Justice in an Unjust World September 2009 Northwestern University Center for Bioethics Science and Laurie Zoloth, Ph.D
Plan of talk: The Health Care Debate Why ethics? Why justice? Not a talk about details of policy A case to consider Considering how to decide A quick comment on unasked questions
At NU, We teach and research questions of ethics: What does it mean to be human? What does it mean to be free? What must I do about the suffering of others? How ought I to live decently?
Policy asks us to make moral choices based on these answers Morality of our choices are based in core narratives: The Good Samaritan Rules for how to treat/love/care for your neighbor All of this helps us reflect on rights and duties
The third : a problem in philosophy and policy What happens if there are a lot of others? What if the Good Samaritan had several wounded travelers by the road? (Churchill, 1996)
The Question of Justice How does a society decide what is just? In a world of scarcity, how ought a society justly distribute scarce goods and services? In light of the particular and poignant crisis of health care what would be the language of such choices, How can state can be accountable for justice How can an international community reflect on justice?
Why justice theory first?
Because planning matters.
Standard candidates for material principles of distribution numerical equality need individual effort social contribution merit or desert age
Theories come from material principles Different theories of justice placed different emphasis on these material principles, Can accept combinations of material principles Understanding a particular theory of justice began by critically examining the theoretical justification of the selection of material principles
And from principles of liberal democracy All liberal theories shared in common the presuppositions of the liberal tradition, all rested on the assurance of the primacy of the individual the individual person, with liberty, rights, duties, and the ability to engage in voluntary consent, existed prior to the social contract itself. the social contract that is entered into by rational free agents operating from an original position that was either historical or hypothetical, that created the liberal state
Libertarian theory why it works! liberty, private property, and entitlement. the problem of ownership the rights of each individual to own his or her own resources. According to the classic Lockean theory, the labor power of the individual, his actual work, was "mixed" with the natural resources, land, and water to create wealth that the individual then owned. The ownership of the harvested crops was brought into being by virtue of the individual's creation of this commodity where none existed before.
Problems! Are free first holdings really free? What of physical or genetic injustice? Does the end not really not matter---could one accumulate nearly all the resources if done fairly?
Utilitarianism why it works! All action is for the sake of some end, and rules of action, it seems natural to suppose, must take their whole character and color from the end to which they are subservient.... When we are engaged in a pursuit, a clear and precise conception of what we are pursuing would seem to be the first thing we need, instead of the last we are to look forward to John Stuart Mill
Based in Consequences Greatest happiness for greatest number pleasure and the freedom from pain, are the only things desirable as ends; and that all desirable things (which are as numerous in the utilitarian as in any other schemes) are desirable either for the pleasure inherent in themselves, or as a means to the promotion of pleasure and the prevention of pain.
Not rights based liberty was not a right unless it was justified by its utility to a society that was secure. Claims of merit, claims of prior social contract, conflicting appeals, and material principles of justice were ultimately subjective and hence did not give a consistent account of justice.
Problems! Majority v minority What is good? Evil Fate of individual
Contract Theory why it works! Contracts can be between states, or people and God, or citizens and governments, or between people Rules and processes are fair, even if outcome is flawed.
Deontology: Duties world of others to whom promises are made and to whom duties are owed. underlying norms and presumptions, the means of being context of relationships attendant obligations that guide our acts. For some deontologists there were certain acts (truth telling, promise keeping) that contained moral worth distinct from their impact on consequences--independent of the net happiness, pleasure, or difficulties the fulfillment of the obligation would bring.
Kant the rules most be universalizable nothing is left but the conformity of actions to universal law as such and this alone must serve the will as its principle. That is to say, I ought never to act except in such a way that I can also will that my maxim should become a universal law.
Rawls: Social Contract Theory Based on equality of shares as in John Rawls Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. justice denies that the loss of freedom for some is made right by a greater good shared by others. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests.
First Principle: Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all
Second Principle: social and economic inequalities are to be arranged so that they are both: a. to the greatest benefit of the least advantaged, b. attached to positions open to all under conditions of fair equality of opportunity And you should not know your position
Problems! Rawls was the author of affirmative action and the Great Are there limits on how the long adjustments are needed? You are not really behind a veil of ignorance. What if the contract creates new injustices?
Egalitarian Theories of Justice-why it works! each of us had inescapable and essential rights and obligations toward one another that could not be ignored rights, obligations, duties, and needs arose from something we shared as persons, common to all must be respected by all. commitment to equality Akin to faith idea of being God s children ability to make rational choices that honored this equality were at the heart of this theory of justice.
First among these duties was the notion that justice was rooted in equality, an equality due on the basis of shared human embodiment and participation in a mutually consensual human society.
A basic decent minimum. This basic decent minimum was an assessment of a quantifiable human necessity constituted the share to which all persons were entitled by virtue of their personhood alone not because of merit or desert.
All these theories share these qualities: Must be applicable: Any theory, to be ultimately credible, must address certain social imperatives: cultural norms, economic limits, and the power of the state. Rooted in mortality and rooted in scarcity Theory for rational beings
All faced challenges in the late 20 th century Feminist in North America Liberation Theology in Latin America Post- Modernist in Europe And in the 21 st century the challenge of increased scarcity and financial catastrophe.
