## 1. What Societies Do About Access to Care



We might seek guidance from how some societies assure access to care,
keeping in mind that what societies actually do may not coincide with
what they should do as a matter of justice. If, however, there is
widespread belief that people owe each other access to certain kinds
of care, and this belief is embodied in institutions that attempt to
do that, it may give us some evidence about what people think they owe
each other. Of course, we find different institutional provisions of
access in different settings, and the differences may not reflect
differences in belief as much as differences in resources or social
history.



Nearly all developed countries provide all their residents with access
to a broad set of public health and individual medical interventions.
In these countries access to care is assured despite income and wealth
inequalities through universal coverage health systems. The method of
financing these universal access systems, as well as their
organizational structure, varies considerably. Some systems are funded
through general tax revenues as in Canada; others through payroll
taxes, as in several European countries; and others through a mix of
public and private insurance schemes, as in Germany. Thus some systems
are more progressively financed than others, since general tax
revenues are more progressive than social security or payroll taxes,
and these in turn are more progressive than insurance premiums. (In a
progressive tax scheme, the rate increases as the amount that is
taxable increases.) Some systems have public ownership of hospitals,
with physicians and nurses as salaried employees of the public system,
as in the United Kingdom or Norway. Others contain a mix of public and
private institutions, though with extensive public regulation of the
benefit packages available to people, as in Germany. Some systems
allow no insurance schemes except the universal coverage scheme, as in
Canada and until recently Norway; others allow supplementary
insurance, as in the United Kingdom.



Though all of these health care systems assure universal access to all
citizens, their benefit packages vary. Sometimes, the variations occur
at the level of specific treatments. For example, one system might
decide a particular drug for Alzheimer's is not cost-worthy,
whereas other systems might provide it. Sometimes the differences
involve whole categories of service. For example, the Canadian
national law requires coverage only for inpatient drugs, not
outpatient ones; different provinces provide different levels of
coverage for what is omitted from the national schemes. Similarly,
long-term care is not part of the national Canadian system, though
some Canadian provinces, but not all, provide long-term care. The U.S.
Medicare system provides nearly universal coverage to the American
elderly, but until 2006, when the 2003 Medicare Modernization Act
became effective, it excluded drugs from its benefit package (Medicare
2003). All universal coverage systems exclude certain categories of
service, such as cosmetic surgery (as opposed to reconstructive
plastic surgery). In general, then, where systems provide universal
access, it is access for all to a specific set of benefits that varies
from country to country, not to every service people may need or
want.



It is not only the wealthy, industrialized countries that assure
universal access to a broad range of personal medical services.
Recently, middle-income countries such as South Korea and Taiwan have
adopted universal coverage insurance schemes. Thailand and Mexico have
also added insurance schemes aimed at covering the nearly half of
their populations that had not been covered in the social security
schemes and other insurance schemes that are used by civil servants or
large employers. The benefit package in these different schemes is
often not equal across these components of the health system, but the
avowed goal is to close gaps in access and incrementally to approach
equality of access.



The WHO advocates universal coverage in low- and middle-income
countries as well as in richer countries (WHO 2010). A key issue in
these efforts is the comprehensiveness of the benefit package, which
in some reforms is a "thin" benefit package that may not
cover many needed services and that requires significant out-of-pocket
payments even for covered services. An ongoing policy debate will have
to address efforts to "thicken" the benefit package along
the three dimensions that define it: the number of people covered, the
types of services covered, and the amount of co-pays or deductibles
for covered services. Disagreements with the ethical guidance WHO
(Ottersen, Norheim, et al. 2014) has provided about how to
"thicken" the benefit package will no doubt be part of
that policy debate. Reasonable people will disagree how to trade
improvements on each dimension against the others, and a process will
be needed to resolve these disagreements. A related issue is whether
the health system can sustainably deliver the benefit package the
insurance scheme is committed to deliver.



For many years, the United States stood alone among wealthy developed
countries in not providing universal coverage through some form of
health-care insurance. Nearly 50 million people, mostly the employed
poor and near poor (Selden and Sing 2008), were uninsured as of 2010
(we note that he number is greater than the population of S. Korea,
which has universal health care coverage). The uninsured are not shut
out of health care altogether, since they obtain some care at public
hospitals (EMTALA 1986) and neighborhood clinics, but, according to
the Institute of Medicine (IOM 2002), the medical care they receive is
"too little, too late." Being sicker when care is
obtained, or getting inadequate continuity of care has a significant
impact on their health outcomes, leading to higher morbidity and
mortality rates, to say nothing of the greater cost of care.



In 2010, however, The Patient Protection and Affordable Care Act (ACA)
passed into law through a reconciliation act. It contains an
individual mandate requiring all individuals to purchase health care
insurance on penalty of a having to pay a special tax, expands
Medicaid (which is a means-tested health insurance program for the
poor jointly funded by states and the Federal government) coverage to
an intended 16 million people, establishes insurance exchanges to sell
insurance, much of it subsidized, to another intended 16 million
people, prohibits insurers from denying coverage because of prior
medical conditions, and allows children to be on their parents'
insurance until age 26. A U.S. Supreme Court decision (National
Federation of Independent Business vs Sebelius, Secretary of Health
and Human Services, 2012) upheld the individual mandate, but ruled
that states had the prerogative to expand Medicaid and that such
expansion could not be a requirement of the ACA. The failure to expand
Medicaid in some states and their ongoing opposition to the ACA meant
that the expansion of coverage did not reach the 32 million estimated.
The increased coverage of the ACA never included the estimated 12
million unauthorized immigrants (Daniels and Ladin 2014), who are also
excluded from universal coverage plans in most countries). Given that
many of the estimated 12 million long-term unauthorized immigrants in
the U.S. count as members of the society, even if they are not
citizens, coverage in the U.S., even if the PPACA is fully
implemented, will not be truly universal. Nevertheless, unauthorized
immigrants still have access to emergency care at all U.S. hospitals
because of EMTALA.



One of the largest groups of people excluded from access to insurance
coverage under the ACA is the group comprised of unauthorized
immigrants (who are also excluded from universal coverage plans in
most countries). Given that many of the estimated 12 million long-term
unauthorized immigrants in the U.S. count as members of the society,
even if they are not citizens, coverage in the U.S., even if the ACA
is fully implemented, will not be truly universal. To be sure,
unauthorized immigrants still have access to emergency care at all
U.S. hospitals because of EMTALA.



After the Trump Administration took office in 2017, there was an
effort by it and the Republican Congress to repeal and replace the
ACA. The House, with a significant Republican majority, narrowly
passed the American Health Care Act of 2017. The Senate version of it
failed to receive a majority of votes, and the efforts to repeal the
ACA and replace it later with a plan to be worked out also failed to
pass. Because President Trump has continued to threaten the ACA and
the Republican leadership in both houses put replacing the ACA high on
their list of goals, arguably the victory of the ACA and its goal of
reducing significantly the number of uninsured is not secure as of the
summer of 2017. (We return in Section 2 to discuss further the
Republican model of universal access, resting as it does on the
"choice" to be uninsured.) 



Aside from financial barriers to access, there are several important
kinds of non-financial barriers to access. These include forms of
discrimination and exclusion, such as racism and gender-bias;
geographical barriers; and language and cultural barriers, including
cultural attitudes toward disease and medical care. In the United
State, for example, we know that the prevalence of certain health
conditions is much higher among African Americans than whites.
Controlling for insurance coverage, income, and educational
differences, African-Americans are still less likely to receive
important treatments for a range of serious illnesses, including heart
disease and certain kinds of organ failure (IOM 2002). Just how to
explain these utilization disparities is a matter of ongoing research,
some of which focuses on conscious and unconscious attitudes and
racial stereotypes. Until advocacy groups for women, such as the
National Breast Cancer Coalition, lobbied successfully to alter
research funding policy, some women's diseases were
systematically under funded in the U.S. Similarly, there are
significant differences in access to care that derive from the
geographical maldistribution of providers, including physicians, and
services. Thus physicians concentrate their practices in wealthier
urban and suburban areas, leaving poor urban and rural areas
underserved. Many hospitals face the problem of overcoming language
barriers because of the large and diverse immigrant populations that
they serve, and striking examples abound of failures to meet health
needs because of cultural views about disease and medical care
(Fadiman 1997).



All of these kinds of barriers to access act as obstacles to providing
adequate health care both in the U.S and in many developing countries.
If justice requires providing universal access to health care, then
these barriers must be addressed as a matter of justice. Some of these
barriers to care, such as geographical and cultural barriers, remain
as such even in systems that aim to provide universal access. All of
them would have to be specifically addressed by any effort to move the
U.S. system toward the provision of universal access.



It might be thought that the provision of universal access to a range
of public health and personal medical services would go a long way
toward reducing health inequalities among different social groups,
whether ethnic or divided by socio-economic status. But, careful
studies in many countries, most dramatically in the United Kingdom,
have shown that health inequalities by class have not been reduced by
the presence of universal coverage through the British National Health
Service (Marmot 2004). Two longitudinal studies of British civil
servants, known as the Whitehall Studies, have shown a pronounced
socio-economic gradient of health across different categories of
workers: the higher a worker's occupational status, the longer
and healthier her life. In addition, this difference is not explained
by risk factors associated with occupational status, such as smoking
rates or lipid levels or other "lifestyle choices." Nor is
the gradient simply a result of "deprivation"--for
none of the civil servants are poor, lack basic education, or medical
care--and the gradient is present across all occupational
levels.



