II. Sketch of a Lockean Argument for Government Action to Secure Public Health and Ensure Access to Health Care

Locke can be interpreted in different ways, and the guidance he provides concerning what government should do and when government should intervene in markets depends on how he is interpreted. Locke prohibits taking property without consent and emphasizes that property is central to self-preservation. But he also allows a majority vote to constitute consent, and he thinks government should promote welfare.

For the purposes of this essay, I shall suppose that the core political values of what I shall call “a Lockean” are (a) the protection of life and property, and (b) the protection of freedom, understood as independence and self-determination.Footnote ⁶ As I have already mentioned, Locke is concerned about welfare as well, and one could remain faithful to the text of the Second Treatise and nonetheless define a different and more welfarist Lockean. Equality of moral standing and rights is also obviously important to Locke,Footnote ⁷ but I shall take equality as governing the interpretation and implementation of the core values of life, property, and freedom, rather than as a separate value. I make no claim to have provided the one true interpretation of Locke.

Many twentieth- and twenty-first-century followers of Locke identify the protection of freedom with the protection of individual rights to be free of interference from others, and they regard the proper role of government to be limited to the protection of these individual rights. But Locke himself specified a broader role for government, and even if one restricts government action to the protection of life, property, and freedom, other things besides the protection of rights serves these ends. On my interpretation of a version of liberalism that is faithful to Locke, government action to secure any objective is justified if and only if it satisfies three conditions:

1. (1) The objective of the government action is crucial to independence and self-determination;

2. (2) People cannot secure for themselves the objective of the government action; and

3. (3) Government action to secure the objective does not itself undermine the protection of life, property, and freedom.

If there are other things that government can do besides protecting rights that meet these conditions, then government will have an obligation to do those things, too. These cursory remarks stipulate my starting place.

Many of those who reject liberalism also value life, property, and freedom (along with equality and welfare), but nonliberals may interpret freedom and equality differently, and they typically place less weight on freedom and more weight on welfare and equality. Nonliberals may have other core values, such as solidarity, salvation, or national glory. For the purposes of this essay, the reader can take the preoccupation with protecting life, property, and freedom (in the sense of independence and self-determination) as a stipulative definition of a “Lockean.”

The question I hope to answer in this essay is whether in affluent countries such as the United States, there is a Lockean case for government action to secure public health and to ensure that everyone has effective access to basic medical care. Those who have embraced Locke's liberalism have usually opposed government intervention in the market provision of goods and services (other than public safety and self-defense), and for good reasons. But health is so important to self-preservation and freedom, and both public health measures and medical care (unlike other necessities such as food and shelter) are so difficult for individuals to provide for themselves, that just as a liberal defends government protection of public safety, so a liberal might defend the public protection of health. The public protection of health arguably satisfies the three justifying conditions specified above and thus, like the protection of individual rights, would be a legitimate function of government.

Medical care or public health measures are, of course, no more synonymous with health than policing is synonymous with public safety, and some aspects of health care (like some aspects of personal security) should be conceptualized and treated in the same way as consumption goods such as food, clothing, or books, which individuals can provide for themselves. In fact, it is only relatively recently that medicine has become sufficiently effective that health care matters to the health of a population. Medical care still, on average, makes less difference to people's health than housing, nutrition, education, and social status, but its efficacy is growing and the cases in which it saves people from death or severe morbidity are every day more numerous. On the interpretation of Locke stipulated above, there is a case for government action to ensure that people get health care if the three justifying conditions are met.

If government should ensure that people get basic health care, it does not follow that government should provide health care, because providing health care is not necessarily the best way of ensuring that people get it, and because government provision of health care might conflict with other core values or might otherwise make people worse off. Yet if “the preservation of Property” is “the end of Government, and that for which Men enter into Society,”Footnote ⁸ and if property includes our lives and bodies, then it seems that Government should be deeply concerned about the preservation of our bodies and hence (assuming the efficacy of health care) concerned with basic health care.

My goal is to explore this sketchy argument for universal effective access to basic health care and determine whether it is sound. I shall not attempt to clarify what health care counts as “basic,” other than to note that whether health care is basic or not depends on its efficacy, its expense (and other factors that interfere with individual provision), and the extent to which it affects life and independence. One might say that “basic” health care is care that is known to be crucial to life and normal functioning and not so expensive that making sure that everyone has it will seriously diminish people's freedom. Clearly, what counts as basic medical care will be a contentious matter and will vary depending on the wealth of a society and changes in technology. An appendectomy will clearly count as basic medical care in the United States, while most cosmetic surgery is not basic. But there is a great deal in between.

By “universal effective access” to a particular set of health care services, I shall mean the state of affairs in which all residents are normally able to get these services without severe difficulty or hardship. Universal effective access does not require state provision, but it cannot in fact be secured without a good deal of government involvement. The high cost of many treatments and the unpredictability of needs for them make it impossible for individual savings to provide universal access.Footnote ⁹ Voluntary private insurance fails to provide universal access, because it is beyond many people's means, and severe adverse selection problemsFootnote ¹⁰ cause market failures. How much government involvement is required depends in part on the set of health care services to which access should be universal, and, as we shall see, the Lockean defender of universal effective access will have a different conception of which services everyone should be able to access than other proponents of universal access. Although I will be concerned with what health care services people should have access to, this essay will not be concerned with problems of implementing universal access.

