Target – the Elderly: A Nondiscrimination Perspective on Daniel Callahan's Setting Limits

Callahan Daniel , Setting Limits: Medical Goals in an Aging Society (New York: Simon and Schuster, 1987), 6.

Commenting on the repeal of the catastrophic health insurance program signed into law on July 1, 1988, Senator Alan K. Simpson of Wyoming noted that “the whole U.S. has been swung around on their tails by the 5.6 percent who don't want to pay for these benefits. … We[the Congress]'re not confused; we're terrorized. … Yeah, it's a social experiment: it's called pay for what you get.” Rich S. , “Health Law Surtax Defeated; Senate Votes to Lower Catastrophic Benefits, But Rejects Repeal,” Washington Post, Oct. 7, 1989; A1. The program was repealed in its entirety when Congress adjourned on Nov. 22, 1989. See T. Kenworthy and D. Phillips, “Hill to Face Health, Deficit Issues Anew; In Rush to Adjourn, Bills of Varying Significance Were Passed,” Washington Post, Nov. 23, 1989, final ed., A4. See also, R. P. Hey, “Lawmakers Brace for Next Round on Health-Care Issue.” Christian Science Monitor, Dec. 19, 1989, U.S. section, 7.

Callahan , Setting Limits, 52, 16–20, 37.

County of Allegheny v. A.C.L.U., 492 U.S. 573, 109 S.Ct., 086,3111 (1989). See Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 3079 (1989) (Stevens, J., concurring in part and dissenting in part). Cf. Bowen v. Kendrick, 484 U.S. 942 (1987).

Callahan , Setting Limits, 13, 141.

Callahan , Setting Limits, 13, 52.

See Callahan , Setting Limits, 13, 39. Callahan recognizes this problem in others when he notes that the starting point of the “seeds of the later ageism of the twentieth century were being sown” by those who “emphasi[zed] … the virtues of youth rather than age, the new rather than the old, self-reliance and autonomy rather than community. … But while repudiating ageism, we have not rejected those values which stimulated it in the first place.”

See, e.g., Callahan , Setting Limits, 13, 43: “Their indispensable role as conservators is what generates what I believe ought to be the primary aspiration of the old, which is to serve the young and the future” (emphasis in the original).

Cf. Callahan , 47, quoting Edmund Burke's Reflections on the Revolution in France (London: Dent, 1910), 93–94: “Society is a partnership not only between those who are living, but those who are dead and those who are to be born.”

Callahan, Setting Limits. 101 and n. 36, quoting Ignatieff M. , The Needs of Strangers: An Essay on Privacy, Solidarity, and the Politics of Being Human (New York: Viking Press. 1984), 52–53.

Compare the approach adopted by a majority of the U.S. Supreme Court in Bowen v. American Hosp. Assn, 476 U.S. 610 (1986) with that of the U.S. Commission on Civil Rights in Medical Discrimination against Children with Disabilities (Sept. 1989).

Callahan, Setting Limits, 10 (preface), 13 (ch. 1, “Health Care for the Elderly: How Much Is Enough?”).

Included in this calculation is Callahan's view that medical care for the elderly takes place on the most technically advanced and costly frontier of medicine.

Included in this calculation is Callahan's view that medical care for the elderly takes place on the most technically advanced and costly frontier of medicine., 19.

Included in this calculation is Callahan's view that medical care for the elderly takes place on the most technically advanced and costly frontier of medicine., 183.

Included in this calculation is Callahan's view that medical care for the elderly takes place on the most technically advanced and costly frontier of medicine., 32–33.

Included in this calculation is Callahan's view that medical care for the elderly takes place on the most technically advanced and costly frontier of medicine., 32.

Included in this calculation is Callahan's view that medical care for the elderly takes place on the most technically advanced and costly frontier of medicine., 222, quoting Calabresi Guido , and Bobbitt Philip , Tragic Choices (New York: W. W. Norton, 1978), 26.

Callahan , Setting Limits, 221.

Callahan Daniel , What Kind of Life: The Limits of Medical Progress (New York: Simon and Schuster. 1990), 12.

Callahan Daniel , What Kind of Life: The Limits of Medical Progress (New York: Simon and Schuster. 1990), 12, 30.

Callahan Daniel , What Kind of Life: The Limits of Medical Progress (New York: Simon and Schuster. 1990), 12.

Callahan , Setting Limits, 220.

