Debating Health Care Ethics begins with an excellent overview of the nature of arguments,

philosophical methodology, and normative ethical theory. In the remaining chapters, the
authors explore moral problems in health care of interest to Canadians through dramas,
case studies, and dialogues. This approach makes vivid these real-world issues and demon-

Findler, Smolkin, and Bourgeois

strates how arguments are developed, as well as criticized, defended, and reformulated,
from multiple philosophical perspectives to deal with these moral problems.

Rich with boxed features that encourage reader participation and demystify complex con- Patrick Findler
cepts, this new edition includes an expanded discussion on feminist ethics, a case study on
euthanasia that highlights recent changes to Canadian law, and an update on fetal conscious- Doran Smolkin
ness that informs the debate on abortion. Supplementary resources available to instructors
include an ethics case reporting form, a sample syllabus, and sample essay and exam ques- Warren Bourgeois
tions. This engaging and accessible edition will greatly benefit students in philosophy, health
studies, and nursing.

Findler, Smolkin, and Bourgeois tackle a wide range of complex issues in a manner
that is at once unique and sophisticated. Its extensive Canadian content makes this
book essential for students planning to work in the health care system of this country
and an excellent choice for instructors tasked with preparing them. Written in a way
that effectively mimics the Socratic method of debate, readers are quickly drawn in

Debating
a symphony of dialogue between the three authors. If the essence of philosophy
can ever be captured in a movie script, this is the way to do it.

Debating Health Care Ethics

— Mazen M. Guirguis , Ph.D., Department of Philosophy,

Health Care
Kwantlen Polytechnic University

The use of dialogue provides an effective model of how to engage in civil discourse
on controversial topics about which reasonable people might disagree. It is unique in
its inclusion of a chapter on philosophical arguments and method in addition to the
more standard chapter on moral theory. These two aspects make this textbook an
accessible resource for students of health care ethics who are new to philosophy.
— Meredith Schwartz , Ph.D., Department of Philosophy,
Ethics
Ryerson University
Canadian Contexts
Patrick Findler is a member of the Department of Philosophy at Kwantlen Polytechnic
University, who specializes in ethics, metaphysics, and the philosophy of sport.
Doran Smolkin is a member of the Department of Philosophy at Kwantlen Polytechnic
University, who specializes in moral philosophy.
Warren Bourgeois is a Professor Emeritus from the Department of Philosophy
at Kwantlen Polytechnic University, who specializes in environmental ethics,
moral philosophy, and the nature of persons.
EDITION
SECOND

SECOND
EDITION
 DEBATING
HEALTH CARE
ETHICS

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DHE2e-typesetting [Link] 2 5/15/2019 10:38:44 AM
 DEBATING
HEALTH CARE
ETHICS
Canadian Contexts

Second Edition

Patrick Findler, Doran Smolkin, and Warren Bourgeois

Toronto | Vancouver

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 Debating Health Care Ethics: Canadian Contexts, Second Edition
Patrick Findler, Doran Smolkin, and Warren Bourgeois

First published in 2019 by

Canadian Scholars, an imprint of CSP Books Inc.
425 Adelaide Street West, Suite 200
Toronto, Ontario
M5V 3C1

[Link]

Copyright © 2019 Patrick Findler, Doran Smolkin, Warren Bourgeois, and Canadian
Scholars.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without the prior written permis-
sion of Canadian Scholars, under licence or terms from the appropriate reproduction
rights organization, or as expressly permitted by law.

Every reasonable effort has been made to identify copyright holders. Canadian Scholars
would be pleased to have any errors or omissions brought to its attention.

Library and Archives Canada Cataloguing in Publication

Title: Debating health care ethics : Canadian contexts / Patrick Findler, Doran Smolkin,
and Warren Bourgeois.
Names: Smolkin, Doran, 1963- author. | Findler, Patrick, 1962- author. | Bourgeois,
Warren, 1947- author.
Description: Second edition. | Revision of: Smolkin, Doran, 1963-. Debating health
care ethics. | Includes bibliographical references and index.
Identifiers: Canadiana (print) 20190083794 | Canadiana (ebook) 20190083832 | ISBN
9781773381060 (softcover) | ISBN 9781773381077 (PDF) | ISBN 9781773381084
(EPUB)
Subjects: LCSH: Medical ethics—Canada—Textbooks. | LCGFT: Textbooks.
Classification: LCC R724 .S575 2019 | DDC 174.20971—dc23

Text design by Elisabeth Springate

Typesetting by Brad Horning
Cover design by Rafael Chimicatti
Cover image by pogonici, [Link]

19 20 21 22 23 5 4 3 2 1

Printed and bound in Ontario, Canada

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 For my wife, Cara, and our children, Cashel and Reese,
who continue to amaze and inspire.
—Patrick Findler

I dedicate this work to my parents, Debby and Barry Smolkin,

to my wife, Julie Smolkin, and to my children, Elie Smolkin,
Kaytlin Carlson, Andrew Carlson, and Mischa Smolkin.
—Doran Smolkin

I dedicate this work to my wife, a compassionate and wise physician,

whose unflagging efforts on behalf of patients here and in Africa are an inspiration,
to my late mother for her constant faith in me, and to my sons
who keep me focused on making this world a better place.
—Warren Bourgeois

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 CONTENTS
About the Authors   xiv
Preface  xv

CHAPTER 1 ARGUMENTS AND METHODOLOGY   1

INTRODUCTION    1
ARGUMENTS    1
What Is an Argument?    1
Evaluating Arguments    3
PHILOSOPHICAL METHODOLOGY: COUNTEREXAMPLES AND THOUGHT
EXPERIMENTS    9
COMMON FALLACIES    11
Circularity (a.k.a. Begging the Question)    11
False Dilemma    13
Equivocation    13
Appeal to Emotion    13
Straw Man    14
Ad Hominem    14
CONCLUSION    15
REVIEW QUESTIONS    15
NOTES    16

CHAPTER 2 PHILOSOPHICAL ETHICS: AN INTRODUCTION   17

INTRODUCTION  17
THREE TYPES OF ETHICAL INQUIRY   18
SKEPTICAL CONCERNS: ETHICAL RELATIVISM   21
NORMATIVE ETHICAL THEORY    24
CLASSICAL ACT UTILITARIANISM    24
Objections to Utilitarianism    27
Utilitarian Responses    30
RULE UTILITARIANISM    32
NON-CONSEQUENTIALISM AND DEONTOLOGY    34
KANT’S ETHICS    34
The Idea of Moral Worth    34

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 viii  Contents

The Categorical Imperative    35

The Universal Law Formulation of the Categorical Imperative    36
The Humanity Version of the Categorical Imperative    38
Objections to the Universal Law and Humanity Tests    40
PLURALISTIC DEONTOLOGY    43
Difficulties with Ross’s Theory    45
SOCIAL CONTRACT THEORY    46
HOBBES’S SOCIAL CONTRACT THEORY    47
Objections to Hobbes’s Social Contract Theory    48
RAWLS’S SOCIAL CONTRACT THEORY: JUSTICE AS FAIRNESS    49
Difficulties with Rawls’s Social Contract Theory    51
ARISTOTLE’S VIRTUE THEORY    54
Objections to Virtue Theory    55
FEMINIST ETHICS    57
THE ETHICS OF CARE    58
Difficulties with the Ethics of Care    60
Status-Oriented Feminist Approaches    61
CONCLUSION    63
REVIEW QUESTIONS    63
NOTES   64

CHAPTER 3 OUR PHILOSOPHICAL APPROACHES   70

INTRODUCTION    70
DORAN’S PLURALISTIC APPROACH TO ETHICS    70
Leading Ethical Theories and Their Problems    71
Moral Pluralism    73
PATRICK’S VIRTUE-BASED APPROACH TO ETHICS    75
Metaethics   76
Normative Ethics    78
Some Objections and Responses    79
WARREN’S APPROACH TO ETHICS: PRACTICAL SOCIAL CONTRACT THEORY    82
The Main Contractarian Ideas for Warren’s Purposes    82
The Committee Metaphor    84
The Video Game Metaphor    86
Warren’s Use of Social Contract Theory    86
Cultural Relativism    87
Ethics Regarding Non-Humans    87
Social Contract Theory beyond Ethics    89

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 Contents  ix

Warning    89
CONCLUSION    90
REVIEW QUESTIONS    90
NOTES    90

CHAPTER 4 AUTONOMY AND THE RIGHT TO REFUSE

TREATMENT  92
INTRODUCTION   92
DRAMA    93
DEBATE    100
Identifying Relevant Facts    100
MORAL ISSUES RAISED BY THE CASE    102
Stating Our Positions    102
AN ARGUMENT FOR THE RIGHT TO IGNORE EXPERTS    104
Clarifying Premise (3)    105
Assuming Mr. Edwards Was Competent, Did His Health Care Team Err in Releasing Him
from the Hospital When They Did?    108
OBJECTIONS TO PREMISE (5)    111
Was Mr. Edwards Competent?    111
The Gangrenous Foot Example    113
Incompetence to Refuse Medical Care: Skepticism without Reason    114
Competence and Psychiatric Evaluation    116
Did Mr. Edwards Give a Valid Refusal?    120
OBJECTIONS TO PREMISE (7)    124
Virtue May Overpower the Right to Refuse    124
Doubt Justifies Delay    126
SUMMARY   129
REVIEW QUESTIONS    130
NOTES    131

CHAPTER 5 EUTHANASIA   132

INTRODUCTION    132
CASE DESCRIPTION    133
Case Description: Tim Regan’s Voluntary Active Euthanasia    133
What Is Euthanasia?    134
Different Kinds of Euthanasia    137
DECIDING WHICH ISSUES TO DEBATE    141

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 x  Contents

THE MORALITY OF VOLUNTARY ACTIVE EUTHANASIA    141

The Autonomy and Best Interest Argument for Voluntary Active Euthanasia    142
The Revised Autonomy and Best Interest Argument    144
The Sanctity of Life Objection to the Morality of Voluntary Active Euthanasia    145
Suicide and Hare’s Lorry Driver—More Counterexamples to the Sanctity of Life
Principle   148
An Argument That the Moral Reasons against Killing Do Not Apply to Voluntary Active
Euthanasia    150
An Argument That Euthanasia Is Wrong Because It Destroys What Belongs
to God    150
A Counterexample to the Revised Autonomy and Best Interest Argument    152
THE MORALITY OF NON-VOLUNTARY ACTIVE EUTHANASIA    152
The Best Interest Argument for Non-Voluntary Active Euthanasia    153
Philippa Foot’s Objection to Non-Voluntary Active Euthanasia    156
The Never-Best-Interest Objection to Non-Voluntary Active Euthanasia    157
SUMMARY   158
REVIEW QUESTIONS    159
NOTES    160

CHAPTER 6 ABORTION  161
INTRODUCTION   161
DRAMA    163
DEBATE   165
Clarifying the Case and Identifying Relevant Facts    165
MORAL ISSUES RAISED BY THE CASE    167
Stating Our Positions    168
LEADING ARGUMENTS AGAINST THE MORALITY OF ABORTION    169
Noonan’s Argument    169
Marquis’s Argument for the Wrongfulness of Abortion    173
The Argument That This Abortion Discriminates against the Disabled    177
Patrick’s Virtue-Based Argument for Why Abortion Would Be Permissible in
This Case    180
The Right to Life Weighed against Marissa and Don’s Virtues    181
DORAN’S ARGUMENT THAT MARISSA AND DON’S DECISION TO ABORT WAS MORALLY
PERMISSIBLE   185
The Rationality Criterion for a Right to Life    185
The Life Criterion    186
The Sentience Criterion    187
The Addition of Rationality to Sentience    188
Objections to Doran’s Sentience-Based Criterion of a Right to Life    190

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 Contents  xi

SUMMARY   196
REVIEW QUESTIONS    197
NOTES   197

CHAPTER 7 C-SECTION BY CHOICE   199

INTRODUCTION   199
DRAMA    200
DEBATE    205
Clarifying the Case and Identifying Relevant Facts    205
MORAL ISSUES RAISED BY THE CASE    210
Stating Our Positions    210
DORAN’S ARGUMENT FOR WHY WENDY’S DECISION IS MORALLY PERMISSIBLE    212
DO POTENTIAL HARMS MAKE WENDY’S AUTONOMOUS CHOICE WRONG?    214
Harms to the Baby    215
Harms to the Mother    222
Harms to Others besides the Baby and the Mother    224
SUMMARY   227
REVIEW QUESTIONS    228
NOTES   228

CHAPTER 8 TWO-TIER HEALTH CARE   232

INTRODUCTION    232
DRAMA    234
DEBATE    236
Clarifying the Case and Identifying Relevant Facts    236
MORAL ISSUES RAISED BY THE CASE    240
Stating Our Positions    241
A LIBERTARIAN ARGUMENT    242
The Wilt Chamberlain Example    244
Is Redistributive Taxation Inherently Unjust?    245
The Complicity Objection to the Second Premise    250
The Compassion Objection to the Second Premise    251
AN EGALITARIAN ARGUMENT    253
The Self-Respect Argument    255
TWO-TIER ARGUMENTS    257
Is Two-Tier MRI Permissible If It Does Not Harm the Public Health Care
System?    257

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 xii  Contents

Is Two-Tier MRI Permissible If It Benefits the Public Health Care System?    258
Warren’s Social Contract View on When Two-Tier MRI Is Justified    259
Patrick’s Virtue-Based View on When Two-Tier MRI Is Justified    260
COMMENTS ON CANADA’S CURRENT PUBLIC HEALTH CARE SYSTEM    264
FROM THE POLITICAL TO THE INDIVIDUAL    264
CLOSING ARGUMENTS    266
SUMMARY   268
REVIEW QUESTIONS    269
NOTES    270

CHAPTER 9 MICROALLOCATION OF SCARCE RESOURCES   271

INTRODUCTION   271
DRAMA   272
DEBATE   276
Clarifying the Case and Identifying Relevant Facts    276
MORAL ISSUES RAISED BY THE CASE    277
Stating Our Positions    278
MICROALLOCATION RULES: CLINICAL CONSIDERATIONS    279
Warren’s Argument for Fair Microallocation Rules: Worst First, First Come, and
Hopeless Second    279
Doran’s Objection to the Sympathy Metarule    282
Patrick’s Objection to the Sympathy Metarule    286
Objection to the Sufficiency of Hopeless Second    287
Minimize YPLL (Minimize Years of Potential Life Lost)    288
Substantial Benefit    289
Fair Turn    290
MICROALLOCATION RULES: NON-CLINICAL CONSIDERATIONS    293
Moral Responsibility    293
Innocents First    294
Third-Party Interests    296
Public Interest    297
Medical Interests    298
COLLECTING OUR THOUGHTS    300
SUMMARY    301
REVIEW QUESTIONS    302
NOTES    303

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 Contents  xiii

CHAPTER 10 ALTERNATIVE MEDICATIONS AND PROFESSIONAL

RELATIONSHIPS   304
INTRODUCTION    304
DRAMA    306
DEBATE    310
Clarifying the Case and Identifying Relevant Facts    310
MORAL ISSUES RAISED BY THE CASE    313
Stating Our Positions    314
THE BEST INTEREST PRINCIPLE    314
Patrick’s Frog Toxin Counterexample to the Best Interest Principle    317
THE AMPLE DISCRETION PRINCIPLE    318
Doran’s Indeterminacy Objection to Warren’s Principle    319
THE AMPLE DISCRETION PRINCIPLE REVISED: VALID CONSENT OF COMPETENT PATIENTS
ONLY    321
Ample Discretion, Patient Competence, and Valid Consent    322
Ample Discretion and Patient Autonomy    324
THE AMPLE DISCRETION PRINCIPLE REVISED (AGAIN): HARM AVOIDANCE    326
AGAINST THE REVISED AMPLE DISCRETION PRINCIPLE: THE DIVISION OF LABOUR
OBJECTION    329
The Psychic Surgery Counterexample    331
More Counterexamples to the Ample Discretion Principle: Prayer and Other
Unconventional Treatments    333
FINAL THOUGHTS    334
SUMMARY    336
REVIEW QUESTIONS    337
NOTES    337

Glossary  339
Index  359

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 ABOUT THE AUTHORS
Patrick Findler, PhD, received his PhD, with a specialization in ethics, from the University
of California, Davis, in 2001. He has taught at UC Davis, Simon Fraser University, the
University of British Columbia, and Capilano University. Patrick joined the Philosophy
Department at Kwantlen Polytechnic University in 2002. His teaching and research in-
terests are in ethics, metaphysics, and the philosophy of sport. His most recent publication
addresses the question of whether kids should play football (or other similarly risky sports).
Current projects include a paper on mountaineering ethics and the duty to rescue. Patrick
is a co-founder and co-organizer of the PHILOsurfer Convergence, an annual conference
for philosophy professors who share a passion for surfing.

Doran Smolkin, PhD, earned his BA at the University of British Columbia, and his
MA and PhD at the University of Illinois at Chicago. Doran was an assistant profes-
sor at Kansas State University from 1992 to 1996. Since 1996, he has been a member
of the Philosophy Department at Kwantlen Polytechnic University. Doran also teaches
regularly in the Philosophy Department at the University of British Columbia. Doran
enjoys working with students and he has received several awards in recognition of teach-
ing excellence. His research interests are in moral and political philosophy, with article
publications on whether speciesism is a prejudice, what makes a life fortunate or unfor-
tunate, the nature of trust, the nature of our obligations to future generations, and the
ethical obligations of physicians to treat patients with HIV.

Warren Bourgeois, PhD, received his BA at the University of Toronto and his PhD at
the University of California, Irvine. He has taught at the University of Salzburg, Austria;
the University of California, San Diego; and the University of British Columbia, and is
now emeritus at Kwantlen Polytechnic University. He helped develop policies on aca-
demic freedom and research ethics. He chaired the Research Ethics Board through its
challenging first five years of development. Among his published writings is the book
Persons: What Philosophers Say about You, released in its second edition by Wilfrid Laurier
University Press in 2003. From 1978 to 2018, he was a director of the BC Civil Liberties
Association. He has helped to found and has served on two hospital ethics committees.
In his most recent publication, he applied the theory he presents in this book to ques-
tions of environmental sustainability.

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 PREFACE
Debating Health Care Ethics: Canadian Contexts addresses both traditional and cutting-
edge topics in health care ethics, with a special emphasis on issues of particular concern
to Canadians. Many textbooks display the results of debates in ethics. This textbook
shows how the debates are done.
Debating Health Care Ethics: Canadian Contexts provides the tools to examine issues
critically and debate topics intelligently. This text provides students with background
information about philosophical methods and ethical theories, and then shows how to
defend these positions using these theories and methods.
Dramatized case studies on issues followed by a three-way debate by the textbook
authors form the major thrust of this book. Positions emerge, are defended, and some-
times are revised or rejected in response to objections. Rather than confronting students
with only the complex outcome of long discussion and thought, the text demonstrates
how philosophical ethics is done.
Students need the tools to examine critically and to debate intelligently various
topics in health care ethics. The textbook’s structure reflects that goal, beginning with
a chapter on philosophical arguments and methods. This first chapter serves as a brief
introduction for students new to philosophy or as a refresher for more seasoned students.
The second chapter provides a very readable, yet in-depth introduction to the
strengths and weaknesses of major normative ethical theories. Understanding the
theories can be challenging, so the text attempts to make this material accessible. At the
same time, the book does not gloss over the fact that every ethical theory is the object
of serious debate: the authors present some of the most difficult objections confronting
each ethical theory and suggest ways in which defenders of these theories may respond
to these criticisms. In sum, the introduction to normative ethical theory aims to be clear
and informative, and to give a sense of where the strengths and weaknesses of each
theory are thought to lie, while avoiding the appearance that ethics is just a game of
setting up views and knocking them down.
The third chapter briefly explains the particular ethical positions (philosophical
approaches) of the three debaters—the authors of this text. In this chapter, the authors
present and defend their own particular brand of three of the ethical theories discussed
in chapter 2: deontological pluralism, contractarianism, and virtue ethics. After reading
this chapter, students will understand how each of the text authors will approach various
ethical issues throughout the rest of the book.
After laying the foundation for argumentation and theory, chapters 4 through 10
examine important ethical issues in health care. Each of these chapters begins with
a brief drama or case study that introduces a particular set of moral problems. These
dramas or cases will engage readers while bringing certain ethical issues in health care

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 xvi  Preface

to light. In the debates following the dramas or cases, a philosophical discussion takes
place: facts are clarified, questions for debate are identified, and arguments are advanced
and critically examined.
The debate format has the advantage of demonstrating to students how philosophy
is done. Students see a wide array of ethical theories applied to specific questions; they
see arguments from a variety of perspectives carefully developed, criticized, and refor-
mulated; they see how consensus can sometimes be reached; and they see how thought-
ful disagreement can remain.
In addition to chapters on philosophical methods, normative ethical theory, and the
authors’ favoured philosophical approaches, the following ethical issues are examined in
this text.

Autonomy and the Right to Refuse Treatment: A drama concerning an elderly patient
who insists on being discharged from the hospital even though he is at high risk
of choking leads to a philosophical discussion of the concepts of competence, au-
tonomy, and valid consent.
Euthanasia: A straightforward description of a case of medical assistance in dying
(MAID) reported on CBC motivates this debate on the moral permissibility of
voluntary and non-voluntary active euthanasia.
Abortion: A couple, Don and Marissa, discovers that the fetus Marissa is carrying has
Down’s syndrome. They have to decide whether to continue with the pregnancy
when that means they may lose their family-run business and possibly their mar-
riage. This leads to a debate about the moral permissibility of abortion in general,
and in the couple’s case, in particular.
C-Section by Choice: A woman requests a Caesarean section for non-medical reasons.
Her physician refuses, but she finds another who is willing to grant her request,
even though vaginal delivery is recommended in her case. This leads to a debate
about the moral permissibility of Caesarean section for non-medical reasons. What,
in general, are the moral obligations of parents to avoid needless risks to themselves,
their children, and others?
Two-Tier Health Care: The case of two young hockey players who both need MRIs
motivates a discussion on the justice of allowing expensive, privately funded MRIs
in addition to the public health care system’s provision of MRIs. Under what condi-
tions, if any, is a two-tier health care system just?
Microallocation of Scarce Resources: A small-town emergency department must cope
with a horrible car accident. There are not enough staff members and resources to
treat all the patients who need care. This prompts a debate on the morally justified
rules for triaging patients in emergency situations.
Alternative Medications and Professional Relationships: A man who received a di-
agnosis of cancer rejects the standard medical therapy and opts for a scientifically
unproven alternative therapy. He finds a doctor who is willing to administer this

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 Preface  xvii

unproven therapy, even though she thinks the standard therapy is a better option.
This leads to a debate over how much discretion physicians should have to admin-
ister unproven therapies.

Debating Health Care Ethics also includes a number of pedagogical tools:

• Up for Discussion questions encourage readers to participate in the debate in

various ways.
• Definition boxes demystify some concepts.
• Background and Theory boxes connect the discussion to everything from cur-
rent events to great thinkers of the past.
• Technique boxes point out helpful strategies for presenting and critically ex-
amining arguments.
• Key terms are bolded in each chapter and are defined in an end-of-text
Glossary.

RECOMMENDATIONS FOR USING THIS TEXTBOOK

There are various pathways through this book that an instructor may wish to consider.
We recommend that all introductory students read the first chapter to gain some ac-
quaintance with techniques of argument. Ideally, students will then work through the
second chapter on ethical theories, and the third chapter where each author’s approach
to ethics is explained, prior to turning to the debate chapters 4 to 10. The debate chapters
are self-contained and can be read in any order. In a one-semester course, however, espe-
cially for students in health professions not used to ethical theory, it may be advisable to
initially skip over chapter 2. As questions arise, the instructor in such a course may wish
to use chapter 2 as a reference text for students wanting more detail concerning theory.
The debate format of the book lends itself to novel and productive exercises. For
example, when assigning a topic in health care ethics, instructors may ask students to
write their own debates, using the text as a model. For many students, beginning with
a conversation rather than formal prose also has the advantage of being less intimidat-
ing and more productive of ideas. It helps students produce, in an elementary form, the
positions, arguments, objections, and replies that can form the basis of a more formal
academic paper. This sort of exercise also avoids the copying and pasting of poorly un-
derstood passages from the Internet or other sources. After the instructor returns com-
ments to students on their debates, the instructor may want to ask students to turn their
debates into polished position papers.
Another sort of assignment that has worked well when using this material in medical
ethics courses is to have students answer specific questions about the drama and debate.
For example, on the issue of abortion, the instructor may ask the following questions:

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 xviii  Preface

1. Do you think it was morally permissible for Don and Marissa to obtain an
abortion? Why or why not?
2. Consider an objection to your reasoning.
3. Explain why that objection fails.
4. Consider an argument discussed in the text that you think fails, even though
it leads to a similar (or even the same) conclusion as your favoured argument.
5. Explain why that argument fails.
6. Explain what you take to be the strongest argument for the opposite conclusion
to yours.
7. Explain why you think that argument is unsound.
8. What was your view about the permissibility of Marissa’s abortion immediately
after reading the drama, before reading the debate? At that point, what reasons
did you have for your view? Has your view or have the reasons for your view
changed, and if so, why?

The advantage of using these focused questions is that it requires students to state
their own views and arguments, think critically about their own arguments, consider
other arguments and why they think those arguments fail, and reflect about how their
views and reasons have changed as a result of debate. It is also a relatively straightfor-
ward matter to have students transform their answers to these questions into a polished
academic paper.

ACKNOWLEDGEMENTS

I am most grateful to my wife, Cara, for her patience, understanding, and support. Our
children, Cashel and Reese, deserve special thanks too for their patience, but also for
their curiosity and insight, which provide constant reminders of the excitement and
value of philosophy. Finally, I would like to thank my colleagues and co-authors, Doran
and Warren, for their hard work, perseverance, and friendship. —Patrick Findler

I want to thank Patrick and Warren for their tireless work on this project. The book could
not have been written without them. They have my respect and admiration both as first-
rate philosophers and, more importantly, as fine human beings. On a more personal note, I
am most grateful to my best friend and wife, Julie, for her love, wisdom, constant support,
and encouragement. I want to thank my children, Mischa, Andy, Kayti, and Elie, for their
love and encouragement, for their good company, and for demonstrating that the future is
bright and full of hope. Last, but never least, I am indebted to my mom and dad, Debby
and Barry Smolkin, for their constant love and support. —Doran Smolkin

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 Preface  xix

Thanks to Kwantlen Polytechnic University for an educational leave during which I

prepared a website that turned out, with Doran and Patrick’s efforts, to be a precursor to
our book. I am grateful to my patient family who saw me through the years of debates,
writing, and revision that led to this text. My students and colleagues, too, deserve
thanks for their enthusiastic questioning of our positions. Of course, my co-authors
deserve much gratitude for their persistence, dedication, and insight. I wrote the dramas
and am grateful for Patrick and Doran’s comments and those of my nursing students. I
must also thank physicians and nurses who looked at these cases with an eye to verisi-
militude. Their comments helped to bring the cases presented more in line with reality.
Any lack of verisimilitude must, however, be laid at my doorstep. —Warren Bourgeois

Collaboration among three authors brings various challenges to a project. Invariably,

disagreements surface, compromise is required, and each author ends up taking on cer-
tain roles and responsibilities. There are also great advantages in co-authoring a book.
Different points of view make for more interesting reading, arguments are improved
because of helpful suggestions made by one’s co-authors, and the workload is shared. In
our case, there is no doubt that our book is much stronger because it had three authors
who each made different, though equally important, intellectual contributions.
We wish to thank Kwantlen Polytechnic University for several research grants that
gave us much-needed time to do revisions. We are also grateful to the editorial team at
Canadian Scholars for their encouragement and support.

Lastly, we owe a debt of gratitude to the following reviewers:

Eva Beattie, St. Clair College

Dale Beyerstein, Langara College
Leslie Burkholder, University of British Columbia
Carolyn Ells, McGill University
Ken Ferguson, University of Ottawa
Mazen M. Guirguis, Kwantlen Polytechnic University
Kenneth Kirkwood, University of Western Ontario
Arthur Schafer, University of Manitoba
Meredith Schwartz, Ryerson University
Karen Shirley, Camosun College
Jeremy Snyder, Simon Fraser University
Edrie Sobstyl, Douglas College
Duff R. Waring, York University
Brian Wetstein, University of Guelph

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DHE2e-typesetting [Link] 20 5/15/2019 10:38:48 AM
 1 ARGUMENTS AND
METHODOLOGY

INTRODUCTION

We should accept philosophical views in general, and moral views in particular, on the
basis of the arguments offered in their support. It is therefore crucial to understand what
an argument is, and how to evaluate an argument. In this chapter, we explain the kinds
of arguments philosophers give, the features of good and bad arguments, and some com-
mon tools and methods that will aid in the evaluation of arguments.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Distinguish deductive from inductive arguments

• Define deductive validity and soundness
• Explain inductive strength and weakness
• Describe common fallacies when constructing and evaluating arguments
• Recognize the role of moral principles when constructing moral arguments
• Understand the nature and purpose of thought experiments
• Construct counterexamples to test philosophical analyses and claims

ARGUMENTS
What Is an Argument?

An argument is simply a set of claims; one of these is the conclusion, and the oth-
ers are premises. The conclusion is the claim that one is trying to establish, and the
premises are the reasons offered in support of the conclusion. To illustrate, consider
the following example:

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 2   DEBATING HEALTH CARE ETHICS

(1) It is always wrong to kill an innocent person.

(2) Abortion is the killing of an innocent person.
(3) Therefore, abortion is wrong.

The conclusion of this argument is the claim that abortion is wrong. The other two
claims are the premises or supporting reasons. Arguments must have at least one prem-
ise, but there is no upper limit to the number of premises an argument can have.
Sometimes the arguments given in support of a position are clearly and explicitly
stated. Other times, however, the arguments may be buried in difficult and lengthy pas-
sages. In these cases, it will take work to spot the conclusion and supporting premises.
Often, certain terms are present that can help you to piece together an author’s argu-
ment. Philosophers call these terms premise indicators and conclusion indicators.
Premise indicators include the terms for, because, since, and given that. Here are two
examples to illustrate how these terms are used in the context of an argument:

Because active euthanasia involves the intentional killing of a person, it is always wrong.
You should not deceive others, for this is disrespectful.
Since abortion is murder, it is wrong.

The following terms are conclusion indicators: therefore, thus, hence, so, and conse-
quently. Here are examples to show how some of these terms are used to signal the
conclusion of an argument:

Active euthanasia involves the intentional killing of a person; therefore, it is

always wrong.
Deceiving others is disrespectful, so you should not deceive others.
Abortion is murder; thus it is wrong.

In some instances, arguments may be given without the use of premise or conclu-
sion indicators. Determining the structure of an argument in such cases can be tricky.
You have to ask yourself what role each sentence is playing in the passage. If a particular
sentence expresses the point the author is trying to establish, then it is the author’s
conclusion. If a sentence is given as support for some other claim, then it is a premise.
Still other sentences in the passage may not play a direct role in the argument, and these
would be neither the premises nor the conclusion.
Upon finding a passage in a text that contains an argument, it is often helpful to re-
write it in what is known as standard form. In standard form, each premise is numbered
and stated on its own line, and then the conclusion is stated last. Usually, the conclusion
is separated from the premises by a horizontal line, with the premises above the line and
the conclusion below it. To illustrate, consider the following argument:

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 Chapter 1  Arguments and Methodology  3

Abortion is morally permissible, for it is morally permissible for women to make

their own decisions when it comes to controlling their own bodies, and abortion is
a decision that involves women and their own bodies.

We can rewrite the argument in standard form as follows:

(1) It is morally permissible for women to make their own decisions when it
comes to controlling their own bodies.
(2) Abortion is a decision that involves a woman and her own body.
(3) Therefore, abortion is morally permissible.

There are numerous advantages in writing out an argument in standard form—not

the least of which is that it makes the argument clearer and thus easier to evaluate.

Evaluating Arguments

The point of providing an argument in support of a view is typically to show that

the view is correct and to persuade others to accept it.1 Good arguments—ones we
should accept—have two features. First, all of the premises are true. And second,
the premises logically support the conclusion. Thus, when evaluating arguments, we
need to ask two basic questions. First, are all of the premises true? Second, do the
premises support the conclusion? If the answer to both of these questions is “yes,”
then the argument is a good one and we have good reason to accept its conclusion.
If, however, the answer to either question (or both) is “no,” then the argument is bad
and we do not have good reason to accept its conclusion. Notice, then, that an argu-
ment might fail for one of two reasons: it might have a false premise, or it might have
premises that do not support the conclusion. (Of course, an argument might have
both of these problems.)
It is important to recognize that whether the premises are true and whether the prem-
ises support the conclusion are logically distinct issues. Consider the following example:

(1) All patients have cancer.

(2) All cancer patients have appendicitis.
(3) Therefore, all patients have appendicitis.

This, of course, is a bad argument. What makes it bad is not that the premises fail to
support the conclusion. In this example, the premises very strongly support the conclu-
sion. If the premises were true, the conclusion would have to be true. 2 The problem with
this argument is that the premises are not true. Now consider an argument with the
opposite problem:

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 4   DEBATING HEALTH CARE ETHICS

(1) Some Canadians have cancer.

(2) Some Americans have arthritis.
(3) Therefore, a broken leg is painful.

This, too, is a bad argument. But what makes this argument bad is not that the premises
are false. Rather, the problem with this argument is that the premises do not logically
support the conclusion. Acceptance of the premises does not give us any reason to accept
the conclusion. Even though the premises are true, the conclusion still could be false. It is
important, then, not to assume that the conclusion of an argument is true simply because
the premises are true. The premises must also logically support the conclusion.

Deductive Arguments: Validity and Soundness

A deductive argument is an argument where the truth of the premises is intended to
guarantee the truth of the conclusion. For example, the following is likely offered as a
deductive argument:

(1) It is seriously immoral to deprive an individual of a future of value.

(2) Abortion, in standard cases, deprives the fetus of a future of value.
(3) Therefore, in standard cases, abortion is seriously immoral.

When evaluating deductive arguments, there are certain technical terms that phi-
losophers commonly use. In particular, philosophers use the terms valid and sound to
refer to properties that deductive arguments can have or lack. A deductively valid argu-
ment (or, for simplicity’s sake, a valid argument) is an argument with the following
feature: It is impossible for all of the premises to be true and the conclusion false. Put a
little differently, if all of the premises are true, the conclusion must be true. To illustrate,
let’s return to an example considered earlier:

(1) All patients have cancer.

(2) All cancer patients have appendicitis.
(3) Therefore, all patients have appendicitis.

Here’s another example:

(1) No Canadian is an American.

(2) Justin Trudeau is a Canadian.
(3) Therefore, Justin Trudeau is not an American.

Notice that in each of these examples, if the premises were true, the conclusion would
have to be true. The truth of the premises logically guarantees the truth of the conclusion.
Hence, these are valid arguments.

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 Chapter 1  Arguments and Methodology  5

It is very important to note that valid

UP FOR DISCUSSION
arguments need not have true premises. In
saying that an argument is valid, we are Can a valid argument have false prem-
not claiming that the premises are true. ises and a true conclusion? Explain your
We are claiming, rather, that the prem- answer using an example.
ises, if true, guarantee that the conclusion
is true. In other words, to say that an argument is valid is to say something about the
logical relationship between the argument’s premises and its conclusion: the relationship
is such that if the premises are true, then the conclusion must be true. Deductive argu-
ments that do not have this property are said to be invalid.
A sound argument is a valid argument with all true premises. A virtue of sound
arguments is that they always have true conclusions.3 Notice that this is guaranteed by
the definition of a sound argument. Here is a simple example of a sound argument:

(1) If mercy killing was illegal in Canada in 1993, then Robert Latimer broke
the law when he committed the mercy killing of his daughter, Tracy.
(2) Mercy killing was illegal in Canada in 1993.
(3) Therefore, Robert Latimer broke the law when he committed the mercy
killing of his daughter, Tracy.

This is a valid argument: if the premises are true, the conclusion must be true. The
premises, moreover, are in fact true. Hence, this argument is sound.
An unsound argument is a deductive argument that is either invalid or has at
least one false premise. Unsound arguments are therefore bad arguments. They are
bad because if an argument is unsound, it has failed to establish the truth of its con-
clusion. Note, however, that this is not to say that the conclusions of unsound argu-
ments must be false. To illustrate, here is an example of an unsound argument with
a true conclusion:

(1) Everyone who goes to a private clinic is terminally ill.

(2) Some Canadians go to private clinics.
(3) Therefore, some Canadians are terminally ill.

Here we have an unsound argument with a true conclusion. The argument is unsound
because premise (1) is false. Thus, when we claim that an argument is unsound, we are not
saying that its conclusion is false. Rather, we are saying that its conclusion should not be
accepted on the basis of this argument. Either the argument is invalid, so the premises do
not logically support the conclusion, or at least one premise is false, so the argument
does not necessarily lead us to the truth.

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 6   DEBATING HEALTH CARE ETHICS

Inductive Arguments
Not all arguments are intended to be deductive arguments. In some arguments, the
premises, if true, may not be intended to guarantee the truth of the conclusion. Instead,
the premises provided may be intended to demonstrate only that the conclusion is
probably true. In that case, the argument is inductive. Here is an example of this kind
of argument:

(1) Most healthy pregnancies at 24 weeks result in successful births.

(2) Tina has a healthy pregnancy at 24 weeks.
(3) Therefore, Tina’s pregnancy will result in a successful birth.

Now, the fact that healthy pregnancies at 24 weeks generally result in successful
births does not guarantee or conclusively prove that Tina’s pregnancy will result in a
successful birth. That is, it is possible that the conclusion is false, even if the premises
are true; however, if the premises of the argument are true, they certainly do provide
some support for the conclusion. This support is not, however, the kind of support we
talked about earlier when we looked at valid arguments. The premises just make the
conclusion more probable.
When it comes to evaluating inductive arguments, philosophers do not use the
terms valid/invalid and sound/unsound; instead, they speak of inductive arguments as
being either strong or weak. A strong inductive argument is an argument that is not
deductive, and where the premises, if true, make the conclusion probably true. The more
support provided by the premises of an inductive argument, the stronger the argument.
Here is an example of an inductively strong argument:

(1) Dr. Badesh will see 100 flu sufferers this year.
(2) Dr. Badesh has treated 99 flu sufferers this year with antibiotics.
(3) Therefore, Dr. Badesh will treat all of the flu sufferers she sees this year
with antibiotics.

This is a strong inductive argument, because if the premises are true, it is likely that the
conclusion is true.4
An inductive argument is weak when the premises, if true, provide little support for
the conclusion. Here is an example of an inductively weak argument:

(1) Dr. Badesh will see 100 flu sufferers this year.
(2) Dr. Badesh has treated 1 flu sufferer this year with antibiotics.
(3) Therefore, Dr. Badesh will treat all of the flu sufferers she sees this year
with antibiotics.

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 Chapter 1  Arguments and Methodology  7

DEFINITION
Our definition of inductive strength closely follows that provided by Brian Skyrms in
Choice and Chance: An Introduction to Inductive Logic, 4th ed. (Belmost, CA: Wadsworth
Publishing, 1999; first published in 1967). Skyrms contends that “an argument is induc-
tively strong if and only if it is improbable that its conclusion is false while its premises
are true, and it is not deductively valid” (17).
Some philosophers, however, define inductive strength differently. Richard Feldman,
for example, suggests that an argument is inductively strong if and only if: (i) it is co-
gent, (ii) the premises are true or at least justified, and (iii) the conclusion is not defeat-
ed by one’s evidence. Feldman’s notion of cogency appears to correspond to our (and
Skyrms’s) definition of inductive strength: an argument is cogent when it is not valid and
when its premises make the conclusion probable.

Source: Richard Feldman, Reason and Argument, 2nd ed. (Upper Saddle River, NJ: Pearson, 1998).

What makes this an inductively weak argument, of course, is that the premises, if true, do
not make the conclusion probable or likely to be true. In this instance, the argument com-
mits the familiar error of generalizing from a single case. As the saying goes, one swallow
does not make a summer. We should not infer conclusions from too little evidence.

Moral Arguments
What we call a moral argument is an argument in support of a substantive moral
claim—that is, a claim about the moral status of acts, policies, persons, and so forth.
The following, for instance, are examples of substantive moral claims: euthanasia is mor-
ally permissible; progressive taxation is unjust; an unrepentant serial murderer is evil.
In the next chapter, we examine several influential normative ethical theories. One of
the central aims of many of these theories, we shall see, is to provide correct, general
principles that tell us what makes actions (policies, and so forth) right and wrong, and
persons good and bad. As we’ll now explain, these principles can play an important role
in arguing for substantive moral conclusions.
Consider the following simple argument:

(1) Active euthanasia minimizes overall suffering.

(2) Therefore, active euthanasia is morally right.

Notice that this argument is invalid: the premise, if true, does not guarantee the truth
of the conclusion. Although active euthanasia may well minimize overall suffering, it
does not logically follow that it is right. But now consider the following moral principle:

Any act that minimizes overall suffering is morally right.

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 8   DEBATING HEALTH CARE ETHICS

This principle tells us that minimizing overall suffering is a “right-making” feature of

actions; any action that has this feature is morally right. With this principle in hand, we
can now construct a deductively valid argument for our conclusion:

(1) Any act that minimizes overall suffering is morally right.

(2) Active euthanasia minimizes overall suffering.
(3) Therefore, active euthanasia is morally right.

Notice the structure of this argument. Premise (1) asserts a moral principle; it states that
any act that has a certain property is morally right. Premise (2) asserts that a particular
act has this right-making property. We can therefore validly conclude that the act in
question is morally right.
Although we have been focusing on the role of moral principles in the construction
of deductively valid moral arguments, it is worth noting that our comments about the
interplay between moral principles and assertions that a given act has the relevant right-
(or wrong-) making properties apply also in the case of inductive arguments. Consider,
for example, the following argument:

(1) Usually, but not always, acts of dishonesty are wrong.

(2) By withholding relevant information, Dr. Badesh acted dishonestly to-
ward her patient.
(3) Therefore, it was wrong for Dr. Badesh to withhold relevant information
from her patient.

This argument is inductive. The premises, UP FOR DISCUSSION

if true, are not intended to guarantee that Consider the following argument:
the conclusion is true. Rather, the prem- Homosexuality is unnatural; therefore,
ises provided are intended only to show homosexuality is wrong. What missing
that the conclusion is probably true. Still, premise would make the argument
the omission of either premise would sig- inductively strong?
nificantly weaken the argument.
In summary, the general moral principles provided by normative ethical theories
can play an important role in arguing for substantive moral claims. Moral principles
commonly tell us what makes actions right or wrong (or persons good or bad). These
principles, when combined with premises that assert that given acts (or persons) have
the relevant properties, can be used to construct deductively valid or inductively strong
arguments for substantive moral views. We critically examine the moral principles
offered by leading normative ethical theories in the next chapter. First, however, we
consider some useful methods for evaluating moral principles in particular, and philo-
sophical claims in general. We also consider common fallacies to avoid when con-
structing and evaluating arguments.

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 Chapter 1  Arguments and Methodology  9

PHILOSOPHICAL METHODOLOGY: COUNTEREXAMPLES AND

THOUGHT EXPERIMENTS
We mentioned earlier that philosophical views should be accepted or rejected on the
basis of the arguments offered in their support. If you disagree with an author’s position
on some issue, then you must believe that the author’s argument for that view is unsound
or weak. So you must believe either that the premises fail to adequately support the
conclusion or that at least one premise is false. Let’s now consider methods employed by
philosophers to establish whether premises are true or false.
As noted in the previous section, moral arguments commonly involve a combination
of both moral principles that specify right- or wrong-making properties and assertions
that a given act has the relevant properties. Claims of the latter sort are often empiri-
cal—since they are often based on our observations that a given act has the relevant prop-
erties—and therefore can be shown to be true or false through ordinary observational
methods. But observation alone will not suffice in the case of moral principles. So how
might we try to demonstrate that a moral principle is true or false?
To evaluate or test moral principles, and philosophical claims and analyses in gen-
eral, philosophers often employ counterexamples and thought experiments. A counterex-
ample is just that—an example that counters a given claim or argument. A thought
experiment is a kind of mental experiment one performs through an exercise of imagi-
nation. Thought experiments are a very useful way to generate counterexamples. To
illustrate these methods, let’s return to an argument discussed earlier:

(1) Any act that minimizes overall suffering is morally right.

(2) Active euthanasia minimizes overall suffering.
(3) Therefore, active euthanasia is morally right.

We noted earlier that this argument is valid. If you disagree with the conclusion,
you must show that at least one of the premises of this argument is false.5 The first
premise expresses the moral principle that any act that minimizes overall suffering is
morally right. But is that true? A good way to test this claim is to see whether we can
find a counterexample to it. That is, we want to see whether we can find an instance of
an act that minimizes overall suffering yet is not right. Engaging in a thought experi-
ment will help us to discover possible counterexamples. The task here is to see if we can
imagine a situation in which an act that minimizes overall suffering is not right. With a
little thought, it seems that we can in fact imagine many such situations. The following
paragraph presents one example.6
Suppose a teen from the neighbourhood knocks on my door one Saturday morning
and offers to mow my lawn for $20. My lawn needs mowing, and I’m too busy to take
care of it myself, so I agree. An hour later the teen knocks on my door again to collect
her money. I inspect the lawn and see that she has done a very nice job. As I reach for

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 10   DEBATING HEALTH CARE ETHICS

my wallet to pay the teen, it occurs to me

UP FOR DISCUSSION
that I could minimize overall suffering by
donating the $20 I promised to her to a Can you think of another counterexam-
local charity. Let’s suppose that I’m right: ple to the claim that “any act that mini-
breaking my promise to pay the teen and mizes suffering is morally right”?
donating the money to a local charity re-
ally would minimize overall suffering. In that case, premise (1) implies that breaking
my promise is the morally right thing to do. But our common-sense moral beliefs sug-
gest that this is not the right thing to do. And so we seem to have a counterexample to
premise (1); we have an example of an action that minimizes overall suffering, yet does
not appear to be morally right.
This counterexample provides us with good reason for thinking that premise (1)
is false, and that the above argument is therefore unsound. But remember, it doesn’t
follow from this that the conclusion of the argument—that active euthanasia is per-
missible—is false.
One might wonder why this counterexample provides good reason for thinking that
the moral principle in question is false. After all, we seem to have done little more than
show that the moral principle in question conflicts with what you and I happen to believe
is the right thing to do in the example described. Perhaps, though, the principle is cor-
rect, and it is our belief about what’s right that is mistaken. The more general question
here is how the use of counterexamples can show that any moral principle or theory is
false, if the counterexamples are simply based on our common-sense moral beliefs. There
is a great deal to be said about this topic that we cannot address here. We shall have to
limit ourselves to a brief discussion of the concept of reflective equilibrium. This will
help to shed some light on the legitimacy of thought experiments and counterexamples
when evaluating moral principles and theories.
Reflective equilibrium, in the context of moral philosophy, is the end point of a pro-
cess of moral deliberation that involves going back and forth between moral principles
and what they imply about specific cases. The ultimate goal of this process is to attain a
state of coherence or consistency between the moral principles we accept and our con-
sidered moral beliefs. We have achieved reflective equilibrium when we have achieved
this state of consistency. The basic process goes like this. If a principle or theory has im-
plications that conflict with our moral beliefs, and we have a high degree of confidence
in our moral beliefs, then we may reject or revise the principle until we find one that
matches our beliefs; however, if a principle conflicts with our moral beliefs, but we lack
confidence in these beliefs, then we may want to revise or reject our beliefs to achieve a
state of consistency.
To illustrate, let’s return to the principle considered above: Any act that minimizes
overall suffering is morally right. We want to know whether this principle is correct and
deserves our acceptance. So we then consider what this principle implies in specific

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 Chapter 1  Arguments and Methodology  11

cases. We saw earlier that this principle implies that it would be morally right to refuse
to pay the teen who mowed your lawn and to give the money to a charity instead, for
this would minimize overall suffering. Upon reflection, however, most of us believe that
it would be wrong to give the money to the charity if that meant breaking the promise
to pay the girl. That is our considered belief or judgment about this case. Since we have a
high degree of confidence in this judgment—more confidence that this judgment is cor-
rect than that the principle is correct—we should revise or reject the principle in ques-
tion and seek another that is consistent with our judgment. If we lacked confidence in
this judgment, however, then we might want to seek consistency by revising or rejecting
the judgment. The goal, again, is to attain a consistent fit between our moral principles
and moral judgments about cases. And the fact that the moral principles we accept are
in equilibrium with our considered moral judgments confers justification on both the
principles and the beliefs.7
One final point about thought experiments is in order before we turn our attention
to fallacies. Thought experiments often involve unusual and unrealistic situations, but it
is important to see the relevance of these examples. The force of the counterexample de-
scribed does not depend on whether the imagined example would ever actually happen,
or whether it involves a situation in which we might actually find ourselves. The only
constraint is that the imagined situation is one that is logically (or conceptually) possible.
Notice that premise (1) asserts that any act that minimizes overall suffering is morally
right. Given this, it is perfectly legitimate to test this claim by imagining situations that
may or may not be very realistic. It is very important to bear this point in mind as you
read the debates, for you’ll sometimes encounter strange counterexamples and thought
experiments that are used to test the authors’ (and others’) moral views.

COMMON FALLACIES

A fallacy is a mistake in reasoning. There are many different kinds of fallacies, but we
focus here only on a few of the more common errors in reasoning.8

Circularity (a.k.a. Begging the Question)

A circular argument is one in which the truth of the conclusion is presupposed by one
or more premises.9 The most blatant form of circularity occurs when the conclusion you
are arguing for appears as a premise in your argument. Consider, for instance, the fol-
lowing argument:

(1) Abortion is wrong.

(2) Therefore, abortion is wrong.

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 12   DEBATING HEALTH CARE ETHICS

There are, however, less obvious cases of circularity, as illustrated by this example:

(1) Abortion is murder.

(2) Therefore, abortion is wrong.

This second example is simply a disguised version of the conclusion, for “murder” simply
means “wrongful killing.” To make this point explicit, the argument could be more
clearly expressed as follows:

(1) Abortion is wrong.

(2) Abortion is killing.
(3) Therefore, abortion is wrong.

The circle in the argument is now apparent. The problem with the circle is that we would
not accept the premises of this argument unless we already accepted the conclusion. So
if you are in doubt whether abortion is wrong, this argument will do little to persuade
you that it is wrong. Although circular arguments are generally uninformative and un-
persuasive, notice that they are valid and may be sound.

THEORY
It is rather difficult to state the problem of circularity in precise terms, because all valid
arguments are circular in the sense that the conclusion is logically “contained” in the
premises. Yet we certainly don’t want to say that all valid arguments are fallacious. So
why is circularity a problem in some cases, but not others? To answer this question, it
may help to consider a common reason for giving an argument. The point is often to
convince others that your conclusion is correct. It will not help to convince others that
your conclusion is correct, however, if you appeal to the conclusion to help establish it.
Circularity is a problem, then, when the conclusion you are arguing for appears as one
of your premises, or is offered as a reason for accepting one of your premises, and you
intend to convince someone of the conclusion.

UP FOR DISCUSSION
Is the following argument guilty of circularity? Explain your answer.

(1) The Bible is the inerrant word of God.

(2) The Bible says that God exists.
(3) Therefore, God exists.

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 Chapter 1  Arguments and Methodology  13

False Dilemma

Presenting fewer options than are actually available when arguing for a view is known as the
false dilemma fallacy. For instance, in defending the current Canadian health care system,
one might fallaciously argue the following: we can have our current health care system or
the US model, and we certainly don’t want the US system of health care. But clearly this
argument is guilty of containing a false dilemma. There are, in fact, other options besides
our current model of health care and the American model, and so it would be a mistake to
conclude our system was best merely because we prefer it to the American system.

Equivocation

There are a host of fallacies involving the manipulation of language in order to attempt
to support a conclusion. We will consider two of the more common of these, beginning
with the fallacy of equivocation.
An example of the fallacy of equivocation is the following:

(1) Laws imply lawgivers.

(2) There are laws in nature.
(3) Therefore, there must be a supernatural lawgiver.10

This argument commits the fallacy of equivocation, and so is invalid. The word law is
ambiguous. It can mean legislation enacted by a lawgiver, or it can mean regularities that
occur in nature. The term law is used in the first sense in premise (1) but in the second
sense in premise (2). Once this is noted, we can rewrite the argument without the am-
biguous term, and the fallacy of equivocation becomes apparent.

(1) Legislation implies a lawgiver.

(2) There are regularities in nature.
(3) Therefore, there must be a supernatural lawgiver.

Now that the premises are clarified, we see that even if they are true, they fail to estab-
lish the conclusion. As critical thinkers who are searching for the truth, we need to try
to spot equivocation. And we need to try to avoid falling into the trap of committing this
mistake when developing our own arguments.

Appeal to Emotion

Another fallacy involving the misuse of language is the appeal to emotion in order
to argue for some claim. Claiming that euthanasia and abortion ought to be opposed

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 14   DEBATING HEALTH CARE ETHICS

because they’re butchering would be an instance of using inflammatory language in or-

der to make one’s point. Of course, such claims not only beg the question, but they also
are often advanced so as to get the reader or listener to accept the conclusion without
having to think carefully about the issues involved.

Straw Man

The straw man fallacy is the fallacy of misrepresenting your opponent’s argument so
that it is easily shown to be unsound or weak. The fallacy is so named because a straw
man argument is easily blown down. Suppose, for instance, that a philosopher offers the
following argument in support of euthanasia:

(1) If competent, seriously disabled adults express a preference to die, then

they should be permitted to die.
(2) Some competent, seriously disabled adults do in fact express a preference
to die.
(3) Therefore, some competent, seriously disabled adults should be permitted
to die.

Now, suppose a critic objects as follows: “My opponent is claiming that we should
euthanize all disabled persons, since all disabled persons desire to die. But it is not true
that all disabled people want to die. So my opponent’s argument is clearly unsound.”
This critic would be guilty of the straw man fallacy, since she has misrepresented her
opponent’s view to make it easier to refute. Her opponent’s actual position is much more
subtle and less easily refuted than the argument attributed to him.

Ad Hominem

Ad hominem is a Latin expression that means “against the man.” One commits the ad
hominem fallacy when one tries to refute an argument by attacking the one who offered
the argument. For example, suppose that a leader of an evangelical church presented the
following argument in support of his “pro-life” position on abortion:

(1) All human lives are sacred.

(2) Fetuses are human.
(3) Therefore, fetuses’ lives are sacred.

Now, imagine that a critic objects as follows: “We can safely reject this argument,
since it is being advocated by a religious extremist who believes all sorts of crazy things!”

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 Chapter 1  Arguments and Methodology  15

This critic would be guilty of committing the ad hominem fallacy, since he attempts to
refute his opponent’s argument by attacking his opponent. The only way to show that an
argument fails is to show that there is a problem with the argument itself.

CONCLUSION

There are, of course, many other fallacies that we cannot explain here. What counts as
a fallacy depends, moreover, on the context in which an argument is offered and the in-
tentions of the person offering it. A full discussion would be very complex. The general
point is that moral philosophy—indeed, philosophy in general—is first and foremost a
matter of searching for the truth through the careful use of reason. We want to discover
the truth by fairly and carefully considering the arguments on all sides of an issue. Doing
philosophy therefore requires a sense of fairness, as well as a sharp, critical, and open
mind. We want to arrive at the truth, but we should accept a claim as true only if we are
reasonably confident that it is supported by a good argument.

REVIEW QUESTIONS

1. What are the two features of a good argument?

2. What is a valid argument?
3. Construct your own example of a valid argument.
4. What is a sound argument?
5. What is an inductive argument?
6. What makes an inductive argument strong?
7. What is a moral argument?
8. What is a counterexample?
9. Describe an example that counters the following claim: Killing human beings is
always wrong.
10. What is reflective equilibrium?
11. Explain the fallacy of circularity.
12. Explain the straw man fallacy.
13. Explain the fallacy of equivocation.
14. Explain the fallacy of appeal to emotion.
15. Explain the ad hominem fallacy.
16. Explain the false dilemma fallacy.

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 16   DEBATING HEALTH CARE ETHICS

NOTES

1. Arguments can, of course, have different purposes. For example, in science, arguments can be
used to deduce predictions from general principles and observations.
2. Arguments that have this feature are said to be valid. We discuss the concept of validity in the
following section.
3. Notice, however, that not all sound arguments are informative or useful. Circular arguments, for
instance, may be sound, but not informative or useful. Here’s an example of a sound circular
argument: Cancer is sometimes fatal. Therefore, cancer is sometimes fatal.
4. When we say this is a strong argument, we do so against typical background assumptions like
these: Dr. Badesh is not likely to suddenly change her treatment preferences, and one case of the
flu is much like the others. Of course, there might be an unexpected difference in case number 100,
but the very fact that a difference is unexpected attests to our thinking the argument is strong. The
argument could be much stronger if we made all the background assumptions explicit.
5. One could attack this argument by criticizing either premise (1) or (2). Since our present concern
is to explain how to test philosophical claims in general, and moral principles in particular, we
focus our attention on criticizing premise (1), and the moral principle that it asserts. Premise (2)
does not assert a moral claim. It simply says that active euthanasia minimizes overall suffering.
Whether this is in fact true is an empirical matter and can be evaluated through ordinary
empirical methods.
6. This example is based on an objection raised by Will Kymlicka in his Contemporary Political
Philosophy: An Introduction, 2nd ed. (Oxford: Oxford University Press, 2006), 24.
7. The method of testing moral principles against our considered beliefs is one that is both common
and widely accepted among moral philosophers. We recognize, however, that there is some
controversy about this method and about “coherence” accounts of justification, but discussion
of this controversy is well beyond the scope of this book. For an excellent discussion of reflective
equilibrium, see the Stanford Encyclopedia of Philosophy, [Link]
reflective-equilibrium/.
8. For a more thorough discussion of fallacies, see the entry on fallacies in the Internet
Encyclopedia of Philosophy, [Link]
9. An argument like “It is raining; therefore, it is raining” is clearly circular. Note that it nonetheless
fits our earlier definition of an argument: “An argument is simply a set of claims; one of these is the
conclusion, and any other claims are premises.” There is no requirement in the definition that the
premises all be distinct from the conclusion. In fact, circular arguments, though rarely useful, are
nonetheless valid, for it is not possible for their premises to be true while the conclusion is false.
10. This example, and others, can be found on the Texas State University Department of Philosophy
website: [Link]

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 2 PHILOSOPHICAL ETHICS:
AN INTRODUCTION

INTRODUCTION

This book explores some key issues in health care ethics. Health care ethics is a topic
within the broader field of normative ethics. Normative ethics is concerned, in large
part, with general theoretical questions such as what makes acts morally right or wrong,
what states of affairs are desirable or undesirable, what constitutes a good life for the
person who leads it, which character traits are virtuous and which are vicious, and, most
generally, how one ought to live. Philosophers have developed a number of normative
ethical theories in an effort to address these questions. The principal goal of this chapter
is to introduce you to some of the most important and influential ethical theories and to
explain their major strengths and weaknesses. A grasp of these ethical theories is help-
ful, if not essential, for thinking about moral problems that arise in health care.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Distinguish between metaethics, normative ethics, and descriptive ethics

• Explain ethical relativism and its problems
• Define classical act utilitarianism, explain objections to it, and utilitarian
responses to those objections
• Describe Kant’s distinction between an action’s having moral worth and
an action’s being morally right
• Understand and apply the universal law version and the humanity version
of Kant’s categorical imperative
• Outline the main strengths and weaknesses of Kant’s moral theory
• Describe W. D. Ross’s distinction between prima facie duties and duties,
all things considered
• Explain Ross’s moral theory, and describe its strengths and weaknesses
• Define what justifies moral rules according to social contract theory
• Explain why John Rawls’s theory of justice is called justice as fairness

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 18   DEBATING HEALTH CARE ETHICS

• Outline the strengths and weaknesses of Rawls’s theory, and of social

contract theories in general
• Recognize how virtue ethics differs from other approaches to ethics
• Describe Aristotle’s concept of moral virtue and his doctrine of the mean
• Identify the strengths and weaknesses of virtue ethics
• Explain various feminist approaches to ethics
• Point out the strengths and weaknesses of the ethics of care

THREE TYPES OF ETHICAL INQUIRY

We begin by explaining normative ethics and distinguishing it from descriptive eth-
ics and metaethics.1 As suggested above, normative ethics addresses general theoreti-
cal questions about what sorts of things matter, morally speaking. When considering
whether an act is right or wrong, for example, should we look only at its consequences?
Or are other things important—for example, a person’s motives? But normative ethics is
also concerned with practical or applied issues. Here the concern is to try to resolve con-
crete moral problems, such as whether mercy killing is sometimes morally permissible,
whether cloning is immoral, and what obligations people have to non-human animals
and the environment. What is distinctive about normative ethics is that it is prescriptive:
it is concerned with what ought to be, not with what is the case. Thus, to say that health
care ethics is an area of inquiry within normative ethics, or more narrowly, within prac-
tical ethics, is to say that it is concerned with how one ought to act, the character traits
one ought to develop, the policies that ought to be adopted, and so forth, when dealing
with ethical problems that arise in and around the practice of health care.2
It is helpful to distinguish normative ethics from descriptive ethics. Descriptive
ethics is concerned with the examination of a given population’s beliefs about a par-
ticular moral issue. For example, we might ask, “What percentage of the Canadian
population believes that abortion is sometimes morally acceptable?” Descriptive ethics
seeks to describe what is the case; for instance, it seeks to describe what people actu-
ally believe about particular moral issues. Descriptive ethics also is concerned with
questions of why people believe what they believe about ethics, and how they come
to hold their particular moral beliefs and attitudes. Comparisons between different
cultures’ moral beliefs, and questions of what people in the past have believed about
various ethical issues, also belong to descriptive ethics. So, while descriptive ethics
is a rich and interesting area of inquiry, it is, for the most part, an area that properly
belongs to the social sciences: careful empirical investigation is the key to doing de-
scriptive ethics well.
But since normative ethics is essentially prescriptive, it differs importantly from
descriptive ethics. Thus, for example, in doing health care ethics we want to know what
Canadians (or people, in general) should think about the moral acceptability of abortion,

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 Chapter 2  Philosophical Ethics: An Introduction  19

and we are much less concerned about what people happen to think. Here there is the
recognition that people’s actual moral beliefs and society’s laws, policies, and profes-
sional ethical codes can be mistaken (recall that prevailing moral beliefs, and many of
society’s laws and policies, used to favour whites over non-whites, men over women, and
so forth), and we attempt to move toward moral beliefs, laws, policies, and ethical codes
that are justified.3
While descriptive ethics requires careful empirical study, the key to doing norma-
tive ethics well is good reasoning.4 That is, normative ethics is a matter of rational inves-
tigation. To be sure, this requires an awareness of the relevant facts, but it also requires
the defence of various moral principles and careful argumentation from these moral
principles and the relevant facts to conclusions about what ought to be done.
One of the most important steps in arguing for one’s position in normative ethics
is to begin by clearly defining the key concepts one is investigating. For instance, if we
want to determine when, if ever, abortion is morally permissible, we should first deter-
mine what “abortion” involves. For instance, is it an abortion if one removes the prema-
ture fetus to save the pregnant woman’s life, knowing that the premature fetus will die
as a result? And is it an abortion if one prevents a fertilized ovum from implanting in
the uterus (say by using an intrauterine device, or the so-called “morning-after pill”), or
is this just a form of contraception? And what about the nearly 50 percent of fertilized
eggs that end up being discarded in IVF clinics—should we view the destruction of
these unused fertilized eggs as abortions?5 Obviously, defining the concept one is debat-
ing can be a tricky matter, but it is terribly important to get it as clear as one can so that
one knows exactly what one is investigating.
Also, when thinking about problems in normative ethics, it is very important to clar-
ify relevant facts. For instance, on the topic of abortion, we will presumably need to know
such things as when does pregnancy begin; when are fetuses able to survive if born; when,
if ever, are fetuses conscious; and, in general, what changes go on throughout pregnancy
as the fetus develops? We will also want to know the effects of pregnancy on a woman;
for example, what health risks does she face in pregnancy, what health risks arise from
abortion, what percentage of pregnancies are not consensual, what are the consequences
to families and society of having unwanted children, and what effects would there be on
women’s lives if access to abortion was heavily regulated or even banned?
Finally, once key terms are defined and the relevant facts identified, the next step
is to consider whether the act in question is supported (or opposed) by moral principles
or moral considerations that we are willing to accept after careful reflection. For in-
stance, we might propose the moral principle that a person should be free to do what
she chooses provided that she does not violate others’ rights, and provided that she is
competent to make her own decisions. We might then argue that abortion can be freely
chosen by competent persons without violating anyone’s rights, and, therefore, abortion
is morally acceptable in these situations. Alternatively, we might put forward the moral
principle that it is morally wrong to intentionally kill innocent human beings, and since

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 20   DEBATING HEALTH CARE ETHICS

abortion involves intentionally killing innocent human beings, it is morally wrong. We

then need to examine each of these arguments, and any others that can be brought to
bear on this topic, to see whether they are (deductively) sound. (Arguments that are not
deductive should be checked for inductive strength and for the truth of the premises.)
There is no mechanical method for determining whether a given argument is sound or
strong; instead, we have to carefully examine each premise (both the factual claims and
the moral principles) and consider whether it is true or vulnerable to criticism. We also
need to consider the logical structure of the argument to determine whether the prem-
ises, taken together, adequately support the conclusion. If a flaw can be identified either
in one (or more) of the premises or in the logic of the argument, then we ought to reject
the argument as rationally unpersuasive.
The process of developing, examining, and revising arguments is at the heart of
normative ethics, health care ethics, and, indeed, all substantive areas of philosophy—it
requires creativity, a sharp critical mind, and a sense of fairness. The goal is to find the
best arguments on a particular topic and to understand why rival arguments fail. On oc-
casion, on truly difficult issues, one may be unable to tell which argument is best—they
may all appear problematic, or there may be opposing arguments that look equally good.
In such cases, the appropriate thing to do is to admit that one does not know what to
think. Even in difficult cases such as these, the investigation itself can be fruitful: for, at
a minimum, one will better understand the debate around a moral issue—the arguments
for and against, their strengths and their weaknesses—and why the issue is so difficult.
Finally, normative ethics should also be distinguished from metaethics.
Metaethics concerns the rational investigation into the nature of morality. Here, the
focus is on questions about morality, rather than questions within morality, such as
“Are moral judgments capable of being true or false?” and “What are the meanings of
moral terms?” For instance, one might ask, “What does it mean to say that something
is morally wrong or that something is morally right?” Is this merely a report about
the speaker’s feelings, or an expression of emotion, or is it a statement that can be
objectively true or false?6 Metaethics is a rich area of philosophical research; however,
because this is a book on health care ethics, not metaethics, we won’t be able to explore
these issues in depth here.7
One of the main purposes of this book, then, is to suggest a number of solu-
tions to some problems that arise in health care ethics by reasoning about them. This
will involve defining key terms; clarifying relevant facts; identifying, explaining, and
defending relevant moral principles and values; and then drawing conclusions about
these moral problems. In reading this book, you will see how arguments are formed,
criticized, reformulated, and debated again. You will see how there can be progress in
ethical debate, and how informed and intelligent disagreement sometimes remains.
We hope that you will join our debates, reflect on the merits of the arguments pre-
sented here, and develop your own arguments for your views on these issues. Thus, in
addition to attempting to shed light on some difficult problems in health care ethics,

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 Chapter 2  Philosophical Ethics: An Introduction  21

this text aims to improve your critical reasoning skills and to prompt you to develop
your own arguments on these topics. We believe that such a process is intellectually
exciting and rewarding. Thus, we also hope that in reading this book you will see how
challenging these problems are and how stimulating it can be to think philosophically
about these problems.

SKEPTICAL CONCERNS: ETHICAL RELATIVISM

Before we explore questions in health care ethics, and normative ethics generally, it is
important to address and allay some of the skepticism about the entire enterprise of moral
philosophy. There is a long and important minority point of view in the history of philoso-
phy that claims there is no objective truth in ethics. Instead, it is suggested that right and
wrong are simply relative to a given individual or group. For instance, some may suggest
that right and wrong are merely culturally shared attitudes, or that right and wrong are
just a way for an individual to communicate her particular preferences or feelings about an
issue—for example, if a person says something is wrong, it just means she does not like it,
and if she says something is right, it just means she likes it. Although each of the above
views represents a slightly different understanding of the nature of morality, they share
in common a general skepticism about morality: specifically, they deny that there can be
objective truths in ethics. That is, they deny the existence of ethical claims that are true
independently of whether some particular group or individual wants, believes, or feels that
they are true. Let’s call this basket of views moral or ethical relativism.8
Because this is not a text in metaethics, we cannot do justice to the issues raised
by ethical relativism; however, a serious difficulty with this point of view is worth
mentioning, namely, that there are dramatic costs to believing in ethical relativism.
One such cost is that ethical relativism conflicts with the widely held common-sense
belief that individuals or groups can be mistaken in their moral judgments. Most of us
believe that some of our past moral judgments have been mistaken. Likewise, it seems
clear that some previous prevailing moral beliefs (and practices) in our culture have
also been wrong. And, if we are honest with ourselves, most of us would admit that
some of our present moral views, and some of our culture’s present prevailing moral
views, could also be wrong; however, if one is an ethical relativist, it is impossible to
believe these things. This is because in order to believe in the fallibility of one’s own
or one’s culture’s moral views, one would have to believe what the relativist denies,
namely, that there is some standard of right and wrong that is not based on what the
individual or culture happens to think. Once it is pointed out that ethical relativism
implies that an individual’s or group’s moral views can never be mistaken, ethical rela-
tivism loses much of its appeal, for few are prepared to say that their own moral views,
much less the moral views of their culture, are incapable of error. For ease of reference,
let’s calls this the problem of moral infallibility.

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 22   DEBATING HEALTH CARE ETHICS

Moreover, because the relativist denies that there are standards of right and wrong
that are independent of what individuals or cultures happen to think, the relativist is
in the uncomfortable position of being unable to view one person’s or group’s moral
views as objectively better than another’s. The individual relativist must be willing to
say something like, “Gandhi and Hitler had different moral views, but neither Gandhi’s
nor Hitler’s moral views were objectively better or worse than the other’s.” Similarly,
the cultural relativist must be willing to say that Nazi Germany had its moral views
regarding the proper treatment of Jews, Canada has its moral views regarding the proper
treatment of Jews, and neither Nazi Germany’s nor Canada’s moral views in this matter
are objectively better or worse. But given that few people really believe that, objectively
speaking, Hitler’s moral views were as good as Gandhi’s or Nazi Germany’s were as
good as Canada’s, few should be willing to accept ethical relativism. For ease of refer-
ence, we may call this the problem of moral equivalency.
These concerns with ethical relativism directly apply to issues in health care ethics,
for there is a long history in medicine of doing dreadful things. For example, consider
the Tuskegee syphilis experiments carried on in the United States by the US Public
Health Service for 40 years:

The Public Health Service, working with the Tuskegee Institute, began the study
in 1932. Nearly 400 poor black men with syphilis from Macon County, Ala., were
enrolled in the study. They were never told they had syphilis, nor were they ever
treated for it. According to the Centers for Disease Control, the men were told they
were being treated for “bad blood,” a local term used to describe several illnesses,
including syphilis, anemia and fatigue. For participating in the study, the men
were given free medical exams, free meals, and free burial insurance.
At the start of the study, there was no proven treatment for syphilis. But even
after penicillin became a standard cure for the disease in 1947, the medicine was
withheld from the men. The Tuskegee scientists wanted to continue to study how
the disease spreads and kills. The experiment lasted four decades, until public
health workers leaked the story to the media. By then, dozens of the men had died,
and many wives and children had been infected.9

Now, on the one hand, if one were truly a relativist about ethical matters, one would
be in the odd position of saying that if the culture of 1930s, 1940s, and 1950s approved of
such experiments, and if the experimenters felt that what they were doing was right, then
they in fact did nothing wrong when they did it. On the other hand, if one thinks that
these experimenters were doing something extremely immoral, say, because they violated
the basic human rights of the participants, or because they deliberately caused great suf-
fering to the innocent without their consent, or because they caused great distrust of the

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 Chapter 2  Philosophical Ethics: An Introduction  23

medical establishment, or because they exploited the most vulnerable in society, then it
appears that one has straightforward reasons for criticizing such experiments. But it is
hard to see how one can appeal to such reasons and believe that these experimenters were
wronging these patients unless one thinks that there are objective moral standards.
Given these evident problems with ethical relativism, one might wonder why any-
one would be tempted to embrace it in the first place. We will consider two of the
principal arguments that have led people to embrace ethical relativism. One argument
is motivated by a desire to be tolerant of other cultures’ values and ways of life, and to
avoid the kind of cultural imperialism and ethnocentrism that has characterized so
much of European and North American history. Notice this, however: this motivation
for ethical relativism stems from the belief that cultural imperialism is wrong and that
respect for cultural differences is right. But if that is the case, then those who argue
in this manner are being inconsistent. They are simultaneously saying (1) that there
is no objective right or wrong in ethics, and (2) that cultural imperialism is objectively
wrong and respect for differences is objectively right. It is clear that something has
gone seriously wrong with this line of thought. Indeed, if one wants to defend the
belief that cultural imperialism is morally wrong, it seems that one is best served by
embracing ethical objectivism rather than by opposing it.10
Another argument that has led some to embrace ethical relativism is a general puz-
zlement about how ethical claims could possibly be objectively true. Many argue that,
unlike the claim that tables and chairs exist, or that water boils at 100 degrees Celsius,
moral claims are not subject to empirical verification. Instead, they say that moral claims
seem closer to judgments of taste or preferences. (For, surely, if someone says something
is wrong, they’d prefer it not to be done.) And it is quite reasonable to regard judgments
of taste as mere expressions or reports of personal preferences. Thus, one might wonder
how moral claims could be objectively true or false.
It is certainly true that judgments about right and wrong seem very different from
empirically verifiable judgments such as “the earth is not flat.” But it may be a mistake
to immediately conclude from this that moral judgments must be expressions or reports
of mere preferences or feelings. After all, certain propositions like “There is no greatest
number” may not be empirically verifiable, but that does not lead us to conclude that this
statement is not objectively true. Thus, it seems that there are ways for judgments to be
known to be true or false even if they are not empirically verifiable. Further still, it seems
far-fetched to say that moral judgments are similar to reports or expressions of feelings
or preferences. Statements like “Vanilla is better than chocolate” seem very different in
kind from statements like “Abortion is wrong.” For one thing, we tend to think that the
former statement needs no justification, while the latter statement requires defence. And
indeed, that might be, in part, the sense in which moral judgments are objective—they
require rational justification.

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 24   DEBATING HEALTH CARE ETHICS

NORMATIVE ETHICAL THEORY

A principal concern of normative ethics is its focus on the development and defence
of normative ethical theories, which include general moral principles (or approaches)
that can be used to determine such things as what acts are morally right or wrong,
what rules are morally justified and unjustified, and what character traits are virtu-
ous and vicious. While there is no consensus about which normative ethical theory
is correct, there are certain leading candidates that have been particularly influential.
The following sections present an explanation and preliminary critical examination of
each of these leading theories. We explain each theory and then present some of the
most important objections to it. Sometimes, possible replies to these objections are
suggested. A very important point to keep in mind is that this overview is intended
as an introduction to the topic of normative ethical theory. Its aim is to build your
critical understanding of normative ethical theories and to help you see their various
strengths and weaknesses, while at the same time providing you with some back-
ground information that can help inform your thinking about the cases in health care
ethics explored later in the text. Our aim is not to tell you what to think, nor is it to
pronounce final judgments on any ethical theory. In other words, our aim is to present
the beginnings of a conversation, not the final word.
In chapter 3, each author will present and defend his favoured approach to ethics.
This will give you an indication of how ethical theories continue to be developed and
defended. In subsequent chapters, as we take up particular issues in health care ethics,
you may find the approach of one author or another particularly helpful; however, you
may also find it helpful to appeal to some of the other ethical theories discussed below.

CLASSICAL ACT UTILITARIANISM

Perhaps the most influential normative ethical theory of the last 150 years is what is
sometimes referred to as classical act utilitarianism.11 Utilitarianism takes many forms,
but in its classical formulation, as articulated by Jeremy Bentham and John Stuart Mill,
it may be defined as the view that right actions, laws, and policies promote the greatest
net amount of pleasure, or the least net amount of pain, where everyone’s pleasures and
pains receive equal consideration.12 It is helpful to see that utilitarianism is composed of
three distinct ideas:

• Consequentialism: The right act is entirely determined by its consequences;

the right act promotes the most net good or the least net bad.13
• Hedonism: The sole intrinsic good is pleasure and the sole intrinsic bad is pain.
• Equal consideration: No one’s good is to be counted as more important than
anyone else’s.

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 Chapter 2  Philosophical Ethics: An Introduction  25

Putting these three ideas together we get, of course, utilitarianism. Right acts promote
the most net good (pleasure) and the least net bad (pain), where everyone’s pleasure and
pain is given equal consideration.
To better understand this theory, it will be helpful to make a few points about
each of these aspects of utilitarianism. Consequentialism is perhaps utilitarianism’s most
distinctive component. It is the idea that only consequences matter in the evaluation of
the rightness or wrongness of actions, and that the right act, in any given circumstance,
is the optimific act—the one that does the most net good, or the least net bad. Thus, for
instance, if one has to decide whether or not active euthanasia is morally right, the only
relevant issue is whether or not it will (all things considered) do more net good (or less
net bad) than any other alternative. If active euthanasia will in some case do more net
good (or less net bad) than any other alternative, then it is what ought to be done; how-
ever, if some alternative, say palliative care, would in some circumstance do more net
good than active euthanasia, then, in that situation, palliative care would be right and
active euthanasia would be wrong. So, in theory at least, this aspect of utilitarianism is
strikingly simple: consequences are the sole determinant of right action, and an act that
fails to produce the best net consequences is the wrong thing to do.
A second thing to note about the consequentialist aspect of utilitarianism is that it
is a situational ethic; that is, whether an act is right or wrong depends on the particular
situation. Unlike an ethical theory that claims, for instance, that active euthanasia is
always wrong, utilitarianism looks at the specific situation to determine whether the act
is required or forbidden. If, in a particular case, active euthanasia will do the most net
good, then in that case it is morally required. If, in another situation, active euthanasia
won’t do the most net good—say, because it will spread fear in the community, or be-
cause the person would have recovered—then in that case it is morally forbidden. Thus,
unlike supporters of some other ethical theories, the utilitarian holds that what is right
or wrong depends on the situation.
A third thing to note about utilitarianism, stemming largely from its acceptance
of consequentialism, is its radical implications. That is, it is a theory that frequently
challenges common-sense moral beliefs and tries to revise them—to make them more
rational and humane. Again, the case of active euthanasia will illustrate this point nicely.
A principal belief found in many cultures is that it is always wrong to intentionally kill
(innocent) human beings. For many, this seems to be a bedrock moral rule, and it seems
to imply that active euthanasia is always morally wrong since it involves the intentional
killing of an innocent human being. But utilitarianism invites us to consider why this
rule is so important.
Presumably, a major justification for this rule against killing innocent human be-
ings is that it promotes good consequences. By having such a rule, we are able to live,
and to live without fear of murder—and that promotes much pleasure and avoids much
pain for all of us. That is why the rule against killing innocents is a good rule; however,
the utilitarian then points out, there are (rare) situations where killing innocents may

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 26   DEBATING HEALTH CARE ETHICS

actually produce the best consequences—for instance, in cases where the person is
suffering terribly and has no hope for recovery, where he begs for death and is joined
in that plea by his family who can no longer stand to see him suffer. In such a case,
producing the most good may well require that the person be painlessly killed. If that
is so, the utilitarian will encourage us to revise our traditional moral beliefs about the
wrongness of killing, and to allow for killing innocents in some special circumstances.
Thus, it is fair to describe utilitarianism as a radical theory, insofar as it often chal-
lenges traditional moral beliefs.
Another ingredient of utilitarianism is its view of what is to count as a good out-
come. Classical utilitarians are hedonists: they view pleasure as the sole intrinsic good
(and pain as the sole intrinsic bad). Other things—like health, income, freedom, and
friends—can be good as a means insofar as they tend to lead to pleasure and to diminish
pain, but they are not good in themselves. These things are instrumentally good, while
pleasure is intrinsically good—it is valuable for its own sake. As hedonists are likely to
argue, people vary greatly in their sources of pleasure—some like dancing, others like
singing, others like reading, and so forth—but all people agree that what they want,
ultimately, is to avoid pain and to get pleasure.14 Further, people can explain why they
like to sing or to dance or to read—it gives them pleasure; but they cannot explain why
they want pleasure or want to avoid pain—they just do, since it is an ultimate end.15 For
these utilitarians, then, good consequences are understood as consequences that produce
more net pleasure than pain, and right acts produce the greatest net amount of pleasure
or the least net amount of pain for all concerned.16
Lastly, utilitarians believe that everyone’s good (pleasure) counts and that it counts
as much as everyone else’s: the well-being of men and women, whites and non-whites,
citizens and non-citizens, and so forth, is equally important. Thus, against a history of
moral exclusiveness, utilitarians embrace the idea of impartiality. In assessing the moral-
ity of actions, one is to count the effects of one’s actions on others as equally important as
the effects of one’s actions on oneself and on one’s loved ones. Thus, for example, accord-
ing to utilitarianism, it would be wrong to do an act that promoted a little bit of good
(pleasure) for oneself or for one’s friend if an alternative action would promote a greater
amount of good (pleasure) for someone else.17
Having said that utilitarians accept equal consideration, it is important to clarify
that equal consideration does not mean equal treatment. To see the distinction between
equal treatment and equal consideration, imagine an emergency room situation where a
triage nurse must decide who to treat first—here each person’s interests must be equally
considered, and the nurse should choose in such a way as to produce the most net good
or least net bad. This will likely result in someone who is not critically ill waiting longer
for care than someone else who is critically ill, since (typically) this will do the most
net good. Although the people in the emergency room are treated unequally (some are
waiting for care longer than others), the utilitarian requirement of equal consideration
is satisfied. What a utilitarian would object to is counting the net pleasures and pains of

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 Chapter 2  Philosophical Ethics: An Introduction  27

some as more important (more deserving of consideration) than the net pleasures and
pains of others; for example, if you were to view the pain of a family member as deserv-
ing greater attention than the pain of a stranger.
In conclusion, utilitarians claim that the right thing to do in any situation is to
promote the most net good or the least net bad. Good is defined as pleasure and bad
is defined as pain. And everyone’s pleasure and pain matters and matters equally.
Therefore, one is to do the action that would maximize net pleasure or minimize net
pain for all concerned.

Objections to Utilitarianism

Despite the attractiveness of this theory, many philosophers find utilitarianism to be un-
acceptable. Some reject utilitarianism because of its consequentialist approach to moral
problems; others reject the classical theory’s acceptance of hedonism; while still others
reject utilitarianism because of its insistence on strict impartiality.18 In what follows,
some important objections to each part of the theory are explained.

Against Consequentialism
Perhaps the most common, and powerful, objection to utilitarianism is the idea that it
is too simple. While it can plausibly be maintained that producing good consequences
and preventing bad consequences is one morally significant factor, it is hard to believe
that it is the only morally relevant consideration. Many believe, for instance, that the
moral rightness or wrongness of an act also depends on such things as whether or not
the act is truthful or deceitful, a case of promise keeping or promise breaking, a case of
violating someone’s rights or respecting those rights. For example, it is a widely shared
common-sense moral belief that it is at least sometimes wrong to violate an innocent
person’s rights, even if that will produce the best consequences.
To illustrate, suppose a person is dying and refuses to be an organ donor, even
though her organs are needed to save another person’s life. Suppose also that, after
much discussion, the nurse caring for the patient tells her to sign a form stating her
refusal to be an organ donor. In fact, though, the form is really an authorization for
organ donation. The patient signs the form, falsely believing it is protecting her wish
not to donate her organs. The patient then dies, the needed organs are harvested, and a
transplant takes place that saves the life of someone else who otherwise would have died.
Everything is done with great care, and no one ever finds out about the clever deceit. In
this case, the best consequences were produced—a person who would otherwise have
died is saved, and no one, not even the organ donor, suffers any pain as a result. Yet,
it seems quite clear to most of us that the nurse did the wrong thing in deceiving the
patient. If this is our reaction, then it looks as though utilitarianism sometimes gives the
intuitively unacceptable answer. Utilitarianism says the nurse did the right thing, but
common sense strongly suggests otherwise.19

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 28   DEBATING HEALTH CARE ETHICS

Another common criticism of utilitarianism’s reliance on consequentialism concerns

our frequent inability to know the long-term consequences of our actions. Utilitarianism
claims that the right act produces the most good, but, the critic urges, often we do not
know what act will produce the most good; therefore, utilitarianism often will not be
useful. Take, for instance, whether Canada should permit private health care to exist
alongside a public system.20 Some suggest that such a system will do more net good than
bad because it will help to alleviate delays in the public system thereby increasing net
well-being; others argue that a private system will just erode the public system and, thus,
not produce the most net good. The seemingly simple utilitarian idea that we should do
the act that will produce the greatest net good turns out to be a view that is strikingly
difficult to apply, given the complexities of the real world. Now, strictly speaking, this
objection does not show that utilitarianism is false, but it does show that the theory is
very difficult to apply in these sorts of complicated, real-life cases.

