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Covid-Pandemie und H5N1-Pandemie - das Ende der Menschheit und vieler anderer Tierarten => Covid-Pandemie und H5N1-Pandemie => Topic started by: Brioclin Zelltek on May 04, 2023, 01:53:54 PM
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Karl Lauterbachs Dissertation ist bloß als eine Sammlung von Scans online. Die Bilder sind kapitelweise in PDFs zusammengetragen. Lauterbach hat die online, aber nicht richtig lesbar. Scans United und Anonymaus Gutenberg sind der Sache nachgegangen und haben die Scans zu edierbarem Text übertragen.
Ob die Übertragung an allen Stellen fehlerfrei ist, können wir nicht garantieren.
[Ergänzung:
Die Übersetzung des englischen Originals ins Deutsche ist hier archiviert:
http://www.allaxys.com/~kanzlerzwo/index.php?topic=12979.0
Van]
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https://www.karllauterbach.de/wp-content/uploads/2019/07/dissertation/Introduction.pdf
Page 1
JUSTICE AND THE FUNCTIONS OF
HEALTH CARE
Karl W. Lauterbach
A Thesis Submitted to the Faculty of
The Harvard School of Public Health
in Partial Fulfillment of the Requirements
for the Degree of Doctor of Science
in the Field of Health Policy and Management
Boston, Massachusetts
May 1995
Page 2
i
This thesis was written under the supervision of Professor
Marc Roberts who, some years ago encouraged me to take on
this subject, and has tutored me as a teacher and
friend to its completion. I had the privilege of countless
discussions with him about ethics and health policy, each of
which teaching me something new. His support was extremely
generous, and has greatly indebted me to him. I am similarly
indebted to the other members of my research committee, to
Professors Arthur Applbaum, Michael Reich, and Amartya Sen,
who provided important comments and criticisms which
profoundly influenced the development of my thoughts.I would
also like to thank Professor Arthur Applbaum for teaching me
about professional ethics in his capacity as Director of the
Graduate students' Fellowship Program in Ethics and the
Professions, which supported me during the academic year
1992-1993. At this time I would like to acknowledge the
invaluable inspiration of my other teachers in philosophy,
Professor Norman Daniels, Derek Parfit, Hilary Putnam, John
Rawls, Tim Scanlon, an Dennis Thompson, without whose work
this thesis would not have been written. I also wish to thank
my friends and colleagues in the Division of Mediical Ethics
at he Harvard Medical school, where I had the opportunity to
discuss my ideas and received many valuable suggestions.
Finally I would like to name my most important sources of
support, my companion Angela, and Carl-Stanley and Rosa-Lena,
Page 3
ii
our children. They gave me happiness and encouragement. I
also owe Angela many thanks for sharing her views on this
subject with me, and for typing the manuscript.
Cambridge, May 1995
iii
TABLE OF CONTENTS
INTRODUCTION 1
Chapter I: JUSTICE AND THE FUNCTIONS OF HEALTH CARE 11
Premature Death and Disability 11
Justice and the Functions of Health Care 16
Chapter II: KANTIAN ETHICS AND THE FUNCTIONS OF HEALTH CARE 24
Kant's Ethical Theory 24
Why Should We Be Concerned with Our Health and the Health of others? 28
Health Care and the Ends of the Individual and the Community 31
iv
Page
The limits to our Obligations 35
Different Kinds of Health Care Are Covered by Diferent Obligations 37
Moral Agency and Capability 39
Chapter III: HEALTH CARE AS A SPECIAL SOCIAL GOOD IN THE FACE OF FINITE RESOURCES 49
Central Health Care Is a Special Social Good 49
The Bottomless Pit Objection 53
v
Page
Chapter IV: HEALTH POLICY AND THE FUNCTIONS OF HEALTH CARE 76
Health Policy in Germany 76
Health Policy in the U.S. 86
Cost-Effectiveness and Justice in Health Care 92
Saving Moral Agency in the Disabled 99
CONCLUSION 104
REFERENCES 111
INTRODUCTION
Determining the moral value of saving lives through
postponing death and sustaining life's basic qualities
involves reconciling two opposing intuitions. The first is
that saving lives is morally so important, in particular when
young and identifiable individuals are at risk, that the
value of doing so cannot even be expressed in monetary terms.
Instead, we seem to have an unlimited obligation to save
lives if we can do so at no risk to our own life and only
monetary costs are involved. The conflicting intuition is
that we do not value life for its own sake. Instead, life
gets much of its moral value through experiences, which make
it valuable to the individual whose life it is and to others
who share these experiences. Those experiences, in turn,
depend on, among other things, the resources we as
individuals have available. Thus, it seems appropriate to
determine how much to spend for life saving in the context of
making all the other expenditure decisions that we face.
The first intuition pulls us in the direction of
insulating our obligation to save lives from the obligations
we have for assuring a fair distribution of resources. The
second intuition would make protection against the loss of
life and life threatening illness part of what everyone may
or may not want to buy once we have guaranteed a fair
2
distribution of resources. What we consider to be a fair
share of resources of course depends on the more general
conception of social justice that we accept. Thus, the
question is if our obligation for health care provision is
prior to, or secondary to, other social obligations.
Both of these positions are well represented in the
literature on justice. An example of making all health care
an insulated social good of special moral importance is
provided by Norman Daniels' book Just Health Care.¹ Daniels
justifies a right to health care for every citizen in a
country as affluent as the U.S. because of its central
importance for "equality of opportunity". He concludes that
health care should be distributed according to people's
medical needs and not not through the free market from an
individual's fair share of income.
The alternative position is defended by Allan Gibbard 2
and Ronald Dworkin.3 They both argue, although from different
conceptions of social justice, that justice in health care
requires that all forms of health care should be subject to
fair entitlements of resources and reflect an individual's
preferences for health care including health insurance.
1 Daniels (1985)
2 Gibbard (1983)
3 Dworkin (1993)
3
The first approach seems, correctly, to insulate
someone's survival prospects from the distribution of income,
however, it also seems to go too far, because it would
insulate all health care from decisions about what insurance
we would voluntarily purchase if we had a fair share of
income. It is not plausible to argue that every form of
health care, including for example health care that merely
slightly enhances the quality-of-life, is more important than
all other social goods which might enhance the quality-of-
life of the same person more effectively.4 On the other hand,
the first approach also needs to be supplemented with
principled way to set limits to society's obligation to spend
resources on health care. Otherwise we might have to spend
all we have just for saving lives. The second proposal does
give such limits. But it does not, in principle, distinguish
among different forms of health care. Moreover, it cannot
accommodate the intuition that the availability of some forms
of health care should not depend on what we would choose once
we had a fair share of income.
I will argue that, from an impartial point of view, the
prevention of premature loss of life and the preservation of
a minimum level of mental and physical functioning should be
the morally central functions of health care. They should not
be subject to a fair distribution of income but be protected
4 Buchanan (1983)
4
by entitlements which are set by principles that are
impartially acceptable, including principles governing the
limits of these entitlements. I will propose that we should
use a particular set of impartially justified principles of
justice to guide the distribution of those resources that
determine our survival prospects and our ability to take part
in the moral life. In particular, I will argue that such
entitlements should not be viewed as a means to maximize the
general welfare in society or as the expression of its
accepted community values, as is suggested by utilitarian and
communitarian approaches to this issue.
My effort is guided by a broadly Kantian understanding
of moral reasoning which I will develop in Chapter II and
apply in the remaining chapters. The most successful of all
recent Kantian theories of justice is, of course, John Rawls'
attempt to apply Kantian moral reasoning to the broadest
issues of society, justice in justice of basic
institutions.5 Although Rawls does not endorse the link
between rationality and autonomy that Kant proposed, the
method of moral reasoning employed by Rawls in A Theory of
Justice is basically Kantian. I will draw several key ideas
from Rawls' work, including the idea of the importance of
life plans for defining moral agency.
5 Rawls (1971)
5
Finally, I will draw on Amartya Sen's recent work on ant
equality because of its importance for understanding the
comparative advantages of different people.6 I will argue
that to allow for minimum some physical and mental
functioning, as well as for the survival for an appropriate
life-span, are morally the most important tasks of health
care and should be separated in priority rankings from the
distribution of other health care services or other social
goods. To do this, I will use Sen's concept of a "capability
set" to help define the central functions of health care.
This will allow me to give content to the key notion which,
from a Kantian point of view, insulates the central functions
of health care, namely the notion of moral agency.
Furthermore, the method I suggest for deciding what the total
budget for the morally central functions of health care
should be will involve an analysis of the effects of various
choices on the distribution of capabilities. This is
contrast to what is normally suggested for such purposes,
namely welfare trade-offs.
The health policy significance of this essay can be
seen in at least four aspects. The first concerns the debate
about the question if there is a right to health care.
Although I do not take up this issue comprehensively, since I
6 Sen (1985), (1990), (1992); Nussbaum & Sen (1992)
7 Buchanan (1983)
6
will not address the question if the morally most important
functions of health care should lead to entitlements
protected by individual rights, my analysis is quite
compatible with such a claim. Instead of focussing on rights,
I will focus on the obligations we do have to ourselves and
to others. It is a separate question which I will not
consider if such obligations should be enforced through
rights or not. The answer to that question depends on issues
that go beyond justice in health care and concern the
institutional framework of justice in society more generally.
It is also important to recognize that I do not wish to
imply that there should not be any rights to health care
apart from the central functions. I only argue that if there
are such rights, their corresponding obligations need to be
argued for using a different set of principles than those
that define and justify our relationship to the central
functions of health care.
The second debate in health policy on which this essay
touches is the attempt to specify a "basic minimum" of health
to which everyone should be entitled, regardless of
whether such an entitlement should be a matter of rights or
not.8 It has often been argued that the idea of a "basic
minimum" is essentially meaningless because there cannot be
8 Gibbard (1983); Buchanan (1983)
7
an ethically defensible way to define that basic minimum.
Although I am not taking on the task of constructing a basic
minimum here, I at least attempt an ethically defensible
substantive definition for the central functions of health
care that should be included in whatever we define the basic
minimum to be. One way to conceive of a basic minimum is to
combine the entitlements of the central functions of health
care with what we impartially believe should be provided to
everyone given some of the obligations we have in related
domains of justice, such as a fair income distribution.
Third, this essay does does give us reason to consider
whether there are constraints on the ethically defensible
uses of policy analysis for ranking the moral importance of
health care services. I will explicitly argue that when we
use policy analysis to evaluate some health care services, we
should not discount the moral value of lives according to
or their level of their expected lower quality-of-life
disability, as long as these lives still allow for moral
also plead for the ethical rejection of agency. I will
comparing the moral value of some life-saving services with
health care services which are important for other reasons.
However, I will claim that cost-effectiveness has an
important role in determining which life-saving services we
should fund as part of our obligations to others with respect
9 Brock (1992)
8
to the ethically most central functions of health care.
The final health policy issue for which this project
seems relevant is the permissibility of age-rationing. 10
Again, I will not address this problem directly. However, my
criteria for defining and justifying the morally most central
functions of health care will use age and life-expectancy as
morally significant proxies. The reasons why age and life-
expectancy do matter are moral reasons, which are largely
independent of the idea of the good we accept. I will make
the claim that they should be regarded as morally important
for the rationing of of some health care resources largely
independent of the economic ramifications or the social
acceptability of doing so in terms of the predominating ideas
of the good in a society.
I present my analysis in four chapters. In the first
chapter, I will provide some of the empirical facts relevant
issues of the ethical treatment involved. It is
important for us to recognize that our potential for saving
lives from premature death and illness is constantly growing
due to improved technology and that we could spend virtually
unlimited resources for that purpose while continuing to gain
some small benefits. This increase only aggravates a critical
ethical problem, namely how to compare the moral importance
10 Daniels (1988)
9
of avoiding premature death and preventing some especially
debilitating premature illnesses with other functions of the
health care system.
In Chapter II, I will develop my methodological
resources. The main idea is that Kantian ethics gives us the
right account of why we should be concerned with the survival
prospects of other human beings, namely that it is an
obligation which is part of respecting others as moral
agents.
In order to be able to conceive of an ethically
meaningful currency in which both the benefits and the costs
of discharging this obligation can be expressed I will make
use of Amartya Sen's concept of "capabilities". I will argue
that the central functions of health care, from an ethical
point of view, concern those capabilities that allow us to
function as moral agents.
In Chapter III, the main distributional claims for the
ethically central functions of health care are introduced, as
they follow from Chapters I and II. I make the case for
principles that allow for setting an ethically defensible
budget for the purpose of preventing premature death and loss
of moral agency, and explain what this would imply for health
policy and the distribution of income in a just society. This
is an attempt to move us towards a reconciliation of the two
intuitions I presented above, namely that some functions of
10
health care are morally special but that they should still
not be permitted to consume all of our resources.
In Chapter IV, I will apply my analysis to the health
care systems in Germany and the United States. I will show
that the central functions of health care are not adequately
served in either country, mostly because of micro-allocation
problems. Furthermore, the total budgets on health care in
both countries appear to be determined by the wrong kind of
considerations. Finally, I will comment on the potential use
and misuse of cost-effectiveness analysis for allocating
health services within a fair health care budget.
https://www.karllauterbach.de/wp-content/uploads/2019/07/dissertation/Chapter%201%20Premature%20Death%20And%20Disability.pdf
Chapter I: JUSTICE AND THE FUNCTIONS OF HEALTH CARE 11
Premature Death and Disability as a society
One of the most important goals in health policy should
be to reduce the number of those who either die or become
severely disabled early in life. It is well known that in
industrialized countries e.g., in which the average life
expectancy now ranges between 70 to 76 years for men and 75
to 82 years for women, about 30% of all men and 20% of all
die before the age of 65. 11 An additional 5% are
severely disabled at that age. For the purpose of this essay
I regard a death as premature if it occurs significantly
before average life-expectancy in society, say at age 65 or
younger in the U.S.. I will justify this threshold below when
I have introduced what I believe is the nature of our
obligation to save lives. Severe disability is meant to cover
cases of significant impairment of mental or physical
functioning, such as psychosis, blindness, paraplegia,or
constant pain and discomfort.
Premature death and disability are usually perceived as
especially tragic because they frustrate ongoing projects and
relationships. Any moral theory that gives any weight at all
to benevolence would thus advise us to try to reduce the
11 U.S. Congress, OTA (1993)
12
burden of such premature death and disability. The disagree-
ments start when the question is raised if we as a society
are under an obligation to try to reduce such premature death
and disability, what the nature of that obligation is, and
what its limits are. To explore these issues, I will first
consider the most common causes of such tragedies and whether
they can be averted. Then I will address the question of what
it would take to avert these causes. In particular, do we
face a serious scarcity of resources when it comes to
ameliorating such conditions?
The diseases that account for most of the early death
and disability in men in industrialized countries are heart
disease, cancer, and accidents. Together these account for
more than 60% of all deaths before age 65. For women the
situation is similar, with heart disease and cancer also
being the leading causes of early death and disability. 12
It is well established that a large percentage of early
death and disability could be averted through more and better
medical care as well as through preventive interventions. The
greatest impact would come from primary care and the
screening and treatment of individuals with risk factors that
are known to predispose for serious illnesses. Examples for
this are blood pressure and cholesterol screening, as well as
12 (ibid)
13
screening for colorectal, breast, and other cancers.
