Glenn Cohen

With life-and-death issues of health and medicine foremost in our minds, ethics can get short shrift. To bring them to the public eye, the Edmond J. Safra Center for Ethics has issued the COVID-19 Rapid Response Impact Initiative, a series of white papers from some 40 thinkers on issues of justice, values, and civil liberties designed to inform policymakers during the crisis... “You have to make sure that with any tactics that you pursue to secure public health, you also look at the impact on our liberties,” said Allen, the James Bryant Conant University Professor and lead author on that first white paper. That paper — co-authored with Assistant Professor of Philosophy Lucas Stanczyk; James A. Attwood and Leslie Williams Professor of Law I. Glenn Cohen; Executive Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics Carmel Shachar; Columbia University Professor of Economics Rajiv Sethi; Microsoft economist Glen Weyl; and Georgetown Law Professor Rosa Brooks — says: “The goal is not to defeat the adversary at any cost but to preserve one’s society.”

With COVID-19 cases yet to peak locally, health care workers on the front lines of the growing outbreak face the possibility of having to make excruciating decisions about who gets care and who doesn’t. And in Missouri at least, doctors, nurses and others working under these crisis conditions currently lack any legal protections for such life-and-death decisions, worrying health experts and bioethicists. "When [health care workers] are making these decisions ... we do not want them thinking about medical malpractice or criminal liability. We want them to know ‘we have your back,’” Harvard Law Professor I. Glenn Cohen told KCUR in an email...“Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support,” a recent opinion piece in the Journal of the American Medical Association declared. The piece, by Harvard's Cohen, another Harvard law professor and a doctor at the University of Pittsburgh, says that even though the risks of legal liability in such crisis circumstances are low, “even a small chance of a serious lawsuit could push physicians toward a less ethical and less efficacious first-come, first-serve allocation system for ventilators, leading to a major loss of lives.” Cohen told KCUR that while the risk of getting sued is small, it’s “non-trivial.” “We are asking people to act heroically, to engage in some of the most difficult decisions and actions any physician will undertake – withdrawing a ventilator from someone who will benefit against their wishes,’” Cohen said in an email.

During the Great Plague of London in 1665, houses where the infection appeared were painted with a red cross and sealed, condemning the occupants to death. Now the idea of visibly identifying the infected is being turned on its head as governments around the world look at how to reopen economies shattered by the coronavirus crisis. With hundreds of millions forced to stay home to stop the spread of the virus, politicians and public-health experts are searching for safe mechanisms to allow people to return to work without sparking a second wave of infections. Officials and scientists in Italy, Germany, and other countries are considering giving certificates to people who’ve recovered from Covid-19, the illness caused by the coronavirus...Wearing a bracelet or waving a piece of paper to show your immune status might sound like the plot of a dystopian novel, and scientists and public-policy experts are warning the prospect of “immunity passports” could make the current crisis worse. For one, they worry it could create a two-tiered workforce and perverse incentives for people to try to contract the virus, particularly millennials who might feel their chances of surviving it are high. “Like the ‘chickenpox parties’ of old, some workers will want to get infected,” says I. Glenn Cohen, a bioethics expert at Harvard Law School, referring to when parents deliberately exposed children to others with chickenpox at a young age, when symptoms tend to be milder. “That sounds crazy, but if having the antibodies becomes the cost of entering the job market and thus feeding your family, there may be workers who feel pressured into it.”

Even if there’s a baseball season this summer, Red Sox fans won’t see left-hander Chris Sale pitch. He underwent Tommy John surgery on March 30 and talked about the rehab process in a teleconference on Tuesday. “It’s going to be nine to 14 months of just getting after it and being able to get my body back in shape,” Sale said. “And I’m gonna have a better elbow than I did before.” But Sale’s elbow ligament reconstruction — and that of two other Major League Baseball pitchers — drew attention to a different timeline. They all happened after the American College of Surgeons recommended that elective procedures be minimized, postponed or canceled because of the coronavirus. And they raised new ethical issues for the sports world...But for bioethicists, there’s a dangerous ripple effect when high-profile, non-essential surgeries take place during a pandemic. “We have a message that we're all in it together, sink or swim together,” said I. Glenn Cohen, a Harvard Law School professor who’s an expert in health law and bioethics. “And when we see people who are not sinking or swimming together, but swimming to the top, it's very disheartening and really erodes some of that solidarity.” Cohen also noted that it highlights inequities in the American health care system. Professional athletes can draw even more attention to those inequities. That happened when NBA players gained quick and easy access to coronavirus tests when most people had to wait.