Against Hedonism
Another criticism of utilitarianism focuses not on its principle of right action (conse-
quentialism), but rather on its view of good results. As explained above, early utilitarians
tended to be hedonists. Hedonism is the view that the sole intrinsic good is pleasure and
the sole intrinsic bad is pain. Thus, the right thing to do according to these utilitarians
is the act that produces the most net pleasure or the least net pain. But many argue that
hedonism is a flawed theory of the good. This is because it seems that pleasure is not always
intrinsically good, and that some things are intrinsically good besides pleasure.
Pleasures that we may not want to count as intrinsically good and worth promot-
ing would presumably include pleasures obtained by violating the rights of others, or
pleasures that a virtuous person would not find to be good. Think of a peeping Tom who
gets pleasure from secretly spying on young boys in a locker room, or the pleasures that
a sadist might experience when watching a newscast about a group of people who died
in a tsunami. Arguably, we would not want to call these pleasures good, or claim that
the pleasures the peeping Tom and the sadist experience help to justify their actions.
Further, we might regard other things as intrinsically good besides pleasure. Autonomy,
important knowledge, beauty, creativity, and meaningful relationships often produce plea-
sure for an individual and for others, but even if they do not, we might want to say that a
life is still good for having these things. To see this, you might imagine two lives with equal
amounts of pleasure and pain: suppose the first life involves being lobotomized, and then
given a daily dose of medication that results in one feeling great pleasure and very little pain
throughout one’s day; and suppose the second life also involves great pleasure and very little
pain, though these pleasures come from a life of meaningful work, loving relationships,
and enjoyable travels. Hedonism would imply that these are equally good lives for the ones
that lead them, but surely the second life is the much more desirable life. But if that is right,
then—contrary to hedonism—pleasure cannot be the sole intrinsic good.

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 Chapter 2  Philosophical Ethics: An Introduction  29

To see that pleasure is not the only intrinsic good, it might help to consider a
thought experiment made famous by Robert Nozick.21 Consider the experience machine:
scientists have developed a machine that can give people the experience of anything they
desire. The way it works is that the patient lies down on a bed or sits in a chair and is
given a drug that immediately makes the patient forget that they are about to go into an
experience machine. Doctors then hook the patient’s brain up to a computer that has the
ability to simulate any experience or feeling the patient desires. If the patient wants to
be skiing, or going out for a romantic evening, or winning the lottery, or doing well on a
philosophy test, the machine lets the patient experience all these things. As a result, the
patient is pleased, maximally so. The machine can even cause the patient to experience
frustration, if later that will lead to super-intense pleasures.
Now, suppose a person could enter this machine for their entire life. (No need to
worry about the patient’s body—they could be kept alive indefinitely by inserting a
feeding tube.) Suppose, by hypothesis, that life in such a machine would be much more
pleasurable than the life any other person has ever lived. It would follow, according to
hedonism, that the person who lived their life in an experience machine was living the
best life ever. But, the critic argues, such a life is not best, and so hedonism must be false.
Although this life contains a great amount of pleasure, it is severely lacking in other
goods—for instance, it is a life full of false beliefs and inactivity, and utterly devoid of
meaningful relationships and accomplishments. While the experience machine thought
experiment does not reveal what is important in a good life, it does demonstrate that
a good life consists of more than merely having a lot of pleasurable experiences. Other
things are important, too. And if this is right, then traditional utilitarians, who are com-
mitted to the view that the right act produces the most good for all concerned, need to
revise their theory of what is to count as good. Hedonism, the idea that pleasure (and
the absence of pain) is the sole intrinsic good, seems false.

Problems with Equal Consideration

Finally, critics often reject utilitarianism because of two related factors: (1) it is unable
to recognize the importance of special relationships, and (2) it is too demanding. In
our daily life, we often put our own interests and the interests of our friends and family
ahead of the greater interests of strangers. For instance, often we choose to stay home
and read a book to our children, or to go out for dinner and a movie with our friends
or loved ones, or to help out a friend who is in need. Indeed, it seems that being a good
spouse, parent, sibling, or friend requires that we show special concern for those people
who stand in those relationships to us. But, if utilitarianism is correct, and we are sup-
posed to treat everyone’s good with equal concern, then it seems that it would be mor-
ally wrong to do these kinds of things. We could no longer justify helping a friend who
is in need simply because he is our friend; instead, we would have to do whichever act
promoted the most net good with everyone’s interests given equal weight.

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 30   DEBATING HEALTH CARE ETHICS

In addition to making it seemingly impossible to have special relationships, it

seems that utilitarianism is too demanding in another sense. Many of us enjoy things
like going to the movies, or to the theatre, or to concerts or sporting events. In addi-
tion, many of us hope to buy a nice car and a comfortable home, and to take the oc-
casional luxury vacation. But, if utilitarianism is correct, all of this would be seriously
immoral. Going to a concert, for instance, will likely produce a certain amount of
pleasure for you, but surely more good could be accomplished in the world if, instead,
you gave the money to UNICEF or some other worthy cause, and then donated your
time to volunteer at a local charity. Indeed, since going to concerts or out for din-
ner will never, or almost never, produce the most net good, it will always, or almost
always, be morally wrong to do these things. Generalizing this point, given the tre-
mendous amount of suffering in the world, it seems that it would be wrong according
to utilitarianism to acquire any luxury goods, or to take any fancy vacations, or even to
take the extra time to just hang out with friends and family, since these choices would
not maximize utility.
But such an implication strikes many people as absurd. They believe that morality
requires that you do not violate other people’s rights, so you should refrain from things
like stealing, lying, and doing acts of violence, and that sometimes you should help
others who are in need, but that you are not morally required always to treat everyone’s
interests as if they are as important as your own. To think otherwise is to make it impos-
sible for a person to lead a normal life. Thus, while an earlier objection to utilitarianism’s
commitment to consequentialism was that it requires us to do things that intuitively
seem to be wrong (like lie, violate rights, and break promises in order to promote the
greater good), this objection points to the concern that utilitarianism is too demanding.
It seems to require that we sacrifice too much of our own lives in order to satisfy some
of the unmet needs of others.

Utilitarian Responses

Faced with such objections, many are convinced that utilitarianism is hopelessly flawed,
and that a different normative ethical theory is needed. But some continue to defend utili-
tarianism. Confronted with these objections, the utilitarian has several replies available.
Most, although not all, contemporary utilitarians acknowledge that hedonism is
flawed. Instead, they appeal to a different theory of the good. Here is a brief indication of
what non-hedonistic utilitarianism may look like. Some may argue that what is ultimately
good is the satisfaction of people’s preferences, and so the right thing to do is to maximize
net preference satisfaction for all concerned.22 Others argue that what is good is the sat-
isfaction of “informed preferences”—preferences, for example, that one would have if one
were free of cognitive impairments and prejudices, and knew all relevant information—
and so the right thing to do is to maximize the net satisfaction of informed preferences
for all concerned.23 Still other utilitarians opt for a list of objective intrinsic goods—say,

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 Chapter 2  Philosophical Ethics: An Introduction  31

autonomy, knowledge, beauty, friendship, pleasure—and say that right acts best promote
these goods.24 What these views share is the perception that hedonism is a flawed account
of the good; instead, they opt for another account of good consequences.25
While utilitarians commonly abandon hedonism in the face of serious criticism,
their replies to the objections against consequentialism and to the doctrine of equal
consideration tend to be more varied.
One common utilitarian response is to say that many of the objections are based
on highly fanciful situations that would never occur in real life. When this is realized,
they argue, people do not find utilitarianism to be at odds with moral common sense.
For instance, in real life, violating people’s rights, as in the organ donor case, will not in
the long run have the best net consequences. The reason for this is that the nurse who
tricked the patient will likely get caught and will be punished. Further, the nurse’s act
will then cause great suffering to countless others who worry that their dying wishes will
not be respected. Further still, many will no longer offer to give their organs because
they will distrust the system. As a result, even more people will not get the organs they
need. Thus, despite initial appearances, utilitarianism would not support deceiving pa-
tients to obtain their organs.
Similarly, a utilitarian may argue that the critic exaggerates the objection that utili-
tarianism is too demanding. Utilitarianism may not, in fact, require that you give every
moment of your day to helping others, that you choose a career that is best for human-
ity, and that you never take a weekend off, since such a life would not in the end do the
most net good. Realistically, most people who tried to lead such a life would exhaust
themselves and crumble psychologically; as a result, in the end they would not be par-
ticularly useful to anyone and would themselves be unhappy. Instead, it might be argued
that the best way for most people to maximize the good is to choose a fulfilling career,
to foster meaningful relationships, to get enough sleep and take the occasional vacation,
and to take some time to help others (probably more than we customarily do). Thus, the
utilitarian would argue that utilitarianism is not at odds (or is not too much at odds) with
moral common sense and is quite compatible with leading a “normal” life, for that is the
best way for most of us to maximize good results in the world.
It is unclear, however, how persuasive these utilitarian responses are to the theory’s
critics. Perhaps the utilitarian is correct to point out that almost always the most good
will come from keeping promises, respecting rights, and being honest. But surely there
are some real-life cases where violating rights and the like are at odds with common-
sense morality and yet will do the most good. Thus, it seems somewhat of an exaggera-
tion to say that utilitarianism is never at odds with common-sense moral judgments.
Likewise, it seems highly doubtful that living a lifestyle of conventional North American
prosperity will produce the greatest net good. Many, for instance, think nothing of buy-
ing an expensive new car or a new wardrobe or going to see a professional sports match,
but it is extremely unlikely that such acts would do as much net good as volunteering
at a homeless shelter, donating money to help people in impoverished countries, and so

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 32   DEBATING HEALTH CARE ETHICS

forth. An honest assessment of utilitarianism therefore suggests that it is sometimes at

odds with common-sense moral attitudes—it does allow for some rights violations, and
it is very demanding.
In the light of this, other utilitarians acknowledge that their theory is sometimes
at odds with common-sense moral beliefs, although perhaps not as often as critics sug-
gest. They admit, for instance, that utilitarianism sometimes requires rights violations,
lying, promise breaking, and so forth, to produce the best result. Further, these utilitar-
ians acknowledge that utilitarianism may sometimes prove to be extremely demanding,
prohibiting the accumulation of luxuries and the privileging of family interests over the
general good;26 however, they argue that these implications are not flaws in the theory.
Rather, they insist that, on reflection, their theory is preferable to common-sense moral
beliefs. After all, common-sense morality has been terribly mistaken in the past. For
instance, the keeping of slaves and the live vivisection of non-human animals were, for
centuries, widely viewed as acceptable. So, we should not be too anxious if utilitarianism
finds fault in some of our current moral beliefs. Rather than trust our prevailing mores,
these utilitarians suggest that it is more reasonable to believe that what is morally right
is to act in ways that maximize the good or minimize the bad for all concerned.27

RULE UTILITARIANISM

One further utilitarian reply to these criticisms should be mentioned. Utilitarians may
concede that their theory is at odds with common-sense moral beliefs—such as respect
for moral rights—and that it should be modified to make it more acceptable. One such
modification is known as rule utilitarianism.28 Rule utilitarianism says:

• The right thing to do is to follow the best rule.

• The best rule is defined as the one that, if consistently followed, will produce
the greatest amount of net good (well-being) for all concerned.

Thus, if given a choice between following a rule that says “respect people’s rights” or
“violate people’s rights,” it is clear that the former rule if consistently followed will have
better consequences than consistently following the rule to violate people’s rights. Thus,
the former rule is best, and according to rule utilitarianism, the right thing to do would
be to follow that rule and always respect people’s rights. Thus, unlike the act utilitarian,
who, for example, would seem to support lying to the organ donor to save a life, the rule
utilitarian would presumably view such a deception as morally wrong, since the rule, if
always followed, would have very bad consequences. Put differently, while traditional
(act) utilitarianism requires that one perform the optimific action in any particular situ-
ation, the rule utilitarian requires one to follow the optimific rule, even if doing so on
that particular occasion won’t produce the best consequences.

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 Chapter 2  Philosophical Ethics: An Introduction  33

In response to the objection that utilitarianism is too demanding, rule utilitarians

may concede that insisting on a rule that says to always produce the best consequences
would likely be counterproductive, resulting in burnout or leading people to routinely ig-
nore moral rules. Instead, they might reasonably suggest that the set of rules that would
actually produce the most good, given the way human beings are, is one that is consider-
ably less demanding—insisting on respecting people’s rights, encouraging people to help
others, and allowing people (to a degree) to show special concern for family and friends.
Still, it is quite likely that rule utilitarianism would require considerable sacrifices on the
part of individuals, for it seems likely that a rule that allowed people to acquire luxury
goods and to take luxury vacations, instead of helping others who suffered from lack of
food, shelter, and basic medical care, would not be the best rule from the point of view
of maximizing the good. Instead, a far better rule might be one that required people
to forgo their luxuries when doing so could greatly help the needy. Given this, it is fair
to say that rule utilitarianism will still be rather demanding. It is certainly arguable,
however, whether this should count as a reason against the theory, for it is unclear why
a normative ethical theory should not be demanding.
Despite these arguments in its favour, rule utilitarianism faces a serious problem.
Rule utilitarianism may still not be able to give a coherent response to the objection that
focuses on people’s rights. Here the problem becomes apparent when we ask the rule
utilitarian how to determine what constitutes the best rule. Above, we considered only
two possibilities: adopt a rule of violating people’s rights or adopt a rule of respecting
people’s rights. Given these two options, it was only reasonable to think that the rule of
respecting people’s rights would lead to the best results and so is the best rule. But there
is clearly a third rule we could adopt: respect people’s rights, unless violating them is
necessary to do a greater good. Now it seems that this third rule, if consistently followed,
would have the best consequences. It would respect people’s rights when that led to the
greatest good, and it would violate people’s rights (only) when that led to the greatest
good—it is the rule, in short, that will always lead to the greatest good, if it is consis-
tently followed. Thus, the critic argues, this rule is the one that ought to be adopted
according to rule utilitarianism.
But, of course, this rule is really just another way of stating traditional act utilitari-
anism! On reflection, then, the critic argues that rule utilitarianism, if treated seriously,
merely collapses into act utilitarianism. The rule that will lead to the best consequences
if consistently followed is simply the rule that says to do whatever is necessary to produce
the greatest good for all concerned—but that, as we just claimed, is just another way of
stating act utilitarianism.29
In response to this objection, rule utilitarians may argue that the rules that one is
to choose between must be more general than a “rule” that merely says “follow the rule
unless it is better not to do so.” For, they may argue, a “rule” that is so easily disregarded
would be no rule at all. Instead, rules must be more absolute, more exceptionless, than
the objection supposes; however, if rule utilitarians insist that one ought to follow some

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rule like “never lie” even when a lie would produce better net results, then it seems that
the position suffers from “irrational rule worship.” Why should one agree to act in ac-
cordance with some optimal rule if one could occasionally break that rule and produce
even more good? To say that such rule breaking would be wrong even if it did more good
seems irrational.30

NON-CONSEQUENTIALISM AND DEONTOLOGY

Unlike utilitarians, many philosophers think that the rightness of an act is not solely
determined by the goodness of its consequences. Such philosophers are called non-
consequentialists. Some non-consequentialists are deontologists. Deontologists see
morality as a matter of doing one’s (moral) duty. 31 Many non-consequentialists (and
deontologists) think that the consequences of an act are one determinant of the rightness
of an action, but not the only determinant. Others think that the consequences of an act
are simply irrelevant to the rightness or wrongness of an act. The latter view is famously
held by the deontologist Immanuel Kant.32

KANT’S ETHICS

Kant argues that we are to evaluate the morality of an action by focusing on the agent’s
intentions rather than the results of the actions. More precisely, it is helpful to think of
Kant’s ethical theory as falling into two parts. First, Kant develops a view of when ac-
tions have “moral worth.” Second, he defends a set of principles that determine whether
one’s acts are morally permissible (or morally wrong).

The Idea of Moral Worth

Kant observed that people act on the basis of two different sorts of reasons, which he
called hypothetical imperatives and categorical imperatives. Both types of impera-
tives can be expressed in terms of “oughts.” Hypothetical imperatives state what one
ought to do given the presence of a particular desire or goal. Categorical imperatives
state what one ought to do regardless of one’s desires. Hypothetical imperatives are com-
monplace—for instance, “If I am thirsty, I ought to drink” or “If you want to do well in
this course, you ought to read the book carefully, attend class meetings, and study hard.”
There is nothing special or mysterious about hypothetical imperatives. As rational be-
ings, we rely on them all the time. That is, we set goals for ourselves and then determine
the most effective ways to accomplish those goals.
As rational beings, however, we are also capable of following categorical impera-
tives. Categorical imperatives take the following form: “Do x” or “Don’t do x,” where

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 Chapter 2  Philosophical Ethics: An Introduction  35

the idea is that you must do or not do some act, regardless of your desires, goals, or other
inclinations. Examples of such imperatives would be “Tell the truth,” “Keep one’s prom-
ises,” “Don’t steal,” “Don’t cheat,” “Don’t harm others,” and so forth. Kant calls these
categorical imperatives the imperatives (commands) of morality. These imperatives are said
to apply to all of us, and we ought to follow them regardless of whether they further our
desires. Thus, as a rational being, you are capable of acting according to hypothetical and
categorical imperatives; that is, you can act in a way that furthers the goals you happen
to have, and you can act according to commands (moral duties) that are not related to
any particular goals that you may have.
Now, there is nothing necessarily wrong with acting on the basis of a hypothetical
imperative, but Kant maintains that acts based on a hypothetical imperative have no
moral worth; however, if one does an act out of respect for morality—out of respect for
a categorical imperative—then one is said to have a good will, and so one’s act has moral
worth. Thus, the person who gives to charity because she wants to get a tax deduction
may be behaving rationally and presumably is doing the right thing, but nevertheless her
act has no moral worth. Alternatively, if a person donates to a charity because it is the right
thing to do, then not only is she doing the right act, but her act also has moral worth. For
Kant, then, in order to have a good will, and for one’s act to have moral worth, one must
do the right act for the right reasons: namely, out of respect for morality. By contrast, if a
person does an act not out of respect for morality, but because it furthers one of her own
desires, then she may be doing nothing wrong, but her act has no moral worth.
The idea of moral worth is an extremely tricky one and gives rise to many questions.
For instance, if a person donates to charity simply because she feels sorry for the needy
and sympathizes with their plight, does her act have moral worth? Kant’s answer is, sur-
prisingly, “no.” Such an act is still based on a hypothetical imperative—If I feel sorry for
someone, I ought to give that person charity—and while such an act is certainly not morally
wrong, it has no moral worth.
What about someone who gives to charity for several reasons—she wants a tax
deduction, she feels sympathy for the poor, and she believes it is the right thing to do?
The answer here is unclear. Some believe that Kant would say that such an act still has
moral worth as long as respect for moral duty was a sufficient condition to motivate the
person to do the charitable act. Others read Kant differently. They believe that such an
act would not have moral worth because it was “polluted” by the presence of hypotheti-
cal imperatives. While it must be admitted that Kant is far from clear on this point, the
former interpretation is the one we will adopt, since it seems to be both a reasonable
interpretation of Kant’s writings and it is the more charitable interpretation.33

The Categorical Imperative

By this point, you may wonder where these categorical imperatives come from. In other
words, how does one determine what is and what is not a categorical imperative (a rule

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of morality)? This brings us to the second part of Kant’s theory. Kant is famous for giv-
ing what he calls the categorical imperative, a test for determining whether a particular
action is morally permissible or morally wrong. Indeed, Kant gives several different
versions of the categorical imperative test. Two of his most influential versions will be
examined here.

The Universal Law Formulation of the Categorical Imperative

One test that Kant gives to determine whether or not an action violates a moral rule is
known as the universal law version of the categorical imperative. It says, “Act only on
those maxims that you can, at the same time, will as a universal law.” In order to understand
this principle, it is necessary to define its key terms. Specifically, we will need to clarify
the terms maxim, universal law, and will. By the term maxim, Kant means the principle
behind one’s action. Thus, in the case of the forged organ donation, the nurse’s action
is to give the patient a pen and paper, but the nurse’s maxim is to act on the principle
“When needed, I will deceive my patient into donating her organs.”
A universal law is a principle that states that everyone follows this maxim all the time,
as if it were a law of nature. Thus, in the organ donor example, the universal law would be
“When needed, everyone will always deceive patients into donating their organs.”
Finally, before we can understand the test, we need to clarify the concept of being
able to will. By this, Kant means two different things. 34 First, one is sometimes not
able to will a maxim as a universal law because the practice would be self-defeating or
self-contradictory if it were practiced by everyone all the time. Kant calls this a con-
tradiction in conception, and he maintains that if the maxim of one’s actions yields a
contradiction in conception when it is universalized, then the action violates a perfect
duty and is therefore strictly forbidden. A perfect duty is one that must never be violated.
At other times, Kant admits that one can conceive of a maxim as a universal law, but still
not be able to will it because a contradiction will arise between the universal law and
what a person will (later) want—Kant called this a contradiction in will. Kant claims
that to act on principles that can be conceived but not consistently willed as universal
law is to violate an imperfect duty—a duty that one must sometimes follow, but which
need not be followed all the time.
So, if we look at the organ transplant case, we will need to know if we can will
the universal law “When needed, everyone will deceive patients into donating their organs.”
Now it seems that the answer is that such a universal law would yield a contradiction
in conception, since if everyone, when necessary, deceived their patients into donating
their organs, then such deception would be self-defeating—patients would simply not
be deceived by such tricks. (In other words, it makes no sense to say everyone will tell
a lie in situation x, since a lie would no longer work if everyone lied in that situation!)
Thus, because the nurse’s maxim cannot be conceived as a universal law, the universal

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 Chapter 2  Philosophical Ethics: An Introduction  37

law test tells us that it is morally wrong for the nurse to lie to the patient. It violates
a perfect duty.
Let’s now tweak the example slightly and consider what the universal law test says
about the patient who chose not to give up her organs. Let’s suppose her maxim to be as
follows: “I will keep my organs even when I have no use for them and others need them.” We
then universalize this maxim: “No one will ever give up their organs to others even when
others need them for survival and they are no longer needed by the donor.” Obviously, there
could be a world where no one donated organs to anyone—such a world has existed for
most of human history—but could one always will this as a universal law? Apparently
not, since one day you may be in need of an organ donor (or some other kind of bene-
factor), and then a contradiction will arise between the universal law of never donating
organs (or more generally never helping those in need) and what you now want—an
organ (or some other necessary good). Because there is a contradiction in will, it follows,
in Kant’s view, that there is an imperfect duty to donate one’s organs (or at least to help
others). What this entails is not exactly clear. Perhaps it means that all of us ought to
donate some of our organs, although we are not obligated to donate all of our organs.
More likely, it just means that we ought to help the needy at least sometimes, and not
ignore their vital needs entirely.
By now it should be apparent that Kant’s universal law test is extremely sophisti-
cated and rather difficult to understand. It is sophisticated because this apparently simple
statement—to act only on maxims that can be willed as universal law—purports to tell one
not only whether one’s act is morally permissible or a violation of moral duty, but also
what kind of duty one is transgressing by one’s act. This is truly an impressive accom-
plishment, especially if the test works! But, before we turn to possible difficulties with
the test, it may be helpful to explain the basic insight that is informing Kant’s reasoning
when he proposes this test. It seems to be the common-sense idea that when one acts im-
morally, one does something that one does not (or cannot) want everyone to do. The mugger,
who mugs, does not want everyone to mug. The shoplifter, who shoplifts, does not want
everyone to shoplift. The promise breaker does not want everyone to break promises.
Instead, the wrongdoer seeks to make an exception for himself—he wants to act in one
way, while he wants others to act differently. But Kant’s profound insight is that morality
needs to be applied universally, or consistently: one should act only on principles that
one can consistently will others to follow.
In turn, this point leads to another one of Kant’s central claims: to act immorally is to
somehow act in a manner that is contradictory. Kant’s claim here is not that an act is im-
moral because it leads to bad consequences—he is no utilitarian. Rather, his claim is that
to act immorally is to behave irrationally. The reason for this is that, in acting immorally,
one acts on maxims that cannot rationally (i.e., consistently) stand as universal laws.
Lastly, to simplify the universal law test, it may be helpful to think of it as a three-
step procedure.

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 38   DEBATING HEALTH CARE ETHICS

Step 1: Identify the maxim (principle) behind the action.

Step 2: Universalize the maxim, i.e., transform the maxim into a universal law (everyone
acts on that principle, all the time).
Step 3: Consider whether the universalized maxim can be consistently willed.
a. If it can be consistently willed, then the act is morally permissible.
b. If it cannot be consistently willed, then determine why it cannot be consis-
tently willed. If the maxim cannot even be consistently thought of as existing as
a universal law, then the act violates a perfect duty and is morally forbidden.
But if the universalized maxim can be consistently thought of as existing as a
universal law but it cannot be consistently willed, then the act violates an imper-
fect duty—one that should not be ignored entirely but does not always have to
be practiced.

Before we move on to another key Kantian principle, it may be helpful to illustrate

one more time how the universal law test can be applied. This time, let’s take one of
Kant’s own examples—a case of knowingly making someone a false promise. 35 Kant
imagines that someone who is in need of money considers asking someone for a loan,
even though he knows he will not be able to repay it. Here the maxim of the act is (Step
1) “When I need money, I will ask to borrow some money, promising to repay the loan,
even though I know I won’t be able to do so.” Next, we need to universalize this maxim
as (Step 2) “Whenever anyone needs money, that person will ask to borrow some money,
promising to repay the loan, even though the borrower knows that they won’t be able
to do so.” Kant then points out (Step 3) that such a universal law cannot be consistently
conceived, and necessarily contradicts itself, for no one could make promises in a world
where they were never kept. Thus, the universal law test tells us that knowingly making
a false promise violates a perfect duty, and it is always morally wrong to do.

The Humanity Version of the Categorical Imperative

Kant also developed another equally influential and important principle to test whether
one is acting on maxims that are morally permissible. This principle, known as the
humanity version of the categorical imperative, states that one must treat humanity,
whether in one’s own person or that of another, always as an end and never merely as a means.
Once again, in order to understand Kant’s test, certain key terms need to be clarified.
Specifically, the terms humanity, end, and means need to be explicated. In order to do
this, it is helpful to recall the earlier notion of categorical and hypothetical imperatives.
Kant thought that rational beings are special insofar as they can follow hypothetical
and categorical imperatives. That is, rational beings can freely set goals for themselves
and then determine the various means to accomplish those goals (hypothetical impera-
tives). Rational beings can also recognize and choose to follow (or not to follow) moral
rules (categorical imperatives). In this sense, rational beings differ from what Kant calls

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 Chapter 2  Philosophical Ethics: An Introduction  39

things. A thing can be defined as “not a rational being”: things are not capable of follow-
ing hypothetical and categorical imperatives. Thus, according to Kant’s definition, you
are a rational being, but a chair, a cactus, and a cat are things (remember, rational beings
are capable of following moral rules—cats are not, Kant assumes).
When it comes to rational beings, it should be noted that Kant says that people dif-
fer greatly in their chosen goals. You may choose to exercise regularly, read for fun, and
pursue a career in journalism; someone else may prefer playing and performing music.
But what all rational beings value is their rational nature—that is, their ability to make
their own decisions and set their own goals. (Even if you want others to make all your
decisions, you still want to make the decision to let others decide for you, and it is the
same if you are suicidal—you still value the ability to decide to commit suicide!) Thus,
Kant thought that while we may differ greatly in the ends in life that we choose, we, as
rational beings, all necessarily value the ability to make our own decisions.
With this explained, we can return to the key terms in Kant’s humanity test. By
humanity, Kant means “rational being.” By end, Kant means “rational being,” and by mere
means he means “thing.” Thus we can rewrite the humanity test as follows:

Act so you treat humanity every rational being, whether in your own person or that of
another, always as an end a rational being, and never merely as a means thing.

This means you must always treat beings who are capable of making their own decisions
as beings who are capable of making their own decisions, and not as if they were things
that are incapable of making their own decisions.
Some examples will help to illustrate Kant’s humanity test. In the case of the de-
ceived organ donor, the nurse certainly does not respect the patient’s ability to decide
what should be done with her organs; instead, the nurse disrespects this ability by ma-
nipulating her into signing the consent form. Or consider the case of rape. A rapist
clearly treats his victim as a mere thing—that is, as someone who is incapable of making
her own decisions. Instead, he forces his will upon another rational being, disregarding
her ability to make her own decisions, and thereby dehumanizing her. Finally, consider
the importance that contemporary ethicists place on obtaining informed consent prior
to a medical intervention. This nicely illustrates the Kantian idea that people are rational
beings who deserve to be respected by being given the information (or at least access to
the information) that lets them make their own decisions.
At the heart of the humanity test is the conviction that to behave immorally is
to dehumanize. To behave immorally is to treat someone who is deserving of respect
merely as though they were a thing to be used.
Moreover, like the universal law test, the humanity test is able to distinguish be-
tween acts that violate perfect duties and acts that violate imperfect duties. Treating
someone as a means only (as a thing) is strictly forbidden, a violation of a perfect duty.
For instance, to lie or steal is to treat someone as a means only, and so these acts are

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violations of perfect duties. Failing fully to respect a person as a rational being is a viola-
tion of an imperfect duty. For instance, suppose my car battery is dead and I ask you
for a boost, and you refuse to help me out even though you are able to do so. In such a
case your refusal to help does not treat me as a means only—I am still free to ask some-
one else for a boost or to call a tow truck—but your refusal to help me does not fully
respect me as a rational being, either. For, if you fully respected me as a rational being,
you would have assisted me in my (morally permissible) goal of getting my car started.
In general, according to Kant, there is an imperfect duty to help others, a duty that he
thinks follows from the imperative to respect rational beings.
Now, interestingly, despite the very different appearances of the universal law test
and the humanity test, Kant claims that they are equivalent—that is, they will always give
the same answer about the moral permissibility or impermissibility of a given action. It is
also fair to say that both tests have proven to be enormously influential—guiding people’s
thinking both within and beyond professional philosophical circles. Thus, it is quite com-
mon to hear the basic insight behind the humanity test. People sometimes say, “He used
me as a means!” Or someone may condemn an act on the grounds that “the ends don’t
justify the means.” Likewise, echoes of the universal law test are found in such common
expressions as “Don’t keep things that don’t belong to you, since you would not want oth-
ers to do that if they found something of yours.” Similarly, someone might complain to a
litterer, “How would you like it if everyone did that?” These expressions give testimony to
the currency of what are, at least in part, Kantian notions about the nature of morality.36

Objections to the Universal Law and Humanity Tests

Despite the power of Kant’s ideas, both his universal law test and his humanity test face
serious challenges. One problem with the universal law test concerns the difficulty of
identifying the principle behind one’s actions (one’s maxim). Kant’s test instructs us first
to identify the principle (or maxim) behind a person’s action and then see if it can be
willed as a universal law. But the problem is that the same act can be described by more
than one principle (or maxim). Consider the act of giving the patient an organ donor
consent form when the patient believes it is a form authorizing the refusal to donate her
organs. This act can be described as falling under the maxim, “I will deceive the patient,”
but it also could be described as falling under the maxim, “I will procure an organ for
a dying patient from someone who will no longer need her organs.” Now, it seems that
the former description of the action cannot be universalized, but the latter description
of the action can be universalized. If so, this would mean that the same act can be both
morally wrong and morally permissible depending on how its maxim is described. But
this is highly problematic, for it now seems that those who are careful to describe their
acts according to the “right” maxims can do more or less whatever they want.
Here is another problem with the universal law test. It seems too strict. There may
well be morally permissible actions that the test views as wrong. For example, imagine a

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 Chapter 2  Philosophical Ethics: An Introduction  41

couple who decides to remain childless so that they can spend more time on important
personal projects. (We needn’t suppose they are selfish; we can suppose that one of their
important projects is helping poor children around the world.) Now, there does not appear
to be anything morally wrong with the couple’s decision to remain childless, but the uni-
versal law test appears to claim otherwise. Here the couple’s maxim is “We will not have
children, so that we may spend more time on important personal projects.” Next, as a uni-
versal law, the maxim says, “No one will have children, so that everyone may spend time
on important personal projects.” But, clearly, this universal law is self-contradictory. For
if no one ever had children, then no one would ever exist, and if no one ever existed then
the decision not to have children could not be made. Thus, the universal law test appears
to tell us that it would be wrong for people to remain childless so as to be able to pursue
important life projects. But contrary to this test, such a decision seems not to be wrong at
all. The universal law test, therefore, sometimes gives the wrong answers; specifically, it
views some morally permissible acts as morally impermissible.37
Finally, the universal law test seems to run into trouble because it appears to judge
certain actions as morally permissible when they are clearly morally wrong. As an example,
Russ Shafer-Landau gives the case of a lawn fanatic who (after issuing a warning) will
shoot anyone dead who chooses to walk on his lawn. Clearly, such behaviour is morally
wrong! But it may pass the universal law test, for the fanatic may very well be willing to
accept it as a universal law that anyone who (after being warned) chooses to walk on other
people’s lawns will be shot. Here again, it seems like the universal law test gives the wrong
answers; this time because it views morally impermissible acts as morally permissible.38
The humanity test also faces a number of problems. First, it does not seem to be
a principle that covers all of our moral obligations. Specifically, it tells us how we are
to treat rational beings, but it is silent on the question of our moral obligations to non-
rational beings. Indeed, the test suggests that non-rational beings are merely things that
can be used for any purpose that a rational being chooses, provided our actions do not
dehumanize a fellow rational being. But that seems highly problematic. Most people
think that it is morally wrong, for instance, to torture a non-human animal, and that
this wrong consists primarily in the fact that one is needlessly harming the animal. But a
Kantian cannot do justice to this moral intuition. A Kantian could say that it is wrong to
torture a non-human animal if that animal belongs to (or is the pet of) another rational
being, because that would disrespect the property rights of that other rational being.
For instance, if someone lights your puppy on fire for fun, a Kantian could say that
this is wrong because your rights are violated, but a Kantian cannot recognize that any-
thing wrong is done to the dog. Likewise, a Kantian will be hard pressed to satisfactorily
explain why it is wrong for you to torture your own dog. Certainly, the main reason it is
wrong to torture your dog is that it hurts your dog, but a Kantian cannot recognize this
as a morally relevant reason, since he views dogs merely as things. Indeed, a Kantian
would have to say that it is not wrong for you to torture your dog, or that if it is wrong it
is only because it is likely to corrupt your character and make you more likely to injure

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a rational being in the future. But this seems to miss the principal wrong involved in
harming the animal—namely, that it is wrong to make an animal suffer and it is wrong
to act against its basic interests for no good reason.
It also worth observing that it is not only non-human animals that come out poorly
on Kant’s humanity test: the test also has problems explaining why we have direct moral
obligations to non-rational humans, such as those who are significantly mentally chal-
lenged. The humanity test is (only) concerned with protecting the dignity of rational
beings; it is the fact that we can freely choose goals for ourselves, and freely choose to
follow moral rules, that marks rational beings out as possessors of dignity and deserv-
ing of respect. What, then, does it say of our obligations to non-rational human beings?
Surely, we think they warrant respect and special concern, and we do not accept the idea
that they are mere things to be used for our purposes. It is extremely difficult, however,
to see how the humanity test can do justice to these important moral beliefs.
Lastly, one other problem with the humanity test is worth considering. The claim
that one may never treat a rational being merely as a means seems problematic. For
sometimes, the only way to prevent serious harm to rational beings is by treating a ra-
tional being merely as a means. To see this, consider Kant’s own infamous case of the
inquiring murderer.39 Suppose a person comes knocking on your door, looking for your
friend, because he wants to kill her. The inquiring murderer asks you where your friend
is hiding. Your friend is hiding in your house, and you have to decide what you should
tell the inquiring murderer. If you lie, you will be treating a rational being—the inquir-
ing murderer—merely as a means. If you tell him the truth, he will be free to make his
own decisions, and you will have treated him as an end. Now, the humanity test says
that you must always treat rational beings as an end and never merely as a means. Thus, it
seems clear that in Kant’s view you must not lie to the inquiring murderer, even if that is
the only way to save your friend. (Indeed, Kant explicitly states that lying to the inquir-
ing murderer would be wrong in this case.) But surely that is mistaken.
There seems to be something irrational in Kant’s insistence that we never treat ra-
tional beings merely as means. For if rational beings possess dignity and ought to be
respected, then (the critic argues) it seems to follow that one should be prepared to
treat rational beings as mere means if that is necessary to prevent even worse violations
of rational nature. Thus, in the case of the inquiring murderer, it seems permissible,
even required, to lie to the inquiring murderer, since that protects a rational being (the
friend) from being destroyed, while, comparatively speaking, it only slightly devalues the
rational nature of the inquiring murderer (he has been deceived, but his rational nature
has not been destroyed). And surely, if rational nature is so important, we should prefer
lesser violations to greater violations of rational nature.
Thus, like other moral theories, Kant’s ethics faces numerous significant challenges.
And yet, Kant’s basic ideas—that we should act only on principles that could be applied
to everyone alike and that we ought to treat rational beings with respect—have unde-
niable appeal. Beyond that, in the field of health care ethics, Kant’s ethical insights,

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 Chapter 2  Philosophical Ethics: An Introduction  43

particularly the emphasis on respect for individual autonomy and the dignity of persons,
continue to make their mark. It is therefore not surprising that many philosophers con-
tinue to defend at least part of Kant’s ethical theory.40

PLURALISTIC DEONTOLOGY

Thus far, we have seen that two very different ethical theories, utilitarianism and
Kant’s deontological view, possess impressive insights into the nature of morality.
Most people recognize the importance of promoting good outcomes and avoiding
bad outcomes, that we should act only on principles that we are willing to apply to
everyone in similar circumstances, and that we should not go around treating people
as mere things. Nevertheless, it has also been argued that these two theories are in a
sense too simple. Against the utilitarian, it seems that there is more to an act’s being
right than whether or not it promotes the best consequences—factors like promise-
keeping, justice, and obligations based on special relationships seem important, too.
Against the Kantian, it seems that moral rules need to allow for some flexibility. The
objections discussed above suggest that our duties to keep promises, not lie to others,
and never to harm the innocent are not absolute. In some cases, at least where much
more good could come from lying, for example, it seems morally permissible or even
morally required to lie. Thus, we would not want to say that people who told lies in
order to hide Jews in their homes during the German occupation of Holland did
something morally forbidden.
Many therefore argue that we need a moral theory that recognizes a variety of moral
duties and also recognizes that these duties can sometimes be overridden by other duties.
W. D. Ross attempts to develop just such a theory.41 Ross is a pluralist; he does not think
there is a single basic moral rule that explains all of our moral obligations. Instead, Ross
argues that there are many general moral rules that generate the many different duties
we have. Thus, for example, we have duties to tell the truth, to keep our promises, to help
others, and so on. He calls these prima facie duties. The usual translation of the Latin
phrase prima facie is “on the face of it,” but in this context, prima facie duties should be
understood as conditional duties. A conditional or prima facie duty can then be contrasted
with duties that remain for us when all things are considered.
To illustrate, we have a prima facie duty to tell the truth. We also have a prima facie
duty to prevent harm to others. Now, suppose you find yourself in a situation where
these duties conflict, such as in the case of the inquiring murderer. In this situation, you
can prevent the murder of your friend only by telling a lie to the would-be murderer.
It seems clear, as we suggested above, that the moral reasons in favour of saving your
friend are much weightier than the moral reasons that support telling the truth. If this
is correct, then Ross would claim that the prima facie duty to tell the truth is overrid-
den in this case by another prima facie duty—namely, the duty to prevent harm. In this

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situation, your duty, all things considered (that is, the duty you should act on), is to
prevent serious harm to your friend.
An important feature of prima facie duties is that they are not absolute; they can be
outweighed or overridden in various circumstances by other duties. When a prima facie
duty is outweighed by another duty, the prima facie duty does not disappear. You still
have a moral reason to tell the truth to the person who wants to murder your friend,
for example, but there are weightier reasons in favour of protecting your friend. And
since prima facie duties do not disappear in situations when they are outweighed, Ross
suggests that we should feel a certain level of regret (or at least discomfort) for having
violated a prima facie duty.
At this point, you might be asking yourself two questions: First, how does one know
that something is a prima facie duty? Second, how does one know which duty is more
pressing or weightier in a particular situation? That is, how do we know what our duties
are, all things considered? Ross gives two very different answers to these questions. His
response to the first question is this. Prima facie duties are known through what Ross
calls rational intuition. Just as one “sees” that 2 + 3 = 5, or that triangles have three
sides, one just “sees” the truth of such general principles as “repay debts,” “keep prom-
ises,” “tell the truth,” “help others,” “don’t harm others,” and so on. The suggestion here
is that our prima facie duties, like basic principles of mathematics and geometry, are self-
evident. That is to say, they require no proof, and are not the result of rational argument
or inference, but instead can be seen to be correct just by reflection.
When it comes to how we determine our duties, all things considered, Ross’s answer
is very different. They are not self-evident, so there is none of the certainty that one finds
when apprehending the general (i.e., prima facie) principles of duty. Instead, all one can
do is to study the situation as carefully as one can, paying special attention to which
prima facie obligations are at play, and then make a judgment about which duty is most
pressing in that situation. Here, one can follow general rules, like the rule that normally
the duty not to harm is stronger than the duty to help, or that the duty to keep promises
is usually stronger than the duty to give to a charity. But these rules are only general
guidelines and may not apply to every case. In the end, Ross says, in judging what duty
ought to be followed, one takes a moral risk.
Thus, for instance, consider a case where you need to decide whether to keep your
appointments at work or to stay home to care for your sick child. Here it is clear that you
have a duty to keep your appointments and a duty to care for your child. Let’s suppose
that these are the only relevant duties at play. You might try to resolve the conflict by
finding someone else to care for your child or by rescheduling your appointments. But if
that is not possible, then you must try to determine which duty is the more important in
this situation, and then follow that duty. The duty that is more pressing—say it is staying
home with your child—then becomes the duty, all things considered, in that situation.
Of course, Ross notes, your judgment about which duty is the more pressing could turn
out to be wrong—this is what he sees as the moral risk. You may have misunderstood

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 Chapter 2  Philosophical Ethics: An Introduction  45

the factors at play, or you may have misjudged the relative strengths of these factors. For
example, if you decided to keep your appointments rather than to stay home with your
sick child, and if it turned out that the meetings were not that important and your child
was sicker than you thought, then you may well have judged incorrectly about which
duty was more important in that situation.
We can now understand why Ross’s theory is often referred to as both intuition-
ism and pluralistic deontology. It is called “intuitionism” because Ross claims that the
general principles of duty are self-evidently true (known through rational intuition).
And his view is known as “pluralistic deontology” because he recognizes that morality is
a matter of balancing many competing duties.

Difficulties with Ross’s Theory

It is fair to say that many philosophers find Ross’s pluralistic moral theory quite attrac-
tive, since it avoids the single-mindedness of utilitarianism (rightness is solely a function
of producing the best consequences) and the absolutism of Kant’s ethics (there are no
exceptions at all to the duty never to treat others merely as means). Nevertheless, critics
of Ross’s theory rightly raise several important objections.
First, many doubt that there can be self-evident moral principles that are analogous
to the basic principles of mathematics and geometry. This is in part because it seems
inconceivable that someone who has the concept of triangles can deny that triangles
have three sides, but it does not seem inconceivable that someone can have the concept
of the duty of beneficence, and yet deny that one has a prima facie duty to be beneficent.42
In response, Ross may claim that our prima facie duties are analogous to basic prin-
ciples of mathematics and geometry only in the sense that we do not (or need not) infer
these truths from other, more basic, principles. Rather, he may contend that both prima
facie duties and basic truths of mathematics and geometry can be seen to be correct by
anyone of sufficient mental maturity. Someone who cannot see that there is a reason to
repay a debt is morally defective, just as someone who cannot see that the longest side of
a triangle is opposite its largest angle is geometrically impaired. It is unclear, however,
whether this response will satisfy Ross’s critics, since at least some of his critics regard a
faculty of moral intuition as something completely mysterious.43
Another objection to Ross’s theory is that it gives too little guidance when it comes
to determining our duties, all things considered. An important point of a normative
ethical theory, one might argue, is to be action-guiding, that is, to give people a clear
mechanism for determining how one ought to act. But Ross’s theory is lacking at this
point. He says, in effect, that one should identify the various prima facie duties in a
particular situation and then do the best one can to decide which is most important. But
many will find this to be too little guidance. Not only that, but such a procedure could
simply lead people to embrace their pre-existing prejudices about right conduct. One
could well imagine, for instance, two people following Ross’s advice and coming to

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opposite conclusions. There is a prima facie duty to tell the truth and a prima facie duty
not to harm others. When faced with a choice of telling someone the truth or harming
that person, one person might conclude that telling the truth is more important here,
while another might conclude that not harming that person is more pressing. On Ross’s
theory, we would have no way of telling whose view is correct. If his ethical theory can-
not help us see which course of conduct is morally right in a particular situation, then it
is not a very useful theory.
In response to this objection, Ross argues that any attempt to provide a formula to
solve moral problems will be overly simplistic and will ultimately result in giving wrong
answers to some moral problems. Instead, we have to accept that morality is messy, and
that all we can do is be sensitive to the situations we find ourselves in, be aware of the
prima facie duties involved, and then make the best judgment we can about which duty
is most pressing in that circumstance.44
Before concluding our overview of pluralistic deontology, we should note that a
version of this general approach, called principlism, has been very influential in bio-
medical ethics. Tom Beauchamp and James Childress noted that rival ethical theories
disagree on the ultimate basis of morality, but they can agree that certain principles can
be used to guide ethical deliberations. These principles include respect for autonomy,
benevolence, and justice.45 So, when thinking about some ethical question in health
care, we should consider factors such as: will autonomy be respected or violated, will the
people affected by the decision be benefitted or harmed, and, finally, will there be any
violations of justice in the allocation of health care? In easy cases, the actions performed
will be consistent with respect for autonomy, beneficence, and justice. In more difficult
cases, these principles may conflict, as when the most beneficent act will be one that
conflicts with patient autonomy, or when beneficence in terms of providing a health care
treatment (say a needed organ) may conflict with justice (e.g., someone else’s prior claim
to that organ). And, like Ross, according to this principlist approach, there will be no
formal mechanism for prioritizing these principles when they conflict; rather, sensitivity
to the particulars of the case, and judgment about which principle is most pressing, will
need to guide decision-making. Principlism differs from Ross’s ethics mainly in that
Ross accepts a greater number of principles than do principlists like Beauchamp and
Childress, and principlists avoid intuition as a justification for their favoured principles.
Instead, the whole question of justification is left open.

SOCIAL CONTRACT THEORY

Social contract theory suggests yet another way of understanding the nature of moral-
ity and of determining which acts and policies are morally right and wrong, and why.
Social contractarians differ in the details of their theory, but they share the fundamental
belief that justified moral rules are the ones that rational individuals would agree to for

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 Chapter 2  Philosophical Ethics: An Introduction  47

their own benefit. For example, contractarians would argue that a rule against murder is
justified because, if rational, we would each agree to this rule, since each of us benefits
from it. In what follows, two versions of social contract theory are presented: the classic
statement of the theory, defended by Thomas Hobbes, and a contemporary version of the
theory, defended by John Rawls.

HOBBES’S SOCIAL CONTRACT THEORY

A classic defence of social contract theory is given by the 17th-century British philoso-
pher Thomas Hobbes.46 Hobbes, as a contractarian, thinks that moral rules are those
that rational individuals agree to for their mutual benefit. To make his case, and to ex-
plain the nature of morality, Hobbes begins by asking what life would be like in a state
of nature, that is, a time and place where there is no organized society and there are no
recognized social rules, where everyone is free to do as they please.
What would life be like in a state of nature? You might think it would be a time
of great peace, with no wars or conflicts over property, where people live as free, inde-
pendent individuals in harmony with nature. But this is not Hobbes’s view. Instead, he
suggests that life in a state of nature would be dreadful, a state of war of everyone against
everyone else, where people would live in constant fear of being assaulted and killed, and
where life would be, as Hobbes put it, “solitary, poor, nasty, brutish, and short.”47
You may suspect that Hobbes thinks that people are naturally evil, and that is why
he believes the state of nature would be a state of war. But this is not the case. Instead,
he makes the more modest assumption that people are primarily self-interested—typi-
cally caring more for their own well-being than the well-being of others—and they
want to live and to have a better life. Next, he assumes that people need the same basic
things: food, shelter, water, and so forth. Unfortunately, in a state of nature there is
scarcity of the things needed. Food and shelter, for instance, are relatively scarce, given
that they are needed by everyone, and yet there is no society to produce them. Finally,
he assumes that people in the state of nature are roughly equal in power. That is, while
some may be stronger or more rational than others, none is so strong or so rational
that they can dominate for long over everyone else. Since people desire to live and lack
the things needed for survival, they are going to be driven to fight for what they need.
The result will be a war of everyone against everyone, where people live in continual
fear of violent death.
Because life in the state of nature is so dreadful, and because people desire to live
and to have a better life, they will eventually be driven to propose various “articles of
peace.” These articles of peace are moral rules—limitations on one’s freedom—that each
person accepts for their own benefit. For instance, it would be rational for everyone to
agree to seek peace so far as others are willing to seek peace, to keep agreements with
each other provided others are willing to do so, to not harm others provided others are

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willing not to harm them, and perhaps to even come to each other’s aid, provided that
too is agreed upon by others.48 Thus, we can see that the rules of morality emerge as a
tool that allows people to escape the misery of the state of nature and to obtain the ben-
efits of social living. In short, moral rules are justified because they are in each person’s
self-interest: they are the rules that would be agreed upon by everyone so that all can live
together and have a better life.
Now, it is important to realize that these rules of morality are supposed to be justi-
fied even if the state of nature did not actually exist, and even if they were not the prod-
uct of an actual agreement. The social contractarian’s point is that we all benefit from
social living and by avoiding a state of nature, and the moral rules are justified because
they are the rules needed for us to live together and to avoid this state of nature.
With this in mind, we can see why certain rules—those not needed for social liv-
ing—would not be supported by social contract theory. For instance, on the one hand,
rules prohibiting prostitution, same-sex relationships, or voluntary euthanasia would
likely not be supported according to Hobbes’s theory, since we could allow for such be-
haviour without threatening to fall back into a state of nature. On the other hand, rules
that protect life and property do seem justified because they are needed for social living
and to keep us out of the state of nature.
Hobbes’s social contract theory has several attractive features. It does a good job
of explaining and justifying some moral rules: justified moral rules are limited to those
that everyone will agree to so as to enable people to live together in society. It also can
explain why some of our most important moral rules are justified: rules against murder
and violence, and rules that require keeping one’s promises and telling the truth are all
justified. They all appear to be rules needed for social living. Further, it can explain con-
vincingly why practices like racial and sexual discrimination are morally wrong: people
in the state of nature would certainly not agree to rules that said that they will get fewer
rights and privileges than others.

Objections to Hobbes’s Social Contract Theory

Nevertheless, Hobbes’s social contract theory faces numerous objections. First, it

seems unable to satisfactorily explain all of morality. For instance, we recognize ob-
ligations not to be cruel to non-human animals, to respect and try to promote the
interests of those humans who are born seriously mentally and physically disabled, and
to provide for distant future generations. Yet, social contract theory has a difficult time
explaining the existence of such obligations. For, surely, self-interested humans could
come together to form a society that benefits themselves without recognizing any of
these moral obligations.
This objection seems to reveal a deeper problem with social contract theory. It views
moral obligations as being justified because it is in each individual’s interest to agree
to them. But morality seems to be the kind of thing that it is not always in a person’s

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 Chapter 2  Philosophical Ethics: An Introduction  49

interest to agree to: one might not benefit from living in a society that recognizes a duty
not to torture animals or a duty not to be callous to those born with mental disabilities.
Nevertheless, it seems clear that one has a duty to not do these things.
Further, it seems that social contract theory gets things wrong when it views mo-
rality as the product of agreement. For this implies that if we were in a state of nature,
where there were no moral agreements, then nothing would be moral or immoral, just
or unjust. Indeed, Hobbes admits this point when he writes of the state of nature that
“the notions of right and wrong, justice and injustice, have there no place.”49 But that
seems difficult to believe. Most would think that rape and torture would be wrong
even in a state of nature (perhaps because it treats people merely as means or causes
needless suffering), and kindness to children or sharing one’s food with the hun-
gry would be virtuous even if there were no social agreements (perhaps because they
manifest respect for others or promote well-being). Yet social contract theory cannot
explain these judgments.
Faced with these objections, social contract theorists have a number of responses.
One line of response could go like this. First, social contract theorists may remind us
that their theory is able to account for many of our moral obligations in a clear and con-
vincing manner. As a result, they may argue that we should be confident in the truth
of their ethical theory. With this confidence in mind, they may then simply bite the
bullet and deny the common-sense moral claims that animals are directly protected by
morality, and that there can be morality (or immorality) prior to agreements. As far as
non-rational humans are concerned, social contract theorists might suggest that they
would, in fact, be protected directly by a contract between rational individuals. The
reason for this is that rational individuals may realize that it is in their best interest to ac-
cept a rule protecting vulnerable, non-rational humans, since one day they may become
vulnerable and non-rational. We will leave it for you to judge whether these responses
are adequate, and to think about what other responses contractarians might have to the
aforementioned challenges.

RAWLS’S SOCIAL CONTRACT THEORY: JUSTICE AS FAIRNESS

At any rate, even if some philosophers find Hobbes’s social contract theory to be prob-
lematic, many accept some version of contract theory. For many, the guiding idea that
moral principles are justified if they would be agreed upon by everyone is a compelling
one. Indeed, in recent years, numerous philosophers have tried to refine and defend
certain aspects of social contract theory. The most influential modern social contract
theorist is John Rawls.50 Rawls’s theory, called justice as fairness, is not intended as a
comprehensive ethical theory, but rather as a theory of justice, aimed only at the ques-
tion of how the major social institutions ought to be regulated.51 Rather than beginning
with the conception of a state of nature, Rawls begins with what he calls the original

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position. The original position is a hypothetical situation from which people are to
choose the principles of justice to regulate the major social institutions. Like Hobbes,
Rawls assumes that the people who are choosing the principles of justice are rational and
primarily self-interested, and want to have a good life for themselves; however, unlike
Hobbes, Rawls imagines that the people in the original position are behind a veil of
ignorance. That is, he imagines them as not knowing any particular facts about them-
selves: for instance, they do not know their race, gender, class, natural abilities, religious
convictions, specific values, goals in life, and so forth.
The purpose of the veil of ignorance is twofold. First, ignorance of one’s personal
situation will facilitate agreement between people in the original position. If one is self-
interested and knows one is from a wealthy family, one will choose principles that favour
the wealthy, while those from impoverished backgrounds will favour principles that ben-
efit the poor. Atheists will insist on principles that are beneficial to atheists, while strongly
religious persons will seek principles advantageous to their particular religion, and so on.
In short, if self-interested people know their personal situations and values, it will be very
difficult, if not impossible, to reach unanimous agreement on principles of justice.
Second, and more importantly, the point of the veil of ignorance is to ensure fairness
in the choice of principles of justice. Since people in the original position lack all knowl-
edge of their personal circumstances and attributes, they cannot tailor the principles of
justice to benefit their own particular circumstances and views of the good life. Instead,
people will be forced to choose fairly, or in an unbiased manner. Hence, we get the name
of Rawls’s theory—justice as fairness.
As parties in the original position do not know their particular conception of the
good life nor have any particular information about themselves, Rawls believes that
they will be extremely cautious in the choice of principles of justice. They will not, for
instance, choose principles of justice that favour one race over another, since they may
be in the racial group that is forced to form part of the underclass. Likewise, they will
not choose a society that is radically inegalitarian when it comes to social opportunities
and the distribution of wealth, since they do not know which economic group they will
occupy. Thus, parties in the original position will adopt a choice strategy that Rawls
calls maximin: Choose in such a way so that you will be doing maximally well if you should
turn out to be in the minimum (or worst off) position. With this in mind, Rawls believes
that rational, self-interested people behind a veil of ignorance will choose the following
principles of justice:

1. The principle of maximal equal basic liberties: Each person is to have maxi-
mal equal basic liberties.
2a. The principle of fair equality of opportunity: Each person should have a mean-
ingful opportunity to attain employment, education, and positions of power.
2b. The difference principle: There should be social and economic equality, unless
inequality benefits everyone, especially those in the worst-off group.

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 Chapter 2  Philosophical Ethics: An Introduction  51

According to Rawls, these principles are to be ranked in order of importance, with

one being unable to relinquish, for instance, some basic liberties for the sake of greater
wealth or greater opportunities.
Thus, Rawls believes that his two principles of justice are the result of a rational
choice from an original position that is set up so as to be fair. Because the original posi-
tion is fair, and because people would choose Rawls’s two principles from the original
position, it follows, Rawls argues, that the two principles of justice are themselves fair.
Rawls’s theory of justice has been enormously influential in the areas of social and
political philosophy. Feminists, for instance, have used Rawls’s ideas to argue for jus-
tice within the family.52 (Would people from behind a veil of ignorance agree that one
sex would do most of the housework and child-rearing? Would they agree that those
who stay home with the children so their partners can go out and work would receive
no direct financial compensation for their decision?) Likewise, Rawls’s ideas have been
used to argue for justice in the distribution of health care. Not knowing in the original
position if they were going to be healthy or unhealthy, or if they would be able to af-
ford or not afford needed medical care, would lead people to make sure that everyone
had access to health care, regardless of ability to pay. A system that allowed only the
rich to get access to health care would almost certainly not be chosen by people in the
original position, because of the risks people would run if it turned out that they were
not healthy and not rich.53

Difficulties with Rawls’s Social Contract Theory

Rawls’s theory is widely recognized for its contribution to political and social philosophy.
Nevertheless, it has its detractors. For one thing, as Rawls himself acknowledges, his
theory of justice will not apply to all moral issues—rather, it is meant only to regulate
major social institutions. What one owes to friends, what it is to lead a virtuous life, and
how one ought to treat non-human animals are among the moral questions beyond the
scope of his theory. (Of course, this is not really an objection to Rawls’s theory, since he
never intended his view to be comprehensive. The point, rather, is to note a limitation of
the scope of his theory.)
Moreover, many have argued that Rawls’s characterization of the original position
is problematic. One concern is that while the original position is meant to be character-
ized as a fair situation from which one is to choose principles of justice, it is not a fair
choice situation. For example, some claim that Rawls’s characterization of the original
position is biased against certain religious groups. Rawls assumes that people in the
original position do not know whether they’re religious. He also assumes that people in
the original position want more primary social goods (liberty and rights, opportuni-
ties, income and wealth) rather than less. Rawls’s motivation for these constraints on
the principles of justice, as we have mentioned, is primarily to ensure fairness and a
lack of bias. But the religious critic of Rawls’s theory will say that these assumptions

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are actually biased against ultra-religious individuals and communities—the Amish or

ultra-Orthodox Jews, for example. These individuals do not view their religion and its
teachings as biasing conditions; rather, they view their religion and its teachings as the
source of truth. Further, these religious groups likely do not value the so-called primary
social goods of liberties, opportunities, and income and wealth. Instead, what they may
value is obedience to their religion and to their traditions, and the right to be left alone.
And they may well view liberties, opportunities, and income and wealth as either not
primary social goods or as positively harmful societal options.
Another objection to Rawls’s theory concerns his claim that parties in the original
position will choose the difference principle (which promotes social and economic equal-
ity) to regulate social and economic issues. Rawls argues that parties in the original
position will choose the difference principle because they will want to guard against
the possibility of being in an intolerable situation should they find themselves to be in
the worst-off economic group; however, one could agree with Rawls that those in the
original position will want to avoid intolerable outcomes, and yet deny that they would
choose the difference principle to distribute income and wealth in society. Instead, in
addition to a principle of maximal equal basic liberty and a principle of fair equality of
opportunity, one might choose a principle that guaranteed that those in the worst-off
group did tolerably well. In other words, people in the original position might accept
a principle that allowed for significant economic inequality provided that those in the
worst-off group have their basic needs met and have the meaningful opportunity to
advance to a higher social and economic class.54 Such a principle would allow people
to prosper greatly economically and socially, should they be lucky to be born with the
requisite natural skills and fortunate social circumstances; it would reward those who
were hard-working (and fortunate), enabling them to have a way to move from one class
to another; and it would allow for protections should one find oneself in the worst-off
group. Thus, it is at least unclear why the difference principle should be preferred to this
less egalitarian principle of justice.
People on the political Left may also argue that Rawls’s difference principle would
not be chosen from behind a veil of ignorance; however, their argument would be that
the difference principle is not sufficiently egalitarian. For the difference principle allows
for some economic inequality—some people are allowed to have more income and wealth
than others, provided that it maximally benefits those in the worst-off group. Thus, the
difference principle is compatible with the formation of economic classes (though, it is
likely that the degree of economic inequality would be much less than in most—prob-
ably all—industrial countries today). But the critic on the Left argues that people in the
original position would not choose a principle that, by allowing the formation of eco-
nomic classes, would under-represent the interests of the poor in forming the political
leadership and setting the political agenda. Instead, in order to safeguard their political
voice and other basic liberties, provided everyone’s basic needs can be met, it might be

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 Chapter 2  Philosophical Ethics: An Introduction  53

most rational for parties in the original position to prefer a system that required social
and economic equality. Such a society may not be as wealthy as a society regulated by
the difference principle, but it would be a more just society, since it would allow for more
effective realization of people’s basic liberties.
Further, many think that the difference principle is to be rejected because it is un-
fair. The concern is that it requires that the state assist people in the worst-off economic
group regardless of why they are in that group. According to the difference principle, a
person who is in the worst-off economic group because of illness or some other unfor-
tunate circumstance has no greater claim to economic assistance than someone who is
in the worst-off group because of laziness or choice. And this seems patently unfair. It
is unfair to tax the hard work of some to assist those who are in the worst-off economic
group because of choice, yet this is precisely what the difference principle requires.
Something like this unfairness criticism of Rawls’s theory can also be raised
against attempts to apply his theory to questions in health care. Is it right for the veil
of ignorance to exclude knowledge of whether or not a person takes care of herself, or
whether she is reckless with her health? If so, does that not penalize those who take
great efforts to eat healthfully, exercise regularly, drink moderately, and refrain from
tobacco use? And does it not reward people who make poor health choices? If that is
the case, then one might rightly wonder if such an approach truly is a fair approach to
questions of just health care.
Lastly, a concern with Rawls’s theory is that it does not clearly settle problems of
social justice, since it is sometimes unclear what the parties in the original position would
choose. For instance, would parties in the original position opt for a single-payer health
care system that covered everyone equally, or would they favour a two-tier system—one
that gave basic coverage to everyone, but also allowed the rich to purchase private health
care to buy more exotic medical treatments? Would parties in the original position support
research into the development of cures for extremely rare diseases, or would they favour
an emphasis on preventing illness and developing treatments for more common diseases?
Thus, it seems that Rawls’s theory faces numerous problems. This is not to suggest
that it cannot deal with these problems, or that a modified contractarian position could
not do better. These matters are complex and debates continue. It is fair to say that
Rawls’s theory is justly famous, for it gives us a fascinating way to think about just social
institutions. The idea of evaluating social institutions from behind a veil of ignorance has
widespread (if not universal) appeal, and it is an approach that has been adopted by many
philosophers, even if they do not fully accept Rawls’s principles of justice. Furthermore,
Rawls and others have argued that even if the original position/contract argument is
rejected, other reasons can be marshalled in support of his principles—reasons that can
appeal to religious minorities and non-religious groups alike.55 Even if Rawls’s theory
does not get things exactly right, it may get many things right, and, like all good philo-
sophical theories, it points others in promising directions.

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ARISTOTLE’S VIRTUE THEORY

The ethical theories we have explored thus far have focused on identifying criteria for
morally right and wrong actions or on identifying just and unjust principles. Virtue eth-
ics is commonly taken to represent a fundamentally different approach to ethics. Rather
than focusing on right and wrong action or justified or unjustified principles, virtue
ethics is said to focus on moral character. While this distinction is somewhat mislead-
ing—the consequentialist and deontological theories explored above are concerned with
moral character, and virtue ethicists are interested in right and wrong action—it does
seem to capture an important difference between virtue ethics and these other normative
theories. Consider a case of telling the truth. The utilitarian would say this is right (if
it is right) because it produced the best consequences. The Kantian would say it is right
because it is in accordance with the injunction to treat others always as ends, and so on.
The virtue ethicist will say it is right because it is a manifestation of the virtue honesty; it
is the kind of thing an honest person would do.
The most influential virtue theorist is Aristotle.56 According to Aristotle, the best
life for a human being is a virtuous life—a life in which one exercises the virtues. A
virtue is a character trait that disposes one to act and feel in a way that is appropriate.
Thus, for instance, a person who possesses the virtue of compassion acts compassionately
when circumstances call for it, takes pleasure in acting this way, and feels badly for oth-
ers’ misfortunes. (One does not have the virtue of compassion if one does the right act
but feels nothing or feels pained while doing it.)
Aristotle adds that virtues are positive character traits, because they are necessary
for the supreme good—eudaimonia. The term eudaimonia can be roughly translated as
“flourishing” or “happiness.” The suggestion, then, is that possession of the virtues is nec-
essary for leading a flourishing or happy life as a human being. Aristotle recognizes that
human beings are rational, social animals. In order to live successfully as rational, social
animals, certain character traits are needed. For instance, in order to get along with oth-
ers, one needs to be honest and trustworthy. These traits will benefit you in your life,
since they facilitate co-operation with others. Likewise, a human being faces challenges
in life and so will need courage to overcome these challenges. This will be true not only of
people like soldiers, firefighters, and police officers, but of all people, since all people face
challenges that require courage to overcome. Industriousness, understanding, self-control,
beneficence, generosity, perseverance, and loyalty are virtues since these too seem to be
important character traits to possess if one is to live well over a lifetime.
For the virtue theorist, then, the focus is not on formulating principles of right
action (or rules) and then acting according to those principles. Instead, the focus is
on developing a virtuous character. One becomes virtuous by doing virtuous acts, and
by learning over time to take pleasure in those acts. We begin to acquire the virtues,
Aristotle suggests, in much the same way that we acquire special skills like playing a
musical instrument or a sport. Consider two contemporary examples: learning to play

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 Chapter 2  Philosophical Ethics: An Introduction  55

guitar or tennis well takes much practice and proper training. Similarly, learning to be
virtuous (courageous, honest, and so forth) requires practice doing virtuous acts and
being properly educated in the virtues; however, unlike some special skill (like playing
the guitar well), merely doing the right actions does not mean that one has the moral
virtues. One also must have the appropriate feelings when doing virtuous actions. For
example, the virtuous person not only acts generously, but also enjoys acting generously.
According to Aristotle, part of understanding the virtues, and learning how to
become virtuous, consists in recognizing that the virtues exist as a mean between two
extremes—one of excess and the other of deficiency. This idea is known as the doctrine
of the mean. For an explanation, consider the virtue of courage. This virtue is the mean
between the extremes of cowardice (the deficiency) and rashness (the excess). A coward
fails to stand up and fight the battles that ought to be fought. The person who is rash
rushes to fight (physically, verbally, or emotionally) when fighting is not wise (as when
one cannot win, or when one could win more easily by being diplomatic). The coura-
geous person, by contrast, fights at the right time and in the right way. Another example
is honesty. This virtue is the mean between the deficiency of being dishonest and the ex-
cess of being brutally honest. The dishonest person will conceal the truth when it ought
to be told, while the blunt person will state the truth when it should not be told or in a
way that is inappropriate for the situation. The honest person, however, will be honest
in the right way and at the right time, conveying what needs to be said but in a manner
that is appropriately tactful. (Think about issues like telling a patient she has cancer. It is
usually thought that one needs to be honest here, where this means communicating the
truth, but in a sensitive and caring manner.)
That the virtues are characterized as means between two extremes is significant for
several reasons. First, it helps people identify what the virtues are. Second, it can help
one in becoming virtuous. For Aristotle points out that each of us has certain tendencies
to go to one extreme or another, and that we are therefore more likely to hit the mark of
acting virtuously if we aim at the opposite extreme. Excessively shy people, for instance,
should know that they tend toward being shy, and so should aim at being excessively
friendly and outgoing. In this way, they are more likely to overcome their shyness and
develop the virtue of sociality.57 Finally, the doctrine of the mean is an interesting idea
because it explains why it is difficult to be virtuous: a given virtue is always “surrounded”
by specific vices, so it can be quite easy to slip into one of the vices, as opposed to hitting
the mark of being virtuous.

Objections to Virtue Theory

There is much to recommend virtue theory. It is unclear, however, whether virtue theory
is a comprehensive doctrine. Ethics concerns itself with more than matters of character;
there are also questions, for instance, about how to design just institutions. What would
be a fair tax code? How much tax money should go to public schools and how much to

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health care? How should governments allocate health care dollars? These are all impor-
tant ethical questions insofar as they greatly influence people’s well-being, autonomy,
and opportunities; however, it is unclear whether virtue theory can contribute to these
debates. Perhaps the virtue theorist could say, when it comes to issues like allocating
health care dollars or structuring our tax code, that we should do what a virtuous person
would do—but the worry is that this admonition is too vague to be helpful.
On a related point, it is often unclear how useful virtue theory can actually be when
it comes to issues involving tough ethical choices for which we need answers.58 For in-
stance, there are many cases where it seems that different virtues recommend different
courses of action. For instance, would a virtuous person who has young children get a
divorce if she is unhappy in her marriage? Loyalty, compassion, and concern for her
children may speak against divorce, but courage, authenticity, and honesty might speak
in favour of divorce. The virtue theorist tells us to do what a virtuous person would do,
or to follow the virtues, but this seems unhelpful in a case where different virtues seem
to push in different directions. Indeed, the same virtue seemingly can point in opposite
directions. In the case of the unhappy woman, courage may speak in favour of staying
and trying to make the marriage better, but courage may say to leave and try to make
a fresh start on her own. Thus, the instruction to be “courageous” appears unhelpful.
In response to these objections, the virtue theorist can plausibly say that hard cases
are hard cases, and we should not expect an ethical theory to make hard choices easy.
(Recall that Ross had a similar thing to say to similar objections to his theory.) Indeed,
Aristotle famously, and some may say wisely, writes that we should not expect more
precision from a subject than the subject allows.59 Perhaps, then, we can expect precise
answers to problems in mathematics, but we cannot always expect neat answers to moral
questions. Nevertheless, it does seem fair to worry that an ethical theory loses some of
its appeal if the theory is too murky and too frequently lacking in guidance. And this is
the worry that many have with virtue theory.
Alternatively, the virtue theorist could try to overcome the murkiness objection by
appealing to a decision procedure to decide what to do in cases of conflict. For instance,
suppose a person asks you a question, and the truthful answer to that question would
hurt that person’s feelings. A virtue theorist could say that we have a conflict between
honesty and compassion, and if more good comes out of being compassionate than be-
ing honest, then a virtuous person would opt for compassion. But then, notice that the
virtue theorist appears to be resolving ethical problems by ultimately appealing to their
consequences. And thus, the worry is that virtue theory just collapses into a kind of con-
sequentialism. Alternatively, if the virtue theorist says it is more important to be honest
than compassionate, since a virtuous person would not be disrespectful of others, and
to deceive the person would be disrespectful, then it appears that the virtue theorist has
collapsed the view into something very much like Kantianism.
Thus, it seems that a real challenge faces the virtue theorist. Either the virtue theo-
rist’s view is frequently murky and unhelpful, or else it can give clear guidance, but only

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 Chapter 2  Philosophical Ethics: An Introduction  57

by resorting to a theory of right action. If it is frequently murky and unhelpful, then ul-
timately virtue theory is not a useful procedure for resolving ethical issues. Alternatively,
if it gives clear guidance about how to prioritize or interpret the virtues, then it risks
disappearing as a distinctive ethical position—that is, it threatens to collapse into con-
sequentialism, Kantianism, or some other principle of right action.
Of course, virtue theorists today are trying to work out answers to these and other
challenges to their view. We have already suggested one response—that it is a mistake to
look for precise answers to complex moral problems. Also, virtue theorists could perhaps
deal with the objection that their theory has little to say about moral problems that do
not clearly involve issues of moral character by giving up the attempt to present their
theory as the solution to all moral issues. Just as Rawls limited the scope of his theory to
questions of social justice, virtue theorists may want to limit their theory’s scope to ques-
tions of moral character and individual action. At any rate, many believe that virtue the-
ory is particularly well suited to deal with a wide variety of ethical issues in health care,
since so often these issues involve questions of character. Important ethical issues, such
as the virtues of the physician or nurse, the appropriate professional-patient relationship,
and compassionate care for the dying are just a few of many possible examples.60

FEMINIST ETHICS

Arguably, feminism is not just one ethical theory but many distinct approaches. These
approaches are, however, united by the view that women have been, and continue to be,
oppressed. They seek to understand the nature of the oppression and to determine how
best to overcome it. As Hilde Lindemann explains, feminism is “about power. Specifically,
it is about the social pattern, widespread across cultures and history, that distributes power
asymmetrically to favor men over women.”61 For example, in Western medicine, we have
the historically gendered relationship between doctors (largely men) and nurses (largely
women). In many religions, there are “men who are supposed to occupy positions of reli-
gious authority and women are supposed to run the church suppers.”62 In education, there
are university professors and day care workers, where the prestige and economic rewards
are unequal, and where the positions of privilege are male-dominated and the positions of
subservience female-dominated. So, feminism is concerned with power—power of men
over women—but it is also concerned with other sorts of power relations, such as race,
class, and ethnicity. As Susan Sherwin explains, “feminist ethics is characterized by its
commitment to the feminist agenda of eliminating the subordination of women—and
other oppressed persons—in all of its manifestations.”63
Some philosophers embrace one of the standard ethical theories discussed previously
in this chapter and use it to explain and critique oppression. For instance, utilitarians have
pointed to the great amount of needless suffering caused by patriarchy. Kantians can point
to how many traditional practices (such as sexual violence and harassment and unequal

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pay for equal work) could not be consistently willed as universal laws, and fail to respect
women’s and other oppressed people’s rational nature. Social contract theorists have used
the idea of the veil of ignorance to uncover how society needs to be reorganized to protect
the interests of all women, including work within the family. Virtue theorists can point to
how the mistreatment of women is incompatible with being a virtuous person.64
Yet, many feminist philosophers are highly skeptical of traditional ethical approach-
es, suggesting that they are incomplete or even inherently flawed. Lindemann, for in-
stance, criticizes traditional ethical approaches as incomplete: “their neglect of gender
and other factors that determine who has power over whom means that those of us who
want to think clearly and carefully about ethics have got our work cut out for us. We
have to get a better understanding of the consequences for ethics of taking seriously the
moral claims and perspectives of people who don’t occupy positions of social privilege.”65
Sherwin goes even further than Lindemann and claims the leading ethical theories need
to be rejected; in her words, they are “not only inadequate, but also morally wrong, be-
cause they promote behavior and relationships that are morally reprehensible.”66
What is clear is that feminism is a rich and diverse movement, with distinct ap-
proaches within it. In what follows, we will give a basic introduction to some of its
main ideas, as well as an overview of two types of feminist ethics: the ethics of care and
status-oriented feminism.

THE ETHICS OF CARE

In 1982, psychologist Carol Gilligan began to question the accepted psychological the-
ory of moral development. The accepted view, developed by Gilligan’s colleague and for-
mer professor Lawrence Kohlberg, claimed that moral development progressed through
six stages, beginning with strict obedience to established rules (stage 1), then to seeing
moral reasoning as a matter of understanding and maintaining relationships and each
person’s point of view within those relationships (stage 3), to an appeal to abstract moral
principles and norms of justice (stages 5 and 6). Gilligan, in her research, discovered that
many women scored lower than many men when using Kohlberg’s scale, with women
more often landing at level 3, and men at levels 5 and 6. She noted that women tended to
emphasize the specific details of the cases before them and instead of appealing to gen-
eral moral principles to solve moral problems, they would try to understand each person’s
point of view, seek compromise, emphasize values like empathy and care, and try to do
what they could to preserve existing relationships. But Gilligan did not conclude from
this that women tended to be less morally developed than men; rather she questioned
the impartiality of Kohlberg’s theory of moral development. In her book A Different
Voice, she argued that there are different sorts of moral reasoning—what she called an
ethic of principle and an ethic of care—and that neither form of moral reasoning is more
developed than the other.67

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 Chapter 2  Philosophical Ethics: An Introduction  59

Impressed by Gilligan’s theory of moral development, some philosophers developed

a distinctive approach to morality known as the ethics of care. The ethics of care begins
with the observation that there are different kinds of moral knowledge. There is moral
knowledge that comes from the articulation and application of abstract principles, as
evidenced by such theories as utilitarianism, Kantianism, and contractarianism. But
there is also a kind of moral knowledge that comes from attending to the relationships
one finds oneself in. Sensing and interpreting the needs and interests of self and others,
and learning how to appropriately respond to those needs and interests, one might argue,
is every bit as important as being able to universalize maxims. Yet, this second way of
moral knowing and acting has largely been ignored in the male-dominated history of
moral philosophy.68 The ethics of care aims at rectifying this omission.
Rather than using principles to arrive at the solutions to moral problems, one needs
to adopt a perspective of caring. Here the focus is on maintaining and improving one’s
relationships. For instance, if a relative is sick and in the hospital, a Kantian may reason
that one ought to visit the sick relative because one could not will it as a universal law
that one should not care for the needy. Alternatively, the utilitarian may recommend
visiting the hospital because he sees it as an effective way to promote overall welfare. But
these seem like the wrong kind of reasons for visiting one’s ill relative in the hospital.
Instead, the reason one ought to visit one’s relative in the hospital is because one cares
about one’s relative and one’s ongoing relationship with him, and so one wants to be
sensitive to and attend to his needs. Similarly, if one thinks about the ideal physician,
one would hope that the physician would act in accordance with principles like respect
for autonomy, beneficence, and non-maleficence, but one would also hope for more than
that: the ideal physician cares about her patients and is sensitive to each particular pa-
tient’s needs, concerns, and values.69
The ethics of care has been applied to health care ethics in interesting and important
ways. For instance, feminists seek to deepen our understanding of such core notions as
autonomy and competence, insisting that we become more sensitive to the background
circumstances that affect people’s understandings and choices. When thinking about
the issue of abortion, for example, traditional philosophical approaches have focused on
the alleged conflict of rights between the pregnant woman and the fetus. But the ethics
of care might address this issue by focusing on different questions, such as the follow-
ing: What circumstances led the woman to become pregnant? What social supports are
available to make it easier for women to not abort and to have the child? What would
continuing the pregnancy mean for her other relationships? Or, to take a different exam-
ple, consider a case where patient autonomy and competency are at issue when it comes
to accepting or rejecting some life-prolonging therapy. The ethics of care would insist
on much more than just a meeting with the physician to explain the medical situation
and a psychiatric evaluation to ensure that the patient understands her options and the
likely consequences of her decisions. The ethics of care would encourage the patient and
those close to her, including family and friends, nurses and physicians, to work together

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(in a non-hierarchical manner) to find a solution that works best for all concerned. In
short, the ethics of care rejects the idea of the individual as an isolated being and sees her
embedded in a series of relationships. Further, the ethics of care seeks to discover ways
to understand, nurture, and support these relationships.

Difficulties with the Ethics of Care

While the ethics of care does well to remind us that ethics is more than just a matter of
acting on principle, it is not at all clear that this approach can stand on its own as a com-
plete ethical theory. One concern about the ethics of care is that it is doubtful that all
relationships require “attending to.” Feminists are well aware that many relationships are
exploitative or abusive. Often it seems best that these relationships be ended, and that
the “needs” of the abusers not be attended to but eliminated. Similarly, Sandra Bartky
makes the point that caring for someone can be immoral if that care helps support im-
moral behaviour outside of the relationship. Bartky gives the case of Teresa Stangl, wife
of Fritz Stangl, Kommandant of Treblinka. Appalled by what she knew of her husband’s
work, she continued to lovingly care for him, “and stood behind her man.” 70 In cases
such as these, caring for others can come at the cost of one’s own integrity and render
one complicit in wrongdoing.
Another concern with the ethics of care is that one often finds that one is involved in
several important relationships, but that it is not possible to simultaneously attend to all of
them. For example, at any given time, one’s children may need looking after, relationships
at work may require that one try to reduce interpersonal conflicts, and an elderly parent
may be ill and in need of one’s presence. The claim that in such cases one needs to be at-
tentive and caring toward one’s relationships now becomes unhelpful, since there is no way
that all of these relationships can be jointly and simultaneously looked after.
The previous two points suggest a similar problem. It seems that the ethics of care
needs to appeal to principles to help a person decide what to do. For instance, principles
are needed to explain which relationships require nurturing and which require ending,
and which needs or interests within a loving and good relationship require attending to
and which are illegitimate and should be resisted. Similarly, when conflicting demands
from distinct relationships arise, it seems one needs principles to help one decide which
relationship should take priority, or which needs ought to be attended to first, which will
have to wait, and which will have to be left unattended to. In short, it seems, there is no
easy escape from the need for principles.71
A further limitation of the ethics of care is that it seems to limit the realm of eth-
ics to the realm of one’s relationships. But there are ethical obligations that exist even
in circumstances where relationships do not. For instance, it seems clear that (1) we
cannot have relationships with people that do not exist and (2) we have ethical obliga-
tions to people living in distant future generations. But then it follows, (3) not all of
our obligations are based on attending to relationships. (4) An ethics of care views all

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 Chapter 2  Philosophical Ethics: An Introduction  61

of morality as a matter of attending to relationships; therefore, (5) an ethics of care

cannot be correct.72
Now, it is unlikely that a defender of an ethics of care will resist premise (1), since
“the caring relationship requires engagement with another’s will.” 73 And, similarly, it
seems clear to most of us that premise (2) is true—we have ethical obligations to people
who will exist in the distant future (not to leave them an uninhabitable planet, for in-
stance). Line (3) of the argument logically follows from premises (1) and (2), so line (3)
must be accepted if lines (1) and (2) are accepted. This leaves premise (4). It seems that
the most promising strategy for a defender of the ethics of care may be to abandon prem-
ise (4) and to claim that not all of morality can be explained by an ethics of care. Instead,
it could be maintained that a core part of morality can be explained in terms of meeting
the needs of the relationships one finds oneself in; however, this is not all of morality,
as there are other ethical concerns that fall outside of one’s relationships. And another
normative theory needs to be invoked to deal with these ethical issues.
If the above is correct, then the ethics of care seems to provide an important insight
into part of morality—part of the moral life involves the sensitive concern for the needs
and interests of those one is in a relationship with. This will involve developing and
prizing the sensibilities necessary for identifying others’ needs and understanding how
to properly care for them. Nevertheless, it seems that it would be a serious mistake to
think that this is all of morality. An appeal to principle appears necessary to tell people
how to respond to the demands of conflicting relationships, how to determine which
relationships (or needs within a relationship) are no longer worth attending to, and how
to respond to the variety of ethical issues that do not involve relationships.

