COVID-19, Pandemic Triage, and the Polymorphism of Justice

This article refers to:

Ethical Challenges Arising in the COVID-19 Pandemic: An Overview from the Association of Bioethics Program Directors (ABPD) Task Force

Positive Public Health Ethics: Toward Flourishing and Resilient Communities and Individuals

Ethics Lessons From Seattle’s Early Experience With COVID-19

What is the shape of justice? To a sculptor in the sixteenth century, justice was a woman—often adorned with scales, a sword, and a blindfold. Today, the covering of the eyes is usually associated with impartiality. But half a millenium ago, the blindfold was associated with the judicial system’s tolerance of—or, at the very least, inability to recognize—abuses of the law (Office of the Curator 2003). In the wake of COVID-19, how will artists and political cartoonists represent both justice and injustice? Will the allegorical figure of “pandemic justice” be portrayed as similarly unwilling or unable to recognize the profound structural injustice and social inequalities playing a major role in the disproportionate impact of this pandemic?

In the wake of COVID-19, I have launched a research project called “Pandemics and the Polymorphism of Justice.” At its core, this project explores the different shapes or forms that both justice and injustice take in light of our current and future pandemics. My initial framing or conception of the polymorphism of justice is broad enough to include: (1) the typologies and meta-typology of justice—the latter alluding to the ways in which different disciplines (such as ethics, law, political philosophy, psychology, and evolutionary biology) characterize and typologize justice; (2) the structures, institutions, norms, policies, and practices through which societies purport to promote justice; (3) the iconography and representations of justice (including, but not limited to, allegorical figures that predate concerns about disability rights and gender binaries); and (4) the narratives of justice—the stories we tell ourselves and each other, whether individually or collectively, about justice and its myriad instantiations. I also conceive of a distinct but related—and arguably even more important—analysis that explores the polymorphism of injustice, parsing the different shapes or forms that injustice takes.

To understand the relationship between the polymorphism of justice and that of injustice, one need only reflect on the ways in which icons and narratives (as well as narratives about icons) may serve either to mask or highlight concerns about structural injustice, whether in the legal system or the health care system. If you perceive the sculpture’s blindfold as a symbol of impartiality, you are far more likely to tell yourself a charitable story about our criminal justice system than if the blindfold appears to you, as it did to sixteenth-century critics, to be a symbol of the system’s tolerance of abuses of the law. Similarly, the stories we tell ourselves about COVID-19 policies and practices may mask or highlight concerns about structural injustice.

If you perceive the algorithms, flowcharts, color schemes, and acronyms of COVID-19 triage policies as indicia of objectivity and value neutrality, you are far less likely to be attuned to the ways in which these policies adversely affect individuals and communities experiencing structural injustice at the intersections of (among other factors) race, poverty, gender, disability, immigration status, and age. But, as McGuire et al. 2020 recognize, triage policies are not—and cannot be—value neutral. Algorithms provide no inoculation against bias; on the contrary, they may not only embed the prejudices of their architects, but also amplify and transform them into systemic biases (Hanlon 2019). Similarly, flowcharts do not flow from some inexorable logic; they construct and perpetuate their own logics. And we should not allow triage policies and procedures to disguise the painful truth: that, at a population level, thousands of deaths were predetermined by failures of leadership and lack of preparation, and that the populations hardest hit are those that have historically experienced and currently experience structural injustice.

Being attentive to justice and injustice not only as abstractions, but also as institutions, instantiations, representations, narratives, and counternarratives, offers hope for addressing justice beyond pandemics. Indeed, it calls into question the very idea of the pandemic/non-pandemic distinction. Given the countless failures to heed warnings prior to COVID-19, and the inevitability of future pandemics, we must consider a pandemic as something that is either happening or about to happen. That argument becomes all the more compelling when we recognize that—as COVID-19, Hurricane Katrina, and many other crises periodically remind us—the burden of systemic failures to prepare for public health emergencies falls disproportionately on communities suffering from systemic inequalities (Subbaraman 2020).

