 (1981) (describing an experiment with mentally retarded persons who were perceived to be unattractive but, after 20 minutes of grooming and coaching, were perceived as attractive).
103. Id.
104. See id.; see also Buck v. Bell, 274 U.S. 200 (1927) (upholding the sterilization of a mentally retarded woman); Robert L. Hayman, Jr., Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, 103 HARV. L. REV. 1201, 1243-47 (1990) (arguing that presumptions about the retarded lead to assumptions about parental fitness).
105. See Sunstein, Why Markets Don't Stop Discrimination, in REASSESSING CIVIL RIGHTS, supra note 76, at 34-36 (arguing that one of the purposes of anti-discrimination law is to eliminate the caste-like effects of social arrangements being structured around the norms of advantaged persons).
106. See Hahn, The Politics of Physical Differences, supra note 89, at 42-45; HARLAN HAHN, THE ISSUE OF EQUALITY: EUROPEAN PERCEPTIONS OF EMPLOYMENT FOR DISABLED PERSONS 12 (1984) (both works observing that persons with disabilities are subject to discrimination because of economic and social systems that favor able-bodied persons and because able-bodied persons feel psychologically threatened by the existence of persons with disabilities).
107. See Hahn, The Politics of Physical Differences, supra note 89, at 42-45; HARLAN HAHN, THE ISSUE OF EQUALITY: EUROPEAN PERCEPTIONS OF EMPLOYMENT FOR DISABLED PERSONS 12 (1984) (both works observing that persons with disabilities are subject to discrimination because of economic and social systems that favor able-bodied persons and because able-bodied persons feel psychologically threatened by the existence of persons with disabilities).
108. 480 U.S. 273, 284-85 (1987).
109. Susan Sontag, ILLNESS AS METAPHOR 6 (1978). Persons with HIV infection may also suffer ostracism due to exaggerated fears of contagion.
110. HAHN, ISSUE OF EQUALITY, supra note 94, at 15. Similarly, a study of persons with visual impairment suggests that the extent to which a visually impaired person's activities are compromised may depend less on the person's actual degree of visual impairment than on the fact that the attitudes of others toward visual impairment socialize the person into the role of a blind person. See ROBERT A. SCOTT, THE MAKING OF BLIND MEN: A STUDY OF ADULT SOCIALIZATION 71-89, 105-21 (1969).
111. HAHN, ISSUE OF EQUALITY, supra note 94, at 15. Similarly, a study of persons with visual impairment suggests that the extent to which a visually impaired person's activities are compromised may depend less on the person's actual degree of visual impairment than on the fact that the attitudes of others toward visual impairment socialize the person into the role of a blind person. See ROBERT A. SCOTT, THE MAKING OF BLIND MEN: A STUDY OF ADULT SOCIALIZATION 71-89, 105-21 (1969).
112. See, e.g., Norman F. Boyd et al., Whose Utilities for Decision Analysis?, 10 MED. DEC. MAKING 58 (1990); Arnold M. Epstein et al., Using Proxies to Evaluate Qaulity of Life: Can They Provide Valid Information About Patients' Health Status and Satisfaction with Medical Care?, 27 MED. CARE S91 (1989); Robert A. Pearlman & Richard F. Uhlmann, Quality of Life in Chronic Diseases: Perceptions of Elderly Patients, 43 J. GERONTOLOGY M25 (1988).
113. See, e.g., Norman F. Boyd et al., Whose Utilities for Decision Analysis?, 10 MED. DEC. MAKING 58 (1990); Arnold M. Epstein et al., Using Proxies to Evaluate Qaulity of Life: Can They Provide Valid Information About Patients' Health Status and Satisfaction with Medical Care?, 27 MED. CARE S91 (1989); Robert A. Pearlman & Richard F. Uhlmann, Quality of Life in Chronic Diseases: Perceptions of Elderly Patients, 43 J. GERONTOLOGY M25 (1988).
