Genomics and Environmental Regulation: Science, Ethics, and Law

17 Protecting People in Spite of—or Thanks to—the “Veil of Ignorance”

C H A P T E R 17 Protecting People in Spite of—or Thanks to—the “Veil of Ignorance” ADAM M. FINKEL When society determines that an action to protect public health or the environment is warranted because its benefits exceed its costs, many of us probably conjure up a mental picture of a balance between two discrete quantities, tipping positive. Presumably, all but the most self-contradictory forms of the precautionary principle (discussed by Resnik earlier in this volume) share this mental construct: that is, that the positives that accompany an action outweigh the harms caused by that action or the harms that inaction would perpetuate, even if no attempt is made to gauge costs and benefits in the traditional sense. But these are both abstractions of cost and benefit, and they result from aggregating health, environmental, and economic effects that apply in disparate ways to every individual. When a cost or benefit outweighs its counterpart, it is because a collection of one outweighs that of the other. By looking at only the total bottom line, we can, and often do, luck into sound choices. An individualized assessment, however, can improve collective action in two fundamental and not mutually exclusive ways: (1) it can allow for fine-tuning of the intervention to provide more protection to the individuals most in need or less stringency for those who do not need or prefer not to pay for additional protections; and (2) it can change the level of protection we provide across the board, in light of what we learn about the distribution of costs and benefits. To see both the whole and the sum of its parts in these situations requires both the will to examine individual costs and benefits and appropriate tools for discerning effects on individuals. The main thesis of this chapter is that for the past twenty years or more, our technical capacity to individualize estimates of risk and benefit has increased much faster than has our willingness to make use of these new abilities. This situation is not simply the result of a lack of vision, as I and others have argued previously (Finkel, 1984; Hattis, 2004). In fact, recent developments suggest that some of the current reticence to exploit our increasing ability to individualize risk stems from legitimate concerns about the side effects of doing so. In this chapter, I attempt to distinguish some of the inevitable downsides of individualized environmental and occupational health protection from other pitfalls that are avoidable. I then sketch out an alternative approach to reconcile the desire to protect individuals according to their unique risks with the reluctance to proceed down such a path: namely, interventions informed by human genetic (and other) variability1 that are not dependent on identification of the specific individuals motivating society’s concern. This chapter is structured to support the thesis that personal and social decisions that acknowledge variability in risk and cost are more sensible and robust than those that ignore variation or “average it away.” In light of the benefits and harms of identifying individuals according to their place on the distribution of risk or cost, I emphasize the concept of “anonymous protection” as a win/win solution to the tension between individualization and identification, or as a worthwhile fallback position that may have unique virtues. With a debt to John Rawls, who described as the “veil of ignorance” the situation in which individuals know the existence of distributed attributes but not their own personal circumstances (Rawls, 1971), I focus primarily on reasons why this partial “ignorance” may be preferable to complete awareness, despite the connotations of that word. Rawls looks longingly on an unlikely state of ignorance regarding wealth and other obvious attributes, because he sees it as in fact superior to more complete knowledge: “one excludes the knowledge of those contingencies P R O T E C T I N G P E O P L E I N S P I T E O F T H E “ V E I L O F I G N O R A N C E ” 291 which sets men at odds and allows them to be guided by their prejudices ” (Rawls, 1971, p. 19). In the regulation of environmental and occupational hazards, in contrast, we can choose to place (or to allow) a “veil of ignorance” over less obvious individual knowledge, and in so...