The Whitehall results are very robust and reveal a strong gradient of
health across a wide range of morbidity and mortality measures. They
are also consistent with findings found in many countries, both with
and without universal coverage. All these findings show a strong
impact of non-health care determinants of health: income and wealth,
education, inclusion and exclusion, including discrimination against
women and L.G. B. T. groups, social cohesiveness, and others. An
important focus of research is to explain the mechanisms that might be
at work in creating these health inequalities. The WHO Commission on
the Social Determinants of Health issued a final report in 2008 that
called for various policy measures that improve daily living
conditions and distribute more equitably money, power, and resources,
as well as research aimed at better measuring the influence of these
factors and evaluating the impact of measures to redistribute these
determinants of health more fairly (CSDH 2008).



For our purposes, however, the lesson to be drawn from the literature
on the social determinants of population health is that we cannot
expect health inequalities to disappear solely as a result of
providing universal access to care. Health care is not the only
socially controllable factor affecting population health and its
distribution. This leaves us with a question we shall have to address:
if other factors besides health care are important determinants of
health, then is the focus on providing universal access to health care
misplaced? Even if justice requires us to promote or protect health,
does it require us to do so through the provision of access to health
care, or should we now modify our view of the importance of health
care in light of what we have learned from social epidemiology? We
return to address this issue in Sections 3 and 4.



It will help to summarize the key points that emerge from this sketch
of what different societies do to provide access to care.


1. If we focus on developed countries, we find a nearly universal
commitment to assuring universal access to care in the form of
universal coverage. The methods of financing and organization may
differ, and the actual kinds of care provided may vary somewhat, but
there are avowals that universal access is a social obligation, even a
right, and there are institutions that approximate such coverage. To
be sure, some barriers to access remain even in these countries,
especially geographical maldistribution of services and inequalities
in access for some indigenous or minority groups.
2. Serious limitations on access remain in developed and developing
countries alike. In some, there remain financial barriers, for example
the 12 million unauthorized immigrants in the U.S. and elsewhere who
cannot buy insurance assured to others; in all countries, there are
non-financial barriers to care, often geographical, but also in many
there are racial barriers as well.
3. The commitment to universal access is hardly limited to developed
countries, for various middle income countries have recently provided
universal access (such as Taiwan and Mexico) or attempted to do so
incrementally, and there is a recent effort to include low-income
countries in the effort to secure universal coverage.
4. Nevertheless, the actual explanations of why institutions have
been developed that provide approximations to universal access may be
as varied as the local social histories of these countries, and there
is no simple way to infer from the presence of these institutions to
the conclusion that these are all efforts to promote conceptions of
social justice.
5. Despite the belief that probably accompanied the introduction of
universal access, namely that it would reduce health inequalities in
the population, we know from the social epidemiology literature that
health inequalities persist, that they are correlated with the
distribution of a wide set of non-health care goods, and that they are
present across a broad spectrum of the population.


## 2. Conceptualizing and Measuring Access to Care



Arguably, the goal of universal access to health care, as embodied in
health systems in nearly all developed countries, is to secure equal
or at least equitable access to needed care. How can we tell whether
or not access to care is equal? What should we count as equitable
access, if this involves departures from equal access? We might hope
that it is relatively unproblematic to determine when access to care
is equal, as it is, for example, with income, and that equitable
access would then consist of allowable or justifiable inequalities in
access. As we shall see in this Section, giving an account of equal
access, let alone equitable access, is not so easy.



Conceptualizing and measuring access to care is more complex a task
than it might seem at first. In part, this is because health care is
non-homogeneous in its function, for it does quite different things
for us. In addition, there is disagreement about the nature of health
care as a social good: some think it is just a commodity, to be
purchased in a market like other commodities; others claim it has a
special moral importance that distinguishes it from some other market
goods. If we are to make sense out of claims that we owe each other
equal or at least equitable access to care, and this means we must
overcome various barriers to access to care that create inequitable
access, then we need to be clear how to determine when access is
unequal or unjustifiably unequal.


### 2.1 When is Access to Care Equal?



It is tempting to think that we can give a completely
non-controversial definition of equal access to health care--much
as we can do for equality of income--and reserve all controversy
for debates about which departures from equality conform to acceptable
principles of justice. If *A* earns $10,000 less than
*B*, the inequality might be thought equitable by some if B
works longer or harder than *A*, by others if
*B*'s skills have a higher market value than
*A*'s, and by others if *B* needs more than
*A* does. Here our moral disagreements about appropriate
distributive principles show up as disagreements about just or
equitable income distribution, though there is no controversy about
whether incomes are equal.



The situation is arguably different for the notion of equal access to
health care: to arrive at a notion of equal access, we must already
have made various decisions about what considerations ought to count
in judging when access is equal. These decisions reflect our purpose
or interest in making the judgment about equality, and some of these
discriminations are themselves moral. So moral considerations are
already embedded in the specification of equal access and are not held
at bay until we get to decisions about equity.



To see the point, consider what may seem to be a trivial example. Is
there equal access among department colleagues to the coffee in the
lounge not far from Prof. *A*'s office? If there is no
wheelchair access to the lounge, then a paraplegic colleague can
readily claim unequal access--and this claim has force even if
she drinks as much coffee as she wants because someone is willing to
fetch it for her. What should we say about the fact that the coffee is
only ten feet from Prof. *A*'s office, but thirty from
her junior colleague's? Does it matter if one colleague hates
the color of the paint in the lounge but others do not? Does it matter
that one colleague has had negative experiences in the coffee lounge
on a previous job but other colleagues have not? If we view access to
coffee as meeting an important need, then we might worry about the
unequal distances or the psychic burden of seeking the coffee, but if
we think coffee is only an amenity (leave aside addiction), then we
might not care about these other issues, even if they lead to
differences in preferences for obtaining coffee and in coffee
consumption. How we think about the importance of drinking coffee
matters to us when we consider whether access to it is equal.



The same point applies to judgments about equal access to health care:
such judgments presuppose some view about the moral importance of
health care. Nevertheless, it is probably fair to say that all that
most people have in mind when they talk about equal access to health
care is a negative criterion, specifically that certain traditional
constraints on access, mainly financial, geographical, or
discriminatory, should play a minimal role in determining whether
people who need health care get it. There may be implicit in this
negative characterization a positive ideal--for example,
"any any two persons of comparable health status who want
appropriate care have an equal chance of getting it." But
nothing so schematic may be in anyone's mind at all; there may
be only a moral complaint against a particular inequality. Thus in
many cases there is agreement about what to call equal access only
because there is agreement not to accept a particular kind of
inequality.


### 2.2 Conceptualizing and Measuring Equity of Access to Care



The dominant conceptualization of equitable access to health care
among health service researchers builds on the idea that the
utilization of services should reflect actual needs for care (Aday and
Anderson 1974, 1975, Aday 1975, Aday, Anderson and Fleming 1980, Aday
2001, Aday et al. 2004). A prominent competing view, especially in the
United States, is a modified market view that focuses on the
availability in the market of a decent basic minimum of care (cf.
Enthoven 1980). This modified market account is not to be confused
with a pure market view that allows all care to be determined by
market forces, which might mean that some people do not even get a
decent basic minimum of care. However, even the modified market view
allows for many inequalities of access to care that would be judged
inequitable by the use-per-need view. A third model of equal,
universal access can be derived from some things that have been said
by Republicans determined to advance a model of universal access that
rests on the "choice" to buy coverage (Bump 2017). Rather
than taking all to have insurance coverage as the model of universal
and equal access to care, on this model the "choice" to
buy coverage is the key determinant of universality. It will be useful
to examine the implications of these three prominent views of equity
of access.



Consider first the use-per-need view. On this view, use-per-need
should not be distorted by certain structural features of the health
system, such as the distribution of providers or facilities or
exclusionary attitudes they harbor, or by inappropriate disposing or
enabling factors of individuals, such as their information about
health care or their inability to communicate with providers, or their
income, or by such "process variables" as travel and
waiting time. The approach allows us to test whether or not a factor
potentially affecting access, such as waiting time, actually does, for
example, if it produces an effect on actual utilization of the
services where need is held constant. Where distorting factors mean
that utilization of services is not determined by need, the
use-per-need view judges the access inequitable. In this way, the view
can be used analytically to test how important certain potential
access factors are, and it can be used normatively to make judgments
about equity of access.



The use-per-need approach is quite sensitive to what actual measures
of both need and utilization are used. A process variable--for
example, time spent in a waiting room--may have a significant
effect on measures of satisfaction with care (a subjective measure of
actual access), but have relatively little effect on utilization rates
(an objective measure of actual access). So the choice of objective or
subjective measures of realized access may yield different assessments
of the importance of a process variable and, ultimately, of the equity
of access to health-care services. Even if we are inclined to use an
objective measure, however, it matters which one. For example,
cultural attitudes toward entering a sick role might have a greater
impact on disability days, as a measure of need, than they do on the
more serious level of need, bed-disability days.



Critics of the use-per-need account argue that some process variables
are important determinants of equity of access even if they do not
have a significant impact on utilization of services (Sloan and
Bentkover 1979). For example, even if waiting time does not interfere
with utilization, it may impose a significant burden on those seeking
care, and that burden may be inequitable. Another criticism of the
use-per-need account is the claim that uniformity in utilization rates
is not even a necessary condition for equity of access. If some people
are informed, yet averse to the utilization of medical services, then
differences in their utilization rate from others should not count as
an inequity of access. A further objection is that the approach
abstracts from the effectiveness of care--it does not look at
health status as an outcome, only the utilization of services. People
with different utilization rates may have the same health status as an
output simply because the care was ineffective, so measuring its rate
of utilization does not tell us what really matters.



