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Will Clinton’s Plan Be Fair?

It is impossible to answer these questions with any precision.11 But we can nevertheless make two crucial claims about justice. First, whatever that transformed community actually spends on health care in the aggregate is the morally appropriate amount for it to spend: it could not be criticized, on grounds of justice, for spending either too much or too little. Second, however health care is distributed in that society is just for that society: justice would not require providing health care for anyone that he or his family had not purchased. These claims follow directly from an extremely appealing assumption: that a just distribution is one that well-informed people create for themselves by individual choices, provided that the economic system and the distribution of wealth in the community in which these choices are made are themselves just.12

These important conclusions help us to decide what health care we should aim to provide for everyone in our own, imperfect, and unjust community. We can speculate about what kind of medical care and insurance it would be prudent for most Americans to buy, for themselves, if the changes I imagined had really taken place; and we can use those speculations as guidelines in deciding what justice requires now—in deciding, for example, which medical tests and procedures the National Health Board should decide are “necessary and appropriate” if the Health Security Act is passed.

Consider a twenty-five-year-old with average wealth and prospects, and state-of-the-art knowledge of medicine. Suppose he can choose from a wide variety of possible arrangements to provide for the health care he might want, under various contingencies, over the course of his life. What arrangements would it be prudent for him to make?13 He might be tempted, initially, to buy insurance providing every form of treatment or care that might conceivably be beneficial for him under any circumstance. But he would soon realize that the cost of such wildly ambitious insurance would be prohibitive—he would have nothing left for anything else—and decide that prudence required a much less comprehensive insurance program.

Of course, what is prudent for someone depends on that person’s own individual needs, tastes, personality, and preferences, but we can nevertheless make some judgments with confidence that they would fit the needs and preferences of most contemporary Americans. We can be confident, for example, about what medical insurance it would not be prudent for most people to buy, because some insurance would be a mistake no matter what happened in the future, including the worst outcome. It would be irrational for almost any twenty-five-year-old to insure himself so as to provide for life-sustaining treatment, to be provided if he falls into a persistent vegetative state of permanent unconsciousness, for example. The substantial sum he would have to spend in insurance premiums, year by year, to provide that coverage would be much better used in other ways to enhance his actual, conscious life. Even someone who lived only a few months after purchasing the insurance before he fell into a vegetative state would have made, in retrospect, a mistake, giving up resources that could have made his short remaining conscious life better, in order to buy a longer unconscious state.

We can enlarge this claim to include dementia as well as unconsciousness: it would not be prudent, for almost anyone, to 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 form of irreversible dementia. The money spent on premiums for such insurance would have been better spent, no matter what happens, in making life before dementia more worthwhile. Of course, most prudent people would want to buy insurance to provide custodial care, in conditions of dignity and adequate comfort, if they became demented; providing for such care would be much less expensive than providing for life-saving treatment—for example renal dialysis or an organ transplant—if it were needed.14

Now consider a somewhat more controversial suggestion. In most developed countries, a major fraction of medical expense—over a quarter of Medicare payments in the United States, for example—is spent on people in the last six months of their lives. Of course, doctors do not 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 do know that he will. Most young people on reflection would not think it prudent to buy insurance that could keep them alive, by expensive medical intervention, for four or five more months at the most if they had already lived into old age. They would think it wiser to spend what that insurance would cost on better health care earlier, or on education or training or investment that would provide greater benefit or more important security. Of course, most people would want to live those additional months if they did fall ill: most people want to remain alive as long as possible, provided they remain conscious and alert and the pain is not too great. But prudent people would nevertheless not want to guarantee those additional months at the cost of sacrifices in their earlier, vigorous life, although, once again, they would certainly want insurance to provide the much less expensive care that would keep them as comfortable and as free of pain as possible.

We can use these assumptions about what most people would think prudent for themselves, under fairer conditions than those we now have, as guides to the health care that justice demands everyone have now. If most prudent people would buy a certain level of medical coverage in a free market if they had average means—if nearly everyone would buy insurance covering ordinary medical care, hospitalization when necessary, prenatal and child care for their children, and regular checkups and other preventative medicine, for example—then the unfairness of our society is almost certainly the reason some people do not have such coverage now. A universal health-care system should make sure, in all justice, that everyone does have it.

On the other hand, if even under fair conditions very few prudent people would want to insure themselves to a much higher level of coverage—if, as I said, very few people would insure to provide life-saving care when demented, or heroic and expensive treatment that could prolong their lives only by a few months, for instance—then it is a disservice to justice to force everyone to have such insurance through a mandatory scheme. Of course, any judgment about what most prudent people would do is subject to exceptions: some people have special preferences, and would make very different decisions from those many other people would. Some people might think, even on reflection, that guaranteeing a few extra months of life at the end was worth great sacrifice earlier, for example.15 But it seems fair to construct a mandatory coverage scheme on the basis of assumptions about what all but a small number of people would think appropriate, allowing those few who would be willing to spend more on special care to do so, if they can afford it, through supplemental insurance.

