ALLOCATING HEALTH-CARE MORALLY

This Article examines the promise and limits of a moral paradigm for allocating resources both to health care and among competing health care needs, and derives the essential attributes of a moral health care system. The author concludes that, given society's limited resources, the absolutist position that no beneficial health care should ever be denied is untenable. Nonetheless, no health care system can survive unless it avoids ongoing tradeoffs between health needs and monetary costs by imposing a budgetary constraint derived outside the moral paradigm. The author also concludes that the principle that everyone should receive a minimum of adequate care lacks a concrete affirmative meaning sufficient to guide health care allocations. However, the absence in the health care context of important negative reasons for refraining from an equal distribution of societal resources supports defining adequate care roughly as the level of health care enjoyed by the middle class. The author then addresses how to allocate morally a limited budget among the different health care needs of a group. He rejects arguments that certain health maximization standards are discriminatory or in tension with equity, showing that these arguments generally assume without justification that the status quo is the proper baseline for measuring discrimination. Upon examination, each maximization standard simply reflects a different baseline of what an equitable distribution of health care would look like. Although moral analysis provides various useful criteria for making health care tradeoffs within a fixed budget, in the end it cannot dictate any particular measure of group health maximization. Accordingly, individuals should have a diversity of moral choice by being able to choose--among an array of health plans--the plan that allocates resources according to the policy they prefer. Finally, the author examines consent-based theories of moral justice and concludes they cannot alone resolve allocation questions. The reason is that one must go outside the consent-based framework both to determine the timing and conditions for valid actual consent and, where meaningful actual consent is unfeasible, to determine when and to what individuals should be presumed to have consented. Nonetheless, when coupled with the other propositions derived in this Article, consensual theories can help legitimate binding individuals to their choices among group health maximization policies and can exclude some allocations that we can presume no one would have consented to ex ante. This Article thus provides a morally and practically tenable framework--grounded in a specific proposal--within which individuals can consent to particular health care allocation schemes.