By Daniel Tippens
This is third in the series that began with Dan Tippens’ “A short note on the ethics of liver transplantation” and is a reply to Dan Kaufman’s “Moral judgment and medical resource scarcity.”
Dan Kaufman provided some very important insights into the discussion regarding the ethics of organ scarcity, and I am grateful that he took the time to respond to my short note. There are some things we agree on, but also several points of contention.
It is important to first note that the topic of the discussion has changed, in the wake of Dan K.’s essay. In my first post, I discussed one way of thinking about how to frame desert-based prioritization conditions (in terms of reward instead of punishment), assuming that moral considerations such as these have a role to play in the ethics of organ transplantation. However Dan K. argued for the view that no moral considerations should enter the picture at all. Only practical considerations such as expected return of life-years, or likelihood of the operation’s success should be appealed to. So for the purposes of this essay, for the most part, I will be putting aside questions about how to justly implement desert-based considerations, instead discussing whether moral considerations should enter the picture at all.
I said in my first essay that a discussion on the ethics of organ transplantation has implications for the ethics of scarce-resource allocation more broadly. Dan opens his reply piece by noting that we shouldn’t restrict a discussion on the scarce-resource allocation by simply looking at organ scarcity problems, because it is a unique case. I certainly wouldn’t disagree, but for the sake of being thorough, it’s worth noting that Dan’s suggestion is quite consistent with the idea that discussions about organ transplantation have implications for scarce-resource allocation ethics more broadly. It’s simply the case that such discussions aren’t going to be the start or end of the conversation.
But onto the more substantial points. Dan states toward the end of his essay:
I do not think that moral considerations should play any role whatsoever in the allocation of scarce medical resources. Prudential and practical considerations should always be overriding, and I think there is a way of construing the “who will benefit the most from it” principle of prioritization in prudential, rather than moral terms. Beyond that, medical resources should be provided on entirely value-neutral grounds, such as random selection, “first come first serve,” or some other such basis.
Dan thinks that no moral considerations should enter into the picture when discussing the allocation of scarce medical resources, only prudential and practical considerations. By “prudential and practical considerations,” Dan is referring to what I called “medically-related utilitarian considerations”– value-neutral things such as likelihood of a successful operation, and expected benefit in terms of extension of life-years.
I think this view is too strong. Suppose a man rapes a woman. The next day, the rapist is arrested and placed in jail. However, he has a cursory medical examination in prison, and it turns out that he is in need of a new liver, and so he is placed on the waiting list. His victim has a check-up the day after this, and finds out she is suffering from severe liver degeneration, and also needs a liver. Both have equal likelihood of a successful operation, and both are of a similar age. On Dan K.’s view, the rapist should get the liver, since he was placed on the waiting list first. I take this as highly counterintuitive, indeed unjust. The only way to appropriately explain why this would be counterintuitive is to admit that moral considerations should have played a role here, but on Dan K.’s view, they don’t.
Now consider a variation on Dan K.’s own case.
Suppose that there are two people of the same age, A and B. Both need liver transplants, but one is an Alzheimer’s researcher on the cusp of a cure, and only he understands the research thoroughly, the other is not. Practical considerations will not distinguish one from the other, as they both have the same expected return in life-years and same chance of a successful operation. Only one liver is available, so who should get it?
If we knew that someone were about to find a cure for Alzheimer’s disease, I’m pretty sure most of us would think that this person should be given priority. Ask the family of any Alzheimer’s patient and I’m sure they would agree. This isn’t to say that these considerations are always overriding, but simply that they seem relevant and important to consider.
So I take it as a starting point that moral considerations should play some role in scarce-resource allocation. The questions simply are: how much of a role should they play, when should they enter the picture, and which kinds of considerations should be brought in?
Dan K. then advances a criticism against any view that employs a desert-based framework in organ transplantation ethics. His concern is that, historically and presently, desert-based arguments have (and are) used to justify harming those that society condemns:
It seems to me that we engage in this sort of desert-based prioritization only with respect to those whom society currently holds in contempt, which, today, consists almost entirely of smokers, drinkers, and drug users, although you don’t have to go very far back in time to find a similar sort of deprioritization being applied to those suffering from AIDS.
In philosophy (and politics), there is a long history of extreme reactions to views which are shown to be highly problematic. When Chomsky criticized behaviorism, the philosophical community quickly abandoned and even stigmatized the behaviorist framework. Anyone who showed signs of flirting with the view was subject to social and professional penalties — assumed to be a full blown (bad) behaviorist.
This kind of thing can also be seen in politics when, for example, the civil rights movement was unfolding and affirmative action was implemented. The endorsement of the affirmative action policy has come to be viewed as the clear position to take if you are against racism. Indeed, if you hold the idea that affirmative action should be abandoned or even that it might be problematic, this is frequently equated with racism, something that Glenn Loury and John McWhorter have pointed out on more than one occasion, on their regular program on Blogging Heads TV. Flirtation with a view similar to one that has historically proven problematic is tantamount to endorsing the problematic view, or at best, advocating a dangerous position which shouldn’t be considered.
I suspect this disposition is being manifested here. Dan K. has seen how moral considerations can be problematic when used in medicine — indicated in the passage above — and has planted his feet firmly in the polar-opposite territory, holding that we should eschew any appeal to moral considerations in medical practice, for they have historically and presently been used for bad purposes. Further, he seems to think if you flirt with a desert-based view that involves moral considerations, it should be suspected of being in the category of the full-blown historically pernicious views. The analogy with behaviorism and affirmative action seems quite apt.
