"The Statutes We Are Requesting Be Suspended Under … Very Limited Circumstances … Are: Murder"

|The Volokh Conspiracy |

A coalition of Maine health care provider groups has sent a letter to the Maine governor (see Bangor Daily News [Caitlin Andrews]), "requesting that the Governor exercise an emergency power to"

[4.] Suspend the enforcement of a statute, agency rule, agency regulation, agency order, or emergency rule that is inconsistent with emergency management and to the extent that the inconsistency exists; and

[6.] Take other action (specify) necessary to mitigate an effect of the emergency.

The letter covers a good deal of territory, but I was particularly struck by the request that the Governor endorse part of a Maine draft plan from June 2017 that has not yet been adopted:

Parts of the plan set up a method for "re-allocating" scarce resources during an extreme public health emergency. These "re-allocations" can result in "withdrawing a critical resource" from a person who is likely not going to survive, and giving that resource to someone else who is both more likely to survive with the resource, and who would most likely die without it. An example is taking a patient off a ventilator to give it to another patient, when the person doing so knows it will result in the death of the first patient.

This process would result in considered actions that would result in death to the individual who is removed from the critical resource. Maine, like most states, has criminal statutes designed to criminalize such behavior, and there are no exceptions or defenses that would cover the re-allocation of a critical medical resource during an extreme public health emergency. 17-A MRS §§35, 201, & 203. Such activity would normally require the consent of the patient or their authorized representative.

And to make clear, the groups say,

They add, "We believe that the Governor, if unable to provide a limited waiver of criminal liability, may use her office to influence the Maine Attorney General's Office and the Maine District Attorneys to use prosecutorial discretion for healthcare providers during these unprecedented circumstances."

I appreciate the concern here: I don't think we can categorically reject the possibility, in extraordinary times, it would be necessary to stop treating a patient who is merely "likely not going to survive" and shifting scarce resources instead to a patient who is more likely to benefit. I can imagine this happening in a war zone or during a massive disaster or major social collapse, and perhaps it's called for in other times as well. Still, it seems like a pretty striking proposal, and I'd love to hear what others think about it.

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  1. “Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public. But the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time that the public is protected.”

    — US AG Barr
    https://www.justice.gov/opa/page/file/1271456/download

    1. And I like to remind people that this is EXACTLY how the Holocaust started….

      1. Democracies fail when they issue the leader emergency powers he doesn’t give up. In that respect, I’m more comfortable with a bumbler-in-chief who refuses to be king, than a deep blue governor or other who effortlessly slides into that role and would implement nationwide lockdowns.

        People can disagree with that sentiment, though history shows it is very dangerous. In any case, keeping a close eye on what government is doing, and dragging out in public for discussion and monitoring, is exactly what needs to be done.

        1. Krayt, while I don’t entirely disagree with you, I don’t think the only two options are having a bumbler in chief or having a king. Sometimes emergency powers really are necessary, and then when the emergency passes, the other two branches of government need to ensure that so do the emergency powers. Eternal vigilance is the price of liberty, and all that.

          And I’ve never found “this is how the holocaust started” to be a persuasive argument. There were a thousand things that, acting together, led to the holocaust. One could equally as well say that elections led to the holocaust since Hitler was democratically elected. No, you have to analyze how each of those thousand pieces contributed to the final picture.

          On the merits, sometimes scarce resources have to be allocated. It would be nice if there were enough resources to keep everyone alive indefinitely, but there aren’t. So, for those who oppose this proposal, I would ask what alternative would you suggest.

          1. Rather than “This is how the holocaust started” you can substitute any number of governments which slid from Democracies or Republics into dictatorships.

            An Emergency of some sort occurs. Emergency powers are granted, which overrule the constraints and laws which were enacted to prevent dictatorships. Emergency powers are then kept on.

            Whether you use Rome or Nazi Germany or Venezuela, it’s a common pattern throughout history. Emergency -> Emergency Powers -> Overruling common restraints and/or constitutional protections -> Dictatorship.

            1. Fortunately the current US President doesn’t need any emergency powers, because he already has All The Power…

              1. I thought you were going to say something to the effect that the current US President doesn’t need any emergency powers, because he is himself so much of the emergency. (That may not quite work, but hopefully you can understand the sentiment anyway.)

            2. AL, again, I don’t entirely disagree with you, but I think the solution is eternal vigilance and checks and balances. In the event of an actual emergency, we can’t do nothing because we’re afraid something bad might happen later.

              The Marines have a saying: Anything you can might get you shot, and that includes doing nothing.

              1. We’re not doing “nothing” by any stretch of the imagination. Those checks and balances are critical though, and too often in “emergency” situations they are…disregarded…because of the emergency.

                One of the beneficial checks in the current situation has been the federal system of governance, where the federal government has played a relatively limited role in the quarantine-like orders, and the states have played the major role. It’s beneficial, because when the states overstep there is a federal government to bring them in line, as well as other less aggressive states to draw a comparison to. In addition, it allows for different rules region by region.

                I could see it easily have gone the other way though. With a Democratic President, fully enshrined in his or her belief in the full power of the federal government, with the mainstream media fully behind him or her, ordering full stay-at-home orders for the country, and nationalizing the Guard if needed to carry out the orders. With any protesters order to disband, by force if needed, in order to “socially distance”.

                1. AL, the most leftist of any Democrat likely to be elected understands that you don’t shut down the economy unless you’ve got a damn good reason, and you reopen it as soon as possible. You think Andrew Cuomo likes the economic havoc his shutdown orders are having? He wants the state reopened too.

                  Nobody on the left thinks it would be a good thing to tank the economy. So I’m less worried about blue state tyranny than you are; there are practicalities involved.

                  1. “you don’t shut down the economy unless you’ve got a damn good reason.”
                    –They have a reason. COVID-19.

                    “Nobody on the left thinks it would be a good thing to tank the economy.”
                    –It’s not about the economy. It’s about control. It’s about power. It’s about “not letting a crisis go to waste”. It’s about making sure those religious organizations never open again if they dare oppose your power.

                    1. Armchair, please. If you think the American left wants to use force to abolish religion, you are very far from reality. Some of them would love to see religion argued out of existence. Almost all of them would oppose use of force against religion. (Assuming religionists who are not themselves invoking force to establish religion; do that and yeah, some on the left would fight back.)

            3. This order is not about a broader permissible use of force by the government. In order for the regime you invoke to be germane, that would have to be the case.

            4. My point is that the killings started with the disabled, they came for the Jews later, at which point it was to late to stop it.

              1. So, a policy intended to minimize total deaths is totes the same as one intended specifically to maximize deaths among the disabled.

                Seems you’re squinting awfully hard to make the analogy you want here.

                1. As the wise man solemnly said: “There are actually zero differences between good and bad things.”

          2. “So, for those who oppose this proposal, I would ask what alternative would you suggest.”

            How about a free market? It accomplishes rationing of scarce resources as effectively as anything else, AND produces a cash flow that results in the resources becoming less scarce.

            1. Brett, under a completely free market, rather than decisions being made by “death panels” they will be made based on who has money. As standards for deciding who lives and who dies go, who has money strikes me as a fairly repulsive one.

              1. Then you are as economically ignorant as every politician ever.

                Economics is the study of the allocation of scarce resources. Everything scarce is rationed one way or another. If not above-the-table prices, it is under-the-table prices, or time spent waiting in line or obsessively checking web sites, or who you know, or any number of alternatives.

                If you think government bureaucrats are the answer, you are sadly and incredibly naive, or you are a government bureaucrat out to protect your fiefdom.

