Read on Twitter
I am grateful to @sbagen for forcefully rejecting calls to “revoke” the publication of my "Why Disability Law Permits Evidence-Based Triage in a Pandemic"
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3571139 in the @YaleLJournal Forum: https://twitter.com/sbagen/status/1253832034256072714?s=20 Some thoughts on those calls & on substance /1
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3571139 in the @YaleLJournal Forum: https://twitter.com/sbagen/status/1253832034256072714?s=20 Some thoughts on those calls & on substance /1
First, Prof. Bagenstos emphasizes that advocates should engage “the arguments of powerful people like the bioethics establishment.” As an advocacy matter, I entirely agree. But I worry framing my essay as part of a powerful “bioethics establishment” misses some complexities. /2
Unlike many participants in triage debates—from critics like Prof. Bagenstos, to the health law scholars I cite, to Prof. Doug White, who has drafted triage guidelines—I am an untenured professor of color. Prof. Bagenstos’s essay was accepted at YLJ before mine was submitted. /3
I have seen no calls to unpublish these others’ work, which supports my suspicion that calls to revoke publication not only chill speech but inevitably replicate hierarchies. Prof. Bagenstos’s tweets admirably underscore that every ideology should reject unpublication. /4
Yet, while I appreciate Prof. Bagenstos’s tweets, whether an article is published shouldn’t depend on its being okayed by those who disagree. The @YaleLJournal editors have been excellent. But if Prof. Bagenstos had taken a different view, other editors might’ve capitulated. /5
In the end, I worry most about how calls to unpublish the article might affect law students and job candidates, especially those lacking privileges I have. I worry I should counsel: “For your sake, write about something else.” But this is the “heckler’s veto” we should reject. /6
Second, Prof. Bagenstos says “he could not disagree more” with my piece. But I agree with much of his. We agree that triage should not use quality of life judgments; that law doesn’t mandate first-come, first-served or lottery allocation; and that democratic legitimacy matters./7
We do disagree about legal doctrine. Prof. Bagenstos believes the law means triage must often ignore patients’ prospect of survival and benefit. I believe that considering medical evidence about these can be legal. (Read the actual articles for more!) /8
We also disagree about ethics. I am deeply opposed to first-come, first-served and random allocation because, while they superficially appear equal, they--as Ari Ne’eman eloquently concedes https://www.nytimes.com/2020/03/23/opinion/coronavirus-ventilators-triage-disability.html --risk more patients dying who could have lived. /9
I think advocacy should do more to recognize that excluding medical evidence about benefit may be worse for many patients with disabilities. This is not “bioethics vs. disability”: a triage proposal can be better for patients with some disabilities & worse for others. /10
Importantly for democratic legitimacy, diverse community participants reject lottery & first-come, first-served (FCFS) & see FCFS as exacerbating disparities https://jopm.jmir.org/2020/1/e18272/ . A disability advocate I recently co-presented with emphasized that her coalition rejects FCFS./11
My dream would be for disability advocacy to reject first-come, first-served and lottery approaches to triage, just as I reject quality of life, and for focus to move to the difficult debates about years of life Profs. Bagenstos and White discuss here: https://tradeoffs.org/2020/04/14/who-gets-care/
