Rethinking Generational Justice in Light of the Coronavirus Catastrophe

Posted in: Health Law

The phrase “generational justice” typically refers to obligations of the old and living to, respectively, the young and future generations. Unsustainable exploitation of the Earth’s resources is the leading and most powerful example of generational injustice. Climate change, as well as pollution of the air and water, leave our children, grandchildren, and their descendants a less habitable planet than the one we enjoyed. That strikes many people—including me—as fundamentally unfair.

Generational justice as a core element of the environmental movement ought to have wide acceptance. Egalitarians, of course, would deem the question of whether one was born in 1950 or 2020 irrelevant to one’s entitlements. But even libertarians should support environmental conservation on generational justice grounds. After all, no less sainted a figure in libertarian circles than philosopher John Locke grounded the right to private property on the principle that the Earth belongs to all in common and that mixing one’s labor with what one finds in nature entitles one to the product, but only subject to a crucial caveat: one must leave behind “enough, and as good . . . in common for others.” Those others necessarily include people who come later.

To be sure, not all claims of generational justice are as strong as the environmental argument. For example, one often hears the assertion that entitlement programs such as Social Security and Medicare unjustly transfer wealth from the young to the old. The claim appears to have special force with respect to Social Security, which has long been described as a form of retirement savings but in fact compensates many recipients with more than the time-adjusted value of their contributions. Yet as University of Florida law professor Neil Buchanan has explained, that accounting is deeply flawed. Among many other things, the productivity gains of the past enable current and future workers to produce more with less, so that even after deducting their share of taxes to fund programs like Social Security, people who come later do better financially.

In one of his Verdict columns exploring why generational justice is the wrong lens through which to view funding for and payments by Social Security, Professor Buchanan concludes that the real distributional problems in our society exist in the here and now—so that “non-wealthy Americans of all generations should work together, not at cross-purposes, to make sure that Social Security is fully funded in the future.” In the balance of this column, I build on Professor Buchanan’s insight in light of the unfolding catastrophe of COVID-19.

How the Novel Coronavirus Disparately Impacts Old and Young

COVID-19, the disease caused by the novel coronavirus, affects the young and the old very differently. Based on data from China (where the disease originated and therefore where the best information can be found), the mortality rate for people under the age of forty is about one in five hundred. That jumps to about one in seventy-five for people in their fifties and to worse than one in six for people in their eighties or older. Exactly why the disease affects people so differently based on age is not known. Underlying health conditions worsen the odds of recovery, and older people tend to have more underlying health conditions, but it is also possible that age itself affects survival odds.

Meanwhile, survival rates vary substantially based on treatment. In Wuhan during the early weeks of the disease’s spread, hospitals quickly became overwhelmed, as health workers were exhausted or sickened themselves, and beds and medical supplies ran out. Tragically, the same pattern appeared in Lombardy, Italy, and is likely to recur wherever the virus spreads quickly, including in the United States.

Accordingly, to maximize survival, individuals, governments, schools, firms, and other institutions must take measures that dramatically reduce the opportunity for the virus to spread. Ideally, isolation and social distancing would be so effective that the virus would eventually cease circulating entirely. Even if that is not possible, however, merely slowing the spread will save lives. If a thousand patients in need of intensive care come to a hospital over the course of three months, they will likely receive it. If they all show up in a week, overburdened health care workers will have to triage (as they have done in Wuhan and Lombardy), with the result that patients who were rescuable end up dying. In addition, slowing the disease’s spread over the course of a year or longer could mean that a vaccine is available before some substantial number of vulnerable people become infected.

Generational Justice?

Yet the measures that slow the disease’s spread disproportionately burden those who are least at risk. Closing schools, colleges, and universities disrupts the lives and interrupts the educations of young people who may have relatively little to fear from COVID-19. Working at home while also caring for housebound young children or losing jobs because of the economic impact of the pandemic imposes substantial burdens on people in their twenties, thirties, and forties, who are also currently believed to be at relatively low risk. With burdens disproportionately imposed on the young for the benefit mostly of the old, might the public-health response to COVID-19 be an instance of generational injustice? The University of Dayton students who rioted this week in response to the announced closing of the campus apparently thought so.

Yet framing the COVID-19 question as a matter of generational justice seems wrong, if not downright offensive. It is one thing to say that the living should not consume more than their fair share of resources and thereby deprive future generations of the opportunity to enjoy the fruits of the natural world. It is quite another to say that older people should be left to die so that younger people can avoid hardships, even substantial hardships.

Part of what makes the generational framework compelling in the environmental case is the imbalance. Present consumption patterns use a great deal of the Earth’s resources for modest benefit, while imposing very substantial burdens on future generations. With respect to COVID-19, the calculus is reversed: an effective public-health strategy asks the young and middle-aged to make a substantial sacrifice in exchange for a very large benefit to the old.

That very fact confirms that justice is not simply a matter of everyone getting an equal share; it’s about everyone getting their fair share. If one person needs insulin to control her diabetes and a second needs clotting factor to address his hemophilia, a fair distribution gives all of the insulin to the diabetic and all of the clotting factor to the hemophiliac; it does not give each person half of the supply of each medication.

More broadly, thinking about fairness in terms of each individual’s proportionate share of the resources held in common distorts what ought to be a collective enterprise into the sum of individual ones. That seems especially inappropriate during a public health crisis, when the wellbeing of individuals depends on the group. The U.S. response to the COVID-19 outbreak has been severely hampered by the failure to ramp up testing capacity, but even if that problem is eventually solved, various features of our particularly individualistic version of capitalism will put the U.S. at a disadvantage relative to other developed countries.

The most daunting challenge arises out of our inadequate social safety net. Because we lack universal health insurance, potentially millions of Americans who should be tested will not be because they cannot afford to pay for treatment, even if testing is free. And because we do not require paid sick leave, potentially millions of Americans who should be staying home until they are recovered will attempt to work through their illness, while spreading the virus.

There is more. As I discussed on my blog earlier this week, one would hope that young people who face a relatively low mortality risk from COVID-19 would take it seriously to spare their beloved grandparents, but it is not realistic to expect anyone to take the same steps to protect strangers as they would for loved ones. That said, perhaps the best tool for an effective national response that flattens the infection curve and thus improves survival rates is a sense of social solidarity.

In some places, one finds a culture that values social obligations at least as strongly as individual satisfaction. Despite some missteps, those places—especially Singapore and Hong Kong—have had success in flattening the infection curve. If the U.S. is to have a hope of following their lead, we will need to quickly rediscover and commit to the idea of common purpose.

Despite a strongly individualistic ethos, that is not impossible. In the immediate aftermath of 9/11, we saw an outpouring of patriotic solidarity. We will succeed in mitigating the harm of COVID-19 if all of us—whatever our politics, religion, race, ethnicity, sex, sexual orientation, gender identity, and yes, even age—can come together. If there is one common enemy around which we can all unite, surely it ought to be a deadly virus.