Professors Robert Tsai and Glenn Cohen discuss the concepts of federalism and states’ rights in the context of the ongoing COVID-19 crisis.

When a Boys and Girls Club employee in Bremen tested positive for the coronavirus last month, the local school superintendent quickly decided to make a public announcement about the case...As the number of COVID-19 infections climbs throughout the Midwest and the rest of the nation, state and county health officials are typically releasing broad information and statistics on infections, despite a hunger from residents for more details on the spread of the virus in their communities, or even their neighborhoods. In Illinois, Indiana, Kentucky, Michigan and Ohio, health officials are releasing little more than limited data on gender, age ranges and county of residence. Health officials and some experts argue that the conservative approach is justified by medical privacy rights...But while HIPAA allows doctors to share some data with public health authorities, it offers little guidance on what types of information those health officials can release to the public, even during epidemics. That leaves local health departments to decide how much data about COVID-19 cases they ought to share with the public. I. Glenn Cohen, a Harvard Law School professor who focuses on bioethics, said public health officials must make judgment calls about the details they can provide without identifying patients. “There’s a lot of leeway here, but what they ought to be thinking about is, ‘How can I be transparent and open with the population and share the most information we can without risking the identification of individual patients,’” Cohen said.

An article by I. Glenn Cohen, Andrew M. Crespo, and Douglas B. White: Our health care system is on the cusp of a crisis not seen before. A ventilator shortage is coming, if it’s not already here. Hospitals, physicians and nurses are likely to face a terrible choice: Should they withdraw or withhold ventilators from some patients so that others with better odds of survival might benefit from the machines? Doctors are used to discontinuing ventilator treatment if it doesn’t achieve a patient’s goals or is inconsistent with a patient’s wishes. But Covid-19 presents an altogether different issue: Denying some patients short-term ventilation, against their wishes, will probably cause them to die when they might have gone on to live long and healthy lives with the treatment. But it will also make limited numbers of ventilators available to other patients who are more likely to survive. Facing this dilemma, doctors and medical ethicists have designed model triage protocols that ration and reallocate scarce ventilators among patients, with a goal of saving the most lives. But some doctors, nurses and other health care professionals are already wondering whether following those protocols will put them at risk of being sued or even prosecuted.

As the toll of the coronavirus pandemic rises, Americans confront with increasing distress the idea of rationing health care. Choosing to deny care to people in desperate need is anathema; it feels unAmerican, even. But in fact it happens all the time: when Congress allocates money for Medicare and Medicaid; when insurance companies reject claims; when the Trump administration decides to shut down the Federal marketplace for the Affordable Care Act. Rationing is also what happens when governments whittle down their budgets for preparing for deadly pandemics, as they did over the last decade...A wild card is how a litigious society will respond when patients are denied care. In the absence of clear protocols, doctors and hospitals run the risk of legal challenges that could gum up the works. "We think the risk to physicians is low, but not zero, and not trivial," says Glenn Cohen, a law professor and bioethics expert at Harvard Law School. The act of taking a patient off a ventilator is, legally speaking, fraught. Criminal law generally doesn't hold doctors responsible for not providing care if they don't have the resources, but taking a patient off a ventilator without their consent is a different matter. "It looks on paper like homicide," he says. "It doesn't matter if the patient would have died anyway. Case law says that shortening a life even by a few hours could lead to charges of manslaughter or murder."