A Lockean liberal must be concerned about the fact that when the government guarantees universal access, regardless of how this is implemented, government agencies or the insurance companies the government subsidizes will have to make choices about which drugs and procedures are covered and which are not. Though such choices are often described as rationing, what is being rationed is not medical care, but insurance coverage. Individuals are still free, if they have the means, to seek other treatments and purchase other drugs. From the perspective of those who cherish freedom, it would unquestionably be better for individual choices not to be so heavily influenced by bureaucrats in insurance companies or government agencies, but there is no way to secure individual choice without at the same time depriving people of the financial wherewithal to make meaningful choices. The best one can do is to endorse policies that require that individuals pay for their own inexpensive routine care, perhaps with the addition of vouchers or subsidies for those who are indigent, while at the same time insuring everyone against more expensive conditions.Footnote ¹¹

I shall develop the Lockean case for government provision of public health measures and basic health care by comparing it to Norman Daniels's semi-Rawlsian and largely egalitarian defense of a state guarantee of universal access to health care. Since Daniels rests the case for universal access to health care on a principle requiring fair equality of opportunity, one might question whether Daniels could be a useful foil for a Lockean account of health care provision. Rawls's and Daniels's egalitarian concern with disparities in economic advantage, life prospects, and the range of choices available to individuals is foreign to Locke and to most classical liberals. Yet there are affinities. Although they are not Lockeans, Rawls and Daniels are both liberals, and opportunity is an interpretation of freedom (though obviously not the same thing as self-determination). In any case, I hope to show that the comparison between Daniels's case and a Lockean case is instructive. The Lockean case for universal access to health care has significant advantages over Daniels's case, but it faces some of the same objections, as well as problems of its own.

III. Daniels's Case for Universal Access to Health Care

Over the past four decades, Norman Daniels has developed a comprehensive liberal-egalitarian (and definitely not Lockean) view of what justice requires with respect to health care and, more generally, with respect to the protection and improvement of health. His view is philosophically sophisticated and practically applicable, and on my reading of the literature, no alternative account comes close to matching its comprehensiveness. In his 2007 book Just Health, Daniels incorporates his views on health care into a larger theory of justice with respect to health, but his account of what justice requires with respect to health care is essentially unchanged from the account he defended in his 1985 book Just Health Care. Footnote ¹²

Daniels endorses the “biostatistical” view of health defended by Christopher Boorse,Footnote ¹³ which takes health to consist in the statistically normal functioning of the parts and processes that make up human bodies and minds. Diminished health prevents people from doing some things and pursuing certain life-plans. Daniels maintains that because diminished health in this sense limits opportunity, it raises questions of justice. (A Lockean will instead point to the consequences of diminished health for freedom, property, and life itself.) The principle of justice Daniels invokes to govern the provision of health care and public health measures is a reinterpretation of John Rawls's fair equality of opportunity principle.Footnote ¹⁴ In Daniels's egalitarian view, the same range of life-plans should be available to those whose talents and motivation are the same. Just as justice (as embodied in fair equality of opportunity) requires the elimination of social barriers that limit opportunities, so it requires protecting and restoring health, subject to feasibility constraints, resource limitations, and competing moral considerations. Daniels says little about the claims of those who cannot be restored to normal functioning, just as the Lockean will say little about the claims of those whose life expectancy and independence cannot be protected or enhanced by health care.

Daniels maintains that, other things being equal, justice with respect to health requires that everyone possess their “fair share” of the normal opportunity range, and that a necessary condition to secure to everyone their fair share of the normal opportunity range is providing universal access to health care. As Daniels is well aware, other factors (such as education, nutrition, housing, stress, and lifestyle) have a greater overall influence on health than does health care, and he does not clarify why fair equality of opportunity should lead a Rawlsian liberal to single out health care. Presumably, the explanation turns on the urgency of health care and the inability of individuals to provide for their own health care.

Although a Lockean, as I have characterized her, would not make Daniels's argument, there are some affinities between the two, and it is worth looking more carefully at the philosophical premises of Daniels's argument. In A Theory of Justice (1971), Rawls formulates two principles of justice to govern the basic structure of society:

Advantage is measured in terms of social primary goods: rights and liberties, opportunities and powers, income and wealth, and the social bases of self-respect. The least advantaged is the least advantaged “representative agent” or social class. Provided that the institutions of a society satisfy the principles of justice, the specific distribution among individuals is a matter of pure procedural justice. Satisfying the first principle (which is closer to Locke's views than the second, but will not be under discussion in this essay) is lexically prior to satisfying the second principle, and part (b) of the second principle—that is, fair equality of opportunity—is supposed to be lexically prior to part (a), the so-called difference principle. In A Theory of Justice, Rawls idealizes and supposes that all citizens are in full health over their lifetime. Thirty years later, in his last restatement of the theory in Justice as Fairness (2001), Rawls remarks that

Notice that Rawls suggests that medical care helps to make the equality called for by his first principle of justice substantial rather than merely formal. Although the interpretation of equality goes well beyond the equality of status and rights that Locke endorses, these remarks suggest a liberal conception of health care as enabling individuals to enjoy the rights and liberties that justice promotes and protects.

