McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 38
Montreal
1993
No 4
McGILL LECrURE IN JURISPRUDENCE AND PUBLIC POLICY
Justice in the Distribution of Health Care
Ronald Dworkin*
In this lecture, Professor Dworkin begins by identifying
two questions about justice in the distribution of health care:
(1) How much, in the aggregate, should society spend on
health? (2) Once established, how should this amount be
distributed?
He then examines the ancient insulation model of health
care distribution, which postulates that health care is chief
among all goods and that it is to be distributed in an equal
way. He concludes that this model provides no satisfactory
answer to either of the two questions. It cannot answer the
first, for it would require that society spend all it could on
health care until the next dollar would buy no gain in health
or life expectancy, something which is manifestly absurd,
particularly in our age of ever-expanding medical technol-
ogy. Nor, he tells us, does the insulation model provide
much guidance with the second question, since its egalitar-
ian spirit ultimately leads us to apply notions of efficiency
and need which are philosophically controversial and there-
fore impossible to apply.
By means of a thought experiment, Professor Dworkin
then develops an alternative model which he feels does pro-
vide an answer to his two questions. He asks us to imagine
a society with fair equality in the distribution of resources,
in which the public at large has knowledge about the cost
and value of medical procedures, but in which no one has
any knowledge about the antecedent probability of contract-
ing any particular disease. Moreover, health care is not pro-
vided by the government, but, rather, each individual is free
to allocate to health care (by purchasing health insurance,
for example) as much or as little of his resources as he
wishes. Professor Dworkin claims that whatever that society
spent on health care would be just –
both in the aggregate
and in its distribution. Carrying the model through, he dis-
cusses its implications for our own society and analyzes
possible objections to it. He concludes by stressing the
importance of the question of justice in health care and by
putting it in its broader political context.
Dans cette confdrence, le professeur Dworkin pose
d’abord deux questions sur la justice dans la distribution des
soins de sant6 : (1) Combien, en tout, la socidt6 doit-elle
dipeftser pour les soins de sant ? (2) Une fois e montant
dtabli, comment doit-il 6tre distribu6 ?
11 examine ensuite l’ancien modle d’isolation des soins
de santd. Selon ce modhle, la sant6 et le plus grand bien qui
soit et Ia distribution des soins de sant6 dolt se faire de fagon
6gale. D’aprhs le professeur Dworkin, ni l’une ni l’autre des
deux questions n’est rdsolue de fagon satisfaisante par ce
modhle. Le modhle ne rdpond pas a la premiere, car it exi-
gerait que la socidt6 consacre toutes ses ressourres h la sant6
jusqu’A ce qu’une d~pense supptdmentaire ne puisse appor-
ter aucune amelioration de la sant6 ou de l’easprance de vie,
conclusion manifestement absurde, surtout dans une socidt6
comme la nhtre oi la technologic progresse sans cease. Le
modhle d’isolation ne rpond pas non plus a la deuxime
question, car son approche 6galitaire exigerait qu’on tieane
compte de facteurs comme l’efficacit6 et le besoin, lequels
sent trs controverss et se prdtent done mal 4 une applica-
tion rigoureuse.
Dans le but d’61aborer un mod~le qui nous permette de
ripondre h ses deux questions, le professeur Dworkin nous
invite Ai envisager une situation hypothdtique: une socit6
imaginaire oh it y a une distribution 6quitable des ressour-
ces, oh le public posshde des connaissances mtddirales sur le
codt et la valeur des diffdrents traitements possibles, mais
oh personne ne pent prdvoir les chances de contrarter telle
on telle maladie. De plus, ce n’ast pas le gouvemeisent qui
finance les soins de sand, mais plut6t l’individu, qui est
libre de ronsacrer son argent aux soins de sant6 (en prenant
une assurance, par exemple) comme bon lui semble. Selon
le profeseur Dworkin, le montant que cette socidt6 ddpen-
serat pour les soins de sant6 serait juste –
litd et dans sa distribution. Poussant plus loin son mod~le, il
en tire des conclusions pour notre socidte et examine les
objections qu’il pourralt ausciter. I1 termine sa confdrence en
insistant sur l’importance de la question de la justice en
matire de soins de sant6 et en la situant dans son contexte
politique.
et dans sa tota-
* Professor of Jurisprudence, Oxford University; Professor of Law, New York University School
of Law. Professor Dworkin delivered this lecture on March 17, 1993 at the Faculty of Law, McGill
University, as the Inaugural Lecture of the McGill Lectures in Jurisprudence and Public Policy.
Ronald Dworkin 1993
To be cited as: (1993) 38 McGill L.J. 883
Mode de rdfrence: (1993) 38 R.D. McGill 883
McGILL LAW JOURNAL
[Vol. 38
1.
You might think it very odd that, living as I do half the year in Britain and
half in the United States, I’ve come to Canada to talk about justice in the dis-
tribution of medical care. In both those countries, the Canadian structure for the
distribution of health care is taken, by many people to be a model of success.