Doctors and hospitals overwhelmed in the pandemic will have to make their excruciating life-or-death decisions meticulously or they risk being second-guessed by a jury when the onslaught is over. Lawyers who defend health care providers are already giving advice on how their clients can avoid liability if they’re forced to choose between patients. How they prepare for this battlefield triage now -- and how they practice it in the chaos of peak infections -- will determine whether negligence cases against them are dismissed or lead to trials or settlements over the death of a parent or spouse...There is an established standard of care in the industry, however, and providers could be accused of breaching their duty to patients by violating it and of negligence for failing to have enough ventilators on hand, for example. It’s a tough case to make in a pandemic. “I would expect hospitals to argue that their obligations are to make sure they have adequate equipment in ordinary times, not in pandemic times, and that seems quite persuasive to me,” said I. Glenn Cohen, a bioethics expert at Harvard Law School...In the wake of the pandemic, providers may be accused of failing to foresee a crisis that the Centers for Disease Control and Prevention and others have warned was inevitable, said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy at Harvard Law School. That’s especially so after the recent drumbeat of outbreaks from SARS to swine flu to Ebola.

Hospitals are threatening to fire health-care workers who publicize their working conditions during the coronavirus pandemic -- and have in some cases followed through. Ming Lin, an emergency room physician in Washington state, said he was told Friday he was out of a job because he’d given an interview to a newspaper about a Facebook post detailing what he believed to be inadequate protective equipment and testing. In Chicago, a nurse was fired after emailing colleagues that she wanted to wear a more protective mask while on duty. In New York, the NYU Langone Health system has warned employees they could be terminated if they talk to the media without authorization... “It is good and appropriate for health-care workers to be able to express their own fears and concerns, especially when expressing that might get them better protection,” said Glenn Cohen, faculty director of Harvard Law School’s bioethics center. It’s likely hospitals are trying to limit reputational damage because “when health-care workers say they are not being protected, the public gets very upset at the hospital system.”

When health officials in southwest Missouri announced earlier this month that another resident had contracted the coronavirus, they released details about where the person had been in recent days. The patient had shopped at a Walmart Neighborhood Market in Springfield on the morning of March 17. The day before, the person had lunch at a local Mexican restaurant and then went to another Walmart. On March 15, the patient had gone to a comedy club after dinner. Anyone who might have been at those same places — with specific locations identified — around those same times knew to more closely monitor their own health...A government should release as much “aggregate information” as possible as long as it doesn’t identify a patient, stigmatize vulnerable groups and induce additional panic, said I. Glenn Cohen, a bioethics expert at Harvard Law School, in an email to The Star. “Government always owes us transparency in general, but especially in a pandemic crisis when it is asking Americans to completely upend their daily lives and make sacrifices, sharing accurate information is necessary to maintain trust and make sure people continue to be willing to make those sacrifices,” he said. “So the default should be sharing information unless there is a very good reason not to."

When the first case of the coronavirus in Silicon Valley was discovered in late January, health officials were faced with a barrage of questions: What city did the patient live in? Whom had he come in contact with? Which health clinic had he visited before he knew he was infected? Dr. Sara Cody, the chief health officer for Santa Clara County, which has a population of two million across 15 cities, declined to give details...As the coronavirus spreads across the United States the limited disclosure of data by officials would seem to be a footnote to the suffering and economic disruptions that the disease is causing...I. Glenn Cohen, an expert in bioethics at Harvard Law School, says the guiding principle during this crisis should be sharing more rather than less. “Public health depends a lot on public trust,” he said. “If the public feels as though they are being misled or misinformed their willingness to make sacrifices — in this case social distancing — is reduced...That’s a strong argument for sharing as much information as you can,” he said.

