just health care (ii): is equality too much?

J U S T H E A L T H C A R E (II): IS E Q U A L I T Y T O O M U C H ?

LEONARD M. FLECK

Medical Humanities Program, C-201 East Fee Hall Michigan State University, East Lansing, M14 882 4-1316, USA

ABSTRACT. In a previous essay I criticized Engelhardt's libertarian conception of justice, which grounds the view that society's obligation to assure access to adequate health care for all is a matter of beneficence [1].

Beneficence fails to capture the moral stringency associated with many claims for access to health care. In the present paper I argue that these claims are really matters of justice proper, where justice is conceived along moderate egalitarian lines, such as those suggested by Rawls and Daniels, rather than strong egalitarian lines. Further, given the empirical complexity associated with the distribution of contemporary health care, I argue that what we really need to address the relevant policy issues adequately is a theory of health care justice, as opposed to an all-purpose conception of justice. Daniels has made an important start toward that goal, though there are some large policy areas which I discuss that his account of health care justice does not really speak to. Finally, practical matters of health care justice really need to be addressed in a 'non-ideal' mode, a framework in which philosophers have done little.

Key words: egalitarian justice, fair equality of opportunity, health care, justice, non-ideal justice

1. INTRODUCTION

In a previous essay [1] I noted that few in our society believe that access to health care should be determined by ability to pay. Instead, there is fairly

widespread agreement that society has an obligation to assure access to adequate health care for all. In fact, this conclusion is explicitly endorsed in the work of the President 's Commission Report Securing Access to Health Care ([2], 35--47). But there is an important ambiguity in the moral ground of this obliga-

tion, for it may be construed either as a beneficence-based or as a justice-based obligation. From a moral perspective a beneficence-based obligation is much weaker so far as practical implications regarding the distribution of health care are concerned, though my analysis showed this is the view to which the President 's Commission is committed. More precisely, a beneficence-based societal obligation is not just morally weaker; it is seriously morally flawed because it is rooted in a libertarian conception of justice, which I argued is very inadequate when it comes to effecting a just distribution of health care.

In this essay I intend to offer something more constmctive than the criticisms

of the first paper. There are two large claims which I advance. First, society 's

Theoretical Medicine 10: 301-310, 1989. © 1989 Kluwer Academic Publishers. Printed in the Netherlands.

302 LEONARD M. FLECK

obligation to assure adequate access to health care for all must be thought of as a justice-based obligation in order to capture the moral stringency associated with many claims for access to health care. Second, the conception of justice that is needed for this purpose is a conception of health care justice, as opposed to some all-purpose conception of justice. There are morally important idiosyncracies associated with health care as a social good that differentiate health care from other social goods for which society has distributional respon- sibilities. Daniels [3] has captured well those idiosyncracies and their moral import in his equal opportunity account of health care justice. In part 2 of this essay I use his account to justify my claim that society's obligations regarding access to health care are justice-based obligations. Further, Daniels makes a good start on articulating a conception of health care justice proper. His account addresses effectively several major problems of health care justice. But there are several other major problems of health care justice to which his account does not really speak. I outline some of those problems in part 3. Those problems suggest the need for a more richly nuanced and comprehensive conception of health care justice. Finally, in part 4 I note that philosophers are typically enamoured with 'theories' of jusrice. But for purposes of effectively addressing issues of justice connected with health care policy we may need something less rigid and more practical than theories. Here I suggest we begin to think in terms of a 'constitution of health care justice'.

2. HEALTH CARE JUSTICE: DANIELS' EQUAL OPPORTUNITY ACCOUNT

In the previous paper [1] we rejected Engelhardt's [4] libertarian account of health care justice. The sub-rifle of the present paper is meant to suggest that we must also reject a strong egalitarian account of health care justice, which is not really attuned to the complexity of the health care system or to the pace of technological change. Norman Daniels [3] offers us a reasonable alternative to Engelhardt's libertarian account of health care justice, what he describes as a "fair equality of opportunity" account of health care justice. He will argue that society does have an obligation to assure everyone access to adequate health care, and that this is a matter of justice, not simply social beneficence. However, this obligation of justice is not unlimited in scope. At some point, Daniels concedes, assuring access to health care becomes a matter of social beneficence, not social justice. In essence, this is what proponents of a right to minimally

decent health care are saying. The problem that proponents of this 'minimally decent' view face, according to Daniels, is that they have no principled way of specifying what will count as a decent minimum. Moreover, there is something misleading about the notion of a decent minimum with reference to health care.