Rawls formulates what he calls “fair equality of opportunity” as an improvement over mere “formal equality of opportunity.” The latter rules out formal barriers to “positions and offices” but leaves in place informal barriers rooted in status, wealth, education, social contacts, race, gender, religious affiliation, and so forth. Fair equality of opportunity aims to eliminate such social barriers. Given the full-health idealization in A Theory of Justice, eliminating such social barriers implies that those whose talents and motivation are the same have the same expectations of employment and status. Talents and motivation include all nonpathological traits of a person that are relevant to employment and status.Footnote ¹⁸ I shall use the word “talents” to include not only skills and abilities, but also character traits such as ambition, perseverance, effort, and willingness to take risks.

Fair equality of opportunity is only a fragment of a theory of distributive justice, which may demand very little. Without any specification of what constitutes a “talent,” of when talents are “equal,” or of how talents ought to influence the probability of achieving a position, fair equality of opportunity may require a good deal less than what Rawls and Daniels intend.Footnote ¹⁹ Furthermore, from Rawls's and Daniels's egalitarian perspective, even if we clarify the nature of a talent, the criteria that determine which talents count as “the same,” and how talents should matter, the rewards and status attached to social positions may be unjust. Fair equality of opportunity by itself places no limits on disparities between the opportunities of individuals whose talents differ or between the outcomes of those whose talents and opportunities are equal.Footnote ²⁰

Within Rawls's theory, the difference principle (coupled with the restriction to ideal theory) addresses these limitations of fair equality of opportunity. Within “ideal theory,” where there is strict compliance with the principles of justice, what counts as a talent will not be biased by racism, sexism, or national or religious animosity, and the rewards attached to talents will be determined by economic institutions structured so as to maximize the primary-goods prospects of the least well-off representative individual. When combined as Rawls proposes, the separate elements reinforce one another and constitute a strongly egalitarian theory.

Even though fair equality of opportunity is only one piece of Rawls's theory of distributive justice, it seems to be the sole principle from which Daniels derives his conclusions concerning justice with respect to health care. Daniels borrows the notion of fair equality of opportunity from Rawls, but expands the scope of “opportunity.” As one commentator puts it, “Rawlsian ‘opportunity’ refers to the individual's socially-determined chance of achieving one of the privileged places in society. Daniels's ‘opportunity’ refers to the individual's chance of achieving any of the goals contained in any of the life plans that can be reasonably adopted in the society.”Footnote ²¹ Daniels needs to expand the scope of opportunities in this way, since no one would trace the relevance of health to justice exclusively to the consequences of health for employment.

The extent of a person's opportunities in the sense Daniels employs is equivalent to the set of life-plans that are open to the person. These depend both on the person—on her talents and health—and on features of the society within which the person lives, including the principles of justice that govern the society and the extent of compliance with the principles. To speak of a person's opportunities in this sense is to make a counterfactual claim about what the person could reasonably have chosen in the particular society. Thus, for example, we might say that I enjoyed the opportunity to choose and pursue many life-plans that I never had any interest in choosing and that are impossible for me to pursue now. Perhaps I once had the opportunity to be a musician, but that opportunity was gone decades ago. The relevant notion of opportunity is not conditional on my past choices or my past or present desires.Footnote ²²

What Daniels calls “the normal opportunity range” for a given society consists of all the life-plans that are possible in that society with any array of talents. The normal opportunity range depends on the economic and technological development of the society, its geography and climate, its culture, its forms of social organization, and so forth. The whole of the normal opportunity range could not be open to any individual, because no one person could have (for example) the talents to be both a ballet dancer and a defensive tackle. In Daniels's view (as in Rawls's), limitations on a person's share of the normal opportunity range that result from the person's “talents” are not unjust,Footnote ²³ unlike limitations due to social factors such as religious discrimination. Daniels maintains that remediable or compensable bad health also unfairly restricts an individual's share of the normal opportunity range. Daniels stipulates that each person's fair share of the normal opportunity range in a particular society S is the share of the normal opportunity range that individuals in full health with the person's talents would have if S were otherwise just. Why are these shares “fair” shares? In Daniels's view, “The special importance we attribute to meeting health needs, then, can be explained by the weight we attach to protecting our shares of the normal opportunity range against departures from normal functioning.”Footnote ²⁴

Daniels takes Rawls's theory of justice, when coupled with this reinterpretation of opportunity, to imply a more specific principle governing health care:

Daniels does not explicitly formulate what I have labeled “Daniels's Principle,” but it fairly summarizes his central principle governing the distribution of health care and public health measures. “Normal species functioning” is “full” health—the absence of any pathology that limits an individual's share of the normal opportunity range. The normal opportunity range is relative to the society, and an individual's fair share depends on his or her talent level. The “other things being equal” clause is complicated, since there are feasibility constraints, resource limitations, and competing moral interests. In the interest of brevity, I shall avoid repeating these important qualifications, but they will later be important to appraising the Lockean case for universal access. As Daniels notes, it is sometimes more efficient to mitigate the effects of ill-health on opportunity than to prevent or cure ill-health.