114. See, e.g., Norman F. Boyd et al., Whose Utilities for Decision Analysis?, 10 MED. DEC. MAKING 58 (1990); Arnold M. Epstein et al., Using Proxies to Evaluate Qaulity of Life: Can They Provide Valid Information About Patients' Health Status and Satisfaction with Medical Care?, 27 MED. CARE S91 (1989); Robert A. Pearlman & Richard F. Uhlmann, Quality of Life in Chronic Diseases: Perceptions of Elderly Patients, 43 J. GERONTOLOGY M25 (1988).
115. For example, it is less likely that chemotherapy or cardiac surgery will be provided to persons who are mentally disabled than to persons who have average intellectual skills. See, e.g., In re Phillip B., 156 Cal. Rptr. 48 (1979), cert. denied, 445 U.S. 949 (1980) (withholding corrective surgery for heart defect from a Down syndrome child); Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977) (withholding chemotherapy for leukemia from mentally retarded patient); see also Levenson & Olbrisch, supra note 24, at 318.
116. In fiscal year 1989, for example, federal spending for research on, education about, and prevention of cancer exceeded that for Alzheimer's disease by a factor of 10 ($1.45 billion vs. $127 million). See Victor F. Zonana, Staggering Costs; AIDS Care: Who'll Pick up the Bill?, L.A. TIMES, Aug. 7, 1989, at Metro 1.
117. The waiting list for a heart transplant greatly exceeds the number of hearts available for transplantation, so most persons who would benefit from a transplant never receive one. See Roger W. Evans, Need, Demand, and Supply in Organ Transplantation, 24 TRANSPLANTATION PROCEEDINGS 2152 (1992) (indicating that, in 1990, over 45,000 persons needed a heart or heart-lung transplant, but that there were fewer than 4500 organ donors).
118. See Sandra Blakeslee, High Doses of Drugs Forestall Heart Transplants, N.Y. TIMES, Oct. 20, 1992, at C3.
119. It is not surprising that greater efforts have been devoted to developing surgical rather than non-surgical treatments. Historically, insurers have reimbursed physicians at much higher rates for performing tests or procedures than for prescribing medications. See Robert A. Berenson, Payment Approaches and the Cost of Care, in PAYING THE DOCTOR: HEALTH POLICY AND PHYSICIAN REIMBURSEMENT 63, 65-67 (Jonathan D. Moreno ed., 1991). Yet there is nothing "natural" or inevitable about the higher reimbursement rates for tests and procedures. See Jon R. Gabel & Michael A. Redisch, Alternative Physician Payment Methods: Incentives, Efficiency, and National Health Insurance, 57 MILBANK MEMORIAL FUND QUARTERLY/HEALTH AND SOCIETY 338, 348, 352-54 (1979) (observing that insurers have traditionally reimbursed technologically oriented and institutionally based physician services more generously than primary care services). The higher rates arose at least in part for idiosyncratic reasons. See Mark S. Blumberg, Provider Price Charges for Improved Health Care Use, in HEALTH HANDBOOK 1049, 1065, 1086 (George K. Chacko ed., 1979). Moreover, the rate differentials have since been perpetuated by private and public health care insurers because insurers have tended to reimburse physicians on the basis of their usual and customary fees. See Gabel & Redisch, Alternative Physician Payment Methods, at 339-40.
120. It is not surprising that greater efforts have been devoted to developing surgical rather than non-surgical treatments. Historically, insurers have reimbursed physicians at much higher rates for performing tests or procedures than for prescribing medications. See Robert A. Berenson, Payment Approaches and the Cost of Care, in PAYING THE DOCTOR: HEALTH POLICY AND PHYSICIAN REIMBURSEMENT 63, 65-67 (Jonathan D. Moreno ed., 1991). Yet there is nothing "natural" or inevitable about the higher reimbursement rates for tests and procedures. See Jon R. Gabel & Michael A. Redisch, Alternative Physician Payment Methods: Incentives, Efficiency, and National Health Insurance, 57 MILBANK MEMORIAL FUND QUARTERLY/HEALTH AND SOCIETY 338, 348, 352-54 (1979) (observing that insurers have traditionally reimbursed technologically oriented and institutionally based physician services more generously than primary care services). The higher rates arose at least in part for idiosyncratic reasons. See Mark S. Blumberg, Provider Price Charges for Improved Health Care Use, in HEALTH HANDBOOK 1049, 1065, 1086 (George K. Chacko ed., 1979). Moreover, the rate differentials have since been perpetuated by private and public health care insurers because insurers have tended to reimburse physicians on the basis of their usual and customary fees. See Gabel & Redisch, Alternative Physician Payment Methods, at 339-40.
