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No Theory of Justice Can Ground Health Care Reform

Published online by Cambridge University Press:  01 January 2021

Griffin Trotter
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Extract

The “Father of the United States Constitution,” James Madison, once described justice as “the end” of both government and of civil society. Yet curiously, Madison said little about justice in elaborating the principles of American federalism in The Federalist Papers and elsewhere. His fundamental concerns, to the contrary, were in contriving a system of separated, countervailing powers and in establishing a first federal principle of enumerated powers — in which federal powers “are few, and defined.” This strategy, for Madison, was the most feasible way of checking the innate tendency of political power to accumulate, centralize, and trample on citizens’ liberties.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 40 , Issue 3 , Fall 2012 , pp. 598 - 605
Copyright
Copyright © American Society of Law, Medicine and Ethics 2012

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References

Madison, J., “Federalist *# 51,” in Rossiter, C., ed., The Federalist Papers (New York: Penguin, 1961 [1788]): At 324.Google Scholar
Madison, J., “Federalist *#45,” at 292, in supra note 1. In Federalist *#45, Madison addresses the concern of anti-federalists that federal power will encroach on the authority of the states. His many predictions about the likelihood that it will be the state governments, and not the federal government, that will encroach by amassing the most power, money and influence, are striking in their inaccuracy, but understandable given that Madison firmly believed that federal powers were sharply limited by the constitution. His understanding of the commerce clause is particularly interesting, indicating that neither he, nor even the vocal anti-federalists, considered that anyone would understand this power to endow congress with a prerogative to regulate something simply because it affects commerce, or to regulate commerce in order to pursue proximate ends not related to the effects on commerce (such as assuring access to affordable health care). As scholars from Peirce to contemporary complexity theorists have observed, everything has potential effects on everything else. Hence, the current understanding of the commerce clause as endowing congress with the power to regulate whatever affects commerce is in principle a power to regulate everything. Ad hoc legal conventions that limit “bootstrapping” and other perceived abuses seem to be little more than temporary stopgap measures that will be revised whenever the majority approves or tolerates further expansions of federal power – current debate about the constitutionality of the Affordable Care Act being a case in point.Google Scholar
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Madison, J., “Federalist *#39,” at 245, in supra note 1.Google Scholar
The “dampening effect” I mention here is not merely a result of insult, disgust, or the feeling that one's views are not understood or taken seriously – though these clearly play a role. Internal deliberation among ideological friends, such as deliberation occurring between egalitarian-leaning bioethicists, typically drifts towards the articulation of views that are more extreme manifestations of the ideological dogmas that polarize the deliberators from others. Hence, bioethical discourse on justice, conducted as it typically is, as discourse between ideological friends, will predictably result in theories and opinions that are even more remote from the moral-political vision of persons outside the ideological in-group than they were before deliberation. In this sense, most current bioethical discourse on justice seems bound to have a polarizing public effect (if it has any public effect at all). For a discussion of the “law of group polarization,” see Sunstein, C. R., “The Law of Group Polarization,” in Fishkin, J. S. Laslett, P., eds., Debating Deliberative Democracy (Malden, MA: Blackwell, 2003): At 80–101.CrossRefGoogle Scholar
Justice is the most awkward of the “middle level principles” enumerated by Beauchamp and Childress, just because there is not widespread agreement, even in a general, middle-level sense, about the norms of distributive justice. Though Beauchamp and Childress acknowledge this problem, they go about the job of specifying justice, and balancing it with other values, in a manner that presupposes a certain sense of justice. See Beauchamp, T. L. Childress, J. F.Principles of Biomedical Ethics, 6th ed. (New York: Oxford University Press, 2009): At 240–287.Google Scholar
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Fleck, L. M., Just Caring: Health Care Rationing and Democratic Deliberation (New York: Oxford University Press, 2009): At 3–33, 100–201. Fleck, to his credit, does a better job of addressing opposing positions than do other liberal egalitarian bioethicists. He rightly queries Engelhardt about why Engelhardt does not extend his skepticism to the doctrine of property. Furthermore, Fleck makes significant progress toward an alternative conception of property that moves ownership of health care goods and services into a the political sphere – though I think even Fleck would concede that he has quite a bit more work to do on that project, and for the most part currently just postulates that health care goods and services should be “distributed” in accordance with some form of central social planning. On the other hand, Fleck badly mischaracterizes Engelhardt in places. He claims, for instance, that Englehardt gives individual liberty “a place of moral and political supremacy over all other values.” To the contrary, the central value in Engelhardt's scheme is settling moral controversies without the use of force – being central just because it is built into Engelhardt's definition of secular ethics. Fleck does nothing to defeat this conception of secular ethics, nor does he address Engelhardt's central argument for the principle of permission. Fleck chides Engelhardt for his lack of concern about the “lost liberty” of those without access to adequate health care as if the “effective liberty” they allegedly lost (when exactly did they have it?) is actually liberty rather than what it really is – opportunity.Google Scholar