The conclusion that Daniels draws concerning the special importance of health is controversial, even if one endorses fair equality of opportunity. Like the Lockean liberal, Daniels emphasizes freedom, but unlike the Lockean, he identifies freedom with opportunity rather than with self-determination. Regardless of how freedom should be interpreted, health in fact matters to other things besides freedom. It is both a component and an important cause of well-being, and the way in which a society responds to poor health matters to social solidarity. As others have pointed out, the exclusive focus on opportunity seems exaggerated.Footnote ²⁶ Someone suffering from colitis or depression may be more concerned with how miserable they are feeling than with the extent to which their health limits either their opportunity or their self-determination. People with severe dementia lose themselves and their relations to others, not just their ability to direct their own lives. Daniels notes the connection between health and subjective well-being,Footnote ²⁷ but he questions whether the importance of health to well-being can ground an account of health needs, and he devotes his efforts constructively to developing his opportunity-based alternative to a welfarist view.Footnote ²⁸ In emphasizing that the relevance of health to justice lies mainly in its implications for opportunity, Daniels need not (and does not) deny that health is important in other ways. Similarly, even if the Lockean case for government action to guarantee access to basic health care rests on the importance of health to life and self-determination, the Lockean need not deny that health matters in other ways.

Suppose one grants Daniels's view that the relevance of health to justice lies mainly in its effects on opportunity. Does Daniels's principle follow? Whether justice requires that health care be singled out for special treatment or implies a right to health care is controversial. As Daniels recognizes, education, wealth, security, nutrition, and shelter all have significant effects on opportunity, too. Furthermore, even if universal access to health care is a moral imperative, it does not follow that government action is required. Further argument, which Daniels only sketches, is needed. Similarly, the analogous case for the importance of health care to the protection of life and self-determination does not, by itself, imply that there is any need for government to act. A crucial additional premise is needed to make both Daniels's case and the Lockean argument for government health-care provision. This additional premise is that, unlike nutrition, clothing, and shelter, which individuals can generally secure for themselves, most individuals cannot privately manage and pay for their health care.Footnote ²⁹ The high cost and unpredictability of meeting health-care needs, plus the public-goods character of public health measures, make it impossible for individuals to pay for their own health care, and the combination of high costs and problems of adverse selection make it impossible for individuals to insure themselves. Daniels takes the importance of health to opportunity, coupled with the special features of health care needs, to imply that justice demands that everyone have effective access to health care for the prevention and treatment of disease and disability. “[T]he account supports the provision of universal access to appropriate health care…. Health care aimed at protecting fair equal opportunity should not be distributed according to ability to pay.”Footnote ³⁰ Lockeans can make an analogous argument, to which I now turn.

IV. A Lockean-Liberal Argument for Universal Access to Health Care

Although Lockeans as I have characterized them would not endorse the fair equality of opportunity principle, they can recognize the importance of health to life and freedom (in the relevant sense of self-determination and independence), and the problems individuals face in providing for their own health care or in purchasing private health insurance.Footnote ³¹ Lockeans can then make an argument that to some extent mimics Daniels's argument. Rather than relying on the notion of fair shares of the normal opportunity range, the Lockean liberal can rely on the constructs of (statistically) normal life expectancy and of “normal freedom”—that is, normal prospects for self-determination and independence. Life expectancy is a well-defined and well-measured statistic. Normal freedom, in contrast, is vague and hard to measure, but not obviously any vaguer or harder to measure than Daniels's notion of a fair share of the normal opportunity range. Both normal life expectancy and normal freedom might appear to be averages that are independent of any questions concerning fairness and justice, but this contrast with Daniels is misleading. The statistical averages in a destitute autocracy are irrelevant. Normal prospects for self-determination and non-subjugation and normal life expectancies are implicitly normative. They are averages in just societies.

Because the Lockean's central goals of government are the protection of life, property, and freedom, government has a role in addressing threats to life, property, and freedom when it is difficult or socially costly for individuals to protect themselves. Unlike those who read Locke as insisting that government only protect rights, I take Locke to be concerned with the whole gamut of threats to life, property, and freedom. Crime, ignorance, malnutrition, tyrannical or bloated government, badly defined or poorly enforced property rights, foreign invasion, and disease all limit life expectancy or freedom. Individuals can and should cope with some of these threats themselves. But if individuals cannot protect themselves and government action is not itself a greater threat than the problem it aims to tackle, then government should act. If (1) health care and public health measures are effective ways of addressing the threats that disease poses to lives and freedom, (2) these measures do not themselves threaten freedom, and (3) individuals cannot provide their own health care, then government has a responsibility to insure that health care is available.Footnote ³² “That equal right, that every man hath, to his natural freedom”Footnote ³³ implies that health care should be available to all.