Status-Oriented Feminist Approaches

Other feminists reject the ethic of care—dubbing it a feminine ethic—and embrace

instead what Rosemarie Tong and Nancy Williams call a status-oriented approach to
feminist ethics.74 These feminists accept many of the insights of an ethics of care—the
view that individuals are not isolated subjects but are immersed in networks of relation-
ships, that traditional ethical theories have been blind to the importance of emotions,
that context is key to good moral thinking, and that moral issues that arise in interper-
sonal relationships need to be elevated to more than just footnotes. But status-oriented
feminists move beyond the ethics of care by focusing their attention squarely on the
question of oppression—identifying it in all its forms and seeing how it needs to be over-
come so that people can lead fully autonomous lives. As Tong explains, “Status-oriented
feminist approaches to ethics tend to ask questions about power—that is, domination
and subordination—before moving on to questions about good versus evil, care versus
justice.” 75 Similarly, Sherwin explains, the principal insight of feminist ethics is that “op-
pression, however it is practiced, is wrong.” 76 For status-oriented feminists, the personal
is the political. This means, in part, that ethical issues are approached by looking at the

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broader societal ramifications of actions and policies. Marilyn Frye suggests that for any
systematic barrier we should ask, “Who constructs and maintains it? Whose interests
are served by its existence? Is it part of a structure that tends to confine, reduce, and im-
mobilize some group? Is the individual a member of the confined group?” 77
To illustrate, consider the topic of abortion. Sherwin begins her analysis of abor-
tion by asking how women get pregnant. She writes that given existing powers of sexual
dominance, women have little control over their sexual lives—many women do not feel
free to refuse a man’s demands for intercourse. Further, no form of birth control is both
fully effective and safe over the long term. Next, she emphasizes the fact that pregnancy
takes place in a woman’s body and has profound consequences for her body. It is the
woman and not the fetus that is the central focus of her analysis. The fetus’s status is
relational, gaining value through the mother valuing it; it is not a person, for a person is
a matter of being in relationships with others, and she claims this does not occur until
after one is born. Finally, access to abortion is necessary for women to maintain control
over their lives. Seeing as women are the primary child-rearers in our society, they need
to be able to have the freedom to decide for themselves whether they can care for a child
(or another child), for having a child dramatically affects their ability to govern their
own lives in the future. Prohibiting abortions would work to impoverish women, trap
them in relationships that are potentially dangerous to them and their children, and lead
women to lose control over their own lives.78
So, status-oriented feminists remind us that ethical analysis needs to concern itself
with the effects of social policies and behaviours on those that are oppressed. It also
reminds us to be critical of the questions that we are asking. Are we neglecting issues
that are of concern to those who are oppressed? At the same time, we must realize that
feminists can reasonably disagree. Some feminists might see oppression where others
don’t. Take the issue of the moral status of non-human animals and the environment.
As some ecofeminists have argued, do we need to oppose all hierarchical thinking and
patterns of domination, including those of persons over non-persons and the environ-
ment?79 Or should our concern be limited to ending the exploitation and domination of
persons, or perhaps persons and sentient non-humans? In addition, it is not always clear
how best to respond to oppression when it is seen. Should we accept as morally permis-
sible the choices of individual women, or should we instead object to those choices as
perpetuating oppression? For instance, some lesbian feminists argue for refusal to en-
gage in heterosexual relationships as the most appropriate way to oppose the oppression
of women by men, whereas Sherwin is not willing to go so far, accepting the permis-
sibility of heterosexuality.80 Others are willing to accept the use of assisted reproductive
technology to help women have children who badly want them, whereas Sherwin is
highly critical of such technologies.81 Despite these challenges, status-oriented feminists
do well to emphasize the fact of oppression and the need to overcome it. In fact, this may
be, currently, the uniting theme among most feminists.82

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 Chapter 2  Philosophical Ethics: An Introduction  63

CONCLUSION

As this chapter makes clear, normative ethical theory is a rich and complex area of
philosophical inquiry. We have examined several different philosophies. Each of these
theories contains compelling insights into the nature of right and wrong, and each of
these theories faces objections. In the light of these objections, philosophers continue
to develop and refine their theories. As in other areas of inquiry, disagreement persists
over which theory is, on balance, best. In the following chapter, each author explains his
favoured ethical theory. Specifically, you will see Doran defend a version of pluralistic
deontology, Patrick defend a version of virtue theory, and Warren defend a version of
social contract theory. These approaches will then guide each of us as we debate the
ethical problems in health care that make up the remainder of the text. In addition to
our favoured approaches, it is quite likely that readers will find it useful to appeal to the
other ethical theories discussed in this chapter as different ethical issues in health care
are considered.

REVIEW QUESTIONS

1. Explain the difference between normative ethics, descriptive ethics, and metaethics.
2. What is the difference between ethical relativism and ethical objectivism?
3. Define classical act utilitarianism and explain why it is said to be too simple.
4. Give an example of a situation in which utilitarianism conflicts with the protection of
individual rights.
5. Does utilitarianism require equal treatment or equal consideration? Explain.
6. What is Kant’s distinction between an action’s having moral worth and an action’s being
morally right?
7. Use Kant’s universal law version and humanity version of the categorical imperative test
to explain why it is wrong for health care professionals to deceive their patients.
8. According to Ross, what is a prima facie duty, and how does it differ from a duty, all
things considered?
9. According to social contract theory, what justifies a moral rule?
10. Explain why John Rawls’s theory of justice is known as justice as fairness.
11. According to Aristotle, what is a moral virtue? Give an example of a moral virtue and
explain Aristotle’s view of how that virtue would be acquired.
12. What is the ethics of care? Explain two problems with an ethics of care.
13. What is the key insight of status-oriented feminists? Explain how status-oriented feminists
would analyze cosmetic surgery. Do you agree or disagree with their analysis and why?

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NOTES

1. Some philosophers distinguish between the meanings of the terms ethics and morality. However,
for the sake of simplicity, we use these terms interchangeably.
2. Philosophers sometimes carve up the moral terrain differently than we have done here. For these
philosophers, normative ethics is described as focusing only on the kinds of general theoretical
questions outlined above, while practical or applied ethics is described as a separate area of
inquiry that focuses on specific moral problems. We prefer to describe practical/applied ethics as
a branch of normative ethics in order to emphasize the normative (prescriptive) focus of practical/
applied ethics.
3. Of course, those who work in normative ethics may be concerned with descriptive matters like the
content of established ethical codes of conduct, insofar as some may argue that people ought to
act in accordance with these ethical codes. In these cases, however, what is being examined is
the acceptability of the normative claim that people ought to follow established ethical codes.
4. For a more detailed discussion of sound philosophical reasoning, see chapter 1.
5. See Andrew Hough, “1.7 Million Human Embryos Created for IVF Thrown Away,” The Telegraph
(UK), December 31, 2012, [Link]
[Link].
6. The notion of objectivity is notoriously difficult to define, and the term gets used in strikingly
different ways. By saying that a statement is objectively true, we mean (roughly) that the
statement is true independently of what people think or prefer about the statement. Thus, a
statement like “The earth orbits around the sun” is objectively true, because it is true regardless
of whether people happen to believe it or prefer it to be true. Likewise, to say that the moral claim
“Putting people’s lives at risk for no good reason is morally wrong” is objectively true is to say that
it is true regardless of whether people think that it is true or prefer it to be true.
7. Readers interested in metaethics would do well to begin by consulting Geoff Sayre-McCord’s excellent
entry in the Stanford Encyclopedia of Philosophy, [Link]
8. Sometimes philosophers refer to the view that right and wrong are based on the culture or have
some other group basis as ethical relativism, and the view that right and wrong are based on the
individual as ethical subjectivism. We will refer to both such views as ethical relativism. What they
share in common is a skepticism about objective truths in ethics, and a belief that moral truths
are relative—either to individuals or collections of individuals (cultures).
9. Alex Chadwick, “Remembering Tuskegee: Syphilis Study Still Provokes Disbelief, Sadness,”
Morning Edition, NPR, July 25, 2002, [Link]
php?storyId=1147234 (no longer available).
10. This point is forcefully made by Bernard Williams, Morality: An Introduction to Ethics (New York:
Harper Torchbooks, 1972).
11. For brevity’s sake, classical act utilitarianism will be referred to simply as utilitarianism.
12. Although utilitarianism is intended to apply to the evaluation of actions, laws, and policies, for the
sake of simplicity, we will refer to it as a theory of right action.

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 Chapter 2  Philosophical Ethics: An Introduction  65

13. Some prefer to define consequentialism simply as the view that consequences are the sole
determinant of whether an action is morally right or wrong. This would then leave room for
different sorts of consequentialism. A maximizing consequentialist would claim that the right act
produces the most net good; a satisficing consequentialist would claim that the right act produces
enough net good; a negative consequentialist would claim that the right act avoids negative
consequences, and so on. Given this taxonomy, utilitarians are maximizing consequentialists. For
simplicity, though, we will follow fairly standard usage and refer to maximizing consequentialism
as, simply, consequentialism.
14. Even the masochist seeks pleasure, though the means to this pleasure happens to be pain!
15. See John Stuart Mill, Utilitarianism (1861), ed. George Sher (Indianapolis: Hackett Publishing,
1979), ch. 2.
16. One way to think of hedonism is that it is a view of well-being. In other words, it is a view about
what makes one’s life better or worse for that person. According to hedonism, the life with
the most well-being is the life that contains, on balance, the greatest amount of pleasure and
the least pain. Once hedonism is understood as a theory of well-being, we can again see why
utilitarianism is such a tempting idea: it views morality as the attempt to bring about the greatest
net amount of well-being. Such an idea is, at least on its face, very compelling.
17. Another radical aspect of utilitarianism is how it regards non-human animals. Many moral
theories view moral rules and moral protections as applying only to human beings, or only to
rational beings. But utilitarianism takes into consideration the good of everyone affected by
an action, and insofar as many non-human animals have a good of their own, utilitarians argue
that their interests also need to be taken into account when evaluating whether an act is right
or wrong. Thus, for instance, painful experiments on non-human animals raise profound moral
concerns for utilitarians. That is not to say that all such experimentation is wrong (remember, it
is not an absolutist ethical theory!), but rather that such experimentation needs to be justified by
showing that it is necessary to promote the greatest good. If no such justification is possible, the
experimentation is immoral, according to utilitarianism.
18. Of course, some philosophers think that utilitarianism—either in its initial formulation or suitably
modified—can withstand these objections.
19. Notice here that a counterexample is being used to criticize consequentialism. Consequentialism
is at odds with people’s deeply held convictions about what is right, since it implies what moral
common sense strongly denies—namely, that it is right for the nurse to lie to the dying patient in
this case. Insofar as philosophers are searching for moral principles which can explain and justify
our deeply held moral convictions, consequentialism appears to be in trouble.
20. We explore the topic of two-tier health care in chapter 8.
21. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 42–45.
22. For a defence of preference utilitarianism, see Peter Singer, Practical Ethics, 2nd ed. (Cambridge:
Cambridge University Press, 1999).
23. James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford: Oxford
University Press, 1988), part 1.

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24. For a defence of ideal or objective list utilitarianism, see David O. Brink, Moral Realism and the
Foundations of Ethics (Cambridge: Cambridge University Press, 1989).
25. An excellent account of various theories of well-being can be found in Griffin, Well-Being: Its
Meaning, Measurement, and Moral Importance. For a recent spirited defence of hedonism, see
Fred Feldman, Pleasure and the Good Life: Concerning the Nature, Varieties, and Plausibility of
Hedonism (New York: Oxford University Press, 2004).
26. See, for example, Peter Singer, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1,
no. 1 (1972): 229–43.
27. An excellent defence of utilitarianism against the “rights” objection and the “too-demanding”
objection can be found in J. J. C. Smart’s “An Outline of a System of Utilitarian Ethics” in J. J. C.
Smart and Bernard Williams, Utilitarianism: For and Against (New York: Cambridge University
Press, 1973). A more recent defence of consequentialism is Shelly Kagan’s The Limits of Morality
(Oxford: Oxford University Press, 1989).
28. See, for instance, Richard B. Brandt, A Theory of the Good and the Right (New York: Oxford
University Press, 1979).
29. David Lyons, in Forms and Limits of Utilitarianism (Oxford: Oxford University Press, 1965),
was perhaps the first to raise this objection to rule utilitarianism. See also part 1 of Smart and
Williams’s Utilitarianism: For and Against for a classic presentation of these objections to rule
utilitarianism, and for a defence of act utilitarianism.
30. Whether rule utilitarians can, in the final analysis, respond satisfactorily to these and other
concerns remains a matter of significant debate. Students interested in this topic might want
to turn first to Brad Hooker’s entry on rule consequentialism in the Stanford Encyclopedia of
Philosophy, [Link] For a leading defence of rule
consequentialism, see Brad Hooker, Ideal Code, Real World: A Rule-Consequentialist Theory of
Morality (Oxford: Oxford University Press, 2000).
31. Deontology comes from the Greek word deon, which means “duty.” As we will see later, not all
non-consequentialists are deontologists. Some non-consequentialists, for example, view morality
as a matter of living virtuously or of caring for others.
32. The following discussion of Kant’s ethics is based on chapters 1 and 2 of his Groundwork of the
Metaphysics of Morals, trans. Arnulf Zweig (New York: Oxford University Press, 2002). An extremely
helpful commentary on Kant’s ethics is H. J. Paton’s classic work, The Categorical Imperative: A
Study in Kant’s Moral Philosophy (Philadelphia: University of Pennsylvania Press, 1948).
33. On this point, see Paton, Categorical Imperative, 56. When given a choice between more than
one interpretation of an argument or view, philosophers should follow the principle of charity.
That is, they should go with the interpretation that is most reasonable. Philosophers do this in
part because to do otherwise would be to commit the straw man fallacy, and in part because
philosophers should be searching for the truth, and so it is only reasonable to go with the
strongest interpretation of an argument or view. This is one way in which philosophy differs from
debate—there, the goal is to persuade by any rhetorical means possible, including the deliberate
oversimplification of the opponent’s position.

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 Chapter 2  Philosophical Ethics: An Introduction  67

34. Kant’s work is notoriously difficult to understand. Not surprisingly, then, there is a great deal
of debate over how to interpret Kant’s work. One such area of dispute is the nature of the
contradiction, if any, in being unable to will a maxim as a universal law.
35. Kant, Groundwork, 233. The example of making a lying promise, or of lying in general, could
easily be related to issues in health care ethics. Examples are giving a patient a false promise of
confidentiality or telling a patient that their condition is treatable when in fact it is not.
36. Some might hear echoes of the golden rule—“Do unto others as you would have them do unto you”—
when they hear Kant’s Universal Law test. Notice, though, that the tests differ. For one thing, the
golden rule mentions only how to treat others, while Kant’s principle deals with duties both to others
and to oneself. There are also certain difficulties with the application of the golden rule that do not
apply to the universal law test. For example, according to the golden rule, it would be permissible
for a person to break a promise if she did not mind other people breaking promises to her. But,
according to a Kantian view, such a person would still be obligated to keep her promises, since the
maxim of promise-breaking cannot be universalized without contradiction.
37. The previous two objections may be related, in the sense that if the Kantian could solve the first
objection by explaining how to unambiguously identify the maxims of our actions, then perhaps
the problem raised in the second objection could be avoided.
38. Russ Shafer-Landau, The Fundamentals of Ethics, 4th ed. (New York: Oxford University Press,
2018), 170.
39. See his “On a Supposed Right to Lie from Philanthropy,” in Practical Philosophy, trans. Mary
Gregor (Cambridge: Cambridge University Press, 1996), 605–16.
40. Important defences of Kant’s ethics include the following works: Thomas E. Hill, Commentary on
the Groundwork (New York: Oxford University Press, 2002); Christine Korsgaard, Creating the
Kingdom of Ends (Cambridge: Cambridge University Press, 1996); Marcia Baron, Kantian Ethics
Almost without Apology (Ithaca, NY: Cornell University Press, 1995); and Barbara Herman, The
Practice of Moral Judgment (Cambridge: Harvard University Press, 1993).
41. W. D. Ross, The Right and the Good (Oxford: Oxford University Press, 2002); first published 1930.
42. The duty of beneficence is the duty to contribute to the well-being of others. According to Ross,
the duty rests “on the mere fact that there are beings in the world whose condition we can make
better in respect of virtue, or of intelligence, or of pleasure.” See Ross, Right and the Good, 21.
43. For a powerful classic attack on the idea that moral truths can be known through moral intuition,
see J. L. Mackie, Inventing Right and Wrong (London: Penguin, 1989).
44. For a contemporary defence of many of Ross’s ideas, see Robert Audi, The Good and the Right: A
Theory of Intuition and Intrinsic Value (Princeton, NJ: Princeton University Press, 2004).
45. Tom Beauchamp and James Childress, Principles of BioMedical Ethics, 7th ed. (Oxford: Oxford
University Press, 2012).
46. Thomas Hobbes, Leviathan, Book 1, ch. 13.
47. Hobbes, Leviathan, Book 1, ch. 13, 9.
48. Hobbes also argues that in order to escape the state of nature and gain the benefits of social
living, people need to agree to the existence of a government that has the power of enforcing

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agreements and punishing wrongdoers. While Hobbes’s insistence on the necessity of a

government is crucial for understanding his political philosophy, it is not something that needs to
be emphasized here.
49. Hobbes, Leviathan, Book 1, ch. 13.
50. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
51. A comprehensive ethical theory is one that attempts to explain all of our moral obligations.
An ethical theory that is not comprehensive aims at explaining a certain subset of our moral
obligations. Rawls’s theory is not comprehensive, since he attempts to use it only to arrive at an
answer to the question “What is the just society?” He does not seek to solve moral questions
that exist beyond this topic. Notice how this strategy avoids many of the objections raised against
Hobbes’s version of social contract theory.
52. Susan Moller Okin, Justice, Gender and the Family (New York: Basic Books, 1991).
53. See, for instance, Norman Daniels, “Equal Opportunities and Health Care,” reprinted in Ethical
Issues in Modern Medicine: Contemporary Readings in Bioethics, 7th ed., ed. Bonnie Steinbock,
John D. Arras, and Alex John London (Boston: McGraw-Hill, 2009).
54. We might call the idea that people in the original position will want to ensure a tolerable outcome
should they turn out to be in the worst-off group tolemin, in contrast to Rawls’s idea of maximin.
55. John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
56. See, especially, Aristotle’s Nicomachean Ethics.
57. Thus, Aristotle speaks of the doctrine of the mean as being a mean relative to the individual. Just
as it is true that all people should eat the proper amount of calories, but this will mean different
things for an Olympic athlete than for a couch potato, so all people should be honest, but one
would expect a different degree of honesty from a close friend than from a mere acquaintance.
58. Virtue theory is not alone in having to deal with the objection that it does not always give clear
guidance. As we have seen, this is also a problem, for instance, for pluralistic deontology.
59. Aristotle, Nicomachean Ethics 1094, 24–25.
60. Important contemporary works in virtue theory include the following: Thomas Hurka, Virtues,
Vices and Morals (New York: Oxford University Press, 2001); Rosalind Hursthouse, On Virtue
Ethics (New York: Oxford University Press, 1999); and Philippa Foot, Virtues and Vices and Other
Essays in Moral Philosophy (Berkeley: University of California Press, 1978).
61. Hilde Lindemann, An Invitation to Feminist Ethics (Boston: McGraw-Hill, 2006), 9.
62. Lindemann, Invitation to Feminist Ethics, 9.
63. Susan Sherwin, No Longer Patient: Feminist Ethics and Health Care (Philadelphia: Temple
University Press, 1992), 54.
64. An excellent introduction to the variety of feminist theories is Rosemary Tong’s Feminine and
Feminist Ethics (Belmont, CA: Wadsworth, 1993). For a fascinating feminist application of Rawls’s
theory, see Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989).
65. Lindemann, Invitation to Feminist Ethics, 83.
66. Sherwin, No Longer Patient, 57.
67. Carol Gilligan, In A Different Voice: Psychological Theory and Women’s Development (Cambridge,
MA: Harvard University Press, 1982).

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 Chapter 2  Philosophical Ethics: An Introduction  69

68. A noteworthy exception to this may be virtue theory, since, as we have seen, the virtues require
not only right action, but also appropriate feelings.
69. See, for instance, Nel Noddings, Caring: A Feminine Approach to Ethics and Moral Education, 2nd
ed. (Berkeley: University of California Press, 2003).
70. Sandra Lee Bartky, Femininity and Domination: Studies in the Phenomenology of Oppression
(New York: Routledge, 1990), 113.
71. A defender of the ethics of care may respond to these objections by trying to argue that we can
best determine how to balance conflicting needs in different relationships, and how to best deal
with destructive relationships, in a contextual manner, without appealing to principle. The idea
may be that we bring the parties involved together (wherever possible) to try to work out for
themselves acceptable solutions for that particular difficulty.
72. Instead of the example of future generations, a similar point could be made with such examples as
famine victims in a far-off land who need our aid, or people in our own society who are isolated and
alone but in need of help. Surely we have moral obligations to assist these people in need, even
though it would be a stretch to say that we were in any sort of relationship with these people.
73. Lindemann, Invitation to Feminist Ethics, 93.
74. Rosemarie Tong and Nancy Williams, “Feminist Ethics,” The Stanford Encyclopedia of Philosophy,
[Link]
75. Tong and Williams, “Feminist Ethics.”
76. Sherwin, No Longer Patient, 54.
77. Marilyn Frye, The Politics of Reality: Essays in Feminist Theory (Freedom, CA: Crossing Press,
1983), 14.
78. Sherwin, No Longer Patient, ch. 5.
79. Karen Warren, Ecofeminist Philosophy: A Western Perspective on What It Is and Why It Matters
(Lanham, MD: Rowman & Littlefield, 2000).
80. Sherwin, No Longer Patient, 31.
81. Sherwin, No Longer Patient, ch. 6.
82. If you are interested in pursuing these and related issues, you would do well to begin with
Rosemarie Tong and Nancy Williams’s entry “Feminist Ethics” in The Stanford Encyclopedia of
Philosophy. You should also see Hilde Lindemann, An Invitation to Feminist Ethics (Boston: McGraw-
Hill, 2006); Susan Sherwin, No Longer Patient: Feminist Ethics and Health Care (Philadelphia:
Temple University Press, 1992); Marilyn Frye, The Politics of Reality: Essays in Feminist Theory
(Freedom, CA: Crossing Press, 1983); Virginia Held, Feminist Morality: Transforming Culture,
Society, and Politics (Chicago: University of Chicago Press, 1993); and Virginia Held, ed., Justice and
Care: Essential Readings in Feminist Ethics (Boulder, CO: Westview, 1995).

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 3 OUR PHILOSOPHICAL
APPROACHES

INTRODUCTION

In the previous chapter, we critically examined some of the most important and influen-
tial normative ethical theories. While Doran, Patrick, and Warren subscribe to theories
which were explained in that chapter, each has his own particular way of understanding
and interpreting his favoured approach. The purpose of this chapter is for each author to
explain and give his reasons for supporting his preferred normative ethical theory. This
will help you to understand how each author approaches the ethical problems that will
be debated in the coming chapters.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Explain and apply Doran’s pluralist approach to ethics

• Describe Doran’s objections to utilitarianism, Kantianism, social contract
theory, and virtue ethics
• Distinguish metaethics from normative ethics
• Explain and apply Patrick’s virtue-based approach to ethics
• Identify important similarities between colour properties and moral prop-
erties, on Patrick’s view
• Explain and apply Warren’s social contract theory
• Describe Warren’s version of the original position, including the veil of
ignorance and the sympathy metarule

DORAN’S PLURALISTIC APPROACH TO ETHICS

Philosophers have developed a wide variety of normative ethical theories. As was ex-
plained in the previous chapter, a normative ethical theory consists of a set of principles
which purport to tell one how one ought to lead one’s life. For some normative ethical

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 Chapter 3  Our Philosophical Approaches  71

theories the focus is on defending principles of right action; for other theories, the con-
cern is more with determining which character traits ought to be developed. But all
normative ethical theories share the common concern of determining how we are to lead
ethically good lives. Although I cannot fully defend this here, I believe that each leading
ethical theory provides important insights into the ethical life. However, I also find that
each leading ethical theory fails to provide a complete explanation of right and wrong.
As a result, I believe the best way to approach ethical problems is by adopting a kind of
moral pluralism. That is, there are a variety of principles that help determine whether
an act is morally right or wrong. As I explain below, the thoughtful philosopher draws
on the insights of the leading philosophical theories, determines which particular moral
principles are relevant to a given moral problem, and then uses those considerations to
reason about what ought to be done. Such an approach to ethics is messy and unsys-
tematic. However, I believe that rigidly following one ethical approach is less likely to
provide reasonable answers to the variety of moral problems that we encounter. In what
follows, I very briefly explain some of the main reasons why I find the leading ethical
theories to be false, and what, in the light of this, is the best way to proceed.1

Leading Ethical Theories and Their Problems

Act utilitarians argue that the consequences of an action are the key factor in determin-
ing whether an action is morally right or wrong. Indeed, they believe that the right act
in any situation is the one that produces the best consequences. I believe utilitarians are
right to insist that the consequences of an action are important; however, like many, I
believe that utilitarians err in thinking that the only determinant of a right act is its con-
sequences. For example, when thinking about whether to honour a contract, one thing
one should consider is the consequences of violating one’s word. But, it seems, another
reason to honour a contract, independent of consequences, is that it is in itself morally
important to keep one’s word. Further against utilitarianism, it seems that it gives the
intuitively incorrect answer in many cases. For instance, a person can be quite confident
that he should pay the teen who mowed his lawn the $20 he promised, rather than, say,
give the money to UNICEF, even though he may not be at all certain that paying the
teen will produce the most good.2 Promoting good consequences is a morally significant
factor, but it seems that it is not the only morally relevant consideration.
Kantians, by contrast, maintain that there are certain moral duties that are absolute,
and must never be acted against. Keeping promises, not lying, not stealing, and not as-
saulting others are all examples of absolute moral duties, according to Kant. Underlying
this belief is the idea that it is wrong to act on principles that one cannot consistently
will that everyone follow. For instance, breaking a contract is wrong since one cannot
always will that everyone break contracts. Also, Kantians defend the existence of these
absolute moral duties because they think that it is wrong to act on principles that treat
people (rational beings) merely as means (things). Thus, for example, it is wrong to lie to

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someone because it is disrespectful—it treats the person as a thing rather than an end
in himself. But, unlike the Kantian, I do not think that these moral duties are absolute
nor do I think that such considerations entirely determine the rightness or wrongness
of an act. Failing to tell the truth, for example, may be disrespectful, but sometimes it
is morally permissible or even morally required to lie, such as when it is the only way to
save someone from being murdered. Similarly, on some occasions, an act may be mor-
ally permissible even when it is based on principles that cannot be followed by everyone.
For instance, Kant claims it is always morally wrong not to keep one’s contracts, but if
repaying a bank loan (keeping one’s contract) would mean that a parent would not have
enough money to buy medicine for her very sick child, then it seems morally permissible
not to repay the loan. Respecting people’s rational nature and acting on principles that
can be applied universally are important moral factors, but it appears that they are not
all that is morally relevant.
Social contract theory argues that moral rules are those that all rational people
would agree to for their mutual benefit. Rules against stealing, murder, and mugging, for
instance, are all justified because such rules would be chosen by everyone as a means of
protecting their own self-interest. In contrast, limitations on free speech or on religious
worship, for instance, are not necessarily mutually beneficial, and so would not be justi-
fied moral rules. Now, social contract theory does a nice job of explaining and justifying
many core moral rules, but, nevertheless, I do not think that it explains all of morality.
Social contract theory is notoriously weak, for example, in satisfactorily explaining our
obligations to non-rational beings and entities, such as mentally incompetent humans,
non-human animals, the natural environment, and future generations. Yet, it seems we
do have direct moral obligations to at least some, if not all, of these things. However, it
is very hard for contractarians to satisfactorily explain why there are such obligations.
Finally, I think virtue theory contains numerous profound insights into the nature
of morality that are overlooked by other ethical theories. Rather than searching for
criteria of right action, the focus of virtue theory is on such questions as “What is to be
a good person?” and “What is it to live well?” Typically, virtue theorists argue that the
character traits needed for being a good person and living well include the moral virtues:
courage, honesty, industriousness, trustworthiness, compassion, loyalty, and other traits.
While virtue theory provides an important approach to ethics, it too seems incomplete.
Many critics think that it gives too little direction about how to act when the virtues
conflict. For example, the virtues of honesty and compassion seem to frequently clash.
The honest act may not be compassionate, while the compassionate act may not be hon-
est. The virtue theorist’s admonition “Be virtuous!” or “Do what a virtuous person would
do!” is hardly helpful in such cases.
Moreover, the virtue theorist seems to miss the main reason an act is morally right
or wrong. Consider, for example, animal abuse. Intuitively, the main reason it is wrong
is not because it shows a lack of virtue on the part of the abuser, but because it causes

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 Chapter 3  Our Philosophical Approaches  73

needless suffering to the animal. It would be odd to say that animal abuse is wrong be-
cause it manifests a vicious character, since we think the animal abuser has a vicious
character because he is doing something wrong. Indeed, I think that virtue theorists
err when they conflate two distinct issues—what makes an act right or wrong and what
makes a person morally good or bad. To see this, consider someone who performs an act
that he reasonably thinks is beneficial, but which turns out to be harmful. Perhaps he
donates to a charity because he wants to help famine victims; however, it turns out that
the charity is a fraud, and the money actually supports the lavish and corrupt lifestyle of
a con artist. In this case, it is clear that giving to the charity was not the right thing to do,
although we may still want to view the person who donated as having a good character
(as being charitable). But if this is correct, then right action cannot be understood simply
in terms of virtuous character. What makes a person virtuous or vicious is one thing, and
what makes an act right or wrong is another. If this is right, then again it seems that we
have a moral theory that is of great interest—for assessment of a person’s character is an
important part of morality—but that still fails to capture all of morality.
Roughly analogous remarks apply to my analysis of an ethics of care. A complete
moral theory ought to recognize the significance and importance of care and of attending
to the needs of others. But an ethics of care seems to me to be incomplete in some impor-
tant ways. That an act is caring may be a reason to perform the act, but other considerations
also need to be taken into account, such as whether other obligations are more pressing.
Also, it is not clear that one should, morally speaking, always care about caring. It seems
morally permissible, for instance, not to care about the needs of an abusive partner or par-
ent. But if these points are correct, then ethics is more than just a matter of caring.

Moral Pluralism

For the above reasons and others, I am in the rather uncomfortable position of ap-
preciating both the insights and the difficulties of each of the leading ethical theories.
Fortunately, I am not alone in this regard. Indeed, it seems that many philosophers
working in ethics routinely appeal to the insights found in more than one ethical theory.
Like these philosophers, when I approach a moral problem, I try to identify the moral
reasons for or against the case: Will such an action have negative/positive consequences?
Will such an action violate/respect someone’s autonomy? Will such an action involve
dishonesty/honesty, or the sacrifice/promotion of the agent’s personal integrity? And so
forth. I then try to weigh these varied considerations. In easy cases, these moral reasons
all lean in the same direction. For example, murder is wrong since it tends to have harm-
ful consequences, is disrespectful of rational nature, cannot be universalized, under-
mines social living, and for other reasons. Similarly, keeping one’s promises is normally
right, since it normally has good consequences, respects rational nature, can be univer-
salized, facilitates social living, and involves personal integrity. These are the easy cases.

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Our book is full of the hard cases—cases where respect for personal autonomy
seems to conflict with the promotion of the best consequences, or with caring, or with
respect for one’s personal or professional integrity, and so on. Indeed, cases like these
are interesting precisely because they are so difficult. My approach in these hard cases is
to identify the moral reasons for and against, and to try to reach a determination about
which moral reasons are most pressing in each case. In this regard, my work in ethics is
most closely aligned with what is sometimes referred to as pluralistic deontology.
Following W. D. Ross, I’d say that morality consists in many conditional duties:
to be honest, to promote good consequences, to repay debts, to not harm, to promote
virtue, and so forth. In many cases, these conditional duties conflict. In cases of conflict,
one must study the situation carefully and try to reach a considered judgment about
which duties are most pressing in that situation. Whatever the strongest duties recom-
mend in any situation constitutes the right thing to do in that situation.3
Here are some examples to make the point clearer. Recall the case of the home-
owner who hires a teen to mow his lawn for $20. Upon completion of the task, the teen
comes to collect his fee. The homeowner suddenly realizes that he could give this $20
to a charity like UNICEF or he could pay the teen what he promised. In this case, it
seems quite clear that the duty to keep his promise is more important than the duty to
help others. Thus, the right thing to do in this situation would be to pay the teen, and
the reason is “he promised.” In other situations, though, the duty to keep a promise may
be outweighed by considerations of welfare. For instance, if forced to choose between
keeping a promise to meet a student in my office at a certain time or to come to the aid
of someone in mortal danger (say, another student who had just been hit by a truck and
who needs my first aid skills in order to survive), then clearly my duty to help the needy
would take priority in this situation over the duty to keep my promise, and it would be
morally right (indeed, required) to help the needy student in this case.
Beyond the identification and weighing of competing duties in favour of and against
a particular act, part of my approach to moral philosophy involves attempting to identify
guiding principles to deal with cases that are similar in kind. For instance, I might try
to defend the principle that says promises must be kept unless breaking them is neces-
sary for preventing much greater harm or promoting much greater good. I would then
test whether such a principle would give the right answer in a variety of situations. The
more generalizable the principle, the greater the confidence I’d have that the principle
is correct. If, however, it turns out that the principle is vulnerable to counterexamples,
then I’d either have to modify the principle or scrap it entirely and search for another
underlying rationale for our moral judgments in cases like these.
Finally, in addition to identifying general principles of right action that are able to
yield reasonable answers in a variety of cases, I think it is important to be able to explain
why the proposed principles are morally significant. Ideally, for instance, one should be
able to say why it is normally right to keep promises even if doing so will not always do
the most good, but why it is not always morally required to keep promises.

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 Chapter 3  Our Philosophical Approaches  75

Thus, to summarize, when approaching a moral problem I consider the various mor-
ally relevant factors—such as consequences, virtue, care, universalizability, autonomy,
and mutual benefit—weigh which factors are most pressing in this particular case, de-
velop a principle that can handle other similar situations, and explain why this prin-
ciple is reasonable independently of this particular case. If I can do this, I then become
reasonably confident that I have reached the right answer about the particular moral
problem in question.4
The approach is messy. In hard cases, the conclusions are often tentative. But I think
that is a virtue of my approach, for hard cases are hard, real-life scenarios are messy and
complicated, and we are fallible in our moral judgments. Any moral theory that glosses
over the complexities of the moral life is likely to be unsatisfying. All we can do is to try
to sort things out, get some clarity on the issue, and reach a conclusion that is sensitive
to as many considerations as possible.

PATRICK’S VIRTUE-BASED APPROACH TO ETHICS

My approach to ethics is the product of an investigation of issues in both metaethics

and normative ethics. Let me begin, then, by saying a few words about this distinc-
tion. It is not easy to provide a precise account of the difference between these two
levels of moral inquiry, but the rough idea is this: Metaethical issues are “second-
order” issues; that is to say, they are issues about morality. Normative ethical issues, in
contrast, are “first-order” issues—that is, issues within morality. For instance, norma-
tive ethics is concerned with questions about which moral principles are correct, and
which actions are right and wrong. Metaethics focuses on more abstract questions
about normative ethics. The normative ethicist asks: Are physicians always morally
required to tell their patients the truth? The metaethicist asks: What does it mean to
say that an action is morally required? Other examples of metaethical issues include
the following: Are moral claims (such as the claim that eating meat is morally wrong)
descriptive or merely prescriptive? If they are descriptive, are any moral claims true?
That is, are there any moral truths or facts? If there are moral truths or facts, are they
objective or subjective? Do our true moral claims describe a moral reality that is
objective in some important sense, or do they merely describe the moral attitudes of
particular individuals or cultures? Metaethical theories provide answers to these and
other important questions about the nature of morality. These theories are typically
characterized as either realist or antirealist. Moral realism is the view that moral
claims are (at least partly) descriptive, and that some of these descriptions are true. So
moral realists hold that there are moral truths or facts. Moral antirealism denies that
moral claims are descriptive at all, or accepts this but denies that any of the descrip-
tions are true. So moral antirealists deny that there are any moral truths or facts. For
reasons that I touch on below, I favour a realist theory of ethics.

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Let’s turn now to normative ethics. As mentioned above, normative ethics involves
“first-order” issues—that is, issues within morality. These include questions about what
sorts of things contribute to the rightness of actions and the goodness of persons. For
instance, do consequences matter? If so, are consequences all that matter? Are people’s
motives also important? Among the most influential normative ethical theories are utili-
tarianism, deontological ethics, and virtue ethics. These theories generally aim to pro-
vide us with an account of the properties that make actions right (or wrong), and persons
good (or bad).
The metaethical views one adopts put constraints on the normative views one can
hold. For this reason, as I mentioned, my approach to ethics begins with an investigation
of metaethical issues. As I explain below, this investigation lends support to a secondary
quality view or, more specifically, dispositional view of moral properties. With this
view in hand, I turn to normative ethics. I believe that virtue ethics provides a natural,
and I think very plausible, way to fill in the details of the dispositional view. The end
result is a realist version of virtue ethics: there are facts about what is right and wrong,
and these facts are constituted, in part, by the judgments of virtuous persons.

Metaethics

Let’s pretend, for the moment, that you and I have stepped outside of our normal mor-
al practices and are observing what’s going on “in” there. What will we see? Perhaps
the first thing we’ll notice is that people, in their day-to-day lives, make moral claims.
People say things like the following: “Keeping one’s promises is right,” “Killing some-
one for no good reason is wrong,” “Abortion is sometimes permissible,” and so on. The
surface grammar suggests that these and other ordinary moral claims are (partly) de-
scriptive, like familiar sorts of non-moral claims. And like ordinary non-moral claims,
our moral claims seem capable of being true or false. We also think of ourselves and
others as having moral beliefs and, in some cases, moral knowledge. We claim to know,
for instance, that it is morally wrong to sexually abuse children. And we often engage
in moral arguments with others about questions we take to have correct answers. These
considerations strongly support a view called cognitivism. This is the view that our
moral claims describe the moral features of actions, persons, and other things we evalu-
ate morally. Consequently, moral claims are the kind of thing that are true or false, and
that we believe, know, assert, doubt, and deny.5
A host of other considerations support the view that morality is objective in an im-
portant sense. Morality is objective in at least the (minimal) sense that the rightness and
wrongness of actions is independent of the personal attitudes and feelings we happen to
have toward the actions. For instance, many people in the past believed that it was mor-
ally permissible to keep slaves. But the fact that these people happened to believe that
slavery is permissible does not, according to ordinary moral thought, make it permis-
sible. The thought is, rather, that these people had a mistaken view of the moral status

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 Chapter 3  Our Philosophical Approaches  77

of slavery. So we think that an action’s being right or wrong is independent of whether

you and I, in our ordinary circumstances, happen to think that it is right or wrong, or
whether we happen to have a favourable attitude toward the action. In this sense, at
least, morality is objective.6
The above two considerations suggest that moral claims are very much like famil-
iar sorts of non-moral claims. Both are descriptive of a reality that is, in an important
sense, independent of our feelings and attitudes. There is, however, a crucial difference
between moral and many non-moral claims. Moral claims are prescriptive (or “norma-
tive”), whereas many non-moral claims are not. That is, moral claims give us reasons
or motives for acting in certain ways;7 familiar sorts of non-moral claims do not have
this prescriptive force. For example, if you sincerely judge that it is wrong to eat meat,
it seems you thereby have a reason or motive not to eat meat. The judgment, say, that
your car’s tires are black, however, does not automatically give you a reason or motive to
act a certain way or adopt a certain attitude toward the car. These considerations help to
support a view called internalism—the view that reasons or motives are in some sense
internal to, or built into, the fact or judgment that an action is morally right (or wrong).
To sum up the discussion thus far, our ordinary moral claims are descriptive and,
moreover, they describe a moral reality that is objective in an important sense. But, as
we just saw, our moral claims are not merely descriptive; they are prescriptive or nor-
mative too. According to many philosophers, this prescriptive component is plausibly
understood in terms of an internal connection between moral facts or judgments and
our reasons or motives for action.
A common complaint of many metaethical theories is that they fail to capture one
or more of the features described above. By construing moral properties as secondary
qualities or, more specifically, dispositional properties, however, I believe we can ac-
commodate the descriptive, objective, and prescriptive elements of morality.8 The dis-
positional view I have in mind is analogous to a dispositional account of colours. A
dispositional account of colours holds that an object’s being red consists in the fact that it
would appear red to “normal” observers under “normal” conditions. The dispositional ac-
count of moral properties I favour holds that an action’s being right consists (roughly) in
the fact that it would appear right to appropriate observers when they are under appro-
priate sorts of conditions. The phrase “appear right” is shorthand for a more complicated
psychological state—one that involves the apprehension of a reason or motive for action.
Now, notice that according to this dispositional view, moral claims are descriptive.
They describe the dispositional properties of actions (or persons). And these properties are
objective in the sense that an action might be right, even though you and I do not think
or feel that it is right; similarly, an action might be wrong, even though you and I think or
feel that it is right. Mistakes of this sort happen when either the evaluators or the condi-
tions of evaluation are not appropriate. The dispositional view also (arguably) captures the
prescriptive or normative element of morality, since it implies that reasons or motives are
“built into” moral properties or judgments.9

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Normative Ethics

I suggested above that central metaethical considerations support the view that an ac-
tion’s being right consists in the fact that it would appear right to appropriate observers
when they are under appropriate sorts of conditions. But who are the appropriate ob-
servers? And what are the appropriate conditions? As I explain below, the appropriate
observers are those who are virtuous, and the appropriate conditions are ones in which
virtuous persons have, and fully appreciate, all relevant information. The upshot of this
is the view that an action’s being right consists in the fact that it would appear right to
virtuous persons if they had, and fully appreciated, all relevant information.
Let’s begin with the question, What are the appropriate conditions? What we are
looking for here is a specification of the ideal conditions for evaluating the moral status
of actions, persons, and other things we evaluate morally. We often make mistakes in
moral evaluations when we lack an important piece of information or have incorrect
information. For instance, suppose I hear that someone named Smith killed someone
named Jones. Then, at first blush, I might judge that Smith did something wrong. But
suppose I later learn that Smith killed Jones in self-defence. In that case, I might see
my earlier judgment as mistaken, owing to a lack of relevant information. So the ideal
conditions of evaluation are ones where we have all relevant information.
I’m not sure this is enough, however. It seems we can and do arrive at mistaken
moral judgments, not because we lack information, but because we fail to appreciate the
significance of some information, or fail to see how the information we have fits together
to generate an obligation. To illustrate, suppose we are morally obligated to stop eat-
ing meat and become vegetarian, but I fail to see this, even though I know that meat
production causes significant animal suffering. My failure here might be due to a failure
to take sufficient note of animal suffering, or perhaps to see how this suffering connects
with other things I know to generate an obligation not to eat meat. Examples of this sort
suggest that the appropriate conditions should require not just possession of all relevant
information, but full attention to, or appreciation of, that information.
Let’s now turn to the “appropriate persons” clause in the dispositional account I am
proposing. Who are the appropriate persons? For reasons that I cannot fully defend here,
I believe that the most plausible answer is that the appropriate persons are those who are
morally good or virtuous.10 Being virtuous in this sense consists in possessing particular
virtues—for example, honesty, kindness, generosity, benevolence. Following Aristotle,
I take these individual virtues to be deep and stable character traits that dispose those
who possess them to act and feel in appropriate ways. Honest people, for instance, are
disposed to act honestly, and to feel disapproval toward persons who are dishonest.
I believe that possession of virtue amounts, moreover, to possession of a certain
kind of sensitivity or “perceptual capacity”—that is, a capacity to perceive the moral
requirements situations impose on us. The rough idea here is this. We acquire virtue by
acquiring certain sorts of concerns and feelings. These feelings and concerns enable us

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to clearly see the moral features of actions, persons, and so forth. Some simple examples
will help to illustrate the idea I have in mind here. A sociopath might fail to see how
his violent and abusive behaviour is wrong, because he is insensitive to the feelings and
well-being of others. Similarly, a racist may fail to see how her discriminatory ways are
insulting and disrespectful, because she lacks concern for the feelings of minorities. A
good or virtuous person, however, has a concern for the feelings and well-being of oth-
ers and therefore sees certain ways of treating others as morally better or worse, right or
wrong. This is the rough idea, anyway.
Return now to the analogy between colour properties and moral properties. An
object’s being red consists in the fact that the object appears red to people with the right
sort of perceptual equipment when they view the object in the right sort of light, under
suitable conditions. Similarly, I am proposing, an action’s being right consists in the fact
that it appears right to people with the appropriate sorts of feelings and concerns—that
is, virtuous people—when they have and appreciate all relevant information. And just
as defects in our perceptual equipment can lead to colour blindness, defects in our moral
character can lead to a kind of moral blindness.11

Some Objections and Responses

I would like to conclude by offering a brief defence of the view sketched above. I believe
that perhaps the most attractive feature of this view is that it does a better job than other
familiar metaethical views of accommodating and explaining the descriptive, objective,
and prescriptive features of our moral discourse and practice. To repeat and expand on
points made earlier, this view preserves the idea that moral claims are descriptive claims,
just as their surface grammar suggests. It preserves the idea, moreover, that morality is
objective, at least in the sense that what is right or wrong is not simply a matter of what
you and I happen to think or feel. Finally, this view preserves the idea that there is an
internal connection between moral properties or judgments and our reasons or motives.
If one is virtuous, and one has and fully appreciates all relevant information, then one
will have a reason or motive to do those acts that one perceives as right.12
Another supporting consideration is that this view is not vulnerable to the kinds of
objections that pose a problem for utilitarian and Kantian theories.13 On my virtue ethics
perspective, consequences are not all that matter, as the utilitarian mistakenly argues.
Nor, on my view, are moral rules absolute, as the Kantian claims. It is important to
promote one’s own good and the good of others. And it is also important to treat others
with respect, to be kind, honest, generous, and loyal, and to practice other virtues. But
all of these rules admit of exceptions.
I turn now to potential problems with the view. One common objection to disposi-
tional accounts of colours is that they are circular, and some have argued that dispositional
accounts of value properties suffer from the same problem. My simple response is this: Yes,
the account is circular in a sense, for it holds that an action’s being right consists (partly)

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in the fact that virtuous persons think it is right. But why is this circularity a problem? Is
it supposed to be an epistemic problem? A metaphysical problem? Some other kind of
problem? The alleged problem with circularity is, unfortunately, seldom explained. In any
case, I believe that any circularity in my view is harmless, but showing this in detail would
require a lengthy detour into the nature of properties and philosophical analyses. Since I
can’t take that detour here, I won’t try.14 However, let me say this: the circularity in my
view is only at a surface level—an action’s being right consists roughly in the fact that it
would appear right to virtuous persons. But as I noted earlier, “appear right” is shorthand
for a more complicated state involving the apprehension of a reason (or reasons) for action.
At this point, the circle vanishes.
In the section explaining his favoured normative ethical theory, Doran raises several
other common objections to virtue ethics which I would like to address. One of the alleged
problems is that virtue ethics may provide little in the way of practical guidance, since it
leads to conflicting rules or virtues. For instance, the virtuous person is one who is honest
and kind. But suppose I ask my friend, who happens to be virtuous, what he thinks of my
new jacket. Let’s suppose that he hates it. Then, if he tells me the truth, I will be deeply
hurt, and if he tells me a lie, he will be dishonest. So the virtues of honesty and kindness
seem to conflict in this situation. The apparent problem, then, is that owing to these con-
flicts, virtue ethics provides little in the way of practical moral guidance.
One response to this objection is to find partners in crime. Conflicting virtues or
rules is a potential problem not only for virtue ethics, but for any pluralistic view—that
is, any view which asserts more than one moral rule. This is a frequently cited problem
for contractarian and pluralistic deontological views, for instance. So, to the extent that
this is a problem for virtue ethics, it is also a problem for many other moral theories,
including the pluralistic approach Doran takes.
One way for pluralistic views to avoid conflicts is to provide a ranking of rules. Virtue
ethics can similarly provide a ranking of the virtues. One might say, for instance, that
honesty always trumps kindness. This ranking would then provide a way to resolve any
conflicts among the virtues. I do not think, however, that this is a promising response to
the objection. The problem is that there is no plausible ranking of the virtues that will
hold true in all circumstances. In some situations, it is best to be honest, while in others
it is best to be kind. Put otherwise, morality is not codifiable, as the point is sometimes
put.15 No matter how carefully we try to specify and rank moral virtues (or rules), we are
bound to meet with exceptions. Notice that our experiences trying to reach correct moral
decisions in hard cases help to prove this point. In these cases, no simple rule, or ranking
of rules, seems to lead to the correct answer. Rather, finding the correct answer requires
the capacity to see which facts are most salient in the situation. There is no shortcut to the
acquisition of this capacity; it comes from experience and wisdom. In hard cases, virtues or
rules conflict, and we should expect moral theories to reflect this feature of our moral lives.
The fact that virtue ethics does not provide simple answers to difficult moral questions is
not, then, a problem with the view; rather, it is a point in its favour.

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 Chapter 3  Our Philosophical Approaches  81

Another objection to virtue ethics that Doran raises is that virtue ethics gives the
incorrect account of the reason why actions are right and wrong. He notes that the
main reason why it is wrong to abuse animals, for instance, is not that it manifests a
vicious character or because, on my view, virtuous persons would see it as wrong. The
reason why animal abuse is wrong is that it causes needless suffering to the animal.
But this is a point that virtue ethicists can fully agree with. The objection, I believe, is
based on a failure to distinguish between two different questions: What is rightness/
wrongness? and What makes an action right/wrong?16 My answer to the first question
is that rightness and wrongness are dispositional properties. More specifically, and
simplifying somewhat: for an action to be right just is for it to be such that it would
appear right to virtuous persons. And for an action to be wrong just is for it to be
such that it would appear wrong to virtuous persons. When we consider the question
What makes an action right or wrong? we are asking (on my view) what makes an
action such that it appears right or wrong to virtuous persons. Now, to return to
Doran’s example, what makes animal abuse wrong is just what he says—that it in-
volves the infliction of needless suffering. This is what makes the action wrong; that is,
this is what makes the action such that it appears wrong to virtuous persons. Once we
distinguish between these two questions—What is rightness/wrongness? and What
makes an action right/wrong?—I believe this objection evaporates.
A final objection that Doran raises is that virtue ethicists are themselves guilty of fail-
ing to draw an important distinction—in this case, the distinction between what makes
an action right or wrong and what makes a person good or bad. The alleged failure to note
this distinction is illustrated by considering well-meaning individuals who unwittingly act
wrongly. In such cases, we may want to say that the individual did something wrong and
that the individual is nonetheless morally good or virtuous. Doran provides a specific ex-
ample to make the point: Consider someone who performs an act that he thinks is benefi-
cial, but which turns out to be harmful. Perhaps he donates to a charity because he wants
to help famine victims; however, it turns out that the charity is a fraud, and the money
actually supports the lavish and corrupt lifestyle of a con artist. In this case, it is clear that
giving to the charity was not the right thing to do, although we may still want to view the
person who donated as having a good character (as being charitable).
Doran concludes that “if this is correct, then right action cannot be understood
simply in terms of virtuous character.” Perhaps this is a problem for some versions of
virtue ethics; I’m not sure. But it is not a problem for my view. An action’s being right
or wrong, on my view, consists in the fact that it would appear right or wrong to fully
informed virtuous persons. Since a fully informed virtuous person would know that the
charity was a scam, then the act of giving to the charity would not appear as right to this
person. So I have no difficulty saying that the action in question is not right. But can I
also say that the person who gave to the charity has a good character, since he exempli-
fies the virtue of charity? Sure, there’s nothing at all that prevents me from saying that
the person is morally good (or virtuous, or praiseworthy) insofar as he was trying to be

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charitable. (I would add, however, that he might also be deserving of some blame, if he
should have known that the charity is a scam.)
So, how will I, from my virtue ethics perspective, attempt to answer difficult moral
questions, such as the ones we will investigate in this book? The first thing I will try
to do is get a firm grip on the relevant facts in the situation. Then I will ask what the
virtuous person would do in the situation. More specifically, however, I will be asking
what the kind, considerate, honest (and so forth) thing to do is in the cases discussed.
Of course, it will not always be easy to determine this. And even when I can, the various
virtues will often conflict. In these cases, I will rely on whatever moral experience and
wisdom I’ve managed to acquire at this point in my life to determine which facts are
most salient in the case, and so which virtue(s) should prevail in the situation.

WARREN’S APPROACH TO ETHICS: PRACTICAL SOCIAL

CONTRACT THEORY
The Main Contractarian Ideas for Warren’s Purposes

I defend the particular moral views I take by showing how they would be acceptable
to a bunch of selfish, ignorant people. That is only partly a joke, as you will see. I will
consider what rules self-interested people would choose if they were ignorant of their ad-
vantages, allegiances, biases, and the other particular things about them that determine
what rules they accept. My view is inspired by a longstanding tradition in philosophy.
Plato, Hobbes, Locke, Rousseau, and Kant, among the most famous of philosophers
in history, have all been associated with some form of social contract theory. The con-
temporary philosopher John Rawls is a huge influence on my thinking, although Rawls
would disagree with many of my uses of contract theory. Social contract theory is often
used to justify claims about what political system is just. My use of the ideas of contrac-
tarians, however, is to generate a method for debating any moral rules that are proposed.
I do not confine attention to questions about the justice of institutions. My question
is, rather, how to fairly choose rules that guide us in what we ought to do in all areas,
personal, political, and others.
Think for a moment about people who make rules. Members of the Canadian
Parliament, for example, make laws. They also make many regulations that affect mem-
bers of Parliament. For example, they, unlike most of us, determine what kind of pension
plan their members will have. Not surprisingly, they gave themselves an astoundingly
good pension plan, much better than the one nurses have, for instance. Even after being
moderated in response to public outcry, it is still exceptionally generous. Now, many
have thought this unfair. We might say that nobody who was not a parliamentarian or
hoping to be one would have set up the rules in such a way as to give such a lush pension
plan to that group.

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 Chapter 3  Our Philosophical Approaches  83

Now, this is a crucial idea: nobody would accept the plan unless he or she was sure
to be a member of Parliament. Ignorance of advantages and disadvantages is the kind of
ignorance I want to build into my test of rules. I will take my cue from the contractarians
who make use of a kind of ignorance of one’s own contingencies. Here is a brief explana-
tion of contractarian theory and my use of it.
Contractarians ask us to follow the rules of the ideal social contract. We discover
what these rules are by asking what rules people in the original position would choose.
The original position is a hypothetical situation in which people are:

1. equally powerful (so nobody can force others to accept a rule);

2. equally intelligent (so nobody can trick others into accepting a rule);
3. self-interested (so no other moral theory enters social contract theory in a
Trojan Horse);17 and
4. ignorant of their own advantages and disadvantages, loyalties, biases, or any-
thing else about themselves that would influence their choices of rules that
would govern their behaviour. (Behind this veil of ignorance, participants can-
not skew the rules in their own favour or in favour of their group.)

People are never really in the original position. It is just a useful fiction that we can
use to figure out what rules are fair. We can ask, What rules would people in the original
position want to apply to themselves in the real world? Given that people in the original
position are self-interested, they will want to choose rules that will benefit themselves in
the real world. However, in the original position, people do not know any personal facts
about themselves, including where they will end up in the real world. This means that
they will not be able to tailor the rules to suit their own particular circumstances. It also
means that in the original position, people will choose rules that give everyone in the
real world a chance to successfully pursue their own interests.
Another major restriction on people in the original position comes into play when
they choose the rules that will govern people’s behaviour in the real world. This is the
human-sympathy metarule, a rule about how to make other rules. It says: Choose rules
that people with ordinary human sympathies could follow. I construe “sympathy” very
broadly to include most of the positive emotions we have toward one another. Vague
as “sympathy” is, people in the original position would still be restricted significantly
in the rules they could choose. They could not, for example, choose a rule like this:
Maximize human happiness. That rule requires, for example, a mother to starve her
own children so that she can feed many more children in Peru if she knows the con-
sequences for human happiness would certainly be better that way. That is clearly over
the top. This human-sympathy restriction prevents the theory from asking too much
of people. Rules that are too hard to follow will be ignored by people in the real world,
so people in the original position would not choose them. The rules people would
generate in the original position would be usable moral rules in the real world—rules

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that real people could follow. They would not require us to be saints or superhuman
ethical calculators.
Of course, where some kinds of sympathy lie can depend on one’s culture, or family
or other ties. If we were in the original position, we could not rely on that kind of sym-
pathy. We would not, after all, know what ties might bind us. Instead, we would have
to attend to feelings that are common to human beings the world over, like the strong
attachment of most mothers to their own children.
It may be objected that we need to know our personal degree of sympathy and other
characteristics in order to choose rules in the original position. Otherwise we might end
up making rules that favour people with an uncommonly high degree of sympathy. The
solution to this problem is one that we would have to use widely if we were in the origi-
nal position. Not knowing how sympathetic we might be to others, we would be wise
to choose the mean between extremes. We should make rules appropriate for people who
have neither the sympathy of saints nor a total lack of sympathy but who have sympathy
to a moderate degree. In general, we would be guided by moderation if we were in the
original position. It would keep us from going too far from where our interests lie.

The Committee Metaphor

Now consider a fanciful metaphor to explain what it would be like to choose rules in the
original position. This metaphor makes limited sense, but is intended not as a genuine
possibility but only to reveal what we believe about fairness in terms of two concepts: the
original position and the subordinate concept of a veil of ignorance. You will, I hope, find
the metaphor useful for revealing your own beliefs about what is fair.
Suppose that a new anesthetic has been developed which makes people temporarily
amnesiac. They retain their general intellectual and emotional abilities, but they forget
who they are and where they are. They are also temporarily blind. They cannot feel
their bodies except to the extent that they can speak coherently. These people, though
rational, are behind a veil of ignorance about their own personal advantages and disad-
vantages in society. They do not know if they are crippled, average, or athletic in their
bodily capacities. They do not know their positions in society, what sort of personalities
they have, nor any other personal information, not even their genders or ages. They re-
tain general knowledge about the human condition, but no particular religious or moral
beliefs. This peculiar amnestic anesthetic is put to an interesting political use.
Under the auspices of the Hospital Ethics Committee, a subcommittee of volun-
teers takes this anesthetic in order to approximate the original position from which
to write a charter of rights of patients and health care providers. They communicate
with each other only indirectly through intermediaries. As much as possible, the veil
of ignorance is thickened. They do not know whether they are patients, administrators,
physicians, nurses, or janitors. The anesthetized committee members are told that they
may have children and grandchildren they care deeply about who are mentally impaired

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 Chapter 3  Our Philosophical Approaches  85

or much more brilliant than they are. The volunteers have been chosen to be equally
intelligent, rational people.
These volunteers, acting in their own self-interest, have insufficient information to
be unfair. They cannot even favour their own generation. The rules they choose must be
acceptable to an arbitrarily chosen person, for the volunteers do not know who they will
turn out to be. They also realize that they must choose rules that people with ordinary
human sympathies can follow.
The point of this odd metaphor of the volunteers is to explain what the original
position is like. Asking what rules the volunteers on this subcommittee would choose is
like asking what we would choose if we were in the original position. The rules people
would choose in the original position are the justified moral rules. They would form
the fair rules of the ideal social contract. They might be a great deal like the rules that
some other moral theorists choose to tell us what our moral rights and duties are, but
their justification is different. Whatever rules we come up with in any theory, if there is
more than one rule and no rules are given priority over others, then we need to say what
happens when rules conflict. Conflicts of rules are decided for my kind of contractar-
ian by asking which rule would be given heavier weight in the original position if the
choosers of rules were given the facts of the case but did not know their roles, if any, in
the particular case.
Consider the case of a mentally fragile hospital patient, Zelda, who wants to know
her diagnosis, and of her physician, Zeke, who thinks it will harm her to learn her
diagnosis just now, although he knows that Zelda has a fatal illness. If you were in the
original position you would not know if you were a patient like Zelda, a health care
provider like Zeke, an administrator, a family member, or a person in some other role.
You would have to select general rules to govern people’s behaviour in such situations.
These would be rules that you could live with no matter who you turned out to be in
the real world. You would want honesty, in order to protect your own interests, but
you would realize that brutal honesty might not be in your interest. While you would
want the truth to be revealed, it might be allowed to emerge gradually with education
and emotional support. You might try to write a rule of compassionate honesty into
your social contract. Zeke would be required to educate his patients and break difficult
news to them gradually and gently when possible.
If you were in the original position, you would want to protect your right to au-
tonomy, your right to determine how your own life goes, by protecting your access to
knowledge about yourself. You would know that few would look after your interests
the way you would. At the same time, you would accept, in the original position, some
limitations on autonomy that would be required to prevent you from getting too much
choice when you could not handle it in the real world. If you are fragile, like Zelda, or if
you are a child, you might want your autonomy in gentle doses.
One way to describe the balance to be achieved by those wishing to satisfy the re-
quirements on the choosers of rules in the original position is to say it is a balance between

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protecting autonomy and weak paternalism. In other words, we are trying to balance
protecting our ability to make choices for ourselves with allowing others to make choices
for us that are intended to be in our own best interest. Those in the original position would
accept certain slightly paternalistic rules the way we in the real world may accept seat belt
legislation. This kind of legislation discourages us from temporary irrationality that would
be contrary to our best interest. The freedom to drive without seat belts is not worth dying
for. Some other more basic freedoms are worth dying for, and we want to make distinc-
tions among the various types of freedom and the ways we should protect them. The
choosers of rules in the original position would try to set the rules so as to protect their
interests, primarily by ensuring respect for personal autonomy, but also by allowing for our
protection against our own temporary irrationality. Any restriction on autonomy would
have to be justified by an appeal to the protection of our interests.

The Video Game Metaphor

In another attempt to make the original position understandable, I am going to explain

it in terms of an imaginary video game. Suppose you are playing a video game that
you want badly to win—Sim Society. To win you must maximize the personal satis-
faction of the character you control in an imaginary society and culture. You will do
this through using opportunities for personal growth, wealth, health, and happiness.
You do not, however, know in advance which of many characters you will control. The
computer decides which one you get. Your character may turn out to be one with many
advantages—wealth, beauty, family connections, a large inheritance, great intelligence,
energy, strength, supportive social networks, and the like. Of course, your character
might lack any or all of these advantages and might even be extremely disadvantaged.
Some characters suffer from poverty, membership in a despised group, physical and/or
mental disabilities, living with drug-addicted parents, and other disadvantages.
Before you are given your character, you are asked to choose some rules that the
characters will play by as they pursue fulfillment. Your only motivation is to win, but
you don’t know which character you will get. Your task is just to choose rules that will
give your character the best chance no matter who he or she turns out to be. In choosing
rules this way, you are like the choosers of rules in the original position in social contract
theory, behind a veil of ignorance about the particulars of their lives. The sort of rules
you would choose would be fair rules.

Warren’s Use of Social Contract Theory

Let me assume that you have a rough idea of how a social contract theorist uses the fic-
tion of the original position to argue for the acceptance of rules in the real world. The
way I use it is not, as some have, to argue that any particular set of rules is an absolute
moral truth. I am content to use it as a way to generate debate and to argue for rules.

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 Chapter 3  Our Philosophical Approaches  87

We cannot know for sure what rules people in the original position would accept. We do
not have to know this. We only need to be able to give reasons for or against accepting
particular rules. Contractarian thinking gives us a way of justifying principles but does
not guarantee that we will come up with a justification on which we can all agree. All I
expect is a basis for public debate. I seek merely intersubjective, not absolute, principles.

Cultural Relativism

One might object that the contractarian method of justifying rules is a part of the cul-
ture of the West and not something that is genuinely universal. That may be so, but
this method gives us a degree of objectivity that is as close as we can get to the probably
unattainable absolute and universal rules for which we long. The choosers of rules in the
original position would not know their country, culture, or religion. Hence they would,
in their own self-interest, choose rules that encourage tolerance of various cultures, so
long as those cultures were not harmful to each other or their own adherents. A cultural
rule that requires human sacrifice would be contrary to the rules chosen by people in the
original position, but cultures that live and let live would not run afoul of the rules cho-
sen in the original position. Some would, nonetheless, call my view cultural imperial-
ism, but the poor person on the sacrificial altar would probably (though not necessarily)
welcome this sort of interference. Be that as it may, this is the most culturally neutral
moral theory I have seen.18

Ethics Regarding Non-Humans

Earlier in this chapter, Doran mentioned a serious criticism: “Social contract theory
is notoriously weak, for example, in satisfactorily explaining our obligations to non-
rational beings and entities, such as mentally incompetent humans, non-human animals,
the natural environment, and future generations.” I have wrestled with this problem in
my book Persons: What Philosophers Say about You, and I refer you there for more details.19
I do not recognize obligations to the natural environment, but this is no problem.
It is in the interest of people in the original position to accept rules that preserve the
natural environment, since their interests will be tied to that environment in the real
world. The more difficult questions for me have to do with our obligations to incompe-
tent humans and non-human animals.
Since I do not think that being human is essential for being a person, I have less
trouble with this than some contractarians. Intelligent non-humans are not automati-
cally banned from the moral community. One thing that is morally relevant on my
view is ability. I think that human beings and any other creatures that are capable
of the kind of mental and emotional feats that most humans can perform must be
given special consideration in our moral judgments. We have capacities, for example,
for anticipation of the future that some creatures do not have. These give us special

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 88   DEBATING HEALTH CARE ETHICS

capacities for pleasure and pain quite different from those of other animals. We are
free to make choices. This makes praise and blame reasonable for people, though not
for most other animals. Making rules in the original position, we could take such
things into account and realize that they are matters of degree. In that position we
would recognize, for instance, varying degrees of responsibility corresponding to vary-
ing degrees of capacity to understand what we are doing and anticipate consequences.
It would make sense to distinguish between those who are competent to make deci-
sions and those who are not, and to give those who are competent more power and
responsibility. Because choosers of rules would not know whether their children might
be mentally at a great disadvantage in the real world, they would want protections for
human beings who are mentally disadvantaged, but they would not want these human
beings to be given power or responsibility that they cannot reasonably exercise. That
would be in nobody’s interest.
This still leaves the problem of rights of non-human animals, since the choosers of
rules know they are not in that group. Their children too will be human, however min-
imal their mental abilities turn out to be in the real world. Remember, however, that
I have a special restriction on the choosers, the sympathy metarule. The choosers of
rules must give us rules that people with ordinary human sympathies can follow. Our
sympathies for a person remain even after that person’s mental abilities have drained
away. Our strong sympathies for animals and those among the mentally disabled who
never did have the capacity to make free, informed choices are also important. I have
argued in Persons that rights of animals and disadvantaged human beings would be
preserved by the choosers of rules in the original position because it would be in their
interest to nurture the kind of sympathy that they might very well need for their chil-
dren or, in the future, for themselves. We would give animals rights appropriate to
beings that cannot bear responsibilities but that can feel pleasure and pain and have
limited virtues. Unless our rules require their humane treatment, we encourage cruelty
and risk that it will extend to us.
People manage to suppress sympathy for animals by keeping their suffering out of
sight and out of mind. People who eat burgers would often go to great lengths to help a
cow they found tangled in a barbed wire fence. In the original position, we would know
that there is a danger that someone who could walk by the cow without a thought would
also be able to suppress feelings for human beings. That is one reason why the rules would
be set up to protect animals. Even if only a part (and I think the larger part) of the human
population extends sympathy to animals and people in the same way, these rules protect-
ing animals would be useful protection for interests of persons as seen from the original
position. That is why fair rules would require us, for instance, to give up some of the cheap
but inhumane food production methods on which agribusiness currently relies.
This does not mean that my theory supports fully the extreme animal rights move-
ment. On a contractarian basis, animals can only gain rights via the interests of people.

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 Chapter 3  Our Philosophical Approaches  89

These interests, however, can be quite broad. Even if we knew that people would soon
be extinct on Earth, it might be in our interest to set up arrangements to prevent animal
suffering after our extinction. It might make us feel better in the present to work for a
future with less animal suffering. Admittedly, saying that animal suffering only has im-
portance with respect to interests of persons makes me uncomfortable. It does, however,
give an intuitively right answer when we look at decisions like whether to save persons
at the expense of animals. My view has the effect of putting persons first but avoiding
the inhumane treatment of animals and human non-persons.
It is important, as well, that our moral rules in the ideal social contract be consistent
with ordinary human sympathy. The rules affecting animals will have to take into ac-
count the strong sympathy people frequently have for non-human animals.

Social Contract Theory beyond Ethics

Another way in which I depart greatly from contractarian tradition is to extend the con-
tractarian method to metaphysics (the theory of reality) and to epistemology (the theory
of knowledge). I believe that our claims about what is real and what we can know are
value-laden. These would be subject to the same test as our moral principles. Indeed, the
advantage of this way of proceeding is that we get a unified theory of knowledge, moral-
ity, and reality just as Plato wanted, but without claims about such things as Platonic
Forms or other absolutes that are just too hard to believe.
An example of this way of proceeding can be seen in my approach to rationality, a
concept that draws deeply on our metaphysical and epistemological ideas. Rationality is
a much-contested concept. Many think they have a lock on absolute truths about what
is reasonable, but it turns out that others are equally convinced of contrary views on the
subject. These views are often highly coincident with the advantage of those who adopt
them. Behind a veil of ignorance, people might not be so confident. I think we should
ask ourselves what we would accept as the mark of the rational if we did not already
know where our advantages lay. I would say that the rules we follow to determine if a
belief, a choice, a goal, or a person is rational would have to be rules we could agree to if
we were in the original position. It would not be in our interest to allow others to declare
us irrational to further their own interests. We need a standard of rationality we can
live with in the real world, especially where this is used to determine the competence of
patients to decide on their treatment.

Warning

In general, I will continually appeal to the original position to defend not only my ethi-
cal positions but also my other philosophical positions in the coming debate. This may
become annoying after a while, but that is my job. I am a philosopher.

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 90   DEBATING HEALTH CARE ETHICS

CONCLUSION
Each author has now explained his favoured approach to ethics. Doran will apply a ver-
sion of pluralistic deontology, Patrick will use his distinctive virtue ethics approach, and
Warren will turn to his social contract theory to address the moral problems in health care
that are explored in subsequent chapters. Remember to return to this chapter from time
to time, if you are having difficulty remembering the details of any of their approaches.

REVIEW QUESTIONS

1. Explain why Doran’s theory is called pluralistic deontology.

2. Why does Doran reject utilitarianism, Kantianism, social contract theory, and virtue ethics?
3. What steps does Doran think must be taken to resolve a particular moral problem?
4. What is the distinction between metaethics and normative ethics?
5. According to Patrick’s version of virtue ethics, what does it mean to say that something
is morally right or wrong?
6. In what ways does Patrick believe that colour properties and moral properties are
analogous?
7. What is the original position? What is the veil of ignorance? What role do these concepts
play in Warren’s ethical theory?
8. Explain the sympathy metarule, and give an example to explain its use.
9. Consider a case of mercy killing—say it is the case of Tracy Latimer, where her father
Robert deliberately ended Tracy’s life so that she could avoid a life of horrible suffering.
The details of this story can be found at [Link]
article/robert-latimer-case. How would Doran, Patrick, and Warren approach this difficult
ethical issue?

NOTES

1. Chapter 2 contains a more detailed discussion of the strengths and weaknesses of some of the
leading normative ethical theories.
2. The example is based on a similar case initially introduced by R. Sartorius and used by Will
Kymlicka in his Contemporary Political Philosophy, 24.
3. Ross, The Right and the Good. While my approach to ethics is closest to Ross’s theory, I do not
necessarily accept Ross’s claim that general moral principles are both self-evidently true and
known through a faculty of moral intuition.
4. This is sometimes referred to as reflective equilibrium, a concept explained in somewhat greater
detail in chapter 1. An excellent discussion of reflective equilibrium can be found in the Stanford
Encyclopedia of Philosophy, [Link]

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 Chapter 3  Our Philosophical Approaches  91

5. For the sake of simplicity, I ignore here potentially important distinctions among sentences,
claims, and propositions.
6. The concept of objectivity is ambiguous. Readers should therefore be aware that different
philosophers often mean different things when they speak of the objectivity of morality.
7. Because this is an introductory text, I am ignoring potentially important differences between
reasons and motives. Put very roughly, the difference is that reasons are considerations that
justify one’s actions, whereas motives are considerations that explain one’s actions.
8. My thinking about this issue was inspired by John McDowell’s paper “Values and Secondary
Qualities,” which appears in Ted Honderich’s book Morality and Objectivity (Boston: Routledge
and Kegan Paul, 1985).
9. The claims I assert here obviously require much more defence, but providing a more adequate
defence is well beyond the scope of this section.
10. The basic line of argument is that just as the redness of an object consists in the fact that it
appears red to those with a properly developed colour sensibility, so the rightness of an action
consists in the fact that it would appear right to those with a properly developed moral sensibility.
11. There are, of course, important differences between a dispositional account of colours and the
dispositional account of moral properties that I propose here. One important difference, for
instance, is that the appropriate observers in a dispositional account of colours can be specified
statistically. However, a statistical specification of the appropriate observers is not plausible in
a dispositional account of moral properties. I do not believe that this difference undermines the
value of the analogy, although some may disagree.
12. This internal connection is admittedly rather loose. However, for reasons that I cannot defend here,
I believe that any tighter internal connection is not plausible. But it is less plausible that there is no
internal connection at all. David Lewis makes a similar point about his own view in “Dispositional
Theories of Value,” Proceedings of the Aristotelian Society suppl. vol. 63 (1989): 113–37.
13. These objections are discussed at length in chapter 2, where we critically examine the leading
normative ethical theories.
14. For an interesting discussion of dispositional views and the problem of circularity, see Jeffrey C.
King’s “On the Possibility of Correct Apparently Circular Dispositional Analyses,” Philosophical
Studies 98 (2000): 257–78.
15. This point has been made, in various ways, by several virtue ethicists, including Aristotle and
John McDowell.
16. This is a distinction that was intentionally ignored in the previous two chapters, given that it raises
a number of complex issues. It is necessary to introduce the distinction here, however, in order
for Patrick to respond to one of Doran’s objections to virtue ethics.
17. The Trojan Horse was a hollow statue used to sneak soldiers into their enemy’s city during a
siege. Here it is being used to refer to a device for sneaking moral rules into the very procedure
that is supposed to determine which moral rules are good ones.
18. More detail on relativism can be found in chapter 2’s discussion of normative ethical theory.
19. Warren Bourgeois, Persons: What Philosophers Say About You, 2nd ed. (Waterloo, ON: Wilfrid
Laurier University Press, 2003).

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 4 AUTONOMY AND THE RIGHT
TO REFUSE TREATMENT

INTRODUCTION

Common-sense moral thinking strongly supports a principle of respect for autonomy.

The rough idea here is that we ought to respect individuals’ right to choose how to lead
their lives. Within a medical context, this principle suggests that we ought to respect the
right of patients—at least insofar as they are competent—to choose their own course
of care. Respecting patient autonomy seems to imply, among other things, that we rec-
ognize a right to refuse medical care. These basic points are relatively uncontroversial.
Controversy quickly emerges, however, when we attempt to get beyond the basics and
specify more precisely what we mean when we speak of autonomy, competence, and the
right to refuse medical care.
To help us think through these issues, we consider the case of Jonathan Edwards.
Mr. Edwards was recently diagnosed with multiple sclerosis (MS). Because of his MS,
he also suffers from dysphagia, a potentially very dangerous condition where one is
prone to choke. He recently had a choking incident and has been admitted to the hos-
pital for observation. His doctor prescribed a soft diet; however, Mr. Edwards is in
denial about his condition (both his MS and the dysphagia), and he insists on eating
solid foods. He is at times disoriented and confused, but at other times he seems to
understand his doctor’s warnings and just thinks they’re overblown. Mr. Edwards is a
very strong-willed individual and he is determined not to have his diet restricted, yet
allowing him to eat solid foods would put him at a high risk of serious harm. After argu-
ing with his physician over his diet, Mr. Edwards insists on being discharged from the
hospital. His doctor and nurses are concerned that if he is allowed to leave the hospital
he will return to his normal diet and will be risking grave harm to himself. A psychiatric
assessment finds Mr. Edwards competent, but his eccentric and at times seemingly irra-
tional behaviour leads some of the members of his health care team to believe otherwise.
By debating Mr. Edwards’s case, we are able to explore the difficult issues of
autonomy, competence, informed or valid consent, and the right to refuse care. Was

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 Chapter 4  Autonomy and the Right to Refuse Treatment  93

Mr. Edwards competent to make his health care decisions? Was Mr. Edwards’s refusal
of care valid? As you read through the drama and the debate, be mindful of such is-
sues as when a competent person’s liberty may be interfered with for that person’s own
good, and under what conditions a person should be permitted to make their own
health care decisions. Focusing on these general questions may help you to develop a
clear approach not only to the issue of whether Mr. Edwards was competent to make
his health care decisions, and whether his health care team erred in releasing him
when they did, but also to a wide variety of cases involving patient autonomy and the
right to refuse medical care.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Define autonomy
• Explain what it means for a person to be competent (or incompetent)
• Distinguish soft paternalism from hard paternalism, and weak paternal-
ism from strong paternalism
• Discuss Patrick’s and Doran’s view that greater paternalistic interfer-
ences were warranted in Mr. Edwards’s case, even if he was competent
to make his own health care decisions
• Discuss what is required for people to be competent to make their own
health care decisions
• Distinguish informed consent or informed refusal from what Warren
views as valid consent or valid refusal
• Understand the relationship between autonomy, competence, and valid
consent or refusal
• Describe Warren’s reasons for thinking that Mr. Edwards’s health care
team did not err in releasing him from the hospital when they did
• Explain Patrick’s and Doran’s reasons for thinking Mr. Edwards’s health
care team erred in releasing him from the hospital when they did

DRAMA
Please note: This case is based on various true stories, although names, places, and some
uncontroversial elements of the case have been changed to preserve anonymity and con-
fidentiality. Discussions of this and similar cases with health care professionals have also
informed this fictional case. The drama merely raises issues. The philosophical argu-
ments are to be found in the debate following the drama.

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CHARACTERS

Jonathan Edwards: a patient with MS Dr. Paula Paladin: the attending

causing dysphagia physician
Brad Edwards: Jonathan’s husband Eva Kowolski: the head nurse
Charles Nolet: a nurse assigned to Jane Kruala: a social worker
Mr. Edwards’s care and his friend
of many years

Scene 1

A patient, Jonathan Edwards, is talking animatedly to nobody while his friend and nurse,
Charles Nolet, observes him, unseen, from the door to the ward.

Jonathan: Nonsense! The idea! Me, DEFINITION

with multiple sclerosis? Why, I’m as Multiple sclerosis or MS is a disease
healthy as a horse. I’m sure my prob- in which the central nervous system is
lems come from something much less damaged by deterioration of a protec-
exotic than MS. (He spots Charles, who tive covering called the myelin sheath. It
walks in with his arms out to his old causes a variety of symptoms including
friend.) Oh! Goodness. (Laughs) You weakness, lack of coordination, speech
caught me rehearsing. How are you, disturbances, vision problems and
my old friend? strange sensations. It can also cause
Charles: Very well, Jonathan, but how are dysphagia, i.e., difficulty in swallowing.
you? MS can vary from mild to debilitating.
Jonathan: Oh, never mind about me. Oh, The course of the disease is usually
it’s so good to see you. Your mother prolonged with remissions and relapses
said you were working here and I over years. The cause is unknown.
knew I’d be getting a visit.
Charles: More than that. I got myself as- Source: W. A. N. Dorland, Dorland’s
signed to your care. Nothing but the Illustrated Medical Dictionary (Philadelphia:
Saunders, 1985), 1180.
best for you.
Jonathan: Oh, lucky me. It is a good thing,
since my doctor is trying to starve me
to death. Brad brought me in a nice chop. Even if it is cold, it’s better than that hid-
eous gruel they expect me to put up with. I won’t have it. It is utterly nauseating.
Charles: Let’s see your chart. Ah, yes. Dr. Paladin ordered a soft diet. She thinks you’re hav-
ing trouble with your swallowing reflex. The motility test they gave you…

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 Chapter 4  Autonomy and the Right to Refuse Treatment  95

DEFINITION
Motility is the ability to move spontaneously. If this ability is lost in the parts of the body
used to swallow, dysphagia results.

Jonathan: I swear, that young doctor hasn’t a brain in her head. My chop was delicious,
thank you, and I swallowed it all. Yes, I choked once upon a time, but who hasn’t
done that? No doctor is going to tell me what to do.
Charles: Well, I see you’re just as stubborn as ever.
Jonathan: And I always will be. By the way, I’ll need your help. I can get to the kitchen
to get the little care packages my family leaves in the fridge, but I can’t reach the
food when it is pushed to the back. Pull it up to the front for me, will you? My
things all have a little green ribbon taped on them. Oh, and one more thing, that
chair that Brad has to sit in when he visits is so hard on his bad back. What pos-
sessed them to buy such ridiculous chairs? See if you can get something else, will
you, Charles?
Charles: I’ll see what I can do.
Jonathan: Much appreciated. I think I’ll just nap now. The door isn’t open, is it? There’s
a draft. We wouldn’t want Nettles to get out.
Charles: Nettles?
Jonathan: Yes, my cat. Oh of course, you went away before Brambles died, poor old
thing. Nettles can’t hold a candle to Brambles, you know. Do see that the door is
closed and ask Brad to open a tin for little Nettles, won’t you?
Charles: I will.

Scene 2

Charles and Eva Kowolski, the head nurse, are discussing Mr. Edwards.

Eva: Well, there is a question of competence.

Charles: Oh, Mr. Edwards is okay. I’ve known him for years. He’s always been a little
bit eccentric, you know, but he’s got all his marbles, all right.
Eva: Maybe knowing him for years clouds your objectivity about this patient just a little.
Charles: What do you mean?
Eva: He refused to get an MRI scan because he doesn’t think he needs one and thinks
it’s a waste of tax dollars. He says he’s perfectly healthy when he can barely get into
his wheelchair. Charles, he talks to himself. He shouts and gesticulates at the empty
air. He’s forever pushing the call button to have us feed his imaginary cat or put it
out or let it in. Alice in Wonderland was straighter.

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Charles: He’s always been like that. He built and ran a travel agency talking to himself
all the while. He calls that talking to nobody “rehearsing.” It’s just a quirk.
Eva: Did he always have a Cheshire Cat?
Charles: Okay, he is a bit confused about being here or being at home sometimes. Net-
tles is a real cat, just not here.
Eva: Look, Charles, he’s practically family to you. You said he helped finance your educa-
tion as a nurse. Gratitude would make you want to give him the benefit of the doubt.
Charles: Of course I’m grateful. But that isn’t the whole thing. You have to know him. He’s
always been so peculiar. People thought he was crazy before, and he was crazy like a
fox. He’s made millions being different, and he put a lot of that loot into this hospital.
Maybe he is a little bit confused, but I owe it to him—we all owe it to him—not to write
him off too soon. I swear, when I’m talking to him, he can be as sharp as a tack.
Eva: Your judgment may be clouded by your friendship. Seriously, think about the pos-
sibility of his choking. I think we should make sure Dr. Paladin’s order for a soft
diet is strictly followed.
Charles: I’ll see what I can do, Eva.

Scene 3

A patient-care conference between Paula Paladin (physician), Eva Kowolski (head nurse), Jane
Kruala (social worker), and Charles Nolet (nurse), concerning Mr. Edwards.

Paula: Have there been any incidents of choking since the first one that led us to do the
motility test?
Eva: No, we’ve been lucky.
Paula: I don’t want to depend on luck. Let’s keep him on soft foods.
Jane: Mr. Edwards is in denial. Until he’s convinced and his family is convinced that
he really has MS and really has a problem with swallowing, we aren’t going to get
co-operation.
Paula: Well, Mr. Edwards is not competent to consent.
Charles: We can’t say that. He does some quirky things, but he’s right on top of it when
we discuss his treatment.
Paula: So why doesn’t he comply?
Charles: Because he doesn’t agree that it is necessary. I’ve discussed the risks with him
and he says he is willing to take those risks. He’s been a big risk-taker all of his life.
Eva: Yeah, well, I don’t want him aspirating on my watch.
Paula: A rational person wouldn’t risk death for a lamb chop.
Charles: We all eat fast food, and that box of doughnuts Brad left for us disappeared
pretty quick. We’re slowly digging our graves with our teeth, and we know it. He’s

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 Chapter 4  Autonomy and the Right to Refuse Treatment  97

just making tougher choices. The threat of death is a little closer. We might not
share his values, but anyway, he’s one of the most rational people I know.
Paula: So what do the rest of you think? Is Mr. Edwards competent? Should we respect
his autonomy?
Eva: I don’t know. He seems too scattered to me.
Jane: Well, let’s have the psychiatrist test him. If he really understands the consequences
of his choices, then we should respect those choices.
Paula: Okay, but keep a close eye on him in the meantime. Be ready to suction him. Try
to talk him into accepting the soft diet.
Eva: (Laughs) Nobody talks Jonathan Edwards into anything.
Charles: He’s got a strong mind.
Eva: A strong will, anyhow.
Paula: Well, Charles, you’re close to him. See if you can persuade him to be a little
more co-operative.
Charles: I’ll see what I can do.