Among the measures an individual can take to reduce the
likelihood of premature death and illness, smoking cessation,
diet modification, and regular exercise rank first. Among
these smoking cessation is clearly of the biggest importance
because smoking contributes both to the burden from heart
disease and from cancer. 13 It is estimated that smoking is
responsible for 30% of all deaths from cancer and for 25% of
all heart disease deaths. 14 Diet is an established
determinant for the likelihood to develop heart disease and
cancer also and ranks second after smoking, accounting for an
unknown number of all cases of heart disease and an estimated
35% of all cases of cancer. 15
Given that a large number of cases of premature death
and disability could be averted, how much should society
spend to reduce the number of those who are at risk? Is there
anything special from the point of view of social justice
when an individual dies or becomes severely disabled
relatively young? Given the scarcity of resources, which is
part of the background condition of any health care system,
as a society do we have a special obligation to try to avoid
13 MacKenzie (1994)
14 Doll & Peto (1981)
15 Hennekens (1994)
14
premature death and disability? These are questions that are
part of a more general question, namely what should the
functions of the health care system be? 16
These questions are not new. But I would argue, they
have recently become more pressing for the following four
reasons. First, in this century we have witnessed a dramatic
increase in average life-expectancy in both industrialized
and nonindustrialized countries. This has widened the range
of life-expectancy and of the prospects for disability-free
life within societies. Second, the potential for helping
those who are threatened by premature death and disability
has greatly increased, in particular through advances made in
medical care, epidemiology, and health policy. Third, the
potential costs of prevention and treatment have increased
through the availability of new and better technology. And
finally, we have only recently become able to identify
beforehand those who are at the highest risk for developing
diseases leading to premature death and disability. This not
only increases our potential to help those at risk but also
transforms their status from a statistical bearer of risk to
an identifiable individual. This makes a difference from a
moral point of view, because if we could have or have
identified an individual as risk bearer, without doing
anything about this risk, we might be acting wrongfully
16 Daniels (1985)
15
against this particular individual.
How severe are the resource constraints for avoiding or
postponing premature death and disability? It is often
asserted that prevention and early treatment averting
premature death actually save money which would otherwise be
spent in the treatment of advanced disease stages. If this
were generally true, spending for the prevention of premature
death and disability might pay for itself.
Although cost saving does occur in some cases, it is not
generally the rule and there are some cases that are
extremely expensive to address. 17 Such cases include, for
example, those that can only be successfully treated if they
are detected through screening programs which are relatively
inefficient because few test as true positives and many test
as false positives. This is the case for breast cancer
screening and cholesterol screening in some relatively young
age brackets. 18 Other cases of premature death prevention
that are extremely costly involve safety-regulations
injury prevention measures which seem to be more expensive as
a group than medical care in terms of dollars per life-years
saved. The costs for safety-regulations can be as high as an
17 Weinstein (1990)
18 Tengs (1994)
16
estimated 100 billion per life-year saved. 19 Thus we could
spend 10% of the current estimated annual expenditures for
health care in the U.S. on saving one statistical life-year.
Clearly therefore, industrialized nations could almost
certainly devote a much larger share of their GNP to the
prevention of premature death and disability than they do now
and still get some additional benefits. This is especially so
since, I will argue below, we should regard prematurity in
death and disability at least in part as dependent on the
average life expectancy in a society. This would imply that
the definition of premature death is dynamic, and some deaths
will always have to be regarded as premature.
Justice and the Functions of Health Care
There is no scarcity of proposals about what justice
demandswith respect to the structure of health care
systems. 20 Most of the proposals made rightly focus on
issues of distributional justice because of the fact that
there is a wide range of what kind of health care people
enjoy (in particular, but not only in the U.S.), and health
19 (ibid) (1993)
20 Buchanan (1983)
17
care costs are rising in all industrialized countries.21 One
way to explore justice in health care is to ask whether there
is a right to health care. This is an important question
because of the political power rights claims do enjoy in
western democracies. We should realize however that the
nature of our obligations to provide health care for others
ultimately determines what kind of health care services
someone could claim as a right and what the limits of those
claims are. Still it is useful to explore what a right to
health care could mean according to defenders of the most
widely held theories of justice.
The theory which is most closely linked to health since
economics as practiced in the U.S., and also to the use of
modern techniques of policy analysis, is utilitarianism.22
In utilitarianism there are no deontologically justifiable
obligations or rights. It is an important theoretical
question if utilitarianism is compatible with the institution
of rights at all, but to the extent that it is, it can be
said to advocate only those rights that in the long run tend
to maximize utility.23 The moral obligation of an individual
to support such rights would follow from a more general
obligation, for example deriving from universal benevolence
21 U.S. Congress, OTA (1993)
22 Brock (1993)
Lyons (1994)
18
or mutually advantageous conventions. A right to health care
would follow from the empirical assumption that extending
such a right would contribute to the maximization of utility.
The services covered, as well as the budget set for such a
right to health care, would likewise be regulated by the
utility maximization rule.
Alternatively, communitarian theories of justice would,
simplifying enormously, grant a right to health care for all
members of the community if doing so would express the shared
understanding of what justice in health care means for the
community in question. 24 This would lead to quite different
health care entitlements in different societies, since
different societies live by distinctly different sets of
shared values. It would imply no right to any kind of health
care if that is what best expressed the values of a
particular community.
Finally, for liberal theories of justice, a right to
health care is not automatically included in any just society
either. Liberal theories do, indeed, grant certain rights to
the individual that neither utilitarian nor communitarian
considerations can overturn. The question is, should health
care be part of the set of rights granted to everyone.
Libertarian liberals deny this, claiming that doing so would
24 Walzer (1983)
19
either violate more central rights of tax-payers or of health
care professionals. 25 They may regard enforced taxation for
the purpose of granting health care rights as a form of
forced labor. Likewise, forcing the medical profession to
provide health care services to all members of society has
been regarded as a significant infringement on their personal
liberty to treat whom they want.
Among those liberal theories that do support a right to
health care one can distinguish between two groups. On the
one hand there are those who claim that health care is a
right that follows from our more general obligation to
provide every citizen with a fair share of resources or what
Rawls has called "primary goods". The term refers to all-
purpose resources and privileges that would be desired by
those who knew what is typically required for pursuing a wide
variety of life-plans. 26 On the other hand are those who
claim that the nature of the obligation to provide health
care is different than the obligation to provide resources or
primary goods and should be prior to the rights following
from that obligation. The best example for this kind of
insulation of health care from other social goods was
developed by Norman Daniels. He argues that a right to health
care follows from our obligation to provide everybody with
25 Nozick (1974)
26 Dworkin (1993)
20
equal opportunities before we start distributing primary
goods or resources.27
All of these approaches have been criticized from wards
various perspectives, and I will not repeat these criticisms
here.28 Instead I want to put forward one particular kind of
criticism that appears to apply to all of the theories
surveyed above and offer my own suggestion how we could make
progress in clarifying our intuitions about justice in health
care by avoiding this problem. This kind of criticism also
provides us with some important concepts for how we should
think about the problem of preventing premature death and
disability specifically, and can explain why those
comprehensive theories of justice in health care which are
open to this criticism cannot give us a satisfying answer to
that problem.
What all the above theories share is the assumption that
our obligation to provide any particular form of health care
can only follow from a more general obligation to provide
other quite different forms of health care. Utilitarians
believe that obligations to provide any form of health care
could only follow from a quite general obligation to maximize
utility. Communitarians hold that the obligation to provide
27 Daniels (1985)
28 Buchanan (1983); Emanuel (1991)
21
any form of health care would follow from a general
obligation to share and express the values of a particular
community. Among liberals there are those who hold that
health care obligations are part of the obligations towards
assuring fairness in the distribution of resources and those
who argue they follow from our obligations to provide
everybody with equal opportunities.
I want to challenge this central assumption, namely that
all forms of health care are covered by one kind of
obligation, and will do so from a broadly Kantian point of
view. Instead, I claim that there is a specific type of
obligation concerning what I propose to term the central
functions of health care that is different from our
obligations with regard to other, non-central types of health
care.
None of the general obligations, derived from the other
theories, does justice to the reasons why, I believe, we have
a particular obligation to prevent premature death and
disability. Premature death prevention and the protection
against severe disability, I contend, are obligations we have
as part of respecting others as moral agents. Thus, avoiding
premature death and disability are the central functions of
health care, since they follow from an obligation more
important than utility considerations, the expression of
22
shared values, equality of opportunity, or fairness in
resources. For purposes of justice, therefore, we should not
regard health care as a single social good, and should regard
our obligations to provide everybody with the services needed
for the central functions of health care as prior to
providing any other set of services. For other functions of
health care there are other general obligations which provide
a more plausible reason to provide the corresponding health
care services.
It is often claimed that Kantian ethics lacks the
resources needed for practical ethics or "real life" policy
issues and it has been criticized as an empty formalism
devoid of defensible practical implications.2 Although I
think that this criticism has been successfully rebutted by
Kantian moral philosophers, it is somewhat surprising that in
the current Anglo-American debate about justice in health
care there exists so far no comprehensive Kantian theory of
just health care. Although my effort is not such a theory
either, it is guided by the conviction that Kant's moral
philosophy does have a lot to contribute to this debate. I
believe that broadly Kantian reasoning can help us to
understand the special moral importance of the obligation to
save lives from death and severe disability while it also
allows us to limit the costs of this central function of
29 Mill (1994)
23
health care in a principled way.
In looking at justice in health care from from a Kantian
point of view I also hope to stimulate the debate about how
Kantianism can be used to understand specific matters of
social justice. It has been been argued that Kantian ethics
provides the most secure foundation for liberalism. 30 The
question is, is it also capable of specifying reasonable
solutions to specific questions of justice such as justice in
health care. I believe it is.
30 Rosen (1994)
24
https://www.karllauterbach.de/wp-content/uploads/2019/07/dissertation/Chapter%202%20Kantian%20Ethics%20And%20The%20Functions%20Of%20Health%20Care.pdf
Chapter II: KANTIAN ETHICS AND THE FUNCTIONS OF HEALTH CARE
Kant's Ethical Theory
Kant offered three different formulations of the
categorical imperative which he considered to be the only
moral norm that all human beings must observe. 31 All three
express the same idea, albeit with different emphasis. The
following presentation is adapted from Sullivan: 32
Formula 1: Formula of Autonomy: "I ought never to act in such
a way that I could not also will that my maxim should be a
universal law."
Formula 2: Formula of Respect for the Dignity of Persons:
"Act so that you treat humanity, whether in your own person
or in that of any other, always as an end and never as a
means only."
Formula 3: Formula of Legislation for a Moral Community: "All
maxims that proceed from our law ought to
harmonize with a possible kingdom of ends as a kingdom
of nature."
31 Kant (1788)
32 Sullivan (1994)
25
For the purpose of my discussion it is not important if
the three formulations are exactly compatible or what the
limits of their application are. Instead I want to highlight
the key ideas behind them and apply them to the question of
just health care.
The first formulation expresses the idea that we should
not act in ways that are intended for reasons. that when
expressed as a principle, cannot be universalized. Killing,
violence, coercion, and deception are examples for actions
which cannot be universalized in that way. 33 This formula-
tion is particularly important for justifying the negative
rights that every human being should enjoy, such as freedom
from harm and interference.
But the first formulation does not only secure the
negative rights of people. It also is a compelling foundation
of the basic entitlements people have in any society and a
rejection of libertarianism, which denies such entitlements.
The argument is that a principle of nonbenevolence cannot
become a maxim that can be willed as a universal law. This is
so because it is part of the human condition that we are
vulnerable to diseases, accidents, impoverishments, and many
other threats to our agency as rational beings. We, in
principle, can at any time become dependent on the help of
33 O'Neill (1989)
26
others in order to pursue any rational goal at all, and would
will the help of others in such circumstances. Since we
cannot consistently will a principle of nonbenevolence and,
at the same time, understand this aspect of the human
condition, a principle of nonbenevolence cannot become a
universal law. It would involve us in a contradiction between
the willing of a principle and the willing which is natural
under circumstances when the principle is suposed to be
applied. From this follows that its opposite principle,
benevolence, must be regarded as a universal law. Since
diseases and accidents are typical threats to rational agency
for humans, any account of what follows from a law of
benevolence should justify at least the public provision of
some forms of health care.
However, for the purpose of applying Kantian ethics to
justice in health care the second formulation is equally or
even more instructive. According to Kant, respect for the
dignity of persons is considered to be an important justifi-
cation for the positive rights people enjoy. This comes from
their being rational agents, rather than from any other
contingent feature of themselves, a particular society, or
tradition. Positive rights include, among others, property
rights, freedom of expression, political participation,
welfare rights, and rights to mutual aid. As I will argue
34 O'Neill (1989); Herman (1993); Rosen (1994)
27
below, the second formulation also gives a direct justifi-
cation for securing access to some forms of health care
through public provision.
The third formulation concerns Kant's notion of an ideal
community in which there would only be free and equal
citizens.35 This is the most comprehensive way to express
Kant's ethics and has found wide application in the work of
John Rawls. To simplify, one may say that Rawls' work,
well as that by many other liberal political philosophers,
represents a comprehensive and explicit interpretation of
what it would mean to live in a community of free and equal
citizens, or as Kant would put it, in a Kingdom of Ends.
For my purposes this third formulation is somewhat less
important since I will not be concerned with an ideal
community or a complete set of just institutions. Formulation
1 and 2 both include the key idea on which I will build when
formulating the central functions of health care.
What do these formulations tell us about just health
care? In what follows I will argue that they imply:
a) We have an obligation to be concerned with at least some
aspects of our health and the health of others,
35 Sullivan (1994)
28
b) We should not make central aspects of the health of others
a means to fulfilling specific individual or communal
c) There are limits to our obligations to be concerned with
our health and the health of others, and
d) The different functions of health care are supported by
different kinds of obligations and principles.
Why Should We Be Concerned with our Health and the Health of others?
As explained above, the most obvious Kantian justifi-
cation for being concerned with the health of others is that
a principle of complete nonbenevolence cannot be universa-
lized for human beings who are rational and vulnerable from
internal and external causes.36 The first formulation above
is the basis for such a justification. I believe, however,
that the second formulation is a richer and more direct
source for an obligation to be concerned with the health of
others and of ourselves because of the direct importance of
health care for respecting others as rational agents.
36 O'Neill (1989)
29
To respect others as ends in themselves implies a
concern with sustaining their capacity for the kind of
reasoning and action which is constitutive of their status as
ends in themselves. We do not owe the same respect to animals
or lifeless objects because they are not capable of the same
kind of rational agency. What is distinctive about rational
agency in humans is that it not only includes the
satisfaction of the basic needs of survival or short term
goal-directed action, but also allows for the autonomous
choice of broader goals and life-plans. These broader goals
are often motivated by moral ideals about how we should live,
and for most people are an important source of finding
meaning in life. For humans, therefore, rational agency
always has the dimension of moral agency. I regard this moral
agency as the most distinctive and important characteristic
of human rational agency. In what follows, I will speak of
human beings as moral agents rather than rational agents,
putting emphasis on this part of rational agency as the
foundation of our dignity. All this, in turn, has broad
implications for the distribution of health care resources.
The key idea behind our obligation to make sacrifices
for the health care of others is this: It is inconsistent to
say that I respect a person as a moral agent and have no
concern for the kind of mental and physical functioning of
that person which is needed to sustain their moral agency.
30
And to have such a concern implies to be prepared to make a
sacrifice to sustain this functioning, since otherwise the
concern is not sincere.
