Why Luck Egalitarianism cannot uphold Justice in Health
Lasse Nielsen
PhD student,
Dept. of Political Science
University of Aarhus – Denmark
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This paper is a draft. Please do not circulate.
AbstractIn his most recent works, Shlomi Segall argues for a luck egalitarian approach to justice in health. Concurring with the thoughts of G. A. Cohen he defends the idea that it is unfair for individuals to be worse off than others due to outcomes that it would not be reasonable to expect them to avoid. In his defense of the luck egalitarian approach he argues against the criticism raised by Norman Daniels that luck egalitarianism is in some way too narrow and in another too wide to uphold justice in health and health care distribution. Instead he suggests a pluralistic outline of luck egalitarianism. In this article I argue that Segall’s defense of the application of luck egalitarianism to justice in health is inadequate. First of all, he has not sufficiently showed that luck egalitarianism applies well to health distributions above a threshold of basic needs. Secondly, his defense against Elizabeth Anderson’s abandonment objection is problematic from a luck egalitarian standpoint. Finally, I argue that luck egalitarianism in general fails to acknowledge the moral foundation of health and health care as a basic human entitlement. Thus I conclude that luck egalitarianism cannot uphold justice in health.
Introduction
How to prioritize within the health care system in modern welfare societies is one of the most important political debates of our time. At the center of this political debate lies an even more fundamental inquiry for political philosophers, that is, how to set the most just standard for distribution of health and health care[1]. In recent works, Shlomi Segall and Norman Daniels have forcefully engaged in this inquiry arguing respectively for a luck egalitarian and a normal functioning approach to distributive justice in health. In his most recent works, Segall defends his own luck egalitarian approach against objections made by among others Daniels which hold luck egalitarianism to be in some way too wide and in another too narrow to uphold distributive justice in health. In this article I seek to contribute to the inquiry by providing additional force to these criticisms of luck egalitarianism as a standard of distributive justice in health.
My argument follows three steps: Firstly,I argue that Segall does not adequately defend himself against the objection that luck egalitarianism is too wide since the examples his defense rests upon concern matters that are morally relevant from a basic normal functioning point of view and therefore it is not obvious that people ought to be compensated for disadvantages above a threshold of normal functioning, as would a luck egalitarian approach claim. Thus, the objection that luck egalitarianism is too wide, I conclude, still stands.
Secondly, I attend to the question of whether luck egalitarianism is too narrow. I do this by discussing the abandonment objection raised by Elisabeth Anderson (1999, p. 295) to the application of luck egalitarianism below the threshold. Segall suggests a weighted lottery model to cope with the objection’s implications. I argue that the weighted lottery model cannot be a valid luck egalitarian solution and therefore I reject Segall’s approach.
Finally, I argue against luck egalitarianism in general that we ought not to be responsibility-sensitive in matters of health care distribution below the threshold of basic needs since we will thereby fail to acknowledge that people are entitled to health and basic health care merely as a result of being human beings. By failing to acknowledge this, I conclude, luck egalitarianism shows itself to be too narrow.
Before presenting my own argument I must account for Segall’s luck egalitarian approach. In the following section I lay out the basic idea of luck egalitarianism adding to this Segall’s further development of it in relation to health distribution. Segall suggests a pluralistic approach in which he supplements the basic idea of luck egalitarianism, the choice-luck distinction, with a sufficientarian threshold of basic needs. I take this to strengthen the application of luck egalitarianism in matters of health distribution.
A Luck Egalitarian Approach to Justice in Health
Luck egalitarianism is generally the idea that it is unfair for a person to be worse off than others “due to reasons beyond her control” (Segall, 2010a, p.10). Thus, the idearestsupon a distinction between brute luck, over which a person has no control, and option luck, over which a person has full or at least partial control. The distinction can be traced back to Dworkin’s article from 1981, in which he defines option luck as “a matter of how deliberate and calculated gambles turn out” and brute luck “as a matter of how risks fall out that are not in that sense deliberate gambles” (Dworkin, 1981, p. 293). The basic idea then, is that it is unfair for people to be worse off than others due to brute luck. According to Cohen, Dworkin in his article does egalitarianism the favor of performing “the considerable service of incorporating within it the most powerful idea in the arsenal of the anti-egalitarian right: the idea of choice and responsibility” (Cohen, 1989, p. 933). Cohen himself elaborates on this idea developing his own approach to distributive justice suggesting that attention be paid to the cut between choice and luck. The relevant question for egalitarian justice, he argues, is whether “someone with a disadvantage could have avoided it or could now overcome it” (Cohen, 1989, p. 920). In later works he emphasizes that a more appropriate understanding of the question is whether we can reasonably expect people to have avoided their disadvantages (Cohen, 2004, p. 11). Thus, according to Cohen’s later writings, egalitarian justice requiresthat we should compensate people for disadvantages that it would not be reasonable to expect them to avoid or overcome.Shlomi Segall concurs with this line of thought and has recently applied this luck egalitarian outlook to distributive justice in health. In this section I shortly give an account of Segall’s version of the luck egalitarian approach.