Scene 4

Dr. Paula Paladin and Jonathan Edwards talk about Jonathan’s second choking incident.

Paula: You don’t seem to appreciate the situation. If Charles had not been right there to
help you out, you could have suffered some serious long-term consequences.
Jonathan: Like what?
Paula: Brain damage from hypoxia or DEFINITION
death, for instance. Hypoxia is a reduction of oxygen to tis-
Jonathan: What was that, dear? High sue in spite of adequate blood circula-
what? tion. If it is not remedied immediately,
Paula: Hypoxia is not getting enough ox- the brain is deprived of oxygen, causing
ygen. When you can’t breathe, you’re damage.
in deep trouble.
Jonathan: Oxygen, my word. There’s none
in this stuffy little room, in any case. Of course, if we leave the window open,
Nettles will get out. Now, don’t roll your eyes, young lady. Nettles may be just a cat,
but she’s a dear little thing. Now, about this choking business, what this tells me is
that I need somebody to stand by with one of those dreary little suction machines
when I eat. Giving me baby food, my dear, is not an acceptable solution.
Paula: Mr. Edwards, we haven’t the staff to watch over every patient who might
choke and aspirate during every meal. For us to help you, you must listen to
some of our advice.

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Jonathan: I’m not sure I like your tone, doctor. The very independence of mind that
seems to be such a problem at this institution has served me so well in life that
I can afford to hire some twit to stand around with a tube in hand while I have
my meals.
Paula: Speaking of tone, do you think that the people who have been caring for you
deserve a little respect? Charles…
Jonathan: Oh, the nurses here have been wonderful. Don’t put words in my mouth.
Paula: Words like “twit”?
Jonathan: What are you saying? I have never used such language.
Paula: Mr. Edwards, you seem rather unhappy with your care here.
Jonathan: What gives you that impression? Nettles and I are quite happy here, I assure
you. I don’t know where she has gotten to. Frisky little thing. Always off and about
somewhere.
Paula: We were just speaking of your soft diet…
Jonathan: Out of the question, my dear.
Paula: And this latest choking incident of yours. I was saying that we couldn’t provide
staff to watch over you at every meal.
Jonathan: Then I will provide staff. It won’t be hard to find someone to stand around
with a tube in hand waiting to suction me if need be.
Paula: Your life depends on it. You need a trained nurse. This is not a task for an un-
skilled person.
Jonathan: Stuff and nonsense! There’s nothing to it. My cleaning woman could do it.
Paula: Trained nurses know how to deal with quite a variety of complications that can
arise as a result of choking and aspirating. Speedy responses are vital when you’re
not getting air.
Jonathan: As an employer, I am used to staff exaggerating their own importance.
Suctioning me is a minor task. Don’t you make much of it just to justify the high-
priced help.
Paula: If you don’t want our advice and care, then you can seek help elsewhere, but…
Jonathan: I shall. Thank you for your efforts. And really, dear, don’t take it ill. It’s
not that I’m an ingrate. I’m sure you’re all quite sincere and doing your best with
a difficult old man, but I am accustomed to acting on my own opinions, isn’t that
right, Brad?
Paula: Your husband is not here at the moment, Mr. Edwards, nor is your cat in this
hospital room.
Jonathan: Oh! Oh, yes, of course.
Paula: Why don’t you rest? We’ll talk tomorrow.
Jonathan: Excellent idea.

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Scene 5

A patient-care conference with Eva, Jane, Paula, and Charles.

Eva: So Mr. Edwards is back, but he’s not going to be a difficult patient this time. He
still protests, but he is barely coherent and certainly incompetent.
Jane: What happened?
Paula: Predictably, he got into trouble at DEFINITION
home under his husband’s care, and
Dementia is a loss of intellectual func-
by the time he got to Emerg he was
tion, in this case from severe brain
hypoxic. Dementia has set in thor-
damage. Jonathan’s intellect has been
oughly now.
reduced to an infantile state.
Charles: Jonathan’s gone. Unfortunately,
his body is still alive. He would have
hated that. Poor Brad, he’s finally going to take charge.
Paula: It was all so maddeningly preventable. I don’t think he was competent to book
himself out and decide on his own care. I just could not get through to him.
Charles: Nobody ever could. He was a wonderful person but never did really listen to
anyone. If he could look at the whole thing right now, he would just say, “Well, I
made my choice and I was wrong. Win some, lose some.”
Jane: Well, the psychiatrist said he was competent. We had to respect his autonomy.
Paula: Autonomy comes in degrees. It’s wrong to treat it as all or nothing. You wouldn’t
have let him drive if he were drunk. Why should we have let him book himself out
when he was in the initial stages of dementia? People ought not to be allowed to
risk their lives when they are not on top of things. We should have gotten a second
psychiatric opinion. Jonathan Edwards had some good years left.
Jane: Maybe so, but wouldn’t it look different to you if you were in his shoes? Physicians
themselves are always difficult patients because they want to take charge of their
own care, just as Jonathan Edwards did.
Charles: I visited him at home and described to him in detail the dangers he was fac-
ing. He thanked me and said that he used to ride a motorcycle without a helmet
to feel the wind in his hair. I’m not saying he was totally sharp at the end or able
to keep the risks in mind, but if he had his old self back, he would still make the
same decision.
Paula: I don’t see that. He would have at least hired a home-care nurse if he really was
sharp and appreciated the dangers. He was not suicidal. Come on, let’s face it. We
did the wrong thing. We should have fought harder to keep him. It’s a damn good
thing we’re not bartenders or we’d all be in big trouble for giving him back his keys.

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DEBATE
Identifying Relevant Facts

Patrick: Let’s clarify some relevant facts before we begin our debate. How old was
Mr. Edwards?
Warren: He was 62.
Patrick: What were his long-term prospects? Suppose Mr. Edwards had followed his doc-
tor’s orders: How long, and how well, would he have been expected to live?
Warren: MS patients may live long lives, but with limitations. These can be quite minor,
but in Mr. Edwards’s case, the dysphagia was dangerous, as we saw. Mr. Edwards’s
prognosis was poor given his lack of co-operation with Dr. Paladin’s treatment plan.
Patrick: Where on the scale of harms from MS did Mr. Edwards fall?
Warren: If he followed his prescribed diet, Mr. Edwards was probably in the middle of
the scale of harms from MS. He could have had a decent life, but he would’ve been
low on energy.
Patrick: Okay. So he wasn’t obviously doomed to a life of pain and suffering.
Warren: No, he had a chance, at least, of a good life.
Patrick: How about his mobility? I recall something about him having trouble getting
in and out of a wheelchair.
Warren: Yes, it was something like having the flu all the time. MS has both remitting
and chronic progressive forms, however. Which one Mr. Edwards had was not
yet determined.
Doran: Was his confusion the result of the MS or was it something unrelated to the
MS? Was there any reason to think his state of mind would have improved, or de-
teriorated, if he had followed the treatment plan?
Warren: His confusion could’ve been the result of his MS, but that only happens in a
minority of cases. It was also possible that he was suffering from dementia from
organic causes. It was possible that his confusion could have stabilized. We just
don’t know. It is a feature of the disease, however, that MS patients often disbelieve
their diagnosis.
Doran: What do you mean “his confusion could have stabilized”?
Warren: He might not have become progressively more confused. If his condition
turned out to have been chronic progressive, he might have become more confused
to the point of complete dementia. If he had the remitting form, he might even have
improved for a while, and possibly have relapsed later.
Doran: What were his husband’s views? It seems they had a good relationship, though
Brad had little influence over Mr. Edwards’s decisions. Is that right?
Warren: Yes, Brad tended to follow Mr. Edwards’s lead rather than taking a position
himself. Mr. Edwards’s family agreed with him.
Patrick: His family agreed with him that he could eat solid food?

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Warren: Yes.
Doran: Did his family understand that there was a good chance that eating solid food
without a nurse’s constant supervision could cause him to choke so badly that he’d
become a vegetable?
Warren: Mr. Edwards’s family accepted his position that this danger was exaggerated.
Doran: But they were mistaken?
Warren: Yes, they were mistaken.
Patrick: Why would his family accept his position, rather than the position of the medi-
cal professionals?
Warren: There was some history there of his brooking no opposition and having all the
say in family matters.
Doran: Very sad. I assume the family realized they made a mistake. Is that true?
Warren: They realized the mistake too late.
Patrick: Did the family genuinely believe that the danger was exaggerated, or were they
just afraid to speak up and tell Mr. Edwards what they really thought?
Warren: Mr. Edwards was always right. After a point in the family history, nobody
disagreed with him because he could out-think them and browbeat them all. If they
had opinions different from his, they did not reveal them.
Patrick: So the family might have thought he was mistaken, but felt that there was no
point in trying to convince him of that?
Warren: Right.
Doran: In defence of the family, a psychiatrist found Mr. Edwards competent. Isn’t that
finding surprising though?
Warren: The psychiatrist saw Mr. Edwards at a good time for him and questioned
him in ways that did not involve Nettles the cat. Before the examination, no-
body talked to the psychiatrist about Mr. Edwards’s odd behaviour, although
it would have been noted in his chart. Perhaps the chart was not clear. For
whatever reason, the psychiatrist did not take much notice of the apparent
hallucinations.
Doran: Did the psychiatrist know the doctor’s opinion that Mr. Edwards would likely
choke again if he ate solid foods, like lamb chops, and that it could make him
hypoxic, that Mr. Edwards insisted on eating the chops nevertheless, and that he
denied that there was a serious risk of harming himself?
Warren: The psychiatrist did not talk to anyone before the examination. This particu-
lar psychiatrist thought that it was best to see a patient before getting prejudicial
comment. In the hurly-burly of hospital life, there was no coordination or com-
munication with the rest of the health care team, partly by accident and partly by
the psychiatrist’s design. However, he would have seen Mr. Edwards’s chart, so he
would have had some idea of Dr. Paladin’s view of the matter.
Doran: Did anyone on Mr. Edwards’s team meet with Brad and Mr. Edwards before he
was released to explain the situation to them?

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Warren: Before Mr. Edwards even tried to leave, Dr. Paladin had patiently explained
the dangers of hypoxia to him, but Mr. Edwards was dismissive. Brad had been told
about the dangers too, but did what Mr. Edwards told him to do, including smug-
gling in lamb chops.
Doran: Did the psychiatrist have Mr. Ed-
wards sign an AMA? DEFINITION
Warren: No, but there is no doubt that AMA in this context stands for “against
Mr. Edwards was adequately warned medical advice.” Patients like Mr.
and refused to listen. Charles even Edwards who leave when their doctors
went to his home and thoroughly tell them to stay in the hospital are
briefed him after he had been dis- asked to sign a form certifying that they
charged from the hospital. know their physician wants them to stay.
Patrick: Do you think that the psychia- It gives legal certitude that the patient
trist would have reversed his decision was warned against leaving.
that Mr. Edwards was competent if
he had gotten to know him better?
Warren: Probably not. Psychiatrists are not usually willing to ask the courts to force in-
voluntary treatment on patients. Dr. Paladin just thought they should have used the
second evaluation to delay Mr. Edwards’s departure. She wanted another chance for
the staff to get through to Mr. Edwards about the dangers.
Doran: Okay. Patrick, do you have any more questions about the facts of the case?
Patrick: Not now, although more questions will probably arise once we start the debate.

MORAL ISSUES RAISED BY THE CASE

Doran: This case raises a number of ethical issues, but let’s discuss the following proposi-
tion: It was a moral error for Mr. Edwards’s health care team to allow him to discharge
himself without further evaluation. They could not legally stop him, presumably, but
they might have found practical ways to delay his departure.
Patrick: Good—this seems to be the main ethical issue raised by this case. So, what do
you think?

Stating Our Positions

Doran: I agree with the proposition. It was a moral error for Mr. Edwards’s health care
team to allow him to discharge himself without first making a greater effort to
protect him from harm.
Warren: You are saying that patient autonomy can be restricted even for a patient who
has been certified as competent?

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 Chapter 4  Autonomy and the Right to Refuse Treatment  103

Doran: Yes.
Patrick: I also agree with the proposition. Although Mr. Edwards had been certified as
competent, it seems the testing of his competence was incomplete. So it was not an
accurate measure of his competence, right?
Doran: Right, that is what I was thinking, too.
Warren: Although I find this to be a very hard case, ultimately I disagree with the
proposition. Imagine yourself having been certified as competent and having the
staff tell you that’s not good enough. They want a second opinion on whether you
are competent. You would rightly feel that they want to keep trying until they can
get you declared incompetent.
Patrick: Well, if I were in a situation relevantly similar to Mr. Edwards’s, I probably
wouldn’t like the staff telling me that further evaluations were necessary. But that’s
not the appropriate question to ask.
The question to ask is, Would you DEFINITION
and I—or some other person whose Paternalism is interference in the lib-
competence is not in question— erty of another for that person’s good.
object now to future evaluations and There is an ongoing controversy about
restrictions on our liberty, if we were the extent to which paternalism may be
displaying symptoms similar to Mr. morally justified. For a good brief over-
Edwards’s? I suspect we wouldn’t view, see the entry “Paternalism” in the
now object to future paternalistic Stanford Encyclopedia of Philosophy:
interferences with our liberty if ht tp://[Link]/entries/
we were later to find ourselves in a paternalism/.
situation like Mr. Edwards’s.
Warren: Mr. Edwards’s hallucinations were
not clearly relevant to the determination of his competence to make medical decisions.
Competence is context-relative. Mr. Edwards may not have been competent to judge
the presence of Nettles, his cat, but he was competent to understand the risks he was
running according to Dr. Paladin. He was competent to decide to dismiss those warn-
ings. It was morally permissible for the staff to release him when they did.
Doran: I agree with Patrick that his health care team erred in releasing Mr. Edwards
without further evaluation, but I would not agree that he should be kept indefi-
nitely. If I were to be in his situation, I would not now agree to being kept in the
hospital indefinitely, although I would agree to delaying my discharge for a short
period of time to give caregivers a better opportunity to explain the situation to
me, and to give me more of a chance to come to terms with my situation.
Patrick: Well, Doran and I have serious doubts about whether the hospital acted per-
missibly. So we affirm the proposition that it was a moral error for his health care team
to allow Mr. Edwards to discharge himself without further evaluation. Warren, why
don’t you present your argument to see if you can convince us otherwise?

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AN ARGUMENT FOR THE RIGHT TO IGNORE EXPERTS

Warren: The real issue here has to do with DEFINITION
valid refusal of treatment by compe- Autonomy is derived from the Greek
tent people. The right to have one’s autos (“self”) and nomos (“rule,”
refusal of treatment respected is, in “governance,” or “law”). It has come
turn, dependent on the right to au- to have many meanings, among them
tonomy. In the original position, the capacity for, or the right to, self-
we would insist on a strong right to government. We prefer to use autonomy
autonomy because without that, oth- to mean “self-determination.” When the
ers would be able to limit us in ways context is clear, though, we will also use
they might think are in our interests. autonomy to mean “the right to self-
When others try to run our lives for determination.” For a good discussion
us, they often make a bad job of it, of autonomy, see chapter 3 in Tom L.
despite good intentions. Our interests Beauchamp and James F. Childress,
are best protected when we have the Principles of Biomedical Ethics, 5th
right to assert and protect those in- ed. (New York: Oxford University Press,
terests on our own. That is why one’s 2001), 57–112.
competent, free refusal of treatment
must be respected.
In this case, if Mr. Edwards knowingly chose not to respect the expertise of his
doctor and nurses, and not to take precautions, he may still have given valid refusal
of treatment. The idea that he was incompetent if he did not respect medical exper-
tise or believe what experts told him is inimical to a basic right to autonomy. As a
competent adult, he could have cho-
sen what information he wished to BACKGROUND
accept or to consider. He could have Warren is relying on a version of social
also chosen what risks he wished to contract theory. See chapter 3 for an
take, including the risk of ignorance. explanation of this approach.
To deny this is to slip into a kind of
paternalism that would not be toler-
ated by those in the original position.
Doran: That’s an interesting argument. For purposes of evaluation, I would like to re-
state part of your argument in standard form:

(1) Actions are morally justified if they are consistent with the rules that
would be chosen by people in the original position to form the ideal
social contract.
(2) People in the original position would choose rules to protect their own
interests in the real world.

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(3) In order to protect their own

TECHNIQUE
interests, people in the original
position would choose rules that Part of Warren’s argument is put in stan-
secure a strong right to autono- dard form (a numbered list). This helps
my as part of the social contract. with clarifying the argument and makes
(4) This strong right to autonomy it easier to consider targeted objections
entails that competent patients to specific premises.
have a right to information
about their condition, a right to accept or reject that information, and a
right to refuse treatment with or without use of the information that is
available.
(5) Mr. Edwards was a competent patient who was given access to informa-
tion about his condition, but deliberately chose to ignore that information
and to leave the hospital against the medical recommendations of his
physician and nurses.
(6) As a competent individual who refused information, Mr. Edwards was
within his rights to leave the hospital against the medical recommenda-
tions of his physician and nurses.
(7) If Mr. Edwards was within his rights to refuse treatment, then his health
care team was morally required to respect this choice.
(8) Therefore, his health care team did not err in releasing Mr. Edwards.

Is that what you intended to argue?

Warren: That is a good start. There’s more to it that I hinted at, but let’s see what you
think of this bit.

Clarifying Premise (3)

Patrick: Let’s start with the third premise. BACKGROUND

You claim that people in the original
A classic defence of individual liberty
position will pick rules granting them
can be found in John Stuart Mill’s On
a strong right to autonomy. What do
Liberty, chapter 4. Mill, too, thinks that
you mean by a right to autonomy?
the strongest argument against inter-
Warren: Autonomy is a complex notion. But
fering with a competent person’s liberty
the basic idea is that an autonomous
for his own good is that such interfer-
person is self-determining: autonomous
ence is likely to be done poorly.
persons make their own choices, free of
external controls or internal compul-
sions. To say that people in the original position will want to make sure that they have
a strong right to autonomy (or a strong right to self-determination) is to say that they

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will pick rules that protect their right to make their own decisions and to lead their own
lives—that is, they will want to ensure that others are not justified in controlling their
self-regarding choices; they may also want to make sure that they have the social condi-
tions necessary to make their own decisions.
Doran: I see why you think people in the original position would choose rules giving
them a strong right to autonomy. But just how strong is this right?
Patrick: Good question. In the original position we would of course want to secure
a right to autonomy, but presumably we wouldn’t want the right to be so strong
that we’d end up undermining others’ autonomy, and presumably we would want
to limit our autonomy so as to prevent serious harms to ourselves through foolish,
uninformed, or irrational choices.
Warren: Since people in the original position are purely self-interested, they would not
concern themselves directly with the autonomy of others. Nonetheless, they do not
know who they are in the real world;
therefore, people in the original po- DEFINITION
sition would want to limit everyone’s John Rawls’s liberty principle states:
right to autonomy in order to protect “Each person is to have an equal right
their own autonomy. On this point, to the most extensive basic liberty com-
I agree with John Rawls that people patible with a similar liberty for others”
in the original position would choose (A Theory of Justice [Cambridge, MA:
what he calls the liberty principle. Harvard University Press, 1971], 60.
A more difficult question concerns
identifying the conditions, if any, under
which people in the original position would agree to limit their right to autonomy for
the sake of self-protection. For, on the one hand, people in the original position would
certainly not want to be treated like children whenever experts think their choices are
foolish. Yet, on the other hand, it also seems that people in the original position would
want to protect themselves from their reckless, ill-conceived choices.
Patrick: Under what conditions, then, would people in the original position accept pa-
ternalistic interferences with their liberty?
Warren: I think that when interferences in one’s liberty are relatively minor and when the
benefits of interference are great, then paternalism would be accepted by people in
the original position. Seat belt legislation is a case in point. Here the benefits of seat
belt wearing are clear and substantial, while the interference in a person’s liberty is
relatively minor, so requiring seat belt use could be justified for paternalistic reasons.
Contrast this with interferences that are significant—say, total bans on tobacco
use, or on gambling, or on backcountry skiing. Likewise, preventing people from
acting AMA—against medical advice—would be too great an interference with
liberty. Unlike the case of seat belt legislation, where there is at most minor frus-
tration of preferences and minor interference with liberty, not allowing people to

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discharge themselves from the hospi-

THEORY
tal when it is against medical advice
would constitute a major interfer- Here Warren assumes that seat belt
ence with liberty, and would likely legislation could be justified on pater-
greatly frustrate the satisfaction of nalistic grounds. Of course, other rea-
preferences. sons could be given in defence of seat
Patrick: I still wonder, though, why sim- belt laws. For example, one could argue
ply warning people about the risks of that such a law is justified on the basis
not wearing seat belts is not enough of trying to reduce economic costs to
on your view. Why wouldn’t people in society. Whether a piece of legislation
the original position just accept a rule is paternalistic or non-paternalistic de-
that they be warned of harms to self, pends on why it was passed. Legislation
and then let competent people make is often considered paternalistic only
their own decisions? if it is justified at least partly on the
Warren: We would recognize, in the ground that it prevents people from
original position, our vulnerability to harming themselves.
rash decision making. Seat belt leg-
islation is an instance of insurance
against such decisions. Not wearing UP FOR DISCUSSION
a seat belt can be a moment of fool- How would you distinguish a minor in-
ishness for no significant personal terference in a person’s liberty from a
gain that leads to huge personal pain. significant interference in a person’s lib-
Booking out AMA is different, and erty? What do Warren’s views on justi-
much more complex. fied paternalism imply about total bans
Patrick: All right, but given that acting on cocaine or heroin use? Do you agree
AMA can also be foolish and lead with these implications?
to great personal pain, wouldn’t it be
justified to also take steps to protect
patients from their own rash choices?
Warren: I agree that some limited steps would be agreed to by people in the original po-
sition to protect themselves from reckless decisions when it came to acting AMA.
They would agree to testing for competence, and perhaps to brief delays to allow a
person to change their mind. But they would accept only limited interference with
their autonomy. The decision to act AMA is too important to a person to have it
indefinitely interfered with by others. Ultimately, it must be up to the competent
patient to determine what information to accept, believe, and act on.
Doran: I am beginning to get a clearer idea of your view of the right to self-determination
as it relates to those who are competent, but what about incompetent individuals?
I imagine that paternalism is more easily justified for those who are unable to
competently decide for themselves.

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Warren: I agree that with respect to those

BACKGROUND
who are not competent to make their
own decisions, such as young chil- Philosophers sometimes distinguish
dren, paternalism is easier to justify. between different sorts of paternalism.
The state, for instance, may be justi- For example, hard paternalism is the
fied in requiring those who are not interference in a competent person’s
competent not only to wear seat belts, liberty for their own good. Soft paternal-
but also to refrain from tobacco and ism is the interference in an incompe-
alcohol use, to receive an education, to tent person’s liberty for their own good.
undergo certain medical procedures, It is generally recognized that the latter
and so on. But, here too, there has to sort of paternalism is much easier to
be clear evidence that the incursion on justify than the former. It should also be
liberty is necessary to protect the im- noted that different philosophers differ
portant interests of those whose liberty slightly on how they define these terms.
is restricted.
Doran: Okay, you have suggested two ways in which paternalism may be justified. With
respect to competent individuals, liberty may be interfered with for paternalistic rea-
sons only when there is very clear evidence that the interference will be greatly in the
person’s interest, and the interference is slight. Both conditions are necessary for the
competent. With respect to incompetent individuals, such as young children, inter-
ference with a person’s choices for that person’s own good can be more extensive and
will be easier to justify. Is that right?
Warren: Right.
Patrick: Although a lot more could be said
about when paternalism is justified, UP FOR DISCUSSION
perhaps we should now turn back to When, if ever, do you think hard pater-
Mr. Edwards’s case, and consider what nalism is justified?
your view implies about his case.

Assuming Mr. Edwards Was Competent, Did His Health Care Team Err in
Releasing Him from the Hospital When They Did?

Patrick: Given that you think that Mr. Edwards’s health care team did not err
in releasing him from the hospital when they did, I assume you think that
he was competent to make the decision to act AMA and that his decision to
refuse care was valid. I have serious doubts about Mr. Edwards’s competence
and whether his refusal of care was valid. But let’s set that aside for the time
being. It seems to me that his health care team should have done more to pro-
tect Mr. Edwards from his reckless decision not to follow a soft diet, even if we
assume he was competent to make that decision. I think it was pretty clearly a
foregone conclusion that Mr. Edwards would not do well. Everyone knew that

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he would continue to eat meat, and

TECHNIQUE
everyone but him (and perhaps his
husband) knew that this would kill It is common for philosophers to grant a
or seriously harm him. Letting him claim for the sake of argument—that is,
discharge himself from the hospital to accept a claim not because they think
when they did seems rather irre- it is true, but because they want to fo-
sponsible to me. cus on another aspect of the argument.
Warren: Some staff thought Mr. Edwards In this case, Patrick is not agreeing that
would be killed or seriously harmed, Mr. Edwards is competent; he is only
but nobody knew. Patients surprise assuming it for the sake of argument.
the experts often enough. The staff For he wants to consider whether it was
took the key steps to protect Mr. wrong for Mr. Edwards’s health care
Edwards from his reckless decisions. team to discharge him from the hospi-
They obtained a competence evalu- tal if he was competent. Later, Patrick
ation; they repeatedly warned him and Doran will challenge Warren’s prem-
about what they took to be the dan- ise that Mr. Edwards was competent to
gers of his eating solid foods. In other make his health care decisions.
words, they discharged their duty of
protecting persons from harming themselves. Given this, it was up to Mr. Edwards
to decide what he preferred and to act on what he took to be in his best interest.
Patrick: But surely there was undeniable evidence that restricting Mr. Edwards’s lib-
erty—in particular, forcing him to remain in the hospital—was in his best inter-
est in this case. Being forced to stay in the hospital may have frustrated some of
his preferences, but it may well have enhanced many of his other preferences and
interests. For instance, if Mr. Edwards was kept in the hospital, this would have
frustrated his strong preference to go home, but it would also have furthered his
interest in living. And by giving him a longer life, it would also have furthered
other preferences he has—such as the preference for taking risks. One can’t do
that when one is dead. So it’s not clear to me that we would oppose limitations
on our liberty if we were to find ourselves in a situation relevantly similar to Mr.
Edwards’s situation.
Warren: Medical expertise gives us good predictions about a patient’s future, not unde-
niable evidence. I do not deny, however, that the evidence was strong that Mr. Ed-
wards would suffer harm. To keep Mr. Edwards in the hospital any longer against
his will would have constituted a great incursion on his liberty. And, as I argued, I
believe that in the original position, people would not agree to great incursions on
the liberty of competent persons for their own good. We would want to have our
competence tested and to be duly warned by the experts of the risks we were taking,
but we would ultimately want to preserve our right to self-determination.
Doran: I agree, Warren, that after due warning, competent people should have the
right to self-determination; however, among other things, I question whether Mr.

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Edwards was adequately warned. In

THEORY
the original position, I think people
would agree to more consultations An act utilitarian might consider the
and psychological evaluations be- whole discussion wrong-headed. Any
fore allowing a person to take such restriction on liberty would be auto-
great risks for so trivial a reason. If matically justified, in that view, if it
risks were less than life and death, maximized happiness. Very likely, in this
then the warnings would have been instance, happiness would be greater
sufficient, but when the stakes are for everyone affected if Mr. Edwards
so high, greater interferences with had been prevented from becoming
liberty are justified. hypoxic and, as a result, demented.
Warren: I think people in the original However, it should be noted that in On
position are not going to want to Liberty, John Stuart Mill presents a
surrender their autonomy unless ab- complex utilitarian argument against
solutely necessary. They know that any paternalistic interference in a com-
generally a person knows their own petent person’s voluntary choices. He
interests best. The warnings, delays, argues that for several reasons, in the
and competence evaluations were final analysis, competent people will be
sufficient in Mr. Edwards’s case. It happier if left free to make their own vol-
was time to let him make his own untary decisions in matters that do not
decisions. Being allowed to continue harm others.
his high-risk lifestyle and not being
treated like an infant were far from
trivial matters to him.
Doran: So, to sum up: In your view, people in the original position would want to give
themselves a strong right to autonomy in order to protect their interests. This strong
right to autonomy entails a strong presumption in favour of competent individuals
making their own decisions, provided they do not violate others’ autonomy. This is
why Mr. Edwards, if competent, would have the right to reject his doctor’s and nurses’
medical advice. The right is not absolute, however, since people in the original posi-
tion would want to protect themselves from, for instance, their ill-considered rash
decisions. Paternalistic restrictions are justified when the benefits are significant and
the loss of liberty insignificant. And in situations where the loss of liberty is signifi-
cant, warnings are still appropriate, but not prohibitions. Mr. Edwards had sufficient
warning, though, and so the decision to follow or to reject the doctor’s advice was now
properly his to make.
Warren: Yes. In this case, Mr. Edwards’s right to autonomy gave him the right to book
out AMA, but staff members were right to delay and to try to dissuade him. They
were also right to order a test of his competence. That done, they were right to let
him go.

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Patrick: Well, I think people in the original position would agree to greater restric-
tions on their liberties when the choice to be made is clearly so dangerous and
so at odds with their overall preferences. These greater restrictions seem to be
in people’s interest in the original position. But let’s move on. Thus far we have
been granting for the sake of argument that Mr. Edwards was competent to make
his health care decisions. I, however,
think Mr. Edwards was probably not UP FOR DISCUSSION
competent to make his health care Do you think that Mr. Edwards’s health
decisions, and this again leads me to care team did enough to protect him
think that his health care team erred from harming himself? Why or why not?
in the moral duty to protect him
from harming himself.
Doran: I agree with you, Patrick, that people in the original position would agree to
greater restrictions on their liberties when the choice to be made is clearly so dan-
gerous and so at odds with their overall preferences. And I also think Mr. Edwards
was not competent to make his health care decisions. So why don’t we hear War-
ren’s defence of his premise (5), the premise that claims both that Mr. Edwards was
competent to make his health care decisions and that he gave a valid refusal of care?
Patrick: Right, I have concerns about both of those. Let’s start first with the issue
of competence.

OBJECTIONS TO PREMISE (5)

Was Mr. Edwards Competent?

BACKGROUND
Premise (5) states: Mr. Edwards was a competent patient who was given access to in-
formation about his condition, but deliberately chose to ignore that information and to
leave the hospital against the medical recommendations of his physician and nurses.
Medical professionals assess the capacity of a patient for rational self-determination
with respect to their future medical care. The courts call a person competent in a differ-
ent sense: to be competent means to have the legal authority to make those decisions.
We are interested in the notion of competence as capacity rather than as authority.

Warren: Okay, but let me first clarify what I mean when I say that Mr. Edwards was compe-
tent. To say that someone is competent is to say that they have certain capacities or abili-
ties. Individuals may be competent relative to some tasks, but not others. For instance,
someone may be competent to drive a car, but not competent to fly a plane. When I say

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that Mr. Edwards was competent, I’m saying that he was competent to make decisions
about his health care. He may, however, have been incompetent in other areas, but these
are not directly relevant to our present concerns.
Patrick: That sounds right. Competence is a relation: people are competent relative to cer-
tain activities. But I have serious doubts about whether Mr. Edwards was competent to
make important decisions about his health care. My doubts stem in part from the fact
that he wanted to live, but at the same time insisted on eating solid food rather than
a soft diet. If the medical professionals were right, these preferences were blatantly in-
consistent. If Mr. Edwards ate solid food, it was quite likely that he’d choke and either
die or suffer serious brain damage. So I have concerns about whether Mr. Edwards had
the capacity to understand his situation and to decide what to do about it. If he was not
competent in this context, then the right to autonomy would not entail that Mr. Ed-
wards had a right to refuse treatment.
Warren: I agree that if Mr. Edwards was not competent to refuse treatment, then his
health care team should not have accepted his refusal of treatment, but let’s look care-
fully at what makes you doubt his competence in this respect. It is that he had bla-
tantly inconsistent goals, and this shows that he did not adequately understand the
nature of his condition and the consequences of his actions. I disagree, however, that
his goals were blatantly inconsistent to him. They may have appeared so to the doctor
and to others. He just didn’t accept expert medical advice. Mr. Edwards chose not to
believe the experts, but surely that does not entail that he was incompetent.
Doran: I agree that to him these goals were not blatantly inconsistent, but the doctor was
obviously right that his goals were, in fact, blatantly inconsistent.
Patrick: Right. His goals were not inconsistent to him. But that’s just the problem—he
should have recognized that his goals were actually inconsistent. The mere fact that
Mr. Edwards chose not to believe his doctors does not, of course, show that he
was incompetent. The problem is that he did not see what everyone else saw: that
he could not eat solid food and avoid serious harm. It is not as if, for instance, the
experts disagreed about the consequences of his eating solid food. His belief that he
could eat solid food, despite his condition, seemed entirely baseless—it flew in the
face of all available evidence.
Warren: That is only so with hindsight. At the time, the nature of his condition was
not obvious. Physicians sometimes disagree about a diagnosis of MS or dyspha-
gia. A layperson cannot be expected to just see that the diagnosis is correct.
Doran: I think you miss the point. It’s not about a diagnosis of MS. It’s about the dan-
ger of choking on solid food. Surely any reasonable person would accept what the
medical professionals say in this case, especially given that Mr. Edwards had re-
cently choked and recently failed a motility test. It was his refusal to accept what
should’ve been obvious to any reasonable person that shows that he was in denial
and not competent to refuse treatment. He denied that he was likely to choke if
he ate solid foods, he denied that medical expertise was needed if he did choke,

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and he even denied that he had MS or

THEORY
that he was ill at all.
Patrick: Well put, Doran. The concern Doran is invoking a reasonable person
about his competence stems from his test. Appeals to what a reasonable per-
denial of facts that any reasonable son would believe are common in phi-
person would see as obvious. He re- losophy as a common-sense, intuitive
fused to admit that he was ill or that test. There is, however, room for differ-
choking was a probable and very seri- ent interpretations, since the concept of
ous threat to his health, and his deni- a “reasonable person” is left undefined.
al of these things, given the available
medical evidence, was baseless and therefore irrational.
Warren: Yes, Mr. Edwards had choked once in the past. Most of us have done
that sort of thing. But that is not enough to convince a reasonable person that
the medical professionals were right about a diagnosis of dysphagia. Make no
mistake about it, this is a complex medical diagnosis, not something any reason-
able layperson must understand. So it comes down to this: must any reasonable
person accept what medical professionals say when the evidence is not clear to
that person? I say, no.

UP FOR DISCUSSION
Do you think Mr. Edwards was competent to make his own health care decisions? Why
or why not?

The Gangrenous Foot Example

Doran: Let me give you an actual case on which we can probably agree about incompe-
tence to refuse treatment, so we can compare that to Mr. Edwards’s case. A home-
less woman was taken to the hospital with a horrible infection in her foot, caused by
frostbite. The foot had turned gangrenous. It needed to be amputated or she would
die. The woman refused to admit it was gangrenous, however, and said she wanted
to live and wanted to keep her foot. The doctors showed her the foot, but she never
wanted to look, and when she did, she said it was just dirt, or that it was getting
better, when plainly it was getting worse.
She was insensitive to clear and overwhelming evidence, and this led her to
state two goals that were in blatant conflict (even though she did not realize this): “I
want to live” and “I want to keep my foot.”1 Now, I agree that a competent person
could say, “I would prefer to die rather than have my foot amputated, so I reject
the medical advice.” But this is different. Do you think this homeless woman was
competent or incompetent?
Patrick: I think she was quite clearly incompetent.

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Warren: I admit that, in this case, we have clear incompetence to refuse treatment.
Once you see your foot washed and then try to pretend that the discoloration is from
dirt, you really are in denial. Mr. Edwards’s denial was different. It was a denial of a
complex medical diagnosis of dysphagia on evidence that he did not see and under-
stand. Mr. Edwards, moreover, had a successful career built partly on strong skep-
ticism about expertise of others and on a damn-the-torpedoes attitude to danger.
That was his preference as well, to live on the edge. He thought the doctors were
exaggerating their own importance and the dangers. His life experience gave him
some evidence for this being so. He competently made a choice that was mistaken.
Denying the probability of his choking in the future is a matter of denying an
expert prognosis, not a denial of facts obvious to any reasonable person. As for his
saying he wasn’t ill, that was a denial of the obvious, but perhaps exaggeration rath-
er than incompetence. Patients often say, “I’m fine,” when this is pure hyperbole.
I think we agree on the principle that denying facts that any reasonable per-
son should see is a sign of incompetence; however, I do not take his denials as
indicating that he was incompetent in this way. He was refusing expert medi-
cal advice, but if we are compelled to accept the views of experts, our autonomy
would be very severely restricted. We could never refuse treatment. In this case,
it was about a diagnosis of dyspha-
gia and the prognosis, the medical UP FOR DISCUSSION
expert’s claim that Mr. Edwards was Do you think Mr. Edwards’s denial of the
in heightened danger of choking in risk of choking is a case that falls under
future. This was not something that the principle of denying facts that any
a reasonable person would have to reasonable person should see?
accept as true.

Incompetence to Refuse Medical Care: Skepticism without Reason

Patrick: It’s not just what Mr. Edwards believed, but why he believed it, that makes me
doubt his competence. I agree with you that rejecting the advice of experts is not
necessarily a sign of incompetence. But this is a case where his doctor and nurses
seemed to agree on the dangers of eating solid food, given his condition. And, as
far as I can see, Mr. Edwards had no good reason at all to doubt what the medical
experts were telling him. If Mr. Edwards was competent to make decisions about
the treatment of his condition, he must have been capable of giving reasons in sup-
port of his decisions.
Warren: I agree that doubt without reason is irrational and a sign of incompetence.
That kind of baseless skepticism could make a person incompetent to refuse treat-
ment. Strong skepticism and a strong preference for taking risks, however, had
served Mr. Edwards very well throughout his life, as we know from Charles Nolet’s

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descriptions. He had a successful life and business because he took great risks, be-
lieved in himself, and ignored experts. That success was his evidence. He used to
ride a motorcycle without a helmet to feel the wind in his hair. He was an outlier,
not an incompetent. The same can be said of star snowboarders. What is irrational
given your preferences was rational given his.
Patrick: To be clear, I’m not at all suggesting that a willingness to take risks is a sign
of incompetence, so I’m not arguing that athletes who take extreme risks in pursuit
of their sport are incompetent. My point with respect to Mr. Edwards is that this
wasn’t a situation in which Mr. Edwards recognized the risks of eating solid food
but chose to eat solid food anyway because he had a preference for risky behaviour.
If that were the case, I might agree that Mr. Edwards was competent. In this case,
however, he denied the risks, despite everyone’s telling him that eating solid food
was likely to seriously harm or kill him, and his denial was without good reason.
Mr. Edwards is like the inexperienced adventurer who denies that climbing Mount
Everest is risky, simply because his ignoring of experts has served him well.
Warren: Are you incompetent if you don’t
agree with experts for no reason ex- UP FOR DISCUSSION
cept that skepticism about expertise Imagine an inexperienced mountain
has served you well through your life? climber whose skepticism in business
We let people choose prayer over che- and in other matters has served him
motherapy, for instance. We don’t call well. He now wants to climb Mount
them incompetent, although we may Everest, but is told by very experienced
think they are stubborn and mistaken. mountaineers that this is extremely
Patrick: Well, I may have doubts about risky and could result in his death. He is
the competence of people who would skeptical of the risks, however, since his
choose prayer over chemotherapy. ignoring of experts has served him well
But, setting that issue aside, it seems in life. Is this individual competent to de-
to me that there’s an important dif- cide whether he should climb Everest?
ference between people who choose What implications does your answer
prayer over chemotherapy and Mr. have for the case of Mr. Edwards?
Edwards’s denial of obvious facts and
refusal of treatment. The choice of
prayer over chemotherapy makes sense, perhaps, given other beliefs such people
have—for example, the belief in God and God’s power to heal. I think these beliefs
are mistaken, but they are beliefs reasonable people hold. And given these beliefs,
the choice of prayer can, I suppose, make sense. Similarly, a person’s preference for
alternative treatments over conventional therapies isn’t a sign of incompetence if
that person has a reasonable network of beliefs supporting their choice. Mr. Ed-
wards’s case seems different, however. There’s no background set of reasonable be-
liefs from which his denial of what all the experts are telling him makes sense.

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Warren: The two cases aren’t different. Mr. Edwards’s choice to reject the expert as-
sessment of two nurses and one physician made sense in his world view, just as the
religious person’s choice to reject expertise makes sense in their world view. As I
have explained already, Mr. Edwards built a successful business, in part, by being
domineering, independent, eccentric, and skeptical of expert claims. His rejection
of expert medical advice was part and parcel of the skepticism that had guided him
well much of his life. Indeed, Mr. Edwards’s refusal was more rational than that of
the religious believer. Mr. Edwards had experience of the success of his views in this
life—not in some promised, not evidenced, afterlife.
Patrick: Okay. Perhaps, then, his skepticism was not entirely baseless, given his back-
ground beliefs and experiences. But I’m not sure his “world view” is one that a rea-
sonable person could hold, so I still have doubts about his competence.
Doran: Interesting. But even if his world view was unreasonable, Patrick, perhaps we
can still judge him to be competent, provided that he was reasoning well from
that perspective?
Warren: That’s right. We don’t want to say that he was incompetent just because he has a
set of beliefs that others regard as unreasonable. He was capable of understanding his
situation. And he was capable of making health care decisions that were reasonable
from his point of view. Surely, then, he was competent.

UP FOR DISCUSSION
Do you think that Mr. Edwards’s skepticism regarding the expert medical opinion that
he was at great risk of death from choking is more analogous to holding a controversial
world view or to holding an unreasonable view such as that one is made out of glass?
Can one be incompetent because one holds unreasonable world views? Consider, for
example, the case of Mr. Faithwards, who is like Mr. Edwards except that the reason
he gives for refusing medical care is not life experience but his religious food rules. He
denies the risk because he thinks God will save a God-fearing man. Is he competent
to refuse care? If we say such a person is incompetent because of his strange views,
can we deny that others are incompetent because of their unusual religious views—for
instance, the view that medicines are unnecessary since God’s will alone decides who
will live and who will die?

Competence and Psychiatric Evaluation

Warren: Here is one additional reason why one ought to think Mr. Edwards was com-
petent. He received a psychiatric evaluation and was found to be competent. Surely,
if one believes in a strong right to autonomy, one is going to want to let people
exercise that autonomy if they have been found to be competent by a psychiatrist.

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Doran: Yes, it seems that a finding of competence by a psychiatrist should count as a

reason in favour of thinking that a patient really is competent. But that presupposes
that the evaluation was adequate. And there is reason to doubt the adequacy of the
psychiatrist’s evaluation of Mr. Edwards.
Patrick: I agree, Doran.
Warren: Why would you question the adequacy of Mr. Edwards’s evaluation?
Doran: The psychiatrist, apparently, did not take into account all the relevant facts about
Mr. Edwards’s case. This is why, I suspect, Dr. Paladin believed that staff failed to
adequately protect Mr. Edwards when he was allowed to leave the hospital without
further delay. Presumably the psychiatrist had access to Mr. Edwards’s chart, and
this would have included his medical history and diagnosis, but presumably it did
not include clear enough information about his hallucinations about Nettles the
cat, nor enough details about his denial of his condition. Either that, or he failed to
take account of these things. Given these problems in the evaluation, I think that
the psychiatrist’s findings were not, by themselves, a strong reason to believe Mr.
Edwards was competent.
Moreover, even if the psychiatric evaluation was done adequately, it would
be a mistake to count the psychiatrist’s finding of competence as conclusive.
For, as we know, psychiatrists can err in such judgments; moreover, different
psychiatrists can reach conflicting conclusions about a patient’s competence. So,
I would say that the psychiatrist’s declaration of competence in Mr. Edwards’s
case was not enough to conclusively prove that he was indeed competent.
Patrick: Again, I agree with you, Doran. The psychiatric evaluation gives us one reason for
thinking that Mr. Edwards was competent. But the evaluation was incomplete, as just
noted, and the psychiatrist’s assessment of Mr. Edwards was at odds with Dr. Paladin’s
doubts about Mr. Edwards. Dr. Paladin, it seems, thought that Mr. Edwards was not
competent, and as his physician, she presumably had a broader and deeper understand-
ing of Mr. Edwards’s physical and mental condition.
Warren: I agree that a psychiatric evaluation, even when adequately performed, is not
decisive proof of competence. But few judgments in medicine are decisive. They just
have to be sufficiently decisive, like this psychiatric evaluation. I believe, however,
that an adequate evaluation finding that a patient is competent to make health care
decisions needs to be treated with a great deal of respect. In the original position,
we would want to be allowed to exercise our strong right to autonomy if we were
found competent, and we would not want to be under continual examination in the
real world just because somebody disagreed with the earlier examinations.
Psychiatric evaluation is the best way we currently have of determining whether
the patient can competently choose. So, I believe that, given a psychiatric evaluation
that shows the patient is capable of deciding freely to accept and understand infor-
mation or not accept it, the patient counts as competent to reject medical treatment.

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If one adequate psychiatric evaluation

DEFINITION
determines that the patient is com-
petent in this sense, then that is all Double jeopardy is the name of a le-
the proof the health care team should gal rule that prohibits being tried twice
seek. Patients should not be under for the same crime on the same set of
double jeopardy when it comes to facts. Here, Warren is applying the term
evaluation of their competence. to health care, and saying that a patient
Patrick: But given the psychiatrist’s lack of should not be required to prove their
relevant information, he arguably wasn’t competence twice.
in a position to decide whether Mr. Ed-
wards was capable of these things.
Doran: That’s right. If the psychiatric evaluation is a key reason for thinking that Mr.
Edwards was competent, then one had better be confident that the psychiatric
evaluation was well done. But for the reasons I mentioned previously, I do not
have this confidence.
Moreover, I think people in the original position will want to ensure that
they really are competent when they are deciding to reject or accept medical
treatment. They would thus want there to be an adequate, thorough evaluation.
Given the questions about the adequacy of Mr. Edwards’s evaluation, I there-
fore do not think people in the original position would object to a second, more
thorough evaluation.
Patrick: Right. I think that in the original position, people would accept a rule that re-
quired further testing and restrictions
on liberty, if necessary, in situations THEORY
like the ones under discussion. The It is very important from the point of
psychiatrist said Mr. Edwards was view of the ethics of care that there was
competent. His physician—who had this strong, caring relationship between
much more interaction with him— the nurse, Charles Nolet, and the pa-
thought otherwise. Surely people in tient, Mr. Edwards. Charles displayed
the original position would want fur- the primary virtue of care in his relation-
ther testing to ensure competence in ship with Mr. Edwards.
such situations. The very closeness of the two is a
Warren: How many evaluations must problem from other perspectives. Some
one have before one is deemed com- might worry that Charles would not be
petent to refuse treatment? Dr. Pala- impartial enough to treat all his patients
din would never have been satisfied. with the same degree of care. Partiality
Nurse Charles Nolet, on the other might also blind him to things that an
hand, already was satisfied about Mr. impartial observer would recognize in
Edwards’s competence. He cared Mr. Edwards.
deeply about his friend and knew him

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very well, much better than Dr. Paladin. Charles’s opinion of Mr. Edwards’s com-
petence and preferences weighs more heavily with me for that reason. Charles was
convinced that Mr. Edwards was competent to refuse both expertise and treatment,
and Charles knew that Mr. Edwards was running a risk by not listening to medical
advice and ran that risk with relish.
Doran: But how confident can one be, given that this is a “hard case”? And part of the
concern is that the psychiatrist may not have known about Mr. Edwards’s hallu-
cinations. So, there seems to be a big difference between the case where his entire
team agrees that he is putting himself in grave danger by eating solid foods, and this
one psychiatrist who may have had an incomplete picture of Mr. Edwards’s condi-
tion. But if a second careful psychiatric evaluation also agreed that Mr. Edwards
was competent, then I would agree with you.
Warren: I admit that Mr. Edwards was on the cusp. That is what drives us to clarify
our views about competence and autonomy. Perhaps the evaluation could have gone
either way in a case like this. What we find by this debate, however, is that compe-
tence cannot be measured by the patient’s willingness to accept a doctor’s diagnosis
or prognosis. If we always treat unwillingness as being in denial, we end the pos-
sibility of competent refusal of treatment.
Doran: I agree with that.
Patrick: I agree, too. We shouldn’t always treat unwillingness as being in denial, and
hence a sign of incompetence. But sometimes unwillingness does show incompe-
tence, and I believe this is one of those times, for the reasons given.
Warren: Well, perhaps that is a good stopping point. We seem to agree in theory, but not
in the application to this particular case. I agree with you two that there are serious
concerns about Mr. Edwards’s competence, but we draw the line in different places.

UP FOR DISCUSSION
Warren argues for two points above: (1) an additional reason to think Mr. Edwards was
competent to make his own health care decisions was that he received a psychiatric
evaluation, and was found to be competent; and (2) if one believes in a strong right to
autonomy, one is going to want to let people exercise that right if they have been found
to be competent by a psychiatrist.
Discuss these two points as they relate to Mr. Edwards’s case. Do you think that the
fact that Mr. Edwards was deemed competent by the hospital psychiatrist is a strong rea-
son to think that he was, in fact, competent to make the decision to leave the hospital?

Doran: Agreed. You make a lot of good points about competence.

Patrick: Let’s move on now to consider a further issue. Besides the question of whether
Mr. Edwards was competent, there is the question of whether his refusal of care

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was valid. For even if you managed to

DEFINITION
convince me that he was competent,
I worry that his refusal of treatment The term valid has different meanings
was not valid, since he was not ad- when we speak of valid arguments and
equately informed. valid consent. To say that a patient’s
decision to consent to or to refuse med-
ical care is valid is to say that it is a le-
Did Mr. Edwards Give a Valid Refusal?
gitimate reflection of the patient’s free
Warren: I believe that his refusal was valid. choice. What is necessary for consent
Patrick: Well, it is generally agreed that or refusal to be valid is, of course, a mat-
a patient’s consent or refusal is valid ter of much debate.
only if it is informed. And a patient’s
consent or refusal counts as informed
only if the patient is given relevant information and understands that information.
The patient may accept or reject the information provided. But in cases where the
rejection is based on obviously false beliefs, as it appears to have been in Mr. Ed-
wards’s case, it’s hard to see how we can regard his refusal as informed.
Warren: It’s still valid—ignorant consent
and refusal may well be valid.2 For in- THEORY
stance, suppose a patient says to a physi- Because Patrick is using a common
cian, “I don’t understand the treatment criterion for the validity of either ac-
you have explained, but I trust you. Go ceptance or refusal of treatment—that
ahead.” Deliberate ignorance does not it be informed—Warren’s position is
render the patient’s acceptance of treat- unorthodox and the onus is on him to
ment invalid. The flip side is that if a provide strong reasons for rejecting the
patient says, “I don’t trust you, so I don’t criterion.
wish any further information or treat-
ment,” deliberate ignorance should not
render the patient’s refusal invalid.
Doran: Well, I must say that your proposal seems right to me, but that it is an adventurous
view. The literature on this subject emphasizes the need for freely informed consent
to accept or reject treatment.3 The idea seems to be that one’s acceptance or refusal of
medical treatment is not valid if one does not understand what various treatments are
available, what the major risks are, and so on.
Warren: Yes, I realize that I am in a distinct minority here, but I think the majority is
wrong. It seems to me to be false that a person must understand the relevant facts
about their situation in order to make a valid choice, for a competent person might
reasonably prefer not to know the facts. Let me be clear, though, that I believe the
patient should be given access to the relevant medical information in an under-
standable form. The patient is not, however, required to accept or understand the
information to give valid acceptance or refusal of treatment.

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Patrick: So you deny that consents and refusals must be informed to be valid?
Warren: If being informed means retaining explanations, understanding, and accepting
the relevant facts, then, yes, I’m denying that valid consents and refusals must be in-
formed. In my view, none of these things is necessary for a valid consent or refusal.
Patrick: None of these is required for valid consent or valid refusal? That seems mis-
taken. While I don’t think it’s necessary that a patient agree with their doctors
and accept their advice and recommendations, it does seem plausible that valid
consents and refusals must be informed at least in the sense that the patient has
been provided with the relevant information about their condition and under-
stands this information.
Warren: The patient must have access to the relevant information in an understandable
form. If, however, Dr. Paladin gave Mr. Edwards a good pamphlet on dysphagia,
Mr. Edwards would not have to keep it or even read it. In my view, if the patient
is capable of deciding freely to accept or reject information and is capable of un-
derstanding that information as well as capable of seeing obvious facts that any
reasonable person would accept, the patient’s rejection or acceptance of medical
treatment counts as valid. In Mr. Edwards’s case, I believe that he had adequate
access to information, but he did not accept it, try to understand it, or believe it.
His decision was deliberately ignorant of the basis of the diagnosis and prognosis
before he checked out of the hospital. He freely and deliberately chose not to follow
medical expertise.
Doran: That’s a plausible outline of a view of valid consent (and valid refusal). If the
purpose of obtaining patient consent is to make sure that the patient’s right to self-
determination (that is, autonomy) is respected, and if the patient freely says, “I don’t
want to know the details,” then respect for autonomy might reasonably require not
making the patient know the details.
Given this, I guess I would like to TECHNIQUE
clarify what is needed to be “capable It is generally a good idea to seek clari-
of deciding freely to accept or reject fication of a view before considering its
information,” and to be “capable of truth or falsity.
understanding that information.”
Patrick: I’m not sure it sounds plausible to
me. But I’ll reserve final judgment until Warren clarifies his view.
Warren: Okay, so there are two main points that require clarification. The first is what
I mean when I speak of being capable of deciding freely to accept or reject informa-
tion. The second is what is meant by being capable of understanding that infor-
mation as well as being capable of seeing obvious facts that any reasonable person
would accept.
Let’s take the first point and look at what we normally expect in a competent
adult’s free decisions to see if that helps to clarify things. Part of what it is for people
to decide freely is that we think their decisions flow from themselves, not from

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 122   DEBATING HEALTH CARE ETHICS

someone or something else like a hypnotist or a brain disease. We think that those
decisions reflect their preferences and that those preferences are not themselves in-
duced in some way incompatible with that person’s ownership of them. There are, of
course, some deep questions about free will that are not answerable here, but I am
looking for something more on the surface of our thinking about deciding freely.
Doran: Okay, although it is somewhat vague, I am prepared to grant your claim about
what is involved in deciding freely to accept or reject information. But what about
your idea that patients must be capable of understanding information to give valid
consent or refusal? Is the idea that patients are capable of understanding their alterna-
tives, understanding their preferences, and judging in a reasonable way that a certain
alternative will best promote their preferences?
Warren: At some level I would accept that, but, as I have explained, it might be at the
level of choosing which kind of expertise, if any, to accept rather than understand-
ing the alternatives as the experts describe them.
Doran: So, in your view, a competent person’s consent or refusal is valid if she can freely
choose some alternative based on her preferences, and where she makes this choice
in light of her understanding of her situation and the alternatives. This may include
accepting the physicians’ and nurses’ view of her situation, or it may include accept-
ing her own view of the situation, provided that it is not a view that any reasonable
person could see as false. Is that it?
Warren: Yes.
Patrick: But there’s more to the view you proposed, Warren. The choice to refuse treat-
ment can be valid even if the patient refuses to hear what the medical experts have
to say about her condition. That is, she can choose to be ignorant about medical
opinion, and still her refusal of treatment can be valid.
Warren: Yes, that’s my view: uninformed consent or refusal may be valid. Suppose you
say to your doctor, “I am in pain. I don’t want to hear all about my condition right
now. I trust you. You’ve never steered
me wrong. Go ahead with the opera- UP FOR DISCUSSION
tion.” That would surely be valid con- Warren says that it “would surely be
sent. Similarly, refusal can be valid valid consent” if a patient says to her
without the patient’s accepting infor- doctor, “I am in pain. I don’t want to hear
mation as long as the information is all about my condition right now. I trust
available. As long as one is competent you. You’ve never steered me wrong.
and freely chooses to ignore informa- Go ahead with the operation.” Do you
tion, one may accept or refuse treat- agree? Why or why not?
ment validly.
Doran: I think I agree with that—but, of
course, we disagree on whether Mr. Edwards satisfied this principle, because we
disagree on whether he was competent.

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 Chapter 4  Autonomy and the Right to Refuse Treatment  123

Patrick: I’m not sure I agree. Warren suggests that a valid consent or refusal re-
quires the capacity to make free choices, and the capacity to understand the
relevant information. I’m sure that in some sense Mr. Edwards had the capacity
to understand and appreciate what the experts told him about his condition and
the dangers of eating solid food. But, in fact, he did not understand this: his
arrogance, stubbornness, and foolishness prevented him from seeing the facts
as everyone else saw them. For a refusal to count as valid, one needs more than
the capacity to understand relevant information; it seems one needs an actual
understanding of the information. How can my consent be valid if I don’t even
know what I’m consenting to?
Warren: You could be saying, “I trust
you. Go ahead with the operation.” BACKGROUND
What one needs to give valid con- “Some commentators have attempted
sent is the ability to freely decide to define informed consent by speci-
whether or not one wants to know fying the elements of the concept, in
the relevant information. As my particular by dividing the elements
example of consent based on trust into an information component and a
illustrates, it can be quite reason- consent component. The information
able for a competent person not to component refers to disclosure of infor-
want to know the details of their mation and comprehension of what is
treatment options, especially if such disclosed. The consent component re-
knowledge will only do that person fers to both a voluntary decision and an
harm. Mr. Edwards freely decided authorization to proceed. Legal, regula-
not to believe the experts’ advice, tory, philosophical, medical, and psy-
yet his refusal was valid. chological literatures tend to favor the
Doran: Well, Warren, your view definite- following elements as the components
ly challenges the prevailing view that of informed consent: (1) competence,
valid consents and refusals must be (2) disclosure, (3) understanding, (4)
informed, and you present a compel- voluntariness, and (5) consent.”
ling case for your position. There are
still lots of unanswered questions, but Source: Tom L. Beauchamp and James
time is short, so why don’t we move F. Childress, Principles of Medical Ethics,
5th ed. (New York: Oxford University Press,
on now?
2001), 79.
Warren: Sure.

UP FOR DISCUSSION
Must consent be fully informed to be valid? If not, to what degree, if any, must it be
informed?

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 124   DEBATING HEALTH CARE ETHICS

Patrick: Why don’t we turn to an examination of premise (7) in your argument, War-
ren, which states: If Mr. Edwards was within his rights to refuse treatment, then
his health care team was morally required to respect this choice. I have some doubts
about this premise.
Warren: Let’s hear your objection.

OBJECTIONS TO PREMISE (7)

Virtue May Overpower the Right to Refuse

Patrick: Even if you can satisfy me that Mr. Edwards was competent and adequately
informed, I may part company with your premise (7). For even if Mr. Edwards
had the right to refuse treatment, it does not follow that his health care team was
morally required to respect that decision. The right to refuse treatment is not abso-
lute. In cases where exercising this right is likely to defeat a patient’s chosen health
care goals, it seems his health care
team may be justified in restricting BACKGROUND
a patient’s liberty. Mr. Edwards pre-
The questions of competence, valid re-
sumably wanted to continue living.
fusal of care, and whether the right to
But because he was stubborn, foolish,
self-determination should win out over
reckless, and arrogant, he rejected the
protecting the patient from harm and
advice of his doctors and nurses and,
premature death are poignantly raised
as a result, was likely to die if he was
in the story of Donald (Dax) Cowart.
dismissed. If Mr. Edwards did not
Dax’s case was made into two docu-
want to die, and his actions were very
mentaries. These documentaries tell
likely to kill him because they were
the story of a man who suffered third-
based on mistaken beliefs, then per-
degree burns to 68 percent of his body.
haps the responsible and beneficent
Dax’s recovery required that he submit
thing to do was to force him to stay
to excruciatingly painful baths and treat-
in the hospital. So Mr. Edwards may
ments. Dax refused to consent to these
have had a right to refuse treatment,
treatments, yet they were performed
but respecting this right may not have
against his will. He was held against
been the virtuous thing to do, all
his will for 14 months. Eventually, Dax
things considered. Beneficence can
was able to leave the hospital and go
sometimes outweigh autonomy.
on with his life. Although he now says
Warren: That is a very interesting objec-
that he is happy, he still insists that his
tion. You say even if the patient is
wishes should have been respected
competent and has a clear right, by
and that he should have been allowed
way of autonomy, to refuse treatment,
to die.
we might still be morally required to

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 Chapter 4  Autonomy and the Right to Refuse Treatment  125

force treatment on that patient. The reason is that it would be virtuous to do so

in cases like Mr. Edwards’s. According to my theory, of course, if the patient has
a right that is not outweighed by other rights or duties, then we must accept his
refusal. A right to refuse that can be ignored seems a poor right. Let me, however,
try to meet you on your territory, virtue theory, as you have often met me in my
theoretical realm.
Accepting, for the sake of argument, what I take to be your view, that virtues
may outweigh rights, I would have to question the responsibility and charity you
see here. It is irresponsible to treat a patient as incompetent when that patient is
known to be competent. This undermines not only the dignity of that patient but
can lead to paternalism becoming entrenched to everyone’s detriment. It is, by the
same token, not charitable. We know that Mr. Edwards would have been outraged
to be treated in this way and had already found ways around the soft diet restric-
tion. It does not appear that attempting to force treatment would do any good. The
only alternative the staff had was pursued thoroughly when Charles did his best to
educate Mr. Edwards at home after his release. That was charitable, but applying
force that was both impractical and an outrage to the patient’s dignity would not,
all things considered, have been virtuous.
Patrick: Those are good points, and I recognize that there is much room for argument
here as to what was the virtuous thing
to do. But I’m not convinced that THEORY
you’ve got things right. You suggest, Recall that paternalism is interference
for instance, that it is irresponsible to in the liberty of another person for that
treat a patient as incompetent when person’s good. Patrick is here arguing
that patient is known to be compe- for what is often called weak pater-
tent. Given this, it’s not clear to me nalism. This is the view that interfer-
why you see seat belt laws, or virtually ence with liberty is justified in order to
any other paternalistic interference prevent people from behaving in ways
with our liberty, as justified. Aren’t that are likely to defeat their goals. By
these also irresponsible, since they in- contrast, strong paternalism is the
volve treating competent people as if view that we may legitimately prevent
they were incompetent? a person from attempting to realize ir-
It seems to me that it is irrespon- rational or mistaken goals. See Gerald
sible not to restrict our liberty in cases Dworkin’s entry “Paternalism” in the
where our freely chosen acts are based Stanford Encyclopedia of Philosophy,
on clearly false beliefs and the acts are ht tp://[Link]/entries/
likely to undermine very important paternalism/.
goals we have—like the goal to con-
tinue living!
Warren: Beliefs that are clearly false to Dr. Paladin may not be clearly false to
any reasonable person, so we cannot respect the dignity of Mr. Edwards if we

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require him to accept Dr. Paladin’s views because Dr. Paladin is an expert.
Further, seat belt legislation and the like are different from forcing health care
on someone. The latter is a much more important interference and so is not
the kind of thing that should be forced on a competent person, but the former
interference is so trivial, and the benefits so huge, that it is more easily justified
on grounds of virtue. Kindness and caring for others, for instance, require that
we ignore trivial liberties to prevent massive suffering that obviously results.
Patrick: Well, I suppose that what I’m suggesting is that significant interference may
be justified in cases where a person’s actions are likely to undermine that person’s
freely chosen significant goals. If, for instance, people prefer to avoid injury, it may
be legitimate to force people to wear seat belts. Similarly, if patients have a strong
preference to continue living, then it may be permissible to prevent them from leav-
ing the hospital if we are quite certain they’ll engage in behaviours that are likely
to kill them. Notice that I am not ar-
guing that it is permissible to prevent THEORY
them from leaving the hospital, only Notice the opportunity to use care eth-
that it may be. These are tough cases. ics in this situation. The caring thing to
My point is that it’s just not obvious do might well differ from the require-
to me that respect for personal auton- ments laid down by rights theories.
omy ought to prevail over beneficence
and other values in these cases.

Doubt Justifies Delay

Doran: Here for me is the concern. As you know, I have serious doubts about whether
Mr. Edwards was competent to make his decision to refuse treatment. This is es-
pecially so in Scene 4, after his choking incident in the hospital. He seemed very
confused about where he was, and what he was saying—though I agree his was a
hard, borderline case. Given that it was a borderline case of competence, it seems to
me that we should consider whether his health care team did all it ought to in order
to enable Mr. Edwards to make the right choice for himself.
For instance, I notice that there were a couple of patient-care conferences to
discuss Mr. Edwards’s situation. This is good, but I think it would have been bet-
ter if these conferences had been more inclusive, and had brought together Mr.
Edwards and his husband, as well as a mental health professional, to discuss with
everyone what was important to Mr. Edwards, as well as the medical history, the
doctor’s diagnosis, the risks of releasing him, the importance of getting a home
nurse if he were to decide to leave the hospital, and so on. A more inclusive group
effort would have been best. I am not necessarily claiming that Mr. Edwards ought
to have been forced to stay in the hospital on a soft diet, but I am suggesting that it
would have been better for his health care team to have taken a different approach

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 Chapter 4  Autonomy and the Right to Refuse Treatment  127

toward Mr. Edwards. A more caring approach toward Mr. Edwards ought to have
been followed. I believe such an approach would have had a better chance of re-
specting Mr. Edwards’s choices while protecting him from the gravest risks.
Warren: Brad, his husband, seemed to be totally under Mr. Edwards’s influence, so he
would not have tried to dissuade him. Mr. Edwards might have been included in
such a conference, but enough was done in the actual event whether or not there was
such a conference. His health care team got a psychiatric evaluation. The balance
between protection of the vulnerable and respect for autonomy was achieved. As
Charles noted, Mr. Edwards was not to be persuaded.
Doran: Yes, I am not saying the hospital staff members were grossly negligent, or that
they did nothing. But it is pretty clear from the get-go that Eva and Dr. Paladin
had grave concerns about Mr. Edwards’s competence, and about the risks he was
willing to take for the sake of a lamb chop. At the end, after Mr. Edwards chokes
and becomes hypoxic, Dr. Paladin thinks that they ought to have done more. I am
trying to think about what that “more” ought to have been. I am suggesting that
more efforts should have been made to talk with him and with his family about
their concerns. Doing so may not have worked, but it should have been tried. They
should also perhaps have gotten him to sign an AMA. Perhaps these extra meetings
or conversations would have persuaded Mr. Edwards’s husband, Brad, if not Mr.
Edwards, to hire a home nurse.
Warren: Brad was not about to oppose Mr. Edwards. One could always do more for
almost any patient, but the team has to balance that against neglect of other patients
who are willing to be helped. As for signatures, that is a legal issue rather than a
moral one. The staff members working with Mr. Edwards all knew his mind plainly
enough. To be treated as a child would be horrific for someone of his temperament.
He did not become hypoxic for the sake of a lamb chop but for the sake of his inde-
pendence and personal dignity. It is doubtful that any different outcome could have
been achieved with additional efforts.
Doran: I think the hour or two of extra meetings to try to ensure that Mr. Edwards
knew the risks, to hear his wishes, and to persuade him to try to mitigate those risks
would have been well worth their time. At the very least, it would have helped the
medical team know that they did all they could. The signature is in a sense a legal
issue, but it does have a moral point: namely, it helps the patient see the gravity of
his choice. (I agree, though, that the moral issue is not one of actually signing an
AMA document, but of understanding that one is going AMA. The extra meet-
ings would just help underscore that fact.) You say they all “knew his mind plainly
enough,” but that seems wrong. Charles, and apparently the psychiatrist, thought
Mr. Edwards was competent to make his health care decisions, but others on the
team thought he was not competent and in denial. Lastly, to consult with him and
his husband further was not “to treat him as a child”; it was simply the caring, re-
sponsible thing to do.

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 128   DEBATING HEALTH CARE ETHICS

Warren: In the coarse exigencies of day-to-day health care in a busy hospital, doing
what is required is hard enough. They knew his mind insofar as they knew what he
wanted and knew that there was no changing his mind. Delay was what Dr. Paladin
hoped for—and a possible reappraisal of his mental status. That would, if success-
ful, have treated him as a child, for if he could be declared incompetent he could
perhaps have been forced to follow the treatment regime.
Remember, too, that Charles did go to Mr. Edwards’s home and give him the
whole nine yards of warnings. I’m content that enough was done to establish Mr.
Edwards’s competence.
Doran: Yes, Charles was very caring, UP FOR DISCUSSION
though some may wonder whether his In the drama, Charles Nolet has himself
past relationship with Mr. Edwards transferred to take over the care of his
clouded his judgment and constituted friend Jonathan Edwards. Is this morally
a conflict of interest. That is not my laudatory since he is expressing grati-
view, however. tude and fulfilling a special obligation to
Perhaps we could step back from a friend, or blameworthy as partiality not
the facts of Mr. Edwards’s case. Can befitting a health care professional?
we agree on a general principle, if not
always on the application of that prin-
ciple, about what hospital staff ought to do in cases where a patient of borderline
competence makes a decision AMA that is likely to put his life in danger? Can we
agree that we want the patient to have autonomy, but also to be protected from rash
decisions that could be very harmful to himself or others?
Warren: I think we are agreed on that. It is just that in this case we do not see the same
balance point between protecting the vulnerable and respecting autonomy. I am
emphasizing autonomy a little more because I believe that, in the original position,
we would see it as in our interest generally to be able to direct our own lives. This
interest is so strong that we would prefer to err on the side of autonomy rather than
that of protection from ourselves.
Doran: Yes, what we are debating is this: How much protection should be given to
patients to protect them from their rash choices? I want to recommend that in
potentially serious medical situations, the hospital staff should, among other steps,
discuss (as a team) with the patient (and perhaps immediate family and/or caregiv-
ers) what the patient’s wishes are, and explain to the patient what their recommen-
dations are, so that an agreement can
be struck, or failing that, so that steps UP FOR DISCUSSION
can be suggested to patient and fam- How would you describe the ideal bal-
ily to protect the patient somewhat in ance between patient safety and pa-
case they go AMA. Here I think the tient autonomy?
insights of care ethics are to the point.

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 Chapter 4  Autonomy and the Right to Refuse Treatment  129

We recognize the autonomy of competent patients, but we want to demonstrate

concern that the patient exercises their autonomy safely and in an informed way.
Patrick: Right. That is the kind of position I have been arguing for from my virtue eth-
ics perspective. The right to autonomy is not absolute; it must be balanced against
virtues such as compassion, charity, and beneficence. Even if Mr. Edwards had a
right to refuse medical care, it was very foolish of him to exercise this right, given
the situation. The medical professionals working with Mr. Edwards recognized the
foolishness of his decision to refuse care, and so more should have been done to
prevent him from harming himself.
Warren: The general suggestion seems fine to me. In cases like this, however, if one
has to choose between hopeless attempts at persuasion of one adamantine patient
and doing what will get results for other, more co-operative, patients, the choice is
clear. One should attend to the other patients. Mr. Edwards was so obdurate that
no meeting to discuss his case was likely to be fruitful. He was a hard man, and that
made this a particularly hard case. Consequently, I come down on the side of the
right to autonomy with some hesitation, not with total confidence.
Patrick: Well, this looks like a good point to end our debate of this case. Warren, it
looks like Doran and I remain unconvinced that it was morally permissible for Mr.
Edwards’s health care team to release him when they did without at least some
further attempt at delay.
Warren: Yes, it seems my arguments have failed to persuade you.
Doran: Right, but by critically examining your argument, I think we were able to shed
much light on the difficulties involved in clarifying the concepts of autonomy, com-
petence, and valid consent in a medical context.

SUMMARY

Here is a summary of the main questions, concepts, and arguments covered in this chapter:

• In this chapter, we debate the proposition It was a moral error for the staff to allow
Mr. Edwards to discharge himself without further evaluation. Warren denies the
proposition; Doran and Patrick accept it.
• Warren defends his view by appealing to his favoured approach to ethics, social
contract theory. He argues that in the original position people would want to
protect their interests by insisting on a strong right to autonomy in the real
world. This right to autonomy, while not absolute, would prevent others from
significant paternalistic interferences in a competent person’s liberty. Warren
then argues that Mr. Edwards was a competent person who made a valid re-
fusal of care. To continue to hold him in the hospital against his will would be

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 130   DEBATING HEALTH CARE ETHICS

a significant paternalistic interference, and therefore the hospital staff did not
err when they allowed him to discharge himself when they did.
• Defence of Warren’s argument requires an examination of several difficult top-
ics: What is competence, and how is it related to autonomy? When is paternal-
ism justified? And what is valid consent?
• Warren thinks that only minor interferences in a competent person’s liberty
can be justified, whereas Doran and Patrick think that more substantial pater-
nalistic interferences with competent persons can be justified.
• Warren argues that Mr. Edwards was competent, but Patrick and Doran
disagree.
• Warren advances an argument that valid consent need not be informed con-
sent, and Patrick disagrees.
• Warren thinks that Mr. Edwards’s refusal of care was a valid refusal, although
neither Doran nor Patrick thinks his refusal was valid.
• Patrick argues that even if Mr. Edwards had a right to refuse care, it does not
follow that the hospital staff should have allowed him to exercise that right,
given that it could seriously harm him. The virtuous thing to do may have been
to restrict Mr. Edwards’s liberty to prevent him from serious harm or death.
• Doran argues that more efforts were required to ensure that Mr. Edwards and
his family understood his circumstances and the consequences of him refusing
care. Warren thinks that enough efforts were made, and further efforts would
have been fruitless.

REVIEW QUESTIONS

1. What is autonomy?
2. Why does Warren think that people in the original position would want to protect their
right to autonomy in the real world?
3. What is paternalism?
4. Explain Warren’s reason for rejecting paternalism in Mr. Edwards’s case. Explain why
Doran and Patrick think that some paternalism is justified in Mr. Edwards’s case.
5. How is competence defined?
6. When it comes to health care decisions, what do Warren, Patrick, and Doran think is
necessary to be a competent patient?
7. Why does Warren think Mr. Edwards was competent to reject medical advice and to dis-
charge himself from the hospital?
8. Why do Patrick and Doran think that Mr. Edwards was not competent to reject medical
advice and to discharge himself from the hospital?
9. Why, according to Warren, does valid refusal or acceptance of medical care not require
that one understand the medical advice being given?

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 Chapter 4  Autonomy and the Right to Refuse Treatment  131

10. What does Patrick think is necessary for valid consent or refusal of medical care?
11. Explain Patrick’s argument for the view that the health care team was not morally required
to accept Mr. Edwards’s decision to discharge himself from the hospital, even if his decision
was competent and adequately informed. What is Warren’s response to this argument?
12. What concerns does Doran raise about Mr. Edwards’s health care team’s behaviour
when it came to allowing him to leave the hospital? Explain Warren’s reply to Doran on
this point.

NOTES

1. Thomas Grisso and Paul S. Appelbaum, Assessing Competence to Consent to Treatment: A Guide
for Physicians and Other Health Professionals (New York: Oxford University Press, 1998), 42–43.
2. Warren’s views on consent are influenced by Benjamin Freedman, “A Moral Theory of Informed
Consent,” Hastings Center Report 5, no. 4 (1975): 32–39, reprinted in Readings in Biomedical
Ethics: A Canadian Focus, 3rd ed., ed. Eike-Henner W. Kluge (Toronto: Pearson-Prentice Hall,
2005), 161.
3. See, for example, Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 5th
ed. (New York: Oxford University Press, 2001), ch. 3.

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 5 EUTHANASIA

INTRODUCTION

Medical assistance in dying (MAID) is when a health care professional assists a patient
in dying, either by providing the patient with the means to commit suicide (assisted
suicide) or by performing euthanasia on the patient. The term euthanasia is most often
used to refer to bringing about another individual’s death for that individual’s own good
through some act or omission. Philosophers and health care professionals commonly
distinguish active euthanasia from passive euthanasia. The distinction is based on an
alleged difference between killing and letting die. Our main concern here is with volun-
tary active euthanasia (VAE), in which a patient freely consents to and receives active
euthanasia, and non-voluntary active euthanasia (NAE), in which a patient who cannot
express a wish to live or die is actively euthanized. In Canadian law, competent adults
have long had a legal right to have medical treatment stopped, or to refuse treatment
altogether even when this might lead to the death of that competent adult. As of 2016,
competent adults near death have a conditional legal right to receive MAID, either
through physician-assisted suicide or physician-provided voluntary active euthanasia.1
NAE is still forbidden under Canadian federal law. Although Canadian law is clear
in supporting some VAE, considerable debate remains about the morality of VAE and
NAE, and about whether the laws permitting some VAE and prohibiting all NAE
ought to be changed.
To explore these issues, we summarize a real case of MAID received by Tim Regan.
It is unclear whether Mr. Regan’s case is an instance of VAE or physician-assisted sui-
cide; however, a recent analysis indicates that almost all cases of MAID involve VAE
as opposed to physician-assisted suicide.2 Given this, and the controversy around active
euthanasia, we will assume that Mr. Regan received VAE. Our debate focuses on the
question of whether VAE, in this case and in general, is morally permissible. We then
turn our attention to consider the moral status of NAE.
Doran, Patrick, and Warren agree that VAE is morally permissible under certain
conditions. They agree, moreover, that NAE is also morally permissible under certain con-
ditions, although they concede that the arguments here are less decisive. That the authors

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 Chapter 5  Euthanasia  133

reach the same conclusions, despite their different theoretical approaches, provides broad
support for the moral permissibility of some cases of VAE and NAE.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Define euthanasia
• Distinguish the different types of euthanasia
• Explain why considerations of autonomy and best interests are not,
without qualification, sufficient to show that voluntary active euthanasia
is permissible
• Outline Doran’s, Patrick’s, and Warren’s arguments for the moral permis-
sibility of voluntary active euthanasia
• Describe the Sanctity of Life and the God’s Ownership objections to ac-
tive euthanasia and why they fail
• State the Best Interest argument given in support of the moral permis-
sibility of non-voluntary active euthanasia
• Explain Philippa Foot’s argument against the moral permissibility of non-
voluntary active euthanasia and why her argument is rejected
• Develop your own arguments for or against the permissibility of voluntary
active euthanasia and non-voluntary active euthanasia

CASE DESCRIPTION
Please note: This case description is based on Dr. Brian Goldman’s interview of Tim
Regan and his family including the moments leading up to Mr. Regan’s being given
MAID by Dr. Sandy Buchman.3 The facts in this case are a matter of public record, so
privacy is not invaded. Mr. Regan wanted his case to inform the further liberalization of
laws concerning euthanasia, in particular VAE based on advance directives.

Case Description: Tim Regan’s Voluntary Active Euthanasia

Tim Regan received MAID in 2017, after he was diagnosed with inoperable liver cancer.
Mr. Regan took advantage of a law enacted in Canada in 2016 that legalized MAID,
including VAE, under certain restrictions. These restrictions include being terminally ill
and being competent to consent to VAE at the time it is administered. In Mr. Regan’s
case, these restrictions on when VAE can be administered led him to receive MAID
before he would have preferred. Mr. Regan was at risk of becoming incompetent from
the toxins being released into his system from his failing liver. We are assuming he
asked for and received VAE rather than physician-assisted suicide. He affirmed that he

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wanted VAE before his disease progressed to a point where he could no longer consent,
because he did not want to risk becoming incompetent. He would have preferred that
an advance directive be honoured so that he could receive active euthanasia once he
was no longer competent to consent. But since Canadian law does not allow for active
euthanasia in cases where a patient is no longer competent, he opted for the earlier death.
Mr. Regan was a long-time supporter of VAE. As a teenager, he witnessed his aunt
suffer a lingering death. She was denied the right to refuse life-prolonging treatment,
and, as a result, her death was drawn out and agonizing. At that point, Mr. Regan be-
came a supporter of VAE. His views were reinforced decades later when he watched his
father-in-law endure a protracted death. He objected to pointless suffering and to what
he viewed as a waste of health care resources in cases like his aunt’s and father-in-law’s;
therefore, when he was diagnosed with inoperable liver cancer in the summer of 2017, it
was no surprise that he sought MAID.
Mr. Regan enlisted the help of his daughter, Honor Regan, to navigate the MAID
bureaucracy. Finding a physician willing to take a request of this kind seriously can be
trying. After a difficult search, the Regans were able to find Dr. Sandy Buchman, a pallia-
tive care specialist, who is active in MAID. Even if one can find physicians who will help,
MAID is heavily regulated. For instance, MAID is allowed only if the patient’s death is
reasonably foreseeable. Thus, those who are suffering from non-lethal but agonizing con-
ditions are not eligible for MAID in Canada. As we noted above, current law in Canada
also requires one to affirm one’s choice at the time of MAID. Advance directives asking for
MAID are not honoured in Canadian law. Since Tim Regan had already needed some
treatment for confusion, he could not risk any delay. Dr. Brian Goldman, who interviewed
the Regans, quotes Honor Regan as saying, “To me, that was such a cruel twist of fate that
you have my dad, who since the age of 16 knows that he wants MAID. It finally becomes
legal the year before he gets this diagnosis, and he’s given a cancer that’s going to degrade
his mind.” Tim Regan could not enjoy his family’s company until his mind faded. He
had to make use of MAID while he was still competent. He and Honor believed that he
should be able to give an effective advance directive requesting MAID in the event of his
losing competence. His competence was also tested eight times from when he requested
MAID up to the moment before MAID was given. Mr. Regan thought this excessive.
On December 12, 2017, with loving support from his wife and extended family,
Tim Regan died quickly and peacefully with Dr. Buchman’s help.

What Is Euthanasia?

Doran: Before we turn to the specifics of Mr. Regan’s case, let’s start with a general
definition of euthanasia.
Patrick: Consider the etymology of the term euthanasia. It derives from the Greek pre-
fix eu, which means “good,” and the word thanatos, which means “death.” This sug-
gests that euthanasia means “good death.”

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 Chapter 5  Euthanasia  135

Warren: Right, but that definition is

TECHNIQUE
much too vague and ambiguous.
Many things may be viewed as good In this section, we illustrate a philosoph-
deaths that would not qualify as eu- ical technique of conceptual analysis.
thanasia—dying for a just cause, for Inadequacies of some common defini-
instance, may be a good death, but tions are noted. Progressively better
would not be euthanasia. So, we definitions of euthanasia are produced
need a much more precise definition in response to objections.
of the term.
Patrick: I heard an interesting discussion of euthanasia on the CBC, in which euthana-
sia was defined as bringing about the death of a terminally ill person through the
omission or commission of an act. This definition is moving in the right direction,
but needs refinement.
Doran: I agree that this definition moves BACKGROUND
us in the right direction, but it still The Julia Lamb case brought to the
is somewhat problematic. One prob- Supreme Court by the BC Civil Liberties
lem is that euthanasia need not be Association is a case in point. Ms. Lamb
performed on persons; we can and was not terminally ill, though her condi-
do euthanize non-persons—for in- tion meant that she faced the likelihood
stance, pets. Another problem is that of extreme suffering for decades if she
euthanasia need not involve bring- continued to live.
ing about the death of terminally ill
individuals. We can euthanize indi- Source: British Columbia Civil Liberties
viduals who suffer from very serious Association, “Lamb v. Canada Case
Documents,” August 22, 2016, https://
disabilities or injuries, yet who are
[Link]/our_work/lamb-v-canada-
not terminally ill. case-documents/.
Warren: A third problem with that defi-
nition is that it does not acknowledge
that euthanasia involves bringing about an individual’s death for the sake of that indi-
vidual. Ending the life of a person who is terminally ill in order to get her insurance
money is certainly not euthanasia.
Patrick: Right, of course. In the light of these points, let’s try this: Euthanasia is an
intentional act, or omission, that brings about the death of an individual for that
individual’s own good.
Warren: That looks better. The definition rightly recognizes that the individual being
euthanized need not be terminally ill, and it also correctly states that euthanasia is
something performed with specific intentions. That is, one intentionally allows or
brings about an individual’s death with the intention of benefitting that individual.
Patrick: Given this definition, the intention behind the act will greatly affect whether
some act is a case of euthanasia. For instance, if a physician gives a patient a large
quantity of medication—say, morphine—with the intention to ease the patient’s

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pain, while foreseeing that the drug will likely kill the patient, then this would not
count as a case of euthanasia. However, if the patient was given the same dose of
morphine with the intent to kill him for his own good, then that would be a case of
euthanasia. Thus, the same behaviour could amount to an act of euthanasia or not,
depending on the intention of the person who behaves in this way.
Warren: It is true that doctors, and others, often want to draw this distinction, so I
suppose it is good that our definition allows for this distinction to be made. But a
different concern is with the idea of “an individual’s own good.” Perhaps we need
to limit the idea of an individual’s good to health-related concerns, such as extreme
pain or incapacity. For if we do not limit the idea, it may turn out that we would
have to view certain killings as instances of euthanasia when they are not really
cases of euthanasia. For instance, it could be for an individual’s own good if he is
killed rather than having to spend his life in a notoriously brutal maximum security
prison, but it seems odd to count such an act as euthanasia, even if it was done at
that person’s request and intending his own good.
Patrick: Well, I am not so sure that it would be odd to count that as an act of eutha-
nasia, if we assume that there was no other option for this person, and that life in
that prison would be absolutely dreadful. But, given that our present concern is
with health care situations, perhaps we would be wise to avoid controversy and to
stipulate that whenever we speak of the individual’s best interest, we mean the indi-
vidual’s health-related interests.
Warren: All right, just to stick with what UP FOR DISCUSSION
we perceive to be common usage, In Toni Morrison’s novel Beloved, a
let’s stipulate that the benefits are mother kills her young child in order
health-related. to prevent her from being enslaved by
Patrick: In order to stick to common us- notoriously brutal slave owners. On the
age, we might also want to distin- assumption that the child’s life would
guish euthanasia from suicide, and have been not worth living, should we
this definition does not do that. view the mother’s actions as a case of
Doran: Right, Patrick. Our definition en- euthanasia?
tails that some suicides can be cases
of euthanasia, but I think that is fine.
When one intentionally kills oneself for one’s own good, one performs an act of eutha-
nasia on oneself. For example, imagine a person who is diagnosed with an extremely
painful cancer—say, mouth cancer. Suppose, after several surgeries, and much suffer-
ing, the cancer has returned and the end is near. Not wanting to face the horrific pain
of untreatable mouth cancer, and not wanting to take so much medication that she
would be rendered barely conscious for the rest of her natural life, suppose this person
opts to take her own life by taking an overdose of barbiturates. I see no problem with
viewing her act as a case of euthanasia. Indeed, to say she simply “committed suicide”
would be to under-describe this act.