Gallup uses two questions to divide Americans into four ideological groups: (1) “Some people think the government is trying to do too many things that should be left to individuals and businesses. Others think that government should do more to solve our country's problems. Which comes closer to your own view?” and (2) “Some people think the government should promote traditional values in our society. Others think the government should not favor any particular set of values. Which comes closer to your own view?” Gallup classifies as “liberals” those who deny that government is trying to do too many things and deny that government should promote traditional values. “Populist” is their classification for those who deny that government is trying to do too many things and affirm that government should promote traditional values. “Libertarian” denotes persons who affirm that government is trying to do too many things and deny that government should promote traditional values “Conservative” denotes persons who affirm that government is trying to do too many things and affirm that government should promote traditional values. Between 10–15% of Americans remain unclassified on this scheme because of equivocal responses. About 20% of respondents in recent years have fallen into each of the four ideological groups, though the percentage is slightly higher for conservatives. Throughout most of the 1990s, liberals lagged behind populists and libertarians, who in turn lagged behind conservatives (conservatives reached 35% in January of 1996). For early development and applications of the four-ideology scheme, see Lilie, S. A. Maddox, W. S. No. 3, August (Washington, D.C.: Cato Institute, 1981).Google Scholar
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See Fleck, supra note 15, at 101. Fleck writes that there is “no single conception of justice” that “can adequately address the very complex heterogeneous problems of health care rationing that are integral to our health care system in the United States.” This comment seems almost to affirm the thesis of this paper. However, in the next sentence, Fleck writes: “What we need to commit to is a pluralistic conception of health care justice that will have an overall moderately egalitarian cast to it.” Since presumably a “moderately egalitarian” pluralistic conception of health care justice is a conception of justice, and in view of Fleck's overall treatment of health care reform in his book, I think it best to interpret the latter sentence as holding that health care can be grounded in a conception of justice, though that conception may have affinities to several diverging theoretical perspectives, and appeals to the conception will not of themselves determine all the difficult health care rationing decisions that will have to be made. When the conception of justice is not enough to settle controversies about rationing, Fleck turns to democratic deliberation. This interpretation puts Fleck in opposition to the thesis of this paper.Google Scholar
See Fleck, supra note 15, at103–104. Despite its flaws, Fleck's reciprocity argument might appeal to some populists, who tend to support moralized versions of Marx's labor theory of value. In this regard, his argument may be an instance of a liberal egalitarian offering an appeal to justice that generates approval outside the close circle of moral friends. But again, the argument is not a liberal egalitarian one, and would be accepted by some populists precisely because they could give an answer to the reciprocity-based questions I pose in this paper.Google Scholar
I could appeal here, perhaps, to newspapers and other media of commentary by conservatives, populists and libertarians about health care access to buttress this hypothesis. However, that would be an afterthought. My hypothesis is primarily based on informal conversations and is, in that sense, speculative. Hence, I am vulnerable to counter-assertions. Those who reject my hypothesis would have a strong prima facie case – except that they would need to find some reason why so many representatives of the aforementioned groups, who clearly reject the justice-based arguments ubiquitous in bioethics, actually support government-sponsored health care.Google Scholar
Trotter, G., “The Moral Basis for Health Care Reform in the United States,” Cambridge Quarterly of Healthcare Ethics 20, no. 1 (2011): 102–107.CrossRefGoogle Scholar
It is possible that Fleck believes that the failure to provide someone with a particular level of access to any good or service is rationing, even when the particular good or service is not needed. But that would mean that virtually everything is rationed. It would also make Fleck's requirements for transparency in rationing impossible and absurd.Google Scholar
See Fleck, supra note 15, at8.Google Scholar
Id., at 13–14.Google Scholar