Establishing his version of a luck egalitarian approach to distributive justice in health Segall reformulates the concept of brute luck. He passes on the intuition from Cohen defining brute luck as, “the outcome of actions (including omissions) that it would have been unreasonable to expect the agent to avoid (or not to avoid, in the case of omissions)” (Segall, 2010a, p.20). As a result of this definition of brute luck it becomes possible for Segall to cope with cases that would be critical for other versions of luck egalitarianism. Consider for example, as does Segall himself, people residing in a geographic area highly vulnerable to natural disasters (e.g. earthquakes, hurricanes and so forth). A person’s residence in such an area lies (at least partly) within her own control, since she can simply choose to move her residence to a safer area. Thus, on a rather strict reading of luck egalitarianism residing in a high-risk area would be a matter of option luck, that is, the agents own choice of gamble, and as a consequence strict luck egalitarianism will refuse to compensate people for the loss of well-being on account of their residence since it is not a result of bad brute luck. Neither is being in need of medical care during pregnancy according to a strict reading of luck egalitarianism a result of brute luck since it is something that the agent (at least to the extent that it could have been foreseen) is herself responsible for. I agree with Segall that theseimplications of the strict luck egalitarian view are counterintuitive and too harsh.
Segall’s approach copes better with cases like the one of high-risk residence and need for medical care during pregnancy. Given the more broad formulation of luck egalitarianism it becomes plausible that things like residence and being (in need of medical care while) pregnant be considered within the scope of bad brute luck and therefore something that agents should be compensated for would it result in some kind of disadvantage. The general idea here is that even though agents are (normally) responsible for living in a specific geographic area and also (normally) for being pregnant, it would be unreasonable to expect them to move to another area or refrain from getting pregnant simply due to the risk of disadvantages caused by either residence or pregnancy.So, Segall argues, luck egalitarianism should focus their attention on leveling inequalities that it would be unreasonable to expect people to avoid, not all inequalities for which people are themselves responsible, since by the latter we risk holding people responsible for too much.
Moreover, Segall qualifies his approach even further by adopting a pluralist account of luck egalitarianism, holding that beside the point of reasonable avoidability people should be compensated for their “basic needs” – that is, even though they could reasonably be expected to have avoided their disadvantage, they should be compensated for it if it leaves them below some sufficientarian level of basic needs (Segall, 2010a, p. 69). According to Segall though, this is not as a matter of distributive justice but of more fundamental moral requirements. This qualification, it seems to me, is a way of following what Kristin Voigt calls “The ‘Minimum Threshold’ Strategy” to respond to the harshness objections (Voigt, 2007, p. 404).
As far as I understand Segall on this point, the idea is that we must distinguish between the realm of distributive justice, in which luck egalitarianism holds the most plausible principles of distribution, and the more fundamental moral requirements such as meeting everyone’s basic needs (Segall, 2010a, p. 69). According to Segall the fundamental moral requirements have priority over principles of distributive justice and therefore, by acknowledging this, a luck egalitarian will not tend to abandon patients with basic needs due to the fact that their neediness is their own fault, even though he thinks that questions about distribution should normally be given a responsibility-sensitive answer.
Segalls distinction between distributive justice and fundamental moral requirements can, I believe, be understood as a separation of the realm of justice from that of basic needs, the relevant question in relation to which is whether the worst off has a right (of justice) to be secured their basic needs by society or it is rather that every citizen have a duty (not of justice) to secure others their basic needs. Segall argues for the latter holding that, “It is because we have a duty to meet basic needs, not because people have a right to have their basic needs met, that one may not waive away one’s entitlement to medical care” (Segall, 2010a, p. 78).
Consider for a moment how luck egalitarianism then actually comes to work in issues of justice in health. It seems that the prioritized relationship between sufficiency of basic needs and luck egalitarian distributive justice leaves open only two ways in which luck egalitarianism will apply. First, if we are dealing with issues of health distribution above the sufficient level of basic needs luck egalitarianism would supposedly provide the best standard for a just distribution. Thus, luck egalitarianism should be applied above the sufficiency threshold. Second, if we are dealing with issues of distributive justice below the sufficient level of basic needs we would be morally required to secure everyone’s basic needs equally, independent of the individual patient’s self-responsibility, unless in cases where different patients are equally needy below the threshold level, in which case luck egalitarianism should be applied as a tiebreaker to appoint priority to the innocent over the responsible patient. In sum, these two applications seem to be the only ways in which Segall can apply luck egalitarianism to justice in health.