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 Chapter 5  Euthanasia  137

Nevertheless, I admit that my use

UP FOR DISCUSSION
of the term is idiosyncratic, and since
our focus here is on euthanasia when Do you think that some suicides should
performed on others, let’s stipulate count as instances of euthanasia?
that when we use the term euthanasia,
we mean it to involve intentionally
bringing about the death of another individual.
Warren: Agreed. Our definition is now this: Euthanasia is an intentional act, or omis-
sion, that brings about the death of another individual for that individual’s own health-
related good.

BACKGROUND
The Canadian Medical Association defines euthanasia as follows:

Euthanasia means knowingly and intentionally performing an act, with or without consent,
that is explicitly intended to end another person’s life and that includes the following ele-
ments: the subject has an incurable illness; the agent knows about the person’s condition;
commits the act with the primary intention of ending the life of that person; and the act is
undertaken with empathy and compassion and without personal gain.

Source: Canadian Medical Association, Policy Document PD15-02—Euthanasia and Assisted

Death (Update 2014).

Different Kinds of Euthanasia

Patrick: Even though we now have a working definition of euthanasia, there is still more
work to do in order to clarify the concept. This is because there are different types of
euthanasia. Let’s begin by noting the difference between active and passive euthanasia.

UP FOR DISCUSSION
The concept of euthanasia is closely related to another concept—physician-assisted sui-
cide. Physician-assisted suicide occurs when a physician provides a hopeless, usually
terminally ill patient with the means (such as a prescription for a lethal dose of a drug) to
commit suicide. A noteworthy example of physician-assisted suicide is the case of Sue
Rodriguez, a victim of ALS. After Canada’s highest court denied her the right to VAE, a
sympathetic physician assisted her to die. She was paralyzed and unable to take her own
life, but she was clearly rational, competent, well informed, and willing to die.
Why would our definition of euthanasia not include physician-assisted suicide? Do you
think there is a morally significant difference between physician-assisted suicide and
euthanasia?

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 138   DEBATING HEALTH CARE ETHICS

Active versus Passive Euthanasia

Doran: Roughly, active euthanasia occurs when one directly causes another individual’s
death—for instance, by administering a lethal injection—for that individual’s own
health-related good. Passive euthanasia occurs when one allows another individual
to die—by withholding life-prolonging treatment, for example—for the sake of
that individual’s health-related good. It must be said that the boundaries between
active and passive euthanasia are not always clear, however.
Warren: Yes, but in spite of the penumbral area, we can often agree on the distinction
in health care contexts. For instance, it was a case of active euthanasia if Dr. Buch-
man gave Tim Regan a lethal series of drugs by IV. But it would have been a case of
passive euthanasia if, instead, Tim Regan had a heart attack and Dr. Buchman had
respected his advance directive, do not resuscitate.
Perhaps we can just say that intentionally refraining from treatment so that it
will lead to death for the patient’s good counts as passive euthanasia, while inten-
tionally causing the patient’s death for the patient’s good counts as active euthanasia.
Doran: But what about cases where a feed-
ing tube or respirator is removed from
a terminally ill patient? In a sense this BACKGROUND
is active, since it requires action, and The case of Nancy B. is a well-known
yet in a sense it is passive, since the act Canadian example of voluntary passive
stops treatment and so allows the pa- euthanasia. Nancy B. was paralyzed by
tient to die of a natural cause. a rare neurological disease and refused
Patrick: Interestingly, such cases are usu- to be kept on a respirator. The case
ally viewed as passive euthanasia. came to court where a judge agreed
Perhaps that is because what marks that she had the right to refuse treat-
the distinction between passive and ment. She was tranquillized and then
active is the cause of death. Roughly, removed from the respirator, and she
the idea is that if one intends to let subsequently died.
the disease kill the patient for the
patient’s own good, then it is pas- Source: “‘Who Owns My Life?’ Asks ALS
sive. But if one intends to cause “non- Patient Sue Rodriguez,” CBC Television,
November 24, 1992, [Link]
naturally” the death for the patient’s
archives/entry/who-owns-my-life.
own good, then it is active. Thus, not
treating the cancer or the infection,
or removing the respirator and “letting nature take its course” are cases of passive
euthanasia, while giving a lethal dose of drugs, for instance, is active.

UP FOR DISCUSSION
Explain why rationing health care—for instance, denying needed heart transplants to
elderly people so that younger people can get them instead—is not passive euthanasia.

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 Chapter 5  Euthanasia  139

Warren: I think that drawing the exact boundaries between passive and active eutha-
nasia is very tricky, but the basic idea is quite clear, and in many cases we can con-
fidently judge whether it is passive or active euthanasia.

Voluntary, Non-Voluntary, and Involuntary Euthanasia

Patrick: Next, we need to note that active and passive euthanasia can be done either
voluntarily, involuntarily, or non-voluntarily.
Doran: Right. Voluntary euthanasia occurs when a competent individual consents to
his death; involuntary euthanasia occurs when a competent individual does not
consent to his death; and finally, non-voluntary euthanasia occurs when it involves
mentally incompetent individuals who lack the decision-making capacity to express
a preference to live or die.
Patrick: Those definitions look good, but a few clarifications are in order. We should
note, for instance, that voluntary euthanasia can occur with the patient consenting
at the time of the euthanasia, or prior to that time, through an advance directive.
So, it is important to realize that a person need not be competent at the time of
their death for it to count as a form of voluntary euthanasia. Recall that Tim Regan
wanted the law to respect his advance directive to receive VAE.
Doran: Right. And notice also that we’ve defined non-voluntary euthanasia in such a
way that it applies to individuals who lack the ability to make a decision. This would
include young children, for example, and the severely cognitively impaired.

BACKGROUND
A well-known Canadian example of non-voluntary active euthanasia is the case of Tracy
Latimer. Tracy was a 12-year-old quadriplegic who functioned at the level of a three- or
four-month-old infant. She suffered from excruciating pain, underwent repeated sur-
geries, and required further surgeries to remove her thigh bone. In 1993, her father,
Robert, unwilling to see his daughter suffer any longer, placed her inside his pickup
truck, ran a hose from the exhaust pipe to the inside of the cab, and watched as his
daughter died. He then turned himself in to the police, admitting that he killed his daugh-
ter. Latimer was convicted of second-degree murder. The jury recommended parole, and
the trial judge agreed, even though the minimum sentence for second-degree murder is
10 years in prison. This decision, however, was repeatedly appealed, going all the way
to Canada’s Supreme Court. In the end, it was ruled that the minimum sentencing laws
needed to be followed, and Robert was sentence to life in prison, with no eligibility for
parole for 10 years. In 2007, Robert was denied parole for failing to express remorse.
In 2008, however, Robert was granted day parole, and he received full parole in 2010.
See “Latimer Granted Full Parole,” CBC News, November 29, 2010, [Link]
news/canada/saskatchewan/latimer-granted-full-parole-1.884458 for a brief overview.
Non-voluntary euthanasia remains illegal in Canada.

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Warren: Finally, there are cases of involuntary euthanasia. These would be rare cases,
but they could happen. It is not unrealistic to think that a physician, or, more
likely, a family member, might, on grounds of compassion, decide not to tell her
competent patient or loved one that she is going to be allowed to die or to receive
a lethal injection.
Patrick: True, Warren, but it takes some imagination to come up with cases of involun-
tary euthanasia that seem permissible.
Warren: Yes, of course.
Doran: I agree. And once again there can UP FOR DISCUSSION
be grey areas that divide these dif- Suppose there was someone who was
ferent categories, but the distinction mentally competent, yet totally unable
between these types of euthanasia to communicate any of his preferences
usually seems quite clear. as a result of permanent and complete
Doran: I have one more question. What paralysis. If this person was intentional-
is the connection between medi- ly allowed to die or intentionally killed for
cal assistance in dying (MAID) and his own good, would it be a case of non-
euthanasia? Much discussion around voluntary or involuntary euthanasia?
this topic seems to prefer referring
to the issue as “MAID” rather than
“euthanasia.”
Patrick: I take it that MAID includes both assisted suicide and active euthanasia. In
cases of assisted suicide, one is given the means to end one’s own life. For instance,
it would be assisted suicide if Dr. Buchman gave Mr. Regan some pills to swallow
that would cause his heart to stop beating. In cases of active euthanasia, one directly
causes another individual’s death (for the benefit of the one who is killed). For in-
stance, it would be active euthanasia if Dr. Buchman injected a lethal drug into Mr.
Regan’s body. Because we want to focus directly on the topic of euthanasia, we will
stick to that term, rather than the more general MAID.
Warren: Good. With these definitions in hand, we can now turn to the moral questions
about euthanasia raised by the particular case under consideration.

BACKGROUND
Here’s a table that lists the six possible kinds of euthanasia:

Voluntary active (VAE) Non-voluntary active (NAE) Involuntary active (IAE)

Voluntary passive (VPE) Non-voluntary passive (NPE) Involuntary passive (IPE)

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 Chapter 5  Euthanasia  141

DECIDING WHICH ISSUES TO DEBATE

Doran: There are a variety of ethical issues surrounding euthanasia. These ethical ques-
tions concern the moral permissibility of the various kinds of euthanasia, as well as
ethical questions over whether such actions should be legalized.
Warren: Right, moral and legal rights are two different issues that are best kept sepa-
rate. One can think that certain kinds of euthanasia are morally permissible without
also thinking that they should be legally permissible, and vice versa.
Patrick: Let’s focus here on questions about the moral permissibility of euthanasia. We
have assumed, for the sake of argu-
ment, that Tim Regan’s case was an THEORY AND DISCUSSION
instance of VAE. He freely chose to Moral principles and their legal coun-
receive active euthanasia, and Dr. Bu- terparts are two different things. Laws
chman intentionally caused Mr. Re- may be moral, immoral, or amoral, and
gan’s death for his own health-related moral principles may not be legally en-
good. Was it morally permissible for forceable. Discuss an example of an act
Dr. Buchman to perform VAE on that is morally wrong but should not be
Tim Regan? More generally, under illegal. Give an example of an act that is
what conditions, if any, is VAE mor- not morally wrong but should be illegal.
ally permissible?
Warren: We should also consider the
moral status of non-voluntary active euthanasia, since VAE and NAE are the most
discussed in public debate.
Doran: Sounds good. Let’s start with an examination of the morality of Tim Regan’s
case and of VAE in general. Later, we can debate the morality of NAE.

THE MORALITY OF VOLUNTARY ACTIVE EUTHANASIA

Warren: I think VAE is justified in some cases, including Tim Regan’s. In the original
position it would be in our interest to accept a rule that would allow us to choose
the manner and time of our own deaths. There may be all sorts of restrictions we
would want to put on the practice of euthanasia, however. Things like psychologi-
cal evaluations and the availability of good comfort care including excellent pain
control would be adopted to protect our interests as seen from the original position.
But the basic right to VAE would be acknowledged in the original position as being
obviously in one’s interest for just the sort of reasons Mr. Regan expressed.
Patrick: I agree that VAE is permissible in many cases, including the case of Tim Re-
gan. Compassion, kindness, charity, empathy, respect for personal autonomy, and
other virtues speak in favour of VAE in this case and relevantly similar cases. And I

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also agree that various restrictions will likely be needed to protect people from such
things as temporary depression, irrationality, and so on.
Doran: I also think VAE is morally acceptable in Mr. Regan’s case, as well as in many
other cases. I have many reasons for my view. One of my arguments is, roughly, that
respect for autonomy and considerations of welfare constitute reasons in favour of
euthanasia that, in many cases including Mr. Regan’s, overwhelm any arguments
against it.
Warren: Well, why don’t we begin, Doran, by taking a closer look at your arguments in
support of VAE?
Doran: Sure. I’d like to begin by identifying some fairly familiar reasons that speak in
favour of VAE, and then I will point out that these reasons are not by themselves
sufficient to justify VAE. I will argue, however, that, suitably modified, these rea-
sons form the basis of a sound argument for the morality of VAE.4
Patrick: Sounds good.

The Autonomy and Best Interest Argument for Voluntary Active Euthanasia

Doran: Two basic sorts of arguments are frequently voiced in support of VAE. One sort
of argument raises the idea of autonomy—the basic refrain is that competent people
should have the right to determine their own futures, euthanasia allows for death with
dignity, and so on. Another strain of argument in favour of active euthanasia emphasiz-
es that sometimes it is in the best interest of a person to no longer continue living. Often
this is because of the tremendous hopeless suffering, both physical and psychological,
experienced by some patients, but it may also be because the patient is in a condition
where life is no longer a benefit to her (say, because she is able to exist without horrible
pain only if she is in a drug-hazed stupor). It is this appeal to the patient’s best interest
that constitutes another powerful reason in support of active euthanasia.
Patrick: Both strands of argument seem to introduce powerful considerations in favour
of VAE, although without qualification they may not be sufficient to make the case
for VAE.
Doran: I agree. Let’s begin with an initial statement of what we might call the Auton-
omy and Best Interest argument. This version of the argument will be too simple,
but understanding its weaknesses will enable us to revise the initial argument into
something that I take to be sound.

(1) If a person freely chooses some action, and that action is in that person’s
best interest, then the act is morally permissible.
(2) In some cases, including Tim Regan’s, a person freely chooses VAE and
it is in that person’s best interest.
(3) Therefore, in these cases, including Tim Regan’s, VAE is morally
permissible.

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 Chapter 5  Euthanasia  143

Patrick: The argument is valid, but it is

TECHNIQUE
likely unsound. Some may try to
reject this argument by attacking The claim “It is never in one’s best in-
premise (2). The critic may deny, for terest to die” would undermine support
instance, that a person could ever not only for active euthanasia but also
have a life that is not worth living for passive euthanasia. But insofar as
and, hence, that death is ever in a almost everyone thinks passive eutha-
person’s best interest. But that objec- nasia is justified in some cases, almost
tion is weak and is, I believe, refuted everyone should reject the claim that it
by Sue Rodriguez’s case, and by other is never in a person’s best interest to die.
cases that are particularly grim, such
as Tim Regan’s would be if he waited too long for MAID and his body and mind
became degraded.
Warren: Others will suggest, more plausibly, that VAE will be misapplied and per-
formed on people who don’t really freely choose it, or on people whose lives could
still be a benefit to them. Of course, these are serious concerns, but they speak to the
issue of whether VAE should be practiced, and to the dangers of legalization, and
not to the present issue of whether VAE is, in principle, morally wrong.
Patrick: Agreed. The critic is better off attacking premise (1) of the argument. An act
can be morally wrong even if it is freely chosen and in the best interest of those
primarily concerned. One way it could be wrong is if such an act violated the rights
of others. For example, it may be in the best interest of a person who just found
out that he needed a liver transplant to have his friend put him at the head of the
queue, but such an act—though freely chosen and in the best interest of the person
primarily involved—would be wrong since it would violate the rights of those who
had a prior claim to the transplant.
Warren: Notice further that freely chosen acts that are in a person’s best interest can be
wrong even if they do not violate anyone else’s rights. Think of a case such as this. Sup-
pose there is a person, call him Zeke, who is fabulously rich, and who is soon going
to die. As a last act of pleasure for himself, he decides he will collect his millions and
light it all on fire. The decision to burn
the money may be an autonomous de- TECHNIQUE
cision, and perhaps it is in Zeke’s best
Patrick and Warren are adopting the
interest to do so, since his choice will
standard philosophical technique of
give him pleasure. But it also certainly
using counterexamples to disprove a
seems wrong for Zeke to engage in
moral principle. In this case, it is the
such a wasteful, selfish action, given
principle expressed by premise (1) that
that Zeke could instead have used his
is under attack. In light of their objec-
wealth to benefit many people in great
tions, Doran must either abandon or
need. And if this is right, then we have
revise premise (1).
another reason to reject premise (1).

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The Revised Autonomy and Best Interest Argument

Doran: Your counterexamples show that premise (1) of the above argument is false. It
is too simple to say that euthanasia would be justified if it was freely chosen and in
a person’s best interest. But suitably modified, I think this argument can be saved.
So consider what may be called the Revised Autonomy and Best Interest argument
for VAE.

(1) If a person freely chooses some action, and that action is in that person’s
best interest, and it neither violates anyone’s rights nor sets back anyone’s
very important interests, then it is morally permissible.
(2) In some circumstances, a person freely chooses VAE, and it is in that
person’s best interest, and it neither violates anyone’s rights nor sets back
anyone’s very important interests.
(3) Therefore, in those circumstances, VAE is morally permissible.

I believe that Tim Regan’s case TECHNIQUE

of euthanasia is a case where VAE is Frequently in philosophical debate, the
justified because it satisfies the condi- response to a counterexample is to re-
tions set forth in premise (1). He free- vise the statement that it attacked, ex-
ly chose euthanasia, euthanasia was plicitly stating exceptions so as to avoid
in his best interest, it did not violate the counterexample. The process may
anyone else’s rights, and it did not set then be repeated until all the necessary
back very important interests of oth- exceptions are explicit in the statement.
ers. Therefore, it was permissible for A concern with this sort of process, how-
him to receive VAE. ever, is that the revisions to the princi-
Of course, in other cases, euthana- ple become merely ad hoc. One wants
sia may not be permissible. For exam- the principles one defends not only to
ple, if euthanasia was not freely chosen, avoid counterexamples but also to have
or if receiving it violated others’ rights an underlying rationale that is itself
or seriously harmed others, then it morally significant.
may be wrong. But, other things being
equal, the fact that VAE is sometimes
an expression of one’s deepest prefer- UP FOR DISCUSSION
ences and is necessary to serve one’s
Note that some could still challenge
best interests, and can be done with-
premise (2). They might maintain that
out setting back even more important
euthanasia violates God’s right to say
moral considerations, means that VAE
when we die. Is this a plausible posi-
is sometimes morally permissible.
tion? What would that imply about other
Warren: It is good that your modified
sorts of killing?
premise (1) can avoid our previous

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counterexamples. The revised premise (1) does not support putting one’s name at
the top of the transplant list, since such an act violates the rights of others. And the
revised premise avoids the thrust of the case of Zeke, since his action would set back
the very important interests of others.
Patrick: But there’s still room for objections to premise (1), even with the revision.
Warren: I suppose that opponents of VAE will try to reject your premise (1) by argu-
ing that freely chosen acts that serve a person’s best interest and violate no one
else’s rights nor set back any very important interests of others, can still be wrong
if they transgress other important values. For instance, they might think that
such acts would be wrong if they vio-
late the sanctity of human life or if UP FOR DISCUSSION
they are contrary to God’s will. We Do you think that the Revised Autonomy
should, therefore, consider those ar- and Best Interest argument is sound?
guments against VAE.

The Sanctity of Life Objection to the Morality of Voluntary Active Euthanasia

Doran: Right. Those who oppose VAE often argue that it is wrong because it would al-
low for the intentional killing of innocent human beings, and that killing innocent
humans is always immoral. Given that this is a common argument against active
euthanasia, and given that it could be used to counter my premise (1), we should
consider it.
Warren: Yes, that is a standard objection. It is derived from the Sanctity of Life
principle.
Doran: I think the objection is mistaken.
Patrick: I do too, but before we look at problems with this objection, I think we
need to spell it out in more detail. This view is often characterized as the view
that it is wrong to kill, because life is
sacred. But proponents of this view TECHNIQUE
are surely not claiming that all life is Notice that Patrick is pointing to fre-
sacred. The suggestion seems to be, quently overlooked features of the
rather, that human life—specifically, Sanctity of Life objection to active eu-
innocent human life—is sacred. But thanasia: (1) it applies only to human
why do proponents of this view be- life; (2) it typically is said to apply only to
lieve that there is something special innocent human life; and (3) it assumes
about the lives of humans, and only that if a life is sacred it is always wrong
humans? And how is it supposed to end it.
to follow from this that it’s always
wrong to kill an innocent human?
Doran: Various reasons are given for why human life is “sacred.” Often, arguments that
appeal to God are invoked in support of this claim. God created humans in His

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image, and so they are special, and

BACKGROUND
deserving of special respect.
Other times, non-religious rea- One statement of the Sanctity of Life
sons are given for the view that hu- view is expressed by Lutherans for Life–
man life is sacred. Kant, for instance, Canada, “whose mission is ‘to witness
could be seen as (to some degree) rel- to the sanctity of human life through
evant here, since he famously claims education based on the Word of God.’
that humanity is an end in itself, and Lutherans for Life–Canada believes
as such, has a special dignity. By hu- every human life—from conception to
manity, however, he means “rational natural death regardless of physical or
agents,” not “human beings.” So it is mental challenges or condition of de-
the lives of rational beings that are pendence—is precious in God’s sight.”
“sacred” for Kant.
Source: “Who Are We,” Lutherans for Life—
But, Patrick, you raise an inter- Canada, [Link]
esting question. What does it mean to who-are-we/.
say a human life is sacred? I take it the
claim is not that human beings may
never be killed, since, as you suggest, most who espouse this view accept the legiti-
macy of killing humans in some cases, such as self-defence, a just war, or maybe
even capital punishment. So, most likely, to say that a human life is sacred is to say
that an innocent human life may not be taken or may not be taken intentionally.
Thus, perhaps the principle should really be called the sanctity of innocent human life.
Patrick: Yes, I think that better captures the principle behind the Sanctity of Life view,
as I understand it.
Doran: Still, you’re right that one may wonder why the sanctity of innocent human life
entails that innocent humans may never be killed. After all, proponents of the view
are willing to make exceptions in cases like self-defence. Why should they not make
an exception when life is no longer a benefit to the person, and when that person no
longer wants to live?
Warren: More to the point, there are compelling counterexamples to the principle that in-
nocent humans may never be intentionally killed. Suppose that a totally incompetent
patient has been infected with an incurable disease that is easily spread, and that the
patient has escaped custody and is running toward a crowd. Now, suppose a police
officer shoots and kills that patient to avert what could be a global disaster, a plague.
In this case it would be permissible to kill an innocent human being so as to avoid a
worldwide plague, and so the sanctity of innocent human life principle must be false.
Doran: I take it that this patient is innocent in virtue of being “totally incompetent,”
and so the doctrine that says it is always wrong to kill an innocent human being
would imply that it was wrong to kill the plague victim. But it would clearly not

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be wrong to kill this innocent human

UP FOR DISCUSSION
being, given that it was necessary
to avert a global disaster. Therefore, Do you think the case of the innocent
the claim that innocent human be- plague victim is a successful counter-
ings may never be intentionally killed example to the claim that innocent hu-
must be false. man beings must never be intentionally
Patrick: Although I agree that it would killed? Why or why not? Develop your
not be wrong to kill the innocent own counterexample to the principle
person in this example, we should that innocent human beings must never
note that not everyone would agree be killed intentionally.
with our conclusion concerning the
permissibility of killing the plague
victim in this case. A Kantian would THEORY
argue, for instance, that it is always There are many definitions of person,
wrong to use persons as a mere means most of which make persons a differ-
to an end. Assuming the innocent ent class from the class of all humans.
human is a person—which is ques- If one thinks, for instance, that ratio-
tionable, I suppose, given his incom- nality is essential for being a person,
petence—then some may argue that it then some human beings would fail to
would be wrong to kill him, even if it be persons. For Kant, the hallmark of
is necessary to save the lives of others. a person appears to be the ability to
So the example might be unpersua- make one’s own decisions, including
sive for some. the ability to follow moral rules. This is
Warren: It is only problematic if we think, why Patrick questions whether a totally
like Kant, that we must be so non- incompetent human would still be a per-
consequentialist that we would risk son in Kant’s view.
all of humanity to save one person
who will die from his illness in any
case. I think it presents a counterexample to Kantian thought and, more generally,
to the principle that it is always wrong to kill innocent human beings intentionally.
Patrick: I agree, Warren. As you know, I’m no Kantian.
Doran: I believe your case presents a counterexample to most versions of the principle
of the sanctity of innocent human life, Warren. Kantians maintain that it is wrong
to treat rational beings merely as a means; they could then point out that a totally
incompetent person is no longer a rational being, and so the injunction not to treat
him merely as a means no longer applies. But a different case could serve as a coun-
terexample even to the Kantian version of the sanctity of human life (that is, the
sanctity of rational life).
Patrick: Let’s hear your counterexample, Doran.

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Suicide and Hare’s Lorry Driver—More Counterexamples to the Sanctity of

Life Principle

Doran: First, let me give a case that seems morally permissible but that involves suicide,
rather than euthanasia. Do you recall the September 11, 2001, terrorist attacks in
New York, and the heartbreaking cases of people jumping from the top floors of the
World Trade Center in order to avoid burning to death? I take it that these were
cases where suicide was both in one’s rational self-interest and morally permissible.
For clearly it was in the rational self-interest for these people to die quickly rather
than to roast to death, and clearly it was morally permissible in such a case to end
one’s own life as painlessly as possible rather than being burned alive. But if you
grant this, then it seems to me that you must reject the principle that it is always
morally forbidden to intentionally kill an innocent human being.5
Warren: I agree, Doran, that this is a case of morally permissible suicide. But I suppose
some would argue that there is a big moral difference between suicide and active
euthanasia. For the former involves killing oneself, but the latter involves killing
someone else.
Doran: Right, opponents might argue this. But I deny that there is always a signifi-
cant moral difference between a rational and morally permissible suicide and active
euthanasia. For there could be cases where a person is in a situation where suicide
would be both rational and morally permissible, but where they are unable to do it.
Surely, in such a case, it would be permissible for this person to ask for and to receive
help from someone else.
Indeed, the Christian philosopher R. M. Hare gives this case: a petrol lorry
driver (gasoline tanker truck driver) gets into an accident and is trapped in his
vehicle as flames begin to engulf him. He screams for someone to kill him, so that
he does not have to roast to death. A bystander, understanding the situation, takes
action and ends the petrol lorry driver’s life. Does the bystander act permissibly?
It seems so. And if that is the case, then we have a clear counterexample to the
Sanctity of Life principle. For the petrol lorry driver is an innocent person who is
permissibly killed by another person.6
Patrick: Good. This example seems to be a clear case where it is not wrong to end the
life of an innocent person, as it would be cruel not to comply with his request. Fur-
ther, it is a useful example to show the implausibility of the claim that it is never in
one’s best interest to die.
Still, although we agree with Hare’s counterexample, I suspect some would
argue that killing the lorry driver is wrong, because it is sinful or cowardly for the
driver to want to die.
Warren: That response to Hare’s example confuses, as Nowell-Smith says, a right to
live with a duty to live.7 If one has a right to live, then one may sometimes waive

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the right and release others from their duty not to kill. That is what the driver
does. The idea that it is sinful to want to die, however, probably rests on the
mistaken view that one has not just a right to live but a duty to live. Those who
think wanting death is cowardly are, moreover, being quite unrealistic about pain.
What do you think, Patrick?

THEORY
Hare defends the permissibility of active euthanasia in the case of the petrol lorry driver
by employing an idea that is similar both to the golden rule—“Do unto others as you
would have them do unto you”—and to Kant’s universal law version of the categorical
imperative, “Act only according to that maxim which you can at the same time will that
it should become a universal law.” Kant’s basic idea is that we should act only on princi-
ples that we can consistently will everyone to follow. Since we cannot consistently will to
universalize a principle that prevents us from being killed were we in a situation like that
of the lorry driver, we should reject a principle that prohibited killing in such situations.
There is considerable irony in using a Christian- and Kantian-inspired argument to
support VAE, since many Christians think that their faith requires them to oppose active
euthanasia, and since, as we have seen, Kant is usually interpreted as a defender of the
principle of the sanctity of human life (at least as it applies to innocent rational beings).
For a more detailed discussion of Kant’s ethics, see chapter 2.

Patrick: I agree, it is certainly not cow- UP FOR DISCUSSION

ardly for the driver to want to be Do you think that the case of the pet-
killed when the alternative is burn- rol lorry driver refutes the view that it is
ing to death. If anything, it would always wrong to kill an innocent human
perhaps be cowardly not to comply being because innocent human life is
with the driver’s request to be killed. sacred? If so, is this because you think
I believe this case shows that it is that the lorry driver’s life is no longer sa-
sometimes morally permissible to in- cred, or is it perhaps because you think
tentionally kill innocent persons. If that because life is sacred it ought not
that’s correct, then the main premise be left to such a miserable fate? Do you
in the Sanctity of Life objection to think that Tim Regan’s case is impor-
VAE is false, and that objection is tantly different from the lorry driver’s?
therefore unsound. Explain.
Doran: Beyond giving a clear counterex-
ample to the Sanctity of Life princi-
ple, I would like to explain why it is a mistake to claim that the intentional killing
of innocents is always wrong.
Warren: Go ahead.

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An Argument That the Moral Reasons against Killing Do Not Apply to

Voluntary Active Euthanasia

Doran: Normally, there are many reasons that explain why killing an innocent person
is wrong. The thing is, though, none of these reasons speak against VAE, and some
seem to actually support the moral permissibility of VAE.8
For instance, consider a typical murder—say, a drive-by shooting. Why is that
act wrong? Reasons why it is wrong include the following: (1) it harms the victim—
he is deprived the goods that his life had to offer and would have come to offer; (2)
it goes against his preferences—he did not want to die, yet his preferences were
disregarded; (3) it violates the victim’s autonomy—he had various plans in his life,
yet this killing took away his ability to control his life choices; (4) it spreads fear in
the community—knowing that there is a murderer on the loose who kills people
against their will is bound to terrify others. Perhaps there are other reasons that
make the act of murder wrong, but these seem to be the principal ones.
But notice that none of these reasons apply to VAE. It does not deprive the
“victim” of a good future (since it is only to be performed on individuals whose
life is no longer a good for them); it does not act against the “victim’s” prefer-
ences—it honours them; it does not violate the “victim’s” autonomy—it respects
it; and it need not spread fear in the community, since VAE is limited to people
who both need it and want it. So the standard reasons that make killing people
normally wrong do not apply to VAE, and that is why it makes sense to say
that VAE is an important exception to the moral rule against killing innocent
humans. Perhaps there is some other reason why killing is wrong that I have
overlooked, and which applies to VAE, but the onus is on opponents of VAE to
identify that reason.

An Argument That Euthanasia Is Wrong Because It Destroys What Belongs

to God

Patrick: I agree with you, Doran, that the considerations that typically make it wrong
to kill innocent human beings tend to speak in favour of VAE, rather than against
it. Once this point is made explicit, it seems implausible to suppose that VAE is
always morally wrong.
I doubt, however, that your argument will persuade many proponents of the
Sanctity of Life view. This is because the reasons you cite for why killing is gener-
ally wrong are not the principal reasons why many advocates of this view think
killing is wrong. What principally makes killing humans wrong, in this view,
usually turns on the fact that humans are God’s creation. So whether you kill

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someone in a drive-by shooting or you kill a terminally ill person, you are killing
one of God’s creations either way. This is often why both are regarded as wrong,
according to their view.
Doran: You may be right, Patrick. But those who appeal to this theistic argument are
in trouble, since, as we have seen, there are clear counterexamples to the Sanctity of
Life view they wish to defend—the petrol lorry driver case, or cases of self-defence,
or suicide for a worthy cause. Further, this argument has other problems.
Patrick: I agree—I think that this line of argument is indefensible. One additional and
obvious problem is that it presupposes that God exists. This is something that I, and
many others, would deny.
Doran: Yes, plus setting that question aside, notice that everything (or at least every
“natural” thing) in a theological view is God’s creation, and so it would turn out
that it would be wrong to destroy anything (or any natural thing)—bacteria, plants,
weeds, animals, and so on. Clearly, however, that is an absurd consequence. Instead,
for this argument even to get off the ground, we should revise it so that it says that
human life belongs to God, and so to destroy it (whether one’s own or others’) is
wrong, because it destroys something that belongs to God.
Warren: Yes, one often hears that only
God can take human life because hu- TECHNIQUE
man life belongs to God, but those Warren is setting up an argument called
who say this may nonetheless accept a dilemma. A dilemma shows that one’s
capital punishment, or killing in opponent is faced with only two or more
self-defence, or killing in defence of logical alternatives, none of which the
one’s country, or killing the innocent opponent would accept. If these oppo-
plague-stricken incompetent in our nents insist that only God may destroy
earlier example. Instead of pointing human life, then they have a problem,
to their view that our lives belong to for they would not be able to explain
God, they should face the justifica- why it is permissible to kill in cases of
tory arguments already given, if they self-defence. But if they say humans
are to be consistent, or deny that any may justifiably kill in some cases, then
killing of human beings, who are they have not yet provided an argument
God’s creation, innocent or not, is against active euthanasia.
ever justified, even in self-defence.
Patrick: Right. To sum up, then, either it
is always wrong to kill human beings or it is not always wrong. Proponents of the
Sanctity of Life view would not—or at least cannot plausibly—hold the former
view. They would, or should, accept that killing humans is sometimes permissible.
But then they cannot object to VAE simply on the ground that human life is sacred
or that human life belongs to God. Further argument is needed.

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A Counterexample to the Revised Autonomy and Best Interest Argument

Warren: Before ending our examination of the morality of VAE, I want to raise a more
direct challenge to your argument for VAE, Doran. Your first premise was that “If
a person freely chooses some action, and that action is in that person’s best interest,
and it neither violates anyone’s rights nor sets back anyone’s very important inter-
ests, then it is morally permissible.” But this principle faces counterexamples that
have nothing to do with euthanasia.
Doran: It sounds like you’ve got one in mind. Fire away.
Warren: Consider this very unusual case: consensual private incest (say between
two adult siblings). Imagine that these siblings freely choose to have sex in the
privacy of their remote cabin. They enjoy their sexual encounter and no one ever
finds out about it. Now granted, this is a really fanciful case. But the point of the
example is it seems like your first premise implies that this case of incest would
be morally permissible, but I suspect many people would find this case of incest
to be morally wrong.
Doran: Obviously, most cases of incest are not like your imagined case. They are any-
thing but consensual and they are extremely harmful. So here we have a very un-
usual case. I would also wonder whether both parties truly freely consented and
were truly not harmed by the encounter, but if this case is really as you’ve described,
then I’d have to admit that their actions were not morally wrong. For everyone’s
autonomy was respected and no one was harmed by their actions. Given this, I am
willing to bite the bullet and assume that while their actions might be unpalatable,
they weren’t immoral.
Patrick: Interesting example, Warren. For this to work as a counterexample to Doran’s
principle, however, the act in question has to be in the person’s best interest. Doran
wonders whether the individuals might have been harmed by the relationship, and I
suppose I share a similar concern. And even if they weren’t harmed, it’s far from ob-
vious that this incestuous relationship genuinely was in either person’s best interest.
Warren: Perhaps one could argue that it
is impossible for it to be in their inter- UP FOR DISCUSSION
est. That is what is required to fully In the final analysis, do you think it was
defuse the counterexample, but that morally permissible for Dr. Buchman to
discussion would take us too far from perform VAE on Tim Regan?
our topic.

THE MORALITY OF NON-VOLUNTARY ACTIVE EUTHANASIA

Doran: Okay, so it looks like we all agree that the Sanctity of Life objection fails, and that
VAE is morally permissible in certain situations. There are, of course, other objections

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to VAE, but perhaps we should now

BACKGROUND
consider the difficult issue of NAE,
non-voluntary active euthanasia. One of the most common arguments
Patrick: Yes, it’s one thing to say that if against VAE is the “slippery slope” ob-
competent people regard their life as jection. Roughly, this is the concern that
no longer worth living and express a if VAE is accepted, it will lead to other
clear preference for euthanasia, then kinds of killing that are morally unac-
it may be permissible to end their life. ceptable, for example, killing patients
It’s quite another thing, however, to who do not really choose euthanasia,
say that it’s permissible to euthanize or killing patients who could have had
individuals if they do not, because lives that were worth living. These slip-
they cannot, consent to the act. This, pery slope arguments raise serious
of course, is different from Tim Re- concerns regarding legalization of VAE,
gan’s case. But we can easily imagine but they do not show that any particular
that he had left no advance directives instance of VAE, such as Tim Regan’s, is
and his failing liver released toxins morally wrong.
causing brain damage that rendered
him mentally incompetent to make
his own medical decisions. In this imagined scenario, we might ask whether NAE
would then be permissible to avoid a long dying process replete with suffering.
Doran: Things are especially difficult when it comes to NAE, since my favoured argu-
ment for VAE appealed, in part, to people’s right to control their own futures in
matters that primarily concerned them. But this appeal to control one’s own future,
and the right to make one’s own decisions, is not something that applies to human
infants or to humans with severe mental incapacities. In general, we do not say that
young children, for instance, have a right to make their own decisions about mat-
ters that could seriously affect their well-being. So this argument cannot be used to
support NAE, where individuals cannot consent.
Warren: So, Doran, if your main argument for VAE won’t apply to NAE, then what is
your view on the morality of NAE?

The Best Interest Argument for Non-Voluntary Active Euthanasia

Doran: I think NAE is sometimes morally permissible. I think the crucial issue is what
we should do for individuals who cannot make their own decisions. Here it might
be instructive to consider one’s beloved pet, when it comes to end-of-life decisions.
It is quite clear that when it comes to one’s dog, for instance, one has a moral duty
to euthanize him, if continued existence harms the dog because he is in unremitting
pain, or cannot do the basic activities that dogs do—like eat, play, move, and so on.
In the case of one’s dog, questions of what the dog wants, or getting consent from
the dog, are obviously out of place. What is relevant is helping the dog avoid misery.

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If we turn from one’s pet to an incompetent human being, it seems that here,
too, questions of respecting autonomy are out of place. When a child does not want
to go to the dentist, or wants to eat a pound of junk food, the responsible adult
should not be concerned with respecting the child’s “autonomy,” since children are
not competent to make their own decisions about such matters, but rather should
do what is in their children’s best interest. Likewise, those individuals who are not
competent to make their own decisions need others to do what is in their best inter-
est. Similarly, when it comes to active euthanasia of incompetent human beings, I
believe that the primary concern needs to be with doing what is in the best interest
of the patient.
Warren: I have a caution to offer. I have noticed that examples of euthanasia of pets are
red flags to some critics of a liberal position on euthanasia. They say that promoters
of euthanasia value human beings no more than dogs. It bears emphasis, then, that
the point is to look at the reasons for mercy killing, not to compare the value of the
lives of humans and dogs.
Doran: Point taken. Nonetheless, I always find that reply odd, since it is tempting to say,
“You would do it for your dog—why wouldn’t you do it for a person?” Why should
someone who is supposedly worth more have to suffer in ways that we would not
dream of making a dog suffer?
Patrick: A related point is that we agreed that VAE is morally permissible in certain
cases. Given this, it is arguably unfair to make certain individuals suffer needlessly,
simply because they are unable to give consent.
Doran: That’s an excellent point, Patrick. Let’s now get back to the best interest argu-
ment for NAE. My argument is as follows:

(1) If an action is in an incompetent patient’s best interest, is performed for

that patient’s sake, and neither violates anyone’s rights nor sets back any-
one’s very important interests, then it is morally permissible.
(2) NAE is in an incompetent patient’s best interest, is performed for the
sake of that patient, and, in some circumstances, neither violates anyone’s
rights nor sets back anyone’s very important interests.
(3) Therefore, in some cases, NAE is morally permissible.

Patrick: Let’s consider what premises (1) and (2) imply with respect to the modified case of
Tim Regan in which he left no advance directives and became mentally incompetent.
Warren: Euthanasia is performed for his sake. It is consistent with both his best in-
terests and his rights. If he is suffering, it is in his best interest and it is his right
to avoid pointless suffering. He also has an interest in and a right to dignity. But a
dignified existence is not possible in his current condition. Euthanasia would serve
his right to avoid indignity.

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Doran: Yes, and given the sort of family he has, Tim Regan’s euthanasia does not violate
anyone else’s rights or very important interests.
Patrick: Well, it seems in this modified case that NAE would be justified for Tim Re-
gan, assuming he is suffering pointlessly. Though I am not sure it is fundamentally a
matter of respecting rights, as Warren suggests. I believe a virtuous person would be
moved by considerations of mercy and charity to do what Tim Regan is unable to do
for himself—put an end to his pointless suffering and allow a more dignified death.
Warren: Before we move on, though, the critic might attack the second premise of
Doran’s argument, specifically the part that asserts the moral claim that NAE can
be consistent with everyone’s rights. For NAE involves killing patients without
their consent, and surely that would violate their right to life.
Doran: In response to that objection, I would deny the claim that killing violates the
patient’s rights in justifiable cases of NAE. We must remember that rights exist
to protect one’s important interests, and these include autonomy interests as well
as interests in not being harmed. But in cases of the incompetent, autonomy in-
terests do not apply since incompetent individuals lack the capacity for autonomy.
And while they certainly have an interest in not being harmed, this is, in fact,
respected by NAE. This may be borne out by a straightforward analogy with the
vaccination of a young child. We do not (and should not) say it violates her rights
because she never consented, and we do say that it is in her interest in not being
harmed since the painful poke protects her from contracting a much more seri-
ous setback to her well-being. Similarly, we should not say that NAE violates the
rights of the incompetent patient since the patient never consented. Instead, we
should say that NAE is justifiable if it is in the best interest of the patient, done
for the sake of that patient, and neither violates anyone’s rights nor sets back any-
one’s very important interests.
Patrick: So you agree, Doran, that incompetent individuals have a basic right to life. But
you deny that the right is violated in cases where death is in the patient’s best interest?
Doran: That is a fair way to put my point. The right to life protects individuals who have
an interest in living. But in justifiable cases of NAE, the patients—tragically—do
not have an interest in living.
Patrick: I agree with you that NAE is sometimes permissible, though my argument
might look a little different from yours. As I suggested above, I believe it is primar-
ily virtues such as compassion, charity, and so on that justify NAE in certain situa-
tions. There are, however, other virtue ethicists who would disagree with me—and
with your argument. Philippa Foot is one.
Doran: Yes, let’s consider Foot’s view. Opponents to my argument must either reject my
claim that NAE does not violate anyone’s rights, or reject my claim that NAE is
sometimes in the patient’s best interest. Why don’t we begin with an examination of
Foot’s objection? She claims that NAE violates the patient’s right to life.

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Philippa Foot’s Objection to Non-Voluntary Active Euthanasia

Warren: Okay. Philippa Foot, a prominent virtue theorist, argues that NAE is un-
just since it violates the right to life of the incompetent individual who is eu-
thanized. Her argument is that we should assume that an act that infringes a
right violates that right unless that right is positively waived, or unless we can
assume that it would be waived. In the case of NAE, the patient has not waived
her right to life (obviously). So the question is whether or not we can assume
that the right would be waived. She says we can make this assumption when
it comes to NPE (non-voluntary passive euthanasia) but not when it comes to
NAE: this is because there is a widespread feeling in society that one would not
want to be kept alive indefinitely when there is no hope for recovery, but there
is no widespread consensus that people would want to be killed if they were in
a hopeless condition. Thus, in the end, she supports the permissibility of NPE
but opposes NAE, on the grounds that the latter (but not the former) violates
the individual’s right to life.9
Patrick: I think Foot is mistaken. We must show compassion and sympathy for the suf-
fering of incompetent individuals. When it is clear that continued life is of no value,
the compassionate thing to do is to end the suffering by ending the life. Moreover,
as I suggested earlier, it may well be unjust, or unfair, not to perform NAE in certain
cases. Both competent and incompetent individuals have an interest in avoiding
pointless suffering and dying with dignity. Given this, it seems rather unfair to
grant active euthanasia to the former but not the latter.
Doran: I believe Foot is mistaken, too. In general, I think it is a mistake to decide what is
right (or wrong) by appealing to prevailing consensus. It is odd to think that whether
NAE is justified or not depends on prevailing social mores. Why should it be wrong
in Canada, but right in Holland, for instance? Such relativism seems problematic.
Moreover, I think we can understand, as I tried to explain above, why a right to
life is not relevant when speaking of non-voluntary euthanasia. Here, the function
of rights is to protect the person’s interests in general, to protect autonomy, and to
ensure that a person has the ability to make his own decisions in matters that in-
timately concern his life. But in cases
of euthanasia, it is not in the interest UP FOR DISCUSSION
of the person to continue to exist, and Do you think that NAE violates the in-
when considering those who are not dividual’s right to life? Why or why not?
competent there is no autonomy to Discuss the case of Hare’s lorry driver
protect and no decision-making capa- when the driver is too overwhelmed by
bility to honour. Instead, what needs pain to competently request euthanasia
to be done is to do what is most mer- but a bystander is moved by compas-
ciful for the person whose life is in a sion to kill the driver.
hopeless condition.

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 Chapter 5  Euthanasia  157

Warren: I also reject Foot’s view. In the original position, we would not want to be at
the mercy of the majority in the real world. At the same time, we would recognize
that if we were permanently disabled to the point of being unable to make a deci-
sion, we would want others to make decisions for us in our best interest. These
interests should be judged, with notable and rare exceptions, from the viewpoint of
the patient.
Doran: I am glad to hear, Warren, that your argument from the original position also
supports the moral permissibility of some NAE. Likewise, I am pleased that Pat-
rick’s appeal to considerations of virtue also supports NAE. This is a very difficult
issue, so it is good to know that there is more than one support for my conclusion.

The Never-Best-Interest Objection to Non-Voluntary Active Euthanasia

Patrick: Even if the critic accepts your first premise, Doran, there’s room to argue that
your second premise is false, by insisting that killing a person can never be in the
best interest of that person. The underlying idea is that NAE is never in a person’s
best interest, because death removes all possibility of future benefit for the patient.
In a sense, this is a concern for any kind of euthanasia, but it is a particular concern
for non-voluntary cases. For, in such cases, the sole justification is an appeal to the
best interest of the patient.
Warren: Right. When discussing this in class, students often bring up cases of so-called
miraculous recoveries, where seemingly hopeless people turn out to have good lives.
Doran: Yes, but this line of objection is unsound. We certainly think that actively kill-
ing a dying pet can sometimes be in the pet’s best interest. Further, it is reasonable
to say, “It was for the best,” when a loved one dies after enduring the end stages of
terrible diseases like throat cancer. And finally, virtually everyone thinks it is some-
times in the best interest of a person to be allowed to die (VPE or NPE). So, it is
difficult to see how one could plausibly deny that it could be in one’s best interest to
have that death brought about by active, quicker, less painful means.
Patrick: It would also be rather cruel to expect people to hold out for a miraculous
recovery when they are suffering horribly and the likelihood of such a recovery is
virtually nil.
Warren: I agree. To demonstrate that NAE could be in the best interest of the person, we
could adapt Hare’s example of the truck driver in the burning cab. Suppose the driver
hit his head in the accident and is no longer competent to request death but is still
conscious and dying in unbearable agony. It seems clear that it would be in his best
interest to receive euthanasia in this case, and cruel to allow him to burn to death in-
stead. It would also seem strange to suppose that VAE would be right in the original
case and that NAE would be wrong in this case just because the driver cannot ask for
death. While it is somewhat less obvious, I think the same sorts of things can be said
about Tim Regan concerning the modified case where he is incompetent.

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Patrick: I agree. The modified example

UP FOR DISCUSSION
of Hare’s lorry driver pretty clearly
shows, I believe, that it would be Opponents of NAE often argue that it is
both cruel and unfair not to kill the wrong because it discriminates against
driver simply because he cannot ex- incompetent humans. However, Patrick
press a desire to be killed, when it argues that not supporting NAE actually
is quite clear that that is what he’d discriminates against those who are not
want. The examples considered de- competent. What do you think?
feat the objection that NAE can
never really be in the best interest of the patient, and support the view that NAE
is at least sometimes permissible.
Doran: Nevertheless, there remain serious objections to implementing active euthana-
sia, both voluntary and non-voluntary. At present, active euthanasia is criminal
in Canada when the patient is not competent (NAE). Even if a patient has left
a clear advance directive when competent (a form of VAE by our definitions)
the law forbids euthanasia. Perhaps there are good reasons for this? If that is the
case, then even if we are right that some instances of VAE and NAE are morally
permissible, it could still be the case that it ought to be legally impermissible to
perform active euthanasia.
Patrick: Right. It does not follow from the fact that VAE and NAE are morally permis-
sible that they should also be legally permissible. But the question of whether active
euthanasia should be legalized is exceedingly complicated, so perhaps we ought to
leave that debate for another time.
Doran: Agreed.
Warren: Well, this is a good beginning to a debate about the moral permissibility of
various kinds of euthanasia that could go on a long way yet.
Doran: No doubt there is much more that can be said both for and against VAE and
NAE, and the other kinds of euthanasia we didn’t address in this chapter.
Patrick: Right. But let’s call it a day.

SUMMARY

Here is a summary of the main questions, concepts, and arguments covered in this chapter:

• The main questions explored in this chapter are: When, if ever, is voluntary
active euthanasia (VAE) morally permissible? And when, if ever, is non-
voluntary active euthanasia (NAE) morally permissible? These questions are
partly motivated by the VAE case of Tim Regan.

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 Chapter 5  Euthanasia  159

• Euthanasia is defined as an intentional act, or omission, that brings about the

death of another individual for that individual’s own health-related good.
• Active euthanasia is distinguished from passive euthanasia.
• Voluntary, non-voluntary, and involuntary euthanasia are distinguished.
• Doran, Patrick, and Warren agree that both VAE and NAE are morally permis-
sible in some circumstances. They also agree that Dr. Buchman acted permissibly
when he performed voluntary active euthanasia on Tim Regan.
• Doran initially presents the Autonomy and Best Interest argument for VAE,
but Warren and Patrick show this argument to be unsound. In its place, Doran
defends the Revised Autonomy and Best Interest argument.
• Various versions of the Sanctity of Life and God’s Ownership arguments
against VAE are considered and rejected.
• The Best Interest argument for NAE is presented and defended against
objections.

REVIEW QUESTIONS

1. Why is the definition of euthanasia as “a good death” rejected? How, instead, do Doran,
Patrick, and Warren finally define the term?
2. What are the six types of euthanasia? Give an example of each.
3. Explain the distinction between active and passive euthanasia.
4. Why is the initial statement of the Autonomy and Best Interest argument for VAE unsound?
5. Explain the Revised Autonomy and Best Interest argument.
6. Explain the Sanctity of Life objection and explain why this objection is rejected. What
example does Warren give to show that it is sometimes morally permissible, and perhaps
morally required, to kill an innocent human being intentionally?
7. Develop the argument that goes from the moral permissibility of some suicides to the
moral permissibility of some cases of active euthanasia.
8. R. M. Hare’s case of the petrol lorry driver is a counterexample to what principles?
9. Why do the normal explanations of the wrongness of killing fail to show that VAE is wrong?
10. What is the Best Interest argument for NAE?
11. Why does Philippa Foot think that NAE violates the right to life of the individual who is to
be euthanized?
12. What responses do Doran, Warren, and Patrick each give to Foot’s argument against NAE?
13. Why might a chooser of rules in the original position want to include some access to ac-
tive euthanasia in the social contract?

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NOTES

1. For a summary of Canadian law regarding euthanasia and assisted suicide, see the Government
of Canada’s publication, “Medical Assistance in Dying,” at [Link]
canada/services/[Link].
2. See the Government of Canada’s “Interim Update on Medical Assistance in Dying in Canada, June
17 to December 31, 2016,” at [Link]
health-system-services/[Link].
3. Dr. Brian Goldman, “Going Out with My Boots On: Tim Regan Used His Last Days to Lobby for a
Clearer Path to Assisted Death,” White Coat, Black Art, CBC Radio 1, January 18, 2018.
4. Doran’s argumentative strategy for VAE is modelled on a similar set of arguments offered by
James Rachels, “Euthanasia,” in Matters of Life and Death: New Introductory Essays in Moral
Philosophy, 3rd ed., ed. Tom Regan (New York: McGraw Hill, 1993).
5. Jeff McMahan, “From Suicide to Euthanasia,” in The Ethics of Killing: Problems at the Margins of
Life (New York: Oxford University Press, 2002).
6. R. M. Hare, Essays on Religion and Education (Oxford: Oxford University Press, 1998).
7. Patrick Nowell-Smith, “The Right to Die,” in Contemporary Moral Issues, 3rd ed., ed. Wesley Cragg
(Toronto: McGraw-Hill Ryerson, 1992), 8.
8. On this point, see Peter Singer, “Taking Life: Humans,” in Practical Ethics, 2nd ed. (Cambridge:
Cambridge University Press, 1993), 175–217. Also available online: [Link]
singer/by/[Link].
9. Philippa Foot, “Euthanasia,” in Virtues and Vices (Oxford: Oxford University Press, 2002).

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 6 ABORTION

INTRODUCTION

The legal and moral status of abortion in Canada has been hotly debated for over a cen-
tury, and abortion continues to be an emotional and divisive issue in Canadian society.
In 1892, Canada’s Parliament passed its first Criminal Code, which prohibited abortion
(as well as the sale of contraceptives). This prohibition was relaxed in the late 1960s,
when Pierre Trudeau’s Liberal government permitted abortion in cases where pregnancy
threatened the mother’s life or health. In 1988, the Supreme Court of Canada struck
down legal restrictions on abortion as unconstitutional. Chief Justice Brian Dickson
stated: “Forcing a woman, by threat of criminal sanction to carry a fetus to term unless
she meets certain criteria unrelated to her own priorities and aspirations, is a profound
interference with a woman’s body and thus a violation of her security of the person.”1
Although there is at present no law in Canada restricting abortion, many Canadians feel
that some legal restrictions are called for, because they believe that abortion is a serious
moral wrong, at least in certain circumstances.
In this chapter, we cast a critical eye on arguments both for and against the moral
permissibility of abortion. Our drama presents the case of Marissa and Don, a couple
who run a successful business they have started on their own. It takes much effort to
keep going, but they have a good income from the business. Marissa is 38 and Don is
37, and they’re expecting their first child. A series of routine blood and ultrasound tests
determines that Marissa is at high risk to have a fetus with Down’s syndrome. As our
drama begins, Don and Marissa have just received confirmation from amniocentesis
that the fetus Marissa is bearing does indeed have Down’s. Don is initially in favour of
having the child, while Marissa is very strongly in favour of aborting the fetus in order
to protect their marriage and the business they have worked hard to build. In the end,
Don concedes and accepts Marissa’s choice for an abortion.
Our debate focuses on the question of whether abortion is morally permissible in
this case. Marissa’s life is not endangered by the pregnancy, but she sees abortion as nec-
essary in order to protect important relationships and projects. We agree that Marissa’s
abortion is morally permissible, although it turns out that we have very different reasons

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DEFINITION
“Down syndrome (or Down’s syndrome) describes a set of cognitive and physical symp-
toms that result from an extra copy or part of a copy of chromosome 21.… The extra chro-
mosome disrupts the normal course of development and results in the physical features
and intellectual and developmental disabilities associated with the syndrome.
“The degree of intellectual disability in people with Down syndrome varies but is usu-
ally mild to moderate. Generally, children with Down syndrome reach key developmental
milestones later than other children. People with the syndrome also are more likely to
be born with heart abnormalities, and they are at increased risk for developing hearing
and vision problems, Alzheimer disease, and other conditions. However, with appropri-
ate support and treatment, many people with Down syndrome lead happy, productive
lives. In recent decades, life expectancy for people with Down syndrome has increased
dramatically, from 25 years in 1983 to 60 years today.”

Source: “Down Syndrome: Condition Information,” National Institutes of Health, [Link]

[Link]/health/topics/down/conditioninfo.

Amniocentesis is a prenatal diagnostic procedure performed in order to detect fetal

abnormalities. A needle is used to remove a sample of the amniotic fluid surrounding
the fetus. The amniotic fluid contains skin cells from the fetus, which are analyzed to
determine potential problems with the fetus.

in support of our common conclusion. Before we each present our own arguments, we
examine several conservative arguments against abortion that imply that it would be
morally wrong to have an abortion in Marissa and Don’s situation. We explain why we
think these arguments are unsound. Patrick then argues that the moral status of abor-
tion cannot be settled just by considering the issue of whose rights trump whose; in-
stead, we must reflect on whether having an abortion is consistent with acting virtuously,
where this includes more than respecting rights. Importantly, Patrick argues that even
if the fetus has a right to life, it would still be morally permissible to abort it in certain
situations, including Marissa and Don’s. A virtuous person, Patrick goes on to argue,
would view abortion as a morally difficult matter, an act that requires good reasons in
order to be justified, reasons that are present in Marissa and Don’s case. Doran argues
that a 16-week-old fetus lacks the right to life, and so Marissa has the right to control
her body. Unlike Patrick, Doran thinks that early abortions (in normal circumstances)
are morally permissible regardless of the pregnant woman’s reasons. Warren reaches the
conclusion that Marissa’s abortion is permissible by applying his social contract theory.
He thinks that a woman’s right to autonomy renders abortions at early stages (in normal
circumstances) morally permissible in most cases.

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LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Explain and evaluate some important conservative arguments against

abortion
• Understand Patrick’s reasons for thinking that abortion is morally permis-
sible in this case
• Describe the reasons why Warren and Doran disagree with Patrick’s
argument
• Explain Doran’s argument for the moral permissibility of Marissa’s
abortion
• Discuss Patrick and Warren’s reasons for rejecting Doran’s argument
• Defend your own view on the morality of abortion, in general, and the
morality of abortion in Marissa and Don’s situation, in particular

DRAMA
Please note: This case is based on various true stories, although names, places, and some
uncontroversial elements of the case have been changed to preserve anonymity and con-
fidentiality. Discussions of this and similar cases with health care professionals have also
informed this fictional case. The drama merely raises issues. The philosophical argu-
ments are to be found in the debate following the drama.

CHARACTERS

Don: 37 years old, a businessman, Marissa: 38 years old, a business-

married to Marissa woman, married to Don

Don: I can’t believe it. I hoped right up to the last moment it would be okay.
Marissa: Honey, we’ll try again. Everything will work out next time. At least we know
about this early.
Don: It doesn’t feel that way to me, Marissa. For 16 weeks this child has been growing
inside you. I feel like I need to protect her.
Marissa: It must be so hard for you, Don. You see yourself as the protector. This deci-
sion is awful. But Don, that’s why we had the tests, so we wouldn’t have a child
with … problems. It’s too hard to do. Look at Lawrence and Anne. They tried to
tough it out and now I hear they’re splitting up. It’s too much. Everything changes.
If we had a child like that, you couldn’t work like you do now. We couldn’t keep the

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house. Everything would be so different, but it doesn’t have to be that way. We can
try again. We can have a normal child. Don, Don—look at me. We can. That’s why
we had the tests, isn’t it? Isn’t it, Don?
Don: I guess. Still, it’s different when it’s real like this. When we were told to get the
tests it was just something like a worry in the back of my mind. It wasn’t going to
happen to us. I don’t know. Maybe I’m not as tough as I thought I was. Maybe I
never really thought it through. It just isn’t that easy. I care about her now, Marissa.
She wasn’t real to me then.
Marissa: Love, I know you’re a strong and caring man. That’s part of what I love about
you. But you’ve got drive too. You’re happy when you’re creating our future in our
company. You love our house and the kind of life we have now. We don’t have to
throw that all away. We don’t have to. We have options. We can have it all, but not
if we continue this pregnancy. Look, I talked to Lawrence yesterday, and he was
really bitter. Anne is exhausted. It takes so much work to raise a child with Down’s,
and the work is never-ending. The government help they thought they could get
never seems to materialize. They’ve already burned through all their savings. I think
of Lawrence and Anne, and it gets me.
Don: But maybe it won’t be that bad. Lawrence and Anne’s son is particularly low func-
tioning. The doctor says there’s a huge variation in Down’s. Maybe she’ll be really
high functioning.
Marissa: Sweetheart, I can see how you’re torn by this. But think about what you’re say-
ing. High functioning! Is that what we want to hear about our kid? I can’t bear the
thought of it. We want a daughter who will go to university some day, who will be
independent and able to lead a normal life.
Don: But there are families with kids like this who are so loved and it isn’t all bad, hon-
ey. We don’t know what it might be like. She doesn’t have any really severe physical
things showing up on ultrasound. Maybe she won’t be so badly off mentally, either.
We don’t know what we can do until we try.
Marissa: Love is what moves you now, but I don’t want a life of sacrifice just because of the
feelings that move you for a while. You’re the one who is always so bugged by uncertain-
ty. You’ve stopped us from taking risks time and time again because things were too un-
predictable. What’s different now? Only that we are betting our whole way of life, and
the odds are terrible. Don’t do this to yourself. Don’t do this to us, honey. Please don’t.
Don: Take it slow. We don’t have to decide this minute.
Marissa: You’re right. We have to be careful and deliberate about this. Still, I want to
talk about something else. Nobody would be patting us on the back saying how
heroic we are for doing this. Look at Anne and Lawrence. They come in for some
really tough criticism behind their backs. People say they got themselves into this.
It’s like they’re letting the side down. They didn’t have to have a child that would be
a drain on them and everyone. You know we both felt they shouldn’t have done it.
Don: I feel guilty for that now. There are lots of ways kids give back to their parents,
and they aren’t all money or appreciation or gaining fame as a feminist. I’ve read

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that people with Down’s syndrome can be poets and painters, they are mostly happy
people, and so emotionally intelligent. We are all differently abled. Give her a chance.
Marissa: Oh honey, don’t feel guilty. You were right when you said Anne shouldn’t have
gone through with it. It’s not fair to the kid or anyone to have a kid like that when
you can avoid it. That’s why society supports the whole medical thing with tests and
ways of dealing with it when things go wrong.
Don: Just call it what it is—abortion. We want to kill someone here.
Marissa: Okay, it’s abortion we’re talking about, and that’s not a bad thing. There’s a
fetus that could become someone, but it’s not someone yet. Abortion gives us much
better options than we would have otherwise. I just don’t want you to blame your-
self. Someday we’re going to be celebrating our child graduating, not celebrating her
learning to feed herself when she should be graduating. We’ve planned our lives.
We’ve had a real curve thrown at us, but we’re not out yet. There’s nothing wrong
with abortion to do something good for ourselves and everybody. There’s nothing
wrong at all. We have a choice, and that’s a good thing.
Don: I’m not saying abortion has to be wrong, but it isn’t wrong to have the child either.
It may be a very good thing to do. Maybe it’s a good thing just because she would be
helpless and we are strong and can take care of her. Maybe that’s not such a bad life.
Marissa: It is for me. I look at Anne and Lawrence, and I say, “Not me.” Maybe it’s my
weakness, but it’s tough enough being a parent without that extra challenge. I want
a strong, independent daughter. I can’t do this. Maybe it seems right for you now,
but please, please think about what you would have to give up.
Don: What are you saying, Marissa? Your body, your choice? Or is it just that you want
this child but you are afraid of the challenge? I swear I would take on the child care
while you ran the business.
Marissa: Don, I don’t want to do this. I really don’t. And you know you’re essential to
our work. I don’t think deliberately having a wounded child is right either, not just
wrong for us but plain wrong. Do you remember that deaf couple that deliberately
had a deaf child? We were sure they shouldn’t do that, weren’t we? I’m still sure.
Don: Everyone should have a chance, including those who are disabled, but I can’t make you
keep her, Marissa. We can’t keep her. Even if you tried, you’d be resentful. You wouldn’t
be in it. It would be hopeless. I can’t fight you on this, Marissa. All I can do is cry.

DEBATE

Clarifying the Case and Identifying Relevant Facts

Doran: Okay, so Don and Marissa are trying to decide whether or not to abort given
that their fetus has Down’s. Marissa is unwilling to take on the rigours of parent-
ing a child with Down’s. She considered another family’s difficulties with raising a
disabled child and is unwilling to live like that.

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Warren: Marissa is also very concerned that their lifestyle would be drastically altered
if they had a disabled child. Don is willing to raise a child with Down’s, but real-
izes that it will probably break up the marriage. In the end, he gives in, accepting
abortion reluctantly.
Patrick: It is not just the marriage and their lifestyle—they have built a business, and it
requires their constant concern, but Don is uncertain, as he has bonded emotionally
with the fetus.
Warren: Yes.
Patrick: Do we know how long Don and Marissa have been together, and how solid
their relationship is?
Warren: They have been together two years.
Patrick: And we can assume that their relationship is strong?
Warren: They have bought a house and built a business together. They are pretty solid,
but cracks are showing over the abortion decision.
Doran: I think we can assume their relationship is solid, but Marissa is clearly telling
Don that it would destroy the relationship if they chose to have the disabled child.
For her, that was understood from the start. Marissa says that this is why they did
genetic testing in the first place.
Patrick: If they have the baby, is that the end of their business? They can’t have both?
Warren: Yes, it takes two people to manage the business. Marissa could not do it if Don
was dealing with a child full-time indefinitely.
Patrick: Could she not get someone else in to help run the business? Or is Don him-
self needed?
Warren: Like most family businesses, it requires more work than a business partner would
normally commit to. Marissa can’t see how to keep the business without Don.
Patrick: How far along in the pregnancy was Marissa when the abortion was performed?
Warren: At the end of the case it has not yet been performed. It is just after the amnio-
centesis at 16 weeks.
Patrick: What is the level of fetal development at 16 weeks?
Warren: At 12 to 16 weeks from the last menstrual period, quickening occurs. The
mother feels the fetus moving within
her. At 26 weeks the length is about DEFINITION
18 centimetres. A zygote is a single diploid cell that re-
Doran: The fetus’s development is in that sults from the merging of a sperm and
middling range—it is not a zygote or ovum through a process of fertilization.
an embryo, it has a brain and func- The developing organism, from the mo-
tioning nervous system, but it is not ment of conception until about the end
yet conscious. It is also incapable of of the eighth week, is called an embryo.
surviving on its own, since vital or- From that point until birth it is called a
gans, like lungs, are not yet formed. fetus.

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Patrick: So I take it the fetus is unable to feel pain at 16 weeks.

Warren: It is very unlikely that the fetus is able to feel pain at that stage. Studies
show that the fetus may respond to painful stimuli by around 16 weeks, but doc-
tors generally believe that this is simply an unconscious response to the stimuli.
Conscious awareness of pain requires neural connections that do not form until
the third trimester.
Patrick: Interesting. So the fetus may be able to respond to painful stimuli at 16 weeks,
even though it does not feel pain.
Warren: Yes, that’s right. The fetus’s with- UP FOR DISCUSSION
drawal response is controlled by lower On what basis can one determine
brain structures that have formed by 16 whether another individual is con-
to 20 weeks. But the neural pathways scious? Using those criteria, how confi-
required for the perception of pain are dent can we be that a 16-week-old fetus
not developed until 23 to 30 weeks.2 is or is not conscious?
Patrick: Okay. If Marissa does not abort,
do we know, or have any reasonable
idea of, how serious their child’s mental disability will be?
Warren: One cannot tell in advance. The Down’s syndrome is evident, but it can be very
severe or produce a high-functioning Down’s child or anything in between.
Patrick: So there’s a range of possible disabilities. If their child was born with severe
disabilities, couldn’t they put the child up for adoption?
Warren: Don would not do this. As for Marissa, she may also have been concerned that
her child would not be adopted, given that she believes it can be difficult to find
homes for children with Down’s and other disabilities.
Patrick: Okay, I see. So, formally, it may be an option, but it’s unrealistic to think Don
could do that, and Marissa would not risk trying it.
Warren: Yes.
Patrick: This case, like the others, raises a number of difficult moral questions. Why
don’t we now decide which of these we want to debate?

MORAL ISSUES RAISED BY THE CASE

Warren: The central question is whether it is morally permissible for Marissa and Don
to obtain an abortion. And more generally, when, if ever, abortion is morally wrong.
Doran: It’s odd to speak of Marissa and Don obtaining an abortion. We have to recog-
nize that it’s her body. She is the one who would have the abortion. So it seems to
me the central question is whether it is morally permissible for Marissa to obtain
an abortion.
Patrick: That seems right, Doran. But the decision to abort is one they are making to-
gether. Don is on the hook here, too!

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Warren: Agreed. My point was to recognize shared responsibility. Don shares some
responsibility. At the same time, your point has merit, Doran.
Patrick: Let’s just follow Doran’s usage throughout, but announce that we think Don
shares responsibility for the pregnancy, and therefore for the abortion.
Warren: Good. So, what do you guys think? Is it morally permissible for Marissa to
obtain an abortion in this situation?

Stating Our Positions

Doran: I believe it is morally permissible for Marissa to obtain an abortion. I believe

this because I believe that the fetus, at this stage of development, does not have a
moral right to life. The woman’s right to control what happens in and to her body
should prevail.
Warren: I agree that it is morally permissible to have an abortion in this case. My rea-
son is that this is in accord with rules we would choose if we were in the original
position. In the original position we
would have a difficult choice. On the UP FOR DISCUSSION
one hand, we would not want to be Opponents of abortion think that social
forced to use our bodies or other re- contract theory stacks the deck against
sources to bear, have, and raise a child their view because people in the original
who might present us with great dif- position know they are rational beings.
ficulties and require heavy sacrifices. They cannot be fetuses. They cannot
On the other hand, sympathy, among be the victims of abortion in the real
other considerations, would inhibit us world. Is this a reasonable objection to
from making rules that treat the fe- social contract theory? Can you think of
tus as having no value. I come down, a reply?
ultimately, on the side of the right of
the woman to choose.
Patrick: This is a very difficult case, but I agree with you two that it would be permis-
sible to abort, though I agree for different reasons. From my virtue ethics perspec-
tive, I don’t think the moral status of having an abortion can be settled just by
looking at the rights possessed by the fetus and the mother (and father). For even if
Marissa has a right to control her body, abortion may still be wrong. And even if her
fetus has a right to life, this abortion may still be permissible. To determine whether
this abortion is wrong, we need to consider whether Don and Marissa’s reasons for
aborting manifest vices. We need to consider, for instance, whether having an abor-
tion would exhibit cruelty, selfishness, injustice, and so on. All things considered,
I conclude—though somewhat tentatively—that having an abortion in this case
would not be vicious, and hence, not wrong.
Warren: Your approach sounds interesting, Patrick. Why don’t we proceed as follows?
Let’s first consider some important arguments against the morality of abortion.

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 Chapter 6  Abortion  169

Since none of us accepts these arguments, we should first raise them and explain
why we think they fail. We can then turn to Patrick’s virtue-based argument and
see whether we accept his argument
as sound. If disagreement persists be- UP FOR DISCUSSION
tween us, perhaps we can also look What do you think? Is it morally permis-
at Doran’s pro-choice argument on sible for Marissa to have an abortion?
abortion and see if it is any more Why or why not?
conclusive.
Patrick: Sure.
Doran: That sounds like a good plan.

LEADING ARGUMENTS AGAINST THE MORALITY OF ABORTION

Doran: Many conservatives—those who generally oppose abortion—claim that abor-

tion is wrong in all, or virtually all, cases. This is because they believe that it involves
the unjust or wrongful killing of the fetus.
Patrick: Right. But conservatives have different, sometimes quite different, reasons for
thinking this.
Warren: Let’s consider some of their reasons.

Noonan’s Argument

Doran: We cannot consider all of their arguments, but let’s look at some of the most
influential. For instance, John T. Noonan, in his widely read paper on abortion,
argues as follows:3

(1) Any being with human genetic code is a human.

(2) Fetuses receive human genetic code at conception.
(3) Therefore, fetuses are human at conception.
(4) Being human (i.e., having the right genetic code) is sufficient for having
moral rights, including a right to life.
(5) So, fetuses have moral rights from conception.
(6) It is, presumptively, seriously immoral to kill a being that has moral rights.
(7) Therefore, abortion is, presumptively, seriously immoral from conception.

Warren: Yes, that seems to be his argument, although your description of the argu-
ment contains premises that he does not explicitly state. For instance, he never
explicitly states premise (4), that being genetically human is sufficient for having
moral rights; however, it is quite clear that premise (4) is implicit in his argu-
ment. Noonan focuses much of his energy on supporting premise (1). Specifically,

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he gives a couple of reasons why he

TECHNIQUE
thinks that having a human genetic
code is sufficient for something to be Students of logic will see that this is an
a human being. First, by maintain- argument in the broad sense, some-
ing that all who have human genetic times referred to as a derivation. An
code are human, he thinks we will argument in the narrower sense has
guard against the tendency to dis- only one conclusion. Here a series of
criminate against some on the basis arguments is used to derive a final con-
of their abilities, or lack of abilities. clusion using earlier conclusions in the
Secondly, he thinks that genetic hu- derivation as premises.
manity—what we might now call
human DNA—is morally significant since it is the material that is the “biological
carrier of human wisdom.”
Patrick: And I take it he maintains that it is only presumptively seriously immoral to
kill a human being because he wants to allow for the possibility that killing in self-
defence, or perhaps applying the death penalty, may be morally permissible.
Doran: Yes, that’s right. He maintains that intentionally killing an innocent human be-
ing can very rarely be justified. When
it comes to abortion, he appears will- UP FOR DISCUSSION
ing to recognize its permissibility Suppose a woman discovers that the
only when necessary to save the preg- child she is carrying has a serious dis-
nant woman’s life.4 ease such that the child’s life is likely to
Warren: So he would certainly contend contain much more pain than pleasure.
that it is wrong for Marissa and Don Noonan’s view seems to imply that hav-
to procure an abortion. ing an abortion in this situation would be
Patrick: Right. This is an interesting ar- wrong. Do you agree? Why or why not?
gument, but I believe it fails.

Evaluating Premise (1) of Noonan’s Argument

Patrick: Premise (1), which states that any being with human genetic code is a human,
looks especially suspicious. Non-humans can have human genetic code.
Doran: I agree. Cattle are sometimes injected with human genetic code to make their milk
more digestible, but the mere fact that they have this genetic code does not make them
human. Likewise, pigs are sometimes injected with human DNA so they can grow
tissue that can be transplanted to humans, yet we would not call these pigs human.
Warren: These counterexamples might not be persuasive. For Noonan might say that
individuals that have only human DNA are human. The cattle and pigs you men-
tioned do not have all and only the human genetic code, so they need not be viewed
as human in this interpretation of his premise.

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 Chapter 6  Abortion  171

Patrick: Yes, I suppose that is the chari-

TECHNIQUE
table way to interpret Noonan.
Doran: But I don’t think this interpre- Warren is employing a methodological
tation of his premise will help his principle called the principle of char-
argument very much, for it, too, is ity. This principle instructs us to inter-
vulnerable to clear counterexamples. pret an author’s claims and arguments
Warren: That’s true: some human cells in the best possible light. The general
have all, and only, human DNA, but aim is to arrive at a fair and sympathetic
we do not consider human cells to be understanding of the author’s position
human beings. in order to critically evaluate it. In this
Doran: I agree that it is implausible to case, Noonan appears to be relying
think that the mere possession of all on a premise that is clearly false. The
and only human DNA is sufficient for principle of charity requires that we try
being human. To see this, consider to find a more plausible understand-
some analogies: Think of an acorn. It ing of his premise. Employing the prin-
has the DNA of an oak tree, yet no ciple here will help Warren, Doran, and
one would consider an acorn to be Patrick avoid making weak criticisms
an oak tree, merely in virtue of the that Noonan could easily escape by a
fact that they share the same DNA. more careful statement of the premise
Likewise, imagine you come over for in question.
breakfast and I serve you an omelet.
You say that the eggs are delicious. I, however, correct you. I point out that the eggs
you’re eating were fertilized. Thus, what you are eating are (three) chickens! Surely
this would strike you as absurd. Similarly, it seems absurd to suggest that a one-
celled organism could be a human being, merely because it happened to contain all
and only human DNA. At best, such an organism has the potential to become a
human being, but it is not one yet!
Patrick: Right, and further, possessing all and only human DNA is not even necessary
for being a human being. To see this, consider xenotransplantation—the trans-
plantation of non-human organs into humans. If I received, say, a heart valve from
a pig, then I would not have all and
only human DNA. So the modi- UP FOR DISCUSSION
fied premise would then imply that I Do you see a way of defending Noonan’s
ceased to be human! claim that a being with human DNA is
Warren: It appears, then, that premise (1) a human being? Can you think of other
in Noonan’s argument, whichever way objections to this premise?
it is interpreted, is quite clearly false.

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BACKGROUND
Mary Anne Warren famously distinguishes genetic humanity from moral humanity.
Genetic humanity, she argues, is based on one’s species classification, but moral hu-
manity is based on whether or not one is a rights holder. She then goes on to argue that
it is a mistake to equate moral humanity with genetic humanity. The former, she argues,
is neither necessary nor sufficient for the latter. In her view, a fertilized human ovum
may be genetically human, but it is not morally human.

Source: Mary Anne Warren, “On the Moral and Legal Status of Abortion,” The Monist 57, no. 1
(1973): 43–61.

Evaluating Premise (4) of Noonan’s Argument

Warren: Interestingly, even if we grant Noonan’s claim that one is in some sense human
in virtue of possessing human genetic code, I think Noonan’s argument is still in
trouble, since premise (4) looks dubious.
Doran: I agree. Premise (4) says that being human is sufficient for having rights. This is
dubious because if we really think that human DNA is sufficient to make one hu-
man as is claimed in premise (1), then we would also have to say that having human
DNA is sufficient for having rights.
But that seems much too strong. As UP FOR DISCUSSION
Warren noted previously, many hu-
Do you think that the possession of hu-
man cells have all and only human
man genetic code ought to give a being
DNA, but we do not grant individual
moral rights? Do you agree that those
human cells human rights. Similarly,
who think human genetic code is suf-
the process of IVF (in vitro fertiliza-
ficient for moral rights ought to oppose
tion) requires the creation and subse-
IVF, insofar as IVF results in the creation
quent loss of many human fertilized
and death of large numbers of fertilized
ova, but it seems to be mistaken to re-
human ova?
gard this process as one that involves
mass manslaughter.

BACKGROUND
A widely cited figure from 2012 puts the number of discarded “embryos” in the United
Kingdom at more than 1.7 million.

Source: Andrew Hough, “1.7 Million Human Embryos Created for IVF Thrown Away,”
The Telegraph (UK), December 31, 2012, [Link]
news/9772233/[Link].

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 Chapter 6  Abortion  173

Marquis’s Argument for the Wrongfulness of Abortion

Warren: Given the many problems with claiming that the possession of human DNA
is sufficient for being human, or being a rights holder, some conservatives on the
abortion issue give rather different reasons for their opposition to abortion. One of
the most interesting is an argument by Don Marquis:5

(1) It is, presumptively, seriously immoral to kill you and me because it de-
prives us of a future of value.
(2) In standard cases of abortion, abortion deprives the fetus of a future of
value—a future like ours.
(3) Therefore, standard cases of abortion are, presumptively, seriously
immoral.

The novelty of Marquis’s argument is that he is not claiming that fetuses are
human or that they have rights, and so forth; instead, he asks a different question.
Why is it wrong to kill you or me? After identifying a principal reason why it is
wrong to kill you or me, he then says that this reason also applies to the killing of
fetuses—so it is wrong too, and for the same reason.6
Patrick: So Marquis’s view is that the principal reason it is presumptively seriously
wrong to kill you or me is because it prevents you or me from having a future of
value. And that since fetuses (in standard cases) are individuals with a future like
ours (i.e., futures of value), he concludes it is also presumptively seriously wrong to
kill fetuses.
Doran: Yes, that’s the basic idea. Marquis thinks it is wrong to kill us because it robs us
of our valuable future. That is, it robs
us of experiences, activities, and so UP FOR DISCUSSION
on that we value now and would have Would an act utilitarian agree with
come to enjoy in the future. And so Marquis’s account of why aborting a
he would say that Marissa’s abortion fetus in a normal pregnancy is morally
is morally wrong for the same reason wrong? Why or why not?
that killing one of us is wrong—it
robs one of a valuable future.

Evaluating Premise (2) of Marquis’s Argument

Patrick: When discussing this argument in class, my students often target premise (2).
They reject the premise that, in standard cases of abortion, the fetus is deprived of a
future of value. They suggest that children that are unwanted are not likely to have
good futures. But this objection is rather weak.

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Doran: Yes, this objection seems wrong to

UP FOR DISCUSSION
me, or at least exaggerated. Often, in-
deed probably most of the time, even Do you agree that, in standard cases,
if a child is unwanted, it is doubtful abortion prevents the fetus from having
that her future would be so bad that it a future of value?
would be not worth living! As a case
in point, it is doubtful that if Marissa
were to continue with the pregnancy, their child’s life would be so bad as to be not
worth living. We would be unlikely to think, once the child was born, that it would
be a blessing for the child if she were to die prematurely.

Evaluating Premise (1) of Marquis’s Argument: The Contraception Objection

Warren: Okay, then, if one is to reject Marquis’s argument, it seems that one needs to
question his first premise. Has he identified a reason that is sufficient for making
killing someone immoral, namely, that it causes the individual the loss of a future
like ours?
Doran: There is reason to suspect not. First, if we accepted premise (1), it seems that it
would imply that contraception is immoral, since it seems that contraception also
prevents a future of value. Of course, contraception is not immoral, so premise (1)
must be rejected.7
Warren: Marquis, however, denies that his premise entails that contraception is seriously
immoral, for he claims that prior to implantation, there is not yet an individual that
exists who has a possible future of value. He never says it is wrong to prevent poten-
tial individuals from existing who will then have futures of value; rather, he says it is
wrong to prevent individuals who already exist from having futures of value.
Patrick: Well, to make this sort of reply, I think Marquis owes us an account of what
constitutes an individual in the relevant sense. Sperm and ova are not individuals, in
his view, but a zygote is? Why? This is not an easy question to answer.
Warren: The response might be that the zygote or embryo will develop into a human
being who could be a person unless it is prevented from doing so, while the sperm
or ovum, left alone, will not do so. That, however, is weak.
Patrick: Yes, it is weak. We use contraceptives to prevent sperm and ova from develop-
ing into human beings. And nobody would say, moreover, after reflecting on the
care needed for a successful pregnancy, that the fetus is simply left alone for a hu-
man being to emerge.
Warren: Yes, the enormous contribution
of the mother seems typically forgot- UP FOR DISCUSSION
ten in such arguments. 8
Do you think that the contraception ob-
Patrick: As you noted earlier, Warren, the jection succeeds?
novelty of Marquis’s argument is, in

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 Chapter 6  Abortion  175

part, that it does not rely on the premise that the fetus is a human, or a being with
rights. But his notion of an “individual” is equally problematic.

Challenging the Logical Validity of Marquis’s Argument: The Equivocation Objection

Doran: Well, I agree with your points, but I want to add the following even stronger
objection. As we have seen, Marquis argues:

(1) It is seriously immoral to cause the loss of a future of value.

(2) In standard cases, fetuses are caused the loss of a future of value when aborted.
(3) Therefore, in standard cases abortion is seriously immoral.

But one might object that this ar- DEFINITION

gument commits the fallacy of equi- To commit the fallacy of equivocation is
vocation.9 Specifically, the phrase to use a term in two different senses so
“cause the loss of ” is ambiguous—it as to make an argument that is not valid
has more than one meaning. appear valid.
To see this, consider some uses of
the phrase “cause the loss of ”:

Case 1. Patrick and I run a race. Patrick loses because I outrun him. I cause the loss
of something of value for Patrick, namely, his winning of the trophy.
Case 2. Patrick and I run a race. Patrick loses because I tied his shoelaces together
before the starting gun went off. I cause the loss of something of value for Patrick,
namely, his winning of the trophy.

