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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
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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,
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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
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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
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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.
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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.pdfChapter 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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