But, taking a cue from the history of behaviorism and affirmative action, that people abuse desert-based arguments is not a reason to abandon them altogether, it is simply a reason to be careful about how they are framed and about how they are implemented. Indeed, if you think that certain frameworks being misused historically is an argument to not employ them at all, then we would have to call Dan K.’s position into question as well. Recall that historically people have used all kinds of frameworks and arguments to oppress those who were socially disapproved of, even non-normative things, such as empirical work (phrenology, anyone?). People don’t just use moral arguments to oppress, they use whatever they can get.
Now remember, Dan K.’s position advancing the idea that expected life-years gained and likelihood of success should be the only considerations that precede the first-come-first-serve principle or the random generator. By his criteria, the elderly (people over the age of 45 based on statistics about organ-transplant needs), disabled, and certain genders (since certain genders have lower life expectancies and indeed different chances of success with an operation or treatment) would be widely deprioritized. But, historically people have discriminated against these groups using things like scientific data and prudential considerations. Should Dan K. be subject to the same “historical” criticism that I was subjected to? Perhaps you think the reason that my view is vulnerable to this objection, while Dan K.’s is not, is because I’m employing a desert-based framework while he is employing merely a value-neutral pragmatic framework. But then you are begging the question — for the very thing we are disputing is whether it is fair to appeal to moral considerations in scarce-resource allocation decisions. The upshot is that any prioritization criteria will be susceptible to the historically based argument that Dan K. advances, simply in virtue of deprioritizing some over others. But since Dan K. also thinks that prioritization criteria, albeit prudential ones for him, should be considered, the historical argument loses its force.
Dan K. also advanced an objection to my particular reward-based view, which is that it constitutes a distinction without a “relevant” difference. My position, as you may recall, is that when medically-related utilitarian considerations are equal between two patients, the nonalcoholic should get the liver over the alcoholic, and this is *not* because the alcoholic is being punished or has done anything wrong, but rather because the nonalcoholic deserves the liver more here.
My position is in contrast to deprioritization as a result of moral condemnation — the alcoholic should be deprioritized because he did something blameworthy, and is being, essentially, punished. Dan K. says:
Whether one characterizes the prioritization of one person over another in terms of punishing the denied person or rewarding the chosen one, it is based in part upon determining whether one of the parties has done various things that have led to his needing the scarce medical resource — the smoker needs cancer treatments because of his smoking, the alcoholic needs the liver transplant, because of his drinking, etc. This dimension of the choice is not changed by the fact that Dan T. wishes to characterize the prioritization itself in terms of the desert of the person who has not done these things and has, at least in that regard, taken better care of himself. That this is a distinction without a relevant difference – giving John the liver transplant over Bill because John deserved to get it versus giving John the liver transplant over Bill, because Bill deserved not to get it – quickly becomes evident, when you adopt Bill’s position and ask yourself whether you’d feel any better at being told you were going to die, because someone else deserved to live more, rather than because you deserved to live less.
Dan says my position simply advances a distinction without a relevant difference, and the reason is because it is functionally equivalent, in terms of who gets deprioritized, to the punishment-based view. His intuition pump involves imagining that you, as an alcoholic, need a liver and are told that you are going to die, because someone else deserves the liver more.
But I find this highly problematic for a couple of reasons. First, note that Dan says this is a distinction without a relevant difference. The question is, relevant to whom? Sure, my distinction makes no difference to Bill, but it makes a difference to medical students and nurses, and what attitudes they hold toward alcoholics — do they view alcoholics with condemnation, or without it? If the arguments they hear for deprioritization are constantly placing explicit blame and condemnation on alcoholics, their attitudes will reflect this, and will manifest in the way they care for such patients. If you keep the punishment-based arguments, this condemnatory attitude would, and indeed has, dissolve into society as a whole. This is an outcome that the reward based view mitigates.
The other problem I have with his intuition pump is that it says something about the tragedy of having to prioritize some over others generally speaking, but not something problematic about my particular distinction. Let me elaborate. First recall that Dan K. thinks that things like life expectancy and likelihood of success should play a role in determining who gets scarce resources, and he wants to frame these considerations in prudential and practical terms, instead of moral ones. Well, who is going to appear to be deprioritized by his criteria? As I said earlier, people over the age of 45, people with certain disabilities, and indeed even certain genders.
Now, when you tell the 50-year old man that our decision to relegate him to death instead of the 45 year old man not because of utilitarian moral reasons but because a 45 year old will prudentially get 5 more years than he will, will that really matter to him and his family? No, because he and his family will still suffer through his death. The point is that Dan K.’s intuition pump shows much less about my particular distinction than it does the tragedy of scarce resource allocation more broadly. Any time you outline prioritization conditions, it is not going to matter how those conditions are framed to the people who get deprioritized and are relegated to death. But the framing will matter for our societal attitudes toward these people, which is probably one of the reasons why I think Dan would want to frame his conditions in prudential and not moral terms.
Where does all of this leave us? Well, in my mind, any set of criteria for prioritization and deprioritization is going to face historical concerns about abuse, but I don’t think we should give up prioritization altogether. As such, the historical criticism is not a reason to abandon all forms of prioritization, but rather a reason to be careful about how we implement and frame our conditions. Dan K.’s intuition pump supporting the idea that I make a distinction without a relevant difference also fails, for the reason I provided earlier. If you are not willing to bite the bullet of the rape case mentioned at the beginning, then you should not be asking whether moral considerations should play any role at all in medical practice — you should be asking where and when they should, and which kinds we should appeal to.