President Trump's aggressive timeline for reopening the economy could set the White House on a collision course with governors and mayors who seem intent on maintaining social distancing policies beyond the president’s Easter target date if necessary. Trump's proposal on Tuesday to ease restrictions by mid-April came as a number of state and local governments have moved in the opposite direction, heeding the advice of public health officials to implement stay-at-home orders and close non-essential businesses to stem the rising number of coronavirus infections...While the president has clear authority to rescind or alter federal health guidelines, legal experts say state and local officials are not required to follow them if their jurisdiction's health situation warrants stricter measures. Analysts believe that if federal and local governments begin to move in dramatically different directions in response to the outbreak, it could trigger a political fight, or perhaps a legal standoff, with implications for the fall elections. A majority of Americans, 58 percent are optimistic that the economy will recover quickly after the coronavirus abates. But if economic reality fails to match the rosier predictions, Trump could blame the weak recovery on state and local governments’ more stringent public health restrictions. “I think his biggest leverage is going to be political, to say ‘these people are ruining your local economy for no reason and I tried to stop them,’ ” said Harvard Law professor Glenn Cohen.

President Donald Trump has said he wants to curtail the strict social distancing guidelines his administration put in place to slow the spread of the coronavirus pandemic because of the potential impact on the U.S. economy. But Trump is not the only executive to take action in the hope of "flattening the curve," the term medical experts use to describe a slow and steady rise in the number of cases of COVID-19 rather than a sharp spike that could overwhelm the nation's healthcare system. As the president weighs loosening the federal guidance, he does so against a backdrop of governors who have implemented their own statewide – and independent – restrictions, from curfews to lockdowns to sweeping school and business closures...The country's public health law is a patchwork of responsibilities divided up between the federal and state governments, but typically states are in control of "police powers," according to Professor Glenn Cohen, faculty director for the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School. Some states even delegate those powers to individual localities. But if Trump decides to lift the federal guidance, states like California or New York that have issued stay-at-home orders "may decide to follow suit or not, but typically have significant discretion as to what to do," he said.

Six counties in the San Francisco metro area made headlines when they announced Monday they were ordering all their residents to “shelter in place” in response to the novel coronavirus. The sweeping proclamation is the most striking example to date of state and local governments in the United States taking sweeping action to halt the spread of the novel coronavirus and to limit the impact of the disease it causes, Covid-19. While the Bay Area is the first region in the U.S. to issue such an order, a number of states have mandated school and business closures and vastly curtailed nearly all major events... “The good news [is] there are a number of cases on public health needs, the constitution, and the so-called state ‘police power.’ The bad news is they are quite old, mostly turn of the 20th century, and a huge amount of constitutional law has changed since then. As a result there is a lot that is vague and uncertain in this area,” said Glenn Cohen, the faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School.

Coronavirus lockdowns abroad are raising questions about the upper limits of government power as health officials in the U.S. and around the world scramble to slow the spread of infection. The U.S. public health toolbox contains a host of potential measures, ranging from gentle prodding over hand washing, to more severe actions like prohibitions on large gatherings and even sharp restrictions on the movement of infected individuals. ... “In times of emergency — including public health emergency — the temptation to violate individual rights is at its greatest, and the courts have often been called on to defend the rights of the vulnerable,” said Harvard Law professor Glenn Cohen.

Late last month, the Arizona Supreme Court decided a hotly contested case involving frozen embryos.  It all started in 2014, when Ruby Torres was diagnosed with cancer and became worried about her future fertility. She decided to use her eggs and a donor’s sperm to create embryos that she could then freeze for later use...As this case worked its way through the court system, the Arizona legislature responded by enacting a new law directing judges to grant viable embryos to the “spouse” who will allow them to be born, regardless of any contract providing otherwise. It also sets out what will happen if both spouses want to allow the embryos to develop. But that law did not apply retroactively to control the Torres case. The Arizona law is the first of its kind in the country, and it only applies to married couples...Moreover, as Harvard law professor Glenn Cohen and Brown Med School physician Eli Adashi pointed out, “embryo disputes have become a battlefront for larger conflagrations over the moral status of embryos.” That’s because “underlying most of the conflicts over disposition of embryos is whether one person’s right to procreate should prevail over another person’s right not to procreate,” observes GW Law Professor Sonia Suter. She notes that while courts tend to rule in favor of the party choosing not to procreate, the Arizona statute defied this trend by privileging the right to procreate.