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1 Locke, John, Second Treatise of Government (1690), in John Locke, Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1960), secs. 85, 138, 222.
2 Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations (1776; Oxford: Oxford University Press, 1976), Book III, chapter 1.
3 Locke, Second Treatise, sec. 229.
4 “Thirdly, The Supream Power cannot take from any Man any part of his Property without his own consent.” Ibid., sec. 138 (emphasis in the original).
5 Ibid., sec. 140.
6 As contemporary critics of Locke (especially among feminists) have noted, the extent to which any human being can be independent and self-determining is narrowly limited by the reality of human dependence in childhood, sickness, and old age, and by more-general human needs for emotional support and cultural definition. See, for example, Kittay, Eva Feder, Love's Labor: Essays on Women, Equality, and Dependency (New York: Routledge, 1999). Emphasizing dependency grounds rather different arguments for health-care provision, which I will not explore in this essay.
7 Locke himself speaks of “that equal right, that every man hath, to his natural freedom, without being subjected to the will or authority of any other man,” Second Treatise, sec. 54.
8 Locke, Second Treatise, sec. 138. Of course, I am not reading “the preservation of Property” merely as protection from predation; but as I argued at the beginning of this essay, there are ample textual grounds for a broader interpretation.
9 Simple appendectomies cost on average more than $15,000 in the United States.
10 There is adverse selection, because health insurance is a better investment for those who have reason to think they will need medical care. So insurance premiums must be increased, which makes health insurance an increasingly bad investment for those who are in good health. To combat problems of adverse selection, insurance companies refuse to cover preexisting conditions, which holds down the cost of health insurance while at the same time making health insurance effectively unavailable for those who need it most. The discussion in this paragraph marks a crucial point of disagreement with Lomasky, Loren's otherwise complementary discussion in “Medical Progress and National Health Care,” Philosophy and Public Affairs 10 (1981): 65–88.
11 Making such a system work is very difficult. An approximation can be found in Singapore, in which two-thirds of the funding for health care comes from private funds, and government-sponsored health insurance covers only “catastrophic” expenses. But to make this work requires incursions on individual freedom in the form of mandatory health savings, regulation of health-care provision and costs, and significant subsidies. See John Tucci, “The Singapore Health System—Achieving Positive Health Outcomes with Low Expenditure,” Towers Watson Healthcare Market Review, http://www.watsonwyatt.com/europe/pubs/healthcare/render2.asp?ID=13850.
12 Daniels, Norman, Just Health (Cambridge: Cambridge University Press, 2007); Daniels, Norman, Just Health Care (Cambridge: Cambridge University Press, 1985).
13 See Boorse, Christopher, “Health as a Theoretical Concept,” Philosophy of Science 44 (1977): 542–73; and Boorse, , “A Rebuttal on Health,” in Humber, James and Almeder, Robert, eds., What Is Disease? (Totowa, NJ: Humana Press, 1997), 1–134. Wakefield, Jerome defends a very similar account in “The Concept of Mental Disorder: On the Boundary between Biological Facts and Social Values,” American Psychologist 47 (1992): 373–88; Wakefield, , “Disorder as Harmful Dysfunction: A Conceptual Critique of DSM-III-R's Definition of Mental Disorder,” Psychological Review 99 (1992): 232–47; and Wakefield, , “The Concept of Mental Disorder: Diagnostic Implications of the Harmful Dysfunction Analysis,” World Psychiatry 6 (2007): 149–56.
14 Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
15 Ibid., 60.
16 Ibid., 83.
17 Rawls, John, Justice as Fairness: A Restatement, ed. Kelly, Erin (Cambridge, MA: Harvard University Press, 2001), 174.
18 Daniels is ambivalent about special sensitivities to workplace toxins and hazards, which he is hesitant to assimilate either to “talents” or to traits that should be irrelevant if fair equality of opportunity obtains. See Daniels, Just Health Care, chap. 8, and Daniels, Just Health, chap. 7.
19 Arneson, Richard, “Against Rawlsian Equality of Opportunity,” Philosophical Studies 93 (1999): 77–112.
20 I am indebted here to J. Paul Kelleher.
21 Stern, Laurence, “Opportunity and Health Care: Criticisms and Suggestions,” Journal of Medicine and Philosophy 8 (1983): 339–61, at 340. As Daniels puts it in Just Health, 58–59, “The notion Rawls uses is a narrow one focused on producing fairness in the competition for jobs and careers. We are using opportunity range in a broader—and admittedly vaguer—sense when we think about the impact of health on individual shares of the normal opportunity range, that is, the array of life plans persons can reasonably choose in a given society.” See also Daniels, Just Health Care, 50. In expanding the meaning of “opportunity,” Daniels is severing the historical and conceptual connection between equality of opportunity and the notion of “careers open to talents.”
22 Daniels distinguishes the opportunity in question from what I can currently do, which he calls my “effective opportunities.” See Daniels, Just Health, 45.