Here we confront a critical difference between basic
mental and physical functioning and a person's happiness. I
can, without inconsistency, say that I respect a person as a
moral agent without having much of a direct concern for their
happiness, depending on the many reasons why that other
person might be unhappy. But to respect other human beings as
moral agents directly implies that we should also be
concerned with the conditions they need to be and to remain
moral agents. This is so because I cannot plausibly say that
I respect you as a moral agent only as long as you happen to
remain one. In particular, my concern with your basic
capabilities for moral agency may well have an impact on
whether or not you can continue to act as such an agent.
In our world this, in fact, is often the case. Small
sacrifices by ourselves often can sustain the moral agency
of others. I believe that any substantively plausible
interpretation of the second formulation of the categorical
imperative requires us to make such sacrifices. The same
holds for our own basic health, since as part of our self-
respect as moral agents we cannot plausibly be indifferent
about what sustains our own moral agency.
31
The respect for others as moral agents, however, also
implies that we should have an interest in their having
available a minimum of those other means which they need to
act as moral agents. Any pursuit of life plans is only
possible with a minimum of means such as income, education,
and other opportunities, means that Rawls has called "primary
goods". This is important since it implies, I will argue
below, that we are under a moral obligation not to exceed a
certain budget for health care.
Health Care and the Ends of the Individual and the Community
Respect for the dignity of moral agents further implies
that we should not reduce others to merely being the means
for fulfilling our, or the community's, ends. A comprehen-
sive interpretation of what it means not to do that, and the
implications of such a principle for limiting paternalistic
actions and actions intended to avoid great evil cannot be
attempted here. However, it is clearly impermissible, for
example, to harm others for the sake of personal happiness or
to advance the specific ideals of the community. Any such
harm would have to be justified by something of higher moral
importance, since in this sense the "right is prior to the
happiness it could good", as Rawls has stated it.
37 Rawls (1971)
32
For health care, this argument implies that the state,
for example, cannot unrestrictedly use the health care system
to maximize human happiness or welfare as it would appear to
be morally mandated by utilitarianism. A potential organ
donor, for example, may not be sacrificed for the health of
several potential recipients, even if this would maximize
utility. Not sacrificing the basic liberties of individuals
for community ends also rules out forms of eugenics, even if
such practices were part of the shared values of a particular
society. These are important arguments since they provide an
unconditional protection for individuals against being
sacrificed wrongfully through the health care system,
protections, which neither utilitarianism nor communitaria-
nism can provide.38
What I want to argue here, however, is that the non-
instrumentalization of others, as part of mutually respecting
our status as moral agents, also has implications for our
positive obligations in health care. It implies not only that
we should not cause harm for others in order to advance
personal or community projects in health care, but also that
we should not sacrifice the morally important positive
entitlements of individuals for such projects. It is incon-
sistent to argue that we should never impose even a slight
harm on an individual no matter how much happiness it could
38 Lyons (1994); Holmes (1989)
33
bring to the community, if at the same time we generally
allow individuals to die because we do not provide them with
the resources needed for health care, in order to spend them
instead to further our own happiness.
The restriction on harming others for our own ends can
easily be supposed to be stronger than the obligation to help
others in need, but this can be wrong. Harming others
intentionally cannot be universalized and is therefore not
permissible. Helping others in severe need is on the first
formulation only covered through a duty of mutual aid,
because we cannot consistently will principles of complete
non-benevolence. The principle of not willfully harming
others is a perfect obligation, meaning that it applies to
all individuals whom I meet. This is not the case for the
principle of benevolence, since I am not under an obligation
to help every single person I meet. This is so because I
cannot do this as human being with limited means. The
obligation of benevolence is, thus, an imperfect obligation,
since it does not always apply.
It is fallacious, however, to think, that a principle
that does not always apply is weaker than one that does
always apply in cases in which both principles apply. In such
instances, the obligation to help can be stronger than the
obligation not to harm, depending on the consequences the
34
failure to meet each of these obliagtions would have.
On this account of Kant's ethics, negligence with great
consequences to another individual can be a morally greater
wrong than causing more modest direct harm. I will argue
below that this interpretation of Kant's ethics is a
compelling account, on reflection, of how we conceive of our
obligations to others with regard to the fulfillment of the
basic needs of people and the basic liberties.
I cannot attempt here any discussion whether this
interpretation of Kant's ethics is one he would have endorsed
himself, and I, therefore, also do not assume this to be the
case. My aim is rather to show that the consequences of such
an interpretation are intuitively appealing and important for
justice in health care and would result from Kant's account
of moral reasoning. For health care this interpretation of
Kant's ethics istpractically very important because
implies that there may be some medical needs of others that
we cannot ignore for the sake of projects of the community or
ourselves. This includes projects that are neither hedonistic
nor self-interested, although these obviously come to mind.
It also includes projects of an explicitly moral status, such
as those that advance religious or secular perfectionist
ideals.
35
The Limits to Our Obligations
Respecting oneself and others equally as moral agents
implies that we cannot be under an obligation to sacrifice
our own moral agency for the sake of saving that of others
even above the level of functioning that would put our
survival at risk. The primary reason to prolong or improve
the life of others is to allow them to remain moral agents,
not survival per se. This means that we cannot be under an
obligation to reduce ourselves to the level of mere survival,
having sacrificed the means needed to function as moral
agents. There is, therefore, clearly a limit to what we as
individuals owe to others in order to meet the medical needs
that unmet would doom the potential beneficiary.
On the other hand, as discussions of our obligations for
mutual aid have shown, the sacrifices we can owe to others
can be quite substantial. An individual can indeed come
upon a situation where moral obligations rightfully demand
great sacrifices.
The limits of the sacrifices that we are under an
obligation to make is best expressed through Amartya Sen's
concept of "basic capabilities". 40 The basic capabilities
39 Herman (1993)
40 Sen (1992)
36
are a mixture of our internal functional characteristics as
individuals and the external means we command to function.
For meeting some of the morally most important medical needs.
of others we may appear to be obliged to make sacrifices to
the point where our own basic capabilities as moral agents
are threatened. This would clearly imply bad moral luck for
the individuals who have to make such sacrifices but would
not reduce them to anything less than full moral agents.
I will argue below that we are under an obligation to
live by a set of principles that distributes such sacrifices
in a fair way. This implies that we are under a moral obli-
gation to create institutions that on the one hand meet those
medical needs that are morally central, and on the other hand
avoid requiring individuals to make overly substantial
sacrifices.
If this effort is successful, it would imply the
important conclusion that we have moral obligations towards
both those who stand to receive the benefits of the central
functions of health care as well as towards those who
capable of making the sacrifices required to provide these
benefits. This would constrain the institutional design of
this part of health care because it would limit, based on
justice, the extent to which we could pursue utilitarian or
perfectionist points of view. It will turn out that our
37
obligation to provide others with the health care they need
to function as moral agents has unexpected and wide-ranging
implications for socio-economic justice in society.
Different Kinds of Health Care are Covered by Different Obligations
The last conclusion I want to draw from my interpre-
tation of Kant's ethics is that we do not have the same kind
of obligation to support morally peripheral medical needs
that we have for morally central needs. I regard as central
that which underlies our functioning as moral agents, and
define peripheral health care needs as those that concern the
quality of functioning that is clearly above the level of
functioning which allows us to act as moral agents. The
distinction is socially constructed, as it needs to be to
take into account important differences in the functional
requirements for moral agency in different cultures and
socio-economic contexts. This is a point to which I will
return when I define moral agency in more detail below.
An example of a peripheral need is the desire for
cosmetic surgery in order to look younger in a society that
places some value on looking young. If one looks older, some
life-plans may not be available in such a society. But the
remaining available range of plans may well be broad enough
38
to not justify any entitlement to surgical intervention. That
is, we may generally understand ourselves as respecting
others as moral agents without being prepared to make
sacrifices to provide others with cosmetic surgery against
the signs of aging.
From a moral point of view, the peripheral functions of
health care clearly have a lower priority than the central
functions of health care. This is so even if, as is
frequently the case, some individual's desire for some of the
peripheral functions of health care is stronger than their
desire for the central functions. We do not owe others health
care because they desire it but because they need it to
remain functioning moral agents. This rules out a direct
obligation to provide them with those services that
constitute peripheral functions.
How should we provide those peripheral functions? Their
fair distribution should be taken care of by insuring every-
one a fair share of resources or of Rawlsian primary goods.
But since even a fair distribution of resources or of primary
goods would not address all of the important morally arbi-
trary comparative differences in life prospects between
people, those who face premature death or disability have
further entitlements. These, from a Kantian point of view,
have their foundation in what it means to respect people with
39
whom we interact as moral agents.
Moral Agency and Capabilities
I now come back to the claim I made above, that there
are two distinct functions of health care which we should
separate for moral reasons. I argued that we cannot, when we
interact with others, consistently hold that we respect them
as moral agents without at least having some concern about
their survival, or their risk of becoming severely disabled,
either mentally or physically, and that this should guide the
definition of the central functions of health care. What does
it exactly mean to be a moral agent and how can this
definition be used to define the central functions of health
care?
What it practically means to respect others as moral
agents cannot be deduced from any definition of the term
moral agency or from linguistic analysis. Even if it were
possible to use such means of analysis to establish the
correctness of the Kantian categorical imperative (another
matter beyond the scope of this effort), such an analysis
would not decide about how that imperative should be applied
in a specific case. Such applications always are a matter of
interpretation rather than deduction and rely in part on
40
information about the context of their application.41
In that spirit I want to make a proposal about how we
should conceptualize the notion of respecting others as moral
agents in the context of the circumstances of: 1) very large
differences in health and life-expectancy, 2) a distribution
of income that would be fair if no differences in health
existed, and 3) limited resources so that we cannot afford to
eliminate all of the differences among individuals in health
status and life-expectancy.
The first step in this interpretation is that respecting
others as moral agents means respecting others for their
capacity to make autonomous moral choices, and not because
they might advance some specific ideals of the good. Beings
that are not capable of making such choices we are not
supposed to treat as ends in themselves, such as animals. To
treat animals respectfully involves e.g. that we do not
inflict pain or discomfort on them without appropriate
reasons. But it does not involve that we respect the choices
that they make about their lives. Thus the kind of choices
that it is particularly important for us to allow other human
beings to make for themselves, are moral choices. Such
choices are distinctively human. We cannot even conceive of
human beings without at the same time conceiving of them as
41 O'Neill (1989)
41
individuals who can make choices with a moral component.
Moral agency is not an empirical concept, since it
involves a perspective that can only be approached by an
interpretation of what actions mean to the subject involved.
It presupposes intentionality, meaning that someone (at least
potentially) at perceives a choice as a free choice, and
furthermore as a choice with normative implications. For this
reason it is not possible to give a purely biological or
psychological interpretation of moral agency. Moral agency
cannot be equated with a certain mode of brain functioning or
physical functioning in the absence of an interpretation of
what that brain functioning or physical functioning
signifies. We, therefore, need to refer to commonly used
criteria to determine if someone is a moral agent in everyday
life rather than trying to derive the meaning of moral agency
from biology or psychology.
What I conceive of as a typical moral agent is a human
being who self-consciously pursues an ideal of the good life.
Although moral agency involves many choices with limited
scope and impact, such as helping someone in need or simply
going to a movie, these limited choices are best interpreted
as constitutive of a larger narrative which I propose, fol-
lowing Rawls, to call "the ideal of the good" of an
42
individual. The paradigm case of moral agency is the pursuit
of such ideals of the good over a normal life-time. What
counts as an ideal of the good or as a normal life-time is
again a matter of interpretation that is only possible in a
specific context. But, I contend, it is part of our notion
of human beings per se to conceive of them as beings that
pursue life-plans, which are constitutive of their moral
agency and rationality.
However, the notion of the value of having individuals
choose and pursue ideals of the good should not be regarded
as such an ideal itself. Moreover, the construction of
justice in health care I am attempting here should not
seen as contingent on the acceptance of any such specific
ideal. To use O'Neill's terminology, to conceive of others as
moral agents is not an idealization of human beings but just
an abstraction. The liberalism that follows from such a
construction is not dependent on a specific ideal of how to
live (such as the ideal of "autonomy"), nor on a political
compromise between such ideals. It rather puts constraints of
reason on the use to which alternative moral ideals of the
good can be employed in the political realm. The specific
constraint in question here is that ideals of the good cannot
be used to justify institutions that allow certain avoidable
threats to the moral agency of some to persist, since the
justification of such institutions would be inconsistent with
43
the mutual respect of moral agents.
One must be careful not to confuse the typical charac-
teristics of a moral agent and moral agency itself. For
example, a minimum life-expectancy may be necessary to be
regarded as a typical moral agent, but to live that long is
not automatically to be a moral agent. Thus, despite a normal
life-span, moral agency may not be possible in the face of
severe mental retardation. Also, if someone can conceive of
ideals of the good but, through severe poverty, does not have
the means to live them, she also cannot be regarded as
fully-functioning moral agent. Thus, moral agency involves
internal and external requirements, requirements about the
person and her circumstances.
I believe a promising way to conceptualize moral agency
is provided by Sen's notion of "capability", although the
concept seems to be quite complex. 42 The space of capabili-
ties is defined through the so-called "functionings" that an
individual actually can achieve. Such possible functionings
include those that actually are achieved, as well as those
which could be achieved given the personal characteristics,
situation, and means of the individual. The functionings
themselves may be further grouped into the two broad
categories of well-being and agency. Thus, there can be four
42 Sen (1985), (1992); Nussbaum & Sen (1992)
44
forms of functionings: well-being and agency functionings as
achieved and well-being and agency functionings as freedoms
ro achieve. The ability to function as a moral agent may then
be thought of as involving a particular important subset of
functionings. this subset of functionings constitutes the
freedom to choose and pursuer ideals of the good and includes
well-being functionings as well as agency functionings.
Important well-being functionings may include freedom from
pain or discomfort, mental health, and being well-nourished.
Agency functionings may include the physical, emotional, and
cognitive ability to choose and to pursue such ideals how to
live like doing meaningful work, making friends, establishing
a family, and participating in culture and politics.
The focus on functionings rather than income or
resources allows us to see the different effects the same
income, resources, or Rawlsian "primary goods" can have on
different human beings, including those with different
genetic endowments or disadvantages incurred earlier in life.
For example, a person who is mentally retarded does not have
the same level of capabilities that a person without such a
handicap has, even if both enjoy the same level of resources
of income. Differences in capability can be the result of
many reasons, not all related to health. Thus, a person with
better education may have a higher level of capabilities than
a person with the same resources but little education.
45
The value of mny functionings cearly depends on the
ideal of the good that a person has chosen or may choose.
Only the lack of the most general functionings should count
as morally significant disadvantages for the puropose of
conceptualizing moral agency. These are the kind of function-
ings one needs to have in order to choose among a variety of
ideals of the good and to pursue them, rather than the
functionings which are specific to some particular ideals of
the good.
To illustrate that point, consider someone with a high
level of achieved functionings and freedom functionings,
which in this case depend for their value on the ideal of the
good the person has chosen. Such a person, for purposes of
justice, may be more disadvantaged than someone who has
achieved less and is free to achieve less from the
perspective of the ideal of the good life he has chosen,if
the second invididual could, in contrast to the first, also
have substantive achievements in case th she adopted other
ideals of how to live. To give a specific example, for
purposes of justice, what do we owe in the way of health care
support to a happy and successful wheelchair-bound
mathematician compared to an unhappy limping, uneducated, and
unsuccessful factory worker? Suppose they enjoy comparable
total sets of achieved functionings (although achieved
functionings do not seem to be easily comparable), since the
46
mathematician enjoys highly valuable and sophisticated
special functionings, whereas the factory worker has a wider
range of more basic funtionings available.
