Health Care Rationing and Kidney Rationing

Even if you don’t find them convincing, it’s hard to avoid the arguments of Peter Singer.  This week, he published an essay in defense of health care rationing.  I am inclined to share Singer’s view that health care rationing is both a reasonable and justified (perhaps the only reasonable and justified) method of dividing up scarce health care resources, and so it was unsurprising to me that many of the things he said sounded quite sensible.   But, as I began to examine Singer’s thesis about value, it occurred to me that his argument justified much more than a modestly budgeted single-payer health care system.   If Utilitarians are right that political and economic policies are justified on the grounds that they maximize utility, a system of compulsory national organ donation is justified for exactly the same reason.   I don’t find this conclusion terribly problematic philosophically, but it makes it hard to sell the idea that Utilitarianism broadly encapsulates our moral intuitions.

In my last post, I argued that Utilitarians have a difficult time defending moral rights as they are normally understood because, for the Utilitarian, the moral act is always that which maximizes utility (happiness, pleasure, etc.) across the board.  Utilitarian justifications for breaking conventional moral rules are commonplace and often quite intuitive.  If you have ever told a white lie to spare someone’s feelings, shrugged off a mistake with the qualification that "nobody got hurt," or argued that military action that kills a few to save a million is justified, you have used a Utilitarian justification.   Most people agree that it is justifiable to sacrifice one, nameless, person who just happens to be in the wrong place at the wrong time if such a sacrifice is necessary to save the lives of a million people.  (Imagine one ignorant carrier of a highly contagious virus who is about to enter a crowded thoroughfare and begin a catastrophic epidemic.) As the number of lives saved goes down, or as the identity of the sacrificed person becomes less hypothetical, however, our intuitions about the morality of Utilitarian calculation become less clear.

The standard example used to demonstrate the counter-intuitive implications of Utilitarian ethics is the case of a doctor faced with the opportunity to save five innocent people by killing a sixth innocent person and harvesting his organs.  Most people do not think it is morally justifiable to kill a healthy  human being even if, in death, his organs could be used to save the lives of many other people who will die without a transplant.  Utilitarians have tried to defend* their view from this objectionable implication by arguing that laws that would allow a doctor to divvy up one healthy patient would not maximize happiness because they would keep people from going to the doctor. Unfortunately, these strategies, though politically appealing, do little to alter the moral directives of the theory.  While a law that prevents patient sacrifice may promote more utility than a law which allows the practice, a Utilitarian doctor would reason correctly that the loss of utility from legalizing the practice of patient sacrifice comes as a consequence of public opinion, not at the sacrifice of the patient.  The Utilitarian can make no argument that it is morally obligatory to break the law in such circumstances when utility is maximized by doing so, and so the doctor is left to the conclusion that the morally obligatory choice is to divvy up the patient and then cover up the sacrifice, leading to the maximally optimum outcome of more patients being saved and the public being happily comfortable in their ignorance.

In this week’s New York Times Magazine, Peter Singer makes the reasonable assertion that health care, as a costly and limited resource, is always rationed.  He then makes the case that rationing on the basis of cost-versus-out-come, with the end goal of providing life-saving, and life-improving medical care for the greatest number of people, is a more ethical approach than our current system which doles out the best health care to to those who can pay for hefty private insurance premiums.  According to Singer, a single-payer system of public health care is justified because it is likely to improve overall happiness as measured in QALY’s or quality-adjusted-life-years.

More people will live better lives for longer if we adopt a single-payer health-care system.  But if the only reason to adopt this system is that it maximizes this outcome (utility as measured in QALY’s), then we should also adopt a system of compulsory live-organ donation.  In the United States today, approximately 80,000 people are waiting for a kidney donation, surviving with a very low quality of life on dialysis machines and waiting for the possibility of a live donor match.  Virtually no person donates a kidney altruistically, meaning that almost everyone who will receive a live donation will do so because a loved one has agreed to donate a kidney on their behalf.  This reality is made all the more tragic because live kidney donation is a relatively low-risk procedure.  Because the kidneys function as a single unit, they usually function or fail together meaning that, for almost everyone, one kidney will do the job about as well as two.  An organ donor who lives with one kidney faces very little additional risk once he recovers from surgery because his remaining kidney will expand to do the work of the pair.

In Utilitarian terms, it is not only reasonable but morally obligatory to ration out healthy kidneys to those who need them, perhaps by a compulsory national lottery (like a military draft).  Kidneys, like health care, are a scarce resource which, if better distributed, would maximize utility as measured in QALY’s.  The distribution of functioning or failing kidneys among separate individuals is at least as morally arbitrary as the distribution of quality health care among people of varying incomes.