23 Provided that the society treats different “talents” fairly. For example, an affluent society that subjected those without mathematical aptitude to abject poverty would not be just. Daniels briefly notes the need for background justice on p. 41 of Just Health Care, though he seems to suppose that fair equality of opportunity can do most of the work.
24 Daniels, Just Health, 44.
25 “Similarly, institutions meeting health needs have the limited function of maintaining normal functioning” (ibid., 60). In Just Health, Daniels also requires that there be a fair distribution of the (nonmedical) socially controllable factors influencing the risks of disease, but this essay is concerned exclusively with his views on health care.
26 See Buchanan, Allen, “The Right to a Decent Minimum of Health Care,” Philosophy and Public Affairs 13 (1984): 55–78, at 63; and Stern “Opportunity and Health Care,” 345f.
27 Daniels, Just Health, 35.
28 For an extended argument against evaluating health states by their bearing on well-being or preferences, see Hausman, Daniel, “Valuing Health,” Philosophy and Public Affairs 34 (2006): 246–74.
29 Daniels does not distinguish health needs from needs such as food, clothing, and shelter in quite this way. He emphasizes, in contrast, the fact that health needs are more unequally distributed. See Daniels, Just Health, 61.
30 Daniels, Norman, “Justice, Health, and Health Care,” American Journal of Bioethics 1, no. 2 (2001): 3–15, at 4.
31 See Lomasky, “Medical Progress and National Health Care.”
32 As Lomasky points out, there are important disanalogies between the case for state provision of national defense and crime prevention, which rests in part on the state's monopoly on the use of force, and the case for state protection of health. See ibid., 73. Crucial to the argument in the text is the empirical claim that individuals cannot provide for themselves, even with the help of an insurance market.
33 Locke, Second Treatise, sec. 54.
34 One of H. B. Acton's main complaints against government provision of goods to satisfy basic needs is that it undermines individual initiative. See Acton, , The Morals of Markets and Related Essays, ed. Gordon, David and Shearmur, Jeremy (Indianapolis, IN: Liberty Fund, 1993), esp. 80–98.
35 In Just Health, Daniels points out correctly that he need not take sides in the dispute between Boorse and Jerome Wakefield, who relies on a different account of functions and adds a requirement that poor health be harmful. The differences between Boorse's and Wakefield's accounts are also not relevant to the argument of this essay. Although Boorse's view of health is, in my view, the best one thus far proposed, it is not unproblematic. For example, it has no good way to characterize pathologies that are statistically typical. It faces a difficult line-drawing problem with respect to separating low but normal function from dysfunction, as argued by Schwartz, Peter in “Defining Dysfunction: Natural Selection, Design, and Drawing a Line,” Philosophy of Science 74 (2007): 364–85. For a very recent and serious criticism of Boorse's view of health, see Kingma, Elselijn, “Paracetamol, Poison, and Polio: Why Boorse's Account of Function Fails to Distinguish Health and Disease,” British Journal for the Philosophy of Science 61 (2010): 241–64. Boorse's view of functions is also controversial. For a comprehensive defense, see Boorse, Christopher, “A Rebuttal on Functions,” in Ariew, André, Cummins, Robert, and Perlman, Mark, eds., Functions: New Essays in the Philosophy of Psychology and Biology (Oxford: Oxford University Press, 2002), 63–112.
36 Boorse, “Health as a Theoretical Concept,” 562, 567.
37 Boorse's current view is that medicine is mistaken to regard any conditions that are statistically normal within a reference group as diseases. See Boorse, “A Rebuttal on Functions,” 103. The existence of such diseases means that the “normal opportunity range” may be exceptional rather than statistically normal within a given reference class within a society.
38 Though possibly not in Locke's own view. The Hippocratic Oath he took forbade abortion, yet he questioned whether embryos have souls (Second Treatise, sec. 55). See Short, Bradford, “The Healing Philosopher,” Issues in Law and Medicine 20 (2004–5): 121–31.
39 Daniels, Just Health, 155.
40 Subject, of course, to the exceptions already mentioned of birth control and abortion. Daniels clearly recognizes that fair equality of opportunity has implications that extend far beyond health policy. See ibid., 96.
41 Ibid., 155.
42 Buchanan, Allen, Brock, Dan, Daniels, Norman, and Wikler, Daniel, From Chance to Choice: Genetics and Justice (Cambridge: Cambridge University Press, 2000), 129. In citing from this coauthored work, I risk conflating Daniels's views with those of his coauthors. On the one hand, although Daniels paraphrases and quotes in Just Health a good deal of material from this coauthored book, he does not repeat the explicit qualifications quoted here. On the other hand, the reading-enhancement example apparently provides an instance of such an exception. Buchanan, Brock, Daniels, and Wikler explore the apparent arbitrariness of treating a short child with a growth-hormone deficiency while refusing to treat another child with the same expected stature and responsiveness to treatment, who has no known pathology. Yet they never make explicit whether the much-discussed and clinically and economically important case of the use of human growth hormone to enhance short stature is one of the exceptions they have in mind. It might not be, because its enormous expense and the “arms race” to which it could lead imply that it is not “highly efficient.”