                1. “Then you are as economically ignorant as every politician ever” pretty much disqualifies you from being taken seriously about anything else you said. However, for the benefit of everyone else:

                  Yes, everything that is scarce is rationed in one way or another, which is the entire point of this conversation, and thank you for stating the obvious. That’s not in dispute; the question is “how” limited medical resources are to be allotted.

                  If you think medical bureaucrats, operating within the free market, are more likely, on their own, to achieve fair results than government bureaucrats, then I have a friend who’s a Nigerian prince with a great investment opportunity for you. Bureaucrats are bureaucrats, whether they work for a private insurer, a hospital, or the federal government. The reason to include government bureaucrats in the mix — while not giving them complete decision making authority — is that at least in theory, they represent all of us, and not just those with wealth and influence. I know, the reality doesn’t always match the theory, but for now it’s the best we can do.

                  1. “As standards for deciding who lives and who dies go, who has money strikes me as a fairly repulsive one.”

                    If prices are allowed to rise in response to a surge in demand, there is more incentive to fulfill that demand, saving more lives.

                    So yes, markets are efficient and moral.

                    1. Thank you. Sometimes the obvious is not obvious to the bureaucrats who think they know more than markets.

                    2. Right, in response to a pandemic which creates a spike in demand for skilled health care professionals and ventilators, as well as more hospital beds, all of those will magically appear out of thin air to meet the immediate demand.

                      This is example no. 1,648 of libertarian theory that is beautiful in theory but useless in the real world. You can raise prices as much as you want, but the needed resources will not be there to meet them. You’re still going to have a situation in which some people get treatment and others don’t. In fact, by raising prices, you’ve guaranteed that those who get help will be the rich.

                    3. “Right, in response to a pandemic which creates a spike in demand for skilled health care professionals and ventilators, as well as more hospital beds, all of those will magically appear out of thin air to meet the immediate demand.”

                      Market-based incentives allow needed equipment to be brought to bear in an emergency in all sorts of ways, but one of those is that allowing prices to rise reduces the risk of keeping items like hospital beds and ventilators in inventory. If you tell me that there’s a 10% chance that I’ll never need this ventilator, but if I do it will bring me $1, that’s a lot less attractive than if you tell me it will bring $10.

                    4. Substituting “government” for “libertarian” in your reply describes actual, you know, reality.

                      What magic do you think government brings to the table? Is it government paychecks? Kind and gentle police? Noble politicians? Invisible and fair taxation?

                      I’d really like to know. You’ve told us plenty of your misconceptions of free markets and individualism. It would be good to hear what our misconceptions are of government almighty.

                    5. Nothing the government does is magic, and it doesn’t claim to. However, it mostly doesn’t operate on ideological assumptions that are mostly untrue, such as:

                      1. Most people act in their own best interest. If that were true there would be fewer bad marriages, bad career choices, and far less substance abuse.

                      2. Other people’s problems don’t spill over into the larger society. You think people who can’t access what they need through the free market are just quietly going to disappear so your taxes don’t go up?

                      3. We’re better off for not having government intervention. In reality, we’ve got before and after numbers from when the government social safety net began to expand. We are in better health, with longer life expectancy, better educated, have more opportunity and have more disposable income than we did then.

                      There are others, but those will do for a start. And what government brings to the table is the ability to flatten the risk.

                      Look, I’m more of a capitalist than I am a socialist. I make a ton of money because I spent my youth earning two graduate degrees and working fifty and sixty hour weeks. I’m just fine with the idea that I’m entitled to a higher standard of living than the guy whose youth was spent partying.

                      But I don’t think the guy whose youth was spent partying should starve or die of treatable illness either. Maybe he survives on boxed macaroni and cheese while I get to have steak and lobster. Maybe when my appendix bursts, I get a private room with a view whereas he shares a four-bed room with someone who snores. But, I think there is an outer limit to how much we allow our fellow humans to suffer, even if it means including the government in the process.

                    6. “1. Most people act in their own best interest. If that were true there would be fewer bad marriages, bad career choices, and far less substance abuse.”

                      Fewer that what? Do you think that there would be fewer bad marriages or carrier choices if the government picked people’s spouses or carriers? And look at alcohol and mj prohibition.

                      “Other people’s problems don’t spill over into the larger society. You think people who can’t access what they need through the free market are just quietly going to disappear so your taxes don’t go up?”

                      You have institutions like extended families, where handling these issues naturally wants to happen. Social programs tend to prevent people from relying on extended families for social services.

                    7. 12″Pianist, I did not say that the government would do a better job of picking people’s spouses or careers; merely that many people don’t do a good job making those decisions for themselves, and that is strong evidence that people don’t act in their best interests.

                      With respect to extended families, some people have them and some people don’t. For those that don’t (or have other reasons not to rely on them), your solution is yet another example of beautiful theory that doesn’t always work out so well in the real world.

                  2. I have far more faith in private bureaucrats who have to worry about losing their jobs or their investments than government bureaucrats cloaked in a veneer of superiority soley due to having a government paycheck and whose only skin in the game is waiting for their government pension.

                    1. But isn’t part of keeping their job based on a profit motive and the bottom line as opposed to delivery of care? I mean if the best way to get profits is collecting premiums and denying care….

                2. To say that the market isn’t just efficient, but moral is some pretty impressive market-worship.

                  Markets are amazing, miraculous. In their lane. But they are explicetly not a moral engine; they seek what’s most efficient, not what’s best.

                  1. And governments — what do they seek? The fabled morality of which you claim markets lack?

                    No, governments seek power, raw power, and nothing else.

                    Don’t switch gears and start talking of politicians, unless you want to backtrack and talk of participants in free markets rather than just free markets. Markets and governments alike have no more morality than rocks.

                    If you want to talk of moral outcomes, markets win in a landslide, because the public can shun participants who lack the proper morals, unlike government participants. Or perhaps you are one of those useful idiots who thinks voting once every two or four years for one of two bad choices somehow shuns and shames immoral politicians.

                    1. Charles Dickens would disagree with you.

                      Socialism is when the fire department comes to put out the fire in your house. The free market is when your insurance company comes up with a bullshit reason not to pay the claim.

                    2. Are you claiming to speak for Charles Dickens? Too bad he can’t object for himself.

                      Maybe you should try some actual facts, some actual examples, rather than cut little wrong analogies.

                    3. People seek morality. Markets do not.

                3. “Then you are as economically ignorant as every politician ever.”

                  The only reason to read past that line is curiosity concerning whether the author is a right-wing nut or a left-wing nut.

              2. Well, that’s a matter of taste. I find it rather revolting when somebody who can afford a treatment that might help them is told, “No, we’d rather give it to this guy over here who can’t pay for it. But we’ll take your money anyway to pay for his treatment, and shoot you if you refuse to hand it over.”

                Again, the big advantage, (besides the fundamental morality of it.) of market distribution, is that it pays to increase the availability of the scarce resource.

                Other distribution schemes tend to perpetuate the scarcity, even make it worse.

                1. Lots of additions you needed to add for you to even attempt to make markets equal morally to anything else.

                  I love markets, they’re a great engine for innovation. But to argue that the best way to decide who lives or dies…

                  1. “But to argue that the best way to decide who lives or dies…”

                    They result in more people living and fewer people dying. Sounds good to me.

                    1. Your opinion, stated as if it were a fact. Par for the course.

                  2. Markets and governments have about as much morality as rocks. That you write as if it were otherwise shows a profound lack of understanding of markets, governments, and morality.

                    1. Before you continue to use the phrase “shows a profound lack of understanding,” perhaps you could recall that people who live in glass houses should change their clothes in the basement.

