BY Philip Bobbitt,

Bobbitt is professor of law at Columbia University and lecturer at the University of Texas.

Every society must face tragic choices and every society is defined by them. From determining who gets drafted and who receives heart transplants, to decisions about sentencing and parole for crimes, to who is given access to kidney dialysis, tragic choices lay bare the character of the body politic like no other event. Now we are confronting a pandemic that has required, and will require, many such choices. Who receives access to ventilators? Who gets resuscitated? Who has to risk infection by going to work? Who has access to testing and what kinds of tests are to be made available? Should we re-open the economy, even if it means more Americans will die?

So far, we have rarely faced up to the implications of these choices. Texas Lt. Gov. Dan Patrick’s suggestion, for example, that the elderly would willingly sacrifice themselves in order to protect the American way of life for their descendants, may appear noble until it is examined carefully. Actually the question isn’t whether grandparents are willing to die for the sake of a thriving economy but whether the rest of us are willing to kill them to achieve that objective. Other more empathetic claims, like New York Gov. Andrew Cuomo’s tweet—“My mother is not expendable and your mother is not expendable…and we’re not going to t put a dollar figure on human life”—are misleading. Expressing our comparative options in dollars or otherwise is simply to observe that we do in fact make choices and these can be calculated. We can’t ban actuarial tables. It is idle to think that everyone will have “the best care” or that difficult decisions imposed by scarcity can ultimately be avoided. What makes those choices “tragic” is that there is no way to avoid degrading some of our most deeply held values, such as the pricelessness of life..

If we are struggling with such questions it shouldn’t be surprising. Societies tend to disguise certain choices when they require us to price the “priceless.” That and other characteristics of tragic choices have emerged throughout history: there is no rational way for us to maximize our competing values; there is more than one fair way to decide who gets hurt; such decisions require us to degrade some values for a time while exalting others. Moral societies often tend to cycle through degradation and exaltation to shore up the values they have neglected. Less admirable societies reach for subterfuge and scapegoating to disguise the tragic nature of their dilemmas.

It is by struggles such as those imposed by the COVID-19 pandemic that societies come to define themselves. How will we define ourselves? How can we limit the damage to our values and deal with the inevitability of tragedy in the least offensive way?

We can begin by setting priority protocols for sorting out the care we give to patients, recognizing that doing so will temporarily degrade some of our values and exalt others. By “priority protocol,” I mean a set of rules that specify a decision procedure by ordering the preferred recipients of goods, such as ventilators and vaccines, or bads, such as removal from a ventilator. For example, one such protocol might be: the most vulnerable should be given priority to receive scarce medical resources; or, it might be those who win an auction or those who win a lottery or those who present with symptoms first, and so on. There is no one perfect solution; every option has fateful consequences, not least for the values rejected for the chosen, whether they be efficiency, equality, compassion, honesty or some other fundamental value.

At most we can sometimes find a randomized way of sequencing various protocols in a cycle to ensure that taken as a whole, we have done what we can to uphold our values over the course of this terrible pandemic.

Doing so will not be easy. Some have tried to set medical protocols and it has not always gone well. Among the purported values those protocols have attempted to exalt are efficiency and equality. But when such protocols have been published, they have often been withdrawn in the face of public protest. University Medical Center, Paterson N.J. rescinded its protocol memorandum when it became public. The same thing happened at Elmhurst Hospital in Queens.

Absent generally applied protocols, though, the problem gets worse. Decisions are left to individual doctors who must cope with a Hippocratic Paradox: that unswervingly serving the immediate patient can lead to gross inequalities based on wealth, race, ethnicity and so on, and also sacrifice the well-being of the society as a whole that cannot, despite what the AMA says, give the best possible care to every person. Without explicit protocols, honesty is sacrificed and this is a value every bit as important as the purported ones of efficiency and equality. In the United States, it is a fundamental constitutional principle that the use of coercion by the State must be accompanied by a public justification.

It turns out efficiency and equality aren’t entirely the values they seem. It is not clear that there is a consensus as to what set of priorities would be most efficient. “The greatest good for the greatest number” sounds reasonable, but “the good” is unspecified. It might be the number of lives saved or it might be the number of years of life preserved or even the good done by very accomplished members of the society like research scientists or the good that results from having a sufficient number of doctors and carers. The efficient suggestion allegedly made by a special adviser to prime minister Boris Johnson, “let enough people get sick to establish herd immunity and thus protect the economy, and if that means some pensioners die, too bad” is willfully degrading.

As for equality, things are no clearer. “First in time” leads to unequal treatment, penalizing those without doctors or insurance, locking in entrenched structures of injustice. Care “regardless of age or disability” treats patients with unequal prospects as equals. Lotteries are anti-scientific, casting away what epidemiological knowledge we have about the condition of patients and the probable course of their infections.