43 Daniels, Just Health, 151.
44 See Shapiro, Michael, “The Technology of Perfection: Performance Enhancement and the Control of Attributes,” Southern California Law Review 15 (1991–92): 11–113; Sandel, Michael, The Case against Perfection: Ethics in the Age of Genetic Engineering (Cambridge, MA: Harvard University Press, 2007); and Kamm, Frances, “Is There a Problem with Enhancement?” American Journal of Bioethics 5 (2005): 5–14.
45 As Allen Buchanan has pointed out to me, merely equal opportunity is not enough. Suppose that some people's talents resulted in highly restricted opportunities and that there were some easy intervention that could expand these opportunities. In that case, an egalitarian (or sufficientarian) who was concerned about opportunity would surely demand that the intervention be undertaken. This point harks back to the complaints in Section III about the limitations of the principle of fair equality of opportunity and forward to the central argument of Section VI.
46 Lesley Jacobs makes a similar point: “Daniels could respond that from the perspective of equality of opportunity, the effects of some natural differences—those originating from differences in talents—are fair, but the effects of other natural differences—those originating from illness and disease—are unfair. The cogency of this response depends on the basis for this distinction.” See Jacobs, , “Can an Egalitarian Justify Universal Access to Health Care?” Social Theory and Practice 22 (1996): 315–48, at 337.
47 Schwartz, “Defining Dysfunction.”
48 One might distinguish those features of a person that are part of who the person essentially is and those features of a person that are merely accidental. One could then argue that essential traits would be the “talents” that define the reference class within which opportunity should be equal, while accidental traits would be the pathologies that limit opportunities within these reference classes. Such a line, which resembles part of Ronald Dworkin's view concerning which inequalities call for redress, might also help with the question of whether, in the context of employment law, insensitivities to pathogens should be regarded as “talents.” But this proposal does not explain why the pathological is opportunity-limiting, while talents are not, because pathological traits can define people and talents can be accidental to who they are. Dworkin does not draw the line in quite this way. His line is between “those beliefs and attitudes that define what a successful life would be like, which the ideal [which holds that people should be compensated for those things for which they are not responsible] assigns to the person, and those features of body or mind or personality that provide means or impediments to that success, which the ideal assigns to the person's circumstances.” See Dworkin, Ronald, “What Is Equality? Part 2: Equality of Resources,” Philosophy and Public Affairs 10 (1981): 283–345, at 303.
49 Sreenivasan, Gopal makes this point in “Health Care and Equality of Opportunity,” Hastings Center Report 37, no. 2 (March–April, 2007): 21–31, at 22. Since the existence of a prince and a pauper suggests the existence of other injustices, the example may not be relevant to ideal theory. I will comment below on the problem of applying Daniels's views to non-ideal circumstances.
50 Sreenivasan (“Health Care and Equality of Opportunity,” 22–23) misses this feature of Daniels's account and argues for a purely comparative interpretation of fair equality of opportunity.
51 Daniels, Just Health Care, 55; repeated word for word in a footnote in Daniels, Just Health, 146.
52 Qualifications concerning feasibility, resource limits, and competing moral considerations are of course needed.
53 I am borrowing this distinction from my essay “Are Health Inequalities Unjust?” Journal of Political Philosophy 15 (2007): 46–66.
54 I argue for this conclusion at much greater length in “Are Health Inequalities Unjust?” Although Daniels implies that the socially guaranteed tier of health-care services consists of those services “needed to maintain, restore, or compensate for the loss of normal species-typical functioning,” he would not in fact deny that the basic tier should include palliative care. He distinguishes four levels of care: prevention, restoration, medical and support services for the chronically ill, and treatment for those whose opportunities cannot be improved. He suggests that provision of the fourth level is mandated by other moral considerations such as benevolence and “may be beyond measures that justice requires.” Daniels, Just Health Care, 48.
55 Although Locke did not participate personally in the efforts organized by the City of London to treat the victims of the 1665 outbreak of the plague, some of his associates did, and there is no record of Locke objecting that the City of London overstepped the boundaries of the actions that are proper for governments to take.
* Portions of this paper were delivered at a conference in December 2008 in honor of the publication of Norman Daniels's book Just Health (Cambridge: Cambridge University Press, 2007). I am indebted to participants at that conference, particularly Norman Daniels. J. Paul Kelleher commented on the paper on that occasion, and he also offered helpful criticisms of a subsequent draft of this essay. I am also indebted to Allen Buchanan, Norman Fost, and Robert Streiffer for comments on earlier versions of this essay. The final version profited from detailed criticisms by Ellen Frankel Paul and by other contributors to this volume.
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