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Justice and the Ada: Does Prioritizing and Rationing Health Care Discriminate against the Disabled?

Published online by Cambridge University Press:  18 June 2009

Dan W. Brock
Dan W. Brock
Affiliation:
Philosophy, Brown University
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Extract

It is sometimes said that a society should be judged ethically by how it treats its least-fortunate or worst-off members. In one interpretation this is not a point about justice, but instead about moral virtues such as compassion and charity. In our response to the least fortunate among us, we display, or show that we lack, fundamental moral virtues of fellow feeling and concern for others in need. In a different interpretation, however, this point is about justice and a just society—the justice of a society is shown especially in how it treats its least-fortunate members.

Type
Research Article
Information
Social Philosophy and Policy , Volume 12 , Issue 2 , Summer 1995 , pp. 159 - 185
Copyright
Copyright © Social Philosophy and Policy Foundation 1995

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References

1 Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar; Buchanan, Allen, “Justice and Charity.” Ethics, vol. 97, no. 3 (1987), pp. 558–75.CrossRefGoogle Scholar

2 Daniels, Norman, Just Health Care (Cambridge: Cambridge University Press, 1985).CrossRefGoogle ScholarPubMed Daniels follows Rawls in understanding fair equality of opportunity as requiring equal opportunities for persons with similar talents and abilities.

3 Medicaid is a joint federal/state government program in the United States to provide health care to the poor.

4 I draw on Garland, Michael J., “Justice, Politics, and Community: Expanding Access and Rationing Health Services in Oregon,” Law. Medicine, and Health Care, vol. 20 (1992), p. 70.CrossRefGoogle ScholarPubMed

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9 Unpublished letter from Secretary of Health and Human Services Louis W. Sullivan to Governor Barbara Roberts of Oregon, August 3, 1992.

10 Public Law 101–336, July 26, 1990. 104 Stat. 327. 42 USC 12101–12213, 47 USC 225 and 611.

11 Orentlichcr, David. “Rationing and the Americans with Disabilities Act,” Journal of the American Medical Association, vol. 271 (1994), pp. 308–14.CrossRefGoogle Scholar Orentlicher provides a comprehensive legal analysis of the likely application of the ADA (and other legislation protecting the disabled) to a variety of forms of health-care rationing.

12 Unpublished letter from Thomas J. Marzen and Daniel Avila, National Legal Center for the Medically Dependent and Disabled, Inc., to Representative Christopher H. Smith, U.S. House of Representatives, Decembers, 1991.

13 New York Times, 03 20, 1993, p. 8.Google Scholar

14 Marzen and Avila, unpublished letter.

15 Ibid.

16 Hadorn, David C., “The Problem of Discrimination in Health Care Priority Setting” Journal of the American Medical Association, vol. 268 (1992), pp. 1454–59.CrossRefGoogle ScholarPubMed

17 Brock, Dan, “Ethical Issues in Recipient Selection for Organ Transplantation.” in Organ Substitution Technology: Ethical, Legal. and Public Policy Issues, ed. Mathieu, Debra (Boulder, CO: Westview Press, 1983), p. 94.Google Scholar

18 Kamm, Frances, Morality, Mortality: Volume 1, Death and Whom to Save from it (Oxford: Oxford University Press, 1993).Google Scholar

19 Brock, , “Ethical Issues in Recipient Selection for Organ Transplantation,” p. 94.Google Scholar

20 Ibid.

21 Roughly speaking, the weighted lottery would give a greater probability of being selected to receive a scarce organ to patients likely to benefit more from it, but would also give all in need at least some chance of being selected.

22 Public Law 101–336 (supra note 10).

23 Garland, , “Justice, Politics, and Community,” p. 70.Google Scholar

24 Brock, , “Ethical Issues in Recipient Selection for Organ Transplantation”Google Scholar; Wikler, Daniel, “Equity, Efficacy, and the Point System for Transplant Recipient Selection,” Transplantation Proceedings, vol. 21 (1991), pp. 3437–39.Google Scholar

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27 Hadorn, , “The Problem of Discrimination in Health Care Priority Setting,” p. 1459.Google Scholar

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29 See. e.g., Asch, Adrienne. “Can Aborting ‘Imperfect’ Children Be Immoral?” in Contemporary Issues in Biomedical Ethics, 4th ed., ed. Beauchamp, Tom and Walters, Leroy (Encino, CA: Wadsworth Publishing, 1987).Google Scholar

30 See, e.g., Rawls, , A Theory of JusticeGoogle Scholar (endorsing primary goods as the relevant comparison); Sen, Amartya, Commodities and Capabilities (Amsterdam: North Holland, 1985)Google Scholar (endorsing equality of capability); Dworkin, Ronald, “What is Equality? Part I: Equality of Welfare,” Philosophy and Public Affairs, vol. 10 (1981), pp. 185–246Google Scholar (criticizing equality of welfare); Dworkin, Ronald, “What is Equality? Part II: Equality of Resources,” Philosophy and Public Affairs, vol. 10 (1981), pp. 283–345Google Scholar (endorsing a particular interpretation of equality of resources); Arneson, Richard, “Equality and Equality of Opportunity for Welfare,” Philosophical Studies, vol. 56 (1988)Google Scholar (endorsing equality of opportunity for welfare); and Cohen, G. A., “On the Currency of Egalitarian Justice,” Ethics, vol. 99 (1989). pp. 906–44CrossRefGoogle Scholar (endorsing equality of opportunity for advantage).

31 Daniels, , Just Health Care, chs. 1–4.Google Scholar

32 Brock, Dan W., “Justice, Health Care, and the Elderly,” Philosophy and Public Affairs, vol. 18, no. 3 (1989), pp. 297–312.Google ScholarPubMed

33 Sullivan, unpublished letter.

34 See Daniels, Norman, “Rationing Fairly: Programmatic Considerations,” Bioethics, vol. 7, nos. 2 and 3 (1993), pp. 224–33CrossRefGoogle ScholarPubMed; and Brock, Dan W., “Some Unresolved Issues in Priority-Setting of Mental Health Services,” in What Price Mental Health? The Ethics and Politics of Setting Priorities, ed. Boyle, P. (Washington, DC: Georgetown University Press, 1995).Google Scholar