Two senior women jogging in a park

What Should We Ask About Age-Based Criteria in Healthcare?

In the American health care system, age shapes patients’ options. Most people over age 65 are eligible for Medicare, which is inaccessible to almost everyone under 65.

But many providers limit older patients’ access to certain interventions—like in-vitro fertilization or organ transplants. Some clinical research studies also exclude older patients, while others stratify populations by age. And insurers in the Affordable Care Act’s individual marketplaces can legally charge older patients up to three times as much as younger patients, which has motivated calls to let people below 65 buy into the Medicare program (although these proposals use age 55 as an eligibility criterion). Many of these uses of age have generated debate in the past, and are likely to continue to generate debate in the future.

We can ask at least three questions about these uses of age:

  1. Are they legal under current law?
  2. Should they be legal?
  3. Are they ethical?

In a recent article in the Boston College Law Review, I try to address these questions.

The use of age in the health care system is typically legal under current law. The Age Discrimination Act of 1975 (and the prohibitions on age discrimination in the Affordable Care Act) permit the use of age-based criteria that are explicitly adopted in law. It also permits the use of age-based criteria that are necessary for the normal operation of a program: for instance, an organ transplant center is allowed “to consider age as one factor in assessing the allocation of transplants,” though not to use age as the only factor. The Equal Protection Clause of the U.S. Constitution has been interpreted to permit legislation to use age-based criteria so long as the criteria have a rational basis: “the Equal Protection Clause does not require States to match age distinctions and the legitimate interests they serve with razor-like precision.” The same is true for most state constitutions.

The theoretical underpinnings of anti-discrimination law, meanwhile, support keeping the use of age legal. While age-based criteria should not reflect age-based animus, age is different from most other identity categories because individuals live through many different ages. Merely classifying individuals based on age is not obviously wrong, and avoiding age-based subordination will often justify the use of age-based criteria to rectify unfairness. In many cases, age-based criteria (such as criteria for organ transplant access) can prevent unfairness to younger people who are at risk of a particularly bad outcome—dying early in life.

Age-based criteria can be not only legal but also ethically acceptable and even desirable.

The easiest case for these criteria is when they improve outcomes for the individuals subject to the criteria (as guidelines for disease screening do). But these criteria can also be acceptable even when they impose disadvantages on people who are excluded—as transplantation exclusions might—so long as these disadvantages can be justified. To determine when age-based criteria are justified even though they impose disadvantages, I propose a lifetime justice approach that considers three values: providing greater medical benefits, assisting the least advantaged, and avoiding the abandonment of patients. I then argue that the use of age-based criteria doesn’t disrespect the moral equality of patients whose access to treatments is limited, and that age is an appropriate value for health systems to consider.

When applied to the examples discussed at the beginning, the lifetime justice approach regards it as appropriate to consider age when allocating treatments or making inclusion decisions in clinical trials.

Charging older people more for private insurance, in contrast, is more difficult to justify because it greatly disadvantages people in their 50s and 60s, in comparison to people over 65 who are eligible for Medicare, and inequality in life expectancy means that the least advantaged people in society are less likely to enjoy many years of Medicare benefits.


Govind Persad

Professor Persad’s research interests center on the legal and ethical dimensions of health insurance, health care financing (both domestic and international), and markets in health care services, as well as professional ethics and the regulation of medical research. He has been selected as a 2018-21 Greenwall Faculty Scholar in Bioethics for an ongoing research project on health insurance and protection against financial risk. His articles have appeared or will appear in the George Washington Law Review, Emory Law Journal, Boston College Law Review, and Yale Journal of Health Policy, Law, and Ethics, among others. He was selected as a Health Law Scholar in 2017 and as a BioIP Scholar in 2018 by the American Society of Law, Medicine and Ethics.

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