121. It is not surprising that greater efforts have been devoted to developing surgical rather than non-surgical treatments. Historically, insurers have reimbursed physicians at much higher rates for performing tests or procedures than for prescribing medications. See Robert A. Berenson, Payment Approaches and the Cost of Care, in PAYING THE DOCTOR: HEALTH POLICY AND PHYSICIAN REIMBURSEMENT 63, 65-67 (Jonathan D. Moreno ed., 1991). Yet there is nothing "natural" or inevitable about the higher reimbursement rates for tests and procedures. See Jon R. Gabel & Michael A. Redisch, Alternative Physician Payment Methods: Incentives, Efficiency, and National Health Insurance, 57 MILBANK MEMORIAL FUND QUARTERLY/HEALTH AND SOCIETY 338, 348, 352-54 (1979) (observing that insurers have traditionally reimbursed technologically oriented and institutionally based physician services more generously than primary care services). The higher rates arose at least in part for idiosyncratic reasons. See Mark S. Blumberg, Provider Price Charges for Improved Health Care Use, in HEALTH HANDBOOK 1049, 1065, 1086 (George K. Chacko ed., 1979). Moreover, the rate differentials have since been perpetuated by private and public health care insurers because insurers have tended to reimburse physicians on the basis of their usual and customary fees. See Gabel & Redisch, Alternative Physician Payment Methods, at 339-40.
122. It is not surprising that greater efforts have been devoted to developing surgical rather than non-surgical treatments. Historically, insurers have reimbursed physicians at much higher rates for performing tests or procedures than for prescribing medications. See Robert A. Berenson, Payment Approaches and the Cost of Care, in PAYING THE DOCTOR: HEALTH POLICY AND PHYSICIAN REIMBURSEMENT 63, 65-67 (Jonathan D. Moreno ed., 1991). Yet there is nothing "natural" or inevitable about the higher reimbursement rates for tests and procedures. See Jon R. Gabel & Michael A. Redisch, Alternative Physician Payment Methods: Incentives, Efficiency, and National Health Insurance, 57 MILBANK MEMORIAL FUND QUARTERLY/HEALTH AND SOCIETY 338, 348, 352-54 (1979) (observing that insurers have traditionally reimbursed technologically oriented and institutionally based physician services more generously than primary care services). The higher rates arose at least in part for idiosyncratic reasons. See Mark S. Blumberg, Provider Price Charges for Improved Health Care Use, in HEALTH HANDBOOK 1049, 1065, 1086 (George K. Chacko ed., 1979). Moreover, the rate differentials have since been perpetuated by private and public health care insurers because insurers have tended to reimburse physicians on the basis of their usual and customary fees. See Gabel & Redisch, Alternative Physician Payment Methods, at 339-40.
123. See, e.g., Marcia Angell, Caring for Women's Health - What Is the Problem?, 329 NEW ENG. J. MED. 271 (1993); Milo Gibaldi, Drug Development and Women: An Overview, 12 PHARMACOTHERAPY 365 (1992); Nanette K. Wenger, Cardiovascular Drugs: The Urgent Need for Studies in Women, 46 J. AM. MED. WOMEN'S ASS'N 117 (1991).
124. See, e.g., Marcia Angell, Caring for Women's Health - What Is the Problem?, 329 NEW ENG. J. MED. 271 (1993); Milo Gibaldi, Drug Development and Women: An Overview, 12 PHARMACOTHERAPY 365 (1992); Nanette K. Wenger, Cardiovascular Drugs: The Urgent Need for Studies in Women, 46 J. AM. MED. WOMEN'S ASS'N 117 (1991).