So, why don’t just governments require all citizens to enter a national kidney registry?  If you believe that they should, and that it is not only morally defensible but morally obligatory to redistribute a scarce resource in a manner that will save lives and cause little overall harm, then, congratulations, you are a consistent Utilitarian.  If, however, it seems wrong to compel others to have an invasive surgery and give up a bodily organ, you need to rethink Utilitarian justifications.  There are other ways to justify single-payer health-care systems, and not all of them require the proverbial pound of flesh.

*There  is some debate in contemporary ethics about modified versions of Utilitarianism can overcome these objections.  The most popular of these modified versions of Utilitarianism is "Rule Utilitarianism."

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7 Responses to “Health Care Rationing and Kidney Rationing”

  1. James Gray Says:

    There is a disanalogy between compulsory kidney donation and rationing of health services. Rationing health services is merely a way to decide who gets help. You are not being harmed if health services are rationed. You might be harmed indirectly, but only in the sense that someone must be harmed indirectly. Utilitarianism is impartial. One person is not considered to be better than everyone else, so it makes perfect sense to help those who need the help the most.

    Additionally, no one is forced to give medical attention. Although we could all be medical professionals to help others with medial problems, this is not an obligation.

    However, compulsory organ donation requires us to help others. It would involve forcing people to help others.

    Although some utilitarians do not distinguish between superogratory and obligatory actions, some of them do. In general helping others is not an obligation and we are obligated not to harm others. Pain and pleasure are treated differently. Helping an harming is treated differently.

    I am personally not sure if compulsory organ donation is justified or not. Notice that we are now talking about law rather than morality. Giving up a kidney is not completely safe and without negative consequences to oneself. Not only are there health risks, but we have a legal right to keep our bodies in tact and to make our own decisions. You mentioned that you argued that utilitarianism can’t justify rights. I’m not convinced. Is it rule utilitarianism or act utilitarianism that can’t justify rights? I could imagine that rule utilitarianism could.

    You are right that Peter Singer and many others seem to think all morality is about obligation. We still haven’t proven that the utilitarian strategy/perspective of understanding morality through maximization of value and/or minimization of disvalue is a bad strategy/perspective. There is a lot of room for improvement.

    I myself do agree with the utilitarian perspective to some extent, but Nietzsche and virtue ethics offer much more practical perspectives for morality.

    • Liza Says:

      I’m sorry it has taken so long for me to respond.

      First, when you say “In general helping others is not an obligation and we are obligated not to harm others,” you are not describing a Utilitarian position. Utilitarians absolutely cannot make the distinction between negative moral action (i.e. refraining from harming others) and positive moral action (i.e. helping others), and thus they make no room for the supererogatory at all. If you think that there is an obvious distinction between hurting and harming others and that you are blameworthy for hurting others, but not equally blameworthy for not helping, then you are not a Utilitarian.

      The reason that Utilitarians (or proponents of other consequentialist theories) cannot make this distinction is because the theory is value-based, not rule based. What counts as “right” for the Utilitarian is always that action which is expected to produce the best consequences. Refraining from saving the drowning child in the wading pool will produce exactly the same consequences as throwing the child into the pool to drown, and so refraining from saving a life when you could is morally indistinguishable from actively killing someone. This is also why Rule Utilitarianism essentially breaks down into Act Utilitarianism, and thus fails to provide the protections against rights violations that it is intended to provide. For any kind of Utilitarian, the morality of an action is ultimately determined by the consequences it produces. Public opinion, legal ramifications, and personal reputation are all factors that the Utilitarian agent must weigh when calculating the utility of an action, but there is not special weight given to the mere following of a rule, whether it is a law, a religious prescription, or a deontic maxim. Utilitarians can consistently argue that we should enforce lots of restrictive laws and, at the same that individuals have a moral obligation to break those laws (and risk being punished for it) when doing so is likely to maximize utility.