Callahan correctly points out that “our secular morality (though perhaps not our religious traditions) provides few resources for living lives of unchosen obligations, those which through mischance lay upon us overwhelming [sic] demands to give our life over to the succor and welfare of someone else.” Ibid., 96-97. What he ignores is that the “common coherent vision of the wellsprings of moral obligation toward the elderly in general and our elderly parents in particular” we “lack” must either be developed afresh or redeveloped from non-secular sources.

Strauder v. West Virginia, 100 U.S. 303, 307-8 (1880).

U.S. Const. Amend. XIV 1(1868).

See, e.g., Plyler v. Doe, 457 U.S. 202 (1982); San Antonio School Ind. Dist. v. Rodriguez, 411 U.S. 1 (1973).

See, e.g., Metro Broadcasting Co. v. E.C.C., — U.S. —, 110 S.Ct. 2997 (1990); Astroline Communications v. Shurberg Broadcasting, — U.S. —, 110 S.Ct. 1316 (1990); Martin v. Wilks, 490 US. 755 (1989) (5-4 decision); Lorance v. A.T.&T. Technologies. Inc., 490 U.S. 900 (1989) (6-3 decision): Patterson v. McLeon Credit Union, 491 U.S. 164 (1989) (6-3 on the disputed issues): Wards Cove Packing Co., Inc. v. Atonio. 490 U.S. 642 (1989) (5-4 decision): City of Richmond v. J. A. Croson Co., Inc., 488 U.S. 469 (1989) (5-4 decision). Compare S. 2104 and H.R. 4000, 101st Cong. 2d Sess. (The Civil Rights Act of 1990) and 136 Cong. Rec. S.991-01 (Feb. 7. 1990) (remarks of Senator Kennedy) with 136 Cong. Rec. S.457-07 (Jan. 29, 1990) (remarks of Senator Hatch). See also H.R. 3035, 3455. 101st Cong. 1st Sess. (1989) (proposed amendments to the civil rights laws in light of the foregoing cases).

This explains in part the U.S. Supreme Court's unwillingness to require the government to provide the means by which such rights can be enjoyed. See, e.g., Harris v. McRae, 448 U.S. 297 (1980).

Some of the most intractable problems in American constitutional law have been caused, in part, by the U.S. Supreme Court's unwillingness to read the equal protection clause as a standard of conduct for those not claiming its protection. See, e.g., Brown v. Board of Education (II), 349 U.S. 294 (1955) (remedial phase: “all deliberate speed”); Korematsu v. United States. 323 U.S. 214 (1944) (Japanese interment); Plessy v. Ferguson, 163 U.S. 537 (1896) (“separate but equal”).

A similar duty has been imposed by statute upon certain individuals and institutions for the benefit of persons who are deemed to be particularly at risk. See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 200 et. seq.: Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-633a (1989).

See, e.g., Texas Monthly v. Bullock. 489 U.S. 1(1989); Lyng v. Northwest Indian Cemetery Protective Assn, 481 U.S. 1036 (1987); Regan v. Taxation with Representation of Washington, 461 U.S. 540, 544, 549 (1983); Abood v. Detroit Board of Education. 431 U.S. 209 (1977).

See, e.g., City of Richmond v. J. A. Croson Co., Inc., 109 S.Ct. 706 (1989) (nonremedial affirmative action); San Antonio School Ind. Dist. v. Rodriguez, 411 U.S. 1 (1973) (equalization of public school resource allocations).

See Plyler v. Doe, 457 U.S. 202 (1982).

See City of Cleburne. Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (invalidating a statute on the basis of “an irrational prejudice against the mentally retarded”).

This also accounts for the deep divisions in society over quota-based affirmative action plans in civil rights. The dispute is over the nature of government obligations to those whom the law considers deserving of special protection against discrimination (i.e., minorities), and those who are to be treated under generally applicable standards governing social conduct. Detailed examination of this topic, however, is beyond the scope of this paper.

E.g., Callahan , Selling Limits, 115: “What is the extent of the government's obligation. Or, to put the matter more precisely, what is the extent of our common obligation as a society using the instruments of government to provide health care for the elderly?”

There is, in fact, a third and critically important question: “whose duty is it?” Although Callahan discusses it extensively, a critique of his answer is beyond the scope of this paper.

See, e.g., Destro R. , foreword, “ ‘The Religious Foundations of Civil Rights Law’ and Religion in an Interdisciplinary Framework” in a symposium entitled The Religious Foundations of Civil Rights Law, Journal of Law and Religion 5 (1987): 39; R. Destro, “Equality, Social Welfare and Equal Protection,” Harvard Journal of Law and Public Policy 9 (1986): 53.