Your Dean mentioned my former colleague at University College, Oxford, who
is now my President. Under his administration, and under the supervision of his
wife, the United States is now, as you know, engaged in a massive re-examin-
ation of health care. Almost every day an article appears in the American press
about the Canadian plan, which is widely proposed as a model for Americans
to follow. Nevertheless, strains on your system of health care are beginning to
become evident. There’s talk of rationing, and more people go south of the bor-
der to seek medical care. Doctors in negotiation with the provincial authorities
claim with greater stridency that they are seriously underpaid. The system, nev-
ertheless, is producing more Canadian doctors than economists think wise. You,
too, will face the problems I’ll discuss this evening. You too must worry about
justice in the distribution of health care when it comes –
and I’m sure it will
come –
to rationing health care explicitly.
Some people, particularly in America now, say there is really no need to
ration health care. They agree that medical expense already constitutes an
alarming proportion of the American economy, and that, even though America
spends that much in the aggregate, forty million Americans are wholly unin-
sured or without any adequate health care, which is. intolerable. But they deny
that correcting these deficiencies will require some form of rationing: they say
that there is so much waste and inefficiency in the health care system that, if
these were eliminated, we could save enough money to insure that everyone had
all the medical treatment he needed. We know what they mean. The administra-
tive inefficiency of United States medical insurance companies and carriers is
legendary. American doctors’ salaries are large and, according to many people,
inflated. The average medical salary two years ago in the United States was over
$160,000 –
the average. Nevertheless, a series of recent studies suggests that
even if administrative efficiency were greatly improved, and even if doctors’
salaries were capped at some reasonable level, rationing of health care would
still be inevitable, because by far the biggest cause of the explosion in health
care costs (not only in the United States, but, I believe, in Canada as well) is
a massive supply of new technology. It isn’t that we’re paying all that much
more for what we formerly bought cheaper; it is that we now have so much
more to buy.
Many politicians and some doctors say that much of the new, expensive
technology is “unnecessary” or “wasteful” or “inappropriate.” But if you look
to see what they mean, you find they have in mind techniques that are (as it’s
often put) “low yield,” which is not the same as “no yield.” They point, for
example, to massive mammography screening of women under the age of fifty,
or to the heavy use, in some medical facilities, of magnetic resonance imaging.
A society that spends a great deal of money on routine screening or expensive
diagnostic equipment may not save many more lives than a society that does
1993]
HEALTH CARE
not. But it will presumably save some more lives, and that means that we cannot
appeal just to efficiency as an abstract value to justify saving the cost. We can-
not recommend eliminating “inappropriate” medical care without deciding what
medical care is appropriate, and why, and that, in turn, depends upon how we
answer the question: “how much medicine should a society provide?”
That question can usefully be divided into two more specific ones. The first
is the question of a community’s aggregate health care budget. Money spent on
health care (I include not just acute care but also preventative medicine, care of
the chronically sick or disabled, and so forth) is money that might be spent on
education, or on economic infrastructure that will produce more jobs. How
much of the overall budget should be devoted to health care instead of other
plainly valuable projects, like these? The second question, though it’s really part
of the first, is the question of distribution. Once it’s established what a society
should spend overall on health care, then it must also be decided who should
have that care, and on what basis it should be allocated. Of course, nations
struggling with health care costs must resolve many issues beyond these twin
questions of justice. There are economic questions – what are reliable predic-
tors of how much a particular health care plan or structure will cost? There are
administrative issues: what is the most efficient organization for administering
any particular plan? There are medical questions: what is the likely impact of
a particular program on morbidity and mortality? Above all, there is the political
problem: what plans will a particular democracy in fact be willing to accept and
pay for? I don’t mean to denigrate the importance of these various problems, or
to deny their evident connections with the problems of justice. But I shall con-
centrate on the latter. To repeat: In all justice, how much should a decent society
spend on medical care, broadly described? In all justice, how should that society
distribute what it does spend – who should get what? Behind these two ques-
tions lies a more explicitly philosophical one. What is the right standard to use
in answering ‘these questions? What should we take as our ideal of justice in
medical care?
2.
I begin by describing an ancient and attractive ideal that many people
instinctively accept, which I shall call the ideal of insulation. It has three fea-
tures. The first argues that health care is, as Ren6 Descartes put it, chief among
all goods: that the most important thing is life and health and everything else
is of minor importance beside it. The second component of the insulation ideal
is equality. The ideal supposes that even in a society which is otherwise very
inegalitarian –
indeed even in a society in which equality is despised as a gen-
eral political goal – medical care should nevertheless be distributed in an egal-
itarian way so that no one is denied care he needs simply because of an inability
to pay. The third component (it really flows from the other two) is the old prin-
ciple of rescue, which holds that it is intolerable when people die, though their
lives could have been saved, because the necessary resources were withheld on
grounds of economy.