                    2. Another cute little useless analogy! You seem to excel at nothing else.

                    3. Free markets only permit voluntary transactions, that’s about as moral as it gets.

                      Governments specialize in threats and coercion. That’s literally the only thing they bring to the table that markets don’t: The ability to get away with shooting people who don’t do as they’re told.

                      That makes government significantly LESS moral that rocks, which are at worst merely amoral, not immoral.

                    4. Free markets only permit voluntary transactions, that’s about as moral as it gets.

                      Do not conflate moral methods with moral goals. Markets cannot have moral goals.

                      But even your analysis of methods fails the real-world test at the moment. Voluntary transaction in the case of life-or-death? Naiive as hell.

                      Jean Valjean may wish a word about what constitutes voluntary. So would Anatole France.

                    5. I don’t think free markets are as moral as it gets. At best it is justified on vaguely utilitarian grounds. But people don’t operate in markets using the categorical imperative, or a sense of duty to others. They don’t adhere to Rawls’s difference principle They aren’t wholly virtuous.

                      There’s a reason that Ayn Rand is a respected thinker among many free market advocates: her morality is that the only moral good is selfishness. Rational egoism is still egoism. And egoism is a terrible moral theory.

          3. In theory those aren’t the only two options, but in practice, and right now, for the presidency at least, they are. If Trump had not been elected in 2016, Clinton would be president and I have little doubt she would assuming far broader emergency powers and using them much more often and more far reaching manners

            1. But would she be wielding them more competently than Trump, who spent the first month of the pandemic claiming it was all a Democratic hoax to make him look bad. For all her faults, she at least knows how to run a government and doesn’t think that everything is about her.

              1. Considering Hillary still hasn’t admitted she, personally, was responsible for not winning, and that Democrats in general spent three years searching high and low for some means to impeach Trump and came up with that pathetic excuse, I’d say yes, Hillary and the Democrats would have done much worse.

              2. I suppose it is kind of funny that you claim Hillary doesn’t think that everything is about her, and she agrees with you: she certainly doesn’t think she had anything to do with losing her election.

              3. Just to be clear, we’re both talking about the woman who was self-admittedly too stupid to realize that “C” on a government document meant classified as confidential? Forgive me for being dubious.

                1. I mean that’s a hell of a lot better than President “Every demonstrably dumb thing I say is sarcasm.”

          4. On the merits, sometimes scarce resources have to be allocated. It would be nice if there were enough resources to keep everyone alive indefinitely, but there aren’t. So, for those who oppose this proposal, I would ask what alternative would you suggest.

            This already is happening, and has been for years. Patients are routinely sent to hospice to die — get real, this happens daily.

            The proposal here is to legalize “murder”, “criminal threatening” and other acts of *overt* violence. That’s not the rationing of care, that’s crimes against persons — death squads more than death panels.

          5. “since Hitler was democratically elected”

            He was not democratically elected. The Nazis never got an elected majority in the Reichstag.

            Democratically appointed, yes. Hindenburg was within his powers to make him Chancellor.

        2. George Washington was a bumbler-in-chief who refused to be king.

      2. For the record, that’s not at all how the Holocaust started. The Holocaust started when a bunch of people sat down by the side of a pretty lake and made a careful premeditated plan to kill all the Jews.

        1. Were those people right-wing white nationalists?

          1. Is a political philosophy that wants to kill all the generic businessmen better than one that wants to just kill the Jewish businessmen?

        2. “For the record, that’s not at all how the Holocaust started. The Holocaust started when a bunch of people sat down by the side of a pretty lake and made a careful premeditated plan to kill all the Jews.”

          W R O N G !!!!

          https://www.youtube.com/watch?v=quhNvOXBCMs

          I’ve met her in person — she said that the Nazis first came for the retarded (which she mentions in passing here) and killed them.
          And if you look into the history of the Holocaust, this is where/when it could have been stopped.

        3. “a bunch of people sat down by the side of a pretty lake and made a careful premeditated plan to kill all the Jews.”

          If you mean the Wanassee Conference, that was in 1942. It only accelerated it.

          It started in 1933 with the Nuremberg Laws and later in Kristalnacht. They were murdering “mental defects” before the war too.

          The Eisentazgruppens were murdering Russian Jews by the hundreds of thousands starting in 1941.

      3. Except there the exigency wasn’t an actual virus, but rather a loathing of the Jewish People.

        Rather a big difference there.

        1. Sigh, that’s not even close to accurate. The exigency was economic. They blamed the Jews, and the communists, and the disabled, and etc… for the economic problems, but the fundamental problem which got them voted into office and given power was economic.

          1. Reparations-based inflation was one factor, but existant xenophobia was definitely in the mix as well.

            Plenty of countries have an economic crisis without gassing a bunch of people.

      4. This thread is filled with really simplistic takes on the Holocaust. Beyond the numbers themselves, there’s a lot of debate among very serious historians about this topic and no easy answers at all. Saying something is “exactly” how the Holocaust happened or that someone “couldn’t be more wrong by saying it is cause X when really it’s Y” is absurd. This is one of the most complex historical questions out there.

  2. Death panels. But that’d never happen.

    1. Exactly. This horror is caused by socialized medicine, under the guise of “certificates of need” — which Maine has in spades:

      “The Health Care Oversight reviews and recommends either approval or denial of projects undertaken by health care facilities or other covered providers. In Maine, CON review is required for the acquisition, expansion or development of health care services or facilities.”

      And as with every other aspect of this concocted panic, there is no such shortage in the country. It’s yet another phony excuse for statists to grab more power.

      1. Prof. Volokh has rather a different take – one that has nothing to do with socialized medicine, and a lot more to do with triage in extraordinary times.

        1. Are times in Maine that extraordinary right now? Is triage currently illegal under Maine law? I find it hard to believe that making a medical decision to “pull the plug” as it were would be considered murder even under ordinary times

          1. Read the OP, Kevin.

          2. It isn’t Kevin — that’s what scares me.

            1. Lots and lots scares you, Ed.

              The argument ‘this law looks redundant – there must be a secret agenda in there!’ is not a very good one, especially given the often malleable nature of liability.

        2. and a lot more to do with triage in extraordinary times

          And another previously well-understood word bites the dust.

          They’re not asking for this carte blanche deity-grade authority for some theoretical “extraordinary time.” They’re asking for it right now.

          Right now, Maine has just over 1000 positive cases, with a 2% growth rate. Less than 4 deaths per 100,000 residents.

          “But, but… they want it just in case we have an extraordinary time in the future!” Then ask for it at that point. There’s no reason we should be writing blank checks based on abstract hypotheticals.

          All told, I think there’s plenty of room for this to feel just a wee bit pretextual.

          1. Pretextual? What is the underling motivation, in your judgment?

            1. Everyone likes freedom when it’s their own. They’re trying to leverage a emergency to get more control over their own choices.

              1. Control to do what?

          2. Never deal with anything unless it’s an immediate crisis. Gotcha, Brian.

            1. Hypothetical question, Sarc — do you think it’s possible for you to reply to anyone you disagree with without first contorting their argument into a straw man? Or does that just happen when you have no cogent response and need to manufacture a distraction?

              “Never deal with anything” is not even on the same planet as “exempt medical professionals from even the potential for prosecution for murder, based solely on their own assessment of the reasonableness of their conduct, under some sort of ill-defined emergency circumstances that do not presently exist.”

              And I’m very comfortable you understand that.

              1. Did you read his name

                1. Did you read his name

                  Indeed I did. But he pretty much dropped that shtick about two sites ago. Which is a shame — he was actually fun to read before he started trying to be serious.