I argued that for justice in health care we should
be concerned with maintaining or restoring each individual's
capacity to formulate and implement a broad range of life
plans. This would imply that the mathematician in the
wheelchair should have greater health care entitlements than
the limping factory worker, since the former suffers a more
significant restriction on his moral agency. In Sen's terms,
we shold regard him to be more entitled to health care since
he has lost more basic capabilities.
If this analysis of the space of capabilities does
not interpret this difficult concept, it seeems to me
possible to conceptualize moral agency in the following way:
To have, as a matter of fact, that level of
capability, that allows one to choose and pursue ideals
of the good.
Capabilitiey levels are determined by a mixture of
internal and external characteristics of a person. Part of
the external characteristics is the level of resources and
income a person enjoys and whether the basic liberties are
47
available. If a just distribution of these external
characteristics has been achieved in society, no one would
fail to be a moral agent as long as they are not internally
handicapped. Such internal handicaps concern the functional
characteristics of a person, such as his mental and physical
health and his life-expectancy. A person's health or life-
excpectancy can be such that the ideals of the good that are
commonly puersued in society are not open, even with an
otherwise fair share of resources of income. Some-one's
disadvantages may be so great that no amount of additional
resoures or income would permit them to make such choices.
In a society with a fair distribution of resources and
income those with such internal limitations on their capabi-
lities may be the only group which does not achieve full
moral agency. This is the case in a society in which the dis-
tribution of resources, income, or primary goods allows those
members of the least advantaged socio-economic group who are
not internally handicapped at least that level of resources
which is adequate to pursue some of the ideals of the good
that are typically pursued in such a society. For example, in
a society in which having a family with children and being
able to choose among a varietly of employments are typical
ideals of the good, the question is whether or not the
members of the lowest socio-economic group de fact have such
a choive. If this is the case, their moral agency appears not
48
to be impaired since they have the necessary capability
level. If in contrast they have to accept any forms of
employment and risk starvation if unemployed then full moral
agency would not yet be achieved for this group.
In the United States, Germany and other democratic
industrialized countries, most external limitations on moral
agency have been overcome even for the socio-economically
worst-off groups. This is certainly the case for the other
West Euopean countries, since they have put in place large
welfare systems. In these countries, as well as in Canada,
Japan, New Zealand, and Australia, only those with internal
limitations on their most basic capabilities do not enjoy
full moral agency. In the next chapter I will argue that the
central forms of health care, to use Daniel' phrase, are a
"special social good", which are in moral importance
comparable to the basic liberties and basic welfare. These
special goods we owe to others as part of respecting them as
moral agents, rather than as a matter of distributive
justice. I will then turn to the implication of the status
of central care for its total budget.
[Satzfehler behoben. Van]
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CHAPTER III
CENTRAL HEALTH CARE AS A SPECIAL SOCIAL GOOD IN THE FACE OF FINITE RESOURCES
From a Kantian point of view one can argue that together
with the basic liberties and the level of resources of the
least well-off socio-economic groups, those functions of
health care which protect or restore moral agency are the
most important social good. As such they should be insulated
against trade-offs with other social goods such as the econo-
mic goals of a society. In different ways, the basic liber-
ties, basic welfare, and the central forms of health care all
protect those capabilities that are constitutive of our moral
agency. Therefore, they should the primary focus for
constructing just institutions in society. Otherwise we have
to live with institutions that do not embody universalizable
principles and mutual respect as moral agents.
The basic liberties, basic welfare, and the central
functions of health care do have a long tradition of being
insulated against other considerations such as improving
average welfare. This intuitively compelling insulation is
49
50
very difficult to accommodate within utilitarian or
communitarian theories of justice.43 In such theories,
rights are either reduced to their instrumental value, for
maximizing the welfare of society, or seen as fulfilling a
particular society's ideal of the good. In contrast, we often
intuitively think that these rights have an important non-
instrumental and non-contextual value. My suggestion here
is that such insulation is rooted in the immediate and direct
threat that the violation of such rights implies for
individual's moral agency. The functions of the basic
liberties and welfare entitlements, as well as those
functions of health care that protect our morally most
significant capabilities, are in that respect similar.
Suppose we do grant that these social goods are morally
special because they protect our status as moral agents. This
does not imply that the social goods that are less central,
are not morally important. For example, consider resources
beyond the minimum level such as a maximally unconstrained
freedom of speech, or an entitlement to the most extensive
potentially beneficial education. The absence of any of these
social goods does not reduce someone to being less than a
full moral agent. Still they do contribute to capabilities in
a way that extends the range of ideals of the good one could
43 Daniels (1985)
44 Scheffler (1988); Lyons (1994)
51
enjoy. Thus, capabilities. cannot be regarded as a non-
continuous step-function. Moral agency, in contrast, is to be
understood as a step function, in a sense. At a certain level
of capabilities, a person becomes able to pursue the ideals
of the good that are typical of its society. This threshold
level is somewhat different from society to society because,
for example, it takes different life-expectancies in diffe-
rent societies to pursue the ideals of the good typical for
it. Any threshold we define as the goal at which protecting
moral agency should be targeted will, therefore, be somewhat
arbitrary, and achievements above that goal are also always
morally important.
To say that some forms of health care are not part of
the central functions of health care means that not all forms
of health care are a special social good. Likewise, not all
income is a special social good, but minimum income is. And
the basic liberties are special, whereas maximally extensive
liberties cannot plausibly be regarded as more important than
minimum health care or income.
This ranking of social goods does have important
implications for justice in health care. First, it is
normally not acceptable to spend so much on the non-central
health care that the resources of the worst-off socio-
52
economic groups fall below the level which is necessary for
them to pursue typical ideals of the good in society. Thus,
basic welfare support is more important than some forms of
health care. This is a key argument for avoiding having
health care become an entitlement which takes up all of our
resources. To spend money on the peripheral functions of
health care, at the expense of neglecting the welfare of the
poor, is like improving the socio-economic status of the
better-off at the expense of the central health care of those
who are in need of it.
We should, therefore, neither see health care as an
unrestricted social good we can use in order to maximize
utility in society, nor as an unrestricted means toward the
fulfillment of the ideals of the good that the majority in
society pursues. The central functions of health care should
rather be seen as a necessary component of any just society
that can afford to provide them, no matter what specific
ideals of the good are pursued by the majority.
However, recognizing that the central functions of
health care are a special social good does not imply that an
individual has an unlimited entitlement to health care in
order to preserve their moral agency. This would imply that
such a person is prepared to reduce others to merely being
the means to achieve their ends. It could imply, for example,
53
that someone would sacrifice the external means of the basic
capabilities of others in order to save their own internal
means. Such an intention is not compatible with respecting
others as moral agents.
It is, therefore, crucial to provide an interpretation
of what it could mean to require others to make substantial
sacrifices for saving one's own moral agency without thereby
reducing them to being the means toward our ends. On a
societal level, it must be possible to limit, in a principled
way, the costs we have to shoulder in order to be able to say
we have discharged the obligation of respecting all
citizens as moral agents through making the central functions
of health care available to all citizens. This is a difficult
task since, as I have argued in the first chapter, the moral
agency of some cannot be saved regardless of how much we as a
society would decide to spend on health care.
The Bottomless Pit Objection
The most serious objection against insulating the
morally central functions of health care from being traded
against other social goods is indeed that this might require
us to spend almost unlimited resources on health care. This
54
would make our lives long and safe but impoverished.45 How
can we prevent health care from becoming, to use Daniels'
term, a "bottomless pit", 46 while at the same time
recognizing that any just society must make some sacrifices
to protect the moral agency of its citizens? How can the
ideal of justice with respect to the central functions of
health care meet this constraint of feasibility?
Before I address the bottomless pit objection for health
care directly, I want to note that a similar objection can be
raised against the widely supported insulation of the basic
liberties from such trade-offs. The state is commonly assumed
to be under an obligation to protect the basic liberties of
people. This is acknowledged even by libertarians who want to
reduce the role of the state to that of a "nightwatchman".47
But how much should the state spend for meeting this
obligation? It is clear, for example, that with more law
enforcement or national defense spending we could protect the
basic liberties of some individuals better than we do now.
It is possible that in the future spending on internal
and external security could become more expensive than health
care at least in some societies. Because of increased threats
45 Buchanan (1983); Dworkin (1993)
46 Daniels (1981)
47 Nozick (1974)
55
from wars, terrorism or civil unrest, potentially useful
expenditures could increase limitlessly. Thus, the bottomless
pit objection does not seem to me to be a problem specific to
health care.
For our time, however, the bottomless pit objection is
clearly more relevant to the central functions of health care
than to the basic liberties or welfare. There already is an
almost unlimited potential for spending money on health care
to avoid the premature loss of moral agency through health
care. But going from this fact to a bottomless pit claim
depends on the following specific unspoken assumption: If we
have a moral obligation, we are under this obligation until
we have done everything we can to fulfill it. I think that
this assumption can be challenged on grounds of impartiality.
My suggestion is that we have the potential to agree on
interpretation on what it means to respect others as moral
agents that also specifies the limits on our obligations.
Moreover, these limits do not have to lead back to the trade-
offs between saving lives and more peripheral social goods
which, I argued, are objectionable.
Limits on an individual's obligations to provide others
with health care are here analyzed under the assumption that
the individual is living a reasonable life in a just society.
This implies, for example, that the limited life-expectancy
56
or health of those whom we should support are not the result
of some external factors that we could object to, such as the
exploitation by others, or the willful self-inflicted des-
truction of health. In such a situation, our duty to invest
into their health as part of respecting them as moral agents
can be diminished. An individual who is living in a just
society, meeting the undiminished maximum claims by those who
stand to lose their moral agency, can also not be expected to
sacrifice her own moral agency to save that of another
person. This is so because there cannot be an impartial
justification for the claim that she should regard her own
moral agency as less important than that of another person.
the person, who without the first person making such a
sacrifice, has to die cannot make an impartial Kantian
argument that she should be given whatever is required for
her to remain a moral agent, since she also has to respect
the potential giver as a moral agent.
On reflection, this Kantian interpretation of
impartiality seems highly plausible. Contrast it with a
utilitarian interpretation of impartiality. For a
utilitarian, such a sacrifice may be morally required in
certain circumstances. For example, suppose the potential
recipient is a great contributor to society's utility,
whereas the potential sacrificer contributes very little. Yet
most people find such a conclusion repugnant.
57
The Kantian explanation for this intuitive judgement is
that our interest in the survival of others is neither to
insure survival per se nor to achieve utility maximization,
but to allow everyone the pursuit of ideals of the good. To
sacrifice one person's capabilities to pursue such ideals in
order to save those capabilities in another person is to fail
to respect the former as a moral agent and to reduce them to
the means of providing something for someone else.
This limitation is subject itself to reasonable
qualifications. The second person could perhaps require the
first to make sacrifices that temporarily reduced them below
that level of income or resources needed to pursue various
ideals of the good. Similarly, I believe we plausibly can
infringe on a person's basic liberty in some slight way to
save another person's life, contrary to what Kant appears to
have argued about such cases. But the basic argument clearly
rules out long or permanent severe deprivations. For example,
if someone, through making a large sacrifice would be perma-
nently so impoverished that he could not hope to ever
establish a family, to raise and educate his children, or to
pursue any other commonly accepted ideal of the good, he does
not appear to be under an obligation to make such a sacrifice
even in cases where it would save another person's life.
This may at first appear as an unjustifiable
58
restriction on the maximum sacrifice a person may be required
to make to save another person's life. But since the reason
we have to sustain the life of others is to sustain their
moral agency,leno individual can justify a demand for a
sacrifice that would put significant and permanent external
limits on someone else's moral agency in order to have the
internal limitations on their own moral agency removed. This,
again, would imply that the moral agency of the sacrificer is
not adequately respected. On the other hand, a sacrifice up
to the point where moral agency becomes impaired does appear
justified. In any just society, one has an entitlement to the
amount of income equal to the threshold level which is
adequate, given that such an entitlement can be provided for
everyone, but not automatically to more than that if sacri-
fices are needed to meet categorical obligations we have
towards others.
An additional factor that needs to be considered here is
the effectiveness of potential sacrifices. I have so far
implicitly assumed that one person could, through their
sacrifice, restore another person who is in need back to full
moral agency. The sacrifice could, however, be extremely
ineffective, restoring the other person only to a fraction of
typical moral agency by allowing only a couple of weeks of
additional survival, for example.
59
than simi From an impartial perspective, the effectiveness of
a sacrifice does seem to have moral significance. It would
not be defensible to require at least a very large sacrifice
for very little gain. For example, we could not reduce the
level of resources of a socio-economic group by 50 percent of
its original level-- all the way to the minimum threshold for
several decades-- in order to allow a single person to
function as a moral agent for an additional day. The point is
that moral agency gets its importance from its relationship
to the pursuit of ideals of the good. It is not a clearly
defined mode of human functioning which is either achieved or
not, although there is some threshold level involved since it
requires adequate functioning for an adequate life-expect-
ancy, which again depends on the life-plans typical for a
society. An additional day in a typical life does not allow
for a larger set of life-plans. Thus, the posited huge
sacrifice does not really add any significant capabilities to
the recipient's life.
What a morally significant gain in capabilities is
depends on the specific features of a society and cannot be
specified in advance for all just societies. For example, in
a society in which most ideals of the good are limited to
young people, where aging is dreaded and the old see little
meaning in life, sacrifices by older people, as well as gains
by older people, may be impartially less morally significant
60
than similar gains or losses in younger people.
Not all the societies that focus on the young would, of
course, impartially have to be considered just. If aging is
considered to be meaningless or dreaded, this may have
produced pattern of discrimination and neglect of older
people. From a Kantian perspective, it would be important to
know whether the old people actually did have an opportunity
to develop ideals of the good that included a meaningful old
age. If this were not the case, the resulting distribution of
ideals of the good among various ages would not be a morally
privileged starting point for deliberating what kind of
sacrifices and gains in survival or resources are impartially
justifiable.
To give another example, suppose the majority in a
society, for religious reasons, favoured survival into old
age and an ascetic life-style. An oppressed minority,
however, preferred ideals of the good that favored higher
investments in education and consumption. In such circumstances,
discounting sacrifices of those who are
younger, and highly valuing even small gains in survival for
the old, may not be impartially justifiable. For this would
mean that the relatively powerless minority could not realize
its own ideals of the good through culture and politics.
61
From this discussion we can synthesize the following
parameters that should influence how much an individual can
be expected to sacrifice in order to save the moral agency of
others in any just society:
1. The distribution of ideals of the good pursued in a
sacrisociety and how this came about.
2. The life-expectancy which is generally accepted as
necessary for pursuing these ideals.
3. The minimum level of resources needed to pursue some of
these ideals in the absence of internal limits on basic
to a capabilities.
4. The current and future level of resources of potential
sacrificers.
5. The effectiveness of the sacrifice, including how many
other persons have to make a sacrifice of the same
magnitude in order to help one other person.
The maximum justifiable sacrifice in any just society is
then defined as that sacrifice which would reduce the level
of resources of the sacrificer from its current level to the
62
minimum acceptable level. This does, on the level of society,
give a first principled answer to the bottomless pit-
objection. The point is that even if we could potentially
spend an unlimited amount to save the moral agency of a
single person, in any just society a person does not have an
unlimited claim. The claim comes to a halt when the
sacrifices made by society reduces the level of resources of
at least one other person below the minimum level needed to
maintain moral agency.