      I don’t think that you want to say that “we have a legal right to keep our bodies in tact and to make our own decisions.” First of all, on an empirical level, this seems patently false. If our legislators can vote to enact a military draft, then we most certainly do not have that right. Secondly, your appeal to legal rights suggests to me that you have misunderstood my argument. I have made the claim that Utilitarianism is a poor foundation for one kind of legal right, the right to state-subsidized health care, on the grounds that it can’t provide a justification for a much more basic and intuitively compelling legal right, the right to sovereignty over our own bodily organs. Don’t get me wrong, I think we should have a legal right to both health care and sovereignty over our own bodies. I just don’t think a Utilitarian can make that claim. Now, it’s possible that the Utilitarian could make the argument that setting up an obligatory national kidney draft is wrong because it would not maximize utility, but I think that’s a shaky empirical claim. It seems likely to me that public outrage about requiring citizens to sign up for the kidney draft when they come of age would eventually fizzle into some combination of annoyance and regard for public service. It might, in fact, be more comparable to jury duty than the military draft because it would constitute a relatively small sacrifice, and citizens would be likely to view it with a sense of begrudging duty. People are easily manipulated, and so it is difficult to make a strong Utilitarian case against a law simply on the grounds that it would upset people.

      I think I have addressed all of your points and questions, but if I have left anything out, please let me know.

      • James Gray Says:

        Rather than present more questions, I will defend what I said before. I don’t think you adequately objected to them.

        Yes, a Utilitarian bases what is right and wrong on value. So what?

        “[Some] utilitarians blunt the force of the demandingness objection by limiting utilitarianism to what people morally ought to do. Even if we morally ought to maximize utility, it need not be morally wrong to fail to maximize utility. John Stuart Mill, for example, argued that an act is morally wrong only when both it fails to maximize utility and its agent is liable to punishment for the failure” – From the Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/consequentialism/

        We can also separate the good from the right, like Rawls. Utilitarianism might be about the good, but something else, like a contract theory, is about the right.

        We have a legal right to keep our bodies in tact, or “protect it from harm” because we don’t want people to punch us in the face, cut us with knives, and so forth. This is one of the most fundamental rights.

        We have a right to make our own decisions because personal projects is necessary for human life to flourish. This is basically a right that demands others treat us as autonomous rational animals. It is necessary for freedom of speech and thought.

        Your argument against these rights is that they aren’t absolute. So what? Name one absolute right. All rights can be disregarded when a more important right would be violated.

        The Draft isn’t the best counterexample because it is controversial. The main idea, however, is that our rights are taken away and we are turned into temporary slaves of the state. This in normal circumstances would be illegal. This is not a normal function of the government and it is only justified, if at all, during a state of emergency. If it is justified, it is to protect our freedom in the long run. Allowing another country take over would threaten the freedom of everyone within our country.

        • Liza Says:

          Re: A Utilitarian bases what is right and wrong on value. So what?

          So, it is legitimate to contest the value of happiness or any other consequentialist foundation for morality. I have done so in previous posts, and you have not directly responded to this problem. If you want to bracket the foundational problem, we can, so long as we acknowledge that it is a problem.

          Re: What the Stanford Encyclopedia of Philosophy says

          I’m not sure why you posted this link. I am familiar with the standard arguments and defenses of consequentialism, but it seems as though you may not be. I know that Mill thought there was a distinction between the morally obligatory and the morally permissible. He also thought that Bentham-style hedonic Utilitarianism was a “doctrine of swine” and that a state-protected realm of personal liberties and “self-regarding action” was justified by the principle of Utility. Unfortunately, I don’t find his arguments for these conclusions compelling. I mean no disrespect for Mill. I think his version of Utilitarianism is a great deal more defensible than any of its precursors, and most contemporary Utilitarians have not improved upon it. And, one of the reasons that his version of Utilitarianism is so much better is that he recognized some of the problems of classic Utilitarianism. This is why he spent so much time trying to construct a coherent, Utilitarian defense of personal liberties and rights, why he distinguished between “higher” and “lower pleasures,” and why scholars today debate about whether he was the founder of “Rule Utilitarianism.” I could address the problems with all of these arguments, but that seems a bit tangential.

          For our purposes, here is the problem with the Utilitarian distinction between the morally permissible and the morally obligatory: It is entirely ad-hoc. There is no good reason for a Utilitarian to say that it is morally impermissible to drown a child but permissible to let a child drown. Letting the child drown is just as likely to produce suffering as drowning the child intentionally. According to the Utilitarian, what makes an action good or bad is not the agent’s moral intention but the likely consequences of the action. Moral intention is only a factor in praise or blame insofar as an agent is to be praised when his actions are expected to maximize happiness and blamed when they are not. Therefore, the agent is just as morally blameworthy when he walks by the drowning child as when he throws the child in because in both cases the reasonable expected outcome of his actions is the same. The distinction between acting and “not acting” does not hold up here as it would for a deontologist because Utilitarians are compelled to think about global consequences for all of their actions. Modified versions of Utilitarianism which limit the global scope of action do so on flimsy pragmatic grounds or are also completely ad-hoc. If you think I have this wrong, please feel free to respond, but be explicit about the argument. It’s not enough to say that some Utilitarians think this or that. You need to give a defense of their position.