REVUE DE DROIT DE McGILL
[Vol. 38
I have Michael Walzer in mind, for example –
This ideal of insulation has exerted great power throughout history. Hos-
pitals have always been paradigm examples of appropriate charities, and reli-
gion has, from ancient days, always been associated with them. Contemporary
political philosophers –
say
that the provision of medicine constitutes a separate sphere of justice, and that
in that sphere decency, community, solidarity, and equality must reign. The
power of the insulation ideal is so great that people often think that though the
administrative, medical, economic and political problems I described are intel-
lectually daunting, the questions of justice are not: that it is clear what the ideal
of justice demands in health care, and that our only problem is that we are
unwilling to live up to that ideal. That is, I believe, a serious mistake. The cri-
sis in health care includes a crisis in our conception of what a just health care
system would be – what answers we should give to the questions of justice
I set out. We face that intellectual crisis because it has become clear that the
insulation ideal, for all its ancient popularity, is now irrelevant. Consider the
first question I posed: the problem of the aggregate expense a decent society
will commit to health care, as against competing needs and values. What
advice does the ideal of insulation give? It says a society should spend all it
can on health care until the next dollar it spends would buy no gain in health
or life expectancy at all. Of course no society ever did organize its affairs in
that way, any more than any sane individual organizes a plan of life with the
goal of making that life as long and as healthy as possible. In past centuries,
however, there was not so significant a gap between the rhetoric of the insu-
lation ideal and what it was medically possible for a community to do. It was
possible to give lip service to the ideal, and charge social failure to live up to
it to collective moral shortfall. But now – when technology continues to prod-
uce more and more ways to spend great sums on medical care –
it is self-
evidently preposterous that a community should treat health as lexicographi-
cally prior to all other values. Any community that really tried to do so would
secure for its citizens marginally longer lives, perhaps, but these would be
lives barely worth living. Once, however, this suggestion of the ancient ideal
is rejected as incredible, the ideal has nothing more to say. It has, as it were,
no second best or fall-back level of advice. It simply falls silent.
In fact, as a result, philosophers, theorists and medical specialists who
nominally subscribe to the ideal of insulation all despair of attacking the first
question. After some discussion, they announce that the size of the overall
medical budget will be “decided in politics,” which is an academic way of say-
ing that abstract considerations of justice have nothing much to contribute to
this part of the health-care discussion. I believe that that is a mistake; if I am
right, then the dominance of the insulation ideal has been a hindrance, and not
just not a positive contribution, to achieving justice in health care.
Now look at the second question, the question of distribution. When the
theorists finish saying that politics will set the overall health-care budget, they
quickly add that justice will require that that budget, whatever it is, be spent
in a fair way. But how does the insulation ideal help us to define a fair distri-
bution? It tells us something negative and undoubtedly important: that how
someone is medically treated should not depend, in our society, simply on abil-
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HEALTH CARE
ity to pay. It tells us that if rationing is necessary, the principle of rationing
should not be, as it now largely is in the United States, the pocket book. But
we need more-positive advice. What should the principle of rationing be, if it
is not to be money? Once again, the ancient ideal has very little to say. The
egalitarian impulse of the ideal seems to recommend that medical care be dis-
tributed according to some principle of efficacy and need. And so people com-
mitted to the ideal speak about rationing according to cost-effectiveness or
according to some principle that requires money to be spent where it will do
the most good.
As many of you know, the state of Oregon established a commission some
time ago to try to give structure to that idea, to try to describe what rationing
health care in accordance with effectiveness would mean. The difficulty, of
course, as that commission discovered, is that the concept of doing the “most
good” (or, in more academic terms, of maximizing welfare, or utility, or well-
being, or happiness, or capability) is systematically and multiply ambiguous.
These various terms, when properly used, do not name psychological concepts.
Or medical or, in my view, economic ones. They name contested ethical con-
cepts: the proposal that health care money should be spent to do the most good
means that it should be distributed in whatever way will make the lives of cit-
izens better lives to have lived, and that goal cannot be restated, without con-
troversy, as the goal of making lives more pleasant, or economically more pro-
ductive, or socially more beneficial. Whenever you attempt to describe in more
detail what making the lives of citizens better actually means, you enter the
kind of controversy that it was the promise and hope of the insulated ideal to
avoid, and it would be sheer disaster to try to reduce that ideal to something
mechanical enough to be measured by a computer. The Oregon commission
discovered this. It developed mechanical measures of the cost-effectiveness of
various sets of treatment matched to various kinds of disease, typed these met-
rics into a computer, typed in a great deal of further information, and watched
the computer produce a ranking of cost-effectiveness that ranked capping a
tooth higher in social priority than appendectomy. It’s perfectly true, the com-
puter said, that you will die if you have appendicitis and don’t have your
appendix removed. But it costs four or five thousand dollars to do that and den-
tists can cap a great many teeth and prevent a massive amount of toothache if
you spend that five thousand dollars on dentistry instead. Well, of course, as
soon as that result appeared, the commission saw that its algorithms were
hopeless, re-rigged its operational definitions, and produced something at least
less implausible than that. But the story indicates the character of the problem
I have in mind.
So the old ideal of insulation fails to answer our second question as well
as our first. Its proposal, that health care should be distributed according to
need, or so as to do the most good, or so as to improve overall welfare, is
fatally ambiguous, and becomes evidently unattractive when the ambiguity is
resolved by defining success in terms of some utilitarian reading. We have not,
after all, settled the question of what justice in health care means, and that phil-
osophical problem stands beside the economic, medical and administrative
problems we know we face, and it may be at least equally daunting.
McGILL LAW JOURNAL
[Vol. 38
3.
This evening I shall try to construct, at least in very broad outline, an alter-
nate approach to justice in health care, which is based not on the insulation of
health care as a separate sphere of justice or activity, but, on the contrary, on the
integration of health care into competition with other goods. I shall describe an
approach that, I believe, is more instructive about the two great issues of justice
I named. I can state the central idea in advance: we should aim to make collec-
tive, social decisions about the quantity and distribution of health care so as to
match, as closely as possible, the decisions that people in the community would
make for themselves, one by one, in the appropriate circumstances, if they were
looking from youth down the course of their lives and trying to decide what
risks were worth running in return for not running other kinds of risks.