125. See, e.g., Marcia Angell, Caring for Women's Health - What Is the Problem?, 329 NEW ENG. J. MED. 271 (1993); Milo Gibaldi, Drug Development and Women: An Overview, 12 PHARMACOTHERAPY 365 (1992); Nanette K. Wenger, Cardiovascular Drugs: The Urgent Need for Studies in Women, 46 J. AM. MED. WOMEN'S ASS'N 117 (1991).
126. See supra notes 72 and 73 and accompanying text.
127. For example, an anencephalic infant's lack of a brain and, thus, consciousness would be a devastating disability under any social structure. Steven G. Gabbe et al., OBSTETRICS NORMAL AND PROBLEM PREGNANCIES 291-92 (2d ed. 1991) (describing the development and prospects of anencephaly).
128. Cf. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) (holding that, given governmental fiscal constraints, reasonable accommodation does not require a county to grant an employee extended paid leave while the employee attempts to control his medical problems); Treadwell v. Alexander, 707 F.2d 473, 478 (11th Cir. 1983) (holding that employer was not obligated to have other workers assist disabled employee with his tasks given the small staff and limited resources).
129. It is more difficult to use a random selection method for general rationing than with allocation of kidneys or other organs. Since organs have to be allocated quickly to be usable, there is a well-defined list of potential recipients. With general rationing, on the other hand, current patients are in competition with unascertained future patients. Several measures could help overcome this problem. First, the priority list for patients could be developed by using a lottery to rank month and date of birth, as with the draft lotteries. Future patients, then, would be assigned a place in the ranking based on their month and date of birth. Second, based on historical trends, it is possible to estimate how many patients would need different kinds of care each month. Funds could be budgeted in a way to ensure that there were resources for as many patients in December as in January.
130. See Hank Greely, The Equality of Allocation by Lot, 12 HARV. C.R.-C.L. L. REV. 113, 118-20 (1977).
131. JOHN RAWLS, A THEORY OF JUSTICE (1971). Lotteries have been criticized as a mechanism for allocating scarce medical resources on the ground that it is irresponsible to rely on mere chance to make such momentous decisions and that people will feel dehumanized if they are subject to the arbitrariness of a lottery. See, e.g., GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 134 (1978); Elhauge, supra note 67, at 1500-02. Yet it would be even more irresponsible to allocate limited resources on the basis of criteria that incorporate unfair biases against certain people. It is also more dehumanizing to deny people care because of unfair biases than because of the operation of a lottery. I do not advocate a lottery as a better approach than one based on some morally valid criteria for choosing among different patients; I simply argue that, in the absence of an approach that relies on morally valid criteria, a lottery should be used.
132. JOHN RAWLS, A THEORY OF JUSTICE (1971). Lotteries have been criticized as a mechanism for allocating scarce medical resources on the ground that it is irresponsible to rely on mere chance to make such momentous decisions and that people will feel dehumanized if they are subject to the arbitrariness of a lottery. See, e.g., GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 134 (1978); Elhauge, supra note 67, at 1500-02. Yet it would be even more irresponsible to allocate limited resources on the basis of criteria that incorporate unfair biases against certain people. It is also more dehumanizing to deny people care because of unfair biases than because of the operation of a lottery. I do not advocate a lottery as a better approach than one based on some morally valid criteria for choosing among different patients; I simply argue that, in the absence of an approach that relies on morally valid criteria, a lottery should be used.
133. See Elhauge, supra note 67, at 1486-92 (justifying why health care deserves special treatment among social goods when deciding society's obligation to provide for those in need); Gregory S. Kavka, Disability and the Right to Work, 9 SOC. PHIL. & POL'Y 262, 279 (1992) (discussing how social subsidies to compensate for disability do not encourage people to seek greater subsidies through increasing their disabilities). An important problem with incentives remains, however, even in the health care arena. If health care is subsidized, people will demand excessive levels of care. Consequently, limits must be placed on the availability of health care, and some alternative mechanism other than people's willingness to purchase must be used to ensure that too much health care is not provided. Some countries, like Canada and Great Britain, use waiting lists to keep health care supply within reasonable limits. See, e.g., Peter C. Coyte et al., Waiting Times for Knee-Replacement Surgery in the United States and Ontario, 331 NEW ENG. J. MED. 1068 (1994) (finding that Canadians wait longer than U.S. citizens for knee-replacement surgery).