The rationale for the use-per-need view might appeal to an argument
from function of the following sort: "The (main) function of
health-care services is to prevent and cure illness, i.e., to meet
health-care needs. A distribution of health-care services that is not
determined by the distribution of health-care needs is therefore
unreasonable in some important sense. One sense in which it is
unreasonable is that it would defeat the purpose of meeting health
needs to provide access in ways not determined by the level or kinds
of need people have. Another sense in which it is unreasonable is that
it ignores similarities and differences--here in health
status--between persons which, given the function of health care,
ought to be relevant to establishing its reasonable distribution.
Ignoring such relevant similarities and differences is what it means
for a distribution to be inequitable." A version of this
argument is clearly foreshadowed in Bernard Williams' (1971: 27)
now classic discussion of equality in which he concluded that,
"leaving aside preventive medicine the proper ground of
distribution of medical care is health; this is a necessary
truth."



Unfortunately, this argument from function falls short of providing a
basis for the use-per-need view. The function of food processors is to
meet food processing needs, but no one believes that willingness to
pay for food processors is an inappropriate basis for distributing
them and that we must do so in proportion to the presence of
vegetable-slicing needs in the population. The problem here is that
meeting some needs, but not others, matters as a concern of justice or
equity. In the next section, we shall return to seek more persuasive
foundations for the use-per-need view.



Consider next the modified market view, according to which we have
equity of access to health care when a decent minimum is available to
all in a market. Unlike the utilization rate approach, the market view
is not really a position represented in the empirical literature on
access but rather a composite abstracted from views that are common in
the economics and health planning literature. Its interest lies in the
quite different limits it places on the notion of equitable access and
because of the quite different underlying view of health care and
distributive justice.



I earlier noted that one objection to the utilization rate approach is
that similarity in intergroup use-per-need rates is not even a
necessary condition for equitable access (or distribution). One
rationale for this claim is the view that health-care services are
commodities like any others. On this view, there is nothing so
'special' about these services that cannot be accommodated
by allowing a market for them to respond to people's preferences
for them. On such a view, equity of access is assured if three main
conditions obtain: (1) the commodity must be available at something
like "true social cost;" (2) individuals are capable of
making rational (informed) decisions about using the system; (3)
income distribution must be (approximately) equitable. The second
condition requires that information about alternatives--for
example, therapies or insurance schemes--is available and that
people are competent and informed enough to make use of the
information. Some access inequities arise when this condition is not
met and these must be addressed by public policy. (We shall see how
these conditions affect the philosophical arguments about prudential
insurance in the Section 3.)



Aside from the problem of subsidies to the poor to guarantee equitable
income distribution, the central problems of access are those brought
about by departures of the medical market from the ideal of a truly
competitive market (Arrow 1963). In particular, there may be various
distortions on the supply side which amount to the market's not
delivering services at their "true social cost." For
example, rural populations or inner city minorities may not be able to
get the care they want and can afford. They may not be able to get it
in the desired quantities, or at the desired times with the
characteristics they desire.



Viewed in this way, the problem is that the market is unresponsive to
consumer preferences on the supply side and interventions may be
needed to correct the problem, generally by addressing structural
problems in capital expenditure policy. A central problem here is the
way in which the choice of a health insurance plan is tied to features
of employment and the unavailability of an adequate range of
plans--for example, ones that cover people between jobs. The
central issues of access and equity of access are concerned with these
supply malfunctions of the market. (In Section 3, we shall see how
Dworkin (1994, 2000) attempts to avoid these market limitations.)



The third condition, about equitable income distribution, is rarely
addressed in the literature. Obviously, if income redistribution
brings people only to the officially defined poverty level, it is
inadequate to cover the costs of a decent basic minimum of care (this
notion is discussed further later in this section). If the transfer
falls short of this, we have an inequitable transfer. So the modified
market view I am sketching is not that of the pure libertarian who
might reject all such transfers, but rather one in which there is
implicit acceptance of some important moral claims that might loosely
be characterized as "welfare rights."



Assuring equitable access in the ways defined by the market approach
leaves extensive room for all sorts of departures from equitable
access as defined by the use-per-need approach. Surely, there may be
variations in the amenities that accompany healthcare services, if
that is how we want to look at (some) process variables such as
waiting time. Equal quality in these dimensions is surely not
required, any more than everyone prefers equal quality in, say,
automobiles. Similarly, use-per-need rates may vary with suspect
variables like income or race and yet not indicate any inequity of
access, contrary to the use-per-need formulation. Rather, the unequal
distribution of health care in quantity and quality can be viewed
merely as the expression of different preference curves, just as food
budgets might vary among a welfare recipient, a factory worker, and a
wealthy industrialist. If we take the underlying income distribution
to be morally acceptable, its expression in terms of utilization of
health services need indicate no inequity.



Put succinctly, then, the market approach I am considering here comes
to this: access to health care is equitable if and only if there are
no information barriers, financial barriers, or supply anomalies that
prevent access to a reasonable or decent basic minimum of health-care
services. How plausible such an account is depends on the
characterization of such a decent minimum and the moral arguments
maintaining that provision of such a minimum is all that justice or
equity demands. The problem facing the 'market' proponent
thus appears to be the other side of the coin from the problem facing
the use-per-need account. If the market view suggests we owe each
other on grounds of justice only a decent minimum, the use-per-need
view suggests we owe much more--both require clear rationales.
One central problem with that account was its simplifying assumption
that health care is relatively homogeneous in function and that the
proper basis for its distribution must be the realization of that
function. A related problem for that account is its working assumption
that access can be equitable only if services of all kinds that happen
to be offered in the system are distributed according to need. If,
however, we want to treat health-care services as non-homogeneous in
function, and we are willing to ground equity claims only by reference
to some features of some of those services, we owe an account of how
to draw the lines.



There are three ways to elucidate the notion of a decent basic
minimum: (1) the provision of a general criterion by reference to
which we can tell if services are within the minimum or are above it;
(2) the simple listing the types of services included; or (3) the
description of a fair procedure for determining the minimum. In the
market literature--indeed in much of the literature--there
is little attempt to give a general criterion or describe an
appropriate, fair procedure. What attempts we get are far too vague.
Charles Fried, in an early effort at characterization (1976:32),
suggests that the "decent minimum should reflect some conception
of what constitutes tolerable life prospects in general. It should
speak quite strongly to things like maternal and child health which
set the terms under which individuals will compete and develop."
The characterization is not developed enough to tell when prospects
are tolerable and for whom.



Efforts to specify a decent basic minimum more commonly appeal to a
list of categories of services or to some "average" level
of services in a particular health system. Neither of these approaches
provides a criterion that clarifies why these services are viewed as
decent and basic. Where there is appeal to a list, as in an early
proposal by Enthoven (1980), the Consumer Choice Health Plan that
significantly influenced the Clinton Administration efforts at health
reform, it may derive from an earlier effort at regulation, such as
the 1973 HMO Act. It is typical of such appeals to lists that there is
no rationale offered for why items are on the list. If mental health
services are included, we are often not told which ones; and there may
be categorical omissions, such as dental care, without
explanation.



Appeals to an "average" insurance package similarly
provide no clear basis for deciding whether a set of benefits is truly
appropriate to a decent minimum. For one thing, the average may
reflect many features of a market that is not working well, capturing
much that is wasteful, ineffective, or inappropriate in a system
providing care. It may also be the case that an average package omits
some crucial features of care, for example, certain mental health
services. Indeed, by focusing on services provided within a given
system to "average" users, the concept of what we owe
people, that is, what counts as equitable treatment, is turned into a
completely "interstitial" notion. We are told,
"within the confines of this system, equity requires making this
package available, since it happens to be available on average"
but we are not in a more general way told that the system provides
people with what they should get, as a matter of justice. We are, in
effect, told that a system that aims to meet certain needs should
treat people equitably in addressing those needs, but we are not told
that a system that is fair to people should perforce meet certain
health needs. Nor are we given a process that might help us decide
what to provide as a matter of justice where there may be disagreement
about equitable coverage. In short, neither lists nor averages
substitute for an appeal to a defensible rationale or to a fair
process for determining what should be covered. (We shall consider in
Section 3 how the insurance approaches of Dworkin (1994) and Gibbard
(1982) address these issues, since each approach is part of an
argument to justify the appeal to equal access; the choice model takes
equal access for granted and does not make an attempt to justify it,
and so we do not discuss it in Section 3.)



Consider now the third model of what we should count as equal access,
which we refer to as the choice model. Actually, this model is couched
as a version of universal access (as opposed to universal coverage),
and we shall have to infer the notion of equality. So what is its
commitment to equality of access? The foundational intuition behind it
can be found in Paul Ryan's words that no one should be forced
to do what they don't want to do. If the intuition focuses on
what anyone wants to do, then there is a concern about equality after
all. It cannot be an intuition that focuses only on what some people
want to do if they are rich enough to have certain choices. It rules
out choice that is forced on individuals by their being unable to
afford to do what they prefer to do. Such a forced choice was typical
of what people faced on the individual insurance market before the ACA
if they bought skimpy but affordable health insurance (e. g., high
deductible plans that are cheaper because they do not cover certain
needed services). For a choice to buy or not buy insurance coverage to
be a real choice on this view, both choices have to be ones people
could select, if they wanted to. This feature rules out a choice
between a health care insurance scheme people cannot afford vs one
that they can afford. Subsidies must be available to those with
limited resources that make their choices real. This requirement makes
the model more expensive to implement than the Republican plans
allowed. Real choice has costs given the income inequality that
prevails in the U.S. The costs have a compensation that has a bearing
on "equality," for everyone is equal in the choices that
are possible for purchasing insurance, and individuals have more room
to express other priorities than the purchase of health care. 