Now, in the first and second cases, I caused the loss of something of value. But
only in the second case is the cause of the loss morally problematic. Let’s consider a
couple more examples:

Case 1. I am caused the loss of much happiness because Patrick gets a job that I dearly
wanted after we both applied for it.
Case 2. I am caused the loss of much happiness because Patrick gets a job that I dearly
wanted after we both applied for it, but he got it because he sabotaged my resumé.

Case 1. Your landlord does not renew your lease, causing you the loss of your beloved
apartment.
Case 2. Your landlord does not renew your lease, causing you the loss of your beloved
apartment, even though she had promised you that she would renew your lease.

In each of these cases, a loss of something of value is caused. But only in case 2
is the causing of the loss morally objectionable.

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Thus, we might distinguish neutral losses from moral losses. Both neutral losses
and moral losses involve causing the loss of something of value. They differ only in
that it is not wrong to cause neutral losses, while it is wrong to cause moral losses.
Warren: So, Doran, what, in your view, makes it wrong to cause a moral loss and not
wrong to cause a neutral loss?
Doran: It appears that the moral loss involves a violation of someone’s rights or involves
some unfairness, while the neutral loss cases do not involve violations of rights or
any unfairness. This is confirmed by each of the cases above. It is not morally objec-
tionable if I beat Patrick in a race, or
if he beats me in a competition for a UP FOR DISCUSSION
job, if we both fairly competed, but it Natural advantages might be unfair, too,
becomes morally objectionable when since it is a matter of luck whether one
one of us acts in ways that make the has good genes. For example, is it fair if
competition unfair. Similarly, the Doran beats Patrick in a race because
landlord’s decision not to renew your he has superior natural athletic ability?
lease seems only to be wrong in the
second case, where she violates her
duty to you to keep her promise to renew the lease.
Warren: Okay, with this distinction between neutral losses and moral losses in mind,
I’m sure you can generate problems for Marquis’s argument.
Doran: That’s right. Premise (1), which states that it’s wrong to cause the loss of a valu-
able future, is true only if a moral loss is intended. But then for the argument to be
valid, premise (2), which states that abortion causes the fetus the loss of a valuable
future, would also have to be read as a moral loss. However, Marquis begs the
question if he merely assumes that abortion causes a moral loss. He could only do
that if he assumes that fetuses have a right to their futures, or that it was some-
how unfair to the fetus to abort it, but
Marquis never proves that such rights DEFINITION
are violated or that it is somehow un- To beg the question is to presuppose
fair. Indeed, it is precisely the issue of what you want to prove. See circularity
whether fetuses have rights that he in chapter 1.
hopes to avoid by giving his future-
like-ours argument.
Patrick: Of course, Marquis could instead argue that abortion causes a neutral loss. This
would be true, in standard cases, but this, of course, wouldn’t help his argument much.
Doran: That’s right, because if he used neutral loss in premise (2), he’d then have to use
neutral loss in premise (1)—and that would make premise (1) false, for as we have
seen, it is not wrong to cause merely neutral losses.
Thus, I think Marquis’s argument fails because of the fallacy of equivocation.
He uses the phrase “cause the loss of ” with two very different meanings.

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 Chapter 6  Abortion  177

In order for his argument to suc-

UP FOR DISCUSSION
ceed, he first needs to show that fe-
tuses have a right to their futures, and What do you think of Marquis’s argu-
then that this right is violated if the ment? Do you agree that killing a fe-
pregnant woman obtains an abortion, tus is wrong for the same reason that
but these are precisely the issues that killing you or me is wrong? How might
he had hoped to sidestep. Marquis best respond to the equivoca-
tion objection?

The Argument That This Abortion

Discriminates against the Disabled

Doran: Some might agree with us that these arguments are unsound, and that abortion
is sometimes morally permissible, yet still object to abortion in this particular case.
Warren: Why is that? What’s the objection you have in mind here, Doran?
Doran: Well, the couple in this case are seeking an abortion because the fetus has a dis-
ability. They would not abort if their child were going to be “normal.” But because
their fetus has Down’s, they have chosen to abort. So, the objection is that their
choice to abort discriminates against the disabled.
Warren: So I take it the argument would go something like this:

(1) It is wrong to discriminate on grounds of disability.

(2) Abortion in this case discriminates on grounds of disability.
(3) Therefore, abortion in this case is wrong.

Doran: That looks right, Warren.

Warren: What do you guys think about the argument?
Doran: Premise (1) claims that it is wrong to discriminate on grounds of disability;
however, discrimination for reasons of sex, race, disability, and so on is not always
wrong. For instance, if one were casting for the part of Martin Luther King in a
play, it would not be wrong to favour black actors over non-black actors.
Patrick: Agreed. And it would not be wrong to discriminate against the blind, for ex-
ample, if one were interviewing candidates for occupations that require excellent
vision—a commercial airline pilot, for example.
Doran: Discrimination is not wrong in these cases, I believe, because it is not unjust
discrimination. It is not depriving the individuals discriminated against of anything
they have a right to.
Warren: Do you think discrimination is unjust, Doran, only when it violates rights? If
an act of discrimination didn’t violate anyone’s rights, but caused serious harm to a
person, that could also be unjust, couldn’t it?
Doran: Yes, that sounds right.

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Patrick: It seems to me that discrimination can be wrong, even when it is not unjust
in the sense of violating anyone’s rights or seriously harming them. For example,
suppose Smith allows most of his neighbours to borrow his garden tools now and
then. But suppose Smith does not allow his neighbour Jones to borrow his tools,
simply because Jones is black. Now, none of the neighbours has a right to use
Smith’s garden tools, nor would they be seriously harmed by Smith’s refusing to
let them use his tools. So there’s no injustice here. Still, Smith’s discriminating
against Jones in this case seems wrong. For Smith is refusing to provide a benefit
to Jones that he generously provides to his other neighbours, simply because Jones
is black.
Warren: So discrimination is certainly wrong when it is unjust, as Doran argues. But
it can also be wrong for other reasons that don’t involve violating people’s rights or
causing serious harm. What seems to make acts of discrimination wrong, when
they are wrong, is that they discriminate on the basis of reasons—race, sex, dis-
ability, and so on—that are not morally relevant, or relevant but not sufficient to
justify the action.
Patrick: Agreed. Whether or not one can see is relevant to whether one is qualified to
be a commercial airline pilot. So discriminating against the blind is not wrong in
that sort of case. But whether one is physically disabled is not relevant to whether
one can hold public office, for instance. So, in that sort of case discrimination on
grounds of disability would be wrong.
Warren: Since discrimination on grounds of disability is not always wrong, it looks like
premise (1) is false. It should be revised to say: It is wrong to discriminate on grounds
of disability, where disability is not a morally relevant or sufficient consideration.
Patrick: If disability is not a morally relevant consideration, then, of course, it cannot be
a morally sufficient consideration—a consideration that justifies the discrimination.
So premise (1) could simply say: It is wrong to discriminate on grounds of disability,
where disability is not a morally sufficient consideration.
Doran: Right. But then premise (2) must also be revised in a similar way, otherwise the
argument would be guilty of equivocation and therefore invalid. Premise (2) must
be read as asserting that abortion in this case discriminates on grounds of disability,
where disability is not a morally sufficient consideration.
Warren: When revised in this way, premise (2) is true only if the following two claims
are true: (i) Abortion in this case discriminates against the disabled, and (ii) dis-
ability is not, in this case, a morally sufficient reason.
Patrick: I assume you think the fetus’s disability is a morally sufficient consideration
in this case, Doran, because of the negative impact the raising of a disabled child
would have on Don and Marissa’s business and marriage.
Doran: Yes, that’s part of the reason.
Patrick: Marriage is an important good, likely the most important good, in the couple’s
lives. And they have invested considerable time and money building a business

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 Chapter 6  Abortion  179

together. If having a disabled child

UP FOR DISCUSSION
threatens these goods, then this
fact may be sufficient to justify the Some argue against sex-selective abor-
abortion. tions on the grounds that they unfairly
Warren: So the two of you argue that discriminate against women. Is there
premise (2) is false, because if this a morally relevant difference between
particular abortion discriminates abortion due to sex selection and abor-
against disabled people as a class, it tion due to Down’s syndrome? Might it
does so for reasons that morally jus- be argued that abortions due to Down’s
tify the discrimination. syndrome discriminate against those
Patrick: Right. with Down’s syndrome?
Warren: There’s another way of think-
ing about this argument that we
should consider. We’ve been focusing on the question of whether the couple’s
abortion wrongfully discriminates against disabled people as a class. But “pro-
life” conservatives would object that abortion in this case discriminates against
this particular fetus for reasons that are not morally sufficient. The fetus has a
right to life, they would argue, whether or not it is disabled. So, since Don and
Marissa are aborting the fetus because it is disabled, the couple is discriminating
against the fetus by violating its right to life for reasons that are not morally
sufficient to justify their actions.
Doran: This reading of premise (2) assumes that the fetus has rights. I would deny this.
In my view, only beings with the capacity for consciousness have rights. Since Don
and Marissa’s 16-week-old fetus lacks this capacity, it does not have a right to life.
So their abortion does not unjustly discriminate against their fetus.
Warren: Rather than focusing on consciousness only, I would argue for a larger set
of capacities as essential to persons, so the woman’s rights would all the more
outweigh those of the fetus, who is human but not yet a person.10 Persons in
the original position would, moreover, be ignorant of their features in the real
world, including gender. Among the rules they would approve would be a strong
rule against using, without consent, another person’s body. This would protect
their interests by providing a strong right of bodily integrity that would prevent
a woman from being required to continue a pregnancy. Knowing how vulner-
able women may be in the real world, but not knowing if they themselves are
women behind a veil of ignorance, the choosers of rules would be motivated to
accept this strong right to bodily integrity—so the decision to end or carry on
her pregnancy rests with Marissa.
Patrick: Even if we grant that all fetuses, disabled or not, have a right to life, it’s not
obvious to me that aborting on grounds of disability would be wrong. Disability
might still be a consideration that carries sufficient weight to justify abortion. It is
probably even a sufficiently good reason to justify abortion in this particular case.

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Doran: If you grant that the fetus has a right to life, Patrick, I don’t see how you could
say that abortion in this case, or pretty much any other case, could be morally
permissible. But it would be very powerful if you could show that it is not morally
wrong for Marissa to have an abortion even if conservatives are given their claim
that the fetus has a right to life. Let’s hear your argument.

Patrick’s Virtue-Based Argument for Why Abortion Would Be Permissible

in This Case

Patrick: From my virtue ethics perspective, questions of right and wrong are settled by
considering how the virtuous person would see things.11 And this question directs
us to consider whether an individual’s actions in a given situation are consistent
with the virtues. So, in the present case, we need to consider whether abortion is
consistent with the virtues. When abortion is done to protect and promote other
central and worthwhile goods in one’s life, then abortion may be permissible. I don’t
accept any general rules about when abortion is or is not permissible, however. Each
case has to be decided on its own merits. In Marissa and Don’s case, the particular
case under discussion, I believe, somewhat tentatively, that abortion is permissible.
One way of putting my argument is like this:

(1) It would be wrong for Marissa to have an abortion in this situation if and
only if virtuous persons would see Marissa’s having an abortion as wrong.
(2) Virtuous persons would not see Marissa’s having an abortion in this situ-
ation as wrong.
(3) Hence, it is not wrong for Marissa to have an abortion in this situation.

Doran: Can you offer some explanation and support for your premises?
Patrick: Sure. The first premise follows from my view that an act is morally wrong (or
prohibited) if and only if virtuous persons would perceive the action as morally
wrong (or prohibited). Put briefly and roughly, perceiving an action as wrong is a
matter of seeing the action as vicious (that is, as exhibiting vices), all things consid-
ered. So, the idea is that Marissa’s having an abortion is wrong if and only if virtu-
ous persons would see her action as vicious, all things considered.12
Warren: How about the second premise? Why do you think virtuous persons would not
see Marissa and Don as acting viciously in this situation?
Patrick: The difficulty of answering this question is what makes my position in this case
somewhat tentative. We need to consider what virtues and vices Marissa and Don
would be manifesting in choosing to abort in this situation. All things considered,
they do not seem to be acting viciously. Marissa’s reasons for having an abortion do
not reveal her to be selfish, shallow, greedy, callous, and so on. Rather, her abort-
ing in this situation arguably shows a reasonable concern to preserve and protect

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 Chapter 6  Abortion  181

very important and worthwhile goods

UP FOR DISCUSSION
in her and Don’s life. If she has the
child, it will likely destroy their mar- Do you agree with Patrick’s assessment
riage and the business they’ve built of this case that Marissa and Don’s de-
together. In short, the life Marissa cision to abort is not vicious, all things
and Don have worked hard to build considered?
would likely be ruined.

The Right to Life Weighed against Marissa and Don’s Virtues

Doran: Given our different ethical perspectives, Warren and I would of course chal-
lenge your first premise. But let’s set that issue aside and focus on the second prem-
ise. You claim Marissa and Don’s choice does not manifest various character flaws,
such as being selfish, shallow, greedy, and so on. But on the negative side, some
people may quite reasonably say that her act is unjust, since it violates the fetus’s
right to life.
Warren: That’s right. You have assumed, for the sake of argument, that the fetus has
a right to life. But it is hard to see how Marissa and Don’s reasons are sufficiently
weighty to justify the killing of an individual with a right to life. Surely, in a case of
conflict between saving one’s lifestyle, business, and marriage, versus killing some-
one with a right to life, a virtuous person must choose to respect and protect the
right to life. Marissa and Don’s reasons are certainly not frivolous, but are they suf-
ficient to permit killing an innocent
human being? Surely that is not a way TECHNIQUE
to act lovingly, as you put it earlier.
Health care professionals may wonder
Doran: I am with you on this one, Warren.
why anyone takes this science fiction
Patrick: I don’t think the right to life has
example seriously. The point is not that
the sort of force that you two think
this is an example of something cur-
it has. This point is illustrated nicely
rently medically possible or likely to
by Judith Jarvis Thomson’s renowned
happen at any time in the future. The
fanciful example of the famous vio-
example, instead, helps us to see that if
linist.13 Suppose you are captured by
people other than pregnant women had
a group of fanatics that arranges to
some human being physically depen-
have you surgically attached to a fa-
dent upon them, they might view their
mous, unconscious violinist, an in-
rights rather differently than many tend,
nocent person whose life can only be
traditionally, to view the rights of preg-
saved by this form of attachment to
nant women. The example is designed
you. You must stay attached for nine
to put the shoe on the other foot and
months until the violinist is able to
shake some people out of complacent
function on his own, or the violin-
acceptance of moral tradition.
ist will die. Thomson argues that it

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would not be wrong to detach yourself. For you have a right to control what hap-
pens in and to your body. And the violinist’s right to life does not entail a right to
use your body against your wishes. So, there is no violation of the right to life and,
hence, no injustice in detaching yourself from the violinist.
Warren: I’m not sure Thomson is of much help here insofar as you’re trying to show that
Marissa’s abortion is not wrong. Assuming Thomson’s violinist analogy has merit,
it shows only that abortion is permissible in cases of rape.
Doran: I agree with Warren. Thomson uses the violinist analogy to argue that in cases
of rape a woman has not given the fetus a right to use her body, so she may refuse to
sustain its life without violating its right to life. Once you grant that the fetus has
a right to life, I think it will be very difficult to avoid the conclusion that Marissa’s
abortion is wrong. For, if we’re to take the right to life seriously, we have to say that
it is very wrong to kill beings who have this right, except in extremely rare circum-
stances. Thomson’s examples involve such special circumstances—for example, rape
and, elsewhere, self-defence and failed contraception—but Marissa and Don’s situ-
ation is different.
Patrick: You are right to note that Marissa and Don’s case is different from Thomson’s
own examples. Her examples involve cases of unintended pregnancy, whereas Ma-
rissa and Don’s case is one in which the pregnancy was intended. But I don’t think
the difference here is morally significant.
Doran: Why not? After all, since Marissa’s pregnancy was intended, haven’t they tacitly
consented to the fetus’s use of her body?
Patrick: Perhaps so; I’m not entirely sure. This depends on complicated issues related to
the notion of tacit consent. But suppose the fact that they voluntarily intended
to conceive constitutes tacit consent to use Marissa’s body. It still doesn’t follow that
the fetus has an absolute and unconditional right to use Marissa’s body such
that aborting the fetus violates its right to life. For consider David Boonin’s revised
version of Thomson’s violinist case.14 Suppose that you voluntarily agree to have the
violinist plugged into you for nine months. After a month or so, complications arise
and, in order to keep the violinist alive, you will have to undergo a series of extremely
painful bone marrow transplants. After the first round of transplants, you find the
pain is more than you are willing to bear. Boonin argues that it would surely be per-
missible to unplug yourself at this point, and I agree. If this is correct, then it may be
permissible for Marissa to have an abortion in this situation. For having a disabled
child imposes significant burdens and costs that she is unwilling to bear.
Doran: Interesting case. I am not so sure it would be morally permissible to kill the
violinist in this case. Think about it. To be analogous to abortion, it would not be an
“unplugging of the violinist” (a withdrawal of treatment) but an intentional “kill-
ing.” And it is not clear to me that intentionally killing the violinist would be okay if
the violinist had a right to life and you volunteered to care for him for nine months,
knowing that there was this risk of complications. This is especially the case in your

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 Chapter 6  Abortion  183

virtue-based view, where the question is not what most of us would do in this sort
of case, but what a virtuous person would do.
Moreover, it is not clear how analogous Boonin’s case is to abortion in general,
and Don and Marissa’s case in particular. In a case of abortion, the individual that
is killed is no stranger/violinist, but one’s own “child.” And, if we are assuming for
the sake of argument that this child has a right to life, then I don’t think it would
be permissible to abort any more than infanticide would be permissible if one had
given birth to a child who unexpectedly turned out to have Down’s in a country
where adoption was not allowed.
Warren: Don and Marissa’s case would be a conditional contract—that is, a contract
with conditions—made with the violinist. A virtuous person can opt out of a con-
tract if her prior conditions are not met, can’t she? Marissa clearly thinks the medi-
cal tests for Down’s are used to see if her conditions are met. She agreed to carry a
normal fetus to term and, as long as she keeps that promise, should be perceived to
be virtuous by a virtuous person.
Patrick: Right, that’s along the lines of what I was thinking, Warren. Any consent the
couple has tacitly given would have to be understood as conditional. So, even if Ma-
rissa tacitly consented to the fetus’s use of her body, it doesn’t follow that aborting
the fetus would be wrong. For it is not plausible to suppose that voluntary concep-
tion amounts to tacitly consenting to bear a child at all costs. In this particular case,
the costs are significant—more than Marissa is willing to bear. Her abortion there-
fore does not deprive the fetus of anything it has a right to. So, Don and Marissa’s
abortion is not unjust.
Warren: Actually, I do not know if there is any objective answer to what a virtuous per-
son would perceive. The pro-life supporter sees vices of selfishness, greed, cruelty,
weakness, and shallowness in Don and Marissa’s decision. I prefer to found my
arguments on social contract theory, so I leave to Patrick this interesting problem of
recognizing veridical perception of virtue where opposite perceptions are common.
Doran: I think you make a very interesting case for the moral permissibility of Marissa’s
abortion even if the fetus has a right to life, though I am not convinced. While Ma-
rissa is not willing to bear these costs, it is not so clear that a virtuous person would
be unwilling to bear these costs, on the assumption that the fetus has a right to life.
But like I say, you have made a very thought-provoking argument for your view.
I take it your view about the permissibility of abortion is a lot more straightfor-
ward if it turned out that the fetus lacked the right to life. Right?
Patrick: Well, I think abortion can be wrong even when it does not violate the fetus’s rights.
Warren: Why do you say that, Patrick?
Patrick: I don’t think the permissibility of Marissa’s abortion, and the question of abor-
tion more generally, can be settled simply by looking at the rights possessed by the
relevant parties. In addition to looking at questions of rights and justice, we need to
consider other virtues and vices that are relevant in cases of abortion.

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As other virtue ethicists have noted, rights can be exercised virtuously or vi-
ciously.15 In the case of abortion, even if a woman has a right to control her body,
and the fetus has no right to use her body against her wishes, refusing the fetus the
use of her body can be wrong if done for the wrong sorts of reasons.
Doran: Can you give an example to illustrate what you have in mind?
Patrick: Sure. Suppose that Marissa became pregnant from a drunken one-night stand,
and wanted to have an abortion, not to save their marriage and business, but to
protect her “party hard” lifestyle. In this sort of situation, it might well be vicious
to have an abortion, since protecting a partying lifestyle is not in general a good
enough reason to justify abortion. (However, that fact that “Partying Marissa and
Don” may be unfit parents, together with the concern that their pregnancy could
result in an unwanted child with fetal
alcohol syndrome, provide reasons in UP FOR DISCUSSION
support of abortion in this case.) But Do you think it would be morally wrong
Marissa and Don’s actual situation is for a woman to have an abortion to pre-
very different from the one just imag- serve her “party hard” lifestyle? Why or
ined. She is having an abortion to why not?
save fundamental, worthwhile proj-
ects and relationships that are consti-
tutive of living well.
Doran: For me, it pretty much all depends on whether the fetus has rights. If fetuses
lack rights, and if no one else’s rights are violated or there are not serious harms to
others, then I don’t think it is morally wrong for a couple to abort to preserve their
party hard lifestyle. It may be “unseemly” or “unhealthy,” but I don’t think it is im-
moral. For I think that for an action to be wrong, there needs to be someone who is
wronged, and if the fetus lacks rights, it cannot be wronged. And so, provided no
one else is wronged or seriously harmed by the abortion, I think that such an abor-
tion would not be wrong. Basically, if the fetus lacks rights, then abortion is morally
on par with contraception. My views are more liberal than yours, Patrick.
Warren: I don’t agree that the fetus has no rights at all. The strength of the rights of the
fetus is determined by the probability of that fetus becoming a conscious person.
And note that the increasing proba-
bility of becoming a conscious person UP FOR DISCUSSION
as a fetus ages partially fits with the What do you think? Is it permissible for
common tendency to think a greater Marissa and Don to obtain an abortion
justification is needed for abortion the in their circumstances, if we assume the
later it occurs in the pregnancy. The fetus has a full and equal right to life? If
upshot is that my view is more liberal the fetus lacks a right to life, would abor-
than yours, Patrick, but more conser- tion be wrong if done for trivial reasons?
vative than yours, Doran.

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 Chapter 6  Abortion  185

Doran, why don’t you give us your argument for why Marissa and Don’s fetus
lacks any right to life, and why you think her abortion is morally permissible?

DORAN’S ARGUMENT THAT MARISSA AND DON’S DECISION

TO ABORT WAS MORALLY PERMISSIBLE
Doran: Though we all agree that Marissa and Don acted permissibly, you are right,
Warren, that my position is more liberal than yours and Patrick’s. My argument for
thinking that Marissa may permissibly obtain an abortion is the following:

(1) A fetus does not have a right to life at 16 weeks’ gestation.

(2) A woman has a moral right to control what happens in and to her body,
provided she does not violate anyone else’s rights.
(3) In Marissa and Don’s case, her decision would not violate anyone else’s rights.
(4) Therefore, Marissa has a moral right to obtain an abortion.

Warren: Well, clearly premise (1) would not be accepted by everyone. What reason can
you give in support of this premise?
Doran: I believe the reason why a 16-week fetus does not have a right to life can most
helpfully be explained if we ask a more general question: In general, what gives
something a right to life? If we can answer this question, then we can apply it to fe-
tuses and determine whether they have a right to life. In thinking about what gives
something a right to life, we will eventually see the need to consider the question of
whether rights to life can vary in their strength. When we do all this, we will end up
seeing that at the time of Marissa’s abortion, her 16-week fetus lacked any right to
life and that even if her abortion happened later in pregnancy, the fetus would have
had only a weak right to life that could be permissibly overridden in a circumstance
like Marissa’s.16

The Rationality Criterion for a Right to Life

Doran: Let’s consider some obvious candidates for the basis of a right to life. One view
says that one gets a right to life in virtue of being rational.17 What is meant by
“rational” varies, but the key idea is that you have the abilities to consciously set
goals for yourself and to come up with a particular life plan, that you are self-aware,
have reasonably sophisticated problem-solving abilities and communication skills,
and so on. Of course, a normal adult human being is a paradigmatic example of
a rational being, and so a normal adult human being would, in this view, be a
paradigmatic example of someone who has a right to life.

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Patrick: It seems right that being rational is sufficient for a right to life, but some may
wonder if it is necessary. For if rationality were necessary for a right to life, many
humans would not have a right to life.
Warren: Indeed, not only fetuses, but human infants and the severely cognitively im-
paired would, according to the proposed criterion, lack a right to life.
Doran: Agreed. A rationality criterion would also presumably exclude non-human ani-
mals, yet many believe that we have a duty not to kill them, unless there is sufficient
justification. Although there is much more to be said by those who support rational-
ity as necessary for a right to life, I think we ultimately have to conclude that the
proposed criterion is too restrictive.
So, let’s consider an alternative criterion. Some have suggested that a right to
life should be given to all who are alive. If you are alive, you have a fundamental
interest in living, and the right to life protects that fundamental interest.18

The Life Criterion

Patrick: The claim that all living things have a right to life is very counterintuitive.
Bacteria are alive, but we do not think we are violating their rights when we take an
antibiotic. Similarly, weeding a garden does not seem to be morally problematic, yet
it would be, in this view, since weeds are alive and they’re being killed.
Doran: I completely agree. Being alive is much too broad a criterion for a right to life.
Moreover, I think we can explain why such a criterion is too broad. Rights protect
interests—I agree with that—but to have an interest in the relevant sense requires
that one be able to take an interest, or to have a point of view that one values or can
value. Merely living things, however, like bacteria and weeds, do not have these kinds
of interests, and so cannot be said to have rights.
Warren: Well, I am not sure that I agree
with your analysis of interests and a TECHNIQUE
right to life.
Notice that the rationality criterion and
Patrick: Right, many would question
the life criterion of moral rights are
this analysis. There’s a clear sense in
rejected by using counterexamples.
which plants, for example, have inter-
Further, notice that an explanation is
ests—it is in their interests to receive
also provided for why these principles
adequate sunlight, nutrition, protec-
err. Whenever possible, one should go
tion from the elements, and so on.
beyond the mere appeal to a counter-
But your point, I take it, is that plants
example to reject a moral principle, and
do not have interests in the relevant
one should try to provide an explanation
sense, since they are not conscious,
for why the principle in question is false.
and so do not have a point of view
For, ideally, one wants to discover not
from which it matters to them how
just that a particular principle is false,
their lives are going.
but also why it is mistaken.
Doran: Yes, that’s right.

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 Chapter 6  Abortion  187

Warren: This is an interesting issue, but let’s leave it aside for now, and instead, let’s hear
what Doran thinks is the appropriate criterion of a right to life.

The Sentience Criterion

Doran: I believe that a necessary and sufficient condition for one to have a right to life
is that one be sentient. By sentient, I mean that one is a conscious creature, capable
of feeling pleasure and pain, and so can meaningfully be said to be benefitted or
harmed. If a being can feel, then it has interests that ought to be respected. And the
reason these interests should be respected is because it makes a difference directly
to those sentient individuals.
Warren: It makes a difference directly to non-sentient beings when they are harmed
as well. Both sentient and non-sentient beings may be unaware of the difference
it makes.
Doran: Of course, in a sense, it makes a difference to a non-sentient being if it is harmed.
If a weed is poisoned, its lifespan will be shortened, just as if a dog’s throat is slit,
its lifespan will be shortened. But surely there is a clear and important difference
between these two sorts of cases. The clearest difference between them is that the
one can suffer and enjoy, while the other can’t. The animal cares not to be cut up
in a way that a weed does not. That one is conscious has clear and important moral
significance.
Patrick: I agree, Doran, that being sentient is morally significant for the reasons just
mentioned. But I have doubts about sentience as a criterion for a right to life. Why
do you think your view is more plausible than the other criteria for a right to life that
we’ve considered and rejected?
Doran: My sentience-based view does not imply that taking antibiotics or weeding one’s
garden are morally objectionable, since we can assume that bacteria and weeds are
not sentient. And it does imply that mentally challenged humans and newborn hu-
man infants have a right to life, since they are sentient.
Further, I believe that a sentience-based view ties in with a plausible concep-
tion of the proper role of morality—morality ought to be concerned with enhanc-
ing well-being or happiness, and with protecting the vulnerable from suffering or
injuries to their well-being. A sentience criterion of rights tells us that all and only
beings that can suffer and/or enjoy have a well-being, and that sentient beings are
therefore to be protected from unwarranted harms. The newborn infant, for in-
stance, can suffer and/or enjoy—it therefore has interests or a well-being that ought
to be protected by morality.
Warren: As we discussed earlier, our best understanding of this is that fetuses are not
capable of consciousness (and so are not sentient) before 23 weeks. And since Ma-
rissa’s abortion happens well before this point, she is, in my view, not destroying a
being with a right to life.
Doran: Right.

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BACKGROUND
“In reviewing the neuroanatomical and physiological evidence in the fetus, it was appar-
ent that connections from the periphery to the cortex are not intact before 24 weeks
of gestation and, as most neuroscientists believe that the cortex is necessary for pain
perception, it can be concluded that the fetus cannot experience pain in any sense prior
to this gestation. After 24 weeks there is continuing development and elaboration of in-
tracortical networks such that noxious stimuli in newborn preterm infants produce corti-
cal responses. Such connections to the cortex are necessary for pain experience but not
sufficient, as experience of external stimuli requires consciousness. Furthermore, there
is increasing evidence that the fetus never experiences a state of true wakefulness in
utero and is kept, by the presence of its chemical environment, in a continuous sleep-
like unconsciousness or sedation.”

Source: Royal College of Obstetricians and Gynaecologists, Fetal Awareness: Review of Research
and Recommendations for Practice (March 2010) (London: Royal College of Obstetricians
and Gynaecologists, 2010), [Link]
[Link].

Warren: So, in your view, Doran, the capacity to experience is necessary for being sen-
tient, and for having a right to life. Is your view that it is also sufficient for a right
to life?
Patrick: And related to Warren’s question, does the strength of one’s right to life vary
with how sentient one is? A mouse is sentient, so in your view does a mouse have as
strong a right to life as you or me?

The Addition of Rationality to Sentience

Doran: Although I think sentience is necessary and sufficient for a right to life, I believe
that it is reasonable to think that the magnitude of the right to life varies according
to the level of sentience. In general, we think that adult human beings have a full
right to life, since they are what we may call fully sentient, in virtue of their ratio-
nality. Not only do they have various interests in not suffering and in having their
instinctive drives satisfied, but they also are capable of valuing their own lives and
they are equipped with the ability to form preferences, including the preference not
to be killed. Further, rational beings can imagine their future and consider various
possibilities that non-rational beings cannot. This, in turn, expands the number of
things they can dread, and desire.
Also, rational beings can be greatly affected by the success and failures of their
loved ones, they can take pleasure in their children’s accomplishments, worry about
their parents’ health, be concerned about the fate of their planet, and wonder about
what will happen after their death. These, plus whatever is directly happening to
them, are all things in which they can take pleasure or pain. All of this adds to a

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 Chapter 6  Abortion  189

rational being’s level of sentience, to the dimensions by which such a life can be-
come better or worse, and helps explain why we believe it is especially awful (nor-
mally speaking) to kill a rational being. These facts make it reasonable to think that
normal adult humans are much more aware than non-rational beings, and this helps
explain why they have particularly strong rights to life.
Warren: None of the increases in sentience that you mention, Doran, require rational-
ity. They require instead the ability to imagine one’s future. Whether one does this
in rational or irrational ways, one can have greatly increased sentience. The pains
and pleasures of anticipation are among the most keen.
Patrick: Good point, Warren. It seems that irrationality, and various kinds of serious
psychological disorders, can enhance sentience. Think about a psychotic individual
suffering from delusions.
Doran: You guys are probably right. There are various ways one can become fully sen-
tient—a robust (though irrational) imagination may be one way. Another way to
become fully sentient is by having the psychological capacities of a typical adult
human being—capacities that include rationality, imagination, empathy, and so on.
It must be admitted, though, that most other mammals are sentient, though
not as fully sentient as typical humans. They lack many, if not all, the abilities I just
mentioned. This means they have a significant, but not a full, right to life. Again,
this matches what most of us believe on reflection: namely, that killing a non-human
animal is not something to be taken lightly. It requires a justification, though this
justification is more easily met than the justification required for killing a being
with a full right to life. It also matches the idea that other things being equal, it
is worse to kill a dog than a mouse, and, other things being equal, worse to kill a
chimp than a dog, since a dog is more psychologically complex and so presumably
more sentient than a mouse, and a chimp is more psychologically complex and so
presumably more sentient than a dog.
Patrick: Okay, so I see now why you hold that sentient creatures have a right to life, and
why this right can be stronger or weaker. Returning now to Warren’s earlier ques-
tion, what does your view imply about the rights of the fetus?
Doran: Embryos and early fetuses are clearly not sentient, though later fetuses probably
are sentient insofar as they probably have the capacity to feel pleasure and pain. I
believe this to be the case primarily because I think that sentience (in human be-
ings) requires a certain neurological base—one that is absent in the first parts of
pregnancy, gradually emerges later in pregnancy, and is more developed by birth.
Because sentience emerges gradually sometime after 23 weeks, fetuses begin to ac-
quire a right to life at that time; however, because they are never fully sentient, the
magnitude of that right to life remains only partial.
Patrick: So, what does your view imply about the permissibility of abortion?
Doran: What this means for the morality of abortion is that early abortions do not in-
volve the destruction of a being with a right to life. A pregnant woman is completely
within her rights to have an abortion, during this period, for almost any reason.

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An early abortion is morally on par with contraception. As the fetus develops and
begins to acquire the capacity to feel pleasure and pain, then it acquires a right to
life that deserves to be respected. Nevertheless, this right is not of full magnitude,
and thus can be more easily overridden in cases of conflict. Thus, if a woman’s life
or health is in danger, or if continuing with the pregnancy would otherwise set back
her important interests to a significant degree, then it would be within her rights
to obtain an abortion. Finally, as the fetus matures and becomes more developed
psychologically, it earns a more robust right to life, one that will be increasingly
difficult to override.
Warren: What about Marissa and Don’s case in particular?
Doran: Turning to Marissa and Don’s case, she is carrying a fetus that is not capable of
experiencing pleasure and pain. The right to life of Marissa and Don’s fetus, then,
is non-existent at 16 weeks. She therefore acts permissibly when deciding to opt for
an abortion at 16 weeks.
Patrick: Interesting. But, as I argued earlier, I do not agree with your claim that in the
early stages (prior to sentience) a pregnant woman may have an abortion for any
reason. This seems too liberal a view to me. Even if the fetus is not sentient, it is
a developing human being with the potential to become a sentient, rational being.
Aborting such a being for trivial reasons would seem to be wrong.

Objections to Doran’s Sentience-Based Criterion of a Right to Life

Is Sentience Sufficient for a Right to Life?

Patrick: I see how being sentient gives an individual an interest in seeking pleasure and
avoiding pain. But how does sentience give one a right to life? Some sentient beings
are not self-aware and have no concept of themselves as beings with a past and a
future. It is plausible to suppose that such beings have a right not to suffer unneces-
sarily, but it’s not clear why we should think these (minimally) sentient beings have
a right to life.
Doran: Good question. I don’t think that self-awareness and having a concept of one-
self with a past and a future are necessary for a right to life, since I think newborn
infants have a right to life, even though they probably lack these characteristics.
As a thought experiment, consider a newborn infant that has some medical condi-
tion that will painlessly kill her in four months’ time. Until the time of her death,
the infant is expected to be happy and comfortable. It seems clear to me that such
an infant has not only a right not to suffer, but also a right not to be killed. And
a sentience criterion explains why. Though this baby will never be rational, and
though it is doubtful that she is self-aware, she can still feel pleasure and pain,
and so she has “a well-being.” To kill her would go against her well-being, and so
is prima facie wrong to do.

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Patrick: You earlier rejected the life criterion for a right to life on the ground that be-
ings who are alive, but not sentient, can’t care about whether their interests are being
satisfied. Now, minimally sentient creatures do care about whether they suffer, so
again I see why you would think they have a right not to suffer. But since minimally
sentient beings don’t conceive of themselves as distinct living beings with a past and
future, it seems they can’t care whether they live or die. So merely being sentient
does not seem sufficient to me to get a right to life.
Doran: You raise a challenging objection, Patrick. I suppose my answer is that there is a
distinction between what is necessary for a being to have interests, and so rights, and
what determines the particular interests (or rights) of a being that is a rights holder. I
argued that in order to have interests (and so rights) at all, it is necessary for a being
to be able to be benefitted or harmed in a way that matters to it (and this will require
that the being be sentient or aware). However, the determination of the particular
interests of an individual is a separate matter. It is in my dog’s interests not to run in
front of a passing truck, but she may not know it is in her interests. Likewise, it may
be in an infant’s interest not to be painlessly killed, though the infant won’t know that.

Is Sentience Necessary for a Right to Life?

Warren: While Patrick has questioned whether sentience is sufficient for a right to life,
others will question whether sentience is necessary. A person in a temporary coma
is not sentient, but such a person surely has a right to life.
Doran: You raise a tricky issue. For obviously I think that a person in a temporary
coma still has a right to life, even if this person lacks awareness. My response
to this objection is to say that a person who falls into a temporary coma is still
a sentient being, and thus still has interests that warrant protection, even if this
person cannot access this capacity while in a coma. If I fall into a temporary coma
(or otherwise become temporarily unconscious) later this evening, for instance,
it seems clear that I will still have interests. It would still make sense to say,
Doran has an interest and a right not to be killed because Doran values spending
time with family, enjoys thinking about philosophy, and, if he is going to make
a reasonable recovery, he prefers not to be killed. Thus, I think I can say that the
coma objection does not work as a counterexample to my claim that sentience is
necessary for having a right to life, for I believe that a sentient being who falls into
a temporary state of unconsciousness
retains their identity as a sentient UP FOR DISCUSSION
being. If Doran argues that a person who falls
Warren: Note the difference if the coma into a temporary coma is still a sentient
is permanent. Does this not show being, can he consistently say that a
that what is really functioning here pre-conscious fetus is not a sentient be-
is the potential of a being to have a ing? Why or why not?
certain kind of future?

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Doran: Well, my views on the rights of the permanently comatose are complicated, and
we lack the space to go into that here. So, let me just address your question about
potential. I do not think potential for further psychological development is what
gives a sentient being a right to life. For I believe that many sentient beings clearly
have significant rights to life, even if they are not fully sentient, and even if they do
not have the potential to become fully sentient. Consider the case of the terminally
ill infant discussed previously, or the case of a significantly mentally challenged
human being. I would say they have significant rights to life, even if they lack the
potential for significant psychological development. This shows that potential is not
what is necessary for the right to life.
I also think potential is not sufficient for a right to life. Gametes and zygotes
have the potential to become conscious, but they are not conscious yet. So, they lack
a right to life. It is only once one is actually a being with the capacity for conscious-
ness that one acquires the right to life. For it is only then (as I have tried to explain)
that we have someone who can be benefitted or harmed in the way that I take to be
morally significant.

The Objection That More Rational Individuals Will Have Stronger Rights to Life Than
Less Rational Individuals
Warren: According to your view, a right to life becomes weaker as rationality declines.
Wouldn’t that have the unacceptable implication that humans who were more ratio-
nal would have greater rights to life than those who were less rational?
Patrick: Right. So a brilliant scientist would have a greater right to life than the average
soccer mom or dad?
Doran: No, this objection is based on a misunderstanding of my view. I am not saying
that the more rational one is, the greater one’s right to life. Rather, I think that
a right to life is a threshold concept. This means that once one has the ability to
form preferences about continued existence, and once one is self-aware, one meets
the threshold for having a full and equal right to life. This is because, once one has
these characteristics, one is a person, with a sense of who one is. This is equally
the case even if one person is less rational, or self-aware, or imaginative than some
other person. Thus, it is not an implication of my view that the average person has
a weaker right to life than the brilliant scientist, even if the average person is less
rational than the brilliant scientist.
What does follow from my view,
however, is that a sentient individual UP FOR DISCUSSION
who is not fully sentient has a weaker Does Doran’s view imply that an adult
right to life than a fully sentient be- chimpanzee has more of a right to life
ing. Killing a normal adult human than a newborn infant? If so, how strong
being is normally worse than killing an objection would that be to his view?
a normal dog or cat, in part, because

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 Chapter 6  Abortion  193

the former has a stronger right to life than the latter. And killing a normal dog or
cat is normally worse than killing a fish or a chicken, again, in part, because the
former has a stronger right to life than the latter. This appears to accord quite well
with most people’s moral common sense.
Patrick: That seems right. But I think your view runs afoul of common sense when we
consider the rights of infants and non-human animals.
Warren: I agree. Doran’s view also runs into problems when we consider the rights of
severely mentally disabled humans.
Doran: Okay, let me take these objections in turn, beginning with Warren’s case.

The Objection That Rational Individuals Will Have Stronger Rights to Life Than Will
Non-Rational Individuals
Warren: Isn’t one of the conservatives’ objections to the view that rights depend on
degrees of sentience that it does not accord a full right to life to all humans? Specifi-
cally, severely mentally challenged humans would have a weaker right to life than
you or I. This sounds like an objectionable form of ableism.
Doran: Yes, you have identified a principal objection to my view. My reply may not be
fully satisfactory, but here goes. First, it is important to note that most mentally
challenged humans are sufficiently sentient to have a full right to life. Most men-
tally challenged humans are capable of significant levels of understanding, have de-
veloped linguistic skills, are capable of participating in loving relationships, and so
forth. Now, depending where the threshold for full rights to life is set, it can reason-
ably be maintained that most cognitively impaired humans surpass this threshold
and so would have full rights.
Patrick: But there are of course humans who are so mentally impaired that they are only
barely sentient.
Doran: Yes, it is true that some humans are so badly off that they are only minimally
sentient, less than many typical non-human mammals. Here, consistency requires
that I accept that they do not have a full right to life.
Patrick: But surely it can be just as wrong (and in some cases, maybe even more wrong)
to kill a severely mentally disabled human than to kill another human without the
mental disability.
Doran: While it is true that my view implies that a rational, sentient individual has a
greater right to life than someone who is only barely conscious, it is consistent with
my view to claim that non-rational
humans warrant great, perhaps full, UP FOR DISCUSSION
moral protection. It is just that a right What do you think gives someone a right
to life won’t be the reason for this to life? What would your answer imply
moral protection. For example, one about the morality of abortion and the
reason to extend special moral protec- killing of non-human animals?
tion to the mentally disabled is that

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we tend to believe that we should give special moral concern to those human beings
who are especially disadvantaged through no fault of their own. Also, another rea-
son to protect the severely mentally disabled from harm is that other humans tend
to care a great deal about them. Thus, even if I concede that the severely mentally
challenged don’t have a full moral right to life, I believe that they should receive
strong moral protections because of a combination of their rights and other morally
important factors.
Patrick: Okay, fair enough. And I suppose that you’d want to say something similar
regarding infants. Infants are not rational, and so they are not fully sentient. So, in
your view, they do not have a full right to life. But still, they deserve strong moral
protection, for the reasons you just mentioned. Is that your view?
Doran: Yes, the remarks I just made in connection with the severely mentally disabled
hold also in the case of infants. In such cases, the beings in question lack a full right
to life, but they may be granted strong and perhaps full moral protection.
Warren: I agree with your policy, but for other theoretical reasons. Using my social con-
tract theory, I would support your view requiring strong protection of the mentally
challenged by pointing to the sympathy metarule. If we could steel ourselves to
killing the severely mentally challenged, we would not have sufficient sympathy to
make us follow our rules against killing of innocents. People with ordinary human
sympathies abhor such killing. Rules permitting such killing would therefore be
contrary to the sympathy metarule.
By the same token, I would support
your approach of gradually increasing THEORY
the rights of the fetus as it develops, The sympathy metarule governing
because human sympathy for the fe- choices of rules in the original position
tus gradually increases as it gains says: Choose rules that people with or-
more and more similarities of various dinary human sympathies could follow.
kinds to a newborn.19

The Objection That Rational Non-Humans Will Have Stronger Rights to Life Than Will
Non-Rational Humans
Patrick: Though I suspect I know how you will reply, there’s one last objection to your
view that is worth considering. The objection is that your view implies that a mature
adult chimpanzee, for instance, will have a greater right to life than an infant. This
will strike many as highly counterintuitive.
Doran: Well, if we assume that a chimp is fully sentient, but a newborn infant is not,
then, in my view, a chimp does have a greater right to life than a newborn human.
And I admit that this is not likely to accord with people’s intuitions, but this is not
necessarily a problem with my view.
Patrick: Why not? Most people would hold that an infant has a much stronger right to
life than a chimpanzee.

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Doran: Even if the chimp has a greater right to life than the infant, there can be equally
powerful (perhaps greater) reasons for not treating the human infant worse than the
chimp. After all, since infants are sentient, they do have some significant rights in
my view. Moreover, there are often very strong reasons against mistreating infants,
based on the harmful effects this will have on other humans.
Patrick: That seems right. But if we ignore the effect that killing has on others, then, in
your view, it is morally worse to kill an adult chimpanzee than it is to kill an infant.
Killing the infant is made worse than killing the chimpanzee, in your view, only
by the fact that more humans will be harmed by killing the infant. But I’m not sure
this is the correct explanation for why killing an infant is morally worse than killing
a chimpanzee.
Doran: I agree that on this point, my view parts company with most people’s intuitions.
But I am not sure that I should be too concerned about that. For, first, I think that
any view of what gives someone rights is likely to run afoul of some of our intu-
itions, and second, I think that our moral intuitions when applied to other species
are likely to be particularly biased, and hence unreliable.
I believe that the view of rights that I have defended is motivated by a plausible
rationale, and that it is able to explain many of our deepest convictions about who
and what has a right to life. Given this, I have more confidence in my analysis of the
right to life than I do in our intuitions when it comes to the strength of the rights
of newborn humans versus mature non-human primates. I repeat that in my view,
it is, in itself, a morally serious matter
to kill a newborn infant, for such an THEORY
infant has a right to life. That my view Note here that Doran is arguing that his
implies that (in very isolated cases) it views on the nature of moral rights and
is an even more serious moral matter his moral judgments about particular
to kill a non-human of greater psy- cases are in reflective equilibrium. For
chological abilities is an implication more on this concept, see chapter 1.
that I can live with.

Reductio ad Vegetarianism?
Patrick: Another concern many people have—though I’m not among them—is that
your view, Doran, seems to imply that most of us are morally required to become
vegetarians. I think the virtue ethics perspective suggests that most of us ought to
be vegetarian, too. I don’t see this as a problem with my view, and neither should
you, I think.
Warren: I don’t consider this a powerful objection either, but meat lovers will want to
know how you respond.
Doran: Right. I think it is interesting that my rather permissive position on abortion
turns out to be rather strict when it comes to the killing of non-human animals.
In my view, non-human animals that are sentient have a right to life, and therefore

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 196   DEBATING HEALTH CARE ETHICS

ought not to be killed or harmed without just cause. Now, insofar as most of us do
not have a compelling reason for eating meat—survival, health, and so on—and
since most rearing and slaughtering of animals for food goes against the animals’
most compelling interests, it follows that it is morally wrong for most of us to eat
meat. There will be exceptions, of course, based on health or necessity, though I
expect that for most people reading this book these exceptions will not apply, and a
vegetarian diet would be morally required.
Warren: Although I agree with this implication of your view, many will consider
it a reduction of the view to absurdity. I guess you just have to bite the bullet
and accept what we believe to be the right answer in spite of the views of many
meat eaters.
Patrick: I agree with you two that most of us ought to be vegetarian. But I don’t base
this on animals’ having a right to life. I’m not sure they have any such right. But it
is clear that animals have a serious interest in avoiding suffering. It’s also true that
most of us don’t need to eat meat; we eat meat because it is convenient and we learn
to enjoy its taste. The bottom line for
me is that it is terribly cruel, callous, UP FOR DISCUSSION
insensitive, and selfish to inflict tre- How might Doran’s and Patrick’s
mendous suffering on animals simply views diverge when it comes to such
for the fleeting pleasure one derives questions as abortion on demand for
from eating them. first-trimester pregnancies? In the final
Doran: It must be admitted, though, that analysis, do you think Marissa and Don’s
the question of what we owe to non- decision to abort is morally permissible?
human animals would be a debate in its Why or why not?
own right. So let’s save a careful exami-
nation of this issue for another time.

SUMMARY

Here is a summary of the main questions, concepts, and arguments covered in this chapter:

• Conservative arguments against the general moral permissibility of abortion

are critically examined and rejected.
• Patrick provides a virtue-based argument for the permissibility of Marissa’s
abortion, while Doran and Warren state their objections.
• Doran considers various criteria for having a right to life and argues that
Marissa’s abortion was permissible. Warren largely agrees with Doran’s views,
although for very different reasons.
• Ultimately, Patrick, Doran, and Warren agree, for different moral reasons, on al-
lowing abortion in the first trimester but requiring ever stronger justification as the
pregnancy continues. Both Doran and Warren employ rights-based arguments.

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 Chapter 6  Abortion  197

• Patrick, in contrast, objects to general rules concerning abortion and insists in-
stead on a principle of particularity: each case must be judged on its own merits
for virtue. Nonetheless, a fetus’s claim to life will generally increase as it devel-
ops and as the mother and father bond with it. So, Patrick agrees that late-term
abortions will usually require stronger justification than early-term abortions.

REVIEW QUESTIONS

1. Why does Noonan believe that the fetus is a human being from the moment of conception?
2. Why do Doran, Warren, and Patrick reject premise (1) in Noonan’s argument?
3. What is the distinction between being a human being in the biological sense and being
a person?
4. Why does Marquis believe that abortion is (typically) wrong?
5. Doran objects that Marquis’s argument is unsound, because it commits the fallacy of
equivocation. What is this objection?
6. What is Patrick’s argument for the view that Marissa’s abortion is morally permissible?
7. Why do Doran and Warren object to Patrick’s argument?
8. What is Doran’s argument for the claim that Marissa’s abortion is morally permissible?
9. What, according to Doran, is required for a being to possess a full right to life?

NOTES

1. Morgentaler, Smolling and Scott v. The Queen [1988] 1 SCR 30.

2. Susan J. Lee, Henry J. Peter Ralston, Eleanor A. Drey, John Colin Partridge, and Mark A. Rosen,
“Fetal Pain: A Systematic Multidisciplinary Review of the Evidence,” Journal of the American
Medical Association 294, no. 8 (2005): 947–54.
3. John T. Noonan, Jr., “An Almost Absolute Value in History,” in The Morality of Abortion: Legal and
Historical Perspectives, ed. John T. Noonan, Jr. (Cambridge, MA: Harvard University Press, 1970).
4. Actually, his view is unclear on this point: He grants the permissibility of abortion when the fetus
cannot survive and the mother’s life is threatened; however, he is less clear about whether
abortion of a viable fetus would be morally permissible even to save the mother’s life.
5. Don Marquis, “Why Abortion Is Immoral,” Journal of Philosophy 86, no. 4 (1989): 183–202.
6. In his analysis, Marquis excludes from consideration non-standard cases of pregnancy, such as
pregnancy due to rape, pregnancy that endangers the woman’s life, or cases of fetal abnormality.
He simply takes no position on these non-standard cases.
7. Notice the objection raised here would apply equally to artificial and natural forms of birth control.
Even the rhythm method, favoured by the Catholic Church, would be seriously immoral, for, if
successful, it too prevents an individual from having a future like ours.
8. For more on this point, see, for example, Margaret Olivia Little, “Abortion, Intimacy, and the Duty
to Gestate,” Ethical Theory and Moral Practice 2, no. 3 (1999): 295–312.

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 198   DEBATING HEALTH CARE ETHICS

9. This point is made by Walter Sinnott-Armstrong, “You Can’t Lose What You Ain’t Never Had,”
Philosophical Studies 96, no. 1 (1999): 59–72.
10. More on Warren’s view can be found in his book, Persons: What Philosophers Say About You, 2nd
ed. (Waterloo, ON: Wilfrid Laurier University Press, 2003).
11. Readers interested in the application of virtue theory to the question of abortion should see
Rosalind Hursthouse’s “Virtue Theory and Abortion,” Philosophy and Public Affairs 20, no. 3
(1991): 223–46. Patrick’s argument owes much to Hursthouse’s discussion of this issue.
12. See chapter 3 for the details of Patrick’s virtue theory.
13. Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1, no. 1 (1971):
47–66.
14. David Boonin-Vail, “A Defense of ‘A Defense of Abortion’: On the Responsibility Objection to
Thomson’s Argument,” Ethics 107, no. 2 (1997): 286–313.
15. Hursthouse, “Virtue Theory and Abortion.”
16. The arguments advanced by Doran on the morality of abortion are closely based on L. Wayne
Sumner, “A Third Way,” in The Problem of Abortion, 2nd ed., ed. Joel Feinberg (Belmont, CA:
Wadsworth Publishing, 1984), 71–93.
17. Many ethical theories see a necessary connection between the possession of moral rights
and being rational. For example, Kant argues that all and only rational beings have dignity and
are proper objects of moral respect, while social contract theorists see morality as a kind of
agreement that holds between rational agents. When it comes to the abortion issue, Mary Anne
Warren appears to endorse the view that full moral rights require the possession of rationality.
See her “On the Moral and Legal Status of Abortion,” reprinted in Biomedical Ethics, 4th ed., ed.
Thomas A. Mappes and David DeGrazia (New York: McGraw-Hill, 1996), 434–40.
18. Paul Taylor, “The Ethics of Respect for Nature,” Environmental Ethics 3, no. 3 (1981): 197–218.
19. Jane English, “Abortion and the Concept of a Person,” Canadian Journal of Philosophy 5, no. 2
(October 1970): 233–43.

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 7 C-SECTION BY CHOICE

INTRODUCTION

In this chapter, we examine moral issues raised by the practice of Caesarean section by
choice (CSBC). Caesarean section, or C-section, is the delivery of a fetus by surgical
incision through the abdominal wall and uterus. While this method of delivery is com-
monly done for medical reasons, CSBC is C-section that is not medically indicated but
rather chosen by the mother. CSBC has become popular of late among celebrities: in
recent years, Christina Aguilera, Victoria
Beckham, Britney Spears, and many other BACKGROUND
actors and musicians have chosen to have Legend has it that the C-section is so
C-sections for non-medical reasons. The named because Julius Caesar was born
phenomenon is not just limited to stars, that way.
however, as statistics show more and more
women opting for CSBC.
Our drama focuses on Wendy, a woman who elects to have a C-section for a variety of
non-medical reasons; these include convenience, preservation of her figure, and avoidance
of pain. Wendy’s doctor, Dr. Tan, refuses to provide her with a CSBC, because she believes
the risks outweigh the benefits. Wendy then turns to a different physician, Dr. Tabor, who
agrees to provide a CSBC. Although Dr. Tabor acknowledges that CSBC carries risks, she
judges that it is very important to respect her patients’ health care choices.
In the debate below, we focus on the question of whether Wendy’s having a CSBC
is morally permissible. The more general issue is whether it is morally permissible for
any woman to have a CSBC. This debate pits the mother’s right to autonomy against
her duties to prevent harm to the baby,
to herself, and to others. We also briefly DEFINITION
consider the question of whether a policy Autonomy is used to refer generally to
that permits CSBC is justifiable in a pub- self-determination. Here, a right to au-
licly funded system of health care. These tonomy means the right of the patient
matters are complicated by disagreement to choose her course of care without un-
among experts about the risks and benefits due interference.
of CSBC.

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Doran argues that in the absence of clear and convincing evidence that CSBC
poses significant harms to others, we ought to respect Wendy’s autonomy. Since we
are lacking such evidence, Doran therefore contends that Wendy’s having a CSBC is
morally permissible. Patrick and Warren agree that, in general, we ought to respect
individual autonomy. But they argue that even if the evidence is not conclusive, it
does indicate that CSBC may involve risks of very serious harms to the newborn child
and to others, and that the duty to avoid unnecessary risks trumps Wendy’s right to
autonomy. The debate focuses on harms to the baby and the mother, and touches upon
harms to others. Doran is not convinced that these risks are great enough to make
Wendy’s choice wrong. Patrick and Warren, in contrast, think that while some cases
of CSBC are morally permissible, Wendy’s CSBC is wrong. Patrick and Warren agree
on much in this debate; however, they disagree on some of the likely harms of CSBC.
In general, Warren thinks the harms of CSBC are likely to be greater and more varied
than does Patrick.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Define autonomy and discuss the limits on the right to autonomy

• Explain why the ethical debate over CSBC is complicated by the fact that
experts disagree about the risks and benefits of CSBC
• State Doran’s autonomy-based argument for the permissibility of CSBC
• Understand Warren’s good reason requirement, and what it implies
for CSBC
• Outline Patrick’s reasons for thinking that CSBC is wrong in Wendy’s
case, although not in all cases
• Explain why Doran rejects Warren’s and Patrick’s arguments that CSBC is
wrong in Wendy’s case
• Recognize how a general policy that permits CSBC may be wrong, even if
Wendy’s CSBC is not wrong

DRAMA
This case is based on various true stories, although names, places, and some uncontrover-
sial elements of the case have been changed to preserve anonymity and confidentiality.
Discussions of this and similar cases with health care professionals have also informed
this fictional case. The drama merely raises issues. The philosophical arguments are to
be found in the debate following the drama.

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 Chapter 7  C-Section by Choice  201

CHARACTERS

Wendy: an expectant mother and Dr. Tabor: another family-practice

fitness trainer physician Wendy visits
Dr. Tan: Wendy’s family physician Helena: Wendy’s friend

Scene 1

Wendy consults her family physician to ask for a C-section for non-medical reasons.

Wendy: Dr. Tan, if it’s good enough for Britney Spears and half of Hollywood, it’s good
enough for me. I want a C-section. Let’s set one up. All joking aside though, Dr.
Tan, I have considered this carefully, and C-section is what I really want.
Dr. Tan: But Wendy, there is no medical reason at all for you to have a C-section. We
don’t just do them on request.
Wendy: I’m not taking “No” for an answer, Dr. Tan. My body is my main business ad-
vertising. I can’t afford to have less than the best, and I need predictability. I’ve got
to schedule this, not wait for it to happen. I’m in business for myself.
Dr. Tan: What makes you think that a C-section is better?
Wendy: In my business, body aesthetics are crucial. My body is my main advertisement
for my services to women. Clearly, if all the stars do it and look so good shortly after
giving birth, it’s the way to go. I know a number of trainers like me who have gone
this route with excellent results.
Dr. Tan: There is no aesthetic advantage to this procedure, in spite of what you have
heard, Wendy, and it is much harder on your body. The Hollywood crowd gets on
lots of harmful bandwagons.
Wendy: Well, it just makes sense in other ways as well. Why should I go through the
pain of labour and the uncertainty of scheduling when I can plan the time and day
and avoid the pain? I’m a businesswoman. I like predictability.
Dr. Tan: Pain? A C-section is abdominal surgery. This is serious stuff. Recovering from
a cut like that is not straightforward at all. The popularity of C-section has too
much to do with fashion.
Wendy: Look, I promised my boyfriend I’d do this. Everybody knows it’s better for sex
if you don’t stretch yourself out of shape.
Dr. Tan: That’s a myth. Sexual function is not hampered by natural birth or improved
by C-section.
Wendy: Yeah, tell Harry that.
Dr. Tan: Would you be willing to undergo dangerous surgery and avoid a wonderful
natural process just because Harry is misinformed?
Wendy: Wonderful? What’s wonderful about groaning in agony for hours?

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 202   DEBATING HEALTH CARE ETHICS

Dr. Tan: If only you could know what it is really like. Most women who give birth natu-
rally have a deep and significant experience—life-changing, in some cases.
Wendy: It was for my mom. She couldn’t
walk past a washroom for the rest of DEFINITION
her life after having us kids. Then A prolapse is a falling or sinking down
there was her prolapse. of part of the body. Here it refers to a
Dr. Tan: It doesn’t have to be that way. downward displacement of the uterus.
You can avoid stress incontinence
and pelvic prolapse. In fact, there are
exercises that are effective for lowering the risk of these problems. You, as a fitness
trainer, should appreciate that. It might even form part of your business to help
others do the training.
Wendy: I’m into achieving excellent health, not just prevention of illness. Vaginal deliv-
ery is full of dangers that can be avoided.
Dr. Tan: Wendy, you mustn’t look at pregnancy as an illness. Many of my patients say
that childbirth is one of the best things that ever happened to them. Talk to women
who have experienced immense joy at giving birth naturally.
Wendy: Sorry, Dr. Tan. It’s not like I really want to dismiss natural birth. Even if it is
best for me, though, it may not be for my baby. Natural birth puts a baby through a
lot more stress than a C-section. You know what’s going to happen in a C-section,
not like when things can go wrong and you use forceps and all that. I mean—it’s
so much safer for my baby. My friend
Anastasia nearly lost her baby to as- DEFINITION
phyxia after a long and difficult la- Asphyxia is a deadly condition caused
bour. With C-section, you don’t have by oxygen deprivation.
to worry about that sort of thing.
Dr. Tan: The evidence is, on balance,
against that view, Wendy. C-section may be a lifesaver when there is serious fetal
distress, but in a healthy pregnancy it is not safer than natural childbirth. In fact,
children born by C-section are more likely to end up in the special-care nursery
than children born naturally. Respiratory problems at birth and asthma in later life
are greater risks with C-section. C-section babies are also less likely to be breastfed.
Natural birth is better for your baby.
Wendy: Look, there are just too many pressures on me to do this. I want a C-section.
“My body, my choice,” right? If I can decide whether or not to procreate, I can
decide how to give birth. My girlfriend from Brazil says everybody there gets a C-
section if they can afford it. Please just set this up for me, Dr. Tan. Please.
Dr. Tan: I need a medical reason to do a C-section.
Wendy: Psychological stress counts as a reason for abortion, doesn’t it? Why not say that
is the reason? Let’s just get this done.

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 Chapter 7  C-Section by Choice  203

Dr. Tan: I’m sorry, Wendy. You’ve been my patient for a long time, and I want to do my
best for you. In this case, that amounts to giving you all the information you need
to see what the best choice is for you and your baby. I can’t give you what you want
or are being pressured to request. I can give you lots of information that I think will
persuade you that natural birth is the best course for you and your baby. Take these
pamphlets home and please go over them carefully. I’ll answer all your questions.
Wendy: Okay, thanks.

Scene 2

Wendy is at the office of a different physician, Dr. Tabor, to see if she will give her a C-section.

Wendy: Dr. Tabor, I really want a C-section.

Dr. Tabor: Well, I appreciate the reasons you have given. Physicians may very well
disagree on this difficult issue, so there is nothing untoward at all about another
physician refusing you even if I do not.
Wendy: So you’re going to give me a C-section?
Dr. Tabor: Yes, if you still want one after you are fully informed. I accept a very strong
right to patient autonomy.
Wendy: Dr. Tabor, I am informed to death. I read all this stuff my other doctor gave me
and heard other opinions that favour C-section much more.
Dr. Tabor: Well, you must realize that physicians have been at odds about how to in-
terpret the data you have been considering. Like Dr. Tan, I think the safest course
is to try for vaginal delivery.
Wendy: But are you still going to let me have a C-section?
Dr. Tabor: While I favour natural birth in your case, I will accept your decision for C-
section or natural birth once I am sure you are aware of the basic facts. I believe it’s
up to you once you know for sure what you are getting into. Let’s go over the risks
again, shall we?
Wendy: Good. Okay, let’s.

Scene 3

Wendy discusses her decision with her friend, Helena.

Wendy: Helena, you’re going to be proud of me. I really took control. My doctor didn’t
want to give me a C-section on demand, so I found somebody else who will do it.
Helena: Well, of course I’m glad you’re sticking up for what you want. You know I’ll
always support you, so please don’t take this the wrong way, Wendy, but why do you
want a C-section?

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 204   DEBATING HEALTH CARE ETHICS

Wendy: Oh, lots of reasons. The thing is that I know the risks and decided to take them.
It’s my body, my choice.
Helena: I certainly agree with the general idea, of course, but I worry that our choices
are being constructed by others.
Wendy: What?
Helena: Well, I choose things sometimes and then wonder if the choice really came
from me.
Wendy: Like what?
Helena: Like getting my tubes tied. I had all sorts of good reasons, but when it was done
I couldn’t help thinking they were other people’s reasons, like Jim’s and my doctor’s,
but not my reasons.
Wendy: Oh, Helena. I’m sorry. I didn’t know how you felt.
Helena: But this isn’t about me. It’s about you. I think that we women are often at the
receiving end of huge social pressures that make us choose things. The way we
dress, the way we make ourselves up, the way we live seem to me sometimes to be
chosen for us by others. Some of our freedom is an illusion.
Wendy: Honestly, Helena, I don’t think this is like that. I want a C-section for myself.
Okay, so tell me. Who do you think would be making me choose this, and how?
Helena: Sorry, Wendy, but you need to know that C-section on demand is a political
issue. It’s about physicians taking control of birth, taking it away from women.
Wendy: Hold it, Helena. How do you figure that? If we are doing the demanding, how
are they in control?
Helena: Women weren’t behind the C-section on demand thing, physicians were. There
was no massive uprising of women demanding the procedure. Even now, most
women go for vaginal birth if they’ve got the full story. Physicians want to talk you
into a C-section when they want it. It reduces their medico-legal risk. If something
goes wrong with the birth they can say, “I did everything I could,” while with
vaginal birth they can always be asked, “Why didn’t you do a C-section?” The vast
majority of births are good. The bad ones are lawsuits. C-section also serves physi-
cians’ convenience. Why hang around for eight hours or get woken in the middle of
the night to attend labour when you can schedule it to fit your day? The fact is that
it’s major abdominal surgery for you instead of a joyful natural process.
Wendy: Do you know how hard I had to fight to get this? Nobody is telling me to do
it, quite the opposite.
Helena: Wendy, I’m on your side. Think about it, though. Lately it’s been made glamor-
ous since all of these stars are having it done. That’s how they sell us everything.
Wendy: Don’t worry. That has no real effect on me.
Helena: Maybe not, but still, Wendy, I just hope you know whether you really want a
C-section. Ask yourself about the pressures from the media, from your boyfriend,
and from other women who have been sold this bill of goods and want to justify
themselves. There’s a powerful social system constructing women’s choices. Giving

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 Chapter 7  C-Section by Choice  205

birth was a hugely empowering achievement for me. C-section is just surgery em-
powering surgeons.
Wendy: No, it just gives me another option that I can choose or not. I know you want
to help me, Helena, but you’re mistaken. Nobody is manipulating me. I know what
I’m doing.

DEBATE

Clarifying the Case and Identifying Relevant Facts

Patrick: Right off the top we need to be clear about what exactly counts as CSBC. I
know some planned C-sections are considered elective even though they are re-
quired for good medical reasons.
Warren: That’s right, some women may DEFINITION
have medical conditions that make What we are calling CSBC is often re-
C-section a reasonable option, and ferred to as “Caesarean Delivery on
they may elect in advance to go that Maternal Request” (or CDMR).
route. But CSBC is different. It is
defined as “Caesarean delivery in the
absence of medical indications.”1 The choice is that of the mother.
Patrick: Does this happen much?
Warren: CSBC is more and more com- TECHNIQUE
mon, although exact figures are hard Note that when examining an issue, it
to come by. What is known is that the is generally good practice to begin by
percentage of C-sections, in general, defining it.
has increased over time, and that rates
of C-sections vary a lot both between
countries and within parts of countries. In Canada, for instance, in 2016, 28 per-
cent of births were C-sections, with British Columbia having the highest rates at
35 percent. The percentages of C-sections in other developed countries range from
15.6 percent in the Netherlands, to 25 percent in England, to 32.9 percent in the
United States, to 36 percent in South Korea, to more than 38 percent in Italy.2 It
is unclear what percentage of C-sections are CSBCs, but the American College of
Obstetricians and Gynecologists (ACOG) estimates that 2.5 percent of all births in
the United States are CSBC.3 I don’t know how reliable the 2.5 percent number is for
the United States, and, just as with C-sections generally, the rates of CSBC probably
vary a lot from place to place. But it stands to reason that the rates of CSBC will be
lower in places where there are policies and social norms against performing them,
and where C-sections are in general not encouraged, than in locations where CSBC
is permitted and C-sections are more the norm.

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 206   DEBATING HEALTH CARE ETHICS

Doran: The 2.5 percent figure would add up to a large number. There are approximately
4 million births per year in the United States, so 2.5 percent would mean around
100,000 CSBCs per year. Another report out of the United States says that 25 per-
cent of all C-sections were for low-risk situations, so that would be over 300,000
births per year in the United States, though some of these might have been for
medical reasons. So, it seems safe to say the numbers are not small.4
Patrick: Well, I suppose this would be of concern only if CSBC is more harmful than
vaginal delivery. Both Dr. Tan and Dr. Tabor seem to think it is. Is their view
widely shared?
Warren: Yes, although there are no conclusive studies, the consensus among medical experts
is that vaginal delivery is safer for mother and baby than CSBC.5 The International
Federation of Gynecology and Obstetrics (FIGO) states, “At present there is no hard
evidence on the relative risks and benefits of term Caesarean delivery for non-medical
reasons, as compared with vaginal delivery. However, available evidence suggests that
normal vaginal delivery is safer in the short and long term for both mother and child.”6
Similarly, the ACOG concludes that vaginal delivery is preferred to C-section for non-
medical reasons. They write, “Given the balance of risks and benefits associated with
cesarean delivery on maternal request, the Committee on Obstetric Practice offers the
following recommendations[:]… In the absence of maternal or fetal indications for ce-
sarean delivery, a plan for vaginal delivery is safe and appropriate and should be rec-
ommended.”7 And a 2013 study in Sweden found that outcomes were worse for both
mother and child with CSBC versus those who had a planned vaginal delivery.8
Doran: I agree with Warren that the consensus view is that vaginal delivery is generally
safer than CSBC for both mother and child, but there are physicians that are not so
sure. In part, this is because there is a lack of strong studies comparing vaginal de-
livery to CSBC.9 Most analyses of the data compare vaginal delivery to C-sections
in general, not just to CSBCs. But this might make CSBC look riskier than it in
fact is, since higher-risk pregnancies and emergency C-sections can be expected
to have more problems than a planned C-section for non-medical reasons. Other
reasons that make it difficult to compare the risks of CSBC and vaginal delivery are
that the risks of each procedure are so different. For instance, in a vaginal delivery
there are higher risks of maternal bleeding and pelvic floor problems, whereas in
C-section there is risk of infection from abdominal surgery and from longer hos-
pital stays, plus it increases the likelihood of hysterectomy; and for infants there
is greater risk of umbilical cord problems and infection from premature membrane
rupture through vaginal delivery, but babies born via CSBC are at risk of lacera-
tion, have higher rates of respiratory problems, and, it appears, obesity later in life.10
Babies born via C-section also lack contact with what appear to be beneficial micro-
organisms in the vaginal canal, although there is a small study generating the hy-
pothesis that this loss can be overcome by swabbing the newborn in vaginal fluid.11
And this is just a partial list of the different risks of these two forms of giving birth.

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 Chapter 7  C-Section by Choice  207

Patrick: So, it’s fair to say that this is very complicated. Neither mode of delivery is
risk-free, and the sorts of risks faced by each mode of delivery are very different.
Things are further complicated by the fact that a significant percentage of planned
vaginal deliveries end up being emergency C-sections, where presumably the risks
of emergency C-sections are greater than planned CSBCs. I read that while up to
95 percent of women in the United Kingdom want to have a vaginal birth in their
first pregnancy, only around 75 percent do. Some 21 percent have an emergency
Caesarean section during labour, which is not as safe as a planned one.12
Doran: Yes. Some medical societies don’t take a stance on which is safer, vaginal deliv-
ery or CSBC, though there is much stronger agreement that CSBC is not recom-
mended if the mother wants to have more than one pregnancy. However, when all
is said and done, I agree with Warren that most experts think vaginal delivery is the
safer path than a CSBC for most women. And presumably, this would be especially
true in Wendy’s case. Wendy, as a personal trainer, could be expected to have a very
successful vaginal delivery, whereas a CSBC is a major surgery that would involve a
longer hospital stay, a longer recovery period, and greater risk of infection.

BACKGROUND
“Pivotal in the decision-analysis for many women should be the intended future fam-
ily size. With rising caesarean section rates, placenta accreta becomes increasingly
common.… Placenta accreta and percreta may be associated with significant maternal
mortality and morbidity including massive haemorrhage requiring emergency hysterec-
tomy.” (emphasis added)

Source: Royal Australian and New Zealand College of Obstetricians and Gynaecologists,
Caesarean Delivery on Maternal Request (CDMR) (Melbourne: RANZCOG, 2013), 5, https://
[Link]/RANZCOG_SITE/media/RANZCOG-MEDIA/Women%27s%20Health/
Statement%20and%20guidelines/Clinical-Obstetrics/Caesarean-Delivery-on-Maternal-Request-
(C-Obs-39)-[Link]?ext=.pdf.

There is also evidence that there are greater difficulties in conceiving and higher inci-
dences of miscarriage and stillbirth in subsequent pregnancies after a C-section.

TECHNIQUE
Sound ethical reasoning requires not only a careful use of moral principles but also
sensitivity to relevant empirical matters. Deciding whether CSBC is morally permissible
will involve consideration of how safe or harmful it is thought to be. This turns out to be
a question that experts do not answer with one voice. We must, therefore, ask what is
morally required under conditions of uncertainty.

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 208   DEBATING HEALTH CARE ETHICS

BACKGROUND
A large study in China of women giving birth for the first time compared those who tried
vaginal delivery to women who underwent CDMR (Caesarean delivery at maternal re-
quest). It found that those who had a CDMR had “similar short-term maternal outcomes
with some neonatal benefit” (Liu et al., 2015, emphasis added). However, this is just one
study, and it compared only the short-term risks of these modes of delivery. And a 2013
Swedish study observed the opposite outcomes (see note 8).

Source: Xiaohua Liu, Mark B. Landon, Weiwei Cheng, and Yan Chen, “Cesarean Delivery on
Maternal Request in China: What Are the Risks and Benefits?” American Journal of Obstetrics
and Gynecology 212, no. 6 (2015): 817e1–9, [Link]

Patrick: Okay, so the prevailing view TECHNIQUE

among medical experts seems to be
Notice how the discussion proceeds in
that vaginal delivery is generally safer
a logical manner. First, we define CSBC;
than CSBC for most young, healthy
then we identify what are believed to be
women in developed countries. Is
the risks of CSBC compared to vaginal
there a similar consensus on whether
delivery; then we ask whether medi-
CSBC is unethical?
cal societies view CSBC as an ethically
Warren: No, not really. International orga-
acceptable option. Once these back-
nizations like FIGO say, “At present,
ground conditions are clarified, we will
because hard evidence of net benefit
be in a better position to determine
does not exist, performing Caesarean
whether CSBC is morally permissible
section for non-medical reasons is eth-
and what the medical communities’
ically not justified.”13 And the Society
policies ought to be.
of Obstetricians and Gynaecologists
of Canada and organizations repre-
senting other Canadian maternity health care providers have published a joint policy
statement on normal childbirth that states, “Caesarean section should be reserved for
pregnancies in which there is a threat to the health of the mother and/or baby.”14 In
Canada, where vaginal birth is so safe for young, healthy women, changing to surgery
might look much more dangerous than in some other countries.
But professional associations in the United States, United Kingdom, Australia,
and New Zealand don’t rule out CSBC as unethical.15 As a case in point, here are
the current guidelines for CSBC in the United Kingdom by the National Institute
for Health and Care Excellence (NICE):

1.2.9 Maternal request for CS

[Link] When a woman requests a CS explore, discuss and record the specific rea-
sons for the request. [new 2011]

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 Chapter 7  C-Section by Choice  209

[Link] If a woman requests a CS when there is no other indication, discuss the

overall risks and benefits of CS compared with vaginal birth and record that this
discussion has taken place.… Include a discussion with other members of the ob-
stetric team (including the obstetrician, midwife and anaesthetist) if necessary to
explore the reasons for the request, and ensure the woman has accurate informa-
tion. [new 2011]
[Link] When a woman requests a CS because she has anxiety about childbirth, of-
fer referral to a healthcare professional with expertise in providing perinatal mental
health support to help her address her anxiety in a supportive manner. [new 2011]
[Link] Ensure the healthcare professional providing perinatal mental health sup-
port has access to the planned place of birth during the antenatal period in order
to provide care. [new 2011]
[Link] For women requesting a CS, if after discussion and offer of support (includ-
ing perinatal mental health support for women with anxiety about childbirth), a
vaginal birth is still not an acceptable option, offer a planned CS. [new 2011]
[Link] An obstetrician unwilling to perform a CS should refer the woman to an
obstetrician who will carry out the CS. [new 2011]16

Patrick: It appears that what’s going on here is that some professional organizations
are adopting a sort of precautionary principle that says not to introduce surgeries
without clear medical benefit, while other organizations are favouring a principle
that says when the medical evidence is not clear, inform the patient of the believed
risks of each form of delivery and then respect the patient’s choice.
Warren: I think those may be the motivations. Take Wendy’s case: there are all sorts of
reasons to believe that a vaginal delivery would be safe for her and her baby, and it
just seems reckless to do a surgery that introduces possibly catastrophic harms when
there is no medical reason to do so. In contrast, defenders of CSBC will claim that
because there are risks in both modes of delivery, we should inform the patient that
we do not have real knowledge of the comparative risks, tell her what long- and
short-term risks we do know of in each mode of delivery, and let her decide in light
of that information and her values.
Patrick: I have another question. So far, we have been considering the relative risks to
mother and baby of vaginal delivery versus CSBC, but something else to consider
are the economic costs of each form of delivery. What do we know, for instance,
about the costs of CSBC in comparison to vaginal delivery?
Warren: Here there is widespread agreement that vaginal delivery is less expensive
than CSBC, as hospital stays are shorter and there is usually no need to use an
operating room.
Doran: But, again, things may be more complicated than they first appear. Planned
vaginal deliveries sometimes end up as emergency C-sections. This presumably is a
lot more expensive than if a C-section was scheduled in the first place. Nevertheless,

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 210   DEBATING HEALTH CARE ETHICS

I do agree with Warren that CSBC is likely more expensive than planned vaginal
delivery. According to a report by the BBC, “the cost of a planned Caesarean sec-
tion was estimated at £2,369, with a planned vaginal birth costing £1,665.”17
Patrick: Okay, to summarize:

1. CSBC is a C-section for non-medical reasons, performed at the request of

the mother.
2. The prevailing view among experts is that CSBC in a case like Wendy’s is prob-
ably less safe than vaginal delivery for both her and her baby, and that CSBC is
probably more expensive than a planned vaginal delivery.
3. Medical associations disagree about the ethics of performing CSBC. Some
medical associations say they are unethical to perform, while others say that
they may be ethically performed, under certain conditions.

With all of this in mind, what ethical question should we debate?

MORAL ISSUES RAISED BY THE CASE

Doran: The drama certainly raises a lot of thorny moral problems related to CSBC.
There are questions about the ethics of Wendy’s particular decision to choose a C-
section; there are questions of professional ethics, such as whether it is unethical
for a health care professional to grant Wendy’s request for CSBC; further still, one
might wonder whether the medical system should provide (and pay for) Wendy’s
CSBC given that it is not medically indicated and health care resources are scarce.
And, of course, beyond the specifics of Wendy’s case, one should consider
whether CSBC is, in general, a morally permissible choice for women to make, for
health care professionals to accede to, and for the health care system to provide.
Warren: Further to this last point, there are concerns about the ills attendant on CSBC
as a social policy—a policy that might harm women as a group.
Patrick: Well, we obviously cannot consider all of these questions, so let’s proceed sys-
tematically and focus on the more central questions. I propose that we begin by consid-
ering the moral permissibility of Wendy’s decision to opt for CSBC, and the permissibility
of CSBC more generally. Later, we can turn to other moral questions if time permits.
Warren: Okay, let’s get started. Doran, why don’t you begin by stating your view about
the moral permissibility of Wendy’s having a CSBC?

Stating Our Positions

Doran: This is a tough case, and I am not sure what to think. Perhaps the easiest thing
to argue would be that Wendy’s decision to go for CSBC is wrong, given that the

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 Chapter 7  C-Section by Choice  211

THEORY
Feminist author Carol Gilligan might find the whole discussion here misguided. Instead
of trying to arrive “at an objectively fair or just resolution to which all rational persons
could agree, the responsibility conception focuses instead on the limitations of any par-
ticular resolution and describes the conflicts that remain” (21–22). Moral judgments will
be more contextual and dependent on relationships, according to an ethics of care. A
care-based approach would be reluctant to consider the morality of CSBC in general.
Instead, each individual case of CSBC needs to be considered on its own terms, and
solutions need to be arrived at by bringing together the interested parties.
So-called “radical” feminists might oppose CSBC by asking who the practice serves: is
it catering to the preferences of male partners or to the schedules of obstetricians who
can then control the timing of births? Some so-called “liberal” feminists might support
CSBC on the grounds that it honours the woman’s choice, while others may question the
autonomy of a woman’s choice for CSBC.

Source: Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development
(Cambridge, MA: Harvard University Press, 2003), 6–22.

risks to self and baby appear to be greater with C-section than vaginal delivery, and
given that the reasons Wendy has for opting for CSBC seem less than compelling.
But I want to try to argue for a different conclusion. Thus, my tentative conclusion
will be that while Wendy’s is not the best decision, it is not morally wrong, either.
From my deontological pluralist view, respect for individual liberty, and the absence
of clear, conclusive evidence of serious enough harm to others, incline me to view
her choice as morally permissible.
Patrick: I agree with you, Doran, that we ought, in general, to respect autonomy.
And this entails that we should often permit people to make choices and act in
ways that are not best, provided that the risk of harm (to others, in particular)
is not too great.
Though we don’t know for certain, the available evidence does suggest that
CSBC may put mother and child at greater risk of serious harm than vaginal deliv-
ery. The risk, in absolute terms, may be relatively small, but the possible harms are
serious. Given this, I believe it would be rather foolish, reckless, and irresponsible
to opt for CSBC unless one has good reasons for having one. When we look at
Wendy’s situation, I’m not convinced that her reasons are good enough to justify
CSBC. So, all things considered, I think CSBC is wrong in Wendy’s case.
Warren: This is a vexed issue, all right. I find it very troubling to sort out my views, but I
will side with Patrick here. Although a very strong right to autonomy would be sup-
ported in the original position, even if Wendy’s decision is autonomous it would be a
morally wrong decision. Her choosing C-section is wrong because she is needlessly

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taking unknown risks for no clear benefit. She is gambling with her child’s life and
health as well as with her own life and well-being. As parents we ought not to take
such chances with ourselves for our dependents’ sake, and we certainly shouldn’t
risk harming our kids for no good reason.
At the same time, however, I recognize that women’s rights to control their
own bodies with respect to reproduction are often wrongly restricted. Those who
oppose these rights often assert instead the rights of the unborn child. I wish to
strongly differentiate my view from the position of, for instance, the anti-choice
movement in the abortion debate. Here I am concerned with possible harms to a
wanted, born child.
Patrick: Nice point, Warren. I, too, would differentiate my view about this case from
an anti-choice position regarding abortion. Although I believe that Wendy’s hav-
ing a CSBC is wrong, I’m not arguing
that the alleged rights of the unborn UP FOR DISCUSSION
child trump a woman’s right to have a What are your initial thoughts about the
CSBC or an abortion.18 moral permissibility of Wendy’s CSBC?
Warren: Doran, why don’t you give us Explain your reasons.
your argument for thinking CSBC is
a permissible choice for Wendy, and
see if you can get Patrick and me to change our minds?

DORAN’S ARGUMENT FOR WHY WENDY’S DECISION IS

MORALLY PERMISSIBLE

Doran: I’ll give it a shot, with the reminder that I am not at all sure that my view is the
correct one. I am prepared to advance an argument for my view, but it may well be
the case that you guys end up showing me the error of my ways.
Let me begin by outlining my reasoning. The details can be filled in later as
we debate.