At some point (as those of you who have read any political philosophy
written after the middle ages know) an imaginary story gets told. My story has
the virtue of being less imaginary than some others, but it will nevertheless
require you to exercise your imagination. Suppose that your community were to
develop and change in the following three ways.
First, per impossibile, suppose it developed into a society in which the eco-
nomic system provided “fair equality” in the distribution of resources. I mean
that government recognized its inevitable responsibility to choose amongst eco-
nomic and tax structures, and chose a structure that treated all members of the
society with equal concern. I have my own idea about what that means in prac-
tice, and I’ve tried to spell this out in a series of articles.’ I said (this is a very
crude summary) that an economic structure treats all members of the commu-
nity with equal concern when it divides resources equally, measured by the
opportunity costs of each person owning a particular resource, and then leaves
each member free in principle to spend those resources designing a life that each
believes appropriate. That conception of equality will not make people equal in
the amount of money or goods each has at any particular time; still less will it
mean that everyone will lead the same kind of life. Some people will have
invested and some people will have consumed. Some will have spent early and
some will have saved for late. The result will nevertheless be egalitarian,
because the choices people will have made will answer to their own conceptions
of what life is right for them.
These are my views about what a just economic system would be like, but
I offer it only by way of illustration. You may –
have a
different conception of what economic structures genuinely treat all people with
equal concern; if so, your view of how that community would have changed, in
order to meet my first condition, will be different from mine. That does not mat-
ter for the present exercise: I merely ask you to assume that it has changed, in
whatever way you think justice and equal concern require.
you probably do –
Second, imagine that your community is also different in that all the infor-
mation that mighi be called, roughly, state-of-the-art knowledge about the value
‘The central article, for purposes of this lecture, is What is Equality? Part II, which appeared
in Philosophy and Public Affairs, Fall 1981.
1993]
HEALTH-CARE
and cost and side-effects of particular medical procedures –
other words, that very good doctors know –
at large as well.
everything, in
is known generally by the public
Third, imagine that no one in your community –
including insurance com-
panies –
has any information available about the antecedent probability of any
particular person contracting any particular disease or infirmity that he or she
does not evidently already have. No one would be in a position to say, of him-
self or anyone else, that that person is more or less likely to contract sickle-cell
anemia, or diabetes, or to be the victim of violence in the street, than any other
person. So no information exists about how likely it is that young blacks, as dis-
tinguished from people generally, will die in violent fights, for example
The changes I am asking you to imagine in your community are heroic. But
they are not, I think, beyond the reach of imagining, and I am not inviting you
.to imagine other changes. Indeed, I am asking you not to: I want you to assume
that your preferences and ethical convictions, and those of other members of
your community, have remained constant in spite of these changes. Very well.
Suppose that your community is indeed changed in those three ways, and then
also suppose that health care is simply left to individual market decisions –
in
as free a market as we can imagine. Medical treatment is not provided by the
government for anyone, as it is for everyone here and for some people in Amer-
ica. Nor are there any government subsidies for health care –
in particular, the
premiums people pay for health care insurance are not, as they are now in the
United States, tax-deductible. If people choose to purchase such insurance, they
do so as they buy anything else: out of post-tax funds.
What kind of health care arrangements would develop in such a commu-
nity? How much of its aggregate resources would end up devoted to health
care? How would medical treatment in fact be distributed among its members?
Well, of course, it is hard to say; indeed it is impossible to say with any preci-
sion, though I shall offer you some speculations in a moment. But I’m anxious
to make two claims in advance of any such speculation, to show you why the
question of what such a society would do is important. The first is that whatever
the society I’ve just described spends as its total health-care budget, which
means simply the aggregate of what individuals spend, would be the just and
appropriate expense for that society. The second is that however health care is
distributed in that society would be a just distribution of health care for that
society. I must qualify those two dramatic claims to some degree, but the qual-
ifications I need are not major, and I’ll relegate them to a footnote.3 So I shall
21 am ignoring an important issue that I will have to consider in a subsequent full presentation
of this material. Is it right, .in the hypothetical exercise I am constructing, to exclude information
relating risk of disease to voluntarily chosen behaviour? Should insurance companies be in a posi-
tion to charge cigarette smokers or mountain climbers higher premiums, for example? If so, then
what counts as voluntary behaviour? Should sexual behaviour of a particular kind be treated as vol-
untary for this purpose? Should insurance companies be able to charge active male homosexuals
higher premiums because they are more likely to contract Aids?
3Some paternalistic interference with individual decisions about health care insurance, particu-
larly those people make early in their lives, might be necessary out of fairness to people who might
REVUE DE DROIT DE McGILL
[Vol. 38
proceed on the flat assumptions just stated: nothing that society does, by way
of health care arrangements, is open to objection on grounds of justice, though
of course what it does might be questionable or objectionable in many other
ways.