The real choices of some people to forego coverage actually make
things worse for those who need insurance and prefer to buy it, and
they create the need to fund subsidies for the foregone insurance
purchase. We shall call "free riders" those who--for
whatever reason--do not share in the cost of the health system
but can share its benefits (needed health care) when ill. Suppose
further that free riders can share the benefits of the health system
by meeting some modest penalty for remaining uninsured. In short, free
riders can pocket the cost of insurance minus the penalty, but still
get care when they need it. Put another way, the health system must be
ready to treat all people, free riders or not, because that is the
choice of society. (We are assuming that few people would allow Free
Riders to die in the streets, which would happen if they are not
allowed to get care when they need it and have not purchased health
care insurance.) Free riders thus get a good bargain--some might say
an incentive to free load--if they are given needed care when
they join a system they did not contribute to, except for facing a
modest punishment for not joining earlier.



Free riders raise the costs of keeping the system ready for them, a
cost that is paid by all who contribute to it by obtaining coverage in
it. So the "real choice" of those who forego coverage (and
become free riders) harms those who "choose" to pay for
coverage each year. These harms to others are encouraged whenever such
a choice is allowed. The replacement plans for the ACA in promoting
such choices are premised on allowing these harms to third parties.
The price of encouraging some people to forego coverage is to
encourage free riding and the resulting harms to third parties.



To conclude this section, we shall briefly consider what each of these
three approaches to access has to say about some race inequalities in
health and health care that are found in the U.S. A first point to
note is that these accounts of access to health care do not inform us
about the origins of some important inequalities in health. For
example, certain health conditions, such as high blood pressure,
diabetes, and asthma are more prevalent among African Americans than
among other racial groups in the U.S. However the differences are best
explained--by income differences, educational differences,
lifestyle choices, some other environmental exposure to risks, or
biological differences in the susceptibility to those
illnesses--if the difference is not the result of differences in
access to preventive services or treatments, then inequity in access
to care is not the source of the health difference. A higher
prevalence rate--or need--should lead to a higher
utilization rate for relevant services, or else the use-per-need rates
would differ between African Americans and other groups. What the
use-per-need approach counsels us to do is to consider whether
differences in the use-per-need rate are best accounted for by certain
structural features of the system (e.g. inadequate supplies of
providers in the areas where the population in need resides,
organization of care that induces discontinuity of care,
discriminatory attitudes of providers, including conscious or
unconscious stereotyping), or by enabling or disposing features of the
individuals (income differences, insurance level differences,
educational differences, age differences, attitudes toward disease and
treatment). If factors other than differences in need affect the
use-per-need rate, then we have strong grounds for thinking there is
an unfair inequality in access to care.



How would the modified market view judge such differences? Differences
across types of insurance coverage (above the decent basic minimum
level) that the use-per-need view would judge problematic might be
dismissed as preference differences by the modified market view. Just
as the household preferences and budget for food or clothing might
differ across income and education levels, so too utilization of
health services might differ--above the decent
minimum--without the raised eyebrows evoked by unfair
inequalities. If there is a quality difference--which might even
take the form of additional protection against health risk through
better diagnosis or more continuous care--that might not be
problematic for the modified market view when it would be for the
use-per-need view.



On the third view that subsidizes all choices to buy insurance, the
higher prevalence of illness among some minorities in the U.S. would
presumably lead them to make fewer choices to forego coverage and thus
to purchase needed coverage more. That result might be explained, as
it was on the market view, as a difference in preferences across
groups. In any case, it would not lead to the claim of unfairness. The
opposition from the choice view is to the full range of subsidies that
make real choice possible. 


## 3. Does Justice Require Universal Access to Health Care?



In this Section we shall examine three lines of argument that aim to
show that universal access to (at least some forms of) health care is
a requirement of justice. If one or more of these views establishes
its claim, then the practice we have noted in many countries of
financing institutions aimed at providing such access can be construed
as an effort to meet, however imperfectly, a requirement of justice.
We shall not spend time, however, assessing views that deny such
claims altogether--noting only that some libertarian accounts of
justice would reject redistributive efforts to promote health just as
they would redistributive efforts to promote other social
objectives.


### 3.1 Health, Opportunity, and Universal Access



One prominent line of argument in favor of universal access to some
forms of health care builds on the contribution made by
health--and derivatively by health care--to the
opportunities people can exercise. The most explicit version of this
argument extends Rawls's appeal to a principle assuring fair
equality of opportunity (Daniels 1981, 1985, 2008). Variants on that
argument can be extrapolated from Sen's (1980, 1992) work on
capabilities or from Arneson's (1988) and Cohen's (1989)
versions of "equal opportunity for welfare or advantage,"
though there will be differences among these variants in what kinds of
care are covered and under what conditions.



The fair equality of opportunity argument for universal access can be
sketched as follows:


1. Suppose health consists of functioning normally for some
appropriate reference class (e.g. a gender specific subgroup) of a
species; in effect, health is the absence of significant
pathology.
2. Maintaining normal functioning--that is health--makes a
significant--if limited--contribution to protecting the
range of opportunities individuals can reasonably exercise; departures
from normal functioning decrease the range of plans of life we can
reasonably choose among to the extent that it diminishes the
functionings we can exercise (our capabilities).
3. Various socially controllable factors contribute to maintaining
normal functioning in a population and distributing health fairly in
it, including traditional public health and medical interventions, as
well as the distribution of such social determinants of health as
income and wealth, education, and control over life and work.
4. If we have social obligations to protect the opportunity range
open to individuals, as some general theories of justice, such as
Rawls's justice as fairness, claim, then we have obligations to
promote and protect normal functioning for all.
5. Providing universal access to a reasonable array of public health
and medical interventions in part meets our social obligation to
protect the opportunity range of individuals, though reasonable people
may disagree about what is included within such an array of
interventions, given resource and technological limits.



Some comments will clarify the main points in this sketch. First, the
narrow concept of health does not preclude the broad range of
determinants of health noted in (3), yet the narrower notion is about
what epidemiologists and public health planners measure and care. This
narrower concept of health avoids conflating health with well being
more generally, which the WHO definition of health arguably does
("Health is a state of complete physical, mental and social
well-being and not merely the absence of disease or infirmity")
(WHO 1948). Obviously, though, normal functioning includes cognitive
and emotional functioning and not just physical health, for we are
complex social animals. Health remains a "limit" or
"ceiling" concept, unlike income, for we cannot increase
health indefinitely but must aim only for normal functioning for
all.



Second, protecting and promoting normal functioning is not the only
factor affecting the range of opportunities open to people. Income,
education, and basic liberties, as well as other factors, do so as
well. Nevertheless, the loss of functioning or premature death that
may come with ill health clearly diminishes the range of plans of life
people can reasonably choose among in a given society. Accordingly,
protecting health protects opportunity, even if it is not the only
thing that does so. A crucial feature of the argument is that we are
concerned about the health of all because we are concerned about
protecting the opportunity range of all.



Third, we have learned much in the last several decades about the
broader social determinants of health (see entry by Sreenivasan on
Health Inequalities and Justice), especially that the presence of
universal access in a society does not eliminate or significantly
reduce health inequalities in it. Does the importance of other
socially controllable factors that affect population health and its
distribution mean that providing universal access to an appropriate
set of public health and personal medical services is less important
(see Sreenivasan 2007)? Suppose we learn that some expensive
individual interventions contribute less to protecting the opportunity
range of individuals than redistributing some other important goods
that are determinants of health. That might well mean that we should
spend less on health care and redefine the benefit package we provide
in a universal access system. But it should not mean that we abandon
universal access to care, even if it means we ought to shrink the
range of medical services open to people in light of other ways to
reduce risks of loss of functioning. No matter how justly we
distribute the broader determinants of health, some people will become
ill and others not. Universal access to reasonable care (given its
relative effectiveness compared to other things we may do) is still
the only way to assure people that certain health needs can be
equitably met.



Fourth, the extension of Rawls's theory introduces some
modification in the account of opportunity, but the modification is
not inconsistent with the thrust of justice as fairness. Justice as
fairness abstracts from health status differences in its assumption
that agents are choosing principles to govern people who are fully
functional over a normal lifespan. This simplification drew criticism
from Arrow (1973) and later Sen (1980), for it means the method of
judging inequality, the index of primary social goods, would fail to
account for the inability of people in some health states to convert
those goods into the same level of well-being as people functioning
normally. Rawls's (1971) notion of opportunity is primarily
geared to the strategic importance of access to jobs and offices;
health, viewed as normal functioning, clearly has a bearing on access
to jobs and offices, but we also need a broader account of opportunity
if we are to address the impact of health on other important aspects
of life. In borrowing justification for a principle assuring fair
equality of opportunity, then, and then using it to apply to a broader
notion of opportunity, the argument involves a modification of
Rawls's own arguments. Nevertheless, he seems to have adopted
this view of how to extend his theory (Rawls 1995: 184, n.14; Rawls
2001: 175, n.58).



Despite this modification, the approach preserves a key feature of
Rawls's original idealization away from consideration of health
states: in aiming to keep all in a population functioning normally
over a normal lifespan, we aim to keep the real world as close to the
idealization as possible. A crucial consequence of this is that we are
not simply focused on equalizing opportunity, but on promoting the
broadened range of opportunity that comes with normal functioning for
everyone. The view aims at promoting population health and not simply
equalizing it: equally bad health is not the goal of the argument. Put
another way, the ultimate goal of health policy is that all people
function normally: but that means the ultimate goal is both
egalitarian and maximizing (though short of the ultimate goal, we face
important trade-offs).