134. See Elhauge, supra note 67, at 1486-92 (justifying why health care deserves special treatment among social goods when deciding society's obligation to provide for those in need); Gregory S. Kavka, Disability and the Right to Work, 9 SOC. PHIL. & POL'Y 262, 279 (1992) (discussing how social subsidies to compensate for disability do not encourage people to seek greater subsidies through increasing their disabilities). An important problem with incentives remains, however, even in the health care arena. If health care is subsidized, people will demand excessive levels of care. Consequently, limits must be placed on the availability of health care, and some alternative mechanism other than people's willingness to purchase must be used to ensure that too much health care is not provided. Some countries, like Canada and Great Britain, use waiting lists to keep health care supply within reasonable limits. See, e.g., Peter C. Coyte et al., Waiting Times for Knee-Replacement Surgery in the United States and Ontario, 331 NEW ENG. J. MED. 1068 (1994) (finding that Canadians wait longer than U.S. citizens for knee-replacement surgery).
135. See Kavka, supra note 111, at 282.
136. Id.
137. In fact, there may not be any loss in overall welfare when society accounts for social biases against persons with disabilities. While my approach is primarily based on distributive justice, a utilitarian argument can bring us to the same conclusion. Allocating medical resources purely in terms of medical benefit ignores other important values, such as inclusiveness, that contribute to overall social utility. See Kavka, supra note 111, at 268-70.
138. I am indebted to Professor Susan Hoffman Williams, Indiana University School of Law-Bloomington, for this point.
139. See, e.g., H.R. 3600, 103d Cong., 1st Sess. § 1115(c)(2)(D) (1993).
140. 42 U.S.C. §§ 12111-12117 (Supp. 1993).
141. 42 U.S.C. § 12112(a) (Supp. 1993).
142. The guidelines can be found at EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, INTERIM ENFORCEMENT GUIDANCE ON THE APPLICATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990 TO DISABILITY-BASED DISTINCTIONS IN EMPLOYER PROVIDED HEALTH INSURANCE, No. N-915.002, reprinted in EEOC COMPL. MAN. (CCH) ¶ 6902, at 5313-19 (June 8, 1993).
143. See supra note 44.
144. See INTERIM ENFORCEMENT GUIDANCE, supra note 119, at 5315 n.7. The EEOC cites Alexander v. Choate, 469 U.S. 287 (1985), for this proposition even though the Choate Court indicated that the law reaches at least some cases of disparate impact discrimination against persons with disabilities. Id. at 299.
145. See supra note 44.
146. See INTERIM ENFORCEMENT GUIDANCE, supra note 119, at 5316.
147. See Ronald Dworkin, What Is Equality? Part 1: Equality of Welfare, 10 PHIL. PUB. AFF. 185, 185 (1981) (observing that equality can take many different, mutually exclusive forms).
148. Jenness v. Fortson, 403 U.S. 431, 442 (1971) (making this observation in the context of a challenge to election procedures).
149. The longer time needed for recovery reflects in part the fact that coexisting medical problems inevitably complicate a person's health. However, the difference in recovery time also reflects the fact that socio-political factors may have caused the coexisting medical problem or that surgeons have developed their techniques for appendectomies on the basis of a norm of a patient whose appendicitis was not complicated by other medical problems.
150. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1437-39 (2d ed. 1988) (discussing the distinction between the equal treatment of persons and the treatment of persons as equals).
151. The courts' treatment of across-the-board rules that have a disparate impact on members of minority religious groups also demonstrates the unfairness of the EEOC view. As Martha Minow has observed, courts have sometimes interpreted unemployment benefits law to compensate for the fact that social organization often favors persons who are secular, Catholic, or members of the dominant Protestant faiths. MINOW, supra note 76, at 69; see, e.g., Sherbert v. Verner, 374 U.S. 398 (1963) (holding that a state may not deny unemployment benefits to an individual who declined a job opportunity because it conflicted with her chosen Sabbath day).