The purposive division between luck egalitarianism below and above the threshold of basic needs will structure my argument. In the following section I discuss the possibility of applying a luck egalitarian standard above the sufficient level of functioning. In a later section I discuss the abandonment objection to the application of luck egalitarianism below the threshold.
In brief, Segall accepts, for reasons of fundamental moral requirements, that people should be compensated for their lack of basic need satisfaction, and holds further that a luck egalitarian approach to justice in health requires that, “society ought to fund biomedical treatment for any condition that:
- is disadvantageous;
- could be fixed by biomedical intervention;
- it would be unreasonable to expect the individual to avoid.” (Segall, 2010a, p. 127).
Though I do find Segall to provide insufficient information about the potential criteria for reasonable avoidability and the specific outline of the luck egalitarian pluralism, I generally take these qualifications to strengthen the luck egalitarian intuition. To reject his approach then, I take it, is to reject the moral importance, in matters of health, of luck egalitarianism in one of its strongest formulations.
Is Luck Egalitarianism Too Wide?
Norman Daniels’ approach to justice in health, expanding the rawlsian principle of “fair equality of opportunity” to concern health, builds on the idea that it is unfair for a person to be below normal functioning, that is, in Daniels’ own terms, “the fair equality of opportunity principle applied to health needs does not rectify or level all inequalities in function among people. It aims only to keep people functioning normally and thus to assure them the range of opportunities they would have in the absence of disease or disability” (Daniels, 2008a, p. 58). According to this view the luck egalitarian idea demands too much when holding that people should be compensated for disadvantages beyond their control. To see this, consider cases of medical surgery for merely cosmetic reasons which have been intensively debated in the literature (Daniels, 2008a, p. 73, Daniels, 2008b; Buchanan et al., 2000, p. 110). The point of criticism here is that luck egalitarianism seems to imply public funding for cosmetic surgery like plastic surgery for women who would prefer smaller or bigger breasts since their breast size constitutes an involuntary disadvantage to them. Nonetheless, this is a proposition that we do not normally find justified. Therefore, the criticism goes, luck egalitarianism shows itself to be too expansive or too wide.
The relevant distinction for the criticism here is said to be the one between cosmetic and reconstructive surgery, though in my opinion this distinction is only relevant as a specific outline of the more fundamental distinction between treatment and enhancement[2]. If I understand Daniels correctly, this distinction is definitionally linked to the idea of normal functioning and as such, treatment is biomedical intervention securing an agentthe normal functioning level whereas enhancement is biomedical intervention above this level (Daniels, 2008a, p. 149).
According to a position like Daniels’ we should compensate people only for their lack of normal functioning, that is, we should offer public funding for treatments, as for example reconstructive surgery, and not for enhancements, such as cosmetic surgery, but unfortunately luck egalitarianism cannot restrict itself in accordance with this distinction since having an unfortunate appearance (e.g. the wrong breast size) can (and in most cases would) be something that it would be unreasonable to expect the individual to avoid, and therefore the society should, according to the luck egalitarian approach, in many situations accommodate peoples wishes for public funded cosmetic surgery.
Segall defends the luck egalitarian position against this objection and his defense points in two directions. I will argue that both are inadequate. I am not thereby claiming to have rejected the idea of luck egalitarianism all together but rather, and more modestly, that Segall’s defense does not suffice to show that luck egalitarianism is in fact not too wide and therefore the objections still stands.
Firstly, he claims that maybe public funded cosmetic surgery is not morally counterintuitive after all. I will get back to this claim in a moment.
Secondly, there could be, Segall claims, valid reasons for a luck egalitarian to give priority to reconstructive over cosmetic surgery. One reason concerns the fact that cosmetic surgery is more susceptible to moral hazard than reconstructive surgery, since, as Segall rightly assumes, “many more women would opt to change the size of their breasts who would otherwise not have”, if cosmetic surgery was to be made free of charge for all (Segall, 2010b, p. 352). I agree with Segall that the increased risk of moral hazard is in fact problematic but I fail to see how this makes a difference for a luck egalitarian, since women who want the size of breasts changed is obviously in a way disadvantaged by their current condition and therefore moral hazardous behavior, by which I only mean, as does Segall, the changing of one’s preferences due to availability of free coverage, is not as such a reason for luck egalitarians to give lower priority to cosmetic surgery.
The problematic thing about the women’s moral hazardous behavior is, in my view, that they take advantage of there being free coverage for biomedical intervention that is preferable to them but not necessary to secure them sufficiently normal functioning. Segall’s pluralistically qualified approach can provide this kind of reasoning, since it does take account of basic needs on the grounds of more fundamental moral requirements. But this is a result of the sufficientarian standard and not the luck egalitarianism, so to take moral hazard as a valid reason to give priority to reconstructive over cosmetic surgery, one must accept (at least) some sufficientarian standard of basic needs.