Finally, we must consider how we can meet health needs fairly when we
cannot meet them all. The question is especially difficult because we
have reasonable disagreements about what interventions to include in a
universal access system, as we noted earlier when we noted how
reasonable disagreements will arise about the tradeoff between
improved financial protection, say by reducing the co-pays or
deductibles a benefit involves, and coverage of more types of services
during deliberations about the comprehensiveness of a universal
coverage benefit package. This is true even if we accept the principle
of fair equality of opportunity principle as the appropriate principle
to govern health and health care.



The problem is that the fair equality of opportunity principle is too
general and indeterminate to address a family of "unsolved
rationing problems" (Daniels 1993). For example, when we are
thinking of investing in a new service or technology, we may agree
that we should give those who are worst off in their health some
priority over those who are better off. But we may wonder how much
priority we should give them if we can produce much bigger improvement
in health for those who are somewhat better off. Similarly, we may
agree not to allow many trivial benefits to outweigh significant ones,
but we may still disagree about when do modest benefits for larger
numbers of people outweigh significant benefits for fewer people. In
these and other problems, reasonable people--people seeking
reasons that can form the basis for a mutual justification of
policy--will disagree about how to make the tradeoffs among the
competing values at issue, even if they agree that the overall goal of
health policy should be to protect opportunity. We lack prior
agreement on more fine-grained principles that tell us how best to
protect opportunity in this context. Because we lack a consensus on
such principles, we should engage a form of procedural justice or fair
process to yield fair outcomes.



One version of such a process is called "accountability for
reasonableness" (Daniels and Sabin 2008). It requires a search
for mutually justifiable reasons, publicity about the grounds for
decisions, revisability of decisions in light of new evidence and
arguments, and assurance that the process is adhered to. The specific
features of such a fair process would have to be adapted to the
institutional level at which it is used to make decisions about what
to cover. Specifically, decisions about the content of a universal
access benefit package should be specified through a fair,
deliberative process that conforms to these general conditions. In
Section 5 we shall return to consider in more detail what kinds of
interventions are in general supported by this account.



Accountability for reasonableness can arguably be thought of as a form
of pure procedural justice (Rawls 1971) because we lack prior
consensus on the fine-grained principles needed to resolve disputes
about these resource allocation issues, though we may arrive at
mutually acceptable justifications through deliberation about specific
cases. It differs from gambling, Rawls's example of a case of
pure procedural justice, in two ways. First, the appeal to process is
constrained by some prior moral principles. For example, an outcome
should not contradict what fair equality of opportunity requires by
discriminating against some subgroup by race or gender. A local
decision-making body could not engage in gender or race bias and
consider that a fair outcome. One might claim that the same constraint
applies to the gambling case: if only whites and no blacks were
allowed to gamble, then the outcome of a spin of a fair roulette wheel
would also not be fair--though some might reply this is a
constraint on who plays the game, not on whether we view the outcome
of the spin of a fairly balanced wheel as fair outcome. Second, we can
imagine philosophical reasoning persuading us to adopt a principle
that renders the appeal to a fair process unnecessary, but we cannot
imagine such a philosophical "proof" of the fairness of a
gambling outcome that would lead us to think the spin of a fair
roulette wheel or a throw of a properly balanced die can be rendered
unnecessary in the same way. Though fair equality or opportunity,
including non-discrimination, constrains acceptable outcomes of fair
process, it is too general an idea to settle what counts as an
acceptable outcome. That requires agreement, in general by a range of
stakeholders, on reasons for thinking an allocation is an acceptable
way to meet needs fairly and so protect opportunity for those
involved. The point behind insisting on what we call the
"relevance" condition is to search for mutually
justifiable reasons for thinking that a particular resource allocation
is an acceptable way to aim at fair equality of opportunity. The
condition takes us beyond mere consistency with fair equality of
opportunity since that principle does not determine what to do in the
face of disagreements about priorities, aggregation, and other
problems.



The argument for universal access sketched earlier specifically
embraces Rawls's fair equality of opportunity principle. It is
worth remarking that the variations on this argument might retain
steps 1-3 but modify the principle that is appealed to in 4,
provided there is a reasonable connection between any substituted
principle and the central observation in 3, that health affects the
opportunity range open to people. For example, Sen has argued that the
appropriate target of concerns about equality is a space of
capabilities, thought of as functionings we can choose to exercise. A
principle requiring us to protect the range of capabilities for people
(either equally or to some sufficient level) would also provide a
basis for keeping people functioning normally through universal access
to interventions that reduce the health risks to them or that treat
them for departures from normal functioning. Though Sen has not
developed this account into a theory of justice that articulates a set
of principles of justice, the central point here is that a concern to
protect a space of functionings we can choose to exercise is
equivalent to the focus of the earlier argument on protecting
opportunities that it is reasonable for people to exercise (Daniels
2010).



A third alternative version of the earlier argument might (in 4)
invoke a principle assuring equal opportunity for welfare or advantage
(Arneson 1988; Cohen 1989), a view that later came to be called
"luck egalitarianism." Arguably, such a principle would
also support a universal access system that included a broad range of
preventive and treatment services. This particular principle, however,
will differ in terms of what is covered from the opportunity-based
account described earlier for it more explicitly leaves room to
exclude coverage for conditions for which an individual is
substantively responsible. It says we do not owe each other assistance
or compensation for bad "option" luck in the way we do for
bad "brute" luck. At the same time, it might include
access to services that correct for some disadvantages (e.g. lower
manual dexterity or lower intelligence) that might be considered
normal functioning by the account sketched earlier. Still, this is a
universal access system, even if it excludes coverage for conditions
for which society holds individuals responsible (see Daniels 2011).
Nevertheless, some luck egalitarians reject the appeal to opportunity
proposed in the account sketched here (Segall 2010).


### 3.2 Universal Access to Prudentially Defined Care



A second general line of argument in favor of universal access to some
forms of health care builds on the idea that prudent individuals would
insure themselves against the prospect of needing certain kinds of
health care. We shall consider two versions of this argument,
Dworkin's (1981, 1994, 2000) effort to spell out the
implications of treating people with equal respect, and
Gibbard's (1982) appeal to an ex ante pareto optimality
principle combined with an assumed right to a decent basic minimum of
income. As we shall see, though both arguments use different
assumptions to support universal access to different health care
benefit packages, their main point is to counter certain implausible
views about what benefits should be included in a universal access
system.



Dworkin's argument can be sketched as follows:


1. We have an obligation to treat people as equals.
2. Treating people as equals is best achieved by giving people
equality of resources (and this idea can in theory be shown to be
coherent by devising an appropriate initial auction, combined with
appropriate post-auction trades and insurance schemes against
disadvantaging outcomes).
3. Suppose we had equality of resources in the U.S., for example,
that income and wealth were equally distributed, and that all people
had information about health care interventions and their effects as
good as what the best doctors have, and that no one has prior
information about the specific risks faced by specific
individuals.
4. Then each person could act prudently to buy insurance protection
against various health needs without government subsidies or otherwise
distorted markets.
5. What most people would prudently insure themselves against ought
to be included in a universal access health system. (Some kinds of
protection would thus be imprudent to include and we should abandon a
rule of rescue that included them.)
6. Where there is disagreement about what people count as prudent
insurance (some would buy it, others not), then we need to consult
with representative people of different views and make decisions about
universal coverage that reflect that consultation.



Some comments will clarify key aspects of this argument. First, the
first two premises involve both a strong egalitarian assumption,
though one that is widely held (treating people as equals) and a very
strong (specific and detailed) way of achieving it (equality of
resources). Discussion of the details of these claims would take us
well beyond the scope of this essay. Suffice it to say that this
argument cannot proceed to an account of universal access to health
care without some more general assumptions for a view of justice. In
that regard, it shares with the fair equality of opportunity account
the need to borrow justification for universal access from more
general concerns of justice.



Second, the specific assumptions in (3) are very strong and arguably
cannot be realized. The argument that presupposes them should thus be
seen as an analytic tool and not an attempt to say anything very
specific about how real institutions could be designed. (We note that
this strong requirement is not needed by the model of universal and
equal access that emphasizes real choice. Instead, the choice model
allows for income inequalities and only needs subsidies to equalize
the affordability of buying insurance equal in scope to what the ACA
requires of insurance purchased on the exchanges it authorizes.)
Without, for example, knowing what level of resources would result
from equalizing resources, we can say little about what levels of
insurance coverage for specific conditions are welfare enhancing for
individuals. Since there is no feasible way to meet the assumptions
about the distribution of medical knowledge or the exclusion of
knowledge of individual risks, these assumptions make Dworkin's
argument completely hypothetical and theoretical rather than
practical. Third, the assumption that there is an ideally competitive
insurance market postulated in the fourth step of the argument adds to
the hypothetical nature of the argument as a whole.



Fourth, the argument focuses primarily on personal medical services
and not broader public health measures that reduce overall risk or
distribute that risk more fairly. There is no mention of interventions
beyond individual treatment or prevention measures, and the thrust of
4 and 5 make it clear the argument is about an insurance market only
for those measures. The thrust of steps 5 and 6 make it clearer that
the point of the argument is to clarify what a defensible content of a
universal access benefit package would include. Specifically, the
argument aims to establish that we need a more plausible view of what
we owe each other by way of providing health care than the
indefensible view that what rescues someone from death or disability
must be provided regardless of costs or opportunity costs.