IS EQUALITY TOO MUCH? 303

We have a rough idea of what a decent minimum is in food or housing because these needs are fairly homogeneous. But health needs and health services are extremely non-homogeneous, which means we need a highly relativized standard for determining the level of health care that individuals might be entitled to as a matter of justice ([3], p. 13). 1 Daniels believes his fair equality of opportunity account offers us that standard, and protects equality as a moral value (albeit of limited scope) pertinent to the distribution of health care. Further, he contends his account provides us with an objective basis for assessing putative health needs.

What makes health care special? Why is health care not just one more need among a host of needs that virtually all human beings have? According to Daniels health care restores or compensates for impairments of normal species functioning due to disease or accident. What is morally important about impairments of normal species functioning is that they "reduce the range of opportunity open to the individual in which he may construct his 'plan of life' or 'conception of the good' "([3], p. 27). In other words, the opportunity range Daniels has in mind is that which is most basic to any plan of life. Losing one's health is not like losing one's job. Losing one's job may result in a temporarily constrained standard of living. But even in a weak economy one will still have the opportunity to find another job, or create work for oneself. By way of contrast, loss of health means that virtually all opportunities for life plans in a normal range are lost or very severely constrained. Access to effective health care is what protects access to that normal opportunity range.

Daniels defines that normal opportunity range as "the array of life plans reasonable persons [in a given society] are likely to construct for themselves" ([3], p. 33). This range is very much relative to a given society, including key features of its historical development, technological development, and level of material wealth. Daniels also notes that this range is relative to the skills and talents of an individual ([3], p. 33).

The principle that Daniels wants to protect is fair equality of opportunity, which does not require that opportunity be equal for all persons. He appeals to an analogy between health care and education by way of explaining this distinction. In our society we provide twelve years of public education for free, and additional years of formal education at 20-30% of actual cost. In effect, that gives virtually all in our society the opportunity to develop whatever skills and talents they have so that they might compete as fairly as possible for jobs and other positions of power and prestige in our society. We also devote additional social resources for meeting the special educational needs of those with learning disabilities that can be overcome or compensated for, and this as a matter of justice, Still, the natural distribution of skills and talents will not be equal. In addition, the particular mix of skills and talents needed by a society in a given


historical period will be a product of a complex mix of cultural, economic, technological, and political factors, which will mean differential advantages to some individuals. Thus, effective opportunity will be unequal but not unfair since fair equality of opportunity will have been assured to all through the educational system and related social policies. Now even though access to educational resources is essential for fair equality of opportunity in our highly technological society, access to health care resources is even more essential since diminished health will usually mean diminished capacity to utilize educational resources.

Daniels sees his views as a development from Rawls' conception of justice, but not logically dependent upon that framework. Still, he often explains his views in terms of Rawls' position, and that has considerable expository value. Rawls' most basic principle of justice is his 'equal liberty' principle, which states that all ought to have an equal right to the most basic liberties compatible with a like liberty for all. 2 Ron Green has argued for a strong egalitarian position with respect to access to health care, and so he would regard a right to health care as being among these basic liberties [7]. But Daniels regards this as too strong a moral claim. Strictly conslrued, Green's egalitarian view would not allow individuals of above average wealth to purchase additional health care for themselves from their own resources, though they would be permitted to spend their resources on a host of other less worthy consumer goods. A policy such as that seems to be an infringement on our other basic liberties. Also, Green's view would seem to allow individuals with virtually insatiable health needs, what Daniels terms "bottomless pits", to have almost unlimited access to health resources, even though those resoruces are of utterly minimal utility for those individuals themselves. This seems grossly wasteful of social resources, and in that respect unjust. Daniels' opportunity principle offers us a reasonable and fair alternative by connecting up rights to specific health care resources with real opportunities that might be available to that individual. The anencephalic infant, for example, will have no capacity at all to access any opportunity range in our society. Hence, if there were high-tech medical interventions that could sustain its life for a year or two at great expense to society, justice would most certainly not require such interventions, and, likely would count strongly against any such use of resources, especially if such resources are relatively scarce. These are reasonable intuitions, and Daniels' opportunity principle provides us with a reasoned account of those intuitions.