152. 469 U.S. 287 (1985).
153. This case preceded the enactment of the ADA and thus was brought under the Rehabilitation Act. The provisions of the two laws are nonetheless sufficiently similar for the distinction to be irrelevant for purposes of this analysis.
154. For example, in 1979-80, among hospitalized Medicaid patients in Tennessee, 27.4% of patients with disabilities needed more than 14 inpatient days while only 7.8% of patients without disabilities needed more than 14 days. Choate, 469 U.S. at 289-90.
155. 442 U.S. 397 (1979) (finding no violation of § 504 of the Rehabilitation Act of 1973 when a school required reasonable physical qualifications for admission to a clinical training program).
156. The Choate Court also cited with approval a lower court disparate treatment decision: Doe v. Colautti, 592 F.2d 704 (3d Cir. 1979) (upholding Pennsylvania's cap on coverage for psychiatric illness despite the absence of a comparable cap on coverage for physical illness).
157. See James V. Garvey, Health Care Rationing and the Americans with Disabilities Act of 1990: What Protection Should the Disabled be Afforded?, 68 NOTRE DAME L. REV. 581, 607-10 (1993).
158. It is true that patients who needed more than 14 days of hospitalization were not necessarily deprived of the care they needed. This case was about Medicaid coverage, not strictly about access to care. Public hospitals provide care to people who have no insurance coverage, whether private or public. Nevertheless, studies have demonstrated that patients with no health care coverage fare less well than patients with at least some coverage. See, e.g., J. Hadley et al., Comparison of Uninsured and Privately Insured Hospital Patients: Condition on Admission, Resource Use, and Outcome, 265 JAMA 374 (1991).
159. See supra note 79.
160. Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989); Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans, etc. v. Norris, 463 U.S. 1073 (1983); City of Los Angeles Dep't. of Water and Power v. Manhart, 435 U.S. 702 (1978); see Kimberly A. Ackourey, Insuring Americans with Disabilities: How Far Can Congress Go to Protect Traditional Practices?, 40 EMORY L.J. 1183 (1991).
161. 42 U.S.C. § 12112(a) (Supp. 1993) (emphasis added).
162. 29 U.S.C. § 794(a) (1988 & Supp. 1993) (emphasis added).
163. See Peters, supra note 7, at 531-33. This is not to say that the generally accepted and reasonable practice of predicting patient outcomes on the basis of general characteristics is totally unacceptable. Doctors, like employers, could not operate if they were forbidden from acting at least partly on the basis of reasonably valid generalizations. For example, physicians can only estimate the likelihood that a treatment will succeed for a patient by considering how the treatment generally works in other, similar patients. Nevertheless, often more refined predictions can easily be made by subcategorizing classes of patients.
164. See Arizona Governing Comm. v. Norris, 463 U.S. 1073 (1983); City of Los Angeles Dep't. of Water and Power v. Manhart, 435 U.S. 702 (1978).
165. Manhart, 435 U.S. at 707-08.
166. This point is similar to the employment discrimination law principle that was developed in Connecticut v. Teal, 457 U.S. 440 (1982). In that case, the Supreme Court held that employers could not use selection criteria that disfavored a protected minority at one stage of the promotion process even if the overall result of the process was non-discriminatory. The requirements of employment discrimination law still would not be satisfied if favoritism to one member of the minority compensated for discrimination against another member of the minority. Teal emphasized the fact that employment discrimination law protects the individual from discrimination. Id. at 453-54.
167. Fleck, supra note 6, at 1617-34.
168. See PAUL T. MENZEL, STRONG MEDICINE: THE ETHICAL RATIONING OF HEALTH CARE 22-36 (1990) (describing a model of presumed consent); Ronald Dworkin, What Is Equality? Part 2: Equality of Resources, 10 PHIL. PUB. AFF. 283, 296-304 (1981); Ronald Dworkin, Will Clinton's Plan Be Fair?, N.Y. REV. BOOKS, Jan. 13, 1994, at 20, 22 (advocating in both articles a model based on the insurance principle).