TECHNIQUE
Notice how philosophy differs from what is commonly known as “debate.” In a debate,
one typically takes a position and then defends it at all costs, regardless of whether one
agrees with the position defended. However, in philosophy the goal is to find the truth
through the careful use of reason. Accordingly, if it turns out that the arguments against
are stronger than the arguments for, then one should be willing to revise or jettison one’s
original views and embrace the strongest arguments.

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 Chapter 7  C-Section by Choice  213

(1) The autonomous decisions of competent patients are, presumptively,

morally permissible.
(2) Wendy is a competent patient who exercises her right to autonomy when
she opts for CSBC.
(3) Therefore, Wendy’s decision for CSBC is, presumptively, morally
permissible.
(4) This presumption ought to be respected unless it is seriously wrong in
other respects—e.g., it seriously harms others, or is unfair, or violates the
rights of others.
(5) Wendy’s choice is not seriously wrong in these other respects.
(6) Therefore, her CSBC is morally permissible.

Many of these premises will re- TECHNIQUE

quire a detailed defence—but that Doran puts his argument in standard
is an outline of the argument that I form, numbering the premises and
hope to show is sound. conclusion and stripping the argument
Warren: Well, I don’t think you will have down to the essentials. This allows
to do much to defend premise (1), easy reference to individual premises.
since it is not controversial as long as It also enhances the clarity of the argu-
you mean that the right to autonomy ment and allows readers to focus their
should, other things being equal, be evaluation.
respected in patients’ decisions that
affect mainly themselves, or other
competent persons with their consent. Of course, Wendy’s is not one of those cases
where other things are equal. Others are seriously affected in Wendy’s case. I ac-
cept your premise (1) on my interpretation, and I will bring up considerations about
people other than Wendy later.
For the sake of argument, let us accept premise (2) as well. Like Wendy’s friend
Helena, I have some concerns about subtle social coercion or coercion from her
partner undermining Wendy’s autonomy, but we do not really know enough about
these things in Wendy’s case to know whether she is being coerced. Let’s focus,
then, on the question of harm to the child and mother.
Patrick: I too have concerns about Wen-
dy’s autonomy. She is informed, in the TECHNIQUE
sense that her doctor tells her about To accept a premise for the sake of
the risks and the uncertainty sur- argument is not to accept it as true. It
rounding CSBC, but she stubbornly is just to accept it for the present pur-
refuses to accept what her doctor is poses to focus on a different part of the
saying. Wendy’s tone throughout the argument. The premise may still be re-
drama suggests to me that she has al- jected later on.
ready decided to have a CSBC, and

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 214   DEBATING HEALTH CARE ETHICS

that she could not be persuaded oth-

UP FOR DISCUSSION
erwise. This leads me to have some
doubt about her ability to make an Given the concerns expressed by
informed and, hence, autonomous Warren and Patrick, do you think that
choice. I’m willing to go along, how- Wendy’s choice is autonomous? Why or
ever, with the assumption that she is why not? (For a more involved discus-
autonomous and focus on the ques- sion of the concept of autonomy, see
tion of harm. chapter 4.)

DO POTENTIAL HARMS MAKE WENDY’S AUTONOMOUS

CHOICE WRONG?
Patrick: Let’s see, Doran, whether you can give a sound argument for your claim in
premise (5), that the possibly harmful effects of Wendy’s (autonomous) choice are
not sufficient to show that her freely chosen act is wrong. This is probably the most
controversial premise of your argument, and so it is the one on which we should
focus most of our attention.
Warren: Yes, I must say that this premise surprised me, since most experts agree that
CSBC puts one’s baby at greater risk of respiratory problems and of not gaining the
benefits of breastfeeding. Much worse, but much less common, things can hap-
pen as well, like serious accidental surgical cuts to the baby or even the death of
the baby. Surely it is wrong to assume these greater risks of unknown probability,
risks of harms to others, without a good reason to do so. Also, CSBC might wrong
others in more insidious ways. For instance, CSBC might strain the medical sys-
tem, or unfairly use up scarce medical
resources. Also, there is the concern DEFINITION
that CSBC will needlessly medical- To medicalize an event in a patient’s life
ize what is a safe natural process, is to intervene to a great extent medical-
significantly changing the culture of ly rather than letting the event proceed
birth for the worse. CSBC, if accept- naturally. There is much debate, how-
ed, would needlessly give the medical ever, about what it means for an event
establishment effective control over to proceed naturally.
birth. These harms would affect ev-
eryone, but especially women.
Patrick: I am inclined to agree with you, Warren, that Doran’s premise (5) is false.
However, I am not sure that CSBC is likely to have all of the insidious harms that
you suggest. I’m also rather skeptical of the idea that CSBC medicalizes an other-
wise natural process. After all, some uncomplicated vaginal births in hospitals are
highly medicalized procedures and so not very natural.

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 Chapter 7  C-Section by Choice  215

UP FOR DISCUSSION
What is a “natural” birth? Are “natural” births always morally better than “unnatural”
births? Explain your answer.

Harms to the Baby

Doran: Okay, let’s start with a discussion of possible harms to the child, and then later
we can consider whether CSBC harms others besides the child.
Warren: Doran, in general, do you agree that CSBC is worse for the baby than vaginal
delivery? And do you accept that vaginal delivery is medically the best choice for
Wendy’s baby?
Doran: In deciding this issue, things are complicated by our limited knowledge about
the risks of CSBC to the baby when compared to vaginal delivery. I’m not sure I
agree that all of these risks are relevant, because of their extreme rarity, and because
there are horror stories with respect to vaginal delivery as well. I am willing to grant
that the evidence appears to be quite clear that CSBC probably poses some greater
risks to the baby than vaginal delivery poses, at least in standard cases. (Respira-
tory issues are probably the biggest concern.) Other things being equal, therefore,
I am willing to grant that it would be better for the baby if mothers in general, and
Wendy in this instance, opted for vaginal birth over CSBC. But the question is
whether it would be wrong for her to opt for CSBC.
Warren: I think it would be wrong. People in the original position would bias their de-
cisions in favour of protecting the vulnerable. This is because they realize that they
may themselves be vulnerable in the real world, at some point. Further, people in the
original position are going to want to protect themselves from needless, serious harm.
Thus, they will adopt a principle that says, “Do not take unnecessary risks of seriously
harming others unless there is a good reason.” We can call this latter principle the
good reason requirement. Now, Wendy’s CSBC violates this principle, since she does
not have a good reason to expose her baby to the needless, serious harm posed by C-
section, at least she has not expressed a good reason. There is no business advantage,
in spite of what Wendy argues, since it is a medical fact that it will take her much lon-
ger to heal from a C-section. Being unable to conduct one’s business tends to be a very
serious business disadvantage which is hard to outweigh. She appears in the case to be
mistakenly assuming that recovery from C-section is quicker. There is, moreover, no
medical reason to expect a difference in the appearance of Wendy’s body either, except
that Wendy will have a scar. C-sections do not prevent stretch marks, as is sometimes
supposed. Therefore, it is hard to understand the supposed aesthetic superiority of a
C-section in Wendy’s view. There is a great deal of pain associated with recovering
from major abdominal surgery, while the pain of labour Wendy wishes to avoid can

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 216   DEBATING HEALTH CARE ETHICS

be minimized with medical pain control. She will have learned that sexual function is
not improved with C-section and neither stress-incontinence nor prolapse is a neces-
sary consequence of vaginal birth. Wendy becomes informed about the realities by the
time she visits Dr. Tabor. Following the good reason requirement, Wendy should not
take even low risks of serious harm to her child.
Doran: Can you say a little bit more about what a good reason is in this context?
Warren: We want people to be able to have reasons that would justify taking risks. Pre-
sumably, the greater the risks, the stronger the reasons one will require. There will,
of course, be disputes about what will count as a good enough reason. For me the
idea would be that a good enough reason would be one that justifies the risks even
if the worst harms were to come to pass.
Patrick: I suppose I agree with the good reason requirement, at least insofar as we’re talk-
ing about parents and their children. But even then, there may be exceptions. In gen-
eral, though, it does seem reckless and irresponsible for parents to put their children
at risk of very serious harm, even if the harms are improbable, unless they have good
reason to do so. And, as Warren just
noted, Wendy does not seem to have UP FOR DISCUSSION
good reasons for wanting a CSBC. Notice that Warren and Patrick do
Doran: I don’t agree with the good reason not claim that CSBC is always morally
requirement. People do not need to jus- wrong. In their view, CSBC can be mor-
tify their choices with “good” reasons ally permissible if there is a good reason
when those choices are very unlikely for it. Do you agree with the good rea-
to harm others. Since the probability son requirement? Given the risks to the
of Wendy’s CSBC harming others is baby involved in Wendy’s CSBC, does
extremely low, she does not need to she have a good enough reason for a
have good reasons for a CSBC. Alter- CSBC? Can you think of a case of CSBC
natively, I suppose I could agree with that would more clearly satisfy the good
the good reason requirement and still reason requirement?
hold that Wendy’s reasons for having a
CSBC are good enough. In that case,
the good reason requirement would be trivially true, since virtually any reason would
count as good enough when the probability of harming others is really low.
I believe I can show, moreover, that Wendy’s CSBC is morally permissible, and
that the good reason requirement is therefore false (or trivially true), by comparing
it to other cases where parents act permissibly when they needlessly take real but
somewhat unknown risks of harm with their children for not very good reasons.
Consistency requires that if we view these parental decisions as morally permissible,
then we should not condemn CSBC on the grounds of the risk of harm it exposes
the baby to. Let’s start with this case. Consider parents who for reasons of conve-
nience visit fast food restaurants to purchase cheeseburgers, soft drinks, and fries
for their kids on a regular basis—say two times per week.

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 Chapter 7  C-Section by Choice  217

TECHNIQUE
Doran is attempting to defend his view by using an argument by analogy. To prove that
Wendy’s CSBC is not wrong because of the risk of harm it poses to her infant, he creates
scenarios (analogous cases) that are claimed to be relevantly similar to Wendy’s CSBC in
that they too involve risks of serious injury to a child for no good reason. He then claims
that the actions in the analogous cases are not morally wrong, and so, by analogy, the
risk of injury to the infant posed by Wendy’s CSBC is also not sufficient to make her CSBC
morally wrong.
These analogies, if successful, have a secondary function. They will either serve as
counterexamples to the good reason requirement—the requirement that prohibits taking
unnecessary risks of serious harm to others without a good reason—or they will show
that when taking remote risks of serious harms to others, almost any reason will count
as a good enough reason.

Warren: I don’t think that this is a good analogy. Are the risks of obesity comparable
to the risks Wendy is running for her child? We just don’t know, but I suspect that
the risks of CSBC could be much worse if planned C-section is any indication.19
Further, obesity and other ill effects from a poor diet are things a child can over-
come with help. CSBC can cause problems to both the mother and the baby which
cannot be eradicated.
Patrick: I also have doubts about whether this is a good analogy. In any case, even if
it is a good analogy, I don’t think it will help your argument, Doran, because it is
surely wrong for parents to feed their
children junk food on a regular basis, TECHNIQUE
assuming more healthful foods are
Here Warren and Patrick illustrate the
available. The virtuous parent would
two ways one can reject an argument
obviously show an appropriate level of
by analogy. One can argue, as Warren
concern for the health and well-being
does, that there are relevant differ-
of their children. Giving your child
ences between the analogy (eating too
fast food twice a week is rather irre-
much fast food) and the case under
sponsible, given the long-term harms,
consideration (CSBC). Or, one can ar-
if other options are available. A good
gue, as Patrick does, that even if the
parent would not regularly put con-
analogy is relevantly similar to the case
venience ahead of the child’s health.
under consideration, both are objec-
Warren: I too think it is wrong of a par-
tionable in the same way. Doran intends
ent to induce obesity and risk diseases
the fast food analogy to illustrate a case
associated with obesity in a child just
of permissible behaviour, but Patrick
because it is convenient.
thinks that such behaviour is, in fact,
Doran: Well, then, consider a different
impermissible.
analogy, one that clearly involves

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 218   DEBATING HEALTH CARE ETHICS

taking risks of possible harms to the

UP FOR DISCUSSION
parent and the child that are serious
and possibly permanent. Parents rou- Do you think it is morally wrong for par-
tinely drive their children a kilome- ents, for convenience, to take their kids
tre or two to elementary school when for junk food a couple of times per week,
they could have walked instead. Let’s given that this risks inducing obesity? If
suppose evidence suggests that the you think this is not wrong, do you think
risks of injury when driving are great- this example disproves the good reason
er than when one walks to school. requirement? Is this case analogous to
Would it be morally wrong to drive the risks posed by CSBC?
merely because of the increased risk it
poses to the child?
Warren: That’s a more persuasive example since, as you pointed out, driving, like CSBC,
can result in death and injury immediately both to the child and the parent. I would
say driving is wrong for parents who have a good alternative, though I suspect that
many would not. For example, if I chose to drive my child to school just because I
prefer not to walk, I would consider myself in the wrong. I would be needlessly en-
dangering the vulnerable child in my care, on your assumption that driving really is
more dangerous.
Patrick: Yes, this is a better analogy, but
again, I’m not sure it helps your case, UP FOR DISCUSSION
Doran. Most parents, or at least many Do you agree with Patrick’s claims that
of them, have a good reason for driv- “most parents, or at least many of them,
ing their children to school. In most have a good reason for driving their chil-
or many cases, it may be the only way dren to school” and that “if walking is a
to get their children to school in a genuine option, and it’s less risky than
timely manner. But if walking is a driving, then surely that is what parents
genuine option, and it’s less risky than ought to do”? Why or why not?
driving, then surely that is what par-
ents ought to do.
Doran: Well, you two may have that reaction, but I bet many of our readers won’t. Com-
mon sense, they might argue, suggests that it is not morally wrong to drive one’s kid
to school, even if walking would be better. I side with common sense on this point.
Warren: I too would bet that many readers won’t think driving is wrong, but that is be-
cause they do not accept the hypothesis of the case. They believe their children are
safer in their SUV than they are when crossing the road in front of somebody else’s.
SUVs have been successfully advertised as bastions of security. Actually, almost any
car encases us in metal and gives us a sense of being well protected. If parents were
really convinced that walking was safer, the psychological reaction might be different.
Patrick: I’m not so sure about that, Warren. Unfortunately, I think many parents, in
their day-to-day choices, put greater weight on convenience than the health and

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 Chapter 7  C-Section by Choice  219

safety of their children. We all seem to do this to a greater or lesser extent, even
when we recognize that it is wrong.
Doran: People in our society do things routinely in their automobiles when they could
have easily walked instead—driving to a new restaurant rather than going to one
closer to home, driving to the store instead of walking or ordering something on-
line, driving to church rather than walking, and so on. Perhaps such needless auto-
mobile trips are wrong because of the environmental damage they cause. But that’s
not relevant to the issue we are debating. Our present concern is with the level of
permissible risk. And I believe that common sense tells us both that such automo-
bile trips are riskier than walking, and that the added risk to the car’s occupants is
such that it is not enough to make such car trips wrong.
Patrick: The added risk to the occupants of the car does not by itself make these various
car trips wrong. But the added risk and the absence of good reasons for taking the
risk do make the car trips wrong. It is surely irresponsible, selfish, and reckless to put
others at risk of serious harm when one has no good reason for doing so. If common
sense disagrees, as you suggest, Doran, then so much the worse for common sense.
Doran: Let’s move on and see whether this next case will persuade you. This case may be
the most analogous to CSBC since it too involves decisions surrounding childbirth.
Let’s suppose we had a parent who favoured home birth (because her peers are doing
it, she likes the idea, and so on), and
let’s stipulate—though I am not saying UP FOR DISCUSSION
this is true—that the risks to the child Consider the case of a mother who
of home birth are unclear but appear chooses not to breastfeed her new-
to be slightly greater than the risks born. Suppose that her reasons for not
of birth in a hospital. Let’s also say breastfeeding are roughly similar to
that some physicians are comfortable Wendy’s reasons for not wanting to un-
with the idea of home births, though dergo vaginal birth. Also, suppose that
the majority of physicians oppose it. I breastfeeding is generally believed to
guess your view would be that you don’t be best for the baby. Do you think that it
think it would be morally permissible would be morally wrong for this mother
for the mom to choose home birth, but not to breastfeed? In what ways is this
that is not my reaction. I believe that if similar to CSBC? In what ways is this dif-
it can be shown that home births are ferent? Do these similarities and differ-
safe in the vast majority of cases, then ences affect moral permissibility?
women should have that option, even
if it is not the safest choice.
Patrick: If the risks of a home birth are comparable to those of CSBC, and if a woman’s
reasons for wanting a home birth are as shallow as Wendy’s appear to be for wanting a
CSBC, then I would also say that the home birth is wrong. I suspect that in many cas-
es, however, the reasons behind home birth are much better. A hospital birth might
genuinely conflict with deeply held values. In that case, the risks may be permissible.

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 220   DEBATING HEALTH CARE ETHICS

Warren: This home birth example is a

UP FOR DISCUSSION
good challenge. I agree with Patrick:
if the features of home birth were What is your reaction to the home birth
similar to CSBC, then I would count analogy? Is it sufficiently analogous to
home birth as wrong. Some unsafe influence your views about CSBC? How?
home birth practices are wrong. If,
however, one has a registered midwife
with proper equipment and backup, UP FOR DISCUSSION
the features are rather different from See if you can come up with a case that
CSBC. There can be considerable is analogous to Wendy’s CSBC. What
safety and signal advantages. In those does this analogy reveal about the mor-
cases, the parents are not taking an al permissibility of Wendy’s CSBC?
unknown risk with terrible worst-
case scenarios for little reason. I do
not see a strong enough analogy here, since the reasons for home birth are, as Pat-
rick pointed out, likely to be better than Wendy’s reasons for CSBC.
Doran: Well, it seems to me, though not to you two, that these analogies suggest that
there are lots of situations where parents put their children at some small increased
risk of serious harm for reasons that are not always very compelling, and where most
people would not think that these parents are doing wrong. And if that is so, then
most people should not oppose Wendy’s CSBC on the grounds that it puts her child
at some small increased risk of serious harm.
Further, and beyond an appeal to consistency, what I chiefly think is motivating
my position is the belief that we ought to allow people freedom, and to limit it only
when there is clear evidence that their actions pose a substantially greater risk of seri-
ously harming or significantly wronging others. In cases where the increased risks
of significant harm to others are really small, I think it is mistaken to condemn such
choices as morally wrong. The fact of the matter is that in Canada, the actual risk of
serious harms to infants in healthy pregnancies is very small, both for vaginal delivery
and for CSBC. Infant mortality rates in Canada, while higher than many industrial-
ized nations, are still low—and a lot of infant mortality that does exist is attributable
to poverty, low birth weight, and congenital problems—but these are not relevant to
the issue under consideration.20 A general respect for liberty should therefore permit
these choices, given that the likelihood of significant harm is so small. If we respect
liberty, we must not require people to choose the very best.
So, what does this tell us about your good reason requirement, Warren? Again, it
could be that the good reason requirement is true, but in cases like these, where risks
of serious harms are really small, almost anything counts as a good enough reason to
justify the action. But what I’m more inclined to say is that the requirement to have a
good reason whenever one puts someone else at greater than necessary risk of serious
harm is false, and that this good reason requirement should only come into play when
risks of significant harm to others become sufficiently likely. I believe this because

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 Chapter 7  C-Section by Choice  221

I think respect for people’s freedom means that we should not constantly require of
them that they have good reasons for their choices, when those choices carry little real
risk of harm to others.
Warren: Common sense does not approve UP FOR DISCUSSION
taking risks of catastrophe without a Suppose a slightly intoxicated parent
good reason. I do not think your ex- runs an errand in his automobile with
amples show otherwise. Note, more- his child in the back seat. Given that
over, that it is not enough that the his route has very little traffic, and
increased risk of harm to others be given that he is only slightly impaired,
low to make it reasonable to take the he knows that his risk of crashing and
risk. A reasonable person would not significantly harming others is very low.
take unnecessary risks that include What are the similarities and differenc-
utterly unacceptable consequences of es of this to CSBC? How do these affect
unknown probability for little benefit. permissibility?
When we justify choices on the basis
of liberty, they must be choices that
exercise a reasonable standard of care. This is especially the case when we are deal-
ing with the most vulnerable in our society, like children. In Wendy’s case, CSBC
does not demonstrate a reasonable standard of care, and thus is ruled out by the
good reason requirement.
Patrick: I agree, Warren, insofar as we are talking about parents taking risks with their
children. It seems intuitively clear that virtuous parents would not put their child
at risk of serious harm, even when the probability of harm is low, without having a
sufficiently good reason for taking this risk. Wendy’s reasons for wanting a CSBC
are not strong enough to justify the possible harms to her child. So, her choice to
have a C-section is wrong—it’s irresponsible, selfish, shallow, reckless, and so forth.
What Doran’s analogies suggest, then, is not that Wendy’s CSBC is permis-
sible; rather, they suggest that many other choices that parents make might also be
wrong. In all of these cases, parents are behaving recklessly and irresponsibly: they
are putting their children at a small risk of great harm for no good reason.
Doran: As I have tried to explain, I believe that the right to autonomy will not be sufficiently
respected if we accept Warren’s principle that people should not take unnecessary risks
of serious harm affecting others without a good reason. Too many things that we rou-
tinely choose for trivial reasons would fall into your category of putting others at greater
risk of unknown harm, and so would be rendered immoral on your principle.
Patrick: But that, of course, doesn’t show that the principle is false. It may be, as I’ve
suggested, that many things that parents routinely do are in fact morally wrong.
Doran: That’s true, Patrick. Interestingly, though, it does show that it may be wrong for
people to condemn Wendy for CSBC and not to condemn other much more com-
mon behaviours. So, even if my arguments fail to persuade people of the permissi-
bility of CSBC, they may persuade people to re-evaluate the permissibility of other
actions where parents put their children at risk for unknown benefit.

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 222   DEBATING HEALTH CARE ETHICS

UP FOR DISCUSSION
Do you accept the good reason requirement? If the probability of harm is low, what would
count as a good reason for putting one’s child at slightly increased risk? Did Wendy have
a good enough reason for CSBC to justify the possible harms to her child?

Harms to the Mother

Patrick: Thus far we have considered whether Wendy’s CSBC is wrong because of the
risks it poses to her baby, but we also should consider the related issue of whether
Wendy is wrong to choose a CSBC because of the increased risks of harm to herself
posed by the procedure.
Warren: Yes, let’s consider those risks. While there is no study that tells us ex-
actly what we want to know about the risks of CSBC, there’s a major Canadian
cohort study of planned primary
Caesarean section for breech pre- DEFINITION
sentation. The women in this study Breech means buttocks, and breech
are healthy. They have no special presentation is the presentation of the
risks aside from breech. This low- buttocks or feet in labour, which entails
risk population showed a risk three more risk than presentation of the head.
times greater than women giving A thromboembolism is the obstruction
birth vaginally of serious problems of a blood vessel with particles carried
like cardiac arrest, major infection, by the blood from another site.
anaesthetic complications, venous
thromboembolism, and bleeding
that required hysterectomy. 21
Doran: It’s noteworthy that the maternal mortality was the same for this group as for
the vaginal group, and the rate is extremely low in Canada for all births.22
Warren: That’s right. Data from maternal registries in Britain and the United States, how-
ever, do show a higher rate for C-section generally than for vaginal birth generally.23
Patrick: But here in Canada risks to the mother of this procedure are generally low in
absolute terms, are they not?
Warren: Yes, in Canada we are blessed with such rarity of maternal mortality that
the absolute risk is slight. Still, I have a report here that says, “Although the
absolute difference is small, the risks of severe maternal morbidity associated
with planned Cesarean delivery are higher than those associated with planned
vaginal delivery. These risks should be considered by women contemplating an
elective Cesarean delivery and by their physicians.” 24 We also have to consider
risks to the mother incurred in future pregnancies. Risks go up with the number
of C-sections, and vaginal birth after C-section presents its own difficulties for
the mother as well.

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 Chapter 7  C-Section by Choice  223

Doran: Well, I will grant that there may be increased risks to the mother from CSBC.
Choosing CSBC may, therefore, be imprudent, but is it morally wrong for a woman
to make this choice? Is there a duty to oneself that is sufficiently strong that it
should outweigh a woman’s freedom of choice?
Patrick: I would say there are duties to oneself, since living virtuously—living a flour-
ishing life—requires that one show appropriate concern for one’s mental and physi-
cal health. A virtuous person is not only courageous, honest, and trustworthy, for
instance; they are also not reckless, intemperate, and gluttonous. But I want to
tread carefully here, to avoid saying that people must be saints. A virtuous person
would take appropriate care of her body, but this doesn’t mean she can never indulge
herself or take risks. Again, I don’t think there’s a general rule that would correctly
state the appropriate level of concern for oneself; instead, it must be addressed on a
case-by-case basis. I doubt that the risk to self in this case is weighty enough on its
own to show that Wendy’s CSBC is wrong. But the risks to self, when added to the
risks to the baby (and perhaps others), give us good reason, I think, for holding that
Wendy’s CSBC is wrong.
Doran: I am inclined to agree with you that there are moral duties to self—what we often
call self-regarding duties—though I would tend to follow Kant and say that there are
certain things that one ought not to do to oneself because they would fail to show
proper respect for one’s own rational or autonomous nature. For example, I think a
case could be made that sniffing glue or taking crack cocaine is not only imprudent,
it is also immoral, since it directly assaults one’s ability to operate as an autonomous
being. But I doubt that merely taking risks that are involved in CSBC are sufficient to
make the act a violation of a self-regarding duty. The parent is still, almost certainly,
likely to recover and to be able to function autonomously. So, while the choice may
be rather foolish from the perspective of health, I tend not to think it is wrong on
grounds of harm to self.
Warren: Whatever duties are accepted in THEORY
the original position would have to be W. D. Ross is a pre-eminent ethical in-
duties that will serve our interests in the tuitionist. Although Warren is a contrac-
real world. Certainly something like tarian and not an intuitionist, he thinks
W. D. Ross’s duty of self-improvement, some of Ross’s rules would appeal to a
a duty to make ourselves better in re- majority in the original position.
spect of knowledge, virtue, and hap-
piness, is in our interest.25 This must,
nonetheless, be balanced against a UP FOR DISCUSSION
strong right to autonomy which is cru- Can people have duties to themselves?
cial to our self-interest. I think that the What duties would they include? Would
risks of CSBC might be small enough they count as reasons against Wendy’s
to justify the mother’s taking them on CSBC?
the grounds that the right to autonomy

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 224   DEBATING HEALTH CARE ETHICS

would outweigh the duty of self-improvement if the mother alone were seriously af-
fected by CSBC. That, however, is impossible, since if the mother is harmed by CSBC,
then almost certainly so will her baby be harmed, and all others who care about them.
Patrick: So, it seems we all agree that the harms to Wendy herself are not, by them-
selves, sufficiently weighty to show that choosing CSBC is wrong. The wrongness
depends importantly on other factors, in particular on harms to the baby.
Warren: And to others.
Doran: What harms to others do you have in mind, Warren?

Harms to Others besides the Baby and the Mother

Warren: CSBC may cause various sorts of harms to others besides the mother and the
infant. These harms are more at the level of a policy that allows for CSBC than for
any individual CSBC. Let’s focus on that.
Patrick: Okay, what harms to others do you see resulting from a policy that allows
women the option of CSBC?

UP FOR DISCUSSION
A Brazilian study claims that three-quarters of CSBC mothers surveyed said that the
choice was not really theirs but that of their doctors or their partners. In a society where
there is evidence that CSBC undermines women’s autonomy, should CSBC be allowed?
Does this affect the permissibility of CSBC in other societies? How, in general, do strong
social pressures to accept medically unnecessary procedures affect their permissibility?

Source: See D. P. Béhague, C. G. Victora, and F. C. Barros, “Consumer Demand for Caesarean
Sections in Brazil: Informed Decision Making, Patient Choice, or Social Inequality? A Population
Based Birth Cohort Study Linking Ethnographic and Epidemiological Methods,” British Medical
Journal 324, no. 7343 (2002): 942–45. See also, Olga Khazan, “Why Most Brazilian Women Get
C-Sections,” The Atlantic, April 14, 2014.

UP FOR DISCUSSION
In opposing the position that CSBC enhances women’s autonomy, Véronique Bergeron
claims that informed consent cannot be meaningfully exercised unless women are made
aware of the sexist underpinnings of the medical model of childbirth and its influence on
the ethical reasoning of the American College of Obstetricians and Gynecologists. Are
there moral implications of such a position for Wendy’s CSBC? What, if any, evidence of
harms to women’s autonomy generally would be sufficient to deny the permissibility of
CSBC as a policy?

Source: See Véronique Bergeron, “The Ethics of Cesarean Section on Maternal Request: A Feminist
Critique of the American College of Obstetricians and Gynecologists’ Position on Patient-Choice
Surgery,” Bioethics 21, no. 9 (2007): 478–87.

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 Chapter 7  C-Section by Choice  225

Patrick: Do you have in mind financial burdens to our medical system that could result
if we had a policy permitting CSBC?
Warren: Yes. I have here a recent study that says that Caesarean delivery costs much
more than vaginal birth. In Canada, for instance, a 2016 report estimates the costs
for the typical vaginal delivery to be $3,195 and for a C-section to be $5,980, and
a 2008 report claims that $36,640,000 could be saved each year in Canada just by
reducing Caesarean delivery from 26 percent to 20 percent of live births.26 In a pub-
lic health care system that is strapped for cash, this is an unjustified expense for a
medically unnecessary procedure. That money could be used, for instance, to lessen
the excessive wait times for some medically necessary procedures.
Doran: There seems to be something right about your point that we should not burden
an already stressed public medical system with unnecessary, costly medical proce-
dures, although I wonder whether our public system offers other unnecessary, costly
medical procedures. If so, then there may be a fairness requirement that allows for
publicly funded CSBC as well.
Patrick: Right. It’s not at all clear to me that a publicly funded system of health care
should provide only medically necessary procedures. And I wonder whether we can
sharply distinguish procedures that are medically necessary from those that are not.
Intuitively, the distinction seems clear. But suppose, for instance, that a pregnant
woman prefers a home birth to a hospital birth because the latter conflicts with
deeply held religious beliefs or values. Would the possible psychological harms of
a hospital birth make the home birth medically necessary? If not, should it still be
funded in a public system like the one we have in Canada?
Doran: Those are good questions, but we cannot adequately address them in the re-
maining time. So, I suggest we set them aside, and focus on Warren’s claim that a
policy permitting CSBC would add an additional, and unnecessary, burden to our
health care system.
Patrick: That’s fine by me.

UP FOR DISCUSSION
What counts as an unnecessary, costly medical procedure? Can you think of un-
necessary, costly medical procedures that our public health care system provides?
Consider these procedures: vasectomies; providing “artificial blood” or “bloodless
surgery” to replace blood transfusions for Jehovah’s Witnesses; using obstetricians
for births that could be safely delivered by less costly midwives. Are any of these
procedures medically unnecessary? If the public health care system provides these
procedures, does that mean we should offer CSBC, too? If we decide not to offer
CSBC as part of publicly funded health care, then should we decide not to offer simi-
larly costly and unnecessary procedures?

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 226   DEBATING HEALTH CARE ETHICS

Doran: Even if you are right, Warren, that we should not burden an already stressed
public medical system with unnecessary, costly medical procedures, I am not sure
we can apply the dollar amounts you just cited to CSBC, for surely some of the
reasons that make C-section more expensive do not apply to CSBC. For instance,
C-section in general is probably done on women who have more health problems
than women who deliver vaginally, but that factor would not apply to CSBC. Also,
there are undoubtedly added costs with emergency C-sections that happen in the
middle of the night, but those would not apply to CSBC procedures, since they
would be scheduled procedures.
Notice, further, that even if CSBC is more costly than vaginal delivery, this
concern can be dealt with without stopping women from having the option of
CSBC. There may be a way to fund them privately, for instance, without harming
the public health care system.
Patrick: Well, a private system for CSBC might still end up harming the public health
care system. Re-hospitalization is more common for C-section than for natural
birth, and so complications arising from these private instances of CSBC may even-
tually cut into the public system.
Doran: That’s true. I grant that it may UP FOR DISCUSSION
take some work to get a system in- If, in the future, or in some parts of the
cluding CSBC that would not harm world, home birth becomes less expen-
the public health care system, but I sive and as safe as hospital births, would
think we can see that it is at least a it be wrong to provide women with the
live possibility. Costs do not provide choice of hospital births? If C-section
a reason, in principle, for the imper- becomes safer (for mother and baby)
missibility of CSBC as a practice. But and less expensive than vaginal deliv-
they may provide a reason against ery, would it be wrong for women to have
providing CSBC in the public sys- the option of vaginal delivery?
tem, if it turns out to be more costly
than vaginal delivery.
Patrick: The issue of allowing private CSBC gets tricky. There would be concerns about
allowing access to CSBC only to the relatively wealthy, for instance, and that, of
course, raises questions of fairness.
Doran: Good point, Patrick. Whether it would be unfair or not to offer CSBC only on
a private-payer basis raises the whole complicated issue of the morality of offering
private health care alongside a public health care system. This is a very interesting
topic, but is best saved for a separate debate.27
Patrick: Agreed.
Warren: Well, it looks as though you two aren’t convinced either that CSBC is more ex-
pensive than vaginal delivery, or that it would be wrong to adopt a policy permitting
CSBC even if it could be shown that it is more expensive. I have more arguments
up my sleeve, but they’ll have to wait for another day.

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 Chapter 7  C-Section by Choice  227

UP FOR DISCUSSION
In the final analysis, do you think that Wendy’s CSBC is morally wrong? In general, is
CSBC wrong? Why or why not? Have your views or reasons changed in the light of this
debate? If so, how?

SUMMARY

Here is a summary of the main questions, concepts, and arguments covered in this chapter:

• The main questions explored are: Is it morally permissible for Wendy to have a
CSBC? Is it morally permissible for women in general to have CSBCs?
• CSBC is defined as a C-section that is not medically necessary, but rather cho-
sen by the mother for non-medical reasons.
• Autonomy is defined as self-determination. The right to autonomy refers to a
person’s right to make her own decisions, including the right to choose her
course of care without undue interference.
• The available evidence suggests that CSBC may carry greater risk to the child
and mother than planned vaginal births; however, the data regarding the risks
and benefits of CSBC are not conclusive, and the correct interpretation is a
matter of some dispute.
• Doran argues for a strong presumption in favour of respecting the autono-
mous choices of patients. This presumption ought to be respected unless it is
seriously wrong in other respects. Doran argues that Wendy’s CSBC was au-
tonomously chosen and was not seriously wrong in other respects. Although
he admits that CSBC poses greater risks to the mother and baby than vaginal
birth, he does not think these risks are great enough to override a woman’s
right to autonomy. He concludes, therefore, that it was morally permissible
for Wendy to have a CSBC.
• Patrick argues that CSBC is permissible in some cases, but given the possible
risk of very serious harms to the child, it is permissible only in cases where one
has sufficiently good non-medical reasons for choosing a C-section delivery.
Wendy does not have sufficiently good reason; her choice for a C-section mani-
fests various vices and is therefore morally wrong.
• Warren agrees with Patrick’s conclusion that Wendy’s CSBC is morally wrong,
but he agrees for different reasons. Persons in the original position would sup-
port a strong right to autonomy; at the same time, however, they would not
approve of parents subjecting their children to serious risk without any clear
benefit. Since Wendy’s having a CSBC would put her child at risk of serious
harms, CSBC is wrong in her case.

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 228   DEBATING HEALTH CARE ETHICS

• The questions of whether a policy that permits CSBC would be justified in a

public system of health care like the one we have in Canada, and the permis-
sibility of CSBC if it is performed and paid for privately, are briefly considered.

REVIEW QUESTIONS

1. What does autonomy mean?

2. What are the possible benefits and risks of CSBC?
3. Why is the ethical debate over CSBC complicated by the fact that experts disagree about
the benefits and risks of CSBC?
4. What is Doran’s autonomy-based argument for the permissibility of CSBC?
5. Why do Warren and Patrick hold that Doran’s argument is unsound?
6. Explain Warren’s good reason requirement. What does he think it implies regarding the
permissibility of Wendy’s CSBC and CSBC in general?
7. Why does Doran reject the good reason requirement?
8. Patrick contends that it would be morally wrong for Wendy to have a CSBC. Why? Does
he believe that CSBC is always wrong? Why or why not?
9. Why does Doran reject Warren’s and Patrick’s arguments that CSBC is wrong in
Wendy’s case?
10. Why might a general policy that permits CSBC be wrong, even if Wendy’s CSBC is not wrong?

NOTES

1. Jan E. Christilaw, “Cesarean Section by Choice: Constructing a Reproductive Rights Framework

for the Debate,” International Journal of Gynecology and Obstetrics 94, no. 3 (2006): 262–68.
Readers may be interested to know that Dr. Christilaw is married to Warren. Dr. Christilaw has
not, however, reviewed this debate, nor are the opinions and arguments expressed by Warren
necessarily shared by her.
2. Ana Pilar Betrán, Jianfeng Ye, Anne-Beth Moller, Jun Zhang, A. Metin Gülmezoglu, and Maria
Regina Torloni, “The Increasing Trend in Caesarean Section Rates: Global, Regional and National
Estimates, 1990–2014,” PLoS ONE (2016), doi:10.1371/[Link].0148343.
3. See ACOG Committee Opinion No. 761, “Cesarean Delivery on Maternal Request” (2018), https://
[Link]/Clinical-Guidance-and-Publications/Committee-Opinions/Committee-on-Obstetric-
Practice/Cesarean-Delivery-on-Maternal-Request#2.
4. See Joyce A. Martin, Brady E. Hamilton, Michelle J. K. Osterman, Anne K. Driscoll, and T. J.
Mathews, “Births: Final Data for 2015,” National Vital Statistics Reports 66, no. 1 (2017), https://
[Link]/nchs/data/nvsr/nvsr66/nvsr66_01.pdf.
5. Tina Lavender, G. Justus Hofmeyr, James P. Neilson, Carol Kingdon, and Gillian M. L. Gyte,
“Caesarean Section for Non-Medical Reasons at Term,” Cochrane Database of Systematic
Reviews 3 (2012), doi:10.1002/14651858.CD004660.pub3.

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 Chapter 7  C-Section by Choice  229

For a carefully referenced discussion, see British Columbia Perinatal Health Program,
Caesarean Birth Task Force Report 2008 (Vancouver: BCPHP, 2008), 54–55.
6. FIGO Committee for the Ethical Aspects of Reproduction and Women’s Health, Ethical Issues in
Obstetrics and Gynecology (London: FIGO, 2012): 88–89, [Link]
files/uploads/wg-publications/ethics/English%20Ethical%20Issues%20in%20Obstetrics%20
and%[Link].
7. See ACOG Committee Opinion, “Cesarean Delivery on Maternal Request.”
8. See Annika Karlstrom, H. Lindgren, and Ingegerd Hildingsson, “Maternal and Infant Outcome after
Caesarean Section without Recorded Medical Indication: Findings from a Swedish Case-Control
Study,” British Journal of Obstetrics and Gynaecology 120, no. 4 (2013): 479–86, [Link]
[Link]/doi/full/10.1111/1471-0528.12129.
9. “At the National Institutes of Health State-of-the-Science Conference on Cesarean Delivery
on Maternal Request in 2006, a panel of experts was charged with reviewing the available
literature and expert opinions on the subject. A systematic literature review of 1,406 articles was
conducted to evaluate the relevance of existing studies on cesarean delivery on maternal request
and the quality of the evidence. The panel concluded that the available information comparing
the risks and benefits of cesarean delivery on maternal request and planned vaginal delivery
does not provide the basis for a recommendation for either mode of delivery.” ACOG Committee
Opinion, “Cesarean Delivery on Maternal Request.”
Similarly, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists
appears not to take a position on whether vaginal delivery is safer than CSBC; see its Caesarean
Delivery on Maternal Request (CDMR) (Melbourne: RANZCOG, 2013), [Link]
au/RANZCOG_SITE/media/RANZCOG-MEDIA/Women%27s%20Health/Statement%20and%20
guidelines/Clinical-Obstetrics/Caesarean-Delivery-on-Maternal-Request-(C-Obs-39)-Review-
[Link]?ext=.pdf.
10. See ACOG Committee Opinion, “Cesarean Delivery on Maternal Request.”
11. Maria G. Dominguez-Bello, Kassandra M. De Jesus-Laboy, Nan Shen, Laura M. Cox, Amnon Amir,
Antonio Gonzalez, et al., “Partial Restoration of the Microbiota of Cesarean-Born Infants via
Vaginal Microbial Transfer,” Nature Medicine 22, no. 3 (2016): 250–53.
12. Mairead Black, “Vaginal Birth Comes with Risks Too—So Should It Really Be the Default Option?”
The Conversation, July 26, 2016, [Link]
too-so-should-it-really-be-the-default-option-62855. The article goes on to discuss some of the
other risks of planned vaginal delivery in the United Kingdom: “A further substantial proportion
of women experience important complications of vaginal birth. These include an 8% postpartum
haemorrhage rate, 1% blood transfusion rate, and a 5–6% third-degree tear rate (40% suffer
some degree of tearing). One in six (15%) women end up having an operative vaginal birth,
such as use of forceps, which is associated with faecal incontinence and pelvic organ prolapse
in later life. Also, it’s important to realise that long labours, complications and interventions
are associated with maternal distress, postnatal depression and intense anxiety in future
pregnancies.”
The author argues that these risks must be balanced against the risks of planned C-section:
“While not risk-free, it appears to be similar to that of a planned vaginal birth in the short term

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 230   DEBATING HEALTH CARE ETHICS

and—with a slightly higher risk of respiratory problems at birth—may be even safer for the baby.
However, the scarring from a section will make each future pregnancy more risky as it can affect
the development of the placenta, resulting in increased risks for the mother of developing major
bleeding and hysterectomy, although this is rare. There is also some concern that babies born by
caesarean could be at higher risk of developing asthma.”
13. See FIGO Committee for the Study of Ethical Aspects of Human Reproduction and Women’s
Health, Ethical Issues in Obstetrics and Gynecology (London: FIGO, 2012), 89, [Link]
org/sites/default/files/uploads/wg-publications/ethics/English%20Ethical%20Issues%20in%20
Obstetrics%20and%[Link].
14. See Daniel Robert Reilly, “Caesarean Section on Maternal Request: How Clear Medical Evidence
Fails to Produce Ethical Consensus,” Journal of Obstetrics and Gynaecology Canada 39, no. 12
(2009): 1176–79, [Link]
15. See Royal Australian and New Zealand College of Obstetricians, Caesarean Delivery on
Maternal Request.
16. See National Institute for Health and Care Excellence, “Caesarean Section” (2011), [Link]
[Link]/guidance/cg132/chapter/1-Guidance#planned-cs.
17. James Gallagher, “Women Can Choose Caesarean Birth,” BBC News, November 23, 2011,
[Link]
18. We consider the morality of abortion in chapter 6.
19. See, for instance, Hernandez-Dias et al., who mention a sevenfold increase in life-threatening
persistent pulmonary hypertension of the newborn (a serious respiratory illness). Sonia
Hernandez-Diaz, Linda J. Van Marter, Martha M. Werler, Carol Louik, and Allen A. Mitchell, “Risk
Factors for Persistent Pulmonary Hypertension of the Newborn,” Pediatrics 120, no. 2 (2007):
e272–82.
MacDorman et al. report neonatal mortality rates with no indicated risk at 1.77 per
1,000 live births compared to vaginal births with a rate of 0.62. Marian F. MacDorman, Eugene
Declercq, Fay Menaker, and Michael H. Malloy, “Infant and Neonatal Mortality for Primary
Cesarean and Vaginal Births to Women with ‘No Indicated Risk,’ United States, 1998–2001 Birth
Cohorts,” Birth 33, no. 3 (2006): 175–82.
See also Shiliang Liu, Robert M. Liston, K. S. Joseph, Maureen Heaman, Reg Sauve, and
Michael S. Kramer, for the Maternal Health Study Group of the Canadian Perinatal Surveillance
System, “Maternal Mortality and Severe Morbidity Associated with Low-Risk Planned Cesarean
Delivery versus Planned Vaginal Delivery at Term,” Canadian Medical Association Journal 176, no.
4 (2007): 455–60.
20. Barbara S. E. Verstraeten, Jane Mijovic-Kondejewski, Jun Takeda, Satomi Tanaka, and David M.
Olson, “Canada’s Pregnancy-Related Mortality Rates: Doing Well but Room for Improvement,”
Clinical and Investigative Medicine 38, no. 1 (2015): e15–e36, [Link]
cim/article/download/22410/18194.
See also, “Canada Has the 2nd Highest Rate of 1st-Day Infant Deaths in the Industrialized
World: Report,” CTV News, May 7, 2013, [Link]
rate-of-1st-day-infant-deaths-in-industrialized-world-report-1.1270425.

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 Chapter 7  C-Section by Choice  231

21. Liu et al., “Maternal Mortality and Severe Morbidity.” See also L. W. M. Impey, D. J. Murphy, M.
Griffiths, and L. K. Penna on behalf of the Royal College of Obstetricians and Gynaecologists,
“Management of Breech Presentation,” British Journal of Obstetrics and Gynaecology 124
(2017): e151–e177.
22. Liu et al., “Maternal Mortality and Severe Morbidity.” Maternal mortality rates are listed by
country in The World Factbook, [Link]
fields/[Link].
23. National Collaborating Centre for Women’s and Children’s Health, Caesarean Section (November
2011), [Link]
24. Liu et al., “Maternal Mortality and Severe Morbidity.”
See also G. Justus Hofmeyr, Mary Hannah, Theresa A. Lawrie, “Planned Caesarean Section
for Term Breech Delivery,” Cochrane Crowd, July 21, 2015; and Impey et al., “Management of
Breech Presentation.”
25. W. D. Ross, The Right and the Good (Oxford: Oxford University Press, 2002), 21.
26. See British Columbia Perinatal Health Program, Caesarean Birth Task Force Report 2008;
“The Cost of Childbirth across the Globe,” Coyne College, December 14, 2016, [Link]
[Link]/news-events/cost-childbirth-across-globe.
See also “Average Charges for Giving Birth: State Charts,” Transforming Maternity Care,
[Link]
27. See our discussion of two-tier health care in chapter 8.

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 8 TWO-TIER HEALTH CARE

INTRODUCTION

Up until the late 1940s, health care in Canada was paid for privately. Access to medical
services was based on one’s ability to pay for it. In 1947, however, the government of
Saskatchewan introduced the first provincial public health insurance plan that covered
hospital services. Other provinces soon followed Saskatchewan’s lead, and by the early
1970s, all of the provinces provided universal public health insurance (universal care)
for both hospital and physician services. Although the administration of these services is
the responsibility of the provinces, they receive funding from the federal government. In
1984, Parliament passed the Canada Health Act, which specifies criteria the provinces
must meet in order to receive federal funding. Among other requirements, the provinces
must provide “comprehensive” and “universal” care to all insured residents.
While Canada’s public and universal health care system is the envy of many, it
is not without its critics. In recent years, the system has come under fire for increas-
ingly long waits for diagnostic procedures and other services. As we write this chapter,
patients requiring magnetic resonance imaging (MRI), for instance, must wait from
two to six months. Over the past several years, private medical clinics offering MRI
services have been popping up around the country. Those who can afford the roughly
$900 fee for a straightforward MRI can now receive one within days in the private sec-
tor. Many see this further move toward a
more entrenched blended private/public DEFINITION
or two-tier health care system as a posi- MRI stands for magnetic resonance im-
tive development, one that will help to aging, a technique for scanning for mus-
take some of the pressure off of the pub- cle and joint injuries. Both the scans
lic system and thereby benefit everyone, and the machines that perform the scan
while others worry that a blended system are referred to as MRIs.
will erode the public system.
Here we will discuss the problem of
queue jumping in the use of private, for-profit care (accessible only to those able to

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 Chapter 8  Two-Tier Health Care  233

pay high fees) to avoid long wait times

BACKGROUND
for publicly insured health services (ac-
cessible to all legal residents of Canada). In British Columbia in 2018, 50 percent
The two tiers referred to are care acces- of patients were waiting more than 41
sible to all and care accessible only to days for an MRI and 10 percent of pa-
those with means. The means may be tients more than 199 days.
private insurance, charitable funding, or
Source: Richard Zussman, “BC Government
personal wealth. In any case, some have Promises to Cut MRI Wait Times,” Global
the money to pay for services that are un- News, March 27, 2018, [Link]
affordable for other residents. To be sure, ca/news/4108431/b-c-government-mri-
wait-times/.
there are cases of mixed public and pri-
vate payment for care. While these may
blur the public/private distinction for
some purposes, we are concerned here only with clear cases of unequal access to care.
A two-tier system is any system where such cases exist. The Canadian system is a two-
tier system. We will use the term public health care to refer to the care universally and
completely covered by public insurance, accessible to all lawful residents of Canada.
Private care is that which is not universally and completely covered, and so is inacces-
sible to those who lack the means.
Our drama focuses on Sanders and Ben, two talented high school–aged hockey
players who have the potential to achieve their dream of playing in the Juniors, which
may lead to the NHL with its promise of riches and fame. Unfortunately, both players
are injured and need MRIs to determine the nature of their injuries and the best course
of treatment. Sanders is lucky: he comes from a wealthy family that can afford to buy
him a private MRI. Ben, however, comes from a family of modest means. His family
cannot afford a private MRI. Because Sanders can afford a private MRI and Ben cannot,
Sanders can return to the ice much sooner than Ben, and thereby improve his prospects
of making it to the next step on the way to the NHL. Ben is stuck in the long queue for
publicly funded diagnostics.
The general issue raised by our drama is whether a two-tier system of health care in
Canada is morally acceptable. In other words, is it morally permissible, in Canada, for
some to be able to use their wealth to access faster or better health care while others who
lack the means must wait to access a slower and so, in some respects, inferior health care
system? The more specific question we focus on is whether a two-tier system of MRI in
Canada is morally acceptable. At the heart of this question is a conflict between liberty,
on the one hand, and fairness and equality, on the other hand. Advocates of two-tier
MRI argue that people should be free to purchase private medical services if they have
the desire and means to do so. Critics argue, however, that it is unfair that the wealthy
have access to faster and perhaps better care than the less wealthy. Respect for equality,
among other values, requires equal access to care. A further issue raised by our drama,

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 234   DEBATING HEALTH CARE ETHICS

and explored in our debate, is whether it is morally appropriate for people to use the
private health care system if the system itself is not permissible.
In this debate, there is significant agreement among Doran, Warren, and Patrick on
the question whether two-tier MRI is morally permissible. They agree that it is permis-
sible in Canada, if and only if certain conditions are met. Although there are differences
in their views about what the relevant conditions are, there is agreement that private,
for-profit MRI, inaccessible to some citizens, is permissible only if it does not undermine
the public health care system and the provision of other important social goods (for ex-
ample, education, social, and economic opportunity). These are necessary conditions; the
authors argue that further conditions must be met in order to show that private MRI
is morally permissible in Canada. Warren, for one, is skeptical of the claim that private
MRI in Canada can satisfy these conditions, and so he thinks that private MRI is likely
not morally permissible in Canada.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Explain the libertarian argument against taxation to support public

health care
• Understand why libertarians think that people should have a right to
purchase private health care
• Discuss two egalitarian arguments against two-tier medicine (against
adding private to public medicine)
• State objections to these egalitarian arguments
• Describe Warren’s, Patrick’s, and Doran’s views on when two-tier MRI
is justified
• Explain why Warren and Patrick think it is permissible for Canadians
to access two-tier MRI even if the government should not allow private
medicine, and explain Doran’s argument to the contrary

DRAMA
Please note: This case is based on various true stories, although names, places, and some
uncontroversial elements of the case have been changed to preserve anonymity and con-
fidentiality. Discussions of this and similar cases with health care professionals have also
informed this fictional case. The drama merely raises issues. The philosophical argu-
ments are to be found in the debate following the drama.

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 Chapter 8  Two-Tier Health Care  235

CHARACTERS

Coach: the coach of a high school– Art: a former player on Coach’s

aged hockey team team

The scene is a family restaurant where Coach sits looking glum as he eats breakfast. A former
player of his, Art, walks in.

Art: Hey, Coach! It’s been a long time.

Coach: Art, my man! Where’ve you been?
Art: Uganda. I’ve been setting up a computer system for Makerere University on a
CIDA project.
Coach: Hell, not much ice time there, I’ll bet.
Art: Yeah, hockey is not a concept there. Hell, cold is not a concept. Hey, I hear you’re
coaching the Arrows now.
Coach: Yeah.
Art: You don’t sound overjoyed, Coach. What’s up?
Coach: Don’t get me wrong. I love the job. It’s just player injuries that are weighing on
my mind. You see, I’ve got this line we call the Sandbag Line that has been doing
all the scoring. Ben Begin and Sanders Carter are what really make it cook. Sanders
is right wing, Ben is left, and they click like magic. Ben sets up the play and Sand-
ers pops it in.
Art: Who got hurt?
Coach: That’s the hell of it. Both are hurt. Ben took a bad hit in the last game of this
season and his knee is bad, but they don’t know for sure what it is. They need to do
an MRI. They told him he’s got at least a three-month wait for that!
Art: Geez, that’s hard. At least he finished the season. But man, three months is a life-
time when you’re that age.
Coach: God, yes. A kid like that laid up through the summer. Ouch! So that injury
was four weeks ago. The thing is, will he be diagnosed and treated in time to start
next season? I’m really pulling for this kid. He’s got heart. His family hasn’t got
two nickels to rub together, and since he’s been old enough he’s always worked and
helped out with the costs. Hockey is expensive. His family scrimped and saved
to put him in hockey and keep him there until he was old enough to handle most
of the costs by taking part-time jobs. His family can’t help any more. They’ve got
younger kids to look after. Ben just keeps plugging away, though. He buys all his
gear second hand. He just loves the game. He doesn’t let anything stop him. But he
may be skewered now.
Art: Let’s hope not. What about the other guy?

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Coach: Well, Sanders hurt himself hang-gliding just last week. He did something to
his shoulder. Talk about a contrast. He gets an MRI the next day ’cause his Dad can
plunk down $875 like it was a penny. Carter owns that fancy restaurant, Le Maître,
and half a dozen other businesses. It turns out that Sanders’s family physician went
to med school with the top specialist and Sanders has already had his operation.
No chance he won’t be starting next season. If you can prime the pump with a few
bucks, the government will let the treatment flow. If you can’t, you wait.
Art: Yeah, it stinks.
Coach: Don’t get me wrong. I’m happy for Sanders, but he’s had everything handed to
him on a plate. You know, he gets the best of everything, the latest gear. He’s not a
bad guy, but spoiled and a bit full of himself, of course. He offered to give Ben his old
equipment whenever something new comes on the market, but Ben insists on buying
it. Still, Ben is better equipped than he could be otherwise, so Ben kind of benefits too
from old man Carter’s largesse. The thing is, if we don’t do something, Sanders will
be out there hot-dogging around catching the eye of the scouts while Ben will still be
laid up, you know? That could be crucial. That might make a career difference, see?
Art: “Them that’s got shall get, them that’s not shall lose, so the Bible says, and it still
is news.”
Coach: That about sums it up. What’s that saying from?
Art: The song “God Bless the Child.”
Coach: Oh, yeah. Great song.
Art: You know, Coach, it’s all relative. Kids I know in Africa see Ben’s life as the impos-
sible dream. They’d all give their right arm to be in his shoes.
Coach: Yeah, that puts it in perspective. Life ain’t fair, and it’s more unfair there than
here. But damn it, Artie, this is Canada. At least at home we pride ourselves on
being fair to our own.
Art: This is really getting to you, isn’t it, Coach?
Coach: Yes, and it’s not just the kids, Art. There’s seniors in this town hobbling around
waiting for knee surgery. Damn it, Art, it’s not Africa here. The government should
give everybody the medical help they need. In a rich country like this, nobody
should have to beg for the essentials.

DEBATE

Clarifying the Case and Identifying Relevant Facts

Patrick: Are these boys still in high school?

Warren: Yes, but they are at the age where the scouts are starting to watch them. They
are waiting to be picked to play in the Juniors in towns like Medicine Hat and Swift
Current, the first big step toward the NHL.

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 Chapter 8  Two-Tier Health Care  237

Patrick: So a concern here is that Ben may

BACKGROUND
have to miss the next season, whereas
Sanders won’t, and this could hurt “The rapid growth of private MRI (mag-
Ben’s prospects for turning pro. netic resonance imaging) clinics, which
Warren: Right. permit people to purchase faster ser-
Doran: If Sanders gets his MRI more vice and then use test results to ‘jump
quickly, then presumably he will get the queue’ back into the public system
his diagnosis more quickly, but does for treatment, is a troubling case.” (em-
it also mean he will get treated for the phasis added)
problem sooner?
Source: Roy J. Romanow and the
Warren: Yes. Commission on the Future of Health
Doran: Why? Isn’t there a backlog for Care in Canada, Building on Values: The
physical therapy, surgery, rehab, and Future of Health Care in Canada—Final
Report (Saskatoon, SK: Privy Council,
other procedures?
2002), xxi, [Link]
Warren: It depends. Surgeons and physi- pub?id=237274&sl=0.
cal therapists often have room to treat
people. But sometimes there is a back-
log there as well, especially to see surgeons. The thing is that you typically cannot get in
line to see a surgeon until you have had your MRI to diagnose the problem. Our story
takes place in the diagnostic part of the queue, where there is a bottleneck. Sanders gets
in line for surgery first, in any case.
Doran: Are private MRIs legal in Canada?
Warren: It’s iffy, but they are being done. Private clinics even advertise newer, supe-
rior scanners.
Patrick: How are MRIs delivered privately? Are they always done in private clinics?
Warren: Usually. Some hospitals have rented out their machinery to private clinicians
after hours, but I think that has been stopped.
Doran: Do you know the cost of an MRI?
Warren: As we speak, depending on how much competition they have from other clin-
ics, they will price it from about $900 for a basic knee scan.1 This is one of the easy
and profitable MRIs to do. The difficult ones may be left for the public system.
They’d be a lot more expensive to purchase privately.
Patrick: I suppose if they were not offered in Canada, patients could go down to the
States, get an MRI, and then bring back the report to their physician in Canada?
Warren: Yes. Though it is worth mentioning that the out-of-pocket costs for an MRI in
the States are typically greater than in a private clinic in Canada. Indeed, it is rather
interesting how much MRI costs vary by locale.2
Doran: Why doesn’t the government buy more of these machines if there is such a
shortage? Are the costs that out of line?
Warren: The costs are very high, around $3 million per MRI scanner to purchase, and
hundreds of thousands per year to run and maintain.3

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 238   DEBATING HEALTH CARE ETHICS

BACKGROUND
“There is clear evidence that Canada has underinvested in diagnostic technologies in
comparison with other OECD countries and the result is long waiting times for essential
diagnostic tests.”

Source: Romanow, Building on Values: The Future of Health Care in Canada—Final Report, xxix.

The number of MRI machines per million people is 46.9 in Japan, 35.5 in the United
States, and just 8.8 in Canada.

Source: Bradley Sawyer, “Per Capita, the US Has Three Times as Many MRI Machines than
Comparable Countries on Average,” Peterson-Kaiser Health System Tracker, May 8, 2017,
[Link]
comparable-countries-average/#item-start.

There is also a shortage of technicians, and it takes time and money to train
them and much more money to pay their salaries. So, adding more MRIs would
require more staff to run them. The operational costs are more of a problem than the
capital costs of the machines.
Patrick: Is there evidence that shows that allowing private MRI shortens the wait times
in the public system?
Doran: Yes, would things be worse in the public system without them?
Warren: There are complaints from some groups that private MRI does not help the pub-
lic system and, in fact, hurts it. On the
other hand, 1 in 10 patients are wait- BACKGROUND
ing up to 200 days in the public system Evidence suggests that allowing private
in some regions to get MRIs,4 so pri- imaging clinics does little to help de-
vate clinics are offering their services crease wait times for MRIs in the public
to shorten wait times. system.
Patrick: So, as things are, if someone tears
a ligament or something, that person Source: Dr. Ryan Meili, “Allowing Private
has to wait that long in the public sys- MRI Clinics Does Not Shorten Wait Times
in Public Healthcare Systems,” Huffington
tem just to get the scan? Clearly, more
Post, December 28, 2014, [Link]
diagnostic equipment and technicians [Link]/ryan-meili/private-
are needed. healthcare_b_6056848.html.
Warren: Yes, but you can understand
governments’ reluctance to increase
diagnostic procedures. More diagnostics can make for strains on other parts of the
system. I have anecdotal evidence that people have needless exploratory operations

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 Chapter 8  Two-Tier Health Care  239

now because of MRIs done in the States that show a possible problem that turns out
to be benign. Before MRI, the apparent problem would never have been noticed.
Add to that the lack of clarity about whether the private MRIs really reduce wait
times in the public system, and you can see why the system managers avoid just
pouring money into this one.5
Patrick: Interesting, Warren. Well, if Ben does get an MRI, and if it turns out he needs
surgery, I wonder how long it will take to receive the necessary operation. Do you know?
Warren: I think it is pretty quick for the surgery. Weeks in Ben’s case, I bet. It de-
pends on the specialty needed, the demand for the needed procedure, availability
of appropriate facilities in the area where it’s being done, and other factors such as
these—factors that commonly affect the responsiveness of a health care system.
Patrick: Some might wonder whether there really is a problem in this case, though. If
Ben really is talented and set on a career in the NHL, and an MRI costs (only!)
$900, then it seems that it wouldn’t be too hard to find a way to pay for it.
Warren: Ben is from a large family. His parents can’t help. He is strapped supporting
his hockey habit with work after school—$900 is huge in those circumstances.
His family is already deeply in debt and unable to take on more, given their
meagre salaries.
Patrick: I suppose that’s right. For some, $900 is no big deal, but for others it’s rent.
Doran: The situation is particularly tough
for Ben, since it has already cost him BACKGROUND
and his family a lot just to equip him “The Vital Signs/True Sport Foundation
and to pay the fees to get him on a study finds that the rising cost of sports
team. Indeed, more and more Canadi- is also a barrier for many families. The
ans are unable even to play organized most recent data shows that 6 out of
hockey because they cannot afford it. 10 children from low-income house-
Ben’s family has made all those sacri- holds are active in sports, compared
fices to get him to this point, but this with 8.5 out of 10 from families with
last obstacle is too great. Coming up incomes over $80,000.”
with the extra $900 is simply beyond
their means. Source: Jamie Strashin, “No More Joiners:
Patrick: So Ben’s lack of resources puts Why Kids Are Dropping Out of Sports,” CBC
News, May 10, 2016, [Link]
him, yet again, in a difficult position
ca/sports/sports-participation-canada-
that Sanders doesn’t face. kids-1.3573955.
Warren: And pulling himself out of pov-
erty by getting a shot at the Juniors
and ultimately at the NHL makes the opportunity to be scouted for professional
teams mean so much more to Ben than to Sanders.
Patrick: Right. If Sanders doesn’t make it in hockey, he likely has other lucrative career
options. For Ben, it appears that pro hockey is his ticket out of poverty.

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 240   DEBATING HEALTH CARE ETHICS

Warren: Ben’s grades aren’t great because he puts it all into hockey, and working part-
time doesn’t leave him much time to study.
Patrick: I imagine it’s not uncommon for young players to get injured and have to miss
part or all of a season. Does this really seriously affect their chances?
Warren: At this stage in his hockey development, Ben is likely to suffer huge disad-
vantages if he misses too much of the coming season. His skills may get rusty, his
conditioning will no doubt suffer, he will miss the start of the season, and he will
probably be viewed by the scouts as injury prone. As a result, he may not look very
good to the scouts in the future if he is off for an extended period. There is a tide in
the affairs of a young hockey player, which, taken at the flood, leads on to the NHL.
The timing is crucial for Ben. His boat might be left high and dry at low tide after
Sanders sails away. If, moreover, Ben does have to wait even the average time for an
MRI, he may become more difficult to treat, and treatment may not be as success-
ful. These would be disadvantages for any athlete, but in the fierce competition for
the attention of the scouts and for a place in the top rung of the Juniors, this delay
can be very significant.

MORAL ISSUES RAISED BY THE CASE

Patrick: Okay, I think we’ve got the relevant background facts straight. The main moral
issues raised by the case are pretty straightforward—they concern the permissibility
of two-tier MRI in particular, and two-tier health care in general, given the appar-
ent unfairness this involves.
Doran: Perhaps we should limit ourselves to the more specific question, though. I would
be content if we could clarify the simpler question of whether private MRI is mor-
ally acceptable in Canada. Clarifying our thoughts on this question would be very
helpful since this is a matter of current concern in Canada. Also, if we reach some
conclusions about this more limited question, it may serve as a template for think-
ing about the larger question of whether two-tier health care, in general, is morally
appropriate in Canada.
Warren: Yes, given the complexity of the problem, let’s just stick to the more limited
question of whether private MRI is morally permissible in Canada. A caveat, how-
ever, is in order. Whether or not two-tier medicine in Canada can be effectively
delivered is largely an empirical question. As philosophers, we have no special in-
sight into such matters. What we can do, however, is try to answer the following
question: Is two-tier MRI ever morally acceptable, even in principle, and if so, under
what conditions?
Patrick: That sounds right. Well, why don’t we begin as usual by stating our initial views
on this issue?

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 Chapter 8  Two-Tier Health Care  241

Stating Our Positions

Doran: The question of two-tier MRI in Canada brings to the fore a host of moral
values: front and centre are questions of liberty, equality, fairness, compassion, self-
respect, and so on. On the one hand, those who favour liberty as a basic value may
defend the permissibility of private MRI as a matter of principle; those who are mo-
tivated by compassion or care may also support private MRI if it means their loved
ones will get needed care more quickly. On the other hand, fairness, equality, and
the value of self-respect seem to speak in favour of a one-tier system that distributes
health care on medical grounds alone and does not give special advantages to those
who happen to be affluent. I am torn by this difficult issue; however, I believe that
two-tier MRI in Canada is morally permissible, but only if certain conditions are
met. For me, the most important conditions are (1) two-tier MRI must not threaten
the robust social safety net that should be available to all Canadians, and (2) where
such a social safety net is lacking, two-tier MRI ought to be allowed only if it is the
best means of providing this robust social safety net.
Warren: First of all, let me say that I sympathize with those who seek private MRI,
since it is a moral failing of the Canadian government not to support publicly
funded MRI adequately. As you say, this issue is extremely difficult. I agree with
your first condition given Canada’s current wealth, but that could change. From the
original position, people would require different degrees of strength of the safety
net depending on the society’s wealth. Given its current wealth, Canada should
provide a robust social safety net, but it has failed to do so. Something like your
condition (2), substituting “good” for “best” seems acceptable in the original posi-
tion as well. I suspect, though, that private MRI will drain talent from the public
system. Private MRI may also cause other social harms outside the health care
system. I think, therefore, that allowing private MRI is not morally permissible in
Canada under current conditions. I concur with your conclusion, Doran, though I
would justify it differently.
Patrick: Well, it seems unfair that those who happen to be wealthy have better access
to such a basic good as medical care; however, I agree that private MRI would be
morally permissible if certain conditions were met. If allowing private MRI benefits
those in the public system, then I believe it is permissible. Private MRI may also be
permissible, I think, even if it doesn’t benefit others, provided that it doesn’t harm
those in the public system. A virtuous society would be a compassionate society,
one that ensures that everyone has a reasonable stock of primary social goods—
that is, goods that everyone (or almost everyone) needs to live well. So, as long as
private MRI improves everyone’s lot, or at least doesn’t worsen things, I believe it
is permissible. This is just a rough statement of my current view, but I’ll refine it as
necessary as we proceed.

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THEORY
Some virtue theories speak only to matters of character and moral claims among indi-
viduals. They have nothing to say about the design of social institutions. Patrick’s virtue
theory incorporates elements of “ideal observer” theories. The right act or policy is the
one that a virtuous person with full information would see as right. This allows a broader
application of his virtue theory.

Doran: It looks as if we all agree that two-tier MRI could be morally permissible under
the right sorts of conditions, though we differ somewhat on the conditions that would
need to be in place in order to make two-tier MRI morally acceptable. Now that we
have the rough initial statements of our views, how would you like to proceed?
Patrick: Given the complexity of the problem, and given that each of us claims to sup-
port two-tier MRI in some circumstances but not in others, it may be best if we be-
gin with some of the more straightforward and extreme views, such as that private
MRI is always permissible, or that private MRI is never permissible.
Doran: I agree. By understanding why these simpler arguments fail, we may also see
why a more nuanced position with respect to two-tier MRI is best.
Warren: Yes, once we consider these more extreme views, we can turn to our own posi-
tions, and see if there are any devils in the details.

A LIBERTARIAN ARGUMENT

Doran: Libertarians would defend the existence of private MRI on the ground that
it would be unjust for the government to prohibit it. The basic thought is that the
government should not interfere with the liberty of its people unless it is necessary
to prevent violence, theft, or fraud. In the marketplace, people should be free to do
what they want provided that it does not violate anyone else’s rights.
Patrick: That’s right. According to libertarians, if I have justly acquired some wealth, then
I have the right to spend my wealth in any manner that I choose, provided that doing
so does not violate anyone else’s rights. If, for instance, Sanders’s father wants to pur-
chase an MRI for his son, and if someone else wants to sell him one, then they should
be free to make that exchange, provided that doing so violates no one else’s rights.
Doran: So, putting these points together, the libertarian argument as it relates to the
present case can be stated as follows:

(1) If a person freely consents to an action and the action does not violate the
rights of others, then the government is not morally permitted to interfere
with that action.
(2) If a person does not engage in violence, theft, or fraud, then the person
does not violate the rights of others.

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 Chapter 8  Two-Tier Health Care  243

(3) Sanders freely consents to getting a private MRI without engaging in any
violence, theft, or fraud.
(4) Therefore, the government is not morally permitted to interfere with
Sanders getting that private MRI.

Patrick: That sounds like a libertarian argument, but the libertarian position, of course,
goes well beyond just arguing for the permissibility of private MRI. Libertarians also
argue that publicly provided health care is inherently unjust. This is because they con-
tend that the taxation needed to fund a public health care system is inherently unjust.
Forcing people to pay for a public system, they claim, violates people’s rights.
Doran: That’s true, the radical position
being considered here maintains that THEORY
not only should people be free to pur- “Taxation of earnings from labor is on a
chase private health care, but also par with forced labor.… Taking the earn-
that taxation to fund a public system ings of n hours of labor is like taking n
violates taxpayers’ rights. hours from the person; it is like forcing
Warren: Why should anyone believe the person to work n hours for another’s
such claims? It seems strange to me purpose.”
that one would want to have things
Source: Robert Nozick, Anarchy, State, and
like MRI governed by the free mar-
Utopia (New York: Basic Books, 1974), 169.
ket rather than regulated reasonably
by government, since the market can
leave people like Ben out in the cold through no fault of their own. Why should we
think that the taxation needed to fund a public system is unjust, and why should we
think that the market should determine who receives health care and under what
conditions?
Patrick: I share your concerns, Warren. The premises in this argument seem to depend
on an unreasonably narrow conception of rights. In particular, they seem to depend
on the idea that the only rights people have are negative rights. But why should we
accept that? Many of us believe that persons have positive rights to basic goods like
education, health care, shelter, and so on.

THEORY
Philosophical analyses of rights commonly distinguish negative rights from positive
rights. The former are characterized as rights to non-interference, while the latter are
described as rights to be provided with money, goods, services, and so on. Thus, for
example, my right not to be physically harmed may be understood as a negative right,
as it imposes a duty on others not to do a variety of things. If I also have a right to be as-
sisted by others when I am in need, then I would also have a positive right to aid. A right
to health care is understood as a positive right, then, since its satisfaction requires the
provision of various goods and services.

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 244   DEBATING HEALTH CARE ETHICS

The Wilt Chamberlain Example

Doran: It may help to see some of the in- THEORY

tuitive pull of the libertarian’s prem- The difference principle says that a
ises by looking at a famous example just society should distribute income
presented by Robert Nozick.6 It goes and wealth equally, unless inequality
like this. Suppose we start with a benefits everyone, especially those in
system that is considered fair by the the worst-off group. It is one of the prin-
libertarian’s opponents. In this ini- ciples of justice favoured by John Rawls.
tial distribution everyone has equal For more on Rawls’s theory of justice,
wealth (or wealth is distributed ac- see chapter 2.
cording to the difference principle or
whatever principle you consider a fair
distribution principle). BACKGROUND
Wilt Chamberlain, an amazing Wilt Chamberlain was an amazing play-
basketball player, then signs a con- er in days gone by. He once scored 100
tract with a team that allows him to points in an NBA game, and still holds
get 25 cents for every ticket sold. A dozens of NBA records.
million people cheerfully go to see
Wilt play in a season—they happily
drop 25 cents in a box with Wilt’s name on it. At the end of the year, Wilt has a lot
more money than others in the society—$250,000.
But how can we say that he is not entitled to his money? In the initial distri-
bution, by hypothesis, people were entitled to their wealth. They then gave some
of their money to Wilt freely and happily. Now, if the government taxes Wilt’s
income in order to give to people in need, or to fund health care or other social
programs, then it is taking something that properly belongs to Wilt. The govern-
ment is treating Wilt merely as a means to some other end, and that, says Nozick,
is inherently unjust.
Patrick: I think the example does have intuitive pull. The idea is that if people start out
with what they are morally entitled to, and if they voluntarily make choices that
result in a new economic distribution (with Wilt having more money than others),
then that new economic distribution is also just. If the government then steps in to
take away some of the money that Wilt was voluntarily given, then that intuitively
seems unfair to Wilt, since it violates his right to money he fairly acquired.
Warren: Okay, I see the intuitive pull of this example. And I suppose libertarians claim
that this point about Wilt Chamberlain can be generalized so that it applies to cases
like the one we’re considering.
Doran: That’s right. Suppose Sanders’s father has played by the rules of society,
has worked hard, and has earned a large fortune. It seems unjust that someone
should now step in and take away some of his justly acquired wealth. Moreover,

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 Chapter 8  Two-Tier Health Care  245

if Sanders’s father wants to use some of his wealth to buy an MRI for his son,
and if some physician who has justly acquired an MRI machine wants to sell
him an MRI scan, then it seems that it would be unjust for the government to
prohibit that. A system that takes away one’s justly acquired holdings, or that
prevents one from using one’s justly acquired holdings in ways that one wants,
does seem unjust.
Patrick: So the Wilt Chamberlain ex-
ample helps to motivate premises THEORY
(1) and (2) in the libertarian argu- A redistributive tax aims at redistribut-
ment. In support of premise (2), it ing wealth, typically by taking money via
suggests that Wilt’s acquisition of taxation from those who are relatively
wealth violated no one’s rights, since wealthy with the purpose of benefitting
he acquired his money not through those who are relatively less wealthy
violence, theft, or fraud, but through (say, through welfare payments, daycare
a voluntary exchange of money for subsidies for the children of poor peo-
services. And given that Wilt did ple, pensions for low-income seniors,
not acquire his money in a way that etc.), or with the purpose of promoting
violated the rights of others, then, in various social goods (such as the arts,
support of (1), the example suggests parks, public schools, and public health
that it would be wrong for the gov- care). Other taxes are not redistribu-
ernment to interfere with this volun- tive—for instance, taxes that are used to
tary exchange of money for services punish criminals, prevent crime, and se-
by imposing a redistributive taxa- cure the nation’s defence. Libertarians
tion scheme that forced Wilt to give oppose redistributive taxation but do
up a certain percentage of the money not oppose non-redistributive taxation.
he’s been given.

Is Redistributive Taxation Inherently Unjust?

Warren: Both of the libertarian’s premises are problematic. Let’s start by looking more
closely at the first premise. Suppose, for now, that Wilt acquires his wealth in a way
that does not violate anyone’s rights, since he does not use force or fraud. Does it
follow from this that it would be wrong for the government to interfere with the
exchange of money for services by forcing Wilt to pay taxes on the money he col-
lects in order to fund social programs? More generally, is redistributive taxation
inherently unjust?
Patrick: To answer this question, let’s see if we can follow the same basic strategy as
the libertarian, but present an example that elicits intuitions on the other side—
intuitions that support the claim that redistributive taxation is not unjust. If we
can do this, then we will have less reason to find the original Wilt Chamberlain
example persuasive.

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 246   DEBATING HEALTH CARE ETHICS

Doran: Good, so let’s tell a story that parallels the Chamberlain example but elicits
different intuitions. We begin with some initial distribution of wealth that is
agreed to be fair—say, everyone has an equal amount of wealth. Now, suppose
that Mary Andrews is a hard-working young woman just recently graduated from
college. She is looking forward to her new career as a preschool teacher. Tragically
for Mary, and through no fault of her own, she discovers a lump in her breast. It
turns out to be cancer. Mary needs an operation, and she needs chemotherapy and
radiation treatment. Though she suffers terribly, Mary is courageous and strong,
and she is determined to live and to beat her cancer. So, Mary takes all of her sav-
ings and pays for her operation, and her chemotherapy and radiation. During this
time, she is very weak and so she must take time off from work, but because of
the excellent care of her physicians and nurses, and because of her sheer strength
and determination, Mary begins to feel better and she eventually is able to re-
turn to work. Unfortunately, at one of her follow-up appointments, she learns
that her cancer has returned. She needs more chemotherapy and radiation. With
the chemotherapy her odds are 50/50 that she will be cured, but without it she
will likely die within the year. Mary
is determined to do battle again, but TECHNIQUE
the trouble is, Mary has exhausted The Wilt Chamberlain example is meant
her savings and has not had time to have intuitive appeal. Doran has
to replenish them. She simply can- weakened that appeal by providing
not afford her treatments. She begs an example that is meant to have in-
her bank for a loan, but it refuses. tuitive appeal in the opposite direction.
She is a credit risk—if she dies, the Libertarians can give examples that
bank won’t get its money back. For elicit intuitions that support their view,
the same reason, her physicians are but supporters of redistributive taxa-
unwilling to have her defer payment. tion can give other examples that elicit
They want payment up front. Mary is perhaps stronger intuitions that support
powerless. She needs the treatments their view.
but she cannot afford them. Eventu-
ally, Mary realizes that she will die.
There is nothing that she can do.
Patrick: So here we have an example in which health care is governed by the free mar-
ket. Since some people, like Mary, can’t afford needed care, they must go without.
A charity might, of course, step in and help Mary pay for the care she needs. But
if she can’t afford care, and no charities offer to help, then libertarians would say
that this situation is unfortunate, but Mary has no right to the assistance of others.
Doran: Right. But suppose we put the case of Mary Andrews beside the Wilt Cham-
berlain example, and we realize that there could be a public system that taxed Wilt
and others who could afford to pay taxes. This money could then be used to fund

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 Chapter 8  Two-Tier Health Care  247

a public medical system that could help save the lives of those who, like Mary, are
unlucky and who fall ill. Is it still so obvious that it would be wrong to tax Wilt? Or
do you have the opposite reaction that it would be unjust not to tax Wilt, if that was
what was necessary to save Mary?
Warren: Well, it seems clear to me that it would be better to tax Wilt and save Mary
than to not save Mary and let Wilt keep all of his fortune. When you consider not
just Wilt, but also Mary, and others like her, the Chamberlain example loses much
of its intuitive force.

THEORY
A utilitarian would agree with redistributive taxation if and only if it is the best way to
maximize happiness, and minimize suffering, for all concerned. Given the diminishing
marginal utility of money, it is very likely that utility will be maximized by taxing the
wealthy like Wilt in order to provide the necessities for those that are very poor, like Mary.
The idea of the diminishing marginal utility of money is roughly the idea that an extra
bit of income is unlikely to benefit a person above a certain level of wealth as much as
someone below a certain level of wealth. For instance, consider whether an extra $50 is
likely to provide a greater benefit to a millionaire or to a person struggling to pay her rent.

Patrick: I agree that the Chamberlain

example no longer looks that compel- TECHNIQUE
ling once you begin to consider people Patrick here is anticipating an objec-
like Mary who happen to be unlucky. tion the libertarian is likely to raise. By
However, the libertarian might re- considering objections, and effectively
spond to us by saying that even if a responding to them, one provides more
system of taxation that funded health rational support for one’s view.
care had good consequences, it is still
wrong because it treats some (namely,
those who are taxed) merely as a means to an end.
Doran: Good point. But I wonder whether (a) it is always wrong to treat people merely as
a means, and (b) whether people who are taxed really are treated merely as a means.
Kant clearly claims that people should never be treated merely as a means,
but one could disagree with Kant. If the interference is relatively minor, and if the
benefit is relatively large, one might believe it is not wrong to treat someone mere-
ly as a means. If Wilt and others who are wealthy are taxed and end up slightly
less wealthy but still comfortable, and if doing this saves people who otherwise
would have died or been impoverished, then I do not think it would be wrong to
do this, even if that is treating some as a mere means. The alternative strikes me
as much worse.

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 248   DEBATING HEALTH CARE ETHICS

THEORY
Immanuel Kant, in The Groundwork of the Metaphysics of Morals, writes, “Man, and
in general every rational being, exists as an end in himself, not merely as a means for
arbitrary use by this or that will: he must in all his actions, whether they are directed to
himself or to other rational beings, always be viewed at the same time as an end.”
To treat people merely as a means is to treat them in a way to which they do not freely
consent. It is to treat them like tools, not like persons. Kant believes it is wrong to treat
a person merely as means, because it disrespects a person’s rational nature. According
to Kant, a person is not a thing to be used, but a rational being whose decision-making
capabilities are to be respected. The libertarian’s point is that redistributive taxation is
wrong because it treats those who are taxed in ways that they do not freely consent to,
and hence, as mere means.

Patrick: Agreed. I think it’s just plain false that we may never use people merely as a
means. A compassionate society would ensure that its citizens’ basic needs are met
whenever feasible. It would not allow the distribution of things like housing, edu-
cation, and medical care to be entirely up for grabs in a free market. To allow this
would amount, in many cases, to rewarding the fortunate for their good fortune—
their good genes, home, education, and so forth—and punishing the unfortunate
for their bad fortune. If it is necessary to tax people in order to ensure that every-
one’s basic needs are satisfied, then that’s what a virtuous society should do, even if
this involves treating some people merely as a means.
Warren: In my view, it is acceptable to sometimes treat people merely as a means. Spe-
cifically, when it comes to redistributive taxation, people in the original position
would be in favour of it, insofar as it is necessary to provide a strong social safety net.
Not knowing their own preferences for risk in the real world, it would be reasonable
for people in the original position to avoid extreme libertarian or egalitarian poli-
cies and to occupy the middle ground with moderate redistribution. That way the
choosers of rules in the original position would avoid being at the opposite extreme
from where their real interests lie. That hypothetical endorsement, however, does
not change the fact that some wealthy people’s goals and reasons for them will be
ignored in the real world by some kinds of redistributive taxation. Therefore, if we
implement such policies in the real world, then some wealthy people will be treated
merely as a means, but this is nevertheless the right thing to do, since this policy
would be endorsed in the original position.
Doran: While I also agree that it is sometimes permissible to treat people merely as
a means, especially when such interferences are relatively minor, and when such
interferences are necessary to prevent grave harm, I think it is worth considering
whether redistributive taxation really does treat people merely as a means.

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 Chapter 8  Two-Tier Health Care  249

THEORY
Warren’s version of contractarianism differs from John Rawls’s theory on this point.
According to Rawls, all rational people in the original position would agree to principles
of justice that worked to the benefit of the worst-off group in society. Assuming redis-
tributive taxation benefits the worst-off group, all people in the original position would
choose it. If everyone agrees to redistributive taxation, then it does not treat anyone
merely as a means. Therefore, Rawls would argue that taxation for these purposes does
not treat anyone merely as means, since all people would agree to these taxes if they
were choosing fairly.

Source: John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 83, 278.

It could be argued that there is a straightforward sense in which redistribu-

tive taxation does not treat people merely as a means. Suppose you wanted to
make a little extra money so you could take your family on a vacation next spring
break. You learn about a part-time job that you could do in your spare time. The
pay is $40 per hour, but you also realize that after taxes the pay will work out to
$30 per hour. You have to decide whether or not it is still worth it to take the
job. You decide it is clearly worth it. You then do 10 hours of work and get your
first cheque for $400 gross but only $300 net. It would now be bizarre for you
to complain that you have been treated merely as a means because the govern-
ment took $100 from you without your consent. Since you knew of the taxes, and
agreed to pay them, it is not true that you were treated merely as a means when
you were taxed. Similarly, when Chamberlain agreed to his lucrative contract,
presumably he would have known
(or at least he should have known) UP FOR DISCUSSION
that he would be taxed, so that his
Do you think that redistributive taxa-
net pay would be more like 18 cents
tion uses people merely as a means?
per ticket rather than 25 cents. Nev-
If so, does that make it wrong? Is it al-
ertheless, he agreed to the contract.
ways wrong to treat people merely as a
It is somewhat disingenuous, there-
means?
fore, to suggest that Wilt was treated
merely as a means when his net pay
is “only” $180,000.
Warren: That’s a strong argument. I wonder, moreover, if we can’t just say to the wealthy
that a social safety net would benefit them too should they fall from their high
position. There but for fortune go you or I. It could also be said that it benefits the
wealthy by making the society more stable. This arguably preserves the conditions
of their autonomy and so respects them as persons. And if this is correct, then we
seem to have another reason why redistributive taxation needn’t merely use people.