Rawls' other major principle of justice is the 'difference principle', which permits unequal distributions of primary social goods, such as income, so long as those inequalities work to the benefit of those least well off in society. Some would prefer to follow Fried [8] and locate health care among those primary social goods that could justly be unequally distributed. But for Daniels this is too


weak a commitment to the fair distribution of health care. Fried advances his view from a libertarian frame of reference. His recommendation is that a society should decide what would count as a fair income share and then guarantee that to all in that society. Individuals would then be free to satisfy whatever needs/preferences they judged important using their fair income share. Presumably there would be competitive health insurance markets, and presumably too prudent individuals would purchase health insurance packages that were reasonable for themselves. 3 For Fried a major virtue of this approach is its simplicity. There is no need to have political arguments over which needs are most important and ought to command a larger share of social resources. We simply need to settle on a fair income share, and then individual preferences expressed through markets will resolve all further resource allocation questions. However, Daniels contends the matter is not that simple, for the only way we can know what counts as a reasonable insurance package is to know what health needs/risks a prudent person would insure against. And an income share will be fair only if it permits the purchase of that reasonable insurance package, which means we must make social judgments about health needs ([3], pp. 20-21). Again, if health needs were homogeneous, then it might be easier to make a social judgment about what counted as a reasonable insurance package. And if health care were just another social good, comparable to food and shelter, then giving people a fair income share would be a reasonable way of allowing individuals to make their own choices among these goods. But both these hypotheticals are contrary to fact. Daniels is able to explain why this is so by connecting access to health care with fair equality and opportunity.

3. THE EQUAL OPPORTUNITY ACCOUNT: UNANSWERED QUESTIONS

We now need to return to the theme introduced at the beginning of this essay, namely, the need for a comprehensive conception of justice in health care. Daniels is the first to concede that his theory is helpful in addressing only a limited number of issues of justice in health care. He takes us well beyond both the nebulous, potentially squandrous idealism associated with the assertion of a right to health care and the flinty efficiency evoked by grudging acquiescence to a right to only minimally decent health care. He offers us a robust and ap- propriately relativized answer to the question: How much health care are individuals entitled to as a matter of social justice? In addition, he justifies the claim that we are speaking of a matter of justice, not simply social beneficence. But there are other matters of justice and health care, which we can only list, and which would have to be addressed by a more comprehensive theory of health care justice.


First, there is the very large area of health care financing. Would we have a more just health care system if all health care were publicly financed? Or if it were all privately financed? Or if we continued with our current mixed financing system? Would we have a more just health care system if we moved quickly in the direction of combining the financing and delivery of health care, such as in the Health Maintenance Organizations (HMO)? And since there are many

variants of HMOs from an organizational perspective, is there any one type that is morally preferable over all others? Should HMOs be strongly regulated by the federal government in order to spread as evenly as possible less healthy individuals among the HMOs? o r should HMOs be permitted to cater to whatever population groups they wished, leaving to the federal government or state governments responsibility for organizing and financing a health delivery

system for these less healthy individuals? Will everyone be more justly treated if the elderly, given their different and more costly health needs, were segregated into their own HMO-health delivery systems? o r should the elderly be spread out among mainstream HMOs? Is the current Medicare program the fairest mechanism we have for financing health care for the elderly? Would we have a fairer program if there were some degree of means-testing, at least for those elderly who were well above the average income levels for the elderly?