This analysis thus also implies that, in a just society,
those who are threatened by premature death cannot require
the sacrifice of the moral agency of even a single individual
to save their own. To proceed otherwise would lead us into a
trade-off among moral agency of various persons, where one
person is sacrificed to save others. To take moral agency
seriously and not to make others the means to our ends means
that such trade-offs are not permissible. Thus, regardless of
the number of those whose moral agency is threatened by death
or severe disability, we do have a limit for how much any one
individual can appropriately be required to sacrifice to
provide even the central functions of health care to others.
I will now turn to the economic context in which the
maximum sacrifices that an individual can be impartially
63
expected to endure and derive the implications of the
obligations of individuals to contribute to the central
health care of others for the total budget. A just society is
characterized, among other things, by a fair distribution of
resources, a political process and public culture that allow
all groups in society to express and advance their ideals of
the good, and a public awareness of the legitimacy of
existing institutions. A fair distribution of income implies
that the worst-off socio-economic groups have available at
least that level of resources which is needed to choose and
pursue a reasonable range of the ideals of the good in that
society, including full political participation. Note that I
do not here assume that the distribution of income also has
to fulfill Rawls' difference principle, i.e. that the
distribution of income should be such that it raises (in
Pareto-improvement steps) the income level of the socio-
economically worst-off to the highest possible level.
If there were no differences in internal limitations on
the basic capabilities, further redistributions of income
would, in a just society, not be justified. But since there
are such differences, we are under an obligation to sacrifice
part of our fair share of income. For those who are close to
or at the minimum level of income needed to have an adequate
range of life-plans, no further sacrifices can be demanded.
But even for those who are better off there are limits on the
64
potentially justifiable sacrifices such that they might not
even be under an obligation to reduce themselves to the
minimum level.
To the extent that the higher share of income of those
who have it, can be considered just, it must an
impartial justification. The most important such justifi-
cation is that such inequalities in income in any existing
just society benefit the socio-economically worst-off
group.48 This is so because of the efficiency gains for the
economy which are made possible through the incentive effects
of the possibility of a higher than average income. If the
better-off would consistently have to reduce themselves to
the minimum adequate income level to help the worst-off, this
would impair the absolute capabilities and ultimately the
status as moral agents of the worst-off, in a way that
overshadowed any gain to them that this sacrifice produced.
This implies that the better-off cannot be under an
obligation to always reduce themselves to the minimum income
level, since such a principle would imply a lack of concern.
for the status as moral agents of the worst-off. Still, they
are clearly under an obligation to make substantial sacri-
fices if by doing so those who depend on these sacrifices can
become full moral agents. It appears that they are under an
48 Rawls (1971)
65
obligation to make that sacrifice which would reduce their
income to the level where doing any more would have a
negative impact on efficiency that in turn would reduce the
worst-off below the level of adequate income.
The claim made here is not that the better-off are under
an obligation to not sacrifice slightly more than the amount
just described. Indeed, it might be virtuous for them to do
just that, since their sacrifice might not have a negative
impact on the status of the worst-off when it is made
voluntarily. The claim is rather that a greater sacrifice
cannot be demanded of them, since this, if generalized as a
principle, by definition would reduce the worst-off to being
less than moral agents.
If the better-off would voluntarily sacrifce a lot more
than what they are obliged to sacrifice, they might actually
put the worst-off at risk. This could be so because of macro-
economic reasons, such as the need for consumption of goods.
not related to health care in order to make those investments
that allow the economy to grow or, at least, to remain
productive.
I also do not think that the institutionalization of
justice in health care should rely on individuals going
through these considerations, and then making the appropriate
66
sacrifice. All I argue is that this justification of the
determination of who should sacrifice how much for saving
others is compelling. If this is the case, institutions may
be designed that enforce such sacrifices and can be
considered as legitimate.
My analysis in a sense extends Rawls' difference
principle in a world in which there are large differences in
health status. It implies that there are claims for funding
health care that limit everyone's income. As a result, when
there are large health care needs, the income of the socio-
economically worst-off should not be much more than adequate
and that of the better-off should not be higher than what is
needed for incentive reasons to maintain the worst-off at the
adequate level. This is the only way we can take seriously
our obligation to help those who are threatened by premature
death and disability and, at the same time, not sacrifice
anyone inappropriately. The need to take into account the
negative impact on the worst-off of less unequal distribution
of income answers the bottomless pit objection.
My analysis does require that the income differences
between the better-off and the worst-off should be minimized
and that the socio-economically worst-off group should not do
much better than what is needed for them to have an adequate
range of life-plans available. This is so that there are as
67
many resources as possible available to help the really
worst-off, namely those with short life-spans and severe
disabilities. It is of interest to observe that even if one
rejects Rawls' difference principle in the absence of such
differences in health status, taking these differences
seriously from a Kantian point of view moves one toward
accepting a distribution of income which is quite Rawlsian.
However, now the focus is on maximizing the prospects of
those with inadequate health rather than the prospects of the
socio-economically worst-off. The socio-economically worst-
off, however, provide an anchor for total spending on health
care, since they cannot be deprived of income below what they
require to remain full moral agents.
I will now consider a possible objection to my analysis,
namely that my proposal cannot be impartially justified
because it would not be accepted from behind a veil of
ignorance. I explained that I did not use a veil of ignorance
to develop my proposal because such a veil would either be
too thick; not allowing us enough information on the
distribution and consequences of disease and the costs of
their care, or too thin; not justifying the choices that may
result from its use as impartially just.
To support this latter claim I want to consider a theory
68
of just health care offered by Ronald Dworkin.49 In it, he
tries to solve the bottomless pit objection through using a
thin veil of ignorance, and as a result his solution differs
substantially from mine. This in turn helps us see why a thin
veil really does no useful philosophical work.
Dworkin rejects the kind of special status for any form
of health care that I proposed for the central functions of
health care. He argues that the total budget for, and the
distribution of health care resources, are fair if everyone
gets at least the amount of health insurance that would be
chosen by a representative individual having a fair income
share, complete knowledge about the current state of medical
care (including the cost-effectiveness of the available
procedures and the incidence and prevalence of all diseases),
but lacking any knowledge of their own genetic dispositions.
The representative chooser is then asked how much of their
resources and for what kind of health care services she would
spend, using the values and ideals of the good that
currently hold.
This approach, which was called the "prudential
allocation approach" by Brock, attempts to construct
impartial fairness from prudential considerations. It leads
us to impartiality through blinding the representative
49 Dworkin (1993)
69
choosers about their identity. 50 It differs from traditional
Kantian ethics among other things in that it takes prudence
as the starting point to construct social justice, although
it does not regard prudence as a substitute for justice. The
same method of reasoning was useed before by Daniels in order
to ascertain a just distribution of health care resources
between different age groups. 61
Behind Dworkin's veil, the choosers have to make a
choice that is prudential given the comprehensive ideals of
the good they accept. Thus, Dworkin does not specify the
concerns he expects people to have when they decide on the
amount and type of insurance to purchase. In fact, such a
proposal would yield quite different insurance packages for
different people, in different societies, even with the same
amounts of resources being available. This is so because what
it is prudent to do would, at least partly, depend on what
ideals of the good are accepted. Moreover, as I argued above,
not all of the resulting budgets and distributions would be
fair, as demonstrated in the example of the age-discrimi-
nating society.
I am in general skeptical about the success of
approaches that try to construct impartiality from prudence
50 Brock (1986)
51 Daniels (1985), (1988)
70
or rational self-interest. First, to model moral motivations
through non-moral motivation is theoretically unnecessary
since moral motivation is universally available to all of
those who can be moved at all by moral concerns. There is no
compelling philosophical argument available that could by
necessity morally motivate an amoralist 52 and reference to
explicitly moral rather than self-interested reasons may
better motivate most individuals to act morally. 53 Secondly,
such an argumentative strategy seems to be misleading, as
was pointed out by Scanlon and Barry. 54 A prudential choice,
made not knowing one's identity, may not carry moral weight
as a heuristic metaphor for constructing social justice. We
may afterall plausibly ask ourselves why we should be morally
bound by what we would have chosen *for* *us* if we had less
information about ourselves than we actually do now.
But these methological points are not my only
concerns. Suppose a determinate prudential solution is
possible, and that every citizen has an insurance package
which it would have been prudent for them to buy from an
average income, having no knowledge about their own risks.
Even then we would have a group of people who are still
threatened by premature death and disabilitly. Some of them
52 Scanlon (1982); Nagel (1991); Williams (1985)
53 Nagel (1991)
54 Scanlon (1982); Barry 1989)
71
will need services against which they have not taken out
insurance, for example because they have very rare or unknown
diseases. Or they may need services that are relatively
expensive and insurance would not have appeared prudent.
In such a situation, everyone has a fair share of income
and some health insurance. But there is still the group of
those who, through further sacrifices of others, could be
spared their loss of moral agency. We are again faced with
the possibility that we could further reduce the number of
those who lose their status as moral agents yet we are not
prepared to make further sacrifices that would not put anyone
else's moral agency at risk. If we take out obligation to
respect others as moral agents seriously, I would argue, we
need to make these sacrifices up to that point where the
worst-off are reduced to the minimally acceptable income
level.
As a matter of fact, the sacrifices we might be demanded
to make include giving up some of the insurance we would have
taken out from behind the weil of ignorance. We might have
prudently taken out generous life-prolonging care for older
age, but we now recognize that the opportunity costs of
having such protection is to allow others to die who have not
had any chance to fulfill their life-plans. To say that they
72
would not have taken out insurance before against the
conditions that now shorten their life now, does not diminish
the obligation we have when we encounter them as fellow moral
agents whom we could save.
From a Kantian point of view, this result should not be
surprising. It is inconsistent to will that everyone
should have the kind of insurance that would prudently have been
chosen having an average income when, at the same time, we
know that this insurance will not always rescue us from the
loss of any functioning as a moral agent. For such a
situation we would will the help of others. The prudential
allocation principle, thus, does not appear to pass the test
provided by the interpretation of the categorical imperative
I offered, in which rational agency is a matter of having the
minimum capabilities to pursue typical ideals of the good in
a society. Dworkin's solution to the bottomless pit objection
is essentially an attempt to make health insurance part of a
fair distribution of income, without in any way taking
account of the special status of the central functions of
health care.
The insulation of health care from the distribution of
income is also an important principle of Daniels' theory of
just health care which has influenced my proposal in many
ways. Daniels regards health care as an entitlement every
73
individual should have regardless of their share in income in
order to ascertain equality of opportunity. Opportunity is
broadly construed by Daniels and like capabilities focuses on
the life-plans people can choose and execute. However,
Danieals does not commit himself explicitly to Rawls' reasons
for establishing why equality of opportunity is morally
important. He only claims that his account of justice in
health care are should be appealing to any general theory of
justice that acknowledges a principle of equiality of
opportunity.
The central difference between this way of distributing
health care and my own proposal is that I tried to offer an
argument why everyone should have an adequate amount of
capabilities rather than an equal amount of opportunities to
pursue life-plans from a Kantian point of view. Kant's ethics
does not support the idea that everyone should have an equal
opportunity of pursuing life-plans since we can respect
others as moral agents without making large sacrifices to
broaden their choices beyond an adequate range. There is also
no need to refer to the notion of "species typical
functioning" Daniels uses in order to determine our
obligations to provide others with health care. If others do
have an adequate range of ideals of the good available, why
should we be under an obligation to provide them with health
care that additionally restores them to species typical
74
functioning?
To take just one example, imagine that a society has
managed to make a broad range of life-plans available to
those who are physically moderately disabled, and thereby not
able to function as is typical for our species. Suppose
further that their disability could never be fully rectified,
but could be slightly improved at enormous costs. Why should
we be under an obligation to make these investments, in
particular if these resources could be needed to secure the
income level of the worst-off socio-econonomic group in society
at a level that allows them to have a full range of life-
plans available?
A further difference between Daniels' theoriy and my
suggestion is how we address the bottomless pit objection.
Daniels seems to be suggesting that the bottomless pit
objection can be avoided if we allow the political process to
determine a total budget for health care, taking seriously
that it needs to be sustainable in the long run. i try to go
further and argue at what level the budgted sould be
sustainable and what our primary concern should be for
limiting it to that level.
In the next chapter, I will try to be more specific
about how we should limit the total budget and how we should
75
distribute it by spelling out some of the consequences of my
approach for evaluation justice in the health care systems in
the U.S. and in Germany.
[Seite korrigiert, Van]
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76
CHAPTER IV
HEALTH POLICY AND THE FUNCTIONS OF HEALTH CARE
Health Policy in Germany
The analysis of justice in health care I presented, in
principle, supports the political call for securing access to
the central forms of health care for everybody. Access must
be such that everyone has the means to get the health care he
is entitled to through the central functions. Formal access
which cannot be taken advantage of because one cannot afford
to pay does not count for much when we are sincerely
interested to sustain the moral agency of others and
ourselves.
Impartial Kantian justice leaves open the question of
how health care is to be provided and how the health care of
those who cannot pay for themselves should be financed. The
only restraints which need to be observed are that the
provision of health care is effective and that its payment
does not put high enough a burden on the socio-economically
worst-off that they will as a result have less than adequate
incomes.
These two constraints decide neither between the most
76
important currently competing models of health care provision
nor payment systems. In the provision of health care models
of what is called "managed care" and "fee-for-service"
medicine are the two most important approaches. In managed
care, the primary provider of health care is an institution,
not a physician. Within this institution, usually a so called
"health maintenance organization" (HMO), employed physicians
distribute services among patients according to the rules and
criteria of the institution. Managed care is becoming the
dominant model of provision in the U.S.. In contrast, in
Germany micro-allocations are made fairly autonomously by
individual physicians who are generally working on a fee-for-
service basis, and only in hospitals micro-allocations are
made according to institutional rules. However, both models
of provision are, in principle, capable of distributing
services in a way that the central functions of health care
are not sacrificed for the peripheral functions, as long as
providers recognize the moral importance of this division.
In Germany, physicians in ambulatory care currently work
with a more or less fixed budget per office which can be
distributed by the physicians among patients and a variety of
services in almost any possible way. Thus, there is little or
no principles of micro-allocation which are binding for a
physician. I would argue that principles of micro-allocation,
however, are extremely important for a just health care
78
distribution. Without such principles, even an impartially
just total budget can be too high and too low at the same
time. It can be too high for the peripheral functions of
health care and too low for the central functions.
This unjust distribution appears to be the case in
Germany in the sector of ambulatory care. Germany, together
with Japan, has the highest number of physician-office
visits, averaging 11 visits per person per year (in
comparison the U.S. has only 6 visits). Most of these visits
concern minor ailments such as mild headaches, infections, or
the renewal oft standing prescriptions. In contrast,
potentially life-saving and disability-preventing health
services appear to be much underused.
To give just one example, Germany (unlike the U.S or the
United Kingdom) does not have a national program for heart
disease prevention which could be implemented through the
high number of yearly office visits. Mainly for that reason,
Germany has not seen a comparable reduction in mortality from
myocardial infarction (only one fourth of what was achieved
in the U.S. during the last 20 years). The situation is
similar for cancer, where the U.S. has recently achieved a
decline in breast cancer (incidence and mortality) through
implementing large screening programs whereas in Germany the
incidence of breast cancer is still rising.