              2. You argument is literally ‘there aren’t enough deaths yet, we don’t need this at the moment.’

              3. Brian, of course the triage issue came up in multiple states as the pandemic was bearing down. All the discussions I read about included a notable focus on the advantages of creating policy in an atmosphere free of urgent need, and without deadly immediate applications.

                There was also a good deal of concern that at a later moment, if pressing immediate need was a factor, no one could be found to participate, and potentially become a focus for blame. Everyone seemed mindful that deciding not to decide was very far from an adequately ethical coping mechanism. Despite that, at least in some cases—apparently including New York state—no decision ever was reached. That means the problem is just hanging around, not that it has gone away.

                1. Brian, of course the triage issue came up in multiple states as the pandemic was bearing down. All the discussions I read about included a notable focus on the advantages of creating policy in an atmosphere free of urgent need, and without deadly immediate applications.

                  Excellent — I completely agree. But as you say, the issue came up “as the pandemic was bearing down.” By definition, that’s anything but “in an atmosphere free of urgent need.” That’s an atmosphere of mass panic, where people have neither the time nor the inclination to have the thoughtful and fine-grained discussions necessary for a subject of this profound level of import. Let’s talk about it once things cool down — I predict there won’t be an appetite for anything nearly this carte blanche.

                  There was also a good deal of concern that at a later moment, if pressing immediate need was a factor, no one could be found to participate

                  Participate in what? Arbitrarily yanking life support from patient A and applying to patient B? In my mind that’s a feature, not a bug.

                  Everyone seemed mindful that deciding not to decide was very far from an adequately ethical coping mechanism.

                  This seems a bit overwrought. Medical professionals routinely deny care to others in actual need because their resources are all presently occupied. See, e.g., hospital waiting rooms. And that status quo is not “deciding not to decide” — it’s deciding that the person you’ve started to treat is the one you will continue to treat. If any doctor in any state has ever been criminally charged with murder for not having the resources or bandwidth to treat the newer patient in an overflow situation, please share. But I’m fairly comfortable that’s not what this is about.

        3. And a thinker would rather understand the causes of such “times” and how to avoid them in the future.

  3. I can’t get over the ‘Criminal Threatening’ exemption — that’s pointing a gun at someone. Whom do they think they will be pointing guns at?!?

    1. I imagine threatening to remove someone’s life support would fall under the same law as threatening to shoot them

    2. Did you read the statute before you posted this comment? I know it doesn’t come naturally to you, but try to be honest.

  4. Professor EV…The circumstances contemplated here simply do not exist at present. Nor have they in the last 100 years. So I would say the proposal is moot.

    1. ?

  5. “We believe that the Governor, if unable to provide a limited waiver of criminal liability, may use her office to influence the Maine Attorney General’s Office and the Maine District Attorneys to use prosecutorial discretion for healthcare providers during these unprecedented circumstances.”

    It is perhaps relevant to note that Janet Mills was the Maine Attorney General from 2009-2011 & 2013-2019 (when she became Governor). Her “influence” is with people whom she hired….

  6. Wow, this is a horrifying thought that healthcare providers might be talking about triage, making trade-offs, when it is well-known that all lives are of infinite value and therefore saving even one life should always be of utmost importance no matter how many people you have to kill to save that one life. The proper response to a ventilator shortage is obviously to have more ventilators so these sorts of trade-offs don’t need to be considered.

    And really, if you think about it, this can be extrapolated to the larger world, the best way to deal with a shortage of anything is to have a surplus of the things that are in short supply. In a country as rich as ours nobody should have to suffer a below-average lifestyle just because there are localized shortages of wealth. If we simply developed a communatarian approach to the distribution of wealth, we could all enjoy an above-average lifestyle. There’s no need to consider trade-offs if we were all infinitely wealthy and it’s easy enough to accomplish such a goal if we just had the will and the courage and the love of one another to make it so.

    I’d hate to think that healthcare experts are engaging in the sort of negative thinking that trade-offs are a necessary consideration of dealing with life, no one should ever have to choose to risk their life or their health for any reason whatsoever. Nor should they be allowed the choice in the first place if they’re just going to make wrong choices. Being allowed to make choices is fine only as long as you make the right choices.

  7. Despite the rhetoric, this is just an ordinary pandemic. This sounds like a dumb panic driven request.

    About 80% of people put on a ventilator don’t come off (statistically, per New York statistics). So as far as “scare resources” go and “people not likely to survive” this is essentially a license not to put people on ventilators in the first place.

    Meanwhile, there are about 8000 people who die in the USA every single day. If a few thousand people a day are an emergency, surely the 2000 people per day who die of cancer are a bigger “emergency.” Maybe we should suspend all rules and withhold chemotherapy from all the stage 3 and 4 cancer patients, because these treatments are extremely expensive and patients are unlikely to survive?

    1. I meant “scarce resources” not “scare resources” – but maybe my typo is a Freudian slip, lol

    2. And yet at a highly prestigious Boston hospital all cancer surgeries have been deferred.

    3. dwb, have a look at the NYT article on excess deaths in New York during the last 6 weeks. Note that for some reason about 5 times as many people died in that interval than would have died from all causes in a typical year. So no, in New York, the people who die from cancer are not even remotely as big an emergency as what the coronavirus has done. Not even all causes of death combined have been even slightly comparable.

      What is the point of trying to minimize evidence which anyone can check, and which many people are aware of?

      1. Correction: “from all causes during the same interval in a typical year.”

  8. The Coronavirus crisis has resulted in some interesting reporting in the Dutch press about how Dutch doctors decide whether or not someone should get an ICU bed. This English-language article seems to capture it OK:

    All this inequality is of course bothering him, but the worst is the “meaningless” treatments, Bakker said. Patients for whom there is no hope, but who still get unnecessary treatments because their families insist and can afford it. “Some of them lie dying here for a week. I’ve had a number of patients for whom everyone said it was hopeless. But the treatment only got extended. All you are doing is postponing death. That is very difficult, especially because it is not discussable topic here.”

    Bakker attributes it to the American mentality. As long as there is a chance, no matter how small, everything must be tried. “I finally said to a family: I am not willing to do what you want, because your husband, your father is no a guinea pig. But you never know, they said. Well, I studied that for 16 years, and I have been an intensivist for 20 years now. Then you get the answer we also know a lot, because we read many articles. They wanted to give him antibodies and were willing to buy them and deliver them to the doorman.”

    https://nltimes.nl/2020/04/28/dutch-icu-doc-exasperated-new-york-youre-broke-youre-screwed

    1. P.S. To explain why I was reminded of this: This is how hospitals/doctors get accused of murder. When they refuse to try everything the family wants them to try. And they might be legally innocent of any such crime, but if the family is wealthy it will take ages to sort that out, and by that time their reputation is ruined.

      1. If the doctor isn’t willing to try everything, he should change to a career where customers don’t die when not given what they want.

        1. If a doctor can’t ‘try everything’ for every patient because of a mismatch of patient population to available resources, which patient should receive priority? The patient whose family is the most unreasonable, the most well-connected, the most belligerent, the most litigious . . . or do you envision another criteron?

          How should a lawyer advise that doctor (or a hospital)?

      2. I think you ought to sit out of this discussion, Martinned, being Dutch and all.

        https://www.cnn.com/2020/04/22/europe/netherlands-euthanasia-dementia-intl-scli/index.html

        Like the Nazis, murder of “mental defects” is ok in Holland. Even when they struggle and resist.