If so, then it is indeed important to consider what health care arrangements
our society would make if it were changed in the ways I described, because, as
I shall argue, what they would do through independent decisions can serve as
a guide to what we should do, in whatever way we can, to improve justice in
our own circumstances. So speculation seems worthwhile. It seems likely that
even though the members of the imagined community – our community trans-
formed – would perhaps begin by making individual insurance decisions, they
would soon develop, through these individual decisions, collective institutions
and arrangements; it also seems likely that progressively more and more people
would join those collective arrangements. They would develop very large coop-
erative insurance plans, or very large health maintenance organizations which
provide stipulated categories of medical care for a stipulated advance contract
price, or both, for example. As such plans became larger, and more efficient, it
would become progressively more and more expensive, relatively, for people to
make wholly personalized, individual medical arrangements for themselves, and
progressively fewer and fewer people would do so. (Remember that in this soci-
ety wealth is much more equally distributed than it is in our society now, and
though some people are relatively rich there, they are mainly people who have
decided to concentrate on saving.) So the number of people who could and
would turn their back on the economies of scale and administration of the col-
lective provisions will be few, and, as the process continues, fewer still. The
result of the process might very well be something functionally very close to the
single, comprehensive health care provision scheme that you have reached here
in Canada. Large insurance cooperatives or health maintenance organizations
might negotiate a basic scheme of provision that would be much the same for
everyone. If so, however, the community would probably also develop a sec-
ondary insurance market: people would be free to negotiate specialized insur-
ance in addition to that basic insurance package. What form that secondary mar-
ket would take, and how large a market it would be, would, of course, depend
on factors we cannot sensibly predict. But even in a much more egalitarian soci-
ety, some people would be able and willing to make provision for queue-
jumping, or elective cosmetic surgery, or other benefits that the basic provision
made available through general collective schemes would not provide. (In a
more egalitarian society, the cost of some of these special benefits might well
be lower than it is now –
since doctors’ salaries, for example, would presum-
ably be lower, specialized services might be available at lower cost.)
We need not dwell on the character of that secondary market: it is more
important to consider the basic, standardized coverage packages which I’m
assuming that the large cooperative institutions would provide. What would be
the character of those packages? Well, of course, that would depend upon the
make imprudent insurance decisions when young. And some constraints and requirements might
be necessary in the interests of justice toward later generations.
1993]
193]HEALTH CARE
mix of preferences and convictions. But we can speculate with some confidence
about what would not be covered in such a plan. Some private insurance deci-
sions would be plainly irrational in the imagined community: they would be
what the economists might call dominant mistakes, by which I mean they would
be mistakes, even in retrospect, no matter what happened in the future, includ-
ing the worst. I’ll give you one or two examples: they are extreme, but of course
they would be, given the claim I’ve just made about them.
Almost no one would purchase insurance that would provide life-
sustaining equipment once he had fallen into a persistent vegetative state, for
example. That would be a dominant mistake: the substantial sum spent year-by-
year in insurance premiums to provide that coverage would be at the expense
of training or experience or culture or investment or jobs that would have
enhanced real life. Even someone who lived only a few months after purchasing
the insurance before he fell into a vegetative state would have made, in retro-
spect, a mistake, giving up resources that could have made his short remaining
conscious life better to buy a longer unconsciousness. My second suggestion
might seem more controversial. I suggest that almost no one would purchase
insurance providing for expensive medical intervention, even of a life-saving
character, after he entered the late stages of Alzheimer’s disease or other forms
of irreversible dementia. Almost everyone would regard that decision, too, as a
dominant mistake, because the money spent on premiums for such insurance
would have been better spent, no matter what happens, making life before
dementia –
life in earnest – more worth while.
Now I come to a further suggestion; more controversial still. In most devel-
oped countries, a major fraction of medical expense –
in the United States it
approaches forty percent of the health care budget –
is spent on people in the
last six months of their lives. Of course, doctors don’t always know whether a
particular patient will die within a few months no matter how much is spent on
his care. But in many cases, sadly, they can say, with considerable confidence,
that he will. I believe that if people reflected on the value of buying insurance
that would keep them alive, by heroic medical intervention, four or five more
months, in the condition in which most such patients undergoing that interven-
tion live, compared with the value the premiums necessary to purchase that
insurance could add to their earlier lives if spent in other ways, they would
decide that buying that kind of insurance was not a wise investment. That is not
to say, of course, that most people would not want those additional months, no
matter in what state or condition they spent them. Many people want to remain
alive as long as possible, provided they remain conscious and alert, and pro-
vided the pain is not too great. My point is rather that they would not want those
additional months at the cost of the sacrifices in their earlier, vigorous life that
would be necessary if they had to make that choice. They would think the
money better spent, earlier, on job-training or education or investment or on
something else that would benefit their lives as a whole more than just taking
on a few months of very limited life at the end. I cannot quite make the claim
here that I made about persistent vegetative state or advanced-stage Alzheimer’s
disease: that purchasing insurance for costly procedures extending life a few
months would be a dominant mistake. We can imagine circumstances –
some-
McGILL LAW JOURNAL
[Vol. 38
one falls fatally ill the day after buying a policy providing for such care –
in
which, in retrospect, the decision to buy it turned out to be a good one. But most
people would agree, I think, that in the circumstances we are imagining –
in
which, remember, no one knows he is more likely than anyone else to contract
a disease not already evident –
that decision would be an antecedent mistake.
