Since 2022, voters in both Nevada and New York have overwhelmingly approved state constitutional amendments characterizing age as a protected class. As a result, a host of age-based policies and practices may soon become legally impermissible there. If the enactments in those states are part of a trend, the scrutiny on classifications based on adults’ chronological age will only intensify.
Nina Kohn’s Ageless Law ought to be required reading for any Elder Law class. It constructs a comprehensive intellectual scaffolding on which all the different sorts of age-based classifications and justifications thereof are strung. “Policies that differentiate based on older age are so common in modern America that they are often treated as unremarkable,” (P. 7) she observes. Excavating that which may have become unremarkable is an important and often overlooked academic enterprise. Professor Kohn undertakes this enterprise with remarkably sensitive concision.
First, she notes, “When age-based policy is discussed, it is often assumed that those policies benefit older adults” (P. 8). Not so. Age-based rubrics are commonplace in allocating government benefits based on age (e.g., Social Security), but they also appear in the form of interventions to address abuse and exploitation, tax breaks, mandatory retirement ages (e.g., for judges) and in the allocation of healthcare resources – both affirmative and negative.
During the COVID epidemic, for example, older adults were prioritized for preventative care such as scarce vaccines. At the same time, some states adopted triage standards which deprioritized older adults for curative care interventions like respirators. Older patients face de-prioritization barriers in other contexts as well. The United Network for Organ Sharing, a nonprofit network which contracts with the Department of Health and Human Services, assigns priority scores for organ transplants based, among other factors, on age.
After outlining the various forms of age-based classifications, Professor Kohn excavates the policy justifications for them. One primary reason we discriminate based on age is that it is so easy to do so. An individual’s chronological age is much cheaper to determine that the individual’s vulnerability, frailty, or maturity indexes. But age is almost always a proxy for something else and often a poor one at that.
Interestingly, another policy justification for age discrimination is the promotion of egalitarianism. But depending on the context, it may be invoked to favor the old, favor the young, or even to argue that individuals ought to be treated with equal degrees of favoritism without regard to their phase in life (a “temporal egalitarianism”).
Thus, the “fair innings” theory coined by John Harris avers that younger adults should be prioritized via age-based rationing since older people have already had more opportunities (fair innings) than younger people.1 If rationing is to be based upon projected life span, it follows that those with more life to live ought to be favored since allocating more resources to them will achieve greater impact. The theory assumes that older individuals have “taken” more than younger individuals—which is true to a certain extent insofar as the consumption of fossil fuels, nutrition, and other consumables.
On the other hand, favoring older adults finds justification on the ground that the old are more deserving. The “fair deserts principle” says that pro-elderly policies recognize that old age is a sort of “earned status” (P. 21) – an idea posited by Douglas Nelson.2 The idea here is that during adulthood, one contributes to society. The longer one has lived, the more they have given to others. In old age, those still living ought to be repaid.
Yet this raises the question of why exclude those adults who die prematurely from the scope of repayments. Kohn says, “Old age is not an equitably allocated resource” (P. 28). Many adults never become older adults, whether because of illness, accident, or violence, and statistically speaking, those of higher socio-economic status live longer than the less privileged. Prioritizing older adults might be simply rewarding those for having won the life expectancy lottery, which seems a poor justification for chronological-ism.
Finally, Kohn highlights the potential ramifications in states which recognize age as a protected class under their constitutions. Louisiana has long recognized age as a protected class, but its constitution’s text and the jurisprudence applying it essentially only applies a rational basis level of scrutiny to government-enacted age classifications. The impact of New York and Nevada’s recent enactments are less certain.
Kohn considers whether heightened scrutiny will be applied both to private actors and local government classifications. She also unpacks the disparate impact theory and analyzes whether states are likely to restrict their new constitutional age-classification protections to disparate treatment (intentional) discrimination.
Whether age can or should be used as a classification system for older adults depends in large measure on alternative rubrics. Age is a very imprecise proxy for need, vulnerability, or cognitive decline. Alternatively, for example, a sorting mechanism could be employed which scores an individual’s vulnerability to a specific problem such as financial exploitation. The “vulnerability theory” articulated by Martha Finman would target resources based on vulnerability rather than age.3
Certainly, alternative classification rubrics to age such as vulnerability would be more costly to administer than age-based classifications. But the benefits associated with reducing chronological-ism would include both more efficient allocations and a reduction of the associated ageism which government-mandated age-based classifications inevitably endorse. Kohn’s article contains a wealth of additional points and considerations. It helps us understand why we discriminate based on age and to ask whether – and in what contexts – we still should.
- John Harris, The Value of Life 91 (1985).
- Douglas W. Nelson, Alternative Images of an Old Age as Bases for Policy, in Age or Need? 157 (Bernice Neugarten, ed., 1982).
- Martha A. Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 9015 (2008).