        1. Jesus, Bob. That’s a personal attack that’s rather over the line. And, if you read the linked article, also a lie about what the policy is.

          1. The lady struggled and resisted being killed. The court said that was ok.

            Martinned supports the “euthanasia” program based on his past comments.

            So I stand by my comment, your fainting spell aside.

            1. It’s a knotty ethical issue. Luckily, you’re willing to just blast your way through it with no humility whatsoever and call a whole country murderers.

              Awesome moral high ground. Way to go.

              You actually sound a lot like some of the liberals on the forums I go to who call every country and every President fascist.

              1. “call a whole country murderers”

                Only the government, the courts, the doctors who do it and the part of the population who supports it.

                Its not really “knotty”.

                1. Aren’t you the one who is into torture of folks at Gitmo without due process? And for running over BLM protesters who are blocking the road?

                  Your moral sense is really overtuned, dude.

                  1. Make Kant Great Again.

                    But seriously, conservative moral philosophy could use a dose of the categorical imperative.

                    1. “categorical imperative”

                      I think we do follow it.

                      “Innocents to be protected and wrongdoers punished.”

                    2. Who is innocent and who is a wrongdoer?

                      Yes or no: deport someone who was born here?

                      Yes or no: deport someone who was brought to the country as a baby and has only known this as home?

                      Yes or no: allow someone to be without medical care because they cannot afford it?

                      Same question as above but it’s a child?

                      Yes or no: deliberately causing civilian casualties in war ?

                      Yes or no: torture to get information without evidence of wrongdoing?

                      Yes or no: discriminate based on race, sex, or sexual orientation?

                  2. “without due process”

                    Nonsense, I am in favor of all the process they are due because of their activities.

                    1. That’s not what due process is.

                    2. Hey Bob: How close are you to replacement, from the actuarial perspective?

                      Replacement of torture-loving clingers is the best kind of replacement, and I want to be ready for a celebration.

                    3. We don’t know their activities without more process, Bob.

                      As to your ‘I don’t punish the innocent’ you literally told someone on this thread they should shut up because they’re a murderer based on group guilt.

                      Not a good show today, Bob.

        2. I think you ought to sit out this discussion, Bob, being from can’t-keep-up Ohio and all.

    2. There’s a big difference between declining to give people an unproven treatment (outside a clinical trial context), on the one hand, and removing people from accepted standard of care treatment because you think other people are more deserving of it.

      One issue here is that this virus is particularly mysterious. We really don’t know why some people come off ventilators after weeks on them while others die within hours. We don’t know who is going to live and who is going to die.

      1. The cultural observation was that in Dutch hospitals patients don’t get sent to the ICU unless doctors think that that would materially improve their outcomes. As a result, very few Dutch Coronavirus patients actually end up there.

        More generally, my point is that various things might not technically be murder/manslaughter, but can be close enough to allow for all sorts of trouble, including intimidation by threat of litigation.

        1. Would you prefer the Vito Corleone approach?

          Bear in mind they have already eliminated all civil redress, eliminate criminal as well, and people with money will turn to the Vito Corleones

        2. “More generally, my point is that various things might not technically be murder/manslaughter, but can be close enough to allow for all sorts of trouble, including intimidation by threat of litigation.”

          If there’s some dispute over whether or not something is murder, you want a forum to resolve that dispute. And if something is close to murder, giving doctors pause is a good thing.

          1. He is Dutch, doctors murdering people is legal there.

  9. Society has traditionally distinguished between whether to start surgery, on the one hand, and whether to kick people off the table and move on to someone else once they are under the knife.

    This epidemic, while severe to recent memory, is far less severe than past ones. And past epidemics did not call for suspension of murder statutes. They called for using force under looser circumstances (shooting looters, forcibly vaccinating people, etc.) But not deliberately putting people in vulnerable circumstances and then abandoning them in favor of someone else.

    We need to put things in perspective here. There are emergency powers, and then there are the sort of emergency powers that can give rise to tyrrany. Murder of innocent people has never been a legitimate emergency power. And this epidemic is a less serious one than many past ones. It does not require greater emergency powers than have ever been done before.

    While courts shouldn’t micromanage traditional emergency powers and let political leaders decide whether they are necessary in a particular case, novel emergency powers that are qualitatively different from any done in the past require a different degree of judicial scrutiny.

    Jacobson covers vaccination and much else. But it does not stretch to cover murder. Murder is qualitatively different even from putting people in concentration camps that was upheld in Koromatsu.

    1. You are acting like this is a suspension of all murder. The text in the OP makes it quite clear this is about triage.

      I’m not sure it’s a good idea, but waiving the bloody shirt about Muuuurrrduuurr isn’t realy salient.

      1. In situations that really are triage, I would think laws such as murder and manslaughter would already not apply, since the laws are based on the assumption that the killer had an alternative (was not in a triage situation), and for murder, that he had ill intent.

        If I’m wrong, then we should not be suspending generally applicable laws for an emergency — we should be rewriting them permanently so that avoidable killing is illegal, but triage, when unavoidable, is not.

        1. You’d think that. But a little explicit insulation from liability never hurt anyone, especially given how some prosecutors are.

          1. “But a little explicit insulation from liability never hurt anyone, especially given how some prosecutors are.”

            You don’t read the “short circuit” feature on Fridays?

      2. No, triage doesn’t violate the murder statutes. If it does, they are doing something different from triage as traditionally understood.

        As i said in my comment, society has traditionally distinguished between whether to start surgery, on the one hand, and whether to kick patients off the table once they are under the knife. One is triage, the other is murder. The reason why the petitioners want the murder statutes suspended is precisely because they want to do things that more resemble the latter than the former. Calling it triage doesn’t make it so.

        1. Consider the case of a single EMT showing up at an accident where there are two seriously injured individuals both of whom are almost certain to die without immediate “labor intensive” treatment. However, one has only a 5% chance of survival even with immediate treatment while the other has a 95% chance of survival with immediate treatment. This is classic triage and I think almost everyone would agree that the EMT should work on the most likely to survive first.

          Consider the case then of two patients in a hospital in front of a doctor and both need ventilators but there is only one ventilator (and ignoring the hack of putting two patients on one vent) available and no additional ones will become available for many hours at best. One patient has a 5% chance of surviving IFF put on the vent and the other has a 95% chance of surviving IFF put on the vent. This again seems like classic triage and I think almost everyone would agree that the vent should go to the “95% chance” patient.

          Now suppose the “5%” patient showed up first, was put on the last vent, and then ten minutes later the “95%” patient shows up and needs the vent. Why would one not remove the vent from the “5%” patient and give it to the “95%” patient. The math seems virtually identical and overwhelming in both cases and the outcome is exactly what would have happened if the timing had changed only slightly.

          Suppose a doctor is subjected to increased risk of civil or criminal liability if they started a low chance of survival patient on a vent and then, because no other vent was available, moved the vent to a patient who needed it and had a high chance of survival. Wouldn’t that likely just cause doctors to “reserve” vents for only patients with a high chance of survival – leaving unused vents as patients who might benefit from them dying without any hope?

          1. Let’s start with basics. If there’s no difference between conduct you personally do and conduct you don’t personally do, why not pay someone to take a test for you. After all, it’s the test result, not your personal behavior, that matters.

            You are in the SS. You are assigned to an extermination camp. You have an opportunity to transfer out for a pay cut. Should you? After all someone is going to be killed anyway. And it makes no difference, no difference whatsoever, whether you personally do it or whether someone else does it, right? So you should take the money and not transfer, right?

            It makes an enormous difference whether a person dies of some other cause or whether you personally kill that person. This is so even when the result is the same.