79
Within the existing budget in ambulatory care, a shift
towards the central functions of health care appears to be
both possible and necessary in Germany, and the prevention of
cardiovascular diseases and cancer would appear to be the two
most important goals. This should possibly include a shift
towards spending less on the slightly life-prolonging less
effective treatments of chronic diseases in old age towards
preventing and treating these and acute diseases among those
who develop them fairly early in life.
On a different micro-allocation issue Germany is doing
quite well in comparison to almost any other health care
system including Canada and England. The system, in general,
does not offer better or more extensive central health care
to better-off socio-economic groups, which is in agreement
with my analysis. To save the moral agency of others is of
equal importance regardless of whether a person is rich or
poor. The main reason why the care is distributed equally is
a fairly homogenous fee-schedule for physicians which allows
the better-off to pay only slightly more of what the worst-
off pay, that is not permitting the better-off to pay more
than the regulated fee privately. This fee-schedule is
binding for almost all German physicians. Those who are not
prepared to comply with it can only treat the 1 percent of
Germans who are not insured. Thus, there is only very little
80
financial incentive to treat the better-off differently, and
there is, in fact, some reason to believe that they sometimes
experience inferior services. Those sickness funds that
insure the general population ("statutory sickness funds"
covering more than 85%/ of the population) require more
rigorous training from licensed physicians for some services,
such as ultrasound examinations, than private insurance
companies do.55 It generally cannot be said that the system
disadvantages the poor through lower quality of care or less
than equal access.
The way the system is financed also does not appear to
be grossly unfair and may meet the requirements of my ethical
analysis. The system is unlike the British system not tax
financed but financed through insurance contributions that
made in equal parts by those who are employed and their
employers, covering all family members of the employed
person. The insurance rate is fixed (on average, about 12% of
the total wage), and therefore contributions rise with
income. At an income level of what amounts to upper- and
middle-class incomes the contributions do not rise anymore,
however. This is meant to keep the better-off socio-economic
groups in society within the statutory sickness funds and not
let the private insurance sector grow significantly beyond
55 Michael Arnold, University of Tübingen, (personal communication)
81
10% of the population. The socio-economically better-off are
perceived as politically essential for maintaining or
improving the quality of care in the whole system, and a more
progressive mode of financing the system is supposed to harm
those who have no alternative of leaving it. To the extent
that this assumption is true, this move appears to be
justified on the grounds that it is better than any
alternative for those prone to early death and disability
and, at the same time, does not place too heavy a burden on
the poor.
The total budget of the health care system in Germany is
currently about 9.1%, and the government has enforced strict
cost-containment rules through a series of reforms which do
not allow the systen to go beyond this level. In contrast to
the U.S., Germany has succeeded in controlling its health
care costs through the last 18 years when the first cost-
containment bill was passed. The question is, however, if
this budget is adequate for a country with this level of
resources available.
In one sense, the budget is clearly inadequate. It has
not prevented that about 30% of the population dies before
the age of 65. In Germany, only a minority of blue-collar
workers stay healthy enough to work until the officially
recognized retirement age of 65 years. The average retirement
82
age is by now about 57 years for workers, with most of them
retiring involuntarily because of disabling chronic diseases.
It is therefore the case that a majority of workers cannot
enjoy what is recognized as a normal work-life because of
premature death or severe disablility. This is in contrast to
what the higher ranks of white-collar employees and
professionals can expect, many of them even being able and
permitted to work beyond the official retirement age of 65.
It is clearly inappropriate that the government has so
far sponsored little research into the determinants of these
differences. It is only known that mortality and morbidity
for some diseases are higher among blue-collar workers and
among lower socio-economic groups in general, for example,
but to what extent this explains the observed differences in
life-expectancy is not known. It is also unknown to what
degree the health care system could address these differen-
ces, and how much resources such an attempt would take. It
appears doubtful that these differences can be significantly
ameliorated through shifting from the peripheral functions of
health care to the central functions alone, however.
Since working to the officially recognized retirement
age is a very central ideal of the good in Germany, a country
which distributes to many social benefits of (material and
immaterial, such as public recognition) through the working
83
process, it would be unjust to leave those differences to
good health policy alone without regarding them as matters of
respecting others as moral agents. If it was indeed the case
that a higher budget for health care would allow more people
to work until the official retirement age, the government's
strict enforcement of the current cost-containment policies
may be ethically indefensible.
I am here not suggesting that the officially recognized
retirement age should be taken as that age which is suffi-
cient to allow everyone (or even most people) to fulfill
their life-plans. I suspect that most life-plans in Germany
currently go somewhat beyond that age. But in order to be
conservative about my assumptions of what age is adequate, I
have presented the case for the very widely held ideal of the
good of a complete work-life in Germany. It appears that the
budget for health care cannot guarantee that even
this age is reached by as many people as possible.
Furthermore, I also do not want to imply that health
care is the only or the best means to achieve that goal. I am
convinced that it could have a great impact, in particular
through preventive medicine. But I also recognize the
importance of working conditions and socio-cultural factors
such as attitudes towards health. Not all of these factors
are equally worthy af attention for purposes of justice. To
84
the extent that people choose freely to assume more risky
life-styles (such as dangerous sports or eating habits), it
appears that those behaviors which are an important component
of the ideal of the good which a person has accepted may be
beyond the most immediate concerns of justice. They rarely
are no matter of justice at all, however, because to the
extent that I risk my own life I also fail to be able to
support those who depend on me. I have tried to argue above
that this includes more than those with whom I am in direct
and voluntary relationships. It should also include those who
without the institutions I am able to support cannot continue
to survive as moral agents.
It is the case in Germany now that the socio-economi-
cally worst-off groups have an income that allows them to
pursue a wide range of life-plans, since the welfare system
provides fairly generous benefits, including free health care
which is equal to what everyone else gets. The most serious
exception to this quite general claim are those who are
unemployed in the long run. Although they enjoy adequate
material benefits which allow for complete moral agency, they
are not at a high level of capability that can only be
relized through employment. I consider this to be a very
important problem of social justice in Germany.
It is, therefore, an important empirical issue whether
85
the health care budget can be raised without causing higher
levels of unemployment, and whether the capability reducing
consequences of unemployment can effectively be ameliorated
through government efforts to reduce long-term unemployment.
In general, however, I believe that Germany could increase
its current health care budget without putting burdens on the
worst-off which would reduce their capabilities below an
adequate level.
Even if the health care budget could not be increased
without raising unemployment, there appears to be an
obligation to do so if it was shown to be effective. The
reason is that those who are unmemployed but have an adequate
income still have a wide range of ideals of the good
available that can be considered adequate. They can engage
in highly recognized voluntary projects, participate in
politics and culture, raise a family, or develop private
projects.
All of this is possible because of the generally
generous welfare system which provides free education
(including university education), health care, housing, and
the public financing of political or community activities. To
the extent that an increase in the health care expenditures
would put these benefits also at risk, it might in fact
reduce the worst-off to less than an adequate level of
86
capabilities.
It is beyond the scope of this analysis to predict at
what percentage of the gross national product (GNP) spent on
health care this point would be reached, although the strict
limitation of expenditures currently enforced by the
government together with a total lack of interest in
targetting the expenditures at the central functions of
health care seem to be the two biggest ethical problems for
the allocation of resources in the German health care system.
Health Policy in the United States
In the United States, only the elderly and the socio-
economically worst-off enjoy a right to health care which
covers many of the central functions. The Medicare and
Medicaid programs do not cover the whole population, and most
of those who are in the age-range that is central for
fulfilling life-plans are either privately insured or not
insured at all. In case they require care which they cannot
pay for either through insurance or directly, they have no
entitlement against the state for coverage. Although any
American is normally in a position to get some care in case
of emergencies, even life-saving or disability-preventing
elective services can be denied to those who are not able to
pay.
87
The dependency of the extent and quality of all types of
care on the ability to pay is clearly unjust since it
includes the central functions of health care. It implies
that society is not prepared to make the sacrifices necessary
to save the moral agency of those who cannot provide for
their own health care or have in the past chosen not to do
so. Although we would not have an obligation to provide those
with resources that have chosen to squander (or not to insure
against bad luck) their assets, at least beyond a minimally
adequate level of welfare, we cannot leave unattended those
who chose not to take out health insurance although they
could have done so from their income. Instead, we should not
allow anyone to be uninsured, since it is part of the human
condition that we can come into situations where we are not
appropriately insured and would will to be treated
nevertheless. It appears that we should not allow anyone to
not be insured against premature death and severe disability
at least, although everyone should be free to not make use of
the services covered through their insurance in case of
illness.
As in the U.S. they do, the better-off should in
principle have an opportunity to buy a more extensive
coverage for the central functions. This is a right they
enjoy as part of their basic liberties. On the other hand,
the state can regulate the market for additional insurance if
88
this benfits the central health care of those who are at the
highest risk of premature death or illness, regardless of
whether they are rich or poor. In Germany, it has been made
difficult (but not impossible) for the better-off to buy
better care in order to rise the standard coverage to the
highest possible level of quality. In the U.S., the negative
impact of making it easy for the better-off to leave the
insurance system that covers most people on the quality of
care of those who cannot opt out of the public system is not
sufficiently recognized in the health policy debate, and
needs to be taken into consideration when solutions for
covering everyone with insurance for the central functions of
health care are sought.
Similar to Germany, micro-allocations in the U.S. are
often not deliberately targetted at the central functions of
health care. However, this appears to be happening to a
greater extent than in Germany. Most HMO's do not cover the
treatments of those minor ailments that consume a large part
of Germany's ambulatory care resources, such as headaches or
minor infections. Also, managed care has put some focus on
the outcomes of treatments in order to improve the quality of
care. Such studies rarely enter German ambulatory care
practices, and are also less frequently part of hospital
micro-allocations than in the U.S.
89
Obviously, these comparisons are not meant to substitute
for detailed empirical studies. Instead, I make them to show
in what way a general theoretical approach to justice in
health care ccould have substantive implications that allow
for the normative comparison of health care systems. It
allows us, for example, to determine what kind of research is
necessary to further just health care allocations. Studies
that analyze the outcomes of treatments on survival and the
ability to function emerge as particularly important. The
U.S. is world-wide the leading undertaker of such studies,
which include studies regarding the outcomes of preventive
interventions. A focus on the total health care budget and on
ways of financing this budget has dominated the discussion in
justice in health care in Germany, leaving aside important
issues of micro-allocation. This has helped to cause a
relative lack of studies that would allow one to implement a
more just micro-allocation in Germany. In the U.S., in
contrast, such research has been done, although not because
it has been thought to be important for purposes of social
justice.
Because the practice of physicians in the U.S. is far
more regulated than in Germany (with no managed care, few
guidelines for treatment from speciality-associations, and
very little malpractice litigation) and because of the
relative abundance of outcomes studies of different
90
treatments in the U.S., a shift towards a more just micro-
allocation pattern appears to be more feasible currently than
in Germany. This is a very important opportunity, because the
total budget spent on health care in the U.S. is quite large
and estimated at about 14% of the GNP. A shift of resources
within this fairly large budget towards the central functions
of health care would presumably have considerable impact.
The assessment of the adequacy of the total budget for
health care in the U.S. is quite difficult. It has been
estimated that about 20% of children are currently put at
risk by hunger and poverty. Also, the quality of public
education and the housing conditions of the poor are often
not adequate. To the extent that these generalizations are
true, the socio-economically worst-off do not obviously enjoy
the level of resources which is adequate even for complete
moral agency. On the other hand, long-term unemployment
appears to be somewhat less of a problem. It is important for
economists to study whether these conditions can be improved
while at the same time making available and improving the
central functions of health care for everyone. Since the GNP
of the U.S. is still slightly higher than that of Germany or
Sweden, countries in which these twin goals have been
achieved to a much higher degree, I suspect that through
structural and redistribu-tional interventions by the
government such changes are in principle feasible, although I
91
cannot make this case myself.
In the U.S., there is even more pluralism of ideals of
the good than in Germany, and the tentative claims I made
about the central importance of a full work-life for most
Germans cannot be made here. This may undermine any attempt
to construct a minimum age which can be accepted by most for
being able to pursue typical life-plans. Still, I believe
that such a construction is possible. This is so because
despite the pluralism of ideals of the good, there is
actually very few which extend into old age. Many Americans
begin new life-plans after retirement, such as moving to a
different part of the country or beginning new professions or
educations. Although these initiatives are very encouraging
since they change the often painful experiences of getting
older in society, they do not give rise to health care
entitlements of equal moral importance than of those who have
had little or no chance for pursuing their first set. Since
there is a wide variety of life-plans that can be fulfilled
without having to live into old age, and only very few that
extend into old age, the case for not setting the age limit
for the central functions appears not to be weakened by the
pluralism typical of U.S. society.
A clear articulation of what the most important entitle-
ments are for purposes of justice seems to be a crucial
92
element for furthering the debate about health care reform in
the U.S. Many opponents of universal health care coverage of
the population liken health care to other goods of consump-
tion. For some health services, I think this comparison is
adequate. Concerning the health care with minimal or no
functional implications, it is difficult to give criteria
that would distinguish health care from often quality-of-life
improving commodities. The impartial reasons for universal
coverage can be better articulated by not speaking about
health care per se but about what I called the central
functions. This is a better strategy than calling for a
"basic minimum" of health care, which gives little or no
focus for what should be covered. To campaign for the kind of
health care which allows as many Americans as possible to
fulfill their life-plans gives a clear and compelling reason
why central health care is so important. A basic minimum can
address many health differences between people, not all of
them equally matters of justice.
Cost-Effectiveness and Justice in Health Care
Cost-effectiveness studies are another example of
research important for just micro-allocations. Like in
outcome studies, the U.S. is far ahead in this field in
comparison to Germany. Although in one sense the costs of
health care services to restore or maintain moral agency are
93
a morally arbitrary factor, there are impartial considera-
tions that can urge us to consider them as being morally
relevant for just micro-allocations. The intuition of moral
arbitrariness can be expressed through the question of why
someone's priority rank on a list for health care
entitlements should depend on the costs of the service one
needs, rather than the nature of the health problem it
addresses alone.56 One may argue that equally significant
losses in capabilities should count as equally important
morally, even if they involve for their treatment or their
prevention quite unequal costs.57 I think that this
intuition is true. There appears to be an even more
concern about cost-effectiveness analysis when
the costs of health services vary for quite arbitrary or even
morally suspect reasons, such as the high profits in parts of
the health care industry or lack of government interest in
the development of a cheaper treatment for a disease, e.g.,
since the majority of the population is not likely to develop
it.
My argument for nevertheless allowing the costs to play
a morally significant role moves in two steps. The first step
is to demand that cost differences that are due to unfairness
in other social institutions should not count. Such
56 Rawles (1989)
57 Brock (1993)
94
unfairness is for example given if the differences in cost
are due to deliberate neglect of research into specific
diseases for morally unacceptable reasons, such as discrimi-
nation by scientific institutions or the government as
research sponsor. Examples for this include racial or gender
discrimination through not funding research into certain
diseases. It has e.g. been argued that the cost-effectiveness
of coronary bypass-surgery of women is often lower than that
for men because the technology was developed through research
done mostly for and with men in a climate in which
diseases of men were supposed to be more important to cure.
If women were now excluded from this health service because
of lower cost-effectiveness, they would be unfairly harmed.
Although it can be very difficult in practice to and to
determine cost differences as unfair, the idea should not
immediately be dropped since it can be a useful concept, for
example when it is invoked for directing our research funds.