This argument for universal access to health care relies on less controversial moral premises than Daniels makes use of. There is less disagreement about the importance of protecting people's lives and their ability to live independently than there is about promoting fair equality of opportunity. At the same time, the range of health care to which this argument justifies universal access is narrower than the range that Daniels would guarantee. Both would justify access to most health care that saves lives or that cures or prevents disabilities such as blindness, deafness, and paraplegia, which may limit independence and self-determination. But there are many pathologies that limit people's shares of the normal opportunity range without threatening either their lives or their freedom (in the sense of self-determination and independence). Consider, for example, infertility, impotence, mild myopia, neurosis, or moderate back pain.

The argument this section has presented defending universal access to health care that protects life and freedom has many loose ends. In particular, a defender of freedom might argue that government regulation of health care, let alone government provision of health care, diminishes freedom more than the promotion of health increases freedom. This diminution of freedom might come about relatively directly by undermining self-reliance,Footnote ³⁴ interfering with the choices of individuals and health-care providers, or increasing the burdens of taxation. By enlarging the scope of government, guaranteed access to health care may also create indirect long-run risks to freedom. With respect to relatively inexpensive public health measures and protection against pandemics or chemical or biological warfare, these qualms are hard to defend. But the connection between health care and health is tenuous, and qualms concerning the consequences for freedom of extensive guarantees of health care are not unreasonable.

To assess and fill in this sketchy case for universal access to health care, it will be instructive to examine whether criticisms of Daniels's account also apply to this Lockean-liberal argument for universal access.

V. Health, Health Care, and Fair Shares of the Normal Opportunity Range

In developing his account of justice with respect to health, Daniels relies on Christopher Boorse's insightful view of health as species-typical functioning.Footnote ³⁵ Boorse develops the view of health implicit in physiology and pathology, conceiving of organisms as functionally organized systems whose parts and processes enable them to survive and reproduce. When some part or process is operating at a statistically abnormally low level of efficiency, then there is a pathology, and the organism is in diminished health. Many pathologies are trivial, while the effects of others may be mitigated by redundancy built into the organism. The malfunction of one kidney, for example, is a pathological condition, even though it may have no consequences for an individual's survival or reproduction.

The normal function of parts and processes in human beings differs between men and women and at different ages. The inability of infants to walk or of men to bear children is not pathological. So the reference class with respect to which the functioning of some part or process counts as normal or pathological should be an age group of a gender. Boorse's original definition of health thus reads as follows:

1. (1) The reference class is a natural class of organisms of uniform functional design; specifically, an age group of a sex of a species.

2. (2) A normal function of a part or process within members of the reference class is a statistically typical contribution by it to their individual survival and reproduction.

3. (3) A disease is a type of internal state which is either an impairment of normal functional ability, i.e., a reduction of one or more functional abilities below typical efficiency, or a limitation on functional ability caused by environmental agents.

4. (4) Health is the absence of disease.Footnote ³⁶

Boorse is using “disease” in a very general sense, in which any pathology or significantly diminished function of a part or process counts as a disease. So a broken leg or a headache counts as a “disease” in this sense. In later work, he substitutes the less misleading term “pathology” for “disease.” The second clause in condition 3 is part of an unsuccessful attempt by Boorse to deal with the problem that some pathological states (such as tooth decay or hypertension) may be statistically typical rather than abnormal in some reference classes.Footnote ³⁷ What is at issue in Boorse's account of health is the normal function of parts or processes, not the normal functioning of the person as a whole. When Daniels speaks of “species-typical functioning” or “normal species functioning,” he could mean normal overall functioning or species-typical functioning of component parts and processes. These are not the same. If Daniels is following Boorse, he must mean the latter, but, as the kidney example illustrates, what matters to opportunity is in fact overall functioning rather than the functioning of a part or process.

As Boorse notes and Daniels recognizes, this account of pathology allows for the existence of pathological conditions that do not call for treatment or prevention, and for the existence of conditions that call for medical treatment or prevention that are not pathological. Daniels supports the provision of medical treatment of some nonpathological conditions, such as, notably, pregnancies and unwanted fertility. The existence of nonpathological conditions that call for medical treatment suggests that what matters morally is not literally health, nor even statistically normal overall functioning, but how functioning affects desired opportunities.

Given this conception of health, an analogous conclusion follows with respect to the Lockean argument in defense of access to health care. The inability to prevent or terminate unwanted pregnancies can obviously diminish women's independence and self-determination significantly, and arguably has a higher priority than pathologies such as infertility.Footnote ³⁸ But if what is at issue is not literally health, but instead desired functioning or functioning that affects life and self-determination, one might wonder why the government should single out access to health care as opposed to access to all resources that individuals cannot provide for themselves that protect opportunity or, for the Lockean, life, property, and freedom.