How much further can we go down this road? How much more insurance
can we be reasonably confident people would not buy in the circumstances we
are imagining? I’m not sure, and anyway have no time to explore other exam-
pies now. But I do want to raise, at least, one further issue which, as I suggested
to you earlier, is already of crucial importance and will become even more crit-
ical in the next decades. How far would people in the imagined community
make provision for access to the ultra-expensive medical equipment now in use,
or which is being developed, or is still over the horizon?
I came here from attending a meeting at the Harvard Medical School in
which new advances in technology were being described. You ain’t seen nothin’
yet. I’ve already mentioned advances in diagnostic radiology: expensive mag-
netic resonance imaging, for example. Much of the talk at this meeting was
about molecular biology: about, for example, promising research into treating
cancer by creating monoclonal antibodies specific for each patient, from the
patient’s own genetic material, at stupendous cost, and new, very expensive,
blood tests that marginally –
improve the accuracy of a
diagnosis of heart disease. Each of these examples illustrates, though in differ-
ent ways, how technology might come to be regarded as “low yield” relative to
its large cost. Both would undoubtedly save some lives. But at a cost, in devel-
opment and production, that might seem very high when we consider how a
community might use the funds in other ways that would enhance the economy
and provide more jobs and a higher standard of living for more people.
very marginally –
Would people in the imagined society, ultimately deciding for themselves
how to allocate their resources, provide for expensive and/or speculative tech-
nology? People informed and reflective might make distinctions along the fol-
lowing lines. They might pay to provide life-saving techniques for diseases that
tend to occur relatively early in life, particularly when these techniques have a
high probability of success. But they might not spend to insure for technology
that is very speculative, even though it will save some lives, or for technology
whose main results benefit people in relatively old age. Paying all our lives to
secure the latter kind of technology, if we need it, might seem a poor decision
when it means that we run a higher risk than we need to run of unemployment
or an otherwise less satisfactory life. I won’t pursue these speculations further.
I hope I’ve given you some idea of the kind of choices that people in the con-
ditions we’re imagining would have to make, and of how they might be tempted
to make them.
4.
Do you resist my claim that whatever such a society spent, through collec-
tive institutions governed by individual decisions of this character, would be
just, and that the distribution of health care such a society achieved would also
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be just? You will not, if you accept a conception of social justice that assigns
individuals responsibility for making the ethical choices for their own lives
against a background of competent information and a fair initial distribution
of resources. If you accept that vision of a just society, then you will accept
my claim –
though, as I said, you may well have a different conception of
what a fair initial distribution of resources would be like, and how unjustified
inequalities should be remedied, than I do –
in which case your understanding
of the conditions I described will be correspondingly different from mine.
So I will assume that you do agree with my main claim: that whatever our
imagined society achieves, by way of health care arrangements, cannot be
faulted on grounds of justice. I suggested, earlier, that we might therefore make
practical, political use, for our own communities, of at least our less speculative
conclusions about what people in the imaginary community would provide for
themselves. There is a natural way in which we might be tempted to do this.
Almost all government-sponsored or supervised health schemes now in exis-
tence, and almost all of those that have been proposed as vehicles of reform in
the United States, define a basic health-care package of benefits that must be
made available, at responsible cost, to everyone, and supplied without charge to
those who cannot pay that responsible cost themselves. We might use our spec-
ulations about the imaginary society to help us to define what should be in that
basic package, and what that responsible cost should be.
In one way, at least, the imaginary story might be helpful for countries, like
the United States, who have not settled on a particular structure for health care
reform. As I said, many people in America believe we should follow your
example in constructing a single-payer arrangement in which government, not
private insurance firms or health care providers, decides what medicine to offer
and at what price. But others think the United States should adopt what is called
a scheme of “managed competition,” in which private insurers compete to offer
a basic package stipulated by government, and government supervises their per-
formances and premium structures. As of this evening, at least, most commen-
tators predict that a managed competition scheme will be adopted, primarily,
they say, because it is better suited to the political culture of the United States
than a single-payer scheme would be. But our imaginary story might be helpful
in guiding the choice between the two forms of scheme, in the following way.
The decision might turn, among other things including suitability to the political
culture, on the degree of confidence we have in our speculations about what
people would choose in the imaginary community. If we were reasonably con-
fident that we knew roughly what such people would buy – what the dominant
collective arrangements they would reach would provide –
then that would
argue for trying to set in place a single-payer system like yours or like the
National Health Service in Britain. Government can more effectively guarantee
people what it is persuaded justice demands that they have if it is free to provide
it itself, in some such way. To the degree we are uncertain about what people
in the imaginary world would decide, however, that argues for a scheme of man-
aged competition with enough flexibility to allow different people to choose dif-
ferent packages all meeting a common stipulated standard. The choices that
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actual people make among such schemes would provide a self-regulating mech-
anism that would bring us closer to the just distribution of the imagined world.