          2. Too much math for clingers.

  10. As far as “prosecutorial discretion” is concerned, let’s take a look at Art. I, Sec. 13 of the Maine Constitution: “The laws shall not be suspended but by the Legislature or its authority.”

  11. The Whitey Bolger case (And particularly that of John Connolly, his FBI handler) comes to mind. If government can sanction murder to help with an epidemic, why can’t it also sanction murder to help with an investigation?

    1. Yeah, that’s what this order contemplates.

      Neato slippery slope strawman you got there.

      1. Except that this slippery slope runs uphill, because the worse case already happened.

        1. You mean a new Holocaust everyone is invoking?

  12. BRAVE NEW WORLD.
    What is wrong with these people???

  13. It’s called triage and it is (or is supposed to be) routine.

    Remember that triage is classically the sorting of patients into three categories – expectant, immediate and delayed. Delayed are the ones who can wait for treatment without dying. Expectant are the ones who, given the resources available, are probably going to die regardless. Immediate are the ones you focus on.

    That’s a harsh calculation and it is supposed to be based on the resources available. That means it can change as circumstances change. Someone who was immediate can be moved into expectant if more savable patients are discovered.

    We have – I don’t want to say ‘perverted’ but definitely ‘softened’ – those definitions based on modern assumptions that more medical resources and staff are always available. But anyone who really studies emergency medicine knows that it’s a fiction. True triage includes hard choices. And ethically, that includes sometimes taking people off potentially-life-saving technologies to give it to others.

    1. There is a very big qualitative difference between delaying a person’s organ transplant surgery because another waiting person is deemed a more suitable candidate, on the one hand, and stopping the surgery and kicking the patient off the table after the old organs are out but before the new organs are in because a newer arrival is deemed more deserving of them.

      One is triage. The other is murder.

      1. Sorry, Reader, but no there is no difference at all.

        Okay, technically there is. This is a variation of the Trolley Problem. (5 people on one track, 1 person on the other. You can’t stop and they can’t get away. Do you throw the switch or not?) Personally, I have never accepted the argument that inaction is more morally acceptable than affirmative action. It doesn’t matter which track has the one person – that’s the way you have to steer the trolley and you have to live with the consequences regardless.

        Bottom line – refusing to put someone on the table is no different from putting them on the table then kicking them off. Either decision is tragic. Neither is automatically worse.

        1. There’s a big difference. There is an enormous difference between delaying help and actively harming.

          Moreover, in the trolley problem the issue where people start having difficulty is where the choice is between one or a few people compared to many or a whole society. When there is exactly one person on each set of tracks – the case here, where there is a one to one substitution – people almost invariably refuse to kill an innocent but less deserving individual to help a single more deserving one.

          1. “When there is exactly one person on each set of tracks”

            In one sense yes, in another sense no.

            For example, the ship is sinking and there isn’t room in the lifeboats for everyone. I think that generally people in that situation prioritize saving children over geriatrics. Why is that? My sense is that we are implicitly saying a 10 year old has 0.9 of their life remaining, while the 90 year old has 0.1 of their life remaining, and so the choice is saving 0.9 or 0.1 lives, and 0.9>>0.1. I don’t think the morality of that is particularly controversial.

            So imagine the same situation, but where there is good science that Person A has a 0.1 probability of surviving if they get the single medical widget, while Person B has a 0.9 chance. Why is the moral calculus different?

            If A & B arrive in the same ambulance, how do you decide who gets the widget? Flip a coin? If you say ‘give it to Person B’, should it matter whether A arrives 5 minutes before or after B? If you give it to one, should you flip a coin when the second arrives?

            ISTM that ‘try to save the maximum number of lives’ is a pretty strong moral position.

    2. Consider a single example and run the numbers.
      I am on a ventilator. It is necessary to the preservation of my life but even with it, I have a 5% chance of survival.
      Your daughter needs a ventilator. With it, she has a 95% chance of survival. (Assume for simplicity that without it, either of us has a 100% chance of dying. Also assume for simplicity that there is only the one ventilator in the world and no substitute treatments are available.)

      Under what ethical model does it make sense to leave me on the ventilator and let your daughter die?

      1. Under the ethical model embraced by someone who prefers the five-percenter to the 95-percenter and is a jerk.

        The issue becomes practical — and the sketchy ethical model if that person is loud, well-connected, well-heeled, litigious, and/or belligerent.

      2. Any ethical model in which murder is wrong.

        And your hypothetical doesn’t apply here in any event. The idea that we can reliably estimate people’s chances of surviving on a ventilator when they have covid 19 is delusional. We don’t know why most ventillated patients die but some survive.

        1. Triage is not murder. Claiming that it is makes a mockery of the entire concept.

          And despite your claims, we actually can estimate people’s chances for lots of medical conditions. We are rapidly developing the database for COVID-19. We do know, for example, that elderly (age >80) have a far, far greater chance of dying even on a ventilator than the young. Maybe we’re not yet at the point of being able to say that the odds are 14.8% – but that’s a matter of significant digits. It does not invalidate the concept.

          1. Agree that murder is not triage. Triage involves assignment to care. Murder is something different.

        2. ” The idea that we can reliably estimate people’s chances of surviving on a ventilator when they have covid 19 is delusional. ”

          How would you address the issue? Just ask Jesus to whisper the answer in your ear?

          1. Sometimes admitting we don’t know when we don’t is better than pretending that “science” means we must know everything.

            1. This is a false dichotomy. We often know something, but with less than total certainty. We know a lot about how to reason and make decisions in the face of such uncertainties. Most scientists learn this stuff so well it is in their bones.

        3. ReaderY, I take it that you would still be opposed to ventilator-switching even if you believed that doing so would be much likelier to save a life (more precisely, if doing so would on average result in a much larger number of quality years of life).
          If so, you are rejecting a world with much less death, much less suffering, and much more joy just by slapping the label “murder” on it. I disagree; if this narrowly defined act be called murder, make the most of it.

      3. But your numbers are simply made up. There is no way to know that putting a girl on a ventilator using standard protocols will have a 95% chance of saving her life without also initiating severe lung damage.
        Your choice to kill one person for the possibility of sparing another (likely with decreased quality of life) is based merely on your emotions not on medicine.

        1. Of course my numbers are made up. It’s a hypothetical to explain the point clearly. You are wrong, however, in saying that all such numbers are based on emotions rather than medicine. For many diseases, we do have quite good survival statistics based on different input variables. And we are rapidly developing that database of statistics for COVID-19.

          You’re also wrong in inserting the “severe lung damage” consequence into this calculation. According to the best-available data so far, that consequence is a probable outcome for both young and old. As such, it’s a wash and does not affect that decision of who should get the ventilator. However, were there statistics suggesting variability in the lung damage consequence, it would appropriate to consider that in your moral calculus.

          1. Your numbers are made up because you are pretending to have much more certainty than you actually do.

    3. “It’s called triage and it is (or is supposed to be) routine.”

      That has also been my understanding (well, hopefully uncommon, but routine in the hopefully uncommon situation of scarce resources).

      I’m not sure if the difference here is that people didn’t know triage was SOP, of if they are distinguishing initial allocation from reallocation, i.e. they view these two situations differently:

      1)many injured people arrive at the ER simultaneously, and the one available medical widget is allocated to the person most likely to survive only with the use of the widget, as opposed to…
      2)one person arrives and is using the rarely used widget even though they are almost certainly going to die even with the widget, but then another arrives who can almost certainly be saved, but only if they get the widget

      If so, I guess it’s just the standard trolley problem, and people will sort themselves according to their preferences abut that.