If we substituted the prudent insurance approach for the rescue principle as our abstract ideal of justice in health care, we would therefore accept certain limits on universal coverage, and we would accept these not as compromises with justice but as required by it. Expensive treatment for unconscious or demented or terminally ill patients would be relatively easy cases to decide if we adopted that approach. Other decisions would be more difficult to make, including, for example, heart-wrenching decisions about the care of babies born so deformed or diseased that they are unlikely to live more than a few weeks even with the most heroic and expensive medical intervention. Last summer doctors in Philadelphia separated newborn Siamese twins who shared a single heart, though the operation would certainly kill one baby and give the other only a one in a hundred chance of surviving for long, and though the total cost was estimated to be a million dollars. (The twins’ parents had no medical insurance, but Indiana, where they lived, paid $1,000 a day toward the cost, and the Philadelphia hospital absorbed the rest.) The chief surgeon justified the procedure by appealing to the rescue principle: “There has been a unanimous consensus,” he said, “that if it is possible to save one life, then it is worth doing this.”

But the different standard I am defending would probably have recommended against the operation.16 Suppose people of average wealth, when they marry, are offered the opportunity to buy one of two insurance policies: the first provides that if any of their children is born with a life-threatening defect, neo-natal treatment will be covered only if it offers a reasonable (say 25 percent) chance of success, and the second—much more expensive—provides that such treatment will be guaranteed even if it offers only the barest hope. Most potential parents would decide, I believe, that it would be better for them and their families to buy the first policy, and to use the premiums they would save each year to benefit their healthy children in other ways—to provide better routine medical care, or better housing, or better education, for example—even though they would be giving up the chance for a desperate gamble to save a defective child if they ever had one.

If the act is adopted, the National Health Board, as I have said, will have to decide what medical procedures are “necessary and appropriate” and thus should be part of the comprehensive package of benefits everyone is guaranteed. Some of these decisions would be particularly difficult: deciding when very expensive diagnostic techniques or experimental organ transplants with a low chance of success are appropriate, for example. Such decisions must of course be based on the best and latest medical evidence, and must constantly be reviewed as that evidence changes. But they, too, should be guided by the standard of individual prudence: Would it make sense for someone to insure himself when young to guarantee a vastly expensive blood test which would improve the diagnosis of a heart attack by a very small percentage of accuracy if he should ever have doubtful symptoms of cardiac disease? Or to provide a risky, expensive, and probably ineffective bowel and liver transplant if doctors decided it would give him a small chance to live?

The rescue principle insists that society provide such treatment whenever there is any chance, however remote, that it will save a life. The prudent insurance principle balances the anticipated value of medical treatment against other goods and risks: it supposes that people might think they lead better lives overall when they invest less in doubtful medicine and more in making life successful or enjoyable, or in protecting themselves against other risks, including economic ones, that might also blight their lives. An agency such as the National Health Board might well decide that while prudent people would provide their family with the prenatal and well-child care that so many Americans lack, and would insure against serious medical risks at all stages of their lives by providing tested and reasonably effective treatment should they need it, they would forgo heroic treatment of improbable value if they needed it in return for more certain benefits like education, housing, and economic security, for example. If so, then justice demands that a national health scheme not provide such treatment.

  1. 11

    It does seem likely that even though the members of the imagined community would begin by making individual insurance decisions, they would soon develop, through these individual decision, collective institutions and arrangements like cooperative insurance purchasing agencies or pools, because these would provide economic advantages in a free market among people of roughly equal wealth. The result of the process might very well be something functionally very close to that proposed in Clinton’s plan.

  2. 12

    My claim needs minor qualification. Even in the imagined community, some paternalistic interference might be necessary to protect people from imprudent insurance decisions, particularly when they are young. And some constraints might be necessary to provide adequate resources for later generations.

  3. 13

    That is different from asking what any particular twenty-five-year-old would in fact do, because many people, particularly when young, do not make prudent decisions. They do not, that is, make the decisions that best serve the plans, convictions, tastes, and preferences they would find, on reflection, that they already have. It is prudent, of course, to provide for change—any prudent long-term insurance policy is written in general clauses rather than precise details of treatment, and is open to revision year by year.

  4. 14

    See my recent book, Life’s Dominion (Knopf, 1993), Chapter 9.

  5. 15

    People with certain religious convictions might make that choice, for example. But it is worth noticing that even those Catholics and others who think that it is always wrong to refuse available life-prolonging treatment do not necessarily think that all possible sacrifices must be made, in advance, to insure that very expensive life-prolonging treatment is available. Someone who thought it would be wrong, as a matter of religious principle, to decline an expensive and arduous operation that he could afford in order to extend his life a few months might nevertheless, with perfect consistency, think it prudent not to pay for the insurance, over his lifetime, that would enable him to afford it. He might think it more sensible to use the money that such insurance would cost to provide better medical treatment for himself or his family earlier, or better education, or some other goods or opportunities his convictions also deemed important. If so, then the prudent insurance test offers no reason why a national health scheme should make available for him what he would not have insured to provide for himself.

  6. 16

    At this date, one twin survives, but she remains in serious condition and is still breathing with the help of a ventilator. (See The Washington Post, December 12, 1993.) Even if she is able to lead some form of life, it would not follow that the decision to perform the operation, at a time when the chance of survival for long was remote, was a just one.

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