Why Retreat to Procedural Justice?

In 1985 Norman Daniels published an impressive extension of Rawlsian theory to policies about access to healthcare. He basically defined healthcare as a necessary component of opportunity, one of the primary goods that Rawls lists among those that "are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone's advantage" (1971, 62). "Fair equality of opportunity" is the principle that Daniels invokes as applicable to decisions regarding distribution of healthcare services.

To his credit, Daniels acknowledges limitations to the theory of healthcare justice articulated in his early writings. He neglected, he says, to allow for social factors such as gender, race, and class bias that may impede access to healthcare. Daniels now recognizes that just healthcare demands attention to these factors. In my view, however, his attention to them is inadequate and somewhat misleading. It is inadequate because he offers no documentation of the alleged biases, concentrating on access to healthcare while ignoring the connection between health and gender, race, and class. It is misleading because his emphasis on procedural justice, defended on pragmatic grounds, suggests that a more idealistic or substantive account is unnecessary or unhelpful. As someone whose work (1972, 1996) has been characterized as an idealistic pragmatism, I think both substantive and procedural conceptions of justice are indispensable.

In his current article Daniels (2001) posits a connection between his approach and that of Amartya Sen, who develops a more demanding, substantive account of justice in his critique of the social factors associated with inequality. But Sen amply documents gender- and class-based biases associated with social inequality and sees his capability-based approach as different from the opportunity-based approach of Rawls or Daniels. "Capability," he writes, "reflects a person's ability to choose between alternative lives." Daniels's proposal of "normal functioning" as the criterion for just distribution of healthcare assumes a unanimity among people that doesn't exist. As Sen puts it, "a disadvantaged person may get less from primary goods than others no matter what comprehensive doctrine he or she has" (emphasis in original; Sen 1992, 83).

Sen would disagree (as do I) with Daniels's support for the provision of growth hormone therapy for very short children who have growth hormone deficiencies but not for equally short children who are otherwise normal. The distinction between the two would be unacceptable because it fails to address the underlying cause of the disadvantage that either child is likely to experience. In both cases Sen would not only argue for relief or rectification of the social disadvantage of short stature, but also call for examination of gender or class-based aspects of the advantage or disadvantage that height confers on individuals. A further way of characterizing the difference between Daniels's and Sen's approaches is to acknowledge that the former is achievable because it is definitive, partial, and politically conservative; the latter can only be approximated because it is rather vague, morally challenging, and politically radical. In other words, one is pragmatic, the other idealistic.

Daniels's apparent willingness to settle for less than full social equality by retreating from a substantive to a procedural account of justice in healthcare satisfies my pragmatic orientation but not my idealism. He argues convincingly for a reduction of inequality or injustice; I applaud this step in the right direction, i.e., toward access to healthcare that promotes rather than impedes the dis

tinct capabilities of individuals. To reach that goal, however, I hope that Daniels eventually moves on from Rawls to the more idealistic critique and substantive proposals that Sen advocates.