In a previous post, I used Paul Menzel’s provocative contribution to the Hastings Center’s Values and Health Reform Connection as a touchstone for getting clearer on what implication the values of fairness and equality of opportunity might have for health care reform. Since that post was mostly critical in nature (I argued that they do not have the implication Menzel describes), I wanted to offer a constructive suggestion that, while not novel, might provide some reason to think that seemingly conflicting strands in contemporary political philosophy can provide mutually supportive grounds for a government guarantee of affordable access to adequate health insurance.

One thing I tried to argue in that first post was that the Rawlsian ideal of equality of opportunity does not provide the momentous rationale for justice in health care that some, including Menzel, think it does. Although Rawls is a well-credentialed liberal, he deliberately avoided the question of health justice, and it is not clear which, if any, plank of his theory could be broadened or reinterpreted to yield the pro-reform conclusions that Menzel and I stand together in endorsing.

There may, however, be a characteristic of Rawls’s view that could provide the germ of a constructive expansion. Although Menzel characterizes as “libertarian” the view that duties of justice are largely grounded in the features and consequences of special relationships, I explained in the earlier post how Rawls’s liberal interpretation of equality of opportunity stresses the ways in which features of one’s situation are the man-made result of collective decision-making by one’s society. So the distinctive features of the citizen relationship are also central to Rawls’s account. But Rawls departs from libertarianism insofar as he recognizes that the myriad social and economic choices we as a society make have such profound effects on others that they often generate strong duties of fair sharing, compensation, and fraternity. Thus even if Menzel’s conception of equality of opportunity is not itself a basic component of justice, perhaps many of its demands can be vindicated—both philosophically and, eventually, politically—in light of the special ways citizens’ lives are influenced and shaped by prevailing social and economic institutions.

Ironically, the path to such a vindication can be illuminated by none other than the most important philosophical defender of libertarianism, Robert Nozick. To be sure, Nozick is widely remembered for his bold claim that “taxation…is on par with forced labor.” But in a brief discussion of polluting activities—i.e. activities that impose “negative effects on other people’s property such as their houses, clothing, and lungs”—Nozick says that the proper response to unintentional pollution may be to “spread the cost [of addressing the negative effects] throughout society,” or, if feasible, to “place [the costs] on those who benefit from the activity.”

At this point we can follow Merrill Goozner’s lead and refer to the “vast literature on the social determinants of health” that describes the “real and enduring determinants of ill-health in our society—poverty, income inequality, social insecurity, and status anxiety.” If what the epidemiologists say is true, that is, if a central cause of poor health and health disparities is the pattern of social and economic choices made by society at large (and not by individuals on their own), then there is an argument, potentially compelling to the liberal and the libertarian alike, for coercive social measures that spread the costs of addressing consequent ill health throughout society.

We can now see that the objection on the part of the well-off to subsidizing the premiums of the poor or the care of the ill might have a conclusive rebuttal. If economic arrangements that generate inequalities also contribute significantly to the poor health of those who are ill, then it seems reasonable to require those who have benefited most from these arrangements to contribute to health care of those who benefit least and who turn out to be actively harmed by those same arrangements. In the search for rationales that might win wide consensus, then, there is some reason to hope that empirically informed arguments that are good enough for both Rawls and Nozick could be good enough for the American people.

Unfortunately, a recent study soon to be published in the American Journal of Public Health gives us reason to believe that cogent arguments will not be enough by themselves. The study finds that when presented with news stories explaining that individuals’ Type 2 diabetes is genetically caused, both Republicans and Democrats respond with some willingness to use public funds to address the medical problem. But, when presented with news stories explaining that social and neighborhood factors beyond an individual’s control cause diabetes, Republican—but not Democratic—support for public intervention wanes. So a person’s political leanings seem to have an effect on his or her receptiveness to normative arguments that should be resonant with both left-leaning and right-leaning political philosophies.

Does this mean that we philosophers must go back to the drawing board, normatively speaking? It does not. It does mean that we should be mindful that philosophy isn’t politics or advertising, and that some well-meaning advocacy campaigns may have unintended consequences. But this is likely true for virtually any cogent argument strong enough to justify robust government action where it was previously lacking and where some adamantly believe it should not exist. Fortunately, some of the very social scientists that first taught us about the social determinants of health have already begun to think systematically about how to design messaging strategies to educate the population about the many social causes of ill health. This confirms that whatever happens during this current round of reforms, it will be absolutely essential that philosophers and social scientists strengthen and extend their cooperation. Neither group can succeed without the other, but with a little luck we can together translate the rather ecumenical case for progressive health reform into political action supported by those whose values comport with this case, but who were nonetheless previously reluctant to support it.

In “Justice and Fairness: Mandating Universal Participation,” Paul Menzel grounds his endorsement of government-assured universal access to basic health care in a ideal of “just sharing” between fellow citizens. At the same time, Menzel calls unfair the current arrangement that shifts the costs of unpaid emergency care provided to “those who cannot afford to pay” onto “patients who can pay, almost all of whom are insured.” According to the figures cited by Menzel, such cost-shifting raises average family premiums by roughly $1,000 per year, and amounts to “unfair free-riding.”

There is some dissonance between these two planks of Menzel’s overall view. For if shifting the costs associated with unpaid emergency care simply involves having those who can pay (in the form of higher premiums) pick up the tab for those who cannot, why shouldn’t we count this as an instance of precisely the sort of fair sharing between citizens that Menzel endorses? Although his essay seems to suggest that he counts all such cost-shifting as unfair and in need of attention, perhaps Menzel wishes to make only the more modest claim that unfairness occurs only when those who receive unpaid care at emergency rooms are like the “young singles” who can afford insurance but forgo it because they see it as a bad financial bet. In these cases, the costs of one person’s unwise gamble are borne by her fellow citizens in the form of higher premiums.

