The democracy problem.

Daniels poses his fourth challenge as a question: "When must we rely on a fair democratic process as the only way to determine what constitutes a fair rationing outcome? " Behind his question is an implicit picture of the process of designing a fair rationing scheme that looks like this: policymakers propose a rationing scheme and submit it to bioethicists, who apply the theory of justice to it and say whether it passes or fails. If they find they cannot give a clear pass/fail to any part of the scheme, they shift their attention to the process by which that part was decided. They apply the theory of justice to that, and if the process passes a fairness test, the result is declared to be by definition fair. The democracy question then becomes a series of questions: Does the theory of justice allow all parts of a rationing scheme to be judged fair or unfair? If not, what are the practical rules that determine when the process-related criterion kicks in? What constitutes a fair process in this context? These are interesting questions. Unfortunately, the answers would be of limited help in designing rationing schemes because the questions fail to reflect the real democracy challenge policymakers face. The first problem is, which theory of justice should be applied? As far as I know, there is no consensus in the United States on the theory of justice that should be used in policy decisions. Alternative theories of justice have common elements, but as Daniels notes, they wouldn't necessarily give the same answers to any of the three questions above. Moreover, even if people did agree on a theory of justice, they would probably still disagree on how to translate it into health care rationing rules because of differences in their feelings about various states of health and in their beliefs about the facts. Consider, for example, using the principle of fair equality of opportunity to decide whether to guarantee access to human growth hormone as part of a decent minimum of health care in the United States. Three empirical questions immediately arise. Does the hormone make people taller than they would be without it, and by how much? What difference (if any) does being that much taller make to a person's opportunities? How much does the treatment cost? In theory, scientific inquiry can answer these questions; in practice, information is always incomplete and honest differences of opinion may remain. Individual preferences also influence views on health care rationing. Someone who hates shots, doesn't date people who care about appearances, and can't imagine wanting to be a politician or basketball player is less likely to see human growth hormone as essential care than someone with different preferences. The role personal preferences should play in setting rationing rides is, however, complex. The rules one would personally choose, given one's own preferences over health states, may not be the rules one considers appropriate when everyone will be forced to contribute to the cost of implementing them. For example, one woman who desperately wants children bankrupts herself for in vitro fertilization treatments, yet believes they should not be included in a societally guaranteed level of care; another woman considers the opportunity to bear a child so important that some infertility treatment, as well as care for pregnancy and delivery, belongs in the guaranteed level, even though she herself prefers to remain childless. Moreover, a person's views about what care is morally required, and for whom, may (indeed should) take into account effects on people other than those who actually receive the care. Mental health care for a depressed mother enables her to be a better parent to her children; timely treatment of infectious disease spares others from infection; treatment for alcohol and drug addiction lowers the incidence of automobile accidents, domestic violence, and alcohol- and drug-related birth defects. …