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Justice in Health Care: Moving Beyond Opportunity

Asked in a recent episode of Philosophy Bites whether philosophers can influence public policy debates, the philosopher and bioethicist Norman Daniels answered:

Yes and no. It depends on your time frame. My own experience is that it’s very difficult for philosophers to influence social policy with regard to health.

Daniels goes on to lament the missing reflective discussion in America over rationing and priority-setting. He explains that he was once involved with the Medicare Advisory Commission but was not asked back after he noted that it might be wrong to spend huge sums to add only months to sick people’s lives when that money could instead be used to prevent many more cases of the very ailment at issue. “I was told that that question was out of order,” he says. Daniels concludes the interview by saying that Sarah Palin’s talk of “death panels” has probably “set back discussion about resource allocation by decades in the U.S.”

What Daniels doesn’t mention, surely because he’s too modest to do so, is the somewhat encouraging remark made by Nancy Pelosi in her final floor speech before the most consequential vote on the Affordable Care Act in the House of Representatives. She said:

Education and health care reform—health care reform and education: equal opportunity for the American people…And this legislation tonight, if I had one word to describe it would be “opportunity.”

I would bet real money that somewhere along the line the idea to connect health to an ideal of opportunity was influenced by Daniels’s pioneering work in the theory of justice in health care. In a series of articles and books beginning with the 1979 article “Rights to Health Care and Distributive Justice: Programmatic Worries” and culminating in Just Health (2008), Daniels has argued that if there is a social obligation to protect opportunity, then this implies that there is a social obligation to protect and promote health, since poor health curtails opportunity.

Yesterday, the health economist Austin Frakt increased the chances Daniels views will continue to influence health policy. In a post for JAMA Forum, Frakt claims that Daniels (and Daniels’s co-authors (and my friends) Brendan Saloner and Adriane Gelpi) provides the moral argument in favor of the Affordable Care Act. You should definitely read Frakt’s piece, and the two essays by Daniels and co-authors that Frakt links to. They are good examples of how to connect fundamental moral principles to real-world policy issues.

These pieces do not, however, pretend to rehearse or enhance the fundamental argument that there really is a social obligation to protect and promote others’ health. The message that comes across is that (a) this work has already been done, and (b) it is enough to convince people that health is connected to opportunity. But I am not so sure. I think it is easy (and reasonable) to agree that health is connected to opportunity and yet still ask why it is that one individual (or a set of individuals) is under a stringent, non-discretionary obligation to ensure that others do not have their opportunities curtailed by poor health. This is exactly the question posed to Frakt (and to me, actually) a few years ago by economist John Goodman:

What does it mean to think rationally about the ethical foundations of public policy? It means beginning with the moral principles governing individual behavior (What do I owe you? What do you owe me?) and then deriving the implications for a proper political relationship…

In saying that the political left is virtually bankrupt when it comes to connecting personal ethics to public policy, I invite readers to prove me wrong. Show me a leftwing treatise on ethics that tells me what I owe, to whom I owe it, why I owe it, and why government should enforce the transfer.  

My view is that Goodman (and indeed every citizen) is owed a response to these questions that goes beyond connecting health to opportunity. Much more effort needs to be spent on the “whom and why” (i.e. “to whom do I/we owe it, why do I/we owe it”) and not just on the “what” (i.e. “secure opportunity to pursue reasonable plans of life”). But I also think Daniels himself would admit as much. Consider that in the Philosophy Bites podcast, Daniels notes that the single largest group that the ACA excludes from its benefits is unauthorized immigrants. And this raises the question: for what reasons and to what degree must citizens in the U.S. be responsive to the health-related obstacles to opportunity faced by unauthorized immigrants? Daniels sees clearly that to answer this question, one must move beyond the plausible connection between health and opportunity. One must wade into the more difficult questions that Goodman stresses. And that is exactly what Daniels does in the podcast:

There are two arguments for granting health benefits to unauthorized immigrants. One is an argument from reciprocity. Many of these immigrants contribute work and taxes and contribute to the production of a good which is then distributed in the society. A more risky argument is that we should view longstanding unauthorized immigrants as members of the community, and then the argument is, What should be owed as fair terms of cooperation to members of the community? And the argument there is that unauthorized immigrants–long standing ones–are not only workers and tax payers in society but often belong to churches, send their children to schools, and are indistinguishable from other members of the community. Why would they not treated and given fair terms of cooperation (which would include access to health care benefits)?

These are not by any means the only arguments that can be given for extending the ACA to cover undocumented immigrants. (For a nice recent discussion of what is owed to (would be) immigrants generally, see the Crooked Timber symposium on Joseph Carens new book The Ethics of Immigration.) For now, the key point I want to stress is that the argumentative burden has shifted from needing to show that health is important for opportunity (an easy task, it seems to me) to needing to explain when and why opportunity-promotion is required for there to be what Daniels (echoing Rawls) calls ”fair terms of social cooperation.” Note also the weight Daniels puts on being a contributor to social cooperation. What does being a contributor have to do with one’s social entitlements? How much does one need to contribute? If one cannot contribute due to poor health, should one receive health care so that one can become a contributor in good standing?

These questions are not answered by the bald idea of health’s bearing on opportunity. Nor are they questions that are important only in the context undocumented immigrants. Rather, they are among the most fundamental questions of health justice in all contexts. I’m sure I don’t have the answers to them, but if you’re interested, I have tried to make a start.