In fact, neither equality nor efficiency are fully specified—each requires a filling up with other values. Is giving priority to a young patient who is not that ill really more efficient than giving priority to an elderly person who will die without intervention? Efficiency, contrary to a position economists sometimes take, is not a value; its goal must be specified. Calculating efficiency depends upon what value we are trying to maximize. The efficient solution to a problem—the best route between two destinations–depends on what objective is being pursued (sightseeing or fuel economy). The same is true of equality: Is a lottery more equal because it is random or is it likely to be considered less equal because without an overriding set of priorities, it invariably treats persons of very different conditions as if they were the same? Treating people the same—as equals—doesn’t always mean we are treating them equally.

Perhaps a different set of values should be preferred in making different decisions. Isolation could be imposed to protect the weakest among us, while social distancing is required of the those in contact with them. We might triage access to ventilators on the basis of efficacy, giving access to those who are most likely to benefit because they are not in such desperate straits nor are they so healthy that they are likely to survive anyway. We might want to impose non-resuscitation rules such as a ban on discrimination against the disabled or the elderly, or the reverse, protecting physicians and nurses from risking their lives for the likely-to-be lost causes. We could provide physician care on a first-come first-served basis that is sensitive to the duty felt by physicians to their patients or we could assign doctors by lotteries to avoid preferring those victims fortunate enough to have pre-existing medical relationships.

None of these protocols is really satisfactory. For many cultural and historic reasons, the United States is a society, along with others, whose self-respect has increasingly come to depend on how the weakest and most vulnerable among us are treated. But does “most vulnerable” mean those persons nearest to death who have the most to lose from lack of care, or those persons whose futures have the most to lose years of life?

The skill, or art, will be designing protocols that toggle between different sets of values. Although it is tempting to reach for a single metric—for example, a program that protects young people seems far better than one that protects old people because it delivers greater benefits—the choices posed by these situations are tragic precisely because they defy simplistic rules. Greater benefits to whom—the society or the individual whose life is at stake? Benefits of what nature? And at what cost to values other than simply lengthening the number of years of life purchased by the priority?

“Most vulnerable” also means those persons who are in nursing homes and assisted living facilities, incarcerated in prisons with densely packed populations, immigrants detained while seeking asylum, and others in congregate settings marginalized by society. And remember: care for the most vulnerable is only one of America’s incommensurate values.

It is important to note, as well, that there are two different kinds of decisions in tragic choices: first order choices such as how many tests to produce, how many ventilators, and so on and second order choices that are the priority protocols I’ve been describing. It ought to go without saying that choosing to make the first order decisions turn on whether they enhance the political prospects of the president is unspeakable. The same could be said is choosing to make second order decisions, such as which states and cities will be favored, depend on whether the recipients are deemed personally and politically supportive of the president.

With respect to the pandemic, there are several points to remember. This is not a “trolley problem”—that is, such choices are not like the choice a driver must make whether to swerve to protect a mother and child in a pram and unavoidably kill someone waiting for a bus. Tragic choices are made by societies not by individuals and they are not accidents but quite predictable, even inevitable.

Moreover, unlike epidemics in earlier centuries, the data on this one will be collected and reviewed, and they will in turn reveal the choices we have made: the extent of euthanasia, enforced de-intubation and the like. Subterfuge is not likely to be a successful option for long.

It is worth asking ourselves, “What action will we one day be ashamed of having taken?” This is especially hard as values change, unpredictably. But we know from the past that scapegoating and xenophobia often accompany the tragic choice.

Some of the choices to be made are not so hard, even if they are hard to achieve. We need to connect all of the ill persons with medical centers that at present have some surplus capacity and shunt equipment, tests and protective gear among the various stricken cities on a national basis and reassign staff to those localities where they are most needed. We must engage the vast resources of the Department of Defense as if they were reacting to a biological attack.

This article, and the problems and solutions discussed are derived from a book the celebrated Yale Law School professor Guido Calabresi and I wrote in 1978 called Tragic Choices, which studied how societies determine very difficult social allocations. The book opens with these sentences:

We cannot know why the world suffers. But we can know how the world decides that suffering shall come to some persons and not to others. While the world permits sufferers to be chosen, something beyond their agony is earned, something even beyond the satisfaction of the world’s needs and desires. For it is in the choosing that enduring societies preserve or destroy those values that suffering and necessity expose. In this way societies are defined, for it is by the values that are foregone no less than by those that are preserved at tremendous cost that we know a society’s character.

Perhaps in these frightening and dismal times we can take some bitter solace in the fate we have been given to define our society through these awful tragic choices. At least we ought to do so without kidding ourselves.

Time

More about: #COVID-19