Healthcare Justice and Rational Democratic Deliberation

How can we meet competing healthcare needs fairly under reasonable resource constraints? That is the third question Daniels addresses in his essay, and I will use it to frame my comments. I endorse the broad framework for understanding healthcare justice that Daniels has presented. That is, his fair equality of opportunity account (1985) should be thought of as an essential part of any adequate account of healthcare justice. However, as he readily concedes, that account is too broad to do the very ane-grained work that needs to be accomplished when we must make concrete rationing and prioritization decisions. That work can be best accomplished through a rational democratic deliberative process. But Daniels himself (1993, 1996) has called our attention to what he labels “the democracy problem.” In brief, it is this: If a rationing decision that emerges from a democratic deliberative process is open to moral criticism as being unfair, then there must be independent (extrademocratic) moral principles that justify that judgment. If so, the democratic process itself is otiose. On the other hand, if the deliberative process itself is ascribed ultimate moral authority, then we risk majoritarian moral arbitrariness. I myself believe that the “democracy problem” is manageable, both pragmatically and theoretically. The key to managing it is a much richer (more substantive) articulation of what rational democratic deliberation is all about in the context of healthcare rationing. This, I also believe, can be accomplished within the spirit of Rawls’s Political Liberalism (1993), which is Daniels’s goal as well. Two concepts are especially central in this project. One is what I have referred to metaphorically as “constitutional principles of healthcare justice.” The other is the notion of “nonideal justice.” I have sketched out both notions in earlier essays (1994, 1999) in both theoretical and practical terms, and I am now anishing a book-length project that carries that analysis much further. The basic relationship is that these constitutional principles of healthcare justice deane the political space that is the domain of nonideal healthcare justice. Within that space there will be an indeanitely large number of possible trade-offs, possible alterations in healthcare priorities, and possible rationing alternatives that will all be “just enough,” or, to put it in more Rawlsian language, that will express reasonable enough fair terms of cooperation. The choices that are actualized will depend upon the deliberative process itself. So long as the fairness of that process is assiduously maintained, the results will be both fair and politically legitimate. Some philosophers may be disturbed by what they regard as morally arbitrary results from the deliberative process being accorded moral legitimacy. Their general criticism is that for any speciac rationing problem there really is a “most just” or “most morally justiaed” outcome that alone should be granted moral legitimacy and that we would get to if we persisted long enough with sophisticated moral argument and analysis. However, if we take seriously (with Rawls) the fact of reasonable value pluralism and the “burdens of judgment” (1993, Lectures II and VI), then we realize that this criticism is rooted in a philosopher’s utopian action. That sort of quest for precision is apt in mathematics and engineering, but it will be counterproductive in the domains of morality and public policy. This inapt quest for precision is what gets the democracy problem going. But if, with respect to any particular rationing or priority-setting problem, there are several options that are all “just enough” (fair choices in the deliberative process), then the force of the democracy problem is signiacantly reduced. What we do need to avoid is giving political legitimacy to results of the deliberative process that are seriously unjust. Our constitutional principles of healthcare justice are intended to prevent exactly that. Those principles establish deliberative boundaries that may not be violated. It might appear that these principles could precipitate the reemergence of the democracy problem. However, for that to occur, these principles would have to have a legitimating source outside public reason and the deliberative process. They do not. Just as the Founding Fathers of the United States served as political focal points for the distillation of the U.S. Constitution and its principles from the democratic political/philosophical discussions of the day, so philosophers today should play a similar role with respect to the articulation of principles of healthcare justice. From my perspective this is what Daniels has done in his fair equality of opportunity account. That is, he has provided us with one very important constitutional principle of healthcare justice. There are, of course, multiple such constitutional principles. They can come into conoict with one another in the context of speciac rationing problems. But the task of specifying, adjudicating, and applying these principles is something that can be accomplished through democratic deliberative processes. Daniels’s anal-

[1]  John Rawls,et al.  POLITICAL LIBERALISM , 2018, Liberalism Beyond Justice.

[2]  L M Fleck,et al.  Just caring: Oregon, health care rationing, and informed democratic deliberation. , 1994, The Journal of medicine and philosophy.

[3]  N. Daniels Rationing fairly: programmatic considerations. , 1993, Bioethics.

[4]  John D. Arras,et al.  Ethical Issues in Modern Medicine , 1977 .