          Re: Separating the Good from the Right
          Most ethical theories account for both the Good and the Right, but they do so by subordinating one to the other. I don’t think Rawls is any exception. The rules of justice, or “the Right” are the foundation of his theory of justice. Following the rules allows each individual to pursue his own “conception of the Good,” but Rawls never specifies what this is, nor does he calculate the moral worth of action on the basis of the Good. The Good is subordinate to the Right in Rawls’ theory, and it is also mostly subjective. This means that a Contractualist would never justify an action on the grounds that it produced good consequences but rather on the grounds that he had the right to do it or that it was the right thing to do.

          Re: Rights Theory, Utilitarianism, Absolute Rights, Etc.

          I’m not sure whether you have much of a background in rights theory, but I’m guessing that you don’t, because if you did I don’t think you would say something like: “All rights can be disregarded when a more important right would be violated.” If you think this, then you misunderstand the concept of rights as they are generally viewed in law, contract theory, and non-Utilitarian ethics. The idea of a right is that it is a kind of sovereignty over a limited domain. In its weakest form, the “right” may just be absence of external constraint, such as the “natural rights” in Hobbes’ state of nature. In it’s strongest form, the right is a legal or moral entitlement which another person is legally or morally obligated to fulfill. It’s a misunderstanding of rights to say that we weigh them as “more” or “less” important. What we do is argue about the extent of their range and when they become forfeit. For example, we would argue that a person’s right to free speech does not extend to using a bullhorn in a residential neighborhood at 3 a.m. and that a citizen forfeits his right to pursue his own projects as he chooses when he breaks certain laws. It’s not an issue of weighing rights, but an issue of figuring out what rights are legitimately claimed and what rights are not.

          My position is that Utilitarians can’t give a good account of moral rights. For example, the Utilitarian can’t make a compelling case that it is wrong to kill an innocent person in circumstances when killing that person would save other people. Within a Utilitarian system, an innocent person’s “right to life” will be forfeit in exactly those circumstances in which it would be necessary to appeal to it (when it maximizes utility to kill him), so it is difficult for me to see how it is meaningful to speak of the right existing at all.

          This view of rights does not make me an absolutist. I fully admit that there are circumstances under which a person’s rights become forfeit. But if we are to make any sense of what it means to have a right (legal, moral, or otherwise) we need to have coherent structure for sorting out where one person’s rights end and another’s begin, and, when a right can legitimately be claimed, claiming it must mean something.

          Re: The military draft is a bad example because it is controversial.

          If you think the controversy surrounding the draft makes it a bad example, then you missed the point. You made an empirical claim that we have a legal right to sovereignty over our bodies. I challenged that empirical claim by pointing out that the state can compell us (and, in the past, has compelled us), by force, to risk our lives in the military. The question of whether we have a moral right (or SHOULD have a legal right) to sovereignty over our own bodies is separate from the question of actual legal rights, and it has no bearing on the empirical claim that I made.

          Also, Happy Birthday.

  2. James Gray Says:

    Liza,

    The fact that you might have mentioned something elsewhere on the site is irrelevant unless you expect me to read everything you ever wrote. If you think the utilitarian way of explaining supererogatory action is ad-hoc, that is not something you ever said before to me. Mill would say his “ad hoc” idea isn’t just ad hoc because it seems to account for our intuitions better than any other idea. If they don’t account for our intuitions better than any alternative, then you need a stronger argument against it. Right now Mill doesn’t have a lot of competition. Perhaps virtue ethics could do a better job, but it isn’t clear that virtue ethics as a whole is better than utilitarianism as a whole. Additionally, all moral theory is allowed to be ad hoc to an extent. Since when did any moral theory become fully justified by meta-ethics or anything else? In fact, moral theory is very justified by ad hoc kinds of ideas as long as it is based on some kind of social contract.

    I also don’t know why you think pragmatic grounds are so flimsy, but I suppose you are really just arguing against moral realism here. You want to say that no moral theory is fully justified by realist metaethics at this point. That might be true because moral realist metaethics was never meant to fully justify any theory that I know about. Realist metaethics has barely got off the ground. I am reading a book “Moral Realism and the Foundations of Ethics” by David Brink, and he has some interesting answers to the supererogatory issue involving metaethics. In particular, utilitarianism is not a decision theory.