Exploring the typologies of justice can help us think critically not only about laws and policies—whether already “on the books” or drafted in response to the pandemic—but also about the recent focus of bioethics as a discipline. Notably, much attention has been directed to questions of distributive justice—in particular, how to allocate scarce resources, such as ventilators (despite their limitations in treating COVID-19) and vaccines, if and when they become available (see, e.g., Emanuel et al. 2020; Truog et al. 2020; McGuire et al. 2020). Concerns about procedural justice, in the context of triage decisions, have also been raised—an issue on which the ethical review by McGuire et al. 2020 also touches. Many state guidelines and hospital policies establish procedures, as well as substantive criteria, for making triage decisions and appealing those decisions. Conspicuously, far fewer policies appear to have been drafted in consultation with communities whose lives, and deaths, will be determined by those policies. Several scholars have highlighted criminal justice issues, calling on states to grant immunity from prosecution to health professionals, administrators, and hospitals for triage decisions (Cohen et al. 2020; McGuire et al. 2020). Those authors have also raised similar concerns about civil justice, proposing analogous tort immunity and calling on hospitals to indemnify health professionals sued for their roles in delivering or withholding crisis care. However, far less attention has been paid to social justice concerns—even though they intersect with and have profound implications for the other types of justice outlined above.

To provide just one example, consider the relationship between civil justice and social justice. We might want to insulate health care workers from legal liability in a pandemic when they are doing their best with insufficient resources and are experiencing moral distress. But we should also think twice about depriving patients of potential remedies when they are unjustly harmed by crisis care. Any proposals for conferring immunity on health care workers and health care facilities should go hand-in-hand with consideration of proposals for a no-fault compensation scheme for those patients. The latter should, of course, involve a critical comparative assessment of schemes within and outside the United States that might serve as potential precedents (see, e.g., Bismarck and Paterson 2006; Looker and Kelly 2011). But, given that the burden of COVID-19 has fallen disproportionately on those experiencing profound social inequalities, legal immunity without a compensation scheme threatens to exacerbate structural injustice.

Bioethics scholars have made important contributions to theories of structural injustice, and have recognized the significance of structures beyond, as well as within, health care systems. (For a recent example, see Powers and Faden (2019), rightly emphazing the importance of power relations, as well as money; see also Ruger (2020), in this issue, characterizing COVID-19 as a “global health injustice.”) However, like most triage policies and guidelines, the recent ethical analysis by the Task Force of the Association of Bioethics Program Directors shies away from addressing concerns about social justice and structural injustice. McGuire et al. (2020), acknowledge that, in the wake of a pandemic, the health care system should not intensify inequalities, but they claim that the health care system “cannot remedy the structural inequalities of the social system in the U.S.” Dudzinski et al. (2020) similarly argue that triage policies “cannot correct for the disparities that predate the pandemic,” while also emphasizing the importance of efforts “focus[ed] on helping vulnerable populations before triage is needed.”

Although there are inherent limitations in what triage policies alone may achieve, more radical options exist: one set of guidelines from Australia raises the possibility of giving priority in the allocation of scarce resources to “those we know have suffered injustice in the past” (Dawson et al. 2020). And a recent working paper—notably drafted by economists, not bioethicists—proposes the use of a “reserve system” for ventilator allocation that has its roots in affirmative action (Pathak et al. 2020). That system could be applied affirmatively by reserving ventilators for patients from communities that have not only previously experienced injustice but, as has become increasingly evident with each passing day, continue to do so during this pandemic.

Triage proposals raise more fundamental questions that also require attention from the bioethics community: what are, and how should we determine, the teloi of triage in a pandemic? Three prominent scholars recently argued that “a primary aim of ethical triage [is] to promote social cohesion and healing after a crisis” (Solomon et al. 2020). If that is so, then it is insufficient for COVID-19 policies to simply avoid aggravating existing inequalities. Pandemic planning and response also call for much more than triage policies. We need a comprehensive public health infrastructure that minimizes the necessity for triage, and serves the quotidian as well as the emergent needs of individuals and populations (Marks 2008). Bioethicists can and should play a role making the case for such reforms, and drawing attention to pervasive structural injustice.

The approach I propose here clearly pushes the boundaries of bioethics. But COVID-19 reminds us that the real world constantly challenges and transcends the boundaries of academic disciplines. Every decision our institutions make (or fail to make) in planning for and responding to a pandemic is a decision about the kind of society we wish to build in the wake of that pandemic. We must recognize and confront this truth. If we do not, we imperil the integrity of—and public trust in—public health and bioethics (Marks 2019), and we provide ammunition for political cartoonists who will caricature what pandemic justice refused to see.

ACKNOWLEDGMENTS

The author is grateful to Michele Mekel and participants in Penn State’s Bioethics Colloquium for their feedback on an earlier draft. Although the author is a member of the Association of Bioethics Program Directors, he was not a member of its Task Force and played no role in drafting the target article, McGuire et al. (2020), to which this open peer commentary responds.