      I’m a switch-thrower; I would surely hope that the docs would divert their man hours from hopeless cases to those who can be saved, and I think all the resources, man hours or widgets, ought to be treated the same.

    4. Triage is supposed to be routine in emergency situations where there’s a lack of resources. Even in NYC, the Covid-19 pandemic isn’t at the kind of levels that call for triage. Maine isn’t remotely near triage conditions, and shows no prospect of ending up there.

      Reminds me of this classic. Only it’s not a joke, they really want permission to do it.

      1. I read the Maine request differently, Brett. I agree that Maine isn’t remotely near true triage conditions now. But I think this panic caused them to look more closely at their laws and capabilities and they realized that in some future case, they would not be able to do true triage without violating the law. They are (or should be) asking to get those laws rewritten now while it’s fresh in everyones’ minds so they’ll be ready next time.

        1. They are (or should be) asking to get those laws rewritten now while it’s fresh in everyones’ minds so they’ll be ready next time.

          Or, more succinctly, “never let a good crisis go to waste.”

          As has been aptly demonstrated over the past couple of months, governing bodies are more than capable of timely issuing orders based on the situation in front of them. If something down the road is truly causing people to die in the streets by the thousands and doctors truly need to make hard decisions to allocate scarce resources, that same thing will happen.

          Permanently exempting a class of society from prosecution the instant an emergency of any sort is declared, under standards of conduct they themselves define, is hardly the sort of narrowly-tailored exception we might actually want to contemplate carving out out of crimes like murder and its ilk.

          1. What’s your view of the Trump administration’s proposal for emergency exemption of businesses from tort liability?

  14. Speaking of murder — Governor Cuomo’s response to Corona (where he ordered that elderly victims be not only refused hospital admission, but forced into nursing homes which are then forced to accept them, thus infecting many vulnerable people who were already there) ought to get him charged with murder. New York’s high death rate from the virus is mostly the result of this practice.

    1. And this kind of ridiculous thinking is why I’m coming around to think this order isn’t the worst of ideas.

      Hint: don’t believe everything you read in the NY Post.

      https://www.nbcnews.com/news/us-news/coronavirus-spreads-new-york-nursing-home-forced-take-recovering-patients-n1191811

      1. Wait, don’t believe everything you read in the NY Post, but then you link an article which contains basically the same story…

        1. It rather explains things in a way that is not the weird pinched version jdgalt1 put forth.

          1. It explains that 24 patients at a Long Island nursing home died after it was forced to admit sick patients. It explains NY has 3,500 nursing home deaths.

            3,500 nursing home deaths is more than total deaths in every state except NJ and Michigan.

            Seems like it fully supports jdgalt1.

            1. “any other state” not “every state”.

            2. The article I linked makes the cost-benefit calculus pretty clear, Bob.

              And NY having more total deaths than every state except for NJ and MI is pretty great considering how many total deaths they have.

              1. “cost-benefit calculus”

                Nice clinical way to say old people are disposable in NY.

                1. Not the calculation Cuomio is making.

  15. The Purge will soon begin. All crimes, including murder, will be legal….

    1. From the perspective of the bottom quarter of the American population, that would begin with (a very special) someone shooting a person on Fifth Avenue.

  16. It’s a variation of the Trolley Problem in real life.
    https://en.wikipedia.org/wiki/Trolley_problem#The_fat_man

  17. I’m not sure that judicial review in some cases isn’t a good idea. In many cases acting to save someone else could be justified if a patient were hopeless, it almost fits the doctrine of defense of another person.

    On the other hand if a doctor were to withdraw care when resources were available to help others or to select one patient over another for reasons other that saving a life. Suppose a poor old person were denied care and a rich old person was given care on some preferential basis? Is that ethical?

    1. Happens all the time, and appropriately so. Suppose I’m a rich old person, and I hire a private physician. Is it unethical for that doctor to be tending to me instead of doing pro bono work on the poor?

      1. Perhaps more to the point, in an emergency could some level of government assign that physician to do work other than tending to you? Similar to ordering a private manufacturer to make ventilators or surgical masks.

      2. I wasn’t to talking about the differential in care between one person and another but literally withdrawing care. Could a doctor legally disconnect a ventilator from a living patient to use it for someone else? Could a rich patient out bid a poor patient for the use of that equipment? Fortunately we don’t seemed to have reached that level of desperation.

  18. The proposal is also a great solution to the emergency need for vital organs.

  19. How does the increasing skepticism about ventilators as treatment for covid-19 affect how you perceive this request, Prof. Volokh?

  20. Also relevant: the request seems to fly in the face of the hyppocratic oath. “First, do no harm”? Even without the potential legal consequences, the request seems unethical for medical professionals.

    1. Net harm is still harm, Squirrelloid.

      1. That line from the hyppocratic oath isn’t about general harm, it’s about harm *caused by* the physician. Net harm isn’t relevant here, it’s whether the *physician’s actions* are causing any harm.

        So while there may be a net benefit from intentionally killing one patient who was likely to die in order to probably save another, the harm suffered by the second patient if you don’t kill the first one isn’t inflicted by the physician. The harm inflicted to the first patient definitely is.

        1. That’s exactly the point. There’s an enormous difference between harm caused because there aren’t enough physicians for the number of patients so some have to wait, and harm caused by the physician’s actions.

        2. Squirrelloid, is it your view that the Hippocratic Oath forbids triage in general?

          1. No. Making decisions about who to treat isn’t causing harm.

            What’s forbidden is, having decided to treat a patient and having begun said treatment, you withdraw said treatment to the detriment of the patient. ie, once you start a surgery, you can’t stop just because another patient comes in who is more likely to live, you have to finish the surgery you’re on.

            1. So, hypothetical, two similar situations:

              Situation 1: an ambulance pulls up carrying patients A and B. The doc looks in and says ‘We don’t have enough blood/whatever for both. A looks like a long shot, but we have a good chance at saving B – put A in the tent to (very likely) die, and take B to the OR’. IIUC, you’re fine with that?

              Situation 2: same patients, but A arrives first. The doc says ‘probably hopeless, but we’ll give it a shot, take A to the OR’. The gurney makes it halfway across the ER when the ambulance with B arrives, the doc takes a look, and calls out ‘Change of plans, we can save this guy, take that first one to the not-going-to-make-it-tent, get B into the OR right now’. That’s not OK, because the doc is now withdrawing care from A that he originally intended to give?

              For a non-medical hypo, the ship is going down. You’re a crew member loading a lifeboat. The first passengers that arrive are men and you fill the boat. As you are about to lower the boat, a bunch of pregnant women and kids show up. Is it OK to unload the original men in favor of the women and kids, or is it your view once you load them in the boat initially that’s final?

              1. Situation 2 is probably still fine. It’s once they’ve started the procedure it’s too late. (ie, once they start the blood transfusion or whatever). Removing a patient from a ventilator is a lot different than starting to roll them towards the ventilator, but changing your mind before you actually hook them up.

                (If doctors are convinced they’re going to be short of critical supplies, maybe there should be some minimal likelihood of success before they start treatment in the first place – at some point odds of success get sufficiently close to zero that they treat it as being zero, and don’t medically intervene. Having a threshhold helps answer the ‘what if a patient arrives after the procedure has started?’ question. Honestly, there should be some minimal chance of success even in non-pandemic times.)

                For the non-medical hypothetical, the hyppocratic oath doesn’t apply, so the ethics aren’t necessarily the same; but the analogous situation would be if the lifeboat has already been lowered and released – you don’t go back to change which people you’re saving.