But of course whether the United States ultimately chooses a single-payer
scheme like yours or, as seems more likely, a scheme that includes private com-
petition, is more likely to depend on considerations other than justice. Nor, I
think, is justice decisive of that issue one way or the other. Both types of scheme
include the idea of a basic package (or set of such packages) of insurance made
available to all, and the main issues of justice consolidate in the question of
what should be in that basic package or set of packages. That is the question,
as I suggested, that is most directly responsive to the exercise I’ve been imag-
ining. I offered you reasons for thinking that certain kinds of insurance or health
organization contractual provision would be rare in the community we imag-
ined, and that, I now submit, is a good reason why that kind of provision should
not be part of the basic package that will be the heart of any reform in the United
States and any readjustments here in Canada. Since those are expensive provi-
sions, this is an important result. But it is a negative one, and the exercise must
be conducted on the other side as well. I have little doubt that people in the
imagined community would insist on provision for standard prenatal care, for
example, and on the kinds of primary medical care, including relatively inex-
pensive routine examinations and inoculations that poor people in the United
States so conspicuously lack. It follows, from the argument I have been making,
that these are essential elements in the basic package that any responsible health
care reform would establish.
5.
I have been exploring ways in which practical health care administration
and reform could be guided by the exercise I hold out: trying to imagine what
health care people in the imaginary circumstances I described would provide,
out of their own pockets, for themselves. It is past time, however, for me to con-
sider the drawbacks and pitfalls of my overall argument. One danger is evident:
my suggestions about how people would behave in the imaginary society are
speculative, and even though some of these speculations seem very plausible,
we cannot test them by asking how everyone actually behaves in communities
as they are now constituted. Resources are unjustly distributed among us: Can-
ada is not as bad in this respect as is the United States, but even Canada is very
far from ideal justice in economic distribution. We obviously don’t have a soci-
ety in which people enjoy state-of-the-art information about medicine. On the
contrary, people’s medical ignorance is often cited as one reason why medical
expenses continue to rise. And, of course, our insurance companies do know
that risks are higher among certain groups within the community than others,
and the curse of experiential rather than community rating for premiums has
dogged attempts to make commercial medical insurance fair.
But it doesn’t follow that our speculation about what people would want
under very different, and fairer, circumstances must remain just speculation.
The choices Americans of average income make about their employee insurance
package in wage negotiations, for example, can offer some guidance. And
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895
large medical schools, for example –
research and publicity can provide better guidance. Not only government but
private organizations –
could help
design a few sample paradigm insurance protocols representing different insur-
ance strategies. Some of these would provide for catastrophic care or transplant
surgery in circumstances in which others denied it, for example. The protocols
could be accompanied by the medical information of the kind that is crucially
missing from public awareness now: by some realistic expert opinion of the
expected consequences for mortality and morbidity from a public commitment
to each protocol, together with, for each, some estimate of its total cost and con-
sequent macro-economic effect. If information of that sort were put into the
public domain, and challenged and debated there, the resulting discussion
would be at least minimally informative about how much people value what
kind of care, and might be very informative. When we think of the kind of opin-
ions that pollsters examine now, and that feature on television discussion shows
and radio phone-ins, we might welcome a shift to the kind of discussion I’m
now imagining.
A second difficulty is potentially much graver, however, at least concep-
tually. I’ve imagined a utopian (in some respects) society and I’ve then sug-
gested that we set out to copy one feature of that utopian society: the provision
it would make for medical care. An economist will remind me that, when the
first best is impossible, the second best is not always achieved by mimicking the
first best partially. That may, indeed, make matters worse than the status quo,
and it is not difficult to see this possibility as a threat to my argument. Suppose,
for example, that we decide that if our community were just, and different in the
other ways I imagined, the standard medical package nearly everyone would
purchase through collective insurance arrangements would include a particular
set of benefits. If we decide, therefore, that that set of benefits should make up
the basic package that must be made available to everyone in our own commu-
nity, some relatively low-income people may end up paying a higher share of
their actual income for medical care (for themselves and, through taxes, for oth-
ers) than they would have chosen to pay in a just society. Or, to put the matter
the other way around, they may have less left over for other expenses than they
would have chosen in those circumstances. That may not seem, particularly to
them, ap improvement in justice.
I do not want to minimize the problem this hypothetical example illus-
trates. But the possibility that the test of justice I propose might produce unjust
results is not, in itself, a sufficient argument against accepting that test; someone
who objects must show a strong likelihood that the result would in fact be
worse, from the point of view of justice, than using some other defensible stand-
ard for designing the basic package of protection. This is not a question of who
has the burden of proof. If it is true that if our economic structure were just,
everyone would be able to and nearly everyone would purchase a particular
medical provision, that supplies a very strong even if not decisive argument that
our structure would be closer to a just one if we made sure that everyone had
that provision now. We should act on that strong argument unless we have some
positive reason, not just the bare possibility, that it is- mistaken.
McGILL LAW JOURNAL
[Vol. 38
It is true, however, as the example I just gave demonstrates, that the new
model of health care provision and distribution I am proposing will work more
dependably as the community’s tax system grows more just. If relatively low-
paid workers pay much more than their fair share of taxes, because the tax struc-
ture is insufficiently progressive to be fair, then any governmental program that
relies on the redistribution of tax proceeds to improve justice for those with
scarcely any income at all will be compromised for that reason. It will involve
an unjustified transfer to the worst-off group from the almost-worst-off-group.
That reflection provides a strong reason why tax reform must be at the centre
of any general campaign to improve social justice. It would be ironic and dis-
appointing, however, if the point were stood on its head, and if those who
resisted redistribution to the very poor were able to point to imperfections in the
tax structure as justification for doing nothing, and retaining their own privi-
leges under the status quo.