See, e.g., Roe v. Wade, 410 U.S. 113 (1973). See also Destro R. , “Abortion and the Constitution: The Need for a Life-Protective Amendment,” California Law Review 63 (1975): 1250, 1282-92 (discussing the history of the Fourteenth Amendment's concept of “person”); J. A. Parness, “Social Commentary: Values and Legal Personhood,” West Virginia Law Review 83 (1982);487 (arguing that the interests of others would be adversely affected by conferring legal personhood on the unborn). See generally R. B. Stewart, “Federalism: Allocating Responsibility Between the Federal and State Courts,” Georgia Law Review 19 (1985): 917, 932, and n. 45 (differentiating between status as a “citizen” and as a “person” with respect to basic rights); D. R. Ratner, “Corporations and the Constitution,” University of San Francisco Law Review 15 (1981); 11; Note, “Constitutional Rights of the Corporate Person,” Yale Law Journal 81 (1982); 1641.

Callahan , Setting Limits, 179.

Callahan , Setting Limits, 179–80.

98 N.J. 321, 486 A.2d. 1209 (1985).

108 N.J. 394, 529 A.2d 434 (1987).

110 S.Ct. 2841 (1990).

Callahan , Setting Limits, 182.

The implications of Callahan's views for the status of unborn children are beyond the scope of this paper.

The natural rights argument is developed at greater length in two articles: Destro R. , “Guaranteeing a Minimum Quality of Life through Law: The Emerging Right to a Good Life,” This World 25 (Spring 1989); 73, and R. Destro, “Quality of Life Ethics and Constitutional Jurisprudence: The Demise of Natural Rights and Equal Protection for the Disabled and Incompetent,” Journal of Contemporary Health Law and Policy 2 (1986); 71.

Callahan , Setting Limits, 484.

Callahan , Setting Limits, 484.

Callahan , Setting Limits, 484., 220. There are, however, exceptions to every rule. In certain circumstances, such behavior is, in fact, gradually becoming more tolerable, but only because the reality of the acts or omissions is masked behind arguments for personal autonomy. See, e.g., Cruzan v. Harmon, 760 S.W.2d 408 (1988) (en banc) cert. granted 109 S.Ct. 3240 (1989); Bowen v. American Hosp. Assn. 476 U.S. 610 (1986); State by Bowers v. McAffee, 259 Ga. 579;385 S.E.2d 651 (1989). This is evidence not of a lack of moral and cultural resources, but of a shift in the tenor of the debate. Such evasion is not a welcome development for those who have devoted years to altering societal attitudes toward persons with disabilities.

Callahan , Setting Limits, 183.

Callahan and others have argued that an unborn child might become a subject of legal protection as its brain develops, that is, as its potential increases. See Callahan Daniel , Abortion: Law, Choice and Morality (New York: Doubleday; 1970), 378–409, and B. Brody, Abortion and the Sanctity of Human Life: A Philosophical View (Cambridge, Mass.: MIT Press, 1975), 100-115. For a critical view of Callahan's moral argument see, e.g., P. Ramsey, “Abortion: A Review Article,” The Thomist 37 (Jan. 1973): 174-226.

Neuhaus R. , “Nihilism without the Abyss: Law, Rights, and Transcendent Good,” in a symposium entitled The Religious Foundations of Civil Rights Law. Journal of Law and Religion 5 (1987); 53, 57 [referring to Roe v. Wade, 410 U.S. 113(1973)].

Callahan , Setting Limits, 66.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (1989).

P.I., 101-336, 104 Stat. 327, codified at 42 U.S.C. §§ 12101-12213 (1990). The act was signed by President Bush on July 27, 1990.

Americans with Disabilities Act, Section 301 (7)(F), 42 U.S.C. § 12181 (7)(F) (1990).

Beginning with the Older Americans Act in 1965, 42 U.S.C. § 3001 (1989), and continuing with the enactment of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-633a (1989), the U.S. Congress has expressed a clear policy that the elderly should be accorded both the attention required by their special needs and equality of treatment in the work place. A number of recent cases expand the coverage of the ADEA. See, e.g., Gregory v. Aschcroft, 898 F.2d 598 (8th Cir. 1990) (application of ADEA to mandatory retirement of state judges); E.K.O.C. v. State of New York. 729 F. Supp. 266 (S.D. N.Y. 1990) (same); E.E.O.C. v. State of Illinois, 721 F. Supp. 156(N.D. Ill, 1989) (same); E.E.O.C. v. State of Vermont, 717 F. Supp. 26 (D. Vt. 1989) (same); Myrick v. Devils Lake Sioux Mfg. Corp., 718 F. Supp. 753 (D.N.D. 1989) (application of ADEA to Indian tribal entities); E.E.O.C. v. Cherokee Nation, 1989 WI 83776 (E.D. Okl.), 48 Fair Empl. Prac., Case. (BNA) 1072 (E.D. Okl., 1988) (same).