The other version of a prudential insurance argument for universal
coverage rests on a weaker assumption that we have a right to a decent
minimum of income. In Gibbard's (1982) discussion, the
assumption is invoked but not argued for. Like the other argument, the
main thrust of Gibbard's argument lies in its implications for
the content of a universal access benefit package.


1. Assume the Ex Ante Pareto Principle which says: If both a) the
prospects of someone are better under policy *P* than
*Q*, and b) no ones' prospects are worse under *Q*
than *P*, then *P* is better than *Q*. (There are
no opposed interests in the cases where this principle applies.)
2. Assume there is a right to a decent minimum of economic welfare.
(Gibbard does not argue for this right, only that this precept plus
the Ex Ante Pareto Principle are sufficient to establish there ought
to be equal access to a decent minimum of care.)
3. Health insurance that it is prudent for all to buy from their
decent minimum defines essential health care, i.e., the decent minimum
of health care.
4. There should be universal access to a decent minimum of health
care, for everyone is better off with such access and no one is worse
off.
5. There should not, however, be equal access to all health care,
assuming the Ex Ante Pareto Principle, for the overall package of
health care it is prudent to buy will differ above the decent minimum.
Further, the Ex Ante Pareto Principle implies that some health care
may not be worth purchasing insurance for by anyone.



Some comments will help clarify this argument sketch. First, Gibbard
is concerned to show that this weak ethical principle has health
policy implications that are significant (and are noted in steps 4 and
5). He defends the principle against anti-utilitarian arguments and
against some intuitions that run counter to it but that may be
irrational (on his view). Second, to arrive at the main conclusion in
4--supporting universal access to a decent minimum of
care--Gibbard adopts an ethical precept that is sufficient to
support provide a basis for a universal level of insurance purchasing.
He does not, as noted, argue for the specific right articulated here.
He might, however, try to derive some support for it from utilitarian
arguments about decreasing marginal utility of income and wealth, for
it is weaker than the more egalitarian view that Brandt (1979) defends
on utility maximizing grounds and for which Gibbard expresses some
sympathy.



Third, the crux of the argument for the conclusion in step 4 is the
idea that if everyone acts prudently at the decent minimum economic
threshold of welfare to buy some kinds of health care, what they buy,
assuming they bear the inclusive social cost of the insurance
(including any losses of efficiency), will constitute the decent
minimum of care. To say it is prudent for a person to buy the
insurance (while bearing those costs) is (using the Ex Ante Pareto
Principle) to say the person has better prospects with the insurance
than without and that no one is worse off as a result. Presumably,
however, this requires that there be a competitive market for such
insurance (an assumption Dworkin had to make in his argument), and it
is not obvious how to achieve that in light of the pervasive
uncertainties that exist in medical markets (cf. Arrow 1963), a point
Gibbard notes.



Fourth, above the decent welfare minimum, it is unlikely that access
to the some broader insurance package is prudent for all people to
buy. That is the reason Gibbard says it is not equitable to require
equal access to all health care. Here equity is equated with ethically
acceptable, and what counts as ethically acceptable is (among other
things) what is endorsed by the Ex Ante Pareto Principle. The same
principle shows that some kinds of care are not prudent for anyone to
buy--prospects are better for all people if they do not buy
insurance for that care--and so a defense is made for some
implications of cost effectiveness analysis.



Fifth, unlike Dworkin, who admits there may be disagreements about
what it is prudent to do, Gibbard does not make that concession.
Consequently, he is not concerned, as is Dworkin (or the proponent of
accountability for reasonableness, in the earlier argument), with
developing a way of resolving disputes about what counts as
prudent.


### 3.3 Access to a Decent Minimum of Health Care



A different kind of argument in favor of universal access to a decent
minimum of health care does not turn on support of general principles
of justice (fair equality of opportunity, treating peoples as equals,
or a right to a decent minimum of economic welfare), but rather on a
pluralism of moral considerations plus an argument for state
coordinated (coerced) beneficence (Buchanan 1984). In his discussion,
Buchanan first dismisses various accounts that try to ground a
universal right to a decent minimum of care, but here we shall
concentrate on the positive argument supporting the idea of universal
access through a legal entitlement to such care despite the absence of
any moral right to it.



The argument can be sketched as follows:


1. There are a set of special rights to a decent minimum of care that
are held by these groups: members of groups, such as African Americans
and Native Americans, that are owed compensation for long-standing
injustice done to them; individuals harmed in their health by private
or corporate actions, such as polluting public spaces or exposing
workers to toxins; members of groups that have made exceptional
sacrifices for the good of society as a whole, such as wounded
veterans.
2. Access to some forms of preventive services derive from a Harm
Prevention Principle that justifies the use of public funds for
certain public health measures plus a constitutional argument that
requires equal protection from harms that the public acts to
prevent.
3. Access to some forms of beneficial services is justified by such
prudential considerations as the importance of some forms of health
care to producing a productive work force and a citizenry fit for
national defense.
4. Together these considerations would justify a legal entitlement to
some forms of health care.
5. In addition, there are two arguments for state enforced
beneficence that can be used to support a legal entitlement to a
decent minimum of care: Assuming there is a duty of charity to assist
those in need of health care, then
	1. Enforcing contributions can lead to producing the public good of a
	decent minimum of health care for all whereas not enforcing
	contributions would lead many to choose alternative ways of maximizing
	the good they can produce through individual actions, undermining the
	production of the public good;
	2. Enforcing contributions produces an assurance that others will
	contribute to the decent basic minimum and that ones own contribution
	to it therefore is worth making since others will do the same.



Some points of clarification are in order. First, it remains unclear
just how the special rights argued for combine to produce a decent
minimum for all. Only some people hold them, and it is not fully clear
what these rights entitle their bearers to. Second, it is unclear that
when we add the entitlements of these special rights bearers to the
content of what follows from the Harm Prevention Principle or the
prudential considerations, we end up with what people would call a
decent minimum of care. How the broader entitlements of the special
rights bearers (if they are broad) get combined with the care that
ought to universally be provided according the Harm Prevention
Principle and the prudential considerations? No clear account is
offered. Put another way, these pluralist considerations might suffice
to establish some legal entitlements by some people to some forms of
care, but it is not obvious that what emerges is a universal legal
entitlement to a decent minimum of care.



Third, the arguments for enforcing beneficence seems to imply that
there is a collective duty to engage in beneficent actions, whereas
the duty the argument explicitly mentions is an individual duty of
beneficence. The fact that individuals might fail to produce certain
public goods through individual (unenforced) beneficence is a
limitation that enforced coordination overcomes, but it is not a
failure that results from their not discharging their duty. To treat
it as if it is seems to presuppose a collective responsibility to do
as much good as possible.


### 3.4 Lessons About Rationales for Universal Access



Several lessons can be learned from this review of lines of
justification for universal access to care. One such lesson is that
rationales for universal access derive from more general
considerations of justice. As such, they borrow their justificatory
force from the arguments for those general considerations. They also
bring with them from those general theories specific considerations
that may affect the content of the claim to universal access. Thus, a
family of egalitarian theories that talk about equality of opportunity
in different ways might thus all support universal access to health
care because of its impact on opportunity, but they justify different
kinds of access because they view the obligation to promote
opportunity in somewhat different ways.



A second lesson is that some rationales depend on highly idealized
assumptions and might provide less clarity about the design of benefit
packages than might be hoped. For example, the arguments from
prudential insurance--despite their different ethical
presuppositions--give less guidance to institutional design and
design of a benefit package than might have been hoped since they
presuppose extrapolating from consumer behavior in a truly competitive
and ideally informed insurance market. Similarly, both lines of
argument make it impossible to be specific about what prudent
insurance would include because we do not know what level of
purchasing is possible at either the "equal resources" or
"decent economic minimum" that the two views posit. In
contrast, the deliberative fair process that supplements the fair
equality of opportunity account does not require such a hypothetical
context to yield results.



A third lesson is that avoiding a unifying theoretical account of
universal access to care may cost more than it gains. Specifically,
eschewing appeal to a background theory that justifies health care
because it contributes to something else of importance to social
justice (fair equality of opportunity, treating people as equals), and
appealing instead to a pluralism of considerations, risks losing
clarity about what care is part of the "decent minimum" it
purports to provide legal entitlements to.



In the next two sections, we shall focus in more detail on what the
fair equality of opportunity account says we owe each other and its
implications for a right to health care. We adopt this focus because
in contrast to the other views surveyed, it is more explicit about the
content of the health care we owe to each other. We shall note the
implications of other views where feasible.


## 4. What Kinds of Health Care Do We Owe Each Other?



On the fair equality of opportunity view, meeting the health needs of
all persons, viewed as free and equal citizens, is of comparable and
special moral importance. (If "citizens" is taken broadly
to include all members of a community, then arguably long-term
unauthorized immigrants should be included (Daniels and Ladin
forthcoming). Specifically, since meeting health needs protects the
range of opportunities people can exercise, then any social
obligations we have to protect opportunity imply obligations to
protect and promote health (normal functioning) for all people.
Various recent theories of justice, despite their differences, affirm
that we have such social obligations to protect opportunity, and so
they converge on the importance of protecting health.



On the opportunity-based view, justice requires that we protect
people's shares of the normal opportunity range by treating
illness when it occurs, by reducing the risk of disease and disability
before they occur, and by distributing those risks equitably. Within
the medical system, this means we must give all people access to a
reasonable array of services that promote and restore normal
functioning and we must not neglect preventive measures in favor of
curative ones. It means we must look beyond the medical system to
traditional public health measures that profoundly affect risk levels
and their distribution. We must also look beyond the health sector to
the broader social determinants of health and their distribution.
Since we cannot meet all the health needs that arise inside or outside
the health sector, we must be accountable for the reasonableness of
the resource allocation decisions we make.