We must next consider a very different kind of issue, which I must not
evade, though my views on that issue, I fear, will disappoint many of you. Sup-
pose that everything I’ve been describing as possible came to pass. Suppose
that, after the right kinds of collective consultation, after meetings and discus-
sions and polls and electronic politics and all the rest, we settled on a particular
basic program of medical care that we collectively thought government should,
in one way or another, make available to everyone. That basic package, as my
earlier argument suggests, will not include some treatment that rich people are
now in a position to buy for themselves. I said earlier, for example, that the test
I proposed would very likely rule out ultra-expensive marginal diagnostics or
extraordinarily costly treatments that have some but very little prospects for
success. Some people in Canada and America now have the money to buy
health care that would be excluded from the basic package. They have the
money to buy a liver transplant when the odds are very small but nevertheless
real that the procedure would save their lives. In England, people are standardly
denied even renal dialysis on the National Health Service when they are sixty-
five. So people of that age die if they cannot afford to pay for dialysis them-
selves.
some people would live longer and healthier lives –
If we adopted the kind of scheme that I’m describing, in our admittedly
imperfect society, and took no steps to forbid people buying more expensive
care than the basic package provides, some people would have better medical
care –
only because they
had more money. In most cases, since the basic economic structure would con-
tinue to be unjust, because they unjustly had more money. Should we therefore
take steps to prohibit or constrain the private market in medicine? Should that
be part of any respectable campaign to improve justice in health care? Of
course, we couldn’t actually abolish the private market in health care altogether:
we would end by producing back street dialysis. But should we do what we can,
aiming to prevent anyone from buying better medical care than the basic pack-
age provides, so far as that is possible?
The insulation model of medical justice I began by describing, if taken
seriously, would insist that we should, and I believe many people here this eve-
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ning would agree. Solidarity is compromised, they think, when some people can
live while others die only because the former have more money. That seems to
me the wrong answer, however. The spirit of the argument I have been making
suggests that no one can complain on grounds of justice that he has less of
something that someone else does, so long as he has all he would have if society
were overall just. And, of course, in the circumstances we are now considering,
people whose basic provision does not include liver transplants, and cannot
afford to buy such an operation for themselves, are by hypothesis not denied
what they would have if economic justice were perfect.
Some of you will hate that argument, as I said: you will think it intolerable.
May I remind you, however, that the hypothetical inequality in medical care I’m
now considering is, in one important respect, relatively benign compared to
other inequalities in our society. If health care were rationed in the way we are
contemplating, then everyone would have at least the medical care he would
have in a just society, and that would not be true in most other departments of
resource allocation. In education, employment, culture, recreation, travel, expe-
rience and a host of other goods and opportunities that for most of us make up
the value of being alive, the poor would continue to have much less than they
would if we had reformed not just health care but our economic and social life
more generally. If we somehow manage to succeed in providing the poor with
the medical care that justice requires, it would be perverse, given that a rich man
can spend on more comfortable housing or better education for his children, not
to allow him to spend on more expensive health care. We would do better to put
an excise tax on special health care, and use the proceeds of that excise tax to
improve public education, or the economic infrastructure, or to reduce public
debt that blights employment prospects, or in some other ways that would make
the community distinctly more egalitarian.
6.
I will offer you no final summary of my somewhat discursive remarks; I
shall try, instead, to broaden the argument in closing it. I began by criticizing
the insulation model, as I called it, and you may think I’ve been undermining
that criticism in the last part of the lecture. I’ve been arguing how we might
make our communities better in just one respect, and that goal seems to assume,
with the insulation model, that health care is special, “chief’ among goods. But
my special interest in medical care is largely practical. Medicine is now a prob-
lem for people so high up in the economic scale -7 well up into the middle, fat
part of the economic diamond where the votes are. People generally, not just the
poor, agree that government should take a larger role in structuring, controlling
and financing the provision of health care. We can seize on this opportunity to
make the distribution of health care more just as well as more efficient.
But if America does make new progress in that direction, as Canada
already has, then the lesson might be of more general political importance. For
one thing, it might teach us that the bad press the ideal of equality has had for
some time is unjustified. There is a rap against equality: that accepting equality
as an ideal, even one among others, means levelling down and requiring every-
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one to live the same kind of life. But the conception of equality I’ve been rely-
ing on has quite the opposite character: it is dynamic and sensitive to people’s
differing convictions about how to live.
I end with this further observation: the question of health-care reform in
America, including politically acceptable and fair health-care rationing, is ideo-
logically leveraged. If we find, after all the fuss, that politically we can’t do
much to make the distribution of medical care more just, in spite of the apparent
present opportunities to do so, then a pessimistic conclusion may be irresistible:
we may abandon hope for any more widespread or general democratic concern
for social justice. But if we do now make substantial and recognizable political
progress -in this one urgent matter, we may learn more, from the experience,
about what justice itself is like, and we might find it to our taste, so that we can
steadily, bit by bit, incrementally, fight the same battle in other areas. So the war
against injustice in medicine that you have been fighting so well here, and that
we are about to take on in America, is indeed a crucial one. Health might not
be more important than anything else – but the fight for justice in health might
well be.