A second area of concern pertains to health care cost containment. Efficiency in the use of health resources need not be thought of as exclusively a non-moral matter, just a matter of economics or utility maximization. Wasting relatively scarce resources is a matter of justice. If, as many analysts have argued, we have had a system of health financing incentives that have encouraged grossly inefficient uses of health resources, then this ought to be attended to by those concerned about health care justice. There are numerous moral and conceptual issues that need to be sorted out here, for it is not as if every use of health resources that is inefficient from an economist's perspective is necessarily unjust. We need criteria for making appropriate distinctions in these matters. Beyond that, the large question that needs to be addressed is what mix of cost

containment policies and mechanisms will yield the fairest and most efficient health care system. Would we have a fairer and more efficient system if we had more competition among financiers/deliverers of health care, or if we were to encourage strongly a larger role for for-profit enterprise in health care? o r do we need some mix of government regulation and economic competition? If so, how do we determine what that mix ought to be, at least from the perspective of justice? And, given that an ideally just health care system may never be attainable because of assorted political, economic, and organizational con- straints, what degree of imperfect justice can we accept as morally tolerable without caving into moral complacency?

As a phrase, cost containment does not evoke much political passion, but the


reality behind the phrase is rationing, denying people health care they both want and need. That will evoke strong political passions that will often get in the way of adopting effective health care cost containment mechanisms. Hence, a number of policy analysts have argued that we ought to adopt 'invisible' rationing mechanisms that effectively hide from public scrutiny the fact that rationing is occurring, as well as the precise bases for specific rationing choices. 4 Markets are one example of such invisible rationing mechanisms; DRGs are another. I have argued elsewhere that such mechanisms are unjust, that they violate the 'publicity' condition, which is both an integral part of Rawls' conception of justice and a well established considered judgment in our society's conception of justice. 5 I mention this point only to illustrate another element of justice that would have to be an integral part of a comprehensive theory of health care justice.

A third set of issues pertinent to health care justice concerns health care technology. An awful lot of expensive, life-prolonging technology has come on stream, and much more is in the works. We need to be concerned with whether such technology is drawing off resources that could better and more fairly be deployed elsewhere. The issues here become enormously complicated. On the one hand, we want to avoid the 'prior censorship' of technology. On the other hand, what we know from experience is that once dramatic life-prolonging technologies are tested and show that they provide some benefits in life- prolongation, however small they might be relative to cost, there then develops strong political pressure for the rapid dissemination of that technology ([14], pp. 30-31). Are there some resources in a comprehensive conception of health care justice that would permit a more critical process for planning the development and dissemination of these technologies?

A fourth set of issues pertinent to health care justice would concern self- inflicted health problems. AIDS would in some cases be one notorious example. Alcohol and drug abuse would be another. Should access to health care be determined at all by how well individuals have managed to care responsibly for their own health? Is it fair that those who have been very responsible in attending to their health should have to finance the expensive health needs of those who have been very irresponsible? I do not mean to suggest there is an easy or obvious answer to this question, though many will be inclined to think that there is.

These are 'tip of the iceberg' questions pertaining to justice and health care. It does not seem to me that any of these questions can be usefully answered just by asserting that there is or is not a right to health care, no matter how much detail might be associated with the articulation of this right. Likewise, appeals to libertarian or utilitarian or contractarian or egalitarian accounts of health care justice will not adequately answer most of these questions, though there are

308 LEONARDM. FLECK

important considered judgments of justice that are part of all these theories. Philosophers need a new analogy to carry them beyond the rigidly theoretical conceptions of justice they now employ. My recommendation is that we really need a 'constitutional model of health care justice'.

4. A CONSTITUTIONAL MODEL OF HEALTH CARE JUSTICE

Constitutions are political documents. They can never achieve the logical rigor that philosophers expect of good theories. Constitutions will typically reflect some mix of philosophic commitments and attentiveness to both political realities and political possibilities. They are usually the product of reasonable compromises so that there is something close to unanimous acceptance of them. They are normative, practical documents whose adequacy is determined by their ability to resolve an unlimited range of political problems peaceably. To a large extent they are assemblages of considered moral and political judgments that are 'consistent enough' with one another, but not nearly rigorously consistent in the way propositions derived deductively from a single theoretical construct would be. Finally, constitutions do get amended formally through the legislative process and they get adjusted informally through the judical interpretive process, in both cases in response to novel problems in the real world. Constitutions retain both their utility and their normative authority because they have built into them mechanisms for adjusting and rebalancing relevant political and legal considerations so that a certain reflective equilibrium is maintained, so that it is clear to all that the adjustments are not arbitrary or haphazard. Interestingly, both Rawls and Daniels advocate use of a method of wide reflective equilibrium for the justification of an adequate theory of justice. 6