                And frankly, you shouldn’t have loaded the men to begin with if you had any reason to know there were pregnant women and children still on the boat. (Finally, in this case, any real men would volunteer to relinquish their position on the lifeboat for women and children).

  21. Interesting since there are various reports out of places such as NYC alleging that the protocol being employed is malpractice and even comparing it to murder.

    https://www.dailymail.co.uk/news/article-8262351/Nurse-New-York-claims-city-killing-COVID-19-patients-putting-ventilators.html

  22. No personal decision — not even the decision of an emergency physician acting during “extraordinary circumstances” — should be exempt from review. Putting the question another way, why _should_ such decisions be exempt from review? Certainly, a prosecutor might wrongly deem a physician’s triage decision to be murder — but the physician’s decision might in fact BE a bad, murderous decision: why _should_ there be an exemption for one who must later admit (borrowing from a comment above) “In Retrospect, I Guess We Might Have Resorted To Cannibalism A Bit Early”? Would we ever say “He was the duly elected Führer and by virtue of his position he had the right to order the killing of as many Jews as he deemed appropriate as part of his effort to protect the health and well-being of the community as a whole”?

    Some might indeed agree with that position. “In the past, one understood health care as caring for those who were ill. Enormous means were used. And in certain circles, the ill were the model of humanity, at the center of all action and thought. No one made the effort to find the roots of illness, or to consider: ‘How could we stop illness at its start, or at least limit it as much as possible?’ […] However, the main focus of our health care system is avoiding illness, and maintaining the health of the individual. We include here not only the work of the doctor in the National Socialist state, but also the whole work of the NSV, which the Führer created largely for this purpose. The sterilization of genetically ill people only serves the purpose of protecting the German people from illnesses. Sterilization is not a judgment on those it affects. To the contrary, we appeal above all to their sense of community, to their knowledge that it must be their duty to subordinate their personal interests to those of the community.” (Walter Tießler, Nicht Phrasen sondern Klarheit [Not Empty Phrases, but Rather Clarity]. Berlin: Franz Eher, 1942. Available online at https://research.calvin.edu/german-propaganda-archive/tiessler3.htm )

  23. Seems to me that the same logic applied to dynamiting buildings during the San Francisco Fire of 1906.

  24. A lot of argumentation here, but no numbers!

    That’s important because the numbers (below) will show how panic over unlikely outcomes can lead to terrible policies. In Maine’s case, we find a worst-case scenario, that the numbers simply do NOT point toward, leading to recommendations that docs be allowed to withhold treatment from patients.

    The thing is, you can ALWAYS posit some worst-case scenario, and if you do it will ALWAYS push you to take away peoples’ rights. That’s what seems to be happening in Maine, and any civil libertarian should oppose it.

    So here are the numbers: Maine has about 1.3 million people. Its State Department of Health reports 1,040 confirmed coronavirus cases, only 163 hospitalizations, and 51 deaths.

    What are their medical resources? Maine has 330 critical care beds, of which only half (158) are being used by ANYONE AT ALL (it doesn’t tell us, but if it is like Indiana, which provides more information, only about 20% are being used for Covid-19 patients).

    It has 314 ventilators, of which 298 are NOT being used by ANYONE (i.e., usage rate is only 5%). Plus there are another 397 “alternative ventilators” that aren’t in use.

    Jesus folks! Even in NYC, whose outbreak was was bad but hyped even worse, they never needed nearly the numbers of ventilators the governor was demanding. And the 1,000-bed US Navy hospital ship Mercy, which was so critically “needed,” treated a total of (drum roll) 179 patient before giving up and leaving.

    And with that, NY forced nursing homes to take in people–spreading the virus to the most vulnerable population. THAT’s what happens when you let fear drive policy. And that’s why we need to oppose these impositions on human rights.

    Here’s the link to the Maine site: https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml

    1. Meh. Doctors have been dealing with tricky triage problems for most of the history of medicine. Consider, for example, organ transplants. Mr. Richguy needs a new heart, and Poorguy over here isn’t really using his… All these kids with CF need new hearts AND lungs…

  25. Traditional ethics recognizes we often have much less ability to predict the future than we think we do. Because we often don’t much knowledge or control over the course events, and are often unable to solve problems, the ethical course is first above all to avoid causing harm ourselves, and then to give what help we can, understanding we will be unable to do everything.

    This is classic medical ethics. Those who have read my comments for many years know that it is also my approach to the role of the judiciary.

    Humans seem wired to have a need to think they understand the world and know the future much more than they actually do. And the 20th century in particular has been with corpses of people who had been thought scientifically proven to have stood in the way of science, progress, and the general welfare. The same calculus proposed in many of the comments above – surely it is better to get rid of the people who are a drag on resources and prevent others more able from surviving – the same claim that any non-stupid system of ethics must necessarily prefer fewer deaths overall and must therefore necessarily justify causing deaths when the scientific calculus shows that causing the death of the few will lead to the survival of the many – could be heard coming from the mouths of many a Stalinist justifying the deaths of the Kulaks, and many a Nazi justifying the deaths of first the disabled and then the Jews.

    History shows that just because we think we are certain doesn’t mean we are.

    Covid-19 is a particularly mysterious disease. We don’t know who will benefit from treatment and who won’t.

    There is an important difference between making some wait because we can’t treat them all, and taking people that we ourselves have made vulnerable – surgery patients on the operating table, intubated patients that we have given drugs to prevent breathing on their own – and simply abandoning them while in the vulnerable state we ourselves have put them in. The first is simply failure to help. We can triage patients when we are unable to help all. The second is ourselves actively harming.

    Actively harming is not triage. It is murder. Our belief that patient X will die anyway does not justify murdering patient X. If Patient Y dies while we stabilize Patient X so they are no longer immediately dependent on the machinery we placed them in, as we are ethically obligated to do once we make Patient X vulnerable, so be it. We can’t be sure Patient X will die anyway. We can’t be sure Patient Y will die while waiting for Patient X to stabilize, or will live if treated immediately.

    1. A critical fact about COVID-19 is that people are ususually talking on their cell phones to put them on ventillators. They have to be given heavy sedatives to induce a coma and inhibit their natural breathing so as not to interfere with the ventillator.

      And it is this critical fact – people were given drugs to stop their natural breathing – that makes simply taking them off a ventillator murder rather than triage. When they die, their death is due to the drugs, not the disease.

      Realize this post is several days old and commentators have moved on to newer ones. However, the specific facts here are absolutely critical to assessing what is going on. It’s not like normal triage, where we simply don’t help people and leave them to their natural. Here, we have intervened in a way that actively inhibits and prevents their natural ability to survive. That’s what makes it murder.

      1. “And it is this critical fact – people were given drugs to stop their natural breathing – that makes simply taking them off a ventillator murder rather than triage.”

        That would be true if you just yanked the ventilator, versus doing whatever they do – let the drugs wear off, give an antidote, whatever – when people are removed from ventilators normally.

        I haven’t a clue what those procedures are, but I presume they must exist, or going on a ventilator would be a one way trip for everyone, not just most people.

        I do agree that the morality of triage is a very fact-specific thing.

        1. The problem is that properly withdrawing a patient from a ventilator is a gradual process that can take days, sometimes a week. And the basic premise of the original post seems to be that there is a new patient coming in with immediate needs, who they think would make a better ventilator candidate, who doesn’t have that kind of time.

          I think they are contemplating simply withdrawing the first patient and having them die from the drugs that suppress natural breathing.

          If this wasn’t the case, they wouldn’t need the suspension of the murder laws that they are asking for.

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