It stresses the importance of using research funds in a way
that all groups in society are fairly represented, since
those who are underrepresented may be disadvantaged twice:
first since there is less choice of treatment for them, and
secondly, the existing treatments may be of low cost-
effectiveness and, thus, not be covered by insurance.
Furthermore, from this perspective we can see the
contribution to social justice which research can make that
95
aims at particularly cost-effective treatments rather than at
treatments which are maximally effective but are extremely
costly.
The second step in the argument towards the inclusion of
cost-effectiveness as a moral factor in ranking the priority
of health services for the central functions of health care
is a consideration of impartial agreement among those at risk
of premature death or loss of moral agency. If the total
budget for that purpose is set at an ethically adequate level
and the existing cost-effectiveness differences are not due
to morally objectionable causes, it seems prima facie fair
within the group of the potential beneficiaries to attempt to
maximize the total number of life-years that could be saved.
This is so because everyone in that group of people stands to
lose the same, namely the basic capabilities of moral agency,
and there are no morally inadmissible trade-offs with other
social goods involved.
On reflection, we seem to intuitively agree that cost-
effectiveness ranking in such a situation can be a morally
important determinant for which health services we should
publicly finance. The reason is that within the group of
those at risk of losing their basic capabilities, to maximize
the aggregate benefit can be seen as a demand of fairness
itself. If we were to squander resources available for that
96
group, let us say through determining whom to save through a
lottery, we had acted unfairly to those who would have been
saved the loss of moral agency if we had use a maximizing
strategy. This is so because if the members of that group had
been asked before knowing where they would be placed with
their disease in a cost-effectiveness ranking, they would
have objected to the principle of a lottery which would
reduce theirs and others' chances of rescue. At the same
time, no one could have rejected an ex ante maximizing
strategy, since for everyone the same kind of loss was at
stake.
In this specific context, impartial ex ante reasoning
appears to be morally acceptable since it does not violate
the categorical imperative. Any ex ante chosen distributional
principle by those who face the premature loss of moral
agency will later be regretted by those who are put to a
disadvantage by it. But contrary to a situation where a fair
budget has not been allocated, no further sacrifices by
anyone can be expected, and maximizing the yield of the
budget does not reduce anyone's just entitlements.
There are , however, some complexities here which I can
only mention rather than discuss in detail. One is the
question if the prima facie intuition that we should maximize
the number of life years with moral agency is ultimately
97
defensible. How should we, for example, think of cases where
we either add little life-expectancy for many versus a
lot of life expectancy for a few? What role does it play at
what age moral agency is lost prematurely?
The objections against cost-effectiveness analysis that
are usually brought forward when it is used for prioritizing
health care services either concern the complete lack of any
explicit distributional consideration, e.g. when the
technique is justified for purely utilitarian reasons, or
they concern the non-permissable comparison of social goods
of different moral importance, as happened when the first
version of the Oregon Health Plan was introduced. In that
version, some expensive life-saving procedures ranked lower
than inexpensive pain-reducing preocedures. Thus, tooth-
capping was given priority over appendectomies. It cannot be
justified, however, as Dworkin persuasively argued, to allow
a young individual to die from appendicitis which can be
cured without remaining disability through surgery by putting
the money into a large number of capped teeth. 58 The reason
for this also follows from the presented analysis: to allow
an individual to die extinguishes not only his future
experien-ces of pain-free life but also the human being as a
moral agent, a loss that could clearly be rejected by the
indivi-dual in question if all that could be gained through
58 Dworkin (1993)
98
his sacrifice was to save others from temporary pain and a
loss of teeth. 59
As with outcome studies, cost-effectiveness analysis
therefore emerges as a very important instrument of a just
micro-allocation. It has many ethical pitfalls, however, when
it is used. From what I said above, it is clear that it
cannot substitute for principles of justice in micro-
allocations, it can only help to implement them. Services
with equal cost-effectiveness measured in "quality-adjusted-
life-years", for example are not equally important from a
moral point of view if they address different age-groups, or
concern the same age-groups but remove reductions in the
qualitiy of life in different ways. In general, those
services, other things being equal, that address younger age-
groups and more functional aspects of the quality of life
should be given some priority. To go beyond these general
remarks, however, would require a discussion of specific
cases since more specific general criteria do not appear to
be available. I will, however, comment on the use of quality
of life in cost-effectiveness analysis and when it is used in
the disabled for a just micro-allocation of the central
health care services.
59 Rawles (1989)
99
Serving Moral Agency in the Disabled
The arguments I have made above about the moral
importance of avoiding the premature loss of moral agency can
be said to hold by and large independently of the levels of
well-being a person has achieved or is likely to achieve in
the future. The central functions of health care should
address those who, in principle, can pursue life-plans
regardless of their subjectice quality of life. This implies
that they do not cover those who have no chance to achieve
the level of functioning needed to do that, such as the
permanently and totally incompetent or miserable. I want to
emphasize, however, that this does not imply that the lives
of those human beings should not be saved, since there are
other important moral reaons to save them. 60
I will now more explicitly argue why we should not
determine what lives should be saved from death or loss of
moral agency according to how far they go beyond a minimum of
functioning needed for moral agency or how desirable these
lives are.
I have argued above that in the group of services which
avoid premature death and the loss of moral agency we should
allocate health care in a way that are most cost-effective. It
60 Brock (1993)
100
initially appears intuitively right to consider quality-of-
life and disabilities in these cost-effectiveness calcula-
tions. One way to start the argument for including the
quality-of-life in deciding whose life or moral agency should
be saved is to say that there are states that are "worse than
death" that would clearly not warrant being maintained. As
this shows, quality-of-life is a matter of degree, and it
appears not to be plausible to not consider differences in
quality-of-life at any level which ist somewhat better than
"worse than death" for the allocation of resources. 61
This reasoning is false, however, since it only makes
sense to say of someone else's life that it is in a state
"worse than death" if it not only is miserable for the
indiviudal himself, say through great discomfort of pain, but
that additionally the person has lost the minimum level of
mental and physical functioning needed for moral agency. This
is so because there is a sense in which a life of residual
moral agency cannot be worse than death interpersonally. We
cannot have an interpersonal standard for trading-off moral
agency for well-being experience and, therefore, also cannot
make the claim that someone else's life is "worse than death"
if it still allows for moral agency. Well-being depends on
the ideal of the good a person has chosen, whereas moral
agency does not. Furthermore, well-being includes more than
61 Glover (1977)
101
experiences. For a person for whom a life in extreme pain
still contributes to the fulfillment of his meaning in life,
life may be going well although his experiences are
miserable. To not save the life of such a person because we
do not share the judgement or cannot even imagine that his
life still goes well can be unjust as long as we can still
recognize him as a moral agent.
This may even support health care entitlements if we can
say that the experiences this life still allows are worse
than no experiences at all even from the standpoint of the
individual concerned. Not all ideals of the good even have a
concern for experienced well-being. Extreme stoicism in
principle could be indifferent about this dimension. Ruling
that those who do still care for their own survival, but face
an extremely low level of experiences should have lower
priority would, in effect, discriminate against their ideals
of the good. Because of its special value, moral agency
should be protected quite independently of considerations of
ideals of the good, including ideals that imply that health
is only of moral importance to the extent that it avoids bad
and promotes good experiences.
Kantian ethics, therefore, supports the idea that the
kind of health care which sustains human agency should be
distributed in an entirely egalitarian way. The protection of
102
The basic capabilities of everybody should morally count
equally for the state. Kantian ethics arrives at this
egalitarian claim through recognizing that the most
distinguishing human characteristic, moral agency, is the
most valuable asset of everyone and is distributed equally
among people, regardless of whether a person is happy or
unhappy, rich or poor, privileged or disadvantaged, disabled
or not. If moral agency does not come by degrees, and is a
sufficient reason for entitlements through the central
functions of health care, these entitlements shoud not be
diminished because of existing disabilities of impairments
that still allow for moral agency.
As Bernard Williams observed, identifying the morally
most important characteristic is one of the reasons why
Kantian ethics has found wide resonance in common sense
morality 62. If this characteristic was available only for a
few, it would be hard top justify why we should respect
everybody as a free and equal citizen, which is the
aspiration of modern democracies. Those who de facto lack
moral agency are also worthy of respect because they are also
human beings, although they temporarily or always lack the
means of realizing the capacities that are needed to be a
free and equal citizen. Amartya Sen has made the argument
that equal respect for everybody as a moral agent is a
62 Williams (1985)
103
feature of all of the currently competing moral theories. He
attributes this to the force of the Kantian idea that the
expression of equal moral concern for others is what morality
is about 63. In health care this implies that the kind of
care which is directed at saving moral agency should also not
depend on features external to moral agency itself. To the
extent that we allow this to happen, e.g. through favoring
those who are more productive or enjoy a higher quality of
life, we do not treat people as equals in a morally central
aspect.
For cost-effectiveness analysis, this implies that for
the central functions of health we should focus on
"life-years-gained-allowing-for-moral-agency", irrespective
of their quality. This adresses life-years that are gained
because we avert death or severe disability. I cannot further
the question here of what should count as severe disability,
but it is clear that the focus should be on gross functional
impairments rather than on disabilites that insignificantly
reduce someone's choices of the good.
63 Sen (1992)
https://www.karllauterbach.de/wp-content/uploads/2019/07/dissertation/Conclusion.pdf
104
CONCLUSION
I have argued in this thesis that the principles which
are impartially justifiable in the distribution of health
care services seem to disallow the trade-off of an
individual's moral agency through loss of a minimum set of
capabilities for aggregate gains of capabilities beyond the
minimum, the welfare of all members of society, or that of
certain subgroups in society, including the socio-
economically worst-off. I derived what is impartially
justifiable or not from an interpretation of Kant's ethics
for justice in health care. These moral obligations derived
hold in particular for premature death and and disability
prevention which are the most frequent cause of early loss of
moral agency. A just society should establish impartially
acceptable principles of how the obligations for these
central functions of health care are met. These principles
should be set independent from trade-offs with more
peripheral functions of health care or other welfare goals. I
suggested that we should determine a budget which cannot
reasonably be rejected by those threatened by premature death
or disability.
This total budget should be spent on insurance for both
preventive and curative health care services which
effectively avoid loss of moral agency. I argued that the
105
services for that purpose should be ranked according to their
cost-effectiveness, but that cost differences that are due to
morally objectionable causes such as discriminatory research
efforts of the government in the past should be discounted.
What a reasonable budget is depends partly on empirical
facts such as the economic means of a society, the costs of
health care services, and the proportion of people threatened
by premature death and loss of moral agency. It seems ethi-
cally required that in a society with a higher average level
of income we should be under an obligation to sacrifice a
greater part of our income to prevent premature death and
loss of moral agency than in a society with, on average, a
lower level of income. In particular, the budget for the
central functions of health care should be set at the highest
level that is feasible in order to still allow the socio-
economically worst-off group to pursue the characteristic
life-plans of a society.
I further argued that in cost-effectiveness analysis the
benefits should not include a discounting measure for the
lower quality of life when my proposal is applied for
determining whose life or basic capabilities we should save.
For measuring other benefits, such as the benefits of non
life-saving programs or life-saving programs at ages well
beyond the adequate life-expectancy, such discounting
106
measures may indeed be justifiable.64 It may be possible to
argue that an impartially justifiable set of principles would
suggest or even mandate the inclusion of information about
quality-of-life on that level of health care. I rejected the
proposal to discount the moral value of saving a life of
lower quality from premature death or loss of moral agency
because the reason why such lives should be saved is
independent of their quality and should in its strength,
therefore, also not vary with it. We should save such lives
because of our commitment to human dignity itself which is
sustained by our moral agency, at every level of it.
We have to distinguish between the moral and the
prudential value of saving lives. I have argued that the
moral value of saving lives from premature death and the loss
of moral agency cannot convincingly be derived from what
lives we would prudently want to save. The moral value of
saving lives from premature death and loss of moral agency
appears to be to some degree independent of the prudential
value of saving such lives. We value our lives for reasons
that go beyond the fact that we are moral agents, which may
not give some of us much of a reason to value life at all.
But the lives of others we should help to protect from
premature death or loss of moral agency we should value for
that reason.
64 Brock (1992), (1993)
107
If, instead of following my proposal, we ranked health
care services for premature death and loss of moral agency
prevention according to their willingness-to-pay value in
society we might have a means to contribute to the maximi-
zation of human well-being in society. But such ranking
should be rejected, since it is not impartially justifiable
to use the health care which protects against premature death
and the loss of moral agency for the purpose of societal
aggregate well-being maximization. The respect of others as
free and equal citizens puts constraints on what we can
define as the morally central functions of health care in
that respect. This is the most important consequence of a
commitment to a broadly Kantian account of moral reasoning
for justice in health care.
To assume that as a community we could define the goals.
of health care without such constraints is plausible from a
communitarian or a utilitarian view of ethics and meta-
ethics. Such a communitarian view was, for example, presented
by Ezekiel Emanuel, who adopts a Hegelian critique of the
kind of Kantian moral reasoning used in this essay. 65 His
alternative proposal would allow relatively small communities
to use their own values to define the role of health care for
all possible functions of health care, including premature
death and loss of moral agency prevention. I have tried to
65 Emanuel (1991)
108
respond to a criticism of Kantian moral reasoning made by
Emanuel and other communitarians. 66 They claim that there
cannot but be impartially accepted principles for the
distribution of health resources in the absence of
shared ideals of the good. For the sake of furthering this
discussion, I have tried to provide such a set of principles
for what I believe are the ethically central functions of
health care; still, there is an important point to the
communitarian critique since I am less confident about the
availability of such principles for less central functions of
health care. This gives us reason not to speak about justice.
For the less central functions Dworkin's approach is, I
think, the most promising, in which he considers health
insurance as an important resource which everyone should be
entitled to according to a fair distribution of income. If
his approach is adopted for more peripheral health care
functions, there can be trade-offs between health care and
other social goods such as education or income, and these
trade-offs can be determined partly by the ideals of the good
that the majority of society accepts. 67
To the extent that there are not many substantive and
66 Williams (1985), Walzer (1983)
67 Dworkin (1993), (1981)
109
universal principles of prudential reasoning, Dworkin's
proposal may converge with communitarian proposals to
distribute health care under the conditions of a fair income.
distribution. The disagreement between Dworkin and
communitarians would then be about what constitutes a fair
distribution of income. This kind of convergence also may be
expected because what is prudential for someone to do depends
on the ideal of the good she accepts.
Nevertheless, neither for reasons of prudence nor for
the expression of community values shhould the state be
permitted to sacrifice the most basic capabilities of moral
agents, a point which neither communitarians like Emanuel nor
equality-of-resource focussed liberals like Dworkin appear to
be able to fully accommodate. It can even less be
accommodated by utilitarian theories of just health care
because in such theories moral agency is just one value among
others and can be traded-off against other values in whatever
way is dictated by aggregate total utility reasoning.
Communitarian and utilitarian theories of justice have
for health care distribution similar problems as they face
for the distribution of the basic liberties. 68 The health
care which protects our moral agency against premature
extinction should not be permitted to become part of either a
68 Lyons (1994)
110
communitarian or utilitarian distributional mechanism for (at
least partly) the same reasons for which we should not allow
the basic liberties to be included there. The problem is not
that they might, depending on circumstances, not get their
proper affirmation in such a mechanism, but that they are in
such a mechanism in the first place. 69 The affirmation of
the basic liberties, as well as the protection of moral
agency, should be unconditional, beyond the influence from
our accepted ideals of the good, and beyond collective self-
interest.