Consider a hypothetical case Daniels discusses of a pill that would increase reading scores among the bottom 10 percent of readers (whose poor reading scores are not due to any known pathologies). Such a pill would apparently enhance the independence and self-determination as well as the opportunities of these semiliterate individuals. Suppose that an interactive computer game has the same effect as this pill. Daniels maintains that “we have no more reason to call the enhancement health care in the case of the pill than we do in the case of the computer game, even though the pill is a medical technology.”Footnote ³⁹ In Daniels's view, interventions that help people who are healthy but nevertheless “socially disabled,” however worthy those interventions may be, do not constitute health care, and they are not within the purview of a theory of just health care. Rather than concluding that we should broaden the notion of health or shift the focus from health and health care as so narrowly defined, Daniels holds that fair equality of opportunity with respect to health care demands prevention or cure only of diminished health states.Footnote ⁴⁰

Yet Daniels believes that, other things being equal, society also ought to provide the reading-enhancement drug or computer game.Footnote ⁴¹ He does not make clear whether he thinks that this obligation has the same urgency or general form of justification as the obligation to provide a treatment for a pathology that would have the same consequences. For if the poor reading skills of the bottom 10 percent could be traced to a pathology, then this drug or computer game would be a treatment rather than an enhancement. If the obligation to provide it were just the same, then the distinction between treatments and enhancements would have only definitional significance.

Daniels's principle requires prevention and treatment of disease or disability, not enhancement of nonpathological traits, even when these traits lead to overall functioning that significantly diminishes opportunity. Daniels defends this implication of his views mainly on two grounds. First, limiting obligations to treatment has administrative advantages. It draws a bright line to hold back the flood of demand for medical benefits. Second, echoing Rawls's argument for the difference principle, Daniels suggests that inequalities in traits or skills that are not the result of pathology are better addressed by making strategic use of the differences among people in order to improve everyone's lot. But Daniels allows for exceptions in “specific instances … where we can identify a highly efficient intervention to eliminate [nonpathological] traits that are obviously disadvantaging.”Footnote ⁴² Daniels also suggests that, in the case of enhancements, the disadvantages of the health state and the benefits of the assistance are likely to be more subjective and debatable than in the case of treatments,Footnote ⁴³ but as he acknowledges, this is not always the case. There are also separate questions I shall not address concerning interventions that provide people with capacities beyond the normal range of variation—the government provision of which the Lockean would certainly not favor.Footnote ⁴⁴

In addition to the consequences of some condition on the range of life-plans open to an individual and the cost and efficacy of a medical intervention, Daniels maintains that obligations to intervene depend on whether the condition derives from a pathology. Why should it matter? Indeed, distinguishing between a treatment and an equivalent enhancement seems, at first glance, inconsistent with fair equality of opportunity, since the effects on opportunity of the condition and its amelioration appear to be the same.

What purportedly justifies treating apparently similar cases differently is that fair equality of opportunity implies only that those whose “talents” are similar should have the same opportunities. The opportunities of those whose talents are different may differ. Recall that “talents” include all those nonpathological traits of individuals that are relevant to their ability to form and execute life-plans. A poor reader who lacks any pathology is in this sense untalented, and, provided that his or her opportunities are no more limited than others who are similarly untalented, there may be no violation of fair equality of opportunity.Footnote ⁴⁵ In contrast, someone who reads just as badly, but whose poor reading can be traced to a pathology, does not enjoy the same opportunities as others who have the same talent but lack the pathology; and, other things being equal, fair equality of opportunity requires prevention or remediation of the deficiency. Talents define the fair share of the normal opportunity range. Pathologies prevent individuals from enjoying their fair share.

This way of distinguishing the cases places a great deal of weight on the distinction between “low talent” and pathology.Footnote ⁴⁶ The parts and processes of human beings function at varying degrees of efficiency. According to Boorse, there is a pathology when the level of functioning or capacity to function is in the lower tail of the distribution of efficiency of part function. Whether one has a case of “low talent” or a pathology will depend, accordingly, on where the line is drawn between, on the one hand, low but normal part functioning and, on the other hand, pathological functioning of the parts and processes that constitute the talent or the health condition. Exactly where to draw the line is, however, in Boorse's view arbitrary. There is nothing in theoretical medicine or biology that tells one whether the bottom 5 percent or 1 percent or .001 percent of liver function among some reference class divides the pathological from the nonpathological. Peter Schwartz argues against Boorse that even though theoretical medicine does not tell us where to draw the line, the choice is not always arbitrary.Footnote ⁴⁷ Schwartz maintains, plausibly, that the location of the line between the pathological and the normal will depend on the consequences of the functional inefficiency. For example, suppose that in some reference class, liver function is highly uniform and only one in a thousand individuals has a degree of inefficiency in liver function that may limit his current or future activities or well-being. In that case, it would be odd to take those in the bottom 1 percent of liver function—90 percent of whom will never experience any pain or limitations—as suffering from liver disease. The line should be drawn farther into the tail of the distribution. If, in contrast, 30 percent of elderly men suffer from hypertension that places them at serious risk of strokes and kidney disease, then it would be just as misleading to regard as pathological only the 1 percent whose blood pressure is highest. What determines where to draw the line is the point at which the inefficiency of part function has a significant effect on overall functioning.

