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John Rawls has held up as a model of public reason the U.S. Supreme Court. I argue that the Dobbs Court is justifiably criticized for failing to respect public reason. First, the entire opinion is governed by an originalist ideological logic almost entirely incongruent with public reason in a liberal, pluralistic, democratic society. Second, Alito's emphasis on "ordered liberty" seems completely at odds with the "disordered liberty" regarding abortion already evident among the states. Third, describing the embryo/fetus from conception until birth as an "unborn human being" begs the question of the legal status of the embryo/fetus, as if an obiter dictum settled the matter. Fourth, Alito accuses the Roe court of failing to exercise judicial restraint, although Alito argued to overturn Roe in its entirety. In brief, the Dobbs opinion is an illiberal, disingenuous, ideological swamp that swallows up public reason and the reproductive rights of women.

Accelerated approval of aducanumab for mild Alzheimer's by the U.S. Food and Drug Administration on June 7, 2021, has generated substantial medical, scientific, and ethical controversy. That approval was contrary to the nearly unanimous judgment of the FDA's Advisory Committee that little reliable evidence existed of significant benefit, even though the drug did reduce β-amyloid. Three major ethical problems were created by this approval: (1) Medicare resources would be unjustly squandered, given the drug's $56,000 annual price and the 3.1 million older potential American patients needing the drug; (2) physicians will feel ethically compelled to provide the drug to desperate, insistent patients, given FDA approval and in spite of side effects of brain bleeds and brain swelling; (3) and false hopes are generated for patients. A needed corrective by the federal government would reduce reimbursement to the bare cost of producing the drug (plus only a modest profit) until a phase IV trial has been successfully completed., (© 2021 The Hastings Center.)

Our health care system in the United States reflects the inequities that are part of the larger society, which is why our system for financing access to needed and effective health care is so complicated and unfair., (© 2020 The Hastings Center.)

Warwick Heale has recently defended the notion of individualized and personalized Quality-Adjusted Life Years (QALYs) in connection with health care resource allocation decisions. Ordinarily, QALYs are used to make allocation decisions at the population level. If a health care intervention costs £100,000 and generally yields only two years of survival, the cost per QALY gained will be £50,000, far in excess of the £30,000 limit per QALY judged an acceptable use of resources within the National Health Service in the United Kingdom. However, if we know with medical certainty that a patient will gain four extra years of life from that intervention, the cost per QALY will be £25,000. Heale argues fairness and social utility require such a patient to receive that treatment, even though all others in the cohort of that patient might be denied that treatment (and lose two years of potential life). Likewise, Heale argues that personal commitments of an individual (religious or otherwise), that determine how they value a life-year with some medical intervention, ought to be used to determine the value of a QALY for them. I argue that if Heale's proposals were put into practice, the result would often be greater injustice. In brief, requirements for the just allocation of health care resources are more complex than pure cost-effectiveness analysis would allow.

What should be the content of a package of health care services that we would want to guarantee to all Americans? This question cannot be answered adequately apart from also addressing the issue of fair health care rationing. Consequently, as I argue in this essay, appeal to the language of "basic," "essential," "adequate," "minimally decent," or "medically necessary" for purposes of answering our question is unhelpful. All these notions are too vague to be useful. Cost matters. Effectiveness matters. The clinical circumstances of a patient matters. But what we must ultimately determine is what we mutually agree are the just claims to needed health care of each American in a relatively complex range of clinical circumstances. Answering this question will require a public moral conversation, a fair process of rational democratic deliberation aimed at defining both just claims to needed health care and just limits.

What does it mean to be a "just" and "caring" society in meeting the health care needs of the terminally ill when we have only limited resources to meet virtually unlimited health care needs? That question is the focus of this essay. Put another way: relative to all the other health care needs in our society, especially the need for lifesaving or life-prolonging health care, how high a priority ought the health care needs of persons who are terminally ill have? On the one hand, we might see the terminally ill as being among the "medically least well off" and therefore deserving very high priority. On the other hand, we might see them as squandering vast medical resources for marginal medical benefits, thereby denying needed resources to others who would benefit much more. We begin the essay by making a number of morally relevant distinctions with regard to the category of "being terminally ill." We note, given contemporary medicine, that individuals may be terminally ill several times in the course of a life. Not all such circumstances make equal just claims to needed health care. We also note that our conceptions of health care justice are ultimately incapable of making very fine-grained, morally justified rationing judgments in complex medical circumstances. We conclude that we must finally rely upon fair processes of rational democratic deliberation to articulate such judgments for our own future, possibly terminally ill selves, thereby undercutting the rhetoric of "death panels.", (© 2011 American Society of Law, Medicine & Ethics, Inc.)