The alternative views noted in the previous section arguably have
narrower scope, though some may be more expandable than others.
Dworkin's prudential insurance approach might have the same
scope as the opportunity-based view if the insurance policy that
(most?) prudent buyers purchase includes protections against health
risks that go beyond treatments for illness. Dworkin is not explicit
about how that broader policy might be designed. What can be purchased
in any case is constrained by the level of resources available in the
equality of resources approach, and Dworkin is sensitive to the fact
that some purchasers may disagree about what prudence requires.
Gibbard's prudent insurance buyers presumably work with a
smaller premium unless a decent economic minimum is equal to what we
get on the equal resources view. Gibbard is more explicitly talking
only about insurance for medical services, and it might be harder to
expand his account to one that meets health needs more broadly.
Buchanan's decent minimum quite deliberately meets fewer health
needs than the opportunity-based view.



Consider more specifically what the opportunity-based account of
justice and health care requires by way of preventive services. It
requires (1) reducing the risk of disease and (2) seeking an equitable
distribution of those risks. The first requirement is obvious. It is
often more effective to prevent disease and disability than it is to
cure them when they occur (or to compensate individuals for loss of
function, where cure is not possible). Cost-effectiveness arguments
will have some bearing on claims about the appropriate distribution of
acute vs. preventive measures (Russell 1986). Since it is better in
general to avoid the burdens of disease than to reduce them once they
occur, many types of preventive measures will be given prominence in a
system governed by the opportunity-based account.



The second requirement should also seem obvious, especially in light
of what we know about the importance of the social determinants of
health. Consider the point from the perspective of occupational
health. Suppose a health-care system is heavily weighted toward acute
care and that it provides equal access to its services. Thus anyone
with severe respiratory ailments--black lung, brown lung,
asbestosis, emphysema, and so on--is given adequate comprehensive
medical services as needed, but little is done to reduce exposures to
risk in the workplace. Does the system meet the demands of
justice?



Such a system is incomplete and unjust, according to the fair equality
of opportunity view. If some groups in the population are
differentially at risk of getting ill, it is not sufficient merely to
attend to their illnesses. Where risk of illness differs
systematically in ways that are avoidable, guaranteeing equal
opportunity requires that we try to eliminate the differential risks
and to prevent the excess illness experienced by those at avoidable,
greater risk (of course subject to resource limits and fair process in
setting limits). Otherwise the burdens and risks of illness will fall
differently on different groups, and the risk of impaired opportunity
for those groups will remain, despite the efforts to provide acute
care. Care is not equivalent to prevention. Some disease will not be
detected in time for it to be cured. Some is not curable, even if it
is preventable, and treatments will vary in efficacy. We protect equal
opportunity best by reducing and equalizing the risk of these
conditions arising. The fact that we get an equal chance of being
cured once ill because of equitable access to care does not compensate
us for our unequal chances of becoming ill.



For these reasons, the fair equality of opportunity account places
special importance on measures aimed at the equitable distribution of
the risks of disease. Reduction in carbon emissions aimed at keeping
the global temperature increases within a reasonable limit could
reduce the chances of climate change increasing the risk of disease
for all; even if the risk of disease to individuals is unequal from
climate change, health inequities makes reducing carbon emissions like
other public health measures. For example, some public-health
measures, such as water and waste treatment, have the general effect
of reducing risk. But historically, they have also had the effect of
equalizing risk between socioeconomic classes and between groups
living in different geographical areas. Similarly, many other
environmental measures, such as recent clean air laws and pesticide
regulations, have both general effects on risk reduction and specific
effects on the distribution of risks. For example, pollutants emitted
from smokestacks have a different effect on people who live downwind
from those who live upwind. Gasoline lead emissions have greater
effect on urban than rural populations. But other health-protection
measures primarily have an effect on the distribution of risks: the
regulation of workplace health hazards is perhaps the clearest
example. Only some groups of workers are at risk from workplace
hazards, though many workers face some risk or other, especially in
manufacturing settings. Just health requires that stringent regulation
in all of these ways must be part of the health-care system.



What other sorts of social policies should governments pursue in order
to reduce inequalities in health risks, especially in light of what we
now know about the social determinants of health? The menu of options
should include policies aimed at equalizing individual life
opportunities, such as investment in basic education and other early
childhood interventions, affordable housing, income security, and
other forms of antipoverty policy. We know, for example, that early
interventions aimed at child development, like the Perry High/Scope
Project (Schweinhardt et al. 1993), have lasting effects on
educational achievement, employment, marriage, and the reduction of
mental illness. The War on Poverty Program Head Start produced lasting
effects on educational achievement; educational achievement, in turn,
has a direct influence on health behavior in adulthood, including
diet, smoking, and physical activity (Acheson et al. 1998). Other
policies that might reduce differential risk could explore changes in
the degree of control and authority workers have in the workplace
(Marmot et al. 1997). Even broader interventions, including addressing
inequalities in the distribution of wealth, power, and resources, are
recommended by the WHO Commission on the Social Determinants of Health
(2010). Though the connection between these broad, intersectoral
social policies and health may seem somewhat remote, and they are
rarely linked to issues of health in our public policy discussions,
growing evidence suggests that they should be so linked.



One central implication of this view about health for all is that
there should be universal access, based on health needs, to whatever
array of public health and personal medical services provides support
for fair equality of opportunity under reasonable resource
constraints. This implication must be unpacked since health needs are
met in various ways, through public health as well as personal medical
services.



Public health services promote the conditions that reduce certain
risks of disease or disability. They reduce risks by assuring a clean
and safe living and working environment and by providing protection
against infectious diseases. These services should attend to the risks
faced by the entire population and aim to reduce risks in an equitable
fashion.



However much we can reduce risks to population health and do so in an
equitable fashion, some people will still become ill or disabled and
require personal medical services or other forms of social support
that compensate for the effects of loss of function. Even if the
proper arrangement of the social determinants of health and adequate
attention to public health greatly reduce the burden of disease and
disability in a society, most people will still need medical care at
various points in their lives, especially as they age. To protect the
range of opportunities for those whose loss of normal functioning we
cannot prevent, we will have to devote some significant resources to
such medical and social support services. Obviously, careful
deliberation in a fair process will be needed to determine the proper
allocation of resources to prevention vs. cure and social support.



Personal medical services that are deemed essential to promoting fair
opportunity for all must be accessible to all. Specifically, this will
generally mean "universal coverage" through some form of
public or private insurance for services deemed to be a
"decent" or "adequate" array, as required by
the appeal to the underlying concept of protecting fair equality of
opportunity. There should be no obstacles--financial, racial,
geographical, and so on--to access to the basic tier of the
system. Determining what is in that basic tier must be clarified in
light of arguments about how to protect fair equality of opportunity
under reasonable resource constraints, and these arguments require a
fair process (accountability for reasonableness) in which appropriate
democratic deliberation can take place. The theory rules out arbitrary
exclusions of whole categories of kinds of services that meet needs of
the sort that should be met in the basic tier. Historically, for
example, preventive services, mental health care, rehabilitative, and
long-term care services have been excluded from both public and
private insurance schemes, for various cultural and economic reasons.
Most of these "categorical" exclusions are unjustifiable
from the perspective of protecting normal functioning, but specific
limit-setting choices can only be made through a fair, deliberative
process.



Just what forms of organization--public or private administration
and financing--are implied is not a question to which the
opportunity-based account of justice and health provides a unique
answer. There is probably an array of "just-enough"
institutional structures that can provide the needed protection of
opportunity. Similarly, just what kinds of "tiering" or
inequalities in services above the basic tier are compatible with
protecting opportunity for all may not get specific answers from the
general theory, though it will clearly supply constraints. Reasonable
disagreements about these questions should be addressed in a fair
deliberative process.


## 5. Is There a Right to Health or Health Care?



If health care were the only or most important determinant of
population health, then an opportunity-based account of justice and
health would be right to focus solely on a right to health care and to
ignore the more contentious and possibly misleading right claim to
health. A right to health care would then be a special case of a right
to fair equality of opportunity. Such a right to health care is
properly understood as system-relative. The entitlements it involves
are contingent claims to an array of health care services that protect
fair shares of the opportunity range under reasonable resource
constraints.



This simple picture of a right to health care must be modified in two
ways to accommodate points already made in our discussion. First,
since the category of socially controllable factors determining
population health and its distribution is clearly broader than health
care alone (even if we include traditional public health measures
within the domain of health care), the point of claiming a right to
health cannot simply be to claim that others owe us certain kinds of
health care. Does this give us more reason to talk about a right to
health? Second, whatever sense we can make out of a right to health
(or health care), the specific entitlements it involves cannot be
determined except through a fair deliberative process. Consider these
modifications in turn.



If health needs are broader than needs for health care, should we try
to make sense of a right to health? We face an immediate and serious
objection. The expression "right to health" appears to
embody confusion about the kind of thing that can be the object of a
right claim. Health is an inappropriate object, whereas health care
is. If our poor health is not the result of anyone's doing, or
failing to do, something for us or to us that might have prevented, or
might cure, our condition, then it is hard to see how any right of
ours is violated.