Whether the distinction between what is normal and what is pathological is largely arbitrary or whether it reflects judgments concerning the importance of the inefficiency of part function, the distinction does not justify Daniels's different treatment of disparities due to poor health and disparities due to low talent. If the differentiation between low talent and poor health is arbitrary, then inequalities deriving from the two sources should be treated alike. In contrast, if the distinction depends on whether part inefficiency has a significant effect on overall functioning (and hence opportunities), then limitations in opportunity due to an individual's physical and mental state would all count as pathologies.

If there is no nonarbitrary way to distinguish between poor health and low talent, then one cannot invoke fair equality of opportunity to condemn inequalities in opportunity due to poor health while condoning inequalities in opportunity due to low talent. Daniels has given no reason why we should regard poor health as unjustly diminishing opportunity, while the diminutions of opportunity that are due to low talent are not regarded as unjust.Footnote ⁴⁸ Indeed, as my colleague J. Paul Kelleher has suggested to me, even if there were a nonarbitrary way of distinguishing low talent from poor health, Daniels has not explained why we should be concerned only with poor health. What is relevant appears to be how a condition affects people and whether health care can prevent or treat the condition, not whether it counts as a disease.

The Lockean argument in defense of universal provision of public health measures and basic health care avoids these difficulties, because it does not rest on the fair equality of opportunity principle and, consequently, does not require a distinction between low talent and pathology. The Lockean is concerned with the protection of property broadly conceived and with freedom in the sense of independence and self-determination. If there are actions that the government can undertake, which individuals cannot perform for themselves, that protect lives and property and unambiguously enhance freedom, then there is a case for government action, whether or not that action can be characterized plausibly as health care. Apparently nonpathological cognitive and emotional deficiencies can limit independence and self-determination more severely than genuinely pathological deficiencies such as compulsions or the inability to walk without a cane. The match between health and what matters—shares in the normal opportunity range in Daniels's case, or life-expectancy and freedom in the Lockean's case—is imperfect. But the Lockean can simply concede the point and agree that to insist on access to health care, narrowly conceived, is unjustified.

What the Lockean should insist on is access to those things that protect and enhance freedom, which individuals cannot provide for themselves—not access specifically to health care. The problem with this response is that it may open the floodgates to demands on government provision so extensive as to render farcical the claim to have developed a liberal position. But attention to the costs of government action—both direct and indirect—can, I believe, close these floodgates. Daniels's problem in this regard is more serious, since the number of things that government can do to secure an individual's fair share of the normal opportunity range is enormous and growing rapidly, while the range of things that government can do truly to promote both longevity and freedom, which individuals cannot realistically do for themselves, is limited. Even though there are many welfare programs that would arguably increase longevity and in some respects enhance freedom, paying for these programs diminishes the freedoms of taxpayers and often also the choices of beneficiaries. So the Lockean should accept the conclusion that Daniels tries so hard to avoid: What these arguments establish is universal access to a set of property-protecting and freedom-promoting services that intersects with health care, but does not coincide with health care.

VI. Does Daniels's Argument for Universal Access Go Through?

Recall Daniels's principle:

Anything short of universal access fails to prevent or cure preventable or curable health deficiencies. For that reason, Daniels argues, it fails to provide fair equality of opportunity and is hence unjust.

In Daniels's view, my actual share of the normal opportunity range depends on three classes of causal factors: my talents, my health, and an array of social factors. Among individuals whose talents are the same, their shares of the normal opportunity range depend on their health and on their social circumstances (and their health, in turn, depends in large part on their social circumstances). Fair equality of opportunity (with opportunity interpreted in Daniels's expansive way) implies that my share of the normal opportunity range should be the same as the share of anyone else whose talents are similar. But equal shares of the normal opportunity range for those with similar talents does not imply the protection and restoration of normal species functioning, nor even the equalization of health. The healthy pauper and the sickly prince may have equal shares of the normal opportunity range. Curing the sickly prince may make opportunities less rather than more equal.Footnote ⁴⁹ If there are inequalities in non-health determinants of opportunity among those with similar talents, then fair equality of opportunity requires compensating inequalities in health rather than protection and restoration of normal species functioning. (Since the Lockean has no equivalent egalitarian objective, he or she will not face this problem.) Furthermore, even if Daniels could establish that those who are equally talented should have equal portions of the non-health determinants of opportunity, fair equality of opportunity requires only equalizing health, not protecting and restoring full species-typical functioning.

Daniels maintains, however, that fair equality of opportunity requires more than equalizing opportunity.Footnote ⁵⁰ He maintains that a hypothetical state of affairs in which everyone has a remediable health deficiency, such as anemia, which causes no inequalities among those with similar talents, violates fair equality of opportunity. Yet the existence of a remediable universal condition such as anemia obviously would not violate the requirement that opportunity “be equal for persons with similar skills and talents.” Daniels explains his judgment by asserting, “But the opportunity account still helps us here, for it is not only a principle governing competitive advantage.”Footnote ⁵¹ This assertion does not help much, since he does not explain what more the principle requires.