Engaging communities of color in the genetics public policy conversation is important for the translation of genetics research into strategies aimed at improving the health of all. Implementing model public participation and consultation processes can be informed by the Communities of Color Genetics Policy Project, which engaged individuals from African American and Latino communities of diverse socioeconomic levels in the process of "rational democratic deliberation" on ethical and policy issues stretching from genome research to privacy and discrimination concerns to public education. The results of the study included the development of a participatory framework based on a combination of the theory of democratic deliberation and the community-based public health model which we describe as "community-based dialogue."

It's not only necessary, but possible, if the public can be educated.

Health reform must include health care rationing, both for reasons of fairness and efficiency. Few politicians are willing to accept this claim, including the Clinton Administration. Brown and others have argued that enormous waste and inefficiency must be wrung out of our health care system before morally problematic cost constraining options, such as rationing, can be justifiably adopted. However, I argue that most of the policies and practices that would diminish waste and inefficiency include implicit (and therefore morally problematic) rationing. Critics of rationing see as its most morally and psychologically troubling feature that an identified individual is denied potentially beneficial care. That psychic anguish may not be eliminable, and perhaps ought not be eliminated. But if rationing protocols are fairly adopted through a process of free and informed rational democratic deliberation to which all have access, the moral objections are largely overcome. Such a process is possible only if implicit rationing is recognized and rejected.

The frequency with which casual breaches of confidentiality occur in hospitals suggests that relatively few health care professionals regard confidentiality as a matter of serious moral concern. A number of factors contribute to this laxness. First, breaches are almost never motivated by malice. Second, the person who breached confidentiality will probably be unaware of any harm that may result or of his or her role in having caused it. Third, such harm likely will consist of feelings of shame and embarrassment--consequences that lack moral seriousness for many persons. Finally, the sheer quantity of patient information that is supposed to be confidential, combined with the number of personnel who have a legitimate "need to know," militates against any serious attitude toward confidentiality. But confidentiality is a serious moral issue. An essential element of self-identity is the right to choose who has access to the intimate details of our lives. To undermine that right is to undermine individual autonomy. A number of steps can be taken to strengthen a hospital's commitment to confidentiality: Upon admission, nonemergency patients should be informed of who will have access to their medical record and why. patients should be asked who should be kept informed of the details of their medical condition and who should be denied such details. Health care professionals should not be intimidated by persons who demand patient information but have no clear right to it. Such individuals should be referred to someone who can determine whether they are entitled to the information.

Are DRGs just? This is the primary question which this essay will answer. But there is a prior methodological question that also needs to be addressed: How do we go about rationally (non-arbitrarily) assessing whether DRGs are just or not? I would suggest that grand, ideal theories of justice (Rawls, Nozick) have only very limited utility for answering this question. What we really need is a theory of "interstitial justice," that is, an approach to making justice judgments that is suitable to assessing the social practices and institutions that comprise the interstices of our social life as opposed to its basic structure. Rawls's appeal to "our considered moral judgments" provides us with a useful starting point for this task, which we shall discuss in the first part of this essay. In the second part, we shall actually assess DRGs from the perspective of interstitial justice. What we shall show is that DRGs violate a large number of our considered judgments regarding a just approach to financing health care for the elderly in a cost-effective manner. This is true to such an extent that efforts to reform DRGs and make them fairer, such as the recent effort by Robert Veatch, should be abandoned. In the concluding section of the essay we discuss one especially pernicious feature of DRGs, namely, that they represent an invisible approach to rationing access to health care. In the minds of many this is one of the virtues of DRGs. That claim needs critical examination.

Few in our society believe that access to health care should be determined primarily by ability to pay. We believe instead that society has an obligation to assure access to adequate health care for all. This is the view explicitly endorsed in the President's Commission Report Securing Access to Health Care. But there is an important moral ambiguity here, for this obligation may be construed as being either beneficence-based or justice-based. A beneficence-based construal would yield a much weaker obligation with respect to the distribution of health care. In the first section of this paper I argue that the President's Commission is committed only to this weaker construal of this obligation. In the second section I argue that such a beneficence-based obligation is really rooted in a libertarian conception of justice, similar to that recently articulated by Engelhardt, and that this conception is seriously flawed when it comes to effecting a just distribution of health care.