Space does not permit any extended discussion of the method of wide reflective equilibrium. It will have to suffice to say that from my perspective the methodological intuitions of Rawls and Daniels are mostly correct; they just need to think of the their theories of justice as being more like constitutions and less like traditional conceptions of either scientific or philosophic theories. That means we would assess the adequacy of a theory of justice in health care in much the same way we would assess the adequacy of a political constitution. We would most certainly not ask whether either was 'true'. In his most recent work Rawls clearly acknowledges the validity of this point [6]. Also, as philosophers, we would have to pay more attention to the empirical details of our rapidly changing health care system. As both Daniels and I have suggested elsewhere, philosophers will need to think more carefully about non-ideal theories of health care justice, if we would hope to speak to matters of public policy and institutional change ([3], ch. 9; [12], sec. 1). For, from the perspec-


tive of an ideal theory o f health care justice, all health polit icies and practices

are unjust. That sort of phi losophic conclusion can neither enlighten nor direct

intell igent public inquiry.

NOTES

1 For a thorough discussion of the issue of why equality can have only limited scope as a moral value in the distribution of health care resources, see [5]. 2 For RaMs' most recent formulation of his basic principles of justice, see [6], p. 227. 3 See [8], especially ch. 5. 4 Among the defenders of the 'invisible rationing' thesis are Guido Calabresi and Phillip Bobbitt [9], James Blumstein [10], and Loren l.,omasky [1 i]. 5 For my criticism of the 'invisible rationing' thesis, see [12]. A major part of my argument is based upon Rawls' discussion of the 'publicity condition', which he sees as an essential feature of our conception of justice. See Rawls' discussion in [13]. 6 RaMs' discussion of wide reflective equilibrium is mostly in the form of scattered remarks in both [13] and [15]. Norman Daniels has provided an expanded and more systematic discussion of the method in several essays, though in my judgment much work remains to be done by way of fleshing out the method. See [16, 17].

REFERENCES

1. Fleck LM. Just health care (I): is beneficence enough? Theor Med 1989; 10:167-82. 2. President's Commission for the Study of Ethical Problems in Medicine and

Biomedical and Behavioral Research. Securing Access to Health Care. Vol. 1. Washington, DC: US Government Printing Office, 1983.

3. Daniels N. Just Health Care. Cambridge: Cambridge University Press, 1985. 4. Engelhardt I-IT Jr. The Foundations of Bioethics. New York: Oxford University

Press, 1986. 5. Brown L. The scope and limits of equality as a normative guide to federal health

care policy. Public Policy 1978; 26:481-532. 6. RaMs J. Justice as fairness: political not metaphysical. Philosophy and Public

Affairs 1985; 14:223-51, 7, Green D. Health care and justice in contract theory perspective. In: Veatch R,

Brartson R, eds. Ethics and Health Policy. Cambridge, MA:Ba/linger, 1976:111-26, 8. Fried C. Right and Wrong. Cambridge: Harvard University Press, 1978. 9. Calabresi G, Bobbitt P. Tragic Choices. New York: WW Norton, 1978.

10. Blumstein J. Rationing medical resources: a constitutional, legal, and policy analysis. In: President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Securing Access to Health Care. Vol 3. Washington DC: US Government Printing Office, 1983:349-94.

11. Lomasky L. Medical progress and national health care. Philosophy and Public Affairs 1981; 10:65-88.

12. Fleck LM. DRGs: justice and the invisible rationing of health care resources. J Med Philos 1987; 12:165-96.

13. Rawls J. Kantian constructivism in moral theory. The Journal of Philosophy 1980; 72:515-72.

14. Lubeck D., Bunker J. Case Study 9: The Artificial Heart: Costs, Risks, and Benefits. Washington DC: Congress of the United States Office of Technology Assessment,


1982 15. Rawls J. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971. 16. Daniels N. Wide reflective equilibrium and theory acceptance in ethics. The Journal

of Philosophy 1979; 76:256-82. 17. Daniels N Reflective equilibrium and Archirnedean points. Canadian Journal of

Philosophy 1980; 10:83-103.

just health care (ii): is equality too much?

Documents