When Daniels asserts that fair equality of opportunity “is not only a principle governing competitive advantage,” he must have in mind something like the following:

Let us call this the “maximal equality” principle. Although still recognizably liberal, it is certainly not Lockean, and it is a significant modification of a Rawlsian view, making much stronger and more far-reaching demands on behalf of opportunity. One wonders how it can be justified. This principle would explain why universal anemia would be unjust, and it would complete a semi-Rawlsian argument for Daniels's principle. If one supposes that those with equal talents have equal quantities of the non-health determinants of shares in the normal opportunity range, then the maximal equality principle would imply Daniels's principle: that justice requires that health care should protect and restore everyone's normal species functioning.

There is, of course, no reason to suppose that people with similar talents do in fact have equal quantities of the non-health determinants of shares in the normal opportunity range. But if one assumes that there are no perverse interactions between (1) equalizing the social circumstances that affect opportunity and (2) instituting health policies that secure the normal opportunity range, then the maximal equality principle would ground an argument for why government should equalize the non-health determinants of shares in the normal opportunity range. Thus, by helping himself to the maximal equality principle, Daniels can provide an argument for why government policy should separately equalize the health and non-health determinants of shares of the normal opportunity range and why justice requires that health care protect and restore species-typical functioning. Fair equality of opportunity (as opposed to the maximal equality principle) requires only equal shares of the normal opportunity range for those whose talents are equal; it does not require equal health, let alone undiminished normal species functioning. The maximal equality reinterpretation of fair equality of opportunity demands maximal equal shares of the normal opportunity range for those whose talents are equal, and perhaps equality of social advantages rather than merely compensating inequalities in the health and non-health determinants of opportunity.

Even if Daniels can make such a semi-Rawlsian case for his principle in ideal conditions, his defense of government action to secure health care faces objections with respect to non-ideal conditions. As I have already noted, preventing or curing a health deficiency suffered by someone who is favored by social inequalities may make opportunities less equal rather than more. Accordingly, Daniels's principle, even if it were well-grounded in a theory of justice, does not prescribe how to distribute health care in actual societies, in which the non-health determinants of shares in the normal opportunity range are not justly distributed. Daniels's principle provides only an ideal theory of just health and does not justify universal access to health care in actual societies.

The Lockean position is concerned with the protection of life, property, and self-determination rather than equality of anything, and it consequently avoids many of these problems. What is crucial are the ways in which diminished health threatens life and self-determination, not how the threats to different individuals or their life-prospects compare. The fact that the effects of diminished health on self-determination are sensitive to social factors does not threaten the case for universal access, but rather reinforces it. For example, Franklin Roosevelt's paraplegia did not prevent him from shaping his own life (and, indeed, the lives of millions of others), but had he not been a man of means, his condition would have limited his independence and his ability to pursue his own life-plan. Technological and personal assistance to those without FDR's wealth can go a long way toward enhancing their freedom. Public health measures, coupled with guaranteed universal access to basic health care, will expand the independence and self-determination of those whose social situations magnify limitations on freedom that are due to health deficiencies.

Once one recognizes that the effects of poor health on opportunity can be addressed in other ways than by restoring health, one can see further limitations in Daniels's argument and (to a lesser extent) in the Lockean argument. Consider two ways in which health deficiencies can differ from one another.Footnote ⁵³ First, some are preventable or treatable (or, to use a single term, “remediable”), while others, such as being born without an optic nerve, are not. Second, some health deficiencies are compensable, while others are not. By “compensable,” in this context, I mean that moderate amounts of additional non-health-related resources can secure to an individual a level of self-determination or a share of the normal opportunity range that is equivalent to the level or share he or she would have had if in full health. The distinction is not perfectly sharp. Is the provision of a motorized wheelchair remediation or compensation? But the distinction is nevertheless significant. Some health states are both remediable and compensable, while others are neither. Some, such as a diabetic coma, are remediable but not compensable. Others, such as an amputated hand, are compensable but only partially remediable.

The argument for Daniels's principle presented above implicitly supposes that the only way to address the consequences of poor health on an individual's shares of the normal opportunity range is via remediation—that is, preventing or curing pathologies. But fair equality of opportunity—even in its maximal interpretation—can sometimes be achieved more efficiently by compensating for inequalities in health with inequalities in non-health determinants of opportunity, rather than by equalizing the non-health determinants and using remediation of poor health to restore the normal opportunity range. Indeed, in the case of unremediable conditions, the provision of additional non-health-related resources will be the only way to address the limits on opportunity (or freedom) caused by bad health. Except for the case of pathologies that are remediable but not compensable, there is no justification for attempting separately to determine a just provision of health care on the one hand and, on the other hand, a just distribution of non-health-related resources.Footnote ⁵⁴

The Lockean can readily concede this point, and since the fundamental concerns are life and freedom, compensation rather than remediation will often be an attractive alternative. Providing nonmedical benefits to those whose lives or independence are threatened by factors they cannot control creates moral-hazard and adverse-selection problems as well as heightened risks of fraud. But since the objective is the protection of life and independence rather than normal species functioning, the only reasons why the Lockean case for universal health care would focus on remediation rather than compensation arise from the details of specific medical problems and the practicalities of compensation. For example, since there is no (earthly) compensation for death, remediation is clearly called for in the case of life-threatening illness.