    I understand rights theory pretty well. What I said about them was merely poorly worded to say as little as possible and get a point across. Philosophy would take forever if we had to define everything and be completely precise when we merely want to make a simple point. The point was merely that rights are limited by other rights. Perhaps I have a personal assumption that there are more important rights than others, but this seems to explain why you can’t use a bullhorn at 3am. Why do you think free speech is limited in that way? Do you want to say that “freedom of speech” itself was always limited in the sense that it says we can’t use a bullhorn at 3am? That does not sound right. We simply can’t use freedom of speech to take away the rights of others.

    However, all rights have to be able to bother people to some extent. We don’t need a right if it doesn’t bother anyone.

    Also: The USA government believes that it can take away our rights during a state of emergency. We are enslaved when we are drafted. Usually slavery is illegal.

    “If you think the controversy surrounding the draft makes it a bad example, then you missed the point. You made an empirical claim that we have a legal right to sovereignty over our bodies. I challenged that empirical claim by pointing out that the state can compell us (and, in the past, h as compelled us), by force, to risk our lives in the military. The question of whether we have a moral right (or SHOULD have a legal right) to sovereignty over our own bodies is separate from the question of actual legal rights, and it has no bearing on the empirical claim that I made.”

    What are you trying to say here? Exactly what point did I miss? You want me to say that we have a right to keep our bodies intact morally? I think we probably do. The draft is then irrelevant. It makes sense from a rule utilitarian standpoint that we shouldn’t harm other people’s bodies (without their consent).

    You still haven’t talked about rule utilitarianism, but I assume you don’t like it because it doesn’t sound to be justified by metaethics.

    Which theory do you think helps us sort out our rights and their limitations? Raws’s Theory of Justice?

    I don’t understand your point about Rawls’s Theory of Justice. You can be a utilitarian about the good and still admit that justice is in some sense more important for our behavior than the good. In that sense moral rights could limit our behavior before we worry about helping people. I don’t know that the good is purely subjective with Rawls, but it could be. Why is that a problem? (Again, probably because you are arguing against moral realism.)

  3. James Gray Says:

    Liza,

    Now that I have had more time to think about it, I think Mill’s argument that obligations are actions can be punishable sounds pretty good. This is perhaps an over-simplification because obligations involve all kinds of assumptions and we think people have obligations for all kinds of reasons. Overall, I am not sure that obligations should be tied to metaethics in the naive sense that you are a bad person or have done a great wrong for not living up to your obligation. Our ideas of obligation might have more to do with pragmatic everyday life, which is why you are probably unsatisfied with the Utilitarian answers to the distinction between obligation/supererogatory action.

    In other words a utilitarian need not discuss obligations at all. Maximizing goods is “good” or “virtuous,” but not an obligation.

    Still, we can consider what obligations are about in everyday life and why they seem worth thinking about. Most obligations are non-moral, such as when we make promises. Others are moral, which pretty much means something like, “You need to do x because it is very important,” or “Doing x is very destructive.” The force of intrinsic values reflects the importance of actions. We generally only say something is a moral obligation if it is important enough. So, there is a kind of threshold. If something is important enough, we might consider it to be an obligation. Here the word obligation does not necessarily mean you are evil or guilty for not living up to the moral ideal. Instead, it just means that prescriptive action required involves important consequences.

    We might have some sophisticated relation between wisdom, virtue, and obligation. Perhaps praise and blame are more personal. We praise and blame people for breaking the social contract just because we won’t allow certain kinds of behavior. We can use the idea of obligation to praise and blame people in the sense of saying, “You are a bad person” if we wish to say that the person is unwise and lacks virtue. We can also use the idea of obligations to say, “You are virtuous enough to know better.” We often suspect that even virtuous people can do wrong. This does not make them vicious, but the action can be seen as a mistake or failure of some sort.

    I don’t know if virtue has to be understood from a moral realist perspective in the sense that someone is virtuous and another is vicious. There might be better and worse levels of virtue. We simply say someone is virtuous if we think they are heroic and worthy of being a role model. People who are vicious fail to live up to even ordinary moral demands. What is heroic or ordinary might be based on subjective expectations even if we are right that there are more virtuous and less virtuous people. We might be able to rank people in order from best to worst.

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