69 Williams (1973)
111
REFERENCES
AARON, H., and SCHWARTZ W. (1984). The Painful Prescription.
Washington, DC: Brookings Institute.
ANDREWS, L.B., FULLARTON, J.E., HOLTZMAN, N.A., and MOTULSKY,
A.G. (eds.). (1994) Assessing Genetic Risks: Implications for
Health and Social Policy. National Academy Press.
ARROW, K. (1973). Some ordinalist -- utilitarian notes on
Rawls's theory of justice. Journal of Philosophy, 70:9:251.
BARRY, B. (1989). Theories of Justice. Berkeley, CA:
University of California Press.
BARTECCHI, C.E., MACKENZIE, T.D., SCHRIER, R.W. (1994) The
human costs of tobacco use. New England Journal of Medicine,
330:13:907-912.
BELLAH, R.N. MADSEN, R., SULLIVAN, EW.M., SWINDLER,
TIPTON, S.M. (1985). Habits of the Heart. Harper and Row.
BERLIN, I. (1969). Four Essays on Liberty. Oxford: Oxford
University Press
BOORSE, C. (1975). On the distinction between disease and
illness. Philosophy and Public Affairs, 5:1:49-68.
BRENNAN, T.A. (1991). Just Doctoring: Medical Ethics in the
Liberal State. Berkeley: University of California Press.
BRENNAN, T.A. (1993). An ethical perspective on health care
insurance reform. American Journal of Law & Medicine. Boston:
American Society of Law, Medicines & Ethics and Boston
University School of Law, 37-74.
BRINK, D. (1989). Moral Realism and the Foundations of
Ethics. Cambridge: Cambridge University Press.
BROCK, D. (1986). The value of prolonging human life.
Philosophical Studies, 50:401-428.
BROCK, D. (1992). Quality of life measures in health care and
medical ethics. In Nussbaum and Sen (1992).
BROCK, D.W. (1993). Life and Death: Philosophical Essays in
Biomedical Ethics. Cambridge: Cambridge University Press.
112
BUCHANAN, A. (1983). The right to a decent minimum of health
care. in The President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research;
Securing Access to Health Care, vol. II, Appendices:
Sociocultural and Philosophical Studies, 207-38. Washington,
DC: US Government Printing office.
CHURCHILL, L.R. (1987). Rationing Health Care in America:
Perceptions and Principles of Justice. Notre Dame, IN:
University of Notre Dame Press.
COHEN, G.A. (1992). Equality of what? On welfare, goods and
capabilities. Recherches économiques de Louvain, 56.
DANIELS, N. (1975). Equal liberty and unequal worth and
liberty, in N. Daniels (ed.), Reading Rawls, New York: Basic
Books, 253-81.
DANIELS, N. (1975) (ed.) Reading Rawls. Oxford: Blackwell.
DANIELS, N. (1979). Wide Reflective Equilibrium and Theory
Acceptance in Ethics. Journal of Philosophy, 76:5:256-82.
DANIELS, N. (1981).
DANIELS, N. (1985). Just Health Care. Cambridge: Cambridge
University Press.
DANIELS, N. (1988). Am I My Parents Keeper. Oxford: Oxford
University Press.
DOLL, R., R. PETO (1981). The causes of cancer. J Natl Cancer
Inst 616:1191-1308.
DWORKIN, R. (1977). Taking Rights Seriously. London:
Duckworth.
DWORKIN, R. (1981). What is equality? Part I: Equality of
welfare; Part II: Equality of resource, Philosophy and Public
Affairs, 10:3-4:185-246:283-345.
DWORKIN, R. (1985). A Matter of Principle, London: Harvard
University Press.
DWORKIN, R. (1993). Justice in the Distribution of Health
Care; McGill Law Journal: 883-898.
EMANUEL, E.J. (1991). The Ends of Human Life: Medical Ethics
in a Liberal Polity. Cambridge, MA: Harvard University Press.
113
ENGELHARDT, JR., H. TRISTRAM. (1974). The disease of
masturbation: Values and the concept of disease. Bulletin of
the History of Medicine, 48:2:234-248.
FISHKIN, J. (1983). Justice, Equal Opportunity, and the
Family. New Haven: Yale University Press.
GAUTHIER, D. Morals by Agreement. Oxford: Oxford University
Press.
GIBBARD, A. (1983). The prospective Pareto principle and
equity of access to health care. In Securing Access to Health
Care. Volume Two: Appendices. Sociocultural and Philosophical
Studies, Report of the President's Commission for the Study
of Ethical Problems in Medicine, U.S. Government Printing
office, Washington, DC.
GIBBARD, A. (1990). Wise Choices, Apt Feelings. Cambridge:
Harvard University Press.
GLOVER, DJ. (1977). Causing Death and Saving Lives.
Harmondsworth: Penguin Books.
GOODIN, R. (1989). No Smoking: The Ethical Issues. Chicago:
Chicago University Press.
GRIFFIN, J. (1986). Well-Being: Its Meaning, Measurement, and
Moral Importance. Oxford: Oxford University Press.
HARE, R.M. (1963). Freedom and Reason. London: Oxford
University Press.
HARE, R.M. (1982). Ethical theory and utilitarianism. In A.
Sen and B. Williams (eds.), Utilitarianism and and Beyond.
Cambridge: Cambridge University Press.
HARE, R.M. (1982). Ethical theory and utilitarianism. In Sen
and Williams.
HARMAN, G. (1977). The Nature of Morality. New York: Oxford
University Press.
HARSANYI, J.C. Morality and the theory of rational
behavior. In Sen and Williams.
HART, H.L. (1975). Rawls on liberty and its priority. In N.
Daniels (ed.), Reading Rawls, 230-52. New York: Basic.
HAYEK, F.A. (1960). The Constitution of Liberty. London:
Routledge & Kegan Paul.
114
HENNEKENS, C.H. (1994). Antioxidant vitamins and cancer.
American Journal of Medicine 97 (suppl 3A): 2S-4S.
HERMAN, B. (1994) The Practice of Moral Judgment. Cambridge,
MA: Harvard University Press
HÖFFE, O. (1994) Immanuel Kant, English trans. by M. Farrier.
Albany: State University of New York Press.
HOLMES, S. (1989). The permanent structure of antiliberal
thought. In N. Rosenblum (ed.), Liberalism and the Moral
Life. Cambridge, MA: Harvard University Press.
KANT, I. (1785). Fundamental Principles of Metaphysics of
Ethics, English trans. by T.K. Abbott. London: Longmans,
1907.
KANT, I. (1788). Critique of Practical Reason, English trans.
by L.W. Beck. New York: Liberal Arts Press, 1956.
KORSGAARD, C.M. (1992). G.A. Cohen: Equality of what? On
welfare, goods, and capabilities; Amartya Sen: Capability and
well-being; Commentary by Christine M. Korsgaard. Im Nussbaum
and Sen (1992).
KUKATHAS, C., P. PETTIT (1990). Rawls. A Theory of Justice
and its Critics. Stanford: Stanford University Press.
KYMLICKA, W. (1990). Contemporary Political Philosophy: An
Introduction. Oxford: Clarendon Press.
LARMORE, C. (1987). Patterns of Moral Complexity. Cambridge:
Cambridge University Press.
LYONS, D. (1994). Rights, Welfare, and Mill's Moral Theory.
New York: Oxford University Press.
MACINTYRE, A. (1981). After Virtue: A Study in Moral Theory.
London: Duckworth.
MACKENZIE, T.D., BARTECCHI, C. E., and SCHRIER, R.W. (1994)
The human costs of tobacco use. New England Journal of
Medicine, 300:14:975-980.
MANNING, W.G., KEELER, E.B., NEWHOUSE, J.P., SLOSS, E.M.,
WASSERMAN, J. (1991). The Costs of Poor Health Habits: A RAND
Study. Cambridge, MA: Harvard University Press.
MILL, J.S. (1974). On Liberty, ed. G. Himmelfarb.
Harmondsworth: Penguin.
NAGEL, T. (1979). Mortal Questions, Cambridge: Cambridge
115
University Press.
NAGEL, T. (1986). The View From Nowhere. New York: Oxford
University Press.
NAGEL, T. (1991). Equality and Partiality. Oxford: Oxford
University Press.
NOZICK, R. (1974). Anarchy, State, and Utopia. New York:
Basic Books.
NUSSBAUM, M.C. and SEN, A.K. (1992) (eds.). The Quality of
Life. Oxford: Clarendon Press.
O'NEILL, O. (1986). Faces of Hunger. London: Allen and Unwin.
Medicine (suppl
O'NEILL, O. (1989). Constructions of Reason: Exploration of
Kant's Practical Philosophy. Cambridge: Cambridge University
Press.
PARFIT, D. (1984). Reasons and Persons. Oxford: Oxford
University Press.
POGGE, T.W. (1994) John Rawls. München: Verlag C.H. Beck
PUTNAM, H. (1981). Reason, Truth and History. Cambridge:
Cambridge University Press.
PUTNAM, H.Ca (1992). Objectivity and the science/ethics
distinction. In Nussbaum and Sen (1992).
RAILTON, P. (1984). Alienation, consequentialism, and the
demands of morality. Philosophy and Public Affairs, 12/2:134-
71.
RAWLS, J. (1971). A Theory of Justice. London: Oxford
University Press.
RAWLS, J. (1980). Kantian constructivism in moral theory.
Journal of Philosophy, 77/9:515-72.
RAWLS, J. (1982). Social unity and primary goods. In A. Sen
and B. Williams (eds.), Utilitarianism and Beyond. Cambridge:
Cambridge University Press.
RAWLS, J. (1985). Justice as fairness: Political not
metaphysical. Philosophy and Public Affairs, 14/3:223-51.
RAWLS, J. (1988a). Reply to Sen, mimeographed, Harvard
University.
116
RAWLS, J. (1988b). The priority of right and ideas of the
good. Philosophy and Public Affairs, 17/4:251-76.
RAWLS, J. (1993). Political Liberalism. Columbia University
Press.
RAWLES, T. (1989). Castigating Qualys. Journal of Medical
Ethics 15, 143-147
RORTY, R. (1985). Postmodernist bourgeois liberalism. In R.
Hollinger (ed.), Hermeneutics and Praxis. Notre Dame, Ind.:
University of Notre Dame Press.
ROSE, G. (1990). British perspective on the U.S. Preventive
Services Task Force guidelines. Journal of General Internal
Medicine. 5(supplement): S128-S132.
ROSEN, A. (1994). Kant's Theory of Justice. Cornell
University Press.
SANDEL, M. (1982). Liberalism and the Limits of Justice.
Cambridge: Cambridge University Press.
SAYRE-MCCORD, G. (1988). Essays on Moral Realism. Ithaca, NY:
Cornell University Press.
SCANLON, T. (1982). Constructualism and utilitarianism. In A.
Sen and B. Williams (eds.), Utilitarianism and Beyond.
Cambridge: Cambridge University Press.
SCANLON, T.M. (1975). Preference and Urgency. Journal of
Philosophy, 72.
SCANLON, T.M. (1988). Notes on equality, mimeographed,
Harvard University.
SCANLON, T.M. (1990). The Aims and Authority of Moral Theory.
Unpublished Manuscript.
SCANLON, T.M. (1992). Value, desire and quality of life. In
Nussbaum and Sen (1992).
SCHEFFLER, S. (1988). Consequentialism and Its Critics.
London: Oxford University Press.
SCRUTON, R. (1982). Kant. Oxford: Oxford University Press.
SEN, A.K. (1992). Inequality Reexamined. Russell Sage
Foundation, NY, Cambridge, MA: Harvard University Press.
SEN, A.K. (1980). Equality of what? In S. McMurrin (ed.), The
Tanner Lectures on Human Values, i. Salt Lake City, Utah:
117
University of Utah Press.
SEN, A.K. (1982). Rights and agency. Philosophy and Public
Affairs, 11.
SEN, A.K., and WILLIAMS, B. (1982) (eds). Utilitarianism and
Beyond. Cambridge: Cambridge University Press.
SEN, A.K. (1985). Well-being, agency and freedom: The Dewey
lectures 194. Journal of Philosophy, 82.
SEN, A.K. (1987). On Ethics and Economics. Oxford: Blackwell.
SEN, A.K. (1990). Justice means versus freedom. Philosophy
and Public Affairs, 19/2:111-21.
SEN, A.K. (1992). Well-being and capability. In Nussbaum and
Sen (1992).
SINGER, P. (1983). Hegel. Oxford: Oxford University Press.
SINGER, P. (1989). Practical Ethics. Cambridge: Cambridge
University Press.
SMART, J.J.C. (1973). An outline of a system of utilitarian
ethics. In J.J.C. Smart and B. Williams (eds.),
Utilitarianism: For and Against. Cambridge: Cambridge
University Press.
SMART, J.J.C., and WILLIAMS, B. (1973). Utilitarianism: For
and Against. Cambridge: Cambridge University Press.
SULLIVAN, R.J. (1994). Introduction to Kant's Ethics.
Cambridge: Cambridge University Press.
TAYLOR, C. (1979). Hegel and Modern Society. Cambridge:
Cambridge University Press.
TAYLOR, C. (1982). The diversity of of goods. In Sen and
Williams (1982).
TENGS, T.O., ADAMS, PLISKIN, M.E., J.S., SAFRAN, D.G.,
SIEGEL, J.E., WEINSTEIN, M.C., GRAHAM, J.D. (1994). Five-
Hundred Life-Saving Interventions and Their Cost-
Effectiveness. Unpublished manuscript. Harvard University,
Center of Risk Analysis.
U.S. Congress, Office of Technology Assessment, International
Health Statistics: What What the Numbers Mean for the United
States--Background Paper, OTA-BP-H-116. Washington, DC: U.S.
Government Printing Office, November 1993.
118
WALDRON, J. (1993). Liberal Rights: Collected Papers 1981-
1991. Cambridge: Cambridge University Press.
WALZER, M. (1983). Spheres of Justice: A Defence of Pluralism
and Equality. Oxford: Blackwell.
WEINSTEIN, M.C., and STASON, W.B. Cost-effectiveness of
coronary artery bypass surgery. Circulation,
66 (supplement): III-56-III-66.
WEINSTEIN, M.C., and STASON, W.B. (1977). Foundations of
cost-effectiveness analysis for health and medical practices.
New England Journal of Medicine, 296:716-721.
WEINSTEIN, M.C., and STASON, W.B. (1985). Cost-effectiveness
of interventions to prevent or treat coronary heart disease.
Ann Rev Public Health, 6:41-63.
WEINSTEIN, M.C. (1990). The costs of prevention. Journal of
General Internal Medicine, 5 (supplement): 889-892.
WIKLER, D. (1978). Persuasion and coercion for health: issues
in government efforts to change life style. Milbank Memorial
Fund Quarterly: Health and Society, 56:3:303-38.
WIKLER, D. (1983). Philosophical perspectives on access to
health care: an introduction. In Securing Access to Health
Care. Volume Two: Appendices. Sociocultural and Philosophical
Studies, U.S. Printing Office, Washington, DC.
WILLIAMS, B. (1971). The idea of equality. In H. Bedau (ed.),
Justice and Equality. Englewood Cliffs, NJ: Prentice-Hall.
WILLIAMS, B. (1973). A critique of utilitarianism. In J.J.C.
Smart and B. Willims (eds), Utilitarianism: For and Against.
Cambridge: Cambridge University Press.
WILLIAMS, B. (1985). Ethics and the Limits of Philosophy.
London: Fontana Press.