People who claim a right to health may mean something less troubling.
They should be understood to be claiming that certain individuals or
groups or society as a whole are obliged to perform various actions,
such as designing certain institutions and distributing important
goods in certain ways that promote or maintain or restore their
health, and they are obliged to refrain from actions that interfere
with it. The reference to *health* should be construed as a
handy way to characterize *functionally* the relevant,
socially-controllable actions, namely those that affect population
health and its distribution. This gloss on the meaning of a right to
health broadens the range of actions from the provision of health care
to the meeting of the broader set of health needs that arises when we
grasp the broader determinants of health. This gloss allows us to see
why some advocates, for example of a human right to health, have
insisted on a "right to *health*" and not just on a
"right to (certain) health care services." They want, and
reasonably so, the right to imply that there are obligations to
perform a broad range of actions that affect health, even if these
actions are not normally construed as health care services and even if
they involve factors outside the health sector, however broadly
construed. The gloss makes it clear, however, that a right to health,
so understood, is not violated when there has been a just distribution
of the socially controllable factors affecting health, yet health
fails anyway. Consequently, we do not have to denounce as confused
those who claim a right to have the full range of their health needs
met.



Just what entitlements follow from a right to have a broad set of
health needs met is system relative and depends on resource allocation
decisions that are made in a fair deliberative process. To see the
point, consider an objection sometimes made to the narrower claim to a
right to health care, namely Fried's (1978) objection that an
individual right to health care invites falling into a
"bottomless pit." Fried is worried that if we posit a
fundamental individual right to have needs satisfied, no other social
goals will be able to override the right claims to all health-care
needs.



No such fundamental right to have specific needs met is directly
posited on the view sketched here. Rather, the particular rights and
entitlements of individuals to have certain needs met are specified
only as a result of a fair deliberative process aimed at meeting
population health needs fairly. Typically, not all health needs can be
met under reasonable resource constraints. Deciding which needs should
actually be met and what resources are to be devoted to doing
so--both within and outside the health sector--requires
careful moral judgment and a wealth of empirical knowledge about the
effects of alternative allocations. The right to health can yield
entitlements only to those needs that it is reasonable to try to
meet.



This restriction on how we specify the content of the right to health
means, for example, that we cannot directly infer from (a) the moral
fact that Jack has a right to health care and (b) the empirical fact
that an experimental pancreas transplant offers him his only chance at
survival that (c) Jack is entitled to that intervention. Jack's
medical entitlements--given his right--depend both on his
condition and on the array of interventions it is reasonable to
provide the population of which he is a member. That reasonable array
in turn depends on what we know is effective, what resources we have,
and what priority should be given to meeting his need compared to that
of others. If pancreas transplants are of unproven efficacy, or if
their cost or cost-effectiveness makes including them in a benefit
package unreasonable, given what else it would be better to include,
then coverage for such transplants may be denied for Jack and others.
Although a moral right to health is grounded in the general idea that
we have obligations to protect opportunity by promoting normal
functioning, its specific content is in this fundamental way
system-relative.



We noted earlier some dimensions of the limit setting that must go on.
The various institutions that affect opportunity must be weighed
against each other. Similarly, the resources required to provide for
fair equality of opportunity must be weighed against what is needed to
provide for other important social institutions. This is true even
though guaranteeing fair equality of opportunity has (lexical or
strict) priority over principles of justice promoting wellbeing in
other ways, at least within Rawls's theory of justice as
fairness. The point is that institutions, including health care
institutions, capable of protecting opportunity can be maintained only
in societies whose productive capacities they do not undermine. The
bugaboo of the bottomless pit is less threatening in the context of
such a theory. The price paid is that we are less clear, in general
and abstracting from the application of the theory to a particular
society, just what the individual claim comes to.



The right to health must be system relative for another reason that is
implied by a deeper feature of the opportunity-based account. What is
special about meeting health needs, for purposes of justice, is that
it contributes to protecting individuals' fair shares of the
normal opportunity range for their society. That range, to emphasize
the point, is society relative. This relativity, however, then also
infects claims about what we are entitled to when a health system is
designed for a specific society. The relativization of the normal
range to a society captures an important requirement for a theory of
just health care. It is not a feature we should lightly abandon. The
importance of meeting specific health needs will vary depending on
facts about a society, and a distributive principle must leave room
for such variation. Curing dyslexia might well be more important in
some societies than others, though it is an instance of pathology in
all of them. (Suppose a disease is widespread, even universal, in a
society. Say it is a form of anemia that affects all and is
debilitating across the board. One might think that impact on the
normal opportunity range will not tell us how important it is to treat
this disease, since it hurts all individuals equally. But the
opportunity account still helps us here, for it is not only a
principle governing competitive advantage. The anemia in this case is
a disease which keeps each individual from adequately carrying out any
life plan that otherwise would be reasonable in his society. Remember,
the reference point is normal species-functioning, not simply
functioning in a certain society.)



Consider the claim that it is a matter for the courts to decide what
should be included in a right to health or health care. In some
countries, such a right is embodied in the constitution of the
country. In Colombia, for example, the public has been encouraged to
file law suits, called tutelas, some of which are aimed at compelling
insurance schemes to cover services that should be covered (by law) in
the benefit package and some of which aim to expand coverage for the
plaintiff to include a service not part of the defined benefit
package. Further, all signatories to international treaties that
recognize a human right to health are legally bound to recognize that
right, and arguably, their courts should play a role in doing so. We
might distinguish two roles of the courts. One uncontroversial role
would be to insist that the delegated authorities (the ministry of
health) specify the criteria and the process used to define the
benefit package, and then exercise judicial review of whether specific
decisions are made through that process that use those criteria. A
more controversial role would be for the courts to try to determine
more directly what should be included in a right to health. To perform
the latter task, the courts would need to know many things about the
capability of the health system to sustainably deliver a particular
service in light of competing claims on services, that is on
resources. If the courts are not in a position to play that role, then
they should restrict their task to making sure that the ministry of
health performs that task according to an acceptable process.



We shall conclude by considering how equal must our rights to health
or health care be? Specifically, must everyone receive exactly the
same kinds of health-care services and coverage, or is fairness in
health care compatible with a 'tiered' system? Around the
world, even countries that offer universal health insurance differ in
their answers to this question. In Canada, for example, no
supplementary insurance is permitted. Everyone is served solely by the
national health-insurance schemes, though people who seek additional
services or more rapid service may go elsewhere, as some Canadians do
by crossing the border. In Britain, supplementary private insurance
allows about 10 per cent of the population to gain quicker access to
services for which there is extensive queuing in the public system.
Basing a right to health care on an obligation to protect equality of
opportunity is compatible with the sort of tiering the British have,
but it does not require it, and it imposes some constraints on the
kind of tiering allowed.



The primary social obligation is to assure everyone access to a tier
of services that effectively promotes normal functioning and thus
protects equality of opportunity. Since health care is not the only
important good, resources to be invested in the basic tier are
appropriately and reasonably limited, for example, by democratic
decisions about how much to invest in education or job training as
opposed to health care. Because of their very high "opportunity
costs," there will be some beneficial medical services that it
will be reasonable not to provide in the basic tier, or to provide
only on a limited basis, for example, with queuing. To say that these
services have "high opportunity costs" means that
providing them consumes resources that would produce greater health
benefits and protect opportunity more if used in other ways.



In a society that permits significant income and wealth inequalities,
some people will want to buy coverage for these additional services.
Why not let them? After all, we allow people to use their after-tax
income and wealth as they see fit to pursue the quality of life and
opportunities they prefer. The rich can buy special security systems
for their homes. They can buy safer cars. They can buy private
schooling for their children. Why not allow them to buy supplementary
health care for their families?



One objection to allowing a supplementary tier is that its existence
might undermine the basic tier either economically or politically. It
might attract better-quality providers away from the basic tier, or
raise costs in the basic tier, reducing the ability of society to meet
its social obligations. The supplementary tier might undermine
political support for the basic tier, for example, by undercutting the
social solidarity needed if people are to remain committed to
protecting opportunity for all. These objections are serious, and
where a supplementary tier undermines the basic tier in either way,
economically or politically, priority must be given to protecting the
basic tier. In principle, however, it seems possible to design a
system in which the supplementary tier does not undermine the basic
one. If that can be done, then a system that permits tiering avoids
restricting liberty in ways that some find seriously
objectionable.



A second objection is not to tiering itself but to the structure of
inequality that results. Compare two scenarios. In one, most people
are adequately served by the basic tier and only the best-off groups
in society have the means and see the need to purchase supplementary
insurance. That is the case in Great Britain. In the other, the basic
tier serves only the poorest groups in society and most other people
buy supplementary insurance. The Oregon plan to expand Medicaid
eligibility partly through rationing the services it covers has
aspects of this structure of inequality, since most people are covered
by plans that avoid these restrictions (Daniels, 1991). The first
scenario seems preferable to the second on grounds of fairness. In the
second, the poorest groups can complain that they are left behind by
others in society even in the protection of their health. In the
first, the majority has fewer grounds for reasonable resentment or
regret.



If the basic tier is not undermined by higher tiers, and if the
structure of the inequality that results is not objectionable, then it
is difficult to see why some tiering should not be allowed. There is a
basic conflict here between concerns about equality and concerns about
liberty, between wanting to make sure everyone is treated properly
with regard to health care and wanting to give people the liberty to
use their resources (after tax) to improve their lives as they see
fit. In practice, the crucial constraint on the liberty we allow
people seems to depend on the magnitude of the benefit available in
the supplementary tier and unavailable in the basic tier. Highly
visible forms of saving lives and improving function would be
difficult to exclude from the basic tier while we make them available
in a supplementary tier. In principle, however, some forms of tiering
will not be unfair even when they involve medical benefits not
available to everyone.