Yes, hospitals in crisis should consider vaccination status

Physicians are taught to treat their patients with compassion. The patient who needs dialysis due to lifestyle choices should be treated just as kindly as the one whose diabetes is hereditary. It’s not the physician’s place to judge. Until it is.

Physicians must ration organs based on the ability of patients to fly to transplant centers on short notice. They ration detox beds based on insurance coverage. And in times of crisis, such as during a pandemic, they ration care to patients.

It is in these moments that we must ask: Is it fair to treat the person who chose to remain unvaccinated the same as someone who got the shot? Of course not.

So far during the pandemic, physicians have practiced “soft” rationing — often unjustly. For example, at some nursing homes hit by COVID-19, long-term care residents with the virus were never transferred to intensive care beds at hospitals. In some hospitals, low supplies of medications meant they were given sparingly. Nurses’ time at the bedside was slashed.

But now, in places with low vaccination rates, these forms of rationing are no longer enough. In Idaho, the governor recently activated the state’s “crisis standards of care” for the first time. Alaska has as well, and Utah is also on the brink of doing so.

Crisis standards of care provide a formal rubric for prioritizing patients when resources are scarce. Depending on what is being rationed, patients might first be assessed according to need, and then according to likelihood of near-term survival. But when ICUs are full, as they are now throughout the country, patients might be considered equally likely to survive their visits. What then?

Many state crisis standards of care allow doctors to use age to break the tie. Idaho’s standard uses “life cycle” to prioritize those who are younger. Other states do, too. There seems to be something intuitively fair about letting older people die in these situations. But is that right? This intuition is based on ageist assumptions, as I and others have argued elsewhere. With the exception of a few older anti-science politicians, old people did not get us into this mess.

That’s where vaccination status comes in. This is not about who has rights and who does not; it is about recognizing the relative burdens these competing rights place on others. It is ethically indefensible not to account for vaccination status when breaking ties, when 95 percent of our ICU beds are being taken by those who chose not to be vaccinated (excluding minors who cannot choose whether to be vaccinated or people with severe allergies to their ingredients).

An obvious critique to this is that vaccination is correlated with poverty, education and being a racial minority (though not in places such as my home state of Utah, where the unvaccinated are mostly suburban, middle class and white).

My response to this is threefold: First, there are poor people of color, with disabilities, who are vaccinated and are also dying from cancer, stroke and trauma while they wait for a hospital bed. Like most health conditions, these also have strong social determinants. Why should they be denied an extracorporeal membrane oxygenation machine or ventilator because the unvaccinated are taking up all of these resources and got there first? The “first-come” policy is by default prioritizing those who caused this disaster.

Second, though clinicians should not shame people for the choices they make, our choices still have consequences. This is especially true given that vaccines are approved by the Food and Drug Administration, free and widely available even in rural areas.

Third, there are many “decisions” we make in life that are correlated with poverty, such as abusing our partners or not carrying car insurance, but that does not mean people who are poor get a pass to harm others. We should always strive to correct injustices ex ante, but that does not mean they immunize us from all responsibility ex post.

Perhaps one’s reasons ought to matter to the extent they could be reliably discovered. But the downstream use of vaccine status can be ethically defended even when we do not know the “why.” After all, categorical tiebreakers rely on group proxies rather than individual assessments, and responsibility does not need to be about blame; it can be about causing bad outcomes.

Admittedly, this would come into effect only when crisis standards of care are formally triggered, which they rarely are, and then only if two patients are considered equally likely to survive, which might not be that common. So, why should we replace age with vaccination status when breaking clinical ties? First, this will have an impact. More important, even symbolic actions have value. Freedom does not mean the right to be free from accountability for actions that harm others.

Teneille R. Brown is a law professor at the Center for Law and Biomedical Sciences at the University of Utah’s S.J. Quinney College of Law and an adjunct professor in internal medicine at the university’s Center for Health Ethics, Arts and Humanities. This was originally published by the Washington Post.