But even in these cases we may have reason to think that an ideal of just social sharing would permit and perhaps even mandate shifting costs of care provided to the voluntarily uninsured. Let me note two reasons in particular for this.

First, and as Menzel acknowledges, the source of the shifted expenses is care provided by hospitals which are required by law to treat the acute health needs of anyone who presents in the emergency room. Yet as T. R. Reid points out in The Healing of America,

For the vast majority of sick people, the emergency room is not an option. Beyond that, you can’t go down to the emergency room for the physical exam or the blood test or the breast palpitation that could head off some disease before it threatens your life. You can’t go to the ER to refill the prescription for the pills required to keep you alive. (Reid: 30-31)

In contrast, the basic health care to which Menzel wants all to have access would surely include the preventive services that emergency rooms do not. But according to a recent literature review in the New England Journal of Medicine, “Although some preventive measures do save money, the vast majority reviewed in the health economics literature do not.” Even more recently, the nonpartisan Congressional Budget Office  reported that “the evidence suggests that for most preventive services, expanded utilization leads to higher, not lower, medical spending overall.” So it could turn out that it is less expensive to provide a restricted range of free emergency care even to those who make bad gambles than it is to fund, again via higher premiums, their expensive preventive care.

One might object here that if what we cared about most was others’ health, we would prioritize preventive care so as to reduce the likelihood of another’s winding up in the ER. But the argument of Menzel’s that I’ve been discussing seems concerned solely with the costs that are shifted from some onto others. It is thus unclear why a principle of social sharing enjoins us to pick up the costs associated with preventive services but not the costs associated with ER visits.

The second reason for thinking that a just sharing principle would permit shifting the costs of emergency care has to do with the typical attitude toward contribution held by proponents of universal health insurance. Whereas Menzel states that his critique of free-riders is based in the precept that “no one should get to ride the system without contributing to its upkeep,” most proponents of universal health insurance would not criticize those who would benefit without being in a position to contribute to its financing. Perhaps this attitude can be explained by a principle that requires contributions only if opportunities to contribute are readily available and not too burdensome. But then what do we say about a 25 year-old college graduate who adopts an itinerant lifestyle, living off the generosity of her friends, while pursuing what many know to be a hopeless career as an artist? Although she does not in fact have enough money to buy insurance, she could perhaps acquire it if she decided to “get a real job.” Is she contributing her fair share to the universal insurance scheme? If not, should her coverage be cancelled or her subsidies lessened?

An approach that answers “no” to that last question might put universal health insurance in the same category as universal public education: you are entitled to it regardless of whether you end up contributing to its financing. In that case, the point of mandating insurance coverage might have less to do with guarding against free-riders than it would with ensuring that there are enough funds in the health system to protect and promote the health of all. And this is indeed one of the rationales cited by Menzel for the requirement that those who can afford it buy basic (and not merely catastrophic) insurance.

The analogy with universal education makes all the more salient the justification for universal health insurance Menzel associates with equality of opportunity. Here he follows the pioneering work of philosopher Norman Daniels in seeking to ground social justice claims to health care in what seems to be a squarely American ideal. But there is reason to doubt that this is in fact a winning strategy.

Daniels’ own inspiration for the equality of opportunity approach was John Rawls’s theory of justice. But that theory provides uneven ground for the extension Daniels proposed. Rawls’s equal opportunity principle is deliberately designed to redress only those inequalities of opportunity that are socially caused, such as inequalities in access to higher education that are the result of the impact of man-made economic arrangements on family income. Rawls therefore appears reluctant to endorse the claim, which is forwarded by Daniels, that all departures from full health that are nobody’s fault but nature’s are nevertheless prima facie unjust or unfair. Rawls’s stance here comports with a familiar strand in common morality that associates injustice with strong and assignable responsibilities for redressing it, and which assigns to one much stronger responsibilities for redressing disadvantages one had a hand in causing than to redress disadvantages caused by natural bad luck.

Like Daniels, Menzel adopts an expansive interpretation of equal opportunity that views naturally caused departures from full health as opportunity-limiting and thus prime facie unjust. Yet Menzel faces a second tension connected to the fact that he seeks a foundation in the ideas currently present “in U.S. moral and political culture.” For example, Menzel explicitly rejects the suggestion that equality of opportunity demands the universal provision of more than merely “basic” care. Why? Because “in a society committed to only modest measures of income redistribution generally, collective action will be out of balance if it guarantees everyone access to care above this line.” But then it seems utterly arbitrary to accommodate an American skepticism of “redistribution generally” while at the same time relying on an expansive interpretation of equality of opportunity that would likely be judged as overreaching from that same American perspective.

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I am grateful to Paul Menzel for kicking off the discussion about justice and fairness in health reform by offering arguments to help orient our woefully inadequate national debate about the moral bases for reform. In the end, I share his confidence that there is a cogent rationale to be found in both common morality and U.S. political culture in favor of a government guarantee of affordable access to adequate health insurance. Although I have spent this post noting points on which I disagree with Menzel’s analysis, I hope the forgoing discussion proves as useful to moving the debate forward as his original essay.

(I thank Rob Streiffer for helpful comments on an earlier draft of this post.)