(This op-ed was first published in The New England Journal of Medicine on May 19, 2020.)

In times of emergency, many legal strictures can flex. For example, to enable hospitals to respond to Covid-19, the Department of Health and Human Services (HHS) recently waived a swath of federal regulatory requirements. But though officials’ emergency powers are extensive, the ability to discard antidiscrimination protections is not among them. A hallmark of our legal system is that our commitment to prohibiting invidious discrimination remains steadfast even in times of emergency.

Pressure is put on that commitment when the need arises to triage patients to receive scarce medical resources such as ventilators and intensive care unit beds. As states and hospitals plan for surges of Covid-19 cases, they have had to make difficult choices, some of which have prompted criticism.

(Continue reading the op-ed on The New England Journal of Medicine’s page here.)