See: Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 718-20 (1985) (holding that Section 504 would clearly cover cases of intentional discrimination against the handicapped, but refusing to hold either that the regulations promulgated under the statute are limited to such cases or that the statute necessarily comprehends the use of “disparate impact” analysis), Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) (coverage of funded programs); Smith v. Robinson, 468 U.S. 992 (1984).

Alexander v. Choate, 469 U.S. 287, 296, 105 S.Ct. 712, 718, and nn. 12-16. (1985). The sources cited by the court make it clear that it was drawing a bright line between “thoughtlessness and indifference” that, though neglecting the needs of the disabled, might be considered “benign” in that they are not intentional, and that which is truly “invidious.”

U.S. Commission on Civil Rights, Medical Discrimination against Children with Disabilities, supra note 11, ch. 1-3, 9-10.

Compare, e.g., Bowen v. American Hasp. Ass'n., 476 U.S. 610 (1986); In re Estate of Longeway v. Community Convalescent Center, 133 Ill. 2d 33, 549 N.E.2d 292 (1989); and State by Bowers v. McAffee, 259 Ga. 579; 385 S.E.2d 651 (1989), In re Conroy, 98 N.J. 321, 486 A.2d. 1209 (1985) with In re O'Connor, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988), In the Matter of Doris Wickel v. Spellman, No. 2359E, 1990 N.Y. App. Div. LEXIS 2746, (Sup. Ct. App. Div., 2d Dept., filed March 12, 1990); Cruzan v. Harmon, 760 S.W.2d 408 (1988) (en banc) cert. granted 109 S.Ct. 3240 (1989).

Callahan , Setting Limits, 168.

See, generally, A.B.A. Model Code of Professional Responsibility (Chicago: American Bar Association, 1989).

See Callahan, Setting Limits, ch. 6, “Allocating Resources to the Elderly,” and ch. 7, “Care of the Elderly Dying.”

See Callahan, Setting Limits, ch. 6, “Allocating Resources to the Elderly,” and ch. 7, “Care of the Elderly Dying.”, 168.

See note supra, quoting See Callahan, Setting Limits, ch. 6, “Allocating Resources to the Elderly,” and ch. 7, “Care of the Elderly Dying.”, 222.

The state of Oregon has recently adopted a plan for explicit rationing of health care. See King W. , “Cancer Treatment: Who Gets Left Out?” Seattle Times, Jan. 31, 1990, B1: R.S. Boyd, “Rationing Health Care,” ibid., Jan, 8, 1990, F1. See also Editorial, “Rational Maybe, Moral Never: Health Care Shortages Vividly Illustrate Heartbreaking Dilemma,” Los Angeles Times. May 5, 1990, B6, col. 3 (discussing failed attempt by Alameda County/Oakland, Calif., to set up a health-care rationing program).

In equal protection parlance, this is known as the “means-end fit.” The U.S. Supreme Court has resisted making what is, in effect, a moral rule under the equal protection clause that age and disability are inherently illegitimate (i.e., constitutionally suspect) classifications because there are times when they are demonstrably legitimate criteria for private and public decision-making. See, e.g., City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (invalidating a statute on the basis of “an irrational prejudice against the mentally retarded”).

Callahan , Setting Limits, 182.

Callahan , Setting Limits, 182

Callahan , Setting Limits, 176.

From the letter to the Danbury Baptist Association, Works of Thomas Jefferson, ed. H. Washington (1861), 8: 113.

Callahan , Setting Limits, 17.

Bowen v. American Hasp. Ass'n., 476 U.S. 610 (1986); Roe v. Wade, 410 U.S. 113 (1973). See Cruzan v. Director. Missouri Department of Health,— U.S. —. 110 S.Ct. 2841 (1940), aff’ d; Cruzan v. Harmon, 760 S.W.2d 408(1988) (en banc).

The Pogo cartoon series was drawn and written by the late Wall Kelly.