But were the basis for many health care policies 3 Classic lifeboat problems in all technological advances First use will be risky and dangerous Will quickly be available to a small elite Will move from desire to need to entitlement
American Health care policy is organic as opposed to systematic Driven by new technology and innovation Driven by marketplace Driven by demographic changes/food/ transportation policy Driven by history of triage in war and by history of labor relations.
No Formal Rationing Plan until Medicine becomes a Public Act Prior idea was individuals tending to individuals. Family based care Hospices of the Knights Templar Village healers First come, first served Persons, not diseases, were treated. Wealthy got health care might or might not be a good idea see: Mad King George
American Civil War Whitman notes first come, first served model Some use of rank Occasional compassionate attention to child soldiers
Triage in Crimean War, WWI French surgeons Florence Nightingale Technology (in this case of killing) forced treatment changes
Idea is that scarcity is made transparent Rational planning and order is based on logical theory System planned in advance Choices based on clinical assessment
Priorities vary In War: need for activities to resume as quickly as possible First attention to most lightly wounded Least resources on most critical, likely to die, or complex
Historical Rationing of Penicillin WWII Introduction in wartime framed the first use Triage was based on ability to restore ill to battle Syphilis before battle infection Not routinely given in life threatening cases
Kidney Hemodialysis Machines First use monitored by Ethics Boards ( leading citizens ) Difficult and class based results Ended up funding everyone
Lottery systems for rare drug protocols All patients considered equally at risk Main consideration was appearance of utter fairness
United National Organ Sharing:UNOS Developed for a ranking system for solid tissue cadaveric organs Has expanded for living organ donors Based on medical need Geography a factor Must first be able to be listed Able to pay in some fashion Able to care for self in the eyes of the boards
HeLa cells how pure research distributes Harriet Lane s tumor removed in cancer surgery No consent or knowledge to family Pure transformation to commodity as cell line Free use in all labs
Flu vaccine systems set in place by the CDC in 2004-2005 Idea of high risk category Likely to die if aquired upper respiratory illness and pnuemonia Or likely to affect fetus Or in historical life boat catagory
World War II also drove health care Wages were frozen, but labor was scarce: How to keep workers at Kaiser? GM? Answer pay a portion of pay raises as untaxed benefits Kaiser had company doctors HMO Others paid for insurance instead of wages Co-payment later introduced as health care cost rose
Fee for service created cost shift Poor were cared for as subjects of charity or/and for teaching No real market pressure to keep costs down
But Harrington, Rawls, R. Kennedy exposed The Other America The uninsured were Unemployed and thus poor Disabled Old Thus, our public options insured them: Medicaid SSDI Medicare
Life expectancy was limited in 1965 Most Americans were insured, then retired and died two years later, at around 67 But beta blockers, stents, cancer therapies, and lipid blockers changed that. ICUs transplants and new small molecules drugs help too Combination of expensive high tech and epiphanies about health extend expectation
Unions were stronger, and most American workers had coverage But many forces coalesced to change this too: Off shore production closed plants and industries Rise of large employers who did not insure workers Rise in immigration Full time, able bodied, and young workers also were uninsured Poor health creates syndrome X
Controversial slide alert: What theory of justice do you want? Are we discussing the right question?
We said yes to 4 things 1. To a health care marketplace: big science, litigation and technology create medicine as a profit center. 2. To abundant food, sweets, drinks, smoking and lack of exercise as a lifestyle for many. 3. To paying for many untested and competing choices of therapy without a system of justice 4. To a rising sense of entitlement, a search for youth, to avoiding a serious discussion of death, and the limits of medicine.
Are these ethical? Could any be changed? Does saying yes to universal access mean saying no to any of these things?
Statement of Problem How can we set in place a fair and just system of access to the good ends of medicine? Using a fair and just process And aiming for fair and just goals for humanity?
When we live in an unjust world?
Some choices seem fairly easy Setting up a system would include vaccinations, well-baby check up, annual physicals, mammograms, and pap smears. But does everyone really need an annual physical? How do you know? And what about new technology?
You decide! There is an high tech intervention (10K) that can prevent fatal heart attacks. But it is not certain who should get this. Setting up a trial to be certain will be expensive, and you would have to get volunteers to be randomized into a control group. Should you pay for this? Should you just give it to everyone?
Or should you fund a testing program for all 18 year olds to see if they are at risk for sudden cardiac death?
Or, you can fund low cost cardiac treatment centers in poor neighborhoods, with the goal of preventing obesity, stopping smoking. Or you can fund cardiac transplants in patients with a history of heart disease regardless of the ability to pay, including second transplants when the first fails.
Homework: Please listen to President s Obama s speech on health care. Reflect on his use of terms such as fair, just, and rights and how he argues that they a basis for his larger argument.
Then, when reading the arguments for and against his proposals, ask whether the objections from the left and the right are about 1) the substance of his ideas about justice and policy; 2) the process of how we make just and fair decisions; or 3) the theory of justice he is using.
Thank you!
The Center for Bioethics, Science and