169. See PAUL T. MENZEL, STRONG MEDICINE: THE ETHICAL RATIONING OF HEALTH CARE 22-36 (1990) (describing a model of presumed consent); Ronald Dworkin, What Is Equality? Part 2: Equality of Resources, 10 PHIL. PUB. AFF. 283, 296-304 (1981); Ronald Dworkin, Will Clinton's Plan Be Fair?, N.Y. REV. BOOKS, Jan. 13, 1994, at 20, 22 (advocating in both articles a model based on the insurance principle).
170. See PAUL T. MENZEL, STRONG MEDICINE: THE ETHICAL RATIONING OF HEALTH CARE 22-36 (1990) (describing a model of presumed consent); Ronald Dworkin, What Is Equality? Part 2: Equality of Resources, 10 PHIL. PUB. AFF. 283, 296-304 (1981); Ronald Dworkin, Will Clinton's Plan Be Fair?, N.Y. REV. BOOKS, Jan. 13, 1994, at 20, 22 (advocating in both articles a model based on the insurance principle).
171. MENZEL, supra note 145, at 16.
172. See Elhauge, supra note 67, at 1516-17.
173. See Dworkin, Equality of Resources, supra note 145, at 299 (observing that society will choose a higher level of insurance for blindness if the money recovered from such insurance could be used to pay for technologies that offset the disabling effects of blindness).
174. Even when an employer could not entirely deny a service, the employer would not have to offer the service to all who might benefit from it. The employer would still be able to employ rationing by patient to ration the service.
175. No physician can give every patient all the attention that would benefit the patient. Time constraints require physicians to limit the amount of time they spend with some of their patients so they will have a reasonable amount of time for others. See Susan Dorr Goold & Howard Brody, Rationing Decisions in Managed Care Set-ups: An Ethical Analysis, in HEALTH CARE CRISIS? THE SEARCH FOR ANSWERS, 135, 137-38 (Robert, I. Misbin, et al., eds. 1995). Moreover, physicians must allocate their time among patients with very different conditions. While there will be some overlap in the illnesses affecting the physicians' patients, the patients will also have a variety of illnesses needing different intensities of treatment.
176. There are some efficiency gains from rationing by service because it may entail fewer administrative costs than rationing by patient. It is simpler to evaluate the benefit of a treatment according to the average patient and cover only the treatments that yield a high average benefit per patient. It is also simpler to decide whether a patient qualifies for coverage if rationing is done by service rather than by patient. Physicians are accustomed to rationing their time and treatments by patient, however, and if rationing is done only partially by service, physicians will still have to make the kinds of comparisons that rationing by patient entails. Accordingly, it is unlikely that the administrative efficiency of rationing by service will outweigh the loss of clinical efficiency.
177. See BICKENBACH, supra note 87, at 214-20 (1993); Norman Daniels, Rationing Fairly: Programmatic Considerations, 7 BIOETHICS 224, 225-28 (1993); Ronald Dworkin, What Is Equality? Part 1: Equality of Welfare, 10 PHIL. PUB. AFF. 185 (1981).
178. See BICKENBACH, supra note 87, at 214-20 (1993); Norman Daniels, Rationing Fairly: Programmatic Considerations, 7 BIOETHICS 224, 225-28 (1993); Ronald Dworkin, What Is Equality? Part 1: Equality of Welfare, 10 PHIL. PUB. AFF. 185 (1981).
179. Daniels, supra note 152, at 228.
180. MICHAEL WALZER, SPHERES OF JUSTICE 31-94 (1983); Charles J. Dougherty, Ethical Values at Stake in Health Care Reform, 268 JAMA 2409, 2410 (1992).
181. MICHAEL WALZER, SPHERES OF JUSTICE 31-94 (1983); Charles J. Dougherty, Ethical Values at Stake in Health Care Reform, 268 JAMA 2409, 2410 (1992).