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 250   DEBATING HEALTH CARE ETHICS

Patrick: Yes, these are good points. I think we have done enough to show that redis-
tributive taxation may well be permissible. If it is permissible, as we’ve argued, then
premise (1) in the libertarian argument is false, since it implies that redistributive
taxation is wrong. Libertarians would no doubt have plenty to say in response to
our objections, but let’s move on to premise (2) in the libertarian argument. This
premise states that if a person does not engage in violence, theft, or fraud, then the
person does not violate the rights of others. So, for instance, Sanders’s dad doesn’t
violate anyone’s rights when he uses his justly acquired wealth to buy an MRI for
his son from someone who freely chooses to sell him this service. It seems that this
is at the heart of the most central claim made by those who support private MRI.
Unlike pure libertarians, they may not oppose government-provided health care,
but what they do oppose is interference with their freedom to purchase private care
if they are not violating anyone else’s rights.
Doran: Right, most who support private medicine probably do not oppose a public system.
What they oppose is preventing people from exercising their freedom to purchase
health care if that is what they choose, and if doing so violates no one else’s rights.

BACKGROUND
“In a free and democratic society where you can spend money on gambling and alcohol
and tobacco … the state has no business preventing you and me from spending our own
money on health care.”

Source: Dr. Brian Day, quoted in Clifford Krauss, “As Canada’s Slow-Motion Public Health System
Falters, Private Medical Care Is Surging,” New York Times, February 26, 2006, [Link]
nytimes. com/2006/02/26/international/americas/[Link].

Note: Dr. Day was head of the Canadian Medical Association in 2007–08 and founded the
Cambie Surgery Centre, a private health care facility in Vancouver.

The Complicity Objection to the Second Premise

Warren: Well, the libertarian asserts, in the second premise of the argument, that the
only way to violate people’s rights is by violence, theft, or fraud. And so, the liber-
tarian reasons that if purchasing private MRI does not use violence, theft, or fraud,
then it does not violate anyone else’s rights; however, I do not think we should ac-
cept the libertarian premise that violence, theft, or fraud is the only way to violate
persons’ rights. One may be complicit in a large-scale violation of rights without
exercising violence, theft, or fraud.
Patrick: I agree with you, Warren, that violence, theft, or fraud aren’t the only ways to
violate the rights of others. And I think I get your point about being complicit in
large-scale rights violations. But can you say a bit more about this?

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 Chapter 8  Two-Tier Health Care  251

Warren: Sure. Private MRI may be one of 10,000 small cuts that bring down a great
protector of the public interest, thereby undermining a basic right to health care.
While my getting a private MRI may not involve my using violence, theft, or fraud
against any particular individual, that private purchase may be something a govern-
ment legitimately opposes to protect citizens’ access to care. If, for example, private
procedures will lead to a worsening of the public system—say, because scores of
physicians and MRI technicians abandon the public system in favour of the more
lucrative private sector—then the government would be justified in opposing these
private medical procedures. It is the duty of a government to look after access to
health care for all citizens, thereby bringing about a fair balance of the liberty of the
individual with the needs of the many.
If private MRI erodes this right to UP FOR DISCUSSION
basic access or rights to other prima- Do you think people can violate rights
ry goods, then a politician allowing even if they do not engage in any vio-
private MRI, and a person who uses lence, theft, or fraud?
such a service, may well be complicit
in large-scale rights violations.
Doran: So you hold that people have a basic right to health care, and that this right may
be violated not by any particular individual’s having a private MRI, but by a system
that allows private MRI when it causes serious detriments to some part of the whole
socio-economic system? But, just to clarify, you’re not asserting that private MRI
necessarily interferes with rights?
Warren: No, it is, of course, an empirical question whether private MRI is a villain in
this piece. As long as there is robust universal public access to care in a wealthy
society like Canada’s, and no serious harm done, private MRI may be permissible.
If it interferes with provision of that access or other governmental duties, private
MRI is not permissible. In the original position, we would set rules so as to avoid
any system in which our health depended on our economic good fortune. Whether
or not private MRI interferes with rights to access to care or other primary goods
probably depends primarily on the taxation system and on what the government
provides for its people using tax money.

The Compassion Objection to the Second Premise

Patrick: I’m quite sympathetic with your conclusion, Warren, that a person’s rights can
be violated even in the absence of violence, theft, or fraud; however, I would, of
course, appeal to the virtues, rather than the original position, to explain why.
Warren: What’s the virtue-based explanation, Patrick?
Patrick: Virtue requires that we have compassion for others. A virtuous society is,
therefore, one in which the government has compassion for its citizens. This en-
tails, I believe, that the government must ensure that individuals are able to satisfy

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 252   DEBATING HEALTH CARE ETHICS

their basic needs for such things as food, shelter, education, and health care. The
provision of health care, and other basic goods, can obviously be undermined in
ways that do not involve force or fraud. They can be undermined, for instance, by
putting the distribution of basic goods entirely in the hands of a free market. In
such cases, it seems quite clear that some will receive the care they need while
others will have to go without, as illustrated in the Mary Andrews example we
considered earlier.
Doran: Patrick, I am not sure that you can say that a virtuous society is one that must
ensure that individuals are able to satisfy their basic needs for such things as food,
shelter, education, and health care.
For such a requirement violates the BACKGROUND
principle that “ought implies can.” It is generally accepted among philoso-
As stated, your view implies that the phers that it makes no sense to say that
government has a duty to provide var- someone ought to do something, if that
ious things, like food, education, and person is unable to do the thing in ques-
health care, even when it is impossible tion. That is what is summed up in the
for them to provide those things. And saying “ought implies can.”
that, clearly, cannot be correct.
Patrick: Right, Doran. When I said that
governments have a duty to ensure that citizens’ basic needs are met, I was assuming
that governments have the ability to do this.
Doran: Not that I disagree with your concern for those who cannot pay for MRI, Pat-
rick, but wouldn’t those proponents of private MRI say that the government should
also have compassion for those people who could afford to pay for private MRI?
Requiring everyone to wait in a queue for months to receive an MRI is hardly com-
passionate if there are other options available to them that could get them an MRI
virtually immediately.
Patrick: That’s true, Doran, and that is why I would not argue that private MRI is
necessarily wrong. It depends on what effect private MRI would have on the pub-
lic system. If, for instance, private MRI actually benefitted everyone concerned,
both those who opt out of the pub-
lic system and those who stay in it, THEORY
then I agree that compassion, along Although some virtue theorists avoid
with other virtues, provides support rights talk, virtue theorists can (and
for private MRI. My point above, some do) employ the notion of rights
however, is just that rights can be within their theories. They hold, howev-
violated even if there is no violence, er, that morality cannot be understood
theft, or fraud. A caveat is needed entirely in terms of rights, and that vir-
here, though. We’re evaluating the tue terminology therefore plays an im-
libertarian claim that the only way to portant explanatory role in morality.
violate rights is by violence, theft, or

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 Chapter 8  Two-Tier Health Care  253

fraud. I’m trying to show that this claim is mistaken using the terminology on the
table; as for my own view, I’m not sure whether I want rights to be a fundamental
part of it. The duty to ensure that everyone has adequate food, shelter, health care,
and so on, it seems to me, is best grounded in virtues like compassion rather than
a right to these things.
Doran: On the main point under discussion, I agree with both of you. Private MRI can
be objectionable on the ground that it violates rights, even if it does not involve force
or fraud. If allowing private MRIs seriously harms the public health care system,
then it violates people’s right to health care.
Warren: Well, it looks as if there is considerable agreement among us. But before we
examine our views further, why don’t we consider the view that is almost the mirror
opposite of the libertarian position on private MRI? While libertarians (and others)
insist on the right to private MRI so long as there is no force or fraud, some philoso-
phers insist that all private health care, including private MRI, would be inherently
unjust. Let’s call this the egalitarian view, since it asserts that everyone should have
the same access to the same type of health care regardless of ability to pay.

AN EGALITARIAN ARGUMENT

Patrick: Many people in Canada maintain that two-tier MRI is unjustified in principle.
This is because it violates the idea of respect for the equality of all Canadians. To
award some better or faster medical care merely because they can afford it, and to
deliver inferior medical care to others merely because they cannot afford it, is deeply
offensive to many. Just as we would find a health care system deeply offensive were
it to give better care to whites than non-whites, or to the university educated than
to those without university educations, we should also find a health care system that
favours the wealthy over the poor to be deeply offensive.
Doran: It does seem unfair to give someone like Sanders better health care than Ben
just because Sanders’s family can afford to pay and Ben’s can’t.
Patrick: Right, it doesn’t seem fair. Although I don’t agree with the egalitarian ar-
gument, I sympathize with the motivation behind it. Imagine, Doran, that you
hurt your knee while training for an upcoming marathon. Your doctor orders
an MRI, and so you take your place at the back of the line. Given current wait
times, you would likely have to wait several months for the procedure. Then, as
you wait in line, you see a rich and famous celebrity—imagine a Canadian Kim
Kardashian—waltz right into a private clinic and get an MRI that very day.
After that, she gets treatment ahead of you in the public system. This seems
intuitively quite unfair.
Warren: Right, but I would say we have to go beyond our intuitions here. What if the
best way to get health care for everyone, including those in the public system, was

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by allowing some private MRIs? If that were the case, and no serious harms were
done outside of health care, then I would say that people in the original position
might choose private MRI. It would depend, I must emphasize, on how private
MRI affected the big picture, not just health care.
Patrick: I believe you’re right, Warren. If two-tier medicine were the best way to ensure
that all Canadians have reasonable health care, and this wouldn’t harm us in other
areas of our lives, then it seems the compassionate and responsible thing to do for
all involved is to allow private MRI. If we can best improve the system by allowing
private MRI, so that everyone can wait less and receive better care, then it seems
that we should permit private MRI. To opt for an egalitarian system that is best for
no one would not be virtuous.
Doran: I agree, though I would put the point as follows: I think it is terribly unfair that
some get better health care just because they are richer than others. And, I think
that for this reason there is a strong prima facie reason to oppose two-tier MRI. But,
if it is the case that we can improve the situation of everyone by allowing for some
private MRIs, and if there is no fairer way to provide these benefits, then I’d judge
that the great moral good of harm reduction outweighs this unfairness.
Patrick: I might build on my previous
point by noting that there are oth- TECHNIQUE
er important goods, like education, An argument by analogy is being em-
where we permit those who can af- ployed here to try to support the point
ford it to opt out of the public sys- that the unequal provision of some im-
tem and to pay for private, arguably portant good (like primary education or
better, education. This doesn’t seem health care) is not necessarily wrong,
unfair, provided that the public edu- especially if it does not harm anyone
cation system is good and private concerned. The strength of this argu-
education does not harm the public ment depends crucially on (1) whether
education system, or harm the public or not the reader agrees that private,
in other important ways. unequal primary education is some-
Doran: Right, if allowing private schools times not wrong, and (2) whether or not
hurts kids in the public system, then the reader agrees that the provision of
that would be problematic, but if it primary education is relevantly similar
does not harm anyone, or if it actually to the provision of health care.
benefits all concerned, then it would
be extremely difficult to sustain an
objection that it is unfair merely on the ground that it is unequal. By analogy, it is
very difficult to see how an objection to two-tier MRI could be sustained if it makes
no one worse off, much less if it benefits all concerned.
Warren: From my perspective, two-tier education would be permissible on the same
condition as two-tier medicine. It might work, for example, if private educators
are required to give scholarships and fellowships to some who show ability but

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cannot afford private education. It

UP FOR DISCUSSION
would depend on the effects on the
whole society. If private education Do you think that two-tier health care
brought public education into serious should be opposed because it is unfair
disrepute as second-best education or to distribute health care on the basis of
created a power elite, then that might the ability to pay?
undo any good that private education
might achieve. It would be unfair. We have to look, as always, at the wide effects on
society, not just effects within education.

The Self-Respect Argument

Patrick: Perhaps opponents of two-tier health care can further support their position
by noting that not only does two-tier health care violate the moral equality of all
Canadians, but also that it is damaging to the self-respect of those Canadians who
cannot afford to access private health care.
Doran: How might two-tier MRI damage some people’s self-respect?
Patrick: Well, as I take it, the thought is that if some get better health care than others
merely because they can afford to pay, then those who get worse health care will be
made to feel that they are somehow morally less important—second-class citizens,
in effect. Take Ben, for instance. He has already had to struggle so much more
than Sanders, but now if Sanders also gets better or faster health care than Ben for
a similar condition, then Ben might well feel that his society views him as morally
less important than Sanders.
Doran: This argument reminds me of something Martin Luther King, Jr. wrote when
discussing the effects of segregation on blacks living in the American South.

You suddenly feel your tongue twisted and your speech stammering as you seek
to explain to your six-year-old daughter why she can’t go to the public amusement
park that has just been advertised on television, and see tears welling up in her eyes
when she is told that Funtown is closed to colored children, and see the depressing
clouds of inferiority begin to form in her little mental sky.7

Although I certainly do not wish to compare the degree of harmfulness of

racial segregation to the degree of harmfulness of two-tier MRI, I can still easily
imagine Ben feeling that he is somehow inferior to Sanders because he is denied,
through no fault of his own, the care that would serve him best while Sanders is not.
This would be a bitter pill to have to swallow.
Warren: The concern about self-respect is certainly important. It is something that peo-
ple in the original position would want very badly to protect. In the original posi-
tion, people would realize that without self-respect, the enjoyment of other goods is

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 256   DEBATING HEALTH CARE ETHICS

severely limited. Self-respect is, therefore, a primary good. If it is threatened at all,

we should be wary. The crucial question though is how great a threat to self-respect
is posed by two-tier MRI.
Patrick: That’s right. If two-tier MRI made the public system worse, then I would say
both that people in the public system were not being properly respected by their
government, and that this could have a very damaging effect on their self-respect.
But if private MRI benefitted those in the public system, or at least did not make
them worse off, then this would not obviously be damaging to anyone’s self-respect.
For it could be explained to those in the public system that two-tier was permitted
only on the condition that it did not harm them.
Doran: I agree with that. The crucial distinction here appears to be whether or not
two-tier harms those in the public system. If it harms people in the public system,
then it may undermine their self-respect too, and for that reason may be unjust.
However, if it does not harm those in the public system, then it should not cause
a loss of self-respect. In that case, the argument that two-tier is wrong because it
harms self-respect fails.
Warren: There is another objection to
the simplistic self-respect argument. UP FOR DISCUSSION
Some harms may be borne with pride Do you think unequal access to
for the sake of others. If, for instance, health care is wrong if it is damaging
Ben thought that the difference be- to some people’s self-respect? Does
tween himself and Sanders was nec- two-tier health care necessarily un-
essary to help those worse off than dermine self-respect? How should we
Ben, he might bear the unfairness determine whether a policy undermines
with full self-respect. In Canada to- self-respect?
day, however, it must be admitted that
no such sacrifice should be necessary.
Patrick: Agreed.
Doran: This seems like a good place to pause and take stock of the arguments for, and
objections to, private MRI that we’ve considered thus far. We agreed that both
the libertarian argument for private MRI and the egalitarian argument against
private MRI fail. We rejected the libertarian argument (in part) because it im-
plies that private MRI is justified even if it harms those in the public health care
system. And we rejected the egalitarian argument because it implies that private
MRI would be wrong even if it brought benefits to everyone in both the private
and the public system.
Patrick: That’s right. We also just considered the objection that two-tier MRI is imper-
missible because it undermines the self-respect of those in the public system. But we
agreed that there’s little reason to fear that private MRI would have this effect, un-
less it harmed those in the public health care system in some other way beyond loss
of self-respect; however, it might not do this. So, although the libertarian argument

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 Chapter 8  Two-Tier Health Care  257

in favour of private MRI is unsound, the egalitarian and self-respect arguments

against private MRI also seem to be problematic.
Doran: We all seem to agree, as well, that private MRI is permissible, provided that it
benefits, or at least doesn’t harm, those in the public system.
Warren: That’s true as long as we consider the system to be the entire socio-economic
system, not just the health care system. There is some merit, moreover, to the self-
respect argument. We should be very concerned not to adopt policies that harm
self-respect, and so if we are to allow two-tier MRI, we may want to find ways
to compensate those who cannot afford to access the private health care system.
As this shows, we may find something we can use in the ideas of the egalitarians.
Similarly, we may get some help from the libertarians. I do need, however, to find a
mean between these extreme positions.
Patrick: Since we all agree that two-tier MRI is permissible, at least under the right
sorts of conditions, why don’t we now consider what those conditions are? For in-
stance, in order to justify private MRI, is it enough to demonstrate that it harms
no one? Or does private MRI have to benefit everyone in order to be justified? And
what sorts of harms and benefits are relevant here?

TWO-TIER ARGUMENTS

Is Two-Tier MRI Permissible If It Does Not Harm the Public Health Care
System?

Doran: One view is that private MRI is justified provided it does not harm the public
health care system. Do you agree, Patrick? Should the government allow private
MRI so that people like Sanders can get treatment more quickly, provided that this
does not make things worse medically for people like Ben who must wait for their
care in the publicly funded system?
Patrick: I would say that this is not enough to justify private MRI. This is because
there could be serious non-health-related costs to such a system. For instance, if
the rich are able to get faster care than the poor, then those who cannot afford
private care could possibly suffer serious setbacks in other areas of life, such as in
competing for jobs, succeeding in education, earning income, and so forth. Sand-
ers, for instance, might gain significant advantages over Ben when it comes to
competing for a place in the NHL, even if private MRI doesn’t make Ben’s public
health care worse. This seems unfair.
Warren: I agree. As noted earlier, a system that had these effects could be damaging to
people’s self-respect. Think of Ben. He cannot pursue his main opportunity in life
as effectively as Sanders, because he cannot get care as fast. He cannot get care as
fast as Sanders because he is less wealthy. On the face of it, this looks unfair.

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Patrick: Warren and I appear to agree that in order for private MRI to be permissible,
we need to show not merely that it doesn’t harm the public health care system, but
that it doesn’t harm the public provision of other important goods.
Warren: Yes, that’s right, Patrick. Wouldn’t you also agree, Doran?
Doran: I agree that it is not enough to justify two-tier MRI merely by showing that
there are no adverse effects to the health care system. In particular, if for some
reason two-tier seriously harmed people in some other area of life, then it may still
be unjust.

Is Two-Tier MRI Permissible If It Benefits the Public Health Care System?

Doran: Would your reaction be different if private MRI not only did not make the
public health system worse but actually benefitted it?
Warren: Again, it depends on the degree of benefit and effects outside the health care
system. A small benefit to the public health care system would not be enough to
justify private MRIs if that allowed for large differences in advantages in other vital
areas of life. Let’s say Sanders had his private MRI virtually the same day it was
requested, while Ben’s wait time was reduced to 41 days from 188 days. This extent
of improvement may not be worth it, given the costs to Ben in terms of opportuni-
ties and self-respect. Again, an insufficient justification has been given to show that
private MRI is fair.
Patrick: I agree with you, Warren. As mentioned earlier, I think we need to evaluate
private MRI from a more global perspective. By that I mean we need to evaluate
the permissibility of private MRI by considering not just health-related benefits and
costs, but also by considering benefits and costs with respect to other primary goods.
So, showing that private MRI would provide health-related benefits for those in the
public system is not sufficient to show that private MRI is permissible. What also
needs to be shown is that there are benefits, or at least not significant costs, with
respect to other goods.
Doran: Again, I agree. If two-tier MRI UP FOR DISCUSSION
benefits everyone medically, then that Could there be anything wrong with pri-
is a strong reason in support of it, but vate medicine if it benefitted the public
if it ends up having grave non-medical health care system?
costs as well, then that could make
two-tier unjust, all things considered.
Patrick: Well, why don’t we describe the conditions under which two-tier MRI might
be justified? Warren, why don’t we consider your view first?

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Warren’s Social Contract View on When Two-Tier MRI Is Justified

Warren: I believe that people in the original position would be especially concerned
to avoid a situation that was bad for them if they turned out to be in the worst-off
group in the real world. Given this, it would be rational for them to choose a society
that protected their basic liberties and opportunities and that provided everyone (if
the society could afford it) with an excellent safety net (a basic income, good educa-
tion, good health care, ample opportunities for self-improvement, and the social
conditions needed for self-respect, for example). I believe most people in the origi-
nal position would accept this rule: We should bias our decisions about allowing differ-
ences so as to provide a robust advantage to the least advantaged. Call this the robust
advantage principle. People in the original position would rule out private MRI if
it threatened this robust advantage for the least advantaged, an excellent safety net
in wealthy societies like our own. If private MRI were harmless, it could be allowed
without benefit to the disadvantaged; but it is not harmless, and offsetting benefits
are needed according to the robust advantage principle. Without significant benefits
to offset significant harms, private MRI undermines the robust advantage that a
wealthy society usually owes to the least advantaged.
Doran: Why do you think private MRI harms the disadvantaged in Canada?
Warren: First of all, it drains talent, from technicians to physicians, from the public
health care system. This hurts members of the worst-off group the most, for they
have no choice but to use the public system.
It also harms the disadvantaged with respect to access to other primary goods
outside health care, such as equal opportunity and self-respect. The case of Ben and
Sanders is to the point here. Sanders gets a shot at the NHL with its promises of
fame and riches, while Ben misses his chance of a lifetime. He does not have the
same opportunities for self-fulfillment as Sanders and may suffer from considerable
loss of self-respect. He is left with the impression that his society views him as a less
important person than Sanders.
Doran: So is your view that private MRI necessarily harms the disadvantaged?
Warren: No. Suppose the social safety net were exceptionally generous. Suppose that
even the disadvantaged were guaranteed first-rate health care, really good educa-
tion, meaningful opportunities and, in general, the means to self-respect. In this
case, private MRI could be made available as long as it did not damage that social
safety net. People like Ben would no longer be harmed even if there were differences
brought about by private MRI.
Doran: Why not? Couldn’t he still miss his chance to be in the NHL?
Warren: Perhaps, but he would still have multiple opportunities for self-fulfillment. He
would not miss his one big chance in life and become an embittered, washed-up

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BACKGROUND
“Medicare rests on the principle that an individual’s financial resources should not de-
termine access to services. In the commission’s view, governments have a responsibility
to guarantee that the public system has sufficient resources to ensure appropriate ac-
cess to advanced technology.
“Increased investment within the public system for new diagnostic technology can re-
move the temptation to ‘game’ the system by individuals and health care providers through
the private purchase of diagnostic tests that could allow them to jump the queue.”

Source: Romanow, Building on Values: The Future of Health Care in Canada—Final Report, 8.

might-have-been. In the original position, people would allow differences in wealthy

societies provided that they were guaranteed real opportunities for an excellent life
even if they did not occupy the wealthier class.
Doran: Absent this robust social safety net, could we still justify private MRI if it ben-
efitted the disadvantaged?
Warren: That depends on how much it benefits the disadvantaged. If private MRI could
be shown to be necessary to provide really significant benefits to the disadvantaged,
then that might be sufficient to overcome its negative effects. Suppose that it gener-
ated enough tax revenue to eliminate most homelessness: we might accept it even
if it provided differences in opportunities, as long as there was no better way to
eliminate homelessness and we could maintain self-respect, indeed take pride, in
eliminating it. Of course, for reasons I have mentioned, I think it is extremely un-
likely that private MRI could be so justified in Canada.
Doran: Patrick, what do you think? What’s your view on when two-tier MRI can
be justified?

Patrick’s Virtue-Based View on When Two-Tier MRI Is Justified

Patrick: I’ve suggested that private MRI is permissible, provided that allowing it would
benefit those in the public system, or at least not make them worse off. I’ll now try
to refine and clarify this view. But a warning is in order: the position I sketch below
is still rather tentative.
If sufficient resources are available, I believe our government has (and gov-
ernments in general have) an obligation to ensure that citizens have a reasonable
basic level of primary social goods. I’m thinking of primary goods roughly in the
Rawlsian sense—goods that everyone (or nearly everyone) needs to live well. This
includes such things as food, shelter, education, health care, social and economic
opportunity, and income. If everyone has a reasonable basic level of primary goods,
then the government should allow private MRI, provided that this does not make

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those in the public system worse off, all things (i.e., all primary goods) considered,
than they would be in a purely public system.
Warren: We really have to consider all primary goods, though.
Patrick: Right, Warren, we must look at all primary goods, not just health care.
Doran: What if the government is not meeting its obligation to provide its citizens
with a reasonable basic level of primary social goods? Would private MRI then
be wrong?
Patrick: There are two different situations we should consider. First, suppose the gov-
ernment does not have the resources to provide everyone with a basic stock of pri-
mary social goods. Second, suppose the government has the resources, but is failing
to meet its obligation to provide basic primary goods. In either case, I think private
MRIs are permissible, but only if this improves the situation, all things (i.e., all
primary goods) considered, of the general public.
Doran: Why do you believe your position is justified?
Patrick: Well, I think that my view on private MRI can be justified from different
moral perspectives, but I’ll stick to my preferred virtue theory. As I’ve mentioned
before, a virtuous society would be a compassionate, caring, and responsible society.
For this reason, a virtuous society would be one in which the government ensures,
insofar as possible, that everyone has a reasonable minimal level of primary goods.
Without a basic level of these goods, one cannot live a decent life. If we allowed
these goods to be distributed entirely by a free market, it is clear that some would
have lots, while many others would have little or none. To allow this—that is, to
allow some to prosper while many others suffer—with respect to such basic goods
would be rather cruel and callous, among other things.
Suppose that the government is not providing everyone with a reasonable level
of primary social goods. There might be two reasons for this: the government does
not have the resources to do this, or it does have the resources but is simply not
delivering the goods. Then, as I mentioned, private MRI is morally permissible
provided that this benefits everyone concerned. In the first case, the government
could impose a tax on private MRIs and use the money collected to improve ev-
eryone’s lot. In the second case, the private sector could set up private MRIs and
provide subsidies for those who cannot afford the fee. This would seem to be the
virtuous thing to do, all things considered. Allowing private MRI in either case
would respect the liberty of the wealthy, for those who are fortunate enough to pay
for private MRIs could get them. And the system would also show compassion for
the less wealthy, since they would see their situation improved.
Now, if the government has ensured that everyone has a reasonable basic
level of primary goods, then it seems it would be rather mean-spirited and un-
fair to prohibit private MRI, if this doesn’t worsen the situation of others. A
virtuous society would, of course, be concerned with the interests of both the
rich and the poor. If a person has an interest in getting an MRI done quickly,

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and this person has the good fortune of being able to pay to have one done pri-
vately, and allowing private MRI wouldn’t hurt others, then on what grounds
could one reasonably object? I don’t like the idea of the wealthy getting MRIs
faster than others simply because they have more money. So there is a sense of
unfairness here. But, again, it also seems unfair and mean-spirited to make the
wealthy wait in line simply because that’s what others must do. That’s taking
egalitarian ideals too far.
Warren: This raises an interesting question of how far is too far. Suppose there is such
a high tax on private MRI that the practice is able to continue, but only just. The
taxes are used to minimize wait times for public MRI. Of course, the private entre-
preneurs would say this is unfair, but what would a virtuous society do?
Patrick: As I said, I think a virtuous society would be one that looks out for the basic
interests of both the rich and the poor. By allowing private MRI, we can let the
wealthy avoid waiting for an MRI. And by taxing private MRI, we can improve the
lot of those in the public system by helping to reduce their wait times. Of course,
some will still complain, but this system looks pretty fair to me, since it balances a
concern for all affected.
Doran: Let’s bring this back to Ben and Sanders. Suppose they live in a society that
provides its citizens with a reasonably decent social safety net. Patrick, I take it that
your view is that Sanders should be allowed to purchase a private MRI, provided
it does not worsen Ben’s condition, all things considered (i.e., all primary goods
considered). Further, if they are living in a society that fails to provide a decent
minimum, then Sanders should still be allowed to get a private MRI only if this
can be used to benefit those who are less fortunate, like Ben (say, by shortening wait
times in the public system or by taxing these services and using the proceeds to
benefit the public system).
Patrick: Yes, that’s the basic idea.
Doran: One question I have for you, Patrick (though it is a question that I might well
ask of Warren’s view, too), is how you think the idea of a “reasonable basic level of
primary social goods” should be understood. Specifically, is this something that
should be indexed to the general level of wealth of the society, or is it something
that is like a floor that does not move over time? For example, does this reasonable
minimum mean that everyone should be ensured merely that their basic survival
needs are met, that they have basic health care and education, and that is more or
less it, or is it something that is more flexible, so that in an affluent society it would
not just be that basic survival needs are met, but also that everyone has access to
quality education and health care, comfortable lodgings, opportunities for advance-
ment and leisure, access to technological gains from indoor plumbing to high-speed
Internet access, and so on?

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 Chapter 8  Two-Tier Health Care  263

Patrick: Good question, Doran. I’ve been thinking of the reasonable minimum not
as fixed, but rather as fluid. What counts as a reasonable minimal or basic level of
primary goods is relative to how much wealth there is in society. In lean times, the
reasonable minimum may not be much—perhaps just enough to survive. In times
of abundance, however, the reasonable minimal level will be more than that. The
wealth should be shared so that inequalities between the rich and the poor do not
become so great that the rich have an unreasonably large advantage over the poor
when it comes to things like education, income, opportunities, and so forth.
Warren: Well, that helps to clarify a concern I had. I was wondering why you suggested
that a “compassionate and caring” society would ensure only a “reasonable minimal
level of primary social goods.” That sounds rather stingy to me. I would think that
a compassionate and caring society would be a lot more generous than providing a
decent minimum. I would think that if it had the resources, a compassionate and
caring society would want its citizens to have a very generous social safety net—the
kind of social safety net that was the envy of the world. But I see now that that is
what you’re suggesting.
Patrick: That’s right, Warren, I’m proposing that the government has an obligation to
ensure that its citizens have a reasonable basic level of primary goods. But as I just
noted in response to Doran’s question, what counts as a reasonable basic level is
relative to how much wealth there is in the society. In good times, where there is
an abundance of resources, the reasonable basic minimum will be quite generous.
Notice, moreover, that in order to ensure that others are not made worse off (all
things considered) by allowing private MRI, the government would have to ensure
that the general public has a rather generous basic level of primary goods. This is be-
cause others will in fact be made worse off (all things considered) if the gap between
the “haves” and the “have-nots” becomes too great.
Warren: It seems, Patrick, that you and I agree that when deciding on MRI policy we
need to take a global view, avoiding the ills of flat egalitarianism on the one hand,
and the problems attendant on wide class distinctions on the other. Between these
extremes we seek a system that leaves incentives to improve MRI technology and
training without its becoming a tool of the elite to enhance its position. That may
be a tall order when we have trouble just seeing how it affects wait times, but it has
to be seen as part of an overall health care policy which in turn is a cornerstone of
social policy. We differ primarily on why we should do this.
Patrick: Right, and I think this helps to
strengthen our view. We are argu- UP FOR DISCUSSION
ing for a view that can be supported When, if ever, do you think two-tier MRI
by your contract theory and my vir- is morally permissible?
tue theory.

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COMMENTS ON CANADA’S CURRENT PUBLIC

HEALTH CARE SYSTEM
Doran: There is a large amount of agreement in your two views, though you’ve ap-
proached the question from very different perspectives. But the practical implica-
tions are not entirely clear. I think we should wrap up our discussion by returning to
the question we began with: Is private MRI permissible in Canada? More specifi-
cally, is two-tier MRI permissible in Canada today, given our current health care
system, and given the current distribution of primary goods in general?
Warren: In Canada, we have a wealthy society. We would need good reasons to believe
that it is likely that the overall effect of private MRI on society would further a
robust advantage to the least advantaged. This would require a wide-ranging inves-
tigation of private MRI’s socio-economic effects. If a convincing argument can be
made for private MRI in these terms, which I doubt, the electorate should decide its
merits, but private MRI should not have been allowed before it was put to that test.
Patrick: Like Warren, I don’t think we can give a simple “yes” or “no” answer to this
question, since the answer depends on empirical issues that are a matter of some
controversy. A conditional answer will therefore have to do for now. Given the
amount of wealth in our country, I think that the public health care system is not
at all up to par. The government is not providing a reasonable basic minimum,
given the available resources. So my view implies that private MRI is permis-
sible, only if allowing it will help to
improve the public system and, of UP FOR DISCUSSION
course, not impose significant costs After considering the various arguments
in terms of other basic goods. If this for and against, do you think two-tier
can be demonstrated, then I think MRI should be allowed in Canada? Why
that private MRI is permissible in or why not?
Canada.

FROM THE POLITICAL TO THE INDIVIDUAL

Doran: If we assume, for the sake of argument, that the use of private MRI is unjusti-
fied at present in Canada, then the following interesting question arises: Do you
think Sanders’s dad is doing something morally wrong by using the private system to get
his son an MRI? Our earlier discussion of the complicity objection to libertarianism
suggests that you guys would object to a person’s taking advantage of such a situ-
ation. But some may think that this seems rather harsh. One may put the point in
the language of virtue theory: Wouldn’t a compassionate, responsible father utilize
the system of private MRI to benefit his son, even if he wished that the general
provision of medicine were more just? What do you think? Here the question is

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 Chapter 8  Two-Tier Health Care  265

being shifted from the political to the personal. Before we wondered about the just
or virtuous society, but now we are asking about the virtuous parent and the actions
it is permissible for him to take in a situation of injustice.
Warren: Given the system we have in
Canada today, I do not think people THEORY
do wrong when they seek private Recall that Warren uses a sympathy
MRI for serious medical reasons. It metarule as part of the conditions un-
is the politicians who do wrong when der which people in the original position
they put people in the position of hav- choose rules. This says, “The people in
ing to seek private MRI. As we were the original position must choose rules
stating our positions, I mentioned that people with ordinary human sym-
that I had sympathy for people seek- pathies could follow.” Sympathy is con-
ing private MRI in Canada given the strued broadly. See chapter 3 for more
excessive wait times for necessary details.
diagnostics. My sympathy is even
greater for a parent seeking MRI for
a son or daughter. I doubt that I am alone in this. By my sympathy metarule, any
strict rule against complicity that required us to ignore such sympathies would be
rejected or modified in the original position.
Doran: So people with wealth can just enjoy their privilege without compunction, ac-
cording to rules chosen in the original position?
Warren: No, it’s not that simple. People in the original position would accept rules
governing social policy that indict the inadequate system we now have in Canada
where private MRI is concerned. Politicians would still have a strong moral duty to
tie private MRI to the public good if they allowed it at all. All citizens, including
Sanders’s dad, have, moreover, a duty to hold politicians to account for the injustice
to people like Ben and to demand an adequate public diagnostic system as part of
a fair social system generally. In my view, the wealthy are not required to join the
poor in their misery, but they are not permitted to ignore that misery.
Doran: Well and good, but what social contract rules are we talking about here that
underlie these duties, in your view?
Warren: Well, generally speaking, our current MRI policies contravene the robust ad-
vantage principle of which I spoke earlier: We should bias our decisions about allowing
differences so as to provide a robust advantage to the least advantaged. Sanders’s dad,
however, is not one who is directly allowing the differences. Politicians are. The
duty of Sanders’s dad, as a man of wealth and thus of some political influence or
potential influence, is to shake up the politicians to get them to abide by the robust
advantage principle. It’s the duty of the whole electorate, really, to demand a fair
system of health care from our elected representatives.
Patrick: Though I don’t agree with the theory supporting Warren’s view, I largely agree
with his view on this issue. If Sanders’s father happens to have the resources to pay for

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an MRI for his son, then it is quite understandable that he would take advantage of
his good fortune. In fact, it would seem rather callous and irresponsible if Sanders’s
father made his son suffer and wait for an MRI when he has the means to get him
one right away. But those who have the good fortune of being wealthy enough to af-
ford private care should use whatever influence and resources they have to help ensure
adequate care for those in the public system. It would be selfish and insensitive of the
wealthy to simply ignore the suffering others must endure due to a lack of adequate
public health care. As Warren noted, the moral failing here lies not with Sanders or
his father, but with governments in Canada. They are simply not meeting their obli-
gations to ensure that residents of this country have reasonable health care. I believe
there’s an additional moral failing on the part of those who own and operate private
MRI clinics. They might show more compassion toward those in the public system by
using some of their profits to help improve the public system. One way to do this, for
instance, would be to offer free or heavily subsidized MRI for the poor.

CLOSING ARGUMENTS

Warren: I believe it is very likely that two-tier MRI is not justified in Canada today.
This is because such unequal access to medical diagnostics ignores the robust ad-
vantage principle: We should bias our decisions about allowing differences so as to provide
a robust advantage to the least advantaged. I have argued that a decision in favour of
two-tier MRI appears to ignore this required bias.
The robust advantage principle does not require us to always favour the least
advantaged as an excessively egalitarian society might do. We are not required, for
instance, to make everyone else radically worse off just to bring about a small advan-
tage to those on the bottom. We should avoid that egalitarian extreme.
By the same token we should avoid the libertarian extreme. While the robust
advantage principle does not require us to always put the disadvantaged first, it does
not let us ignore them, either. In wealthy societies, at least, we can afford to make
sure that everyone has both necessities and opportunities.
The robust advantage principle could, nonetheless, justify inequalities in access
to medical care under a variety of circumstances. Here are some examples: (1) a ro-
bust social safety net is in place, and the effects of having two-tier care do not wors-
en the condition of the worst-off members of society; or (2) a robust social safety
net is in place, and introducing two-tier care worsens the condition of the worst-off
members of society but not to the point where they slip through the net, and two-
tier care greatly improves the condition of the vast majority; or (3) a robust social
safety net is not in place, and two-tier care is a good way to help bring about these
robust advantages for the worst off; or (4) a robust social safety net is not in place,
and two-tier care is the only way to save the society from disastrous consequences.

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 Chapter 8  Two-Tier Health Care  267

The situations in the first two examples are not like ours in Canada today, since
our government has not provided a sufficiently generous social safety net. And I
believe we are not in the third or fourth situations either, since I see no credible
evidence that allowing for two-tier MRI is a good way to enhance the advantages
of the worst-off group, or is necessary to ward off disaster.
Patrick: I agree with most of your conclusions, Warren; however, I am less certain about
whether a system of two-tier MRI (or two-tier health care, generally) is justified
in Canada today. Specifically, it might be the case that carefully regulated two-tier
MRI could work to increase the primary goods available to all Canadians. Care-
fully regulated two-tier MRI could perhaps improve the lot of poorer Canadians by
shortening queues in the public health care system, increasing the amount of dollars
available for each patient in the public system, and benefitting the social system in
other ways by taxing private clinics. As you noted, this is largely an empirical ques-
tion, and I am not sure where the facts lie.

TECHNIQUE
It may seem strange that the debate ignores the presence, next to Canada, of the
United States, a bastion of two-tier health care and two-tier education available to many
Canadians. Since private health care and education are easily accessible in the United
States for most of the wealthy in Canada, there is no effective way for Canadian govern-
ments to enforce a one-tier policy. It is, nonetheless, important to discuss Canada as if
it were isolated to see what the moral status of two-tier medicine would be under ideal
conditions. When we see what our ideal system is, we will see how to ameliorate the
injustices in the systems we must accept. As things change in the United States, our
health care system will have to respond. If current US policies or new medical technolo-
gies create injustice in our health care delivery, we will learn from consulting our ideal
system what we must do to our actual system to make it resemble that ideal as much
as possible.

Doran: Well, for much of this debate I have been content to listen and to ask questions;
however, earlier I argued along with both of you that the libertarian reasons in
support of a right to private health care are not compelling, and that the egalitar-
ian arguments against private health care are not necessarily decisive, and can be
defeated, at least in principle.
I also think I agree with your views on when two-tier MRI can be justified. For
example, it can be justified if a robust social safety net is in place, provided that it
does not harm that social safety net, and it can be justified if a robust social safety
net is not in place, provided that it improves the condition (broadly construed) of
the worst off. In addition to the contractarian and virtue-based arguments devel-
oped by you two, I find the arguments by analogy with private primary education

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to be helpful on this point. I think that, on reflection, most of us would think there
was something wrong with a policy that allowed for private education to the detri-
ment of the public education system. And I think most of us would be willing to
support a policy allowing private primary education, provided that the public edu-
cation system was of high quality and that people in it were not made worse off by
the existence of a private tier.
Like Patrick, I remain very uncertain about the benefits and costs of two-ti-
er MRI (and two-tier health care generally). It may well be the case that carefully
regulated two-tier care could actually work to the significant benefit of the least ad-
vantaged by shortening queues, making more public money available per patient, gen-
erating greater revenues by taxing the private system, and so on. I just don’t know.
Finally, I am not yet persuaded about the permissibility of parents taking
advantage of private health care for their children, if it turns out that this private
system itself is unjust. In general, I think it is wrong to support unjust insti-
tutions, even if such institutions benefit oneself or one’s loved ones. And I am
quite reluctant to give up that principle. Of course, I think it is understandable
if a parent avails herself of the best care possible for her child, even if that care
morally ought not to have been available in the first place. I wonder, though, if
such behaviour is in fact morally permissible, or if it is merely excusable. This is
a particularly tough question, since it raises one of the most difficult problems in
moral philosophy—how to reconcile (1) the belief that we ought to respect the
moral equality of all persons, and so
reject institutions that violate this UP FOR DISCUSSION
principle, with (2) the belief that a If two-tier MRI should not be permitted,
morally decent person is properly do you think it is wrong for parents to
partial toward their loved ones. use it to benefit their children? Why or
why not?

SUMMARY

Here is a summary of the main questions, concepts, and arguments covered in this chapter:

• Magnetic resonance imaging (MRI) is a technique for scanning for muscle and
joint injuries. Both the scans and the machines that scan are referred to as MRIs.
• A two-tier system of health care is a system in which one tier, or level, is pub-
licly funded and one tier is privately funded. The idea is that those who can
afford the additional private care can access a higher level of care.
• The main question explored is whether private MRI is morally acceptable
in Canada. This is part of the larger question of whether two-tier health
care is justified in Canada. Subordinate questions include the following: Is

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 Chapter 8  Two-Tier Health Care  269

two-tier MRI permissible if it does not harm the public health care system?
Is two-tier MRI permissible if it benefits the public health care system? Is it
permissible for a patient to use private MRI in Canada, even if private MRI
in Canada is unjust?
• Although the debate is largely restricted to specific questions, it takes place
against the backdrop of the national debate in Canada over the permissibil-
ity of a two-tier system of medical care. Some tentative ideas are ventured
in this regard. Conclusions in the debate are conditional, depending on the
empirical question of the effects of two-tier access to MRI on the public
health care system.
• Libertarian arguments against redistributive taxation and in favour of a right
to private health care are considered and found to be ultimately unpersuasive.
• Egalitarian arguments against private MRI are then considered and are also
found to be ultimately unpersuasive.
• Warren, Patrick, and Doran argue that two-tier MRI can be justified under
certain circumstances. Given certain empirical assumptions, Warren doubts
that those circumstances apply in Canada today. Patrick and Doran are some-
what more cautious about the empirical assumptions.
• Under the assumption that two-tier MRI is unjust in Canada, Patrick and
Warren agree that it would, nonetheless, be permissible for a patient to use
private MRI. Doran is not yet convinced.

REVIEW QUESTIONS

1. Why do libertarians oppose redistributive taxation?

2. What is the Wilt Chamberlain example, and what is its point?
3. Why is this argument rejected?
4. Why is the argument that people should have a right to use their justly earned wealth to
freely purchase private MRI rejected?
5. What two arguments do egalitarians give to oppose two-tier MRI?
6. How do Warren, Patrick, and Doran respond to these two arguments?
7. When do Warren, Patrick, and Doran think two-tier MRI is justified?
8. What arguments do Warren, Patrick, and Doran give for this view?
9. Why does Warren think two-tier MRI in Canada is probably unjust?
10. Why do Warren and Patrick think it is permissible for a patient to use private MRI in
Canada, even if private MRI in Canada is unjust? Why is Doran unconvinced?

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 270   DEBATING HEALTH CARE ETHICS

NOTES

1. See examples of current advertised prices in British Columbia, Canada, at [Link]

[Link]/pricing/.
2. See, for example, average prices of MRI in various countries at [Link]
statistics/312020/price-of-mri-diagnostics-by-country/.
3. “MRI Machine Cost and Price Guide,” Block Imaging, [Link]
MRI-Machine-Cost-and-Price-Guide.
4. Edith MacHattie and Rick Turner, “Opinion: MRI Plan a Welcome New Direction for BC
Diagnostics,” Vancouver Sun, April 2, 2018, [Link]
machattie-and-rick-turner-mri-plan-a-welcome-new-direction-for-b-c-diagnostics. Rick Turner
and Edith MacHattie are with the BC Health Coalition. In this opinion piece, they describe a
government plan to improve wait times for MRI.
5. Private MRI clinics have been shown to do scans more often than hospitals, which raises
a concern about unnecessary scans. See Jean M. Mitchell and Jonathan H. Sunshine,
“Consequences of Physicians’ Ownership of Health Care Facilities—Joint Ventures in Radiation
Therapy,” New England Journal of Medicine 327, no. 21 (1992): 1497–1501.
6. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 160–64.
7. Martin Luther King, Jr., “Letter from Birmingham Jail,” reprinted in The Right Thing to Do, ed.
James Rachels and Stuart Rachels, 4th ed. (New York: McGraw-Hill, 2007), 293.

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 9 MICROALLOCATION OF
SCARCE RESOURCES

INTRODUCTION

In this chapter, we will be discussing disaster scenarios in which all medical profession-
als in the area are required to drop all non-emergency care and come in to the hospital
to help. The case used in this chapter to motivate discussion concerns an emergency
room in a small town overwhelmed by many injured incoming patients from a vehicle
accident. There are insufficient resources
to treat everyone immediately. The more DEFINITION
serious patients cannot be transferred to Triage: from the French trier, “to sort.”
other hospitals because they will not sur- It is defined as “the process of deter-
vive the journey. The number of critically mining the order in which a large num-
ill patients exceeds resources to treat them. ber of injured or ill patients will receive
A triage nurse faces extraordinarily diffi- medical treatment, with priority usually
cult ethical decisions about whom, among given to those patients with the most se-
equally urgent patients, to direct first to vere ailments or the greatest chance of
the lone physician on duty. Such rare cases survival” (Canadian Oxford Dictionary,
test existing triage principles and stimu- 1998).
late discussion on the appropriate treat-
ment priorities in emergency situations.
Some health care professionals may find our interest in such cases puzzling because
these cases seem too rare to bother with. In fact, though, they are just what is needed to
put great stress on the principles we use every day, stress that will test our commitment
to and understanding of those principles. It can be argued, moreover, that a discussion
of disaster scenarios is of great practical importance. Emergencies that stretch resources
to this degree are rare in our society, but they are, tragically, not rare in many other so-
cieties.1 Further, it is virtually certain that such emergencies will, at some time, occur in
Canada. Witness the often-voiced concern about the rapid spread of epidemics like bird
or swine flu, the possible dire predictions of terrorist attacks, earthquakes, environmen-
tal disasters, and so forth. We need to have a clear understanding of the rules we should
follow to handle such crises.2 Clarity about how to handle admission of equally urgent

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 272   DEBATING HEALTH CARE ETHICS

patients fairly in these crises may also guide us in other more common situations where
patients must be triaged in emergency and non-emergency situations.3
Warren will use his social contract method to arrive at a set of principles to pri-
oritize patients in emergency situations. Doran and Patrick will challenge Warren’s
argument and will work with him to begin to develop a set of fair rules. In the end,
Doran argues that triage nurses should follow principles that are largely limited
to certain medical considerations. Warren and Patrick go further and argue that
a greater number of non-medical considerations should sometimes influence who
should receive care first.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Define microallocation and distinguish it from other types of allocation in

health care
• Explain the CTAS guidelines, and discuss why these guidelines are too
simple to deal adequately with all triage scenarios
• State Warren’s, Doran’s, and Patrick’s views on whether Alice acted per-
missibly in caring for her Aunt Lena ahead of Terence
• Discuss the role impartiality should play in the treatment of patients, and
how impartiality is limited by the sympathy metarule in Warren’s view
• Explain and discuss the rules “worst first,” “first come, first served,” and
“hopeless second”
• Distinguish between excuse, mitigation, and justification, and explain
how the sympathy metarule helps identify whether a particular act is
excused, mitigated, or justified
• Describe Patrick’s and Doran’s objections to the sympathy metarule
• Understand why minimize YPLL (years of potential life lost) evolved into
substantial benefit under the force of objections
• State some of the challenges for substantial benefit
• Explain the fair turn and innocents first rules
• Discuss whether a person’s moral responsibility should ever affect triage
decisions
• Describe some relevant third-party interests that may affect the proper
order of care in an emergency situation

DRAMA
Please note: This case is based on various true stories, although names, places, and some
uncontroversial elements of the case have been changed to preserve anonymity and

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 Chapter 9  Microallocation of Scarce Resources  273

confidentiality. Discussions of this and similar cases with health care professionals have
also informed this fictional case. The drama merely raises issues. The philosophical argu-
ments are to be found in the debate following the drama.

CHARACTERS

Alice: a triage nurse for 20 years Gurpreet: a nurse training with

Alice to serve as a triage nurse

The scene is set in a small town in southern Ontario.

Alice: Now, Mr. Bains we called a level DEFINITION

1, and sent him in right away. Why Level 1 is a category triage nurses use
was that? for patients who need a physician’s care
Gurpreet: Well, to tell you the truth, I was immediately.
a bit surprised at that. He did not seem
like a likely candidate for an MI. He
kept saying it was probably just heart- DEFINITION
burn, but he wanted to check. MI stands for myocardial infarction, a
Alice: That’s the thing, you just can’t tell. heart attack.
You know you might see somebody
who is fit like Bains and dismissive of
his pain, but it’s tricky. If they have unexplained chest pain, send them in.
Gurpreet: My goodness! Was that woman with the broken wrist ever ticked when Bains
went in ahead of her. Oh, my! Alice, I thought she would…
Alice: Get used to it, Gurpreet. People are always angry. They always think they
should go first. Parents with kids get outraged sometimes when you treat some-
body ahead of their kid. You just have to do your best. You’re always triaging in
your head. There’s this constant assessment and reassessment of your patients.
People come in, sit down, get worse, get better. You have to be watching every-
body all the time.
Gurpreet: What happens when you have a couple of people at the same level at the same
time? I mean, suppose you have someone like Bains, and then someone like that
young woman with the type 2 diabetes … you know the one?
Alice: Yeah, I think I see where you’re going with this.
Gurpreet: So she came in first because of numbness in her foot but doesn’t have
chest pains at first, then in comes Bains and she starts having the pains. Now
you’ve got the two of them both at level 1. Today we have Dr. Anderson and
Dr. Horst both in, but suppose one of them was out of town? I would take that
young woman first.

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Alice: Yes, Ashley—she’s the woman with diabetes. She would probably be more urgent
than Bains in that case, so sure, you do have to make decisions about who goes
first even within levels. And in some kinds of cases you can take a couple of people
at once. Dr. Anderson is a good multi-tasker. Dr. Horst is not, though. Anyway,
sometimes you just have to choose. It’s not often that you can’t call in extra help or
get a nurse to hold the fort until Dr. Anderson or Dr. Horst can get to it. But when
you do get these tough choices, it can be really hairy. I mean, suppose Bains came in
kind of grey with left-side weakness. It might be tough to say whether he was more
urgent than Ashley. What would you do then?
Gurpreet: Well, I guess to be fair, I’d just take them in the order they came.
Alice: Of course, if it’s like you say, Ashley was there first, but for something else, and
they both get into real trouble at the same time, then it isn’t so clear what’s fair. I’ll
tell you though, the people who work here are really good people. They might look
at it and say, “Well, here’s Ashley with nothing, living in the shelter, never had a
break. And there’s Bains, the wealthy dentist, all the advantages.” You know, I think
we tend to give the people who are the most vulnerable the edge when it comes to a
tie. You might have noticed that indigent people get royal treatment here.
Gurpreet: It seems like a kind of reverse discrimination.
Alice: Yeah, maybe.
Gurpreet: But what if you thought Ashley was unable to recover because of her other
conditions, but you thought you might be able to save Bains?
Alice: Well, sometimes a patient really has no hope of recovery, but we can’t know that.
I guess if it seemed really obvious that one person was a candidate for comforts only
but the other could have a long life, then the one who had a real chance should go in
first. But look, I’ve been on the job 20 years, and I’ve never had a decision like that.
Gurpreet: I need to ask about these what-ifs because, you know, you never had a day like
last Thursday in your whole career before, either. You had to make tough choices
like you’d never made before. I don’t know what I’ll face in my career. I need to be
ready, Alice. I’m not trying to be pushy. I’m just scared that I won’t know how to
think about some of the things I might see.
Alice: Point taken, Gurpreet. Last Thursday was a regular Armageddon.
Gurpreet: I don’t really know how you made those decisions; I was so busy putting
pressure on a wound with Horst barking orders and everything going crazy all
around us.
Alice: Well, you kind of go on instinct when it’s that bad, or it’s like you’re just doing
what you know from experience. I sort of feel like I’m programmed by my earlier
imaginings about what I would do if I was in that kind of a fix.
Gurpreet: Is it too soon to talk about it, Al?
Alice: No, Gurpreet, I’ve got some distance now. But it’s still fresh in my mind. Maybe
now is the right time even if there is no good time to talk about it.

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 Chapter 9  Microallocation of Scarce Resources  275

Gurpreet: It must be so hard, when you know everybody in town, to make choices
like that. I was talking to the mayor yesterday. He said it all started when Terence
walked right out on the highway without even looking. He was really very inebri-
ated, the mayor said.
Alice: Terence always was drunk.
Gurpreet: The van full of people heading for the conference swerved to avoid Terence,
but hit him and then lost control. They hit Harvey’s truck head-on.
Alice: Yeah, that about fits with what I heard. Les saw most of it happen and told me.
Gurpreet: Where was Dr. Anderson?
Alice: Dr. Anderson was already at the Northern Health Conference in Mayville. By
the time she got back here, it was all over but the crying.
Gurpreet: By the time they called me in to Emerg it was already chaotic.
Alice: It didn’t take long to get that way. They brought Terence in first. He was un-
conscious with a serious head wound. Right behind him was Aunt Lena. You
could have knocked me over with a feather. She was in awful shape. They were
both level 1.
Gurpreet: You’re really close to Lena, aren’t you?
Alice: God, yes. I was emulating Lena when I got into nursing in the first place. She’s
been my hero.
Gurpreet: Well, she’s been a hero to this whole town from what I gather.
Alice: Yes, there’s not much good work here that she hasn’t had a hand in. Anyway, I
saw Lena and did not even think. I took her straight in to see Dr. Horst. Lena told
me to let her wait and take care of Terence. I didn’t listen. Dr. Horst was sewing up
this carpenter who had mangled his hand. He just handed off the carpenter to Jesse
to keep the bleeding under control and started right to work on Lena.
Gurpreet: What happened to Terence?
Alice: We had him in the next room, and told Dr. Horst about him. Dr. Horst just said
okay and worked furiously on Lena while I went back to call everybody in and tell a
level 3 in the waiting room that it was going to be a long time. I could hardly talk.
Gurpreet: Is Lena going to make it?
Alice: Maybe. She’s got a lot of internal injuries. Harvey was sitting right beside her
in the truck, and he died on impact, they think. She’s so tough. God, I hope she’ll
make it.
Gurpreet: I guess you didn’t even have a chance to catch your breath before the others
came in.
Alice: You got that right. Those people from the van were not hurt as bad, but we all had
somebody to work on. That’s when you came in and I put you to work on that young
guy who looked like he might bleed out. It was him or that really old man who was
unconscious, so I chose the young guy. The old fellow had probably already had a
good shot at life at his age. They both pulled through in the end.

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Gurpreet: Was Terence still alive then?

Alice: I’m not sure. Jesse was with him. She just said by the time Dr. Horst had Lena
stabilized, it was too late for poor old Terence, and I didn’t have the heart to ask any
more about it.
Gurpreet: Are you okay, Alice?
Alice: Yeah, I feel bad about it, but I think I did the right thing.
Gurpreet: Nobody could have done better, Alice.

DEBATE

Clarifying the Case and Identifying Relevant Facts

Patrick: Well, I think it’s pretty clear what happened in this case.
Doran: Yes, but it’s a little hard to remember who is who. Aside from the nurses Gur-
preet and Alice, there are a great many patients and health care workers to keep
track of.
Warren: Maybe a quick review would help. The action takes place in a rural setting
where one often finds a scarcity of resources that one would not find in a larger
centre. There’s Bains, a wealthy dentist and a patient in Emerg. He gets in ahead
of other patients because chest pain makes him a level 1. Ashley, a patient in the
emergency department with type 2 diabetes, was used as an example by Gurpreet
to try to contrast with Bains.
Patrick: Oh yes, that’s not something that actually happens in the case. Rather, Gur-
preet is just juxtaposing two patients in her imagination. She wanted to consider
two level 1 patients competing for resources.
Warren: That’s right. Dr. Angela Anderson, an emergency physician, was away during
the big accident, leaving all the cases to Dr. Hans Horst, the other emergency phy-
sician in this small town. Then there is Terence, a chronic alcoholic, who caused the
terrible traffic accident that made him a patient in the emergency department. He
gets treated after Alice’s Aunt Lena, and he ends up dying. Remember that Alice
put Aunt Lena, a pillar of the community, ahead of Terence.
Doran: There was another important decision Alice made, too, but the patients did not
have names.
Warren: Yes, a young patient is treated ahead of an elderly man. In addition, there are sun-
dry other characters who do not figure prominently in the story: Harvey, one of the
drivers, who died on impact in the accident; Jesse, an emergency department nurse; the
carpenter whose wound treatment is put on hold while more urgent patients are treated;
and the mayor and Les, who witnessed the accident. Some of the unnamed patients
were in the van that swerved to avoid Terence and hit Harvey’s truck head-on.

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 Chapter 9  Microallocation of Scarce Resources  277

MORAL ISSUES RAISED BY THE CASE

BACKGROUND
“The Canadian Triage and Acuity Scale (CTAS) was introduced during the late 1990s.…
The CTAS is now being implemented as a national triage standard for Canada’s emer-
gency health care system. Prior to its formulation, hundreds of rural and urban Canadian
emergency departments (EDs) had developed home-grown triage systems to sort pa-
tients by urgency. There was, and still is, huge variation in rural ED triage across the
country.” The CTAS guidelines were drawn up as a consensus document by the CTAS
National Working Group of nurse and physician specialists in emergency department
triage and have been validated by a number of publications. The CTAS directs triage
nurses and doctors to place patients in emergency departments on a five-point scale,
where patients at level 1 require immediate treatment, patients at level 2 are slightly
less urgent, etc.

CTAS
Acuity Triage Physician Nurse
level assessment assessment
Critical 1 Stat Stat
Emergent 2 <15 min <15 min
Urgent 3 <30 min <30 min
Semi-urgent 4 <1 h <1 h
Non-urgent 5 <2 h <2 h

Note: Stat is the abbreviation of the Latin statim, “immediately.”

The CTAS has been criticized for requiring unrealistic response times, especially for
emergency departments in rural communities, where hospital resources (including per-
sonnel) are in short supply.

Source: Quotation and other information taken/adapted from James M. Thompson and Graham
Dodd, “Ruralizing the Canadian Triage and Acuity Scale,” Canadian Journal of Emergency
Medicine 2, no. 4 (2000): 267.4

Patrick: The essential problem concerns the treatment of patients in emergency situa-
tions, and who should be given priority. The guidelines nurses have just tell them
to take patients in order of medical urgency, but in cases like this one, where the
hospital’s emergency department is overwhelmed, questions about these guide-
lines are bound to arise.

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Doran: Sure, we want to know whether other factors besides urgency are morally
relevant. We need to know how to make decisions when cases are equally urgent,
and yet the patients cannot all be cared for at once. This is the general issue we
should investigate.
Patrick: Yes. The specific question we could debate is whether Alice acted permissibly in
our drama. For example, Alice took other considerations, like age and merit, into
account, when deciding on who should be treated ahead of whom. In answering this
question, we will no doubt consider the more general issue: What rules ought to be
followed when deciding on the order of care in emergency situations where needed resources
are scarce? But let’s begin with Alice. Were her decisions justified?

Stating Our Positions

Warren: I believe we will be able to justify Alice’s decisions by appeal to principles

people would accept in the original position.
Doran: Although I feel great sympathy for Alice, I believe she made decisions that
were not hers to make as a triage nurse. For instance, I am quite uneasy about her
decision to take Lena ahead of Terence. Triage nurses should base their treatment
decisions impartially on clinical factors, and not on personal affection, judgments of
guilt or innocence, and so forth.

DEFINITION AND BACKGROUND

Clinical factors are considerations that may affect the proper order of care, arising from
an assessment of the medical needs of the particular patients; non-clinical factors are
those that do not arise from an assessment of the medical needs of the particular pa-
tients. An example of a non-clinical factor might be the guilt or innocence of the patients
waiting for treatment. Nurses, at least, are sometimes suspicious of rules that allow the
use of such non-clinical factors.

Patrick: I’m also a little uncomfortable with Alice’s decision to put Lena ahead of Ter-
ence. But given her special relationship with Lena, I don’t think we can morally
blame her for doing this. Indeed, I think that from my virtue ethics perspective,
her actions can be shown to be morally permissible. More generally, I believe that
acting virtuously requires that we allow non-clinical considerations to play a role in
prioritizing patients.

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 Chapter 9  Microallocation of Scarce Resources  279

MICROALLOCATION RULES: CLINICAL CONSIDERATIONS

Warren’s Argument for Fair Microallocation Rules: Worst First, First Come,
and Hopeless Second

BACKGROUND
“While macroallocation of resources concerns public health policies, microallocation is
concerned with selecting which individuals are to receive scarce or insufficient health
care resources” (266).
Some use the term mesoallocation to refer to allocation at the level of institutions,
and macroallocation to refer to allocation at the level of governments deciding among
health care and other areas needing support. We are looking at the issue of microalloca-
tion under conditions of scarcity. The principles we consider and defend in this chapter
are not necessarily appropriate to mesoallocation or macroallocation.

Source: Quotation taken from P. A. C. Fortes and E. L. C. P. Zoboli, “A Study on the Ethics of
Microallocation of Scarce Resources in Health Care,” Journal of Medical Ethics 28 (2002):
266–69.

Warren: I think that if we consider what we would accept in the original position we can
generate a set of high-level rules governing microallocation.
Before I get to specific rules governing microallocation, though, it seems to
me that a reasonable general rule to
choose in our own interest as seen DEFINITION
from the original position is the rule Impartiality is used here in the ordinary
of impartiality: health care profes- sense, meaning “freedom from bias, fa-
sionals should usually be impartial in vouritism or prejudice.”
helping patients.
I say “usually” because the rules
chosen in the original position must DEFINITION
be consistent with human sympathy. A metarule is a rule that governs the
For this reason, we would also accept production, use, and interpretation of
a rule about making rules I call sym- other, lower-level rules. Warren explains
pathy, the metarule that the rules be the sympathy metarule in chapter 3.
chosen and interpreted so they can be
followed by people with ordinary hu-
man sympathies. That is why our first rule, impartiality, must be limited. Indeed,
the sympathy metarule imposes a limit on all of our rules.

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Doran: So, you suggest that the justified rules for deciding how to distribute scarce
health care resources must be rules that are generally applied impartially, yet con-
sistent with human sympathies. I already have some questions about these claims,
but before they are asked, why don’t you explain what specific microallocation rules
you think would be chosen in the original position?
Warren: We all have a strong interest in reasonable access to care, so we wouldn’t want
to be bumped by less needy people who have help from insiders. Of course, some of
us will need care more urgently than others. That is why we would accept the rule
worst first: treat the worst cases in the emergency department first.
Patrick: That sounds right, but it may depend on what you mean by “worst.” Do you
mean, for instance, those who will die without immediate treatment, those who are
suffering the most, those with the most to lose if they die, or something else?
Warren: By “worst” I mean those who are most urgently in need of treatment in the
medical judgment of the triage nurse. In Canada our CTAS guidelines define
five levels of urgency. Within different levels of triage, the worst first rule would
still require the triage nurse to make distinctions. For example, at level 1 a patient
who is liable to die if not seen im-
mediately would be placed ahead of BACKGROUND
a patient at level 2, who could wait As noted, the CTAS guidelines are a
for more than 15 minutes. At level 3 set of rules about how to make medi-
where both patients could wait for 30 cal judgments following, in effect, the
minutes, the one who was likely to worst first rule. The guidelines do not
be in more pain than the other might deal with ties, exceptions, and some
be admitted first. Medical judgment other things that occupy us in this de-
will be influenced by both pain and bate. We want to understand the more
loss of function that the patients may general picture, including the excep-
suffer. Permanent loss of function is tions to worst first in a fair system.
more serious, of course, than tempo-
rary loss.
Patrick: Okay, that somewhat helps to clarify the worst first rule. What other rules
ought to be adopted?
Warren: Once we have taken the worst first, we might think that it would be fair to ap-
ply the first come rule within a given triage level: first come, first served.
Doran: That idea seems reasonable to me.
Respect for persons requires that we THEORY
take patients who are equally badly off The Kantian takes respect for persons
on a first come, first served basis. On as the very foundation of ethics, not
its face, at least, there’d be something something to be justified by appeal to
disrespectful in passing me over and the rules chosen in the original position.
taking you, if I have been waiting lon-
ger and we are in equal need of care.

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 Chapter 9  Microallocation of Scarce Resources  281

However, a possible exception

BACKGROUND
to the worst first and first come rules
might be a case where the patient who Traditional triage practices on the bat-
arrived first can only survive for a very tlefield and in other emergencies in the
short period of time, while those be- field sort patients into a number of cat-
hind that person are in urgent need of egories, depending on considerations
medical care from which they could of urgency. They also sort patients into
substantially benefit. the categories of those that can be
Warren: Yes, respect for persons would be saved and those that cannot be saved.
in all our interests, as seen from the Those that cannot be saved may be
original position. As to the patient who given comfort measures, but priority
cannot be saved for long, consider, in in terms of life-prolonging measures is
support, the following claim: If two given to those that can be saved.
patients arrive in a terribly overcrowded
emergency department, patient A first
and patient B second, and both are level 1, the triage nurse should turn aside A, whom
the nurse judges to be hopeless in the long term, in favour of B, who might have a
chance for a long life if treated.
Now we see we should add the UP FOR DISCUSSION
first of perhaps many exceptions to Should first come play a role in treat-
worst first and first come—hopeless ment decisions? Why should those who
second: do not treat hopeless cases were lucky enough to get to the hospital
ahead of those where there is hope. first be treated ahead of those who are
Patrick: By “hopeless in the long term,” equally badly off but who took longer to
do you mean something along the get to the hospital?
lines that the patient won’t survive
even with treatment?
Warren: Well, at least the patient won’t survive for a significant period of time. We are
talking about hours, not days. Someone who can be kept alive with heroic medical
efforts for only a few hours is clearly in this category with respect to another patient
who can have some months of good-quality life if treated immediately. Hopeless
patients are patients for whom comforts only are medically indicated.
Doran: I am not sure if hopeless cases should be defined so narrowly. But we can explore
this issue with greater precision later.
Patrick: Right. Are there any more rules that you think we would choose from the
original position, Warren?
Warren: Maybe, but let’s see what we’ve got so far: consistent with human sympathy,
health care workers should impartially follow the rules of (1) worst first, plus (2) first
come. This is the basic set of rules; however, there are exceptions. The first exception
is what I’ve called (3) hopeless second: do not treat hopeless cases ahead of those
where there is hope.

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Patrick: This looks like a good start. Before we start discussing further exceptions to
the basic principles, why don’t we see whether there’s agreement on the sympathy
metarule, which is supposed to govern the interpretation and application of the
principles. Doran, do you have any objections to the sympathy metarule?

Doran’s Objection to the Sympathy Metarule

Doran: I think I agree with the general

microallocation principles, but I’m THEORY
not sure about the sympathy meta- Impartiality is often thought to be basic
rule. Isn’t it a bit odd for a contrac- to fairness. Think of what we require,
tarian like you, Warren, who makes for instance, from a judge in the court
fairness central to morality, to want to system. Fairness is the fundamental
restrict impartiality? moral idea in John Rawls’s contractar-
Warren: Actually, as seen from the origi- ian theory.
nal position, it is in our interest to
have public servants generally operate
impartially. It is, however, also strongly in our interest to promote human sympathy
and the bonds of family and friendship. These bonds would be destroyed if we tried
to be utterly impartial.
Patrick: I agree that we can’t ignore such bonds, given the importance of such virtues
as love, friendship, loyalty, and so on.
Doran: Can you give me some examples TECHNIQUE
of when sympathy might play a prop- Demanding an illustration of a prin-
er role in triage decisions? ciple is a technique designed to elicit
Warren: To give you an accurate picture, the strengths and weaknesses of that
I will have to give you four kinds of principle.
cases. The sympathy metarule might
allow for a mitigation, an excuse, a
justification, or none of the above. DEFINITION
The first three come in increasing A mitigation shows that a wrong action
order of rarity, with justified actions is not as blameworthy as usual. An ex-
contrary to normal triage being very cuse shows that the person who did the
rare indeed. wrong action should not be blamed at
Patrick: Let’s start with mitigation. all. A justification shows that the action
When is sympathy acceptable as a was not wrong after all.
mitigating factor?
Warren: If a nurse or a physician gets a
close friend somewhat faster treatment in the emergency department than would
otherwise be given, then we might well have a case of a wrong action that would be
less blameworthy because of the strong bonds of sympathy that motivate it. In the

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 Chapter 9  Microallocation of Scarce Resources  283

original position, we would recognize the powerful pull of sympathy and not want
to rake the nurse or physician over the coals for this. The action would be impermis-
sible, but not the darker sort of offence that, say, quicker service in exchange for a
monetary reward would be. Even if a very serious punishment is contemplated in
some cases of favouritism, the mitigating factor of strong bonds of sympathy may
lessen the punishment in this case.
Patrick: I think I agree with you so far, Warren. The virtuous person would of course
be loyal and have a special kind of concern for close friends. This makes it difficult
to place much blame on the nurse or physician in the situation you describe. But
virtue also requires fairness, so as you say, Warren, her action may still be wrong,
since it was unfair to others.
Doran: I’m not so sure I like the direction you guys are going, but carry on. I’d like to
see what counts as an excuse.
Warren: Excuses are much rarer since they require that the pull of sympathy be over-
whelming. Consider a case in which a triage nurse is very sympathetic to the
poor and the downtrodden. A homeless person who evokes great pathos in the
emergency department is given a place in the queue that should, by triage rules,
have gone to a wealthy businessman who is also waiting and slightly more urgent.
In this case, the nurse did the wrong thing, but her action is morally excusable
because she was temporarily overwhelmed by sympathy and incapable of exercis-
ing normal judgment.
Patrick: That would be a very rare case indeed. But I’m not entirely sure why you see
this as a case in which sympathy excuses, rather than merely mitigates. Does it have
to do with the fact that the nurse was so overwhelmed by sympathy that it impaired
her reasoning capacities?
Warren: Yes, the triage nurse would find it emotionally impossible to be impartial in
this circumstance. One would not expect this from professionals generally. Most
cases that appear to be like this could be subsumed under cases of mere mitiga-
tion, because the pity for the homeless patient would not be strong enough to be
overwhelming. Nonetheless, if it overwhelmed the nurse’s reasoning capacities, it
would be excusing.
Doran: Perhaps some people are too kind-hearted to be triage nurses. What I don’t
expect to see, however, is a genuine case of justification.
Warren: The kind of cases I have in mind rely on the people in the original position
recognizing that there are some bonds so strong that it would be foolish to make
rules that ignore them. That would result in the rules being ignored. Suppose a
triage nurse sees her own small child brought in from a serious incident at the
daycare nearby. Several other children are brought in at the same time with simi-
lar injuries and urgency. The nurse would be duty bound to let someone else take
over. Suppose that can’t be done in this circumstance. If the nurse got prompt
treatment for her own child simply because it was her own, rather than taking the

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children at random as she would otherwise have done, could that nurse be said to
have done something morally wrong? I think in the original position we would
recognize the futility of asking for superhuman impartiality. The nurse’s action
would be justified.
Patrick: I’m inclined to agree with you, Warren. The virtuous nurse would of course
strive to be fair and impartial, but not to the point that she would treat her seriously
injured child as just one among many children in need. Since it is her child in need,
it seems that a special sort of concern and treatment is warranted.
Still, I am trying to get clearer about the limits of the sympathy metarule in
your view. Maybe it would help to see a case in which there is no mitigation, excuse,
or justification, but sympathy is still present.
Warren: Well, suppose a nurse has strong sympathies for people of his own race and fa-
vours them in ways that bend the triage admissions policies. That would be wrong.
Sympathies for one’s race are sympathies one can and ought to limit severely, un-
like the parent’s sympathy for the child. In the original position, we would want
to avoid the evils we might suffer from racism and would require that the effective
sympathies be those that are, like the mother’s for the child, part of being human
and strongly in our interest. In the original position, we would know we are likely
to benefit from strong family bonds, while strong racial affiliations lead to strife that
is not in our interest.
Patrick: Right, but we need to tread carefully here. Nepotism as well as racism can
undermine our interests.
Warren: Yes, to prevent nepotism, those in the original position would insist on rules that
require public servants to recuse themselves when in a conflict of interest. In some cas-
es, however, that can’t be done. Rules that require parents to ignore the ties that bind
them to their children would be honoured more in the breach than the observance. It
is in our interest to preserve respect for the rules by not making them inhumanly strict.
The sympathy metarule moderates the
rules so that where strict adherence THEORY
is not in our interest as seen from the Warren tries to avoid ethical relativ-
original position, there is a mitiga- ism by appealing to human sympathies
tion, excuse, or justification available that are independent of culture, like
depending on the degree and kind of the bond between parent and child. It
sympathy. Where it is greatly in our is, however, an empirical question what
interest to promote a particular kind human sympathies exist and what their
of sympathy, like the bond between relative strengths might be. Often, we
parent and child, we must allow excep- are forced to make reasonable guesses
tions in rare cases where no alterna- about empirical matters while we wait
tive is available. Too many exceptions for social science to enlighten us about
would undermine the rules, as would the facts.
no exceptions. It is a delicate balance.

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 Chapter 9  Microallocation of Scarce Resources  285

Patrick: That’s for sure!

Doran: Warren, you described one case where the sympathy metarule allows for par-
tiality—the case where one takes one’s own child first, instead of taking equally
badly off patients in random order. This is a vanishingly rare case. Are there other
circumstances, perhaps slightly less rare, where sympathy would justify partiality?
For instance, what if you had two patients, equally in need of urgent care, where the
patient second in line was the triage nurse’s parent, or sibling, or best friend? Would
the triage nurse be justified in acting on her sympathies?
Warren: I think the cases you are imagining may be as rare as my original case of justi-
fied partiality. Having said that, I would think that a triage nurse, if and only if he
is unable to step aside and delegate responsibilities to others, may permissibly put
his mother or sibling ahead of someone else, provided that they were both equally
in need of immediate care. In the original position, it will be recognized that people
with ordinary human sympathies may not be able to overcome the bonds of im-
mediate family; however, with respect to friends, I think such a decision would be
viewed as unjustified, though there are mitigating factors.
Doran: And so sympathy alone would not have justified Alice in putting her mentor
Lena ahead of Terence? Sympathy, in her case, would only work to mitigate or
excuse the wrong?
Warren: Yes. Sympathy will mitigate or excuse, not justify, Alice’s actions.
Patrick: But you don’t think Alice acted wrongly, do you? Don’t you think it was mor-
ally permissible for Alice to put Lena ahead of Terence?
Warren: Yes. I will argue later that other considerations, in addition to sympathy, will
render her decision permissible.
Patrick: I see. I think we’re in agreement about this case thus far.
Doran: I understand your reasons, and accept overwhelming sympathy as a mitigat-
ing factor, but I would not say that a triage nurse acts permissibly if she puts her
own child at the head of the queue. Such an act, while highly understandable, is
also unprofessional. Just as a judge or a professor ought not to play favourites when
evaluating a family member’s case or
work, and just as an attorney ought to UP FOR DISCUSSION
try as hard as she can for her client Do you think a triage nurse could ever
even if she is repulsed by him, I don’t be justified in putting their own child
think health care workers should al- ahead of other similarly urgent cases?
low their medical decisions to be in-
fluenced by family ties.
Warren: Strict impartiality is, nonetheless, not a reasonable choice from the original
position. Humanized impartiality is. We must make exceptions to rules that allow
for human sympathies; otherwise we will have rules that will not be followed. This
does not mean that we simply follow our sympathies in ordering patients for care.
It does, however, allow for these rare exceptions to straightforward application of

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the CTAS guidelines. Remember that justified exceptions to the guidelines will be
very rare indeed.

TECHNIQUE
Warren is “biting the bullet” here. The initially counterintuitive idea that someone con-
cerned about fairness would abandon strict impartiality is accepted but explained.

Patrick’s Objection to the Sympathy Metarule

Patrick: I share your concern about allowing sympathy to influence the decisions of
medical (and other) professionals, Doran. And I certainly wouldn’t accept a general
rule that says it’s always okay to give one’s family and friends special consideration.
But, as Warren has been arguing, we cannot ignore the various worthwhile bonds
we form with family, friends, and others. In some very special cases, partiality is
called for. Nevertheless, although I’ve expressed general agreement with the role
you accord to sympathy, Warren, I also want to raise a question or two about the
sympathy metarule and examples of its application.
Warren: Go ahead.
Patrick: What motivates the sympathy metarule is that you want to choose rules in the
original position that are consistent with human sympathy. But if that’s so, you not
only need rules that are consistent with the sympathy of those distributing medical
resources, but you also need rules that those of us in the queue for medical services
could follow. Do you think that people in general would agree to triage nurses
sometimes bumping family members ahead of them?
Warren: As Alice notes in our drama concerning the CTAS guidelines, people may
be upset at the application of fair rules. That does not make the rules unfair. The
impartiality rule requires that the triage nurse should be as impartial as is humanly
possible. That, I think, is a rule we could accept in the original position. It gives us
the best we can get within human limits. I am assuming that those in the queue,
with occasional exceptions among the
ones being bypassed, would generally BACKGROUND
feel much the same sympathy as the
There are a variety of practice stan-
triage nurse in these extraordinary
dards beyond the CTAS guidelines that
cases. There is a difference of degree
affect health care providers. For ex-
that you overlook. From the original
ample, each province in Canada has
position, we would not accept a sys-
its own practice standards for nurses,
tem in which only insiders and those
and the Canadian Nurses Association
they favour would be adequately
publishes a nationally accepted Code
treated. Impartiality has to be strong,
of Ethics for nurses.
just not absolute.

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 Chapter 9  Microallocation of Scarce Resources  287

Patrick: Okay. From my virtue ethics perspective, I would agree that sympathy ought
to play a role in allocation decisions. But there’s a role for other virtues, too—for
example, compassion, benevolence, charity, empathy, loyalty, and so on. So I would
like to know why you single out sympathy as a relevant consideration. Or perhaps
you construe sympathy more broadly than I do?
Warren: Yes, I seem to be construing sympathy much more widely than you are. Other
positive emotions contribute to it. The key idea is that people in the original position
are going to see it as in their interest to have rules applied impartially; however, they
will also realize that people have various deep personal attachments that cannot al-
ways be set aside in the name of impartiality. They will thus agree to rare exceptions
to the impartial application of rules—otherwise, the moral rules would be overly
demanding and unlikely to be followed.
Patrick: I see. There’s one last point of clarification before we move on. You are not
merely claiming that we shouldn’t require impartiality because people are incapable
of it, are you? You are saying that in some special and rare cases, impartiality would
be morally inappropriate—that is,
partiality is morally called for in THEORY
those situations. Is that right? A widely accepted dictum in philosophy
Warren: Right. is that ought implies can. That is, it is ab-
Doran: The basic set of rules you have surd to say that something ought to be
defended so far, Warren, is still not done when it cannot be done. Warren’s
adequate for handling the full range claim is not that people cannot be im-
of cases health care workers are partial in these triage cases involving
confronted with. So why don’t we close family members; rather, it is that,
consider some other cases and see under special conditions, they need not
whether the rules proposed are able be impartial, even if they could be.
to handle them?

Objection to the Sufficiency of Hopeless Second

Doran: Earlier you proposed the rule we’ve called hopeless second: do not treat hopeless
cases ahead of those where there is hope. This seems a little too simple.
Patrick: Yes, Warren, what would you say about this case? Suppose we have a not-
quite-hopeless patient who arrives at the emergency department in need of imme-
diate medical attention. If this patient
receives treatment, he will survive a TECHNIQUE
few months, or perhaps a year or so at Here a hypothetical case is used to sug-
best, so he does not qualify as a hope- gest the need for either an additional
less case. A few minutes later, an- microallocation principle or a modifica-
other patient arrives who also needs tion of the hopeless second principle.
immediate care. Let’s suppose that if

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treated, this patient can be expected to live another 50-plus years. Now suppose the
emergency department does not have enough resources to treat both of them. It
seems to me that, in this case, the patient who will live longer should get priority.
But the basic set of rules does not seem to permit this.

Minimize YPLL (Minimize Years of Potential Life Lost)

Warren: I agree that the patient who ar-

rives second should be given priority, BACKGROUND
so we need to move beyond hopeless
Minimize YPLL is primarily not a micro-
second. Let’s have a look at a rule ex-
allocation principle as we use it here.
plicitly in use in health care. Some
Usually it is a principle adopted in epi-
physicians would appeal to minimize
demiology and the insurance industry.
YPLL, the rule that we should bias
It is used as a way of measuring the
decisions in favour of minimizing
impact of a disease or other negative
years of potential life lost. It would be
health determinant. As such it operates
in our self-interest in the original po-
at the mesoallocation (institutional) or
sition to accept a rule like this. It is a
macroallocation (governmental) level.
rule that lets us suffer small losses but
As a microallocation principle (operat-
avoid large ones.
ing at the level of individuals), minimize
Patrick: I am not at all sure that minimize
YPLL is somewhat like hopeless sec-
YPLL would allow us to avoid only
ond, which tries to minimize potential
small losses. For instance, suppose a
life lost by passing over patients with
55-year-old is admitted to the emer-
little to gain from treatment; however,
gency department with heart trouble.
minimize YPLL goes further than hope-
A few minutes later, a 45-year-old
less second in what it would permit.
comes into emergency complaining
of the same thing. Minimize YPLL
seems to imply that we should bump TECHNIQUE
the 45-year-old ahead of the 55-year- Notice, again, a counterexample is used
old, if the physicians can treat only one to demonstrate that a particular prin-
of them. The 55-year-old may well have ciple is false.
lots to lose in this case. So it seems that
bumping the 45-year-old ahead of the
55-year-old would be wrong.
Warren: I agree; that would be wrong.
Doran: Yes. I agree with your intuitions, Patrick, that we should treat the person
who is expected to live another 50 years ahead of the person who is expected to
live only another 6 to 12 months, especially if the one person has already led a
long life while the other has not. The minimize YPLL principle is able to ac-
commodate this intuition; however, it turns out that this principle is too simple,

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 Chapter 9  Microallocation of Scarce Resources  289

for it implies something that is surely false—that, in cases where only one pa-
tient can be treated, we should bump the 45-year-old ahead of the 55-year-old.
Given that minimize YPLL is vulnerable to counterexamples, it is clear that we
need a different principle to deal with these cases and others like them.

THEORY AND DISCUSSION

One might wonder why we should trust our intuitions about what is right or wrong in
these sorts of cases. The answer, in part, is that we are seeking reflective equilibrium;
that is, we are seeking moral principles that cohere with the moral judgments about
cases that we are most confident about. We therefore need to test our proposed moral
principles against various cases. See chapter 1 for a discussion of reflective equilibrium.

Substantial Benefit

Doran: Perhaps the principle we are looking for is something like the following: If a
patient stands to benefit substantially from being treated first, while the patient
ahead of him in the queue will not benefit substantially from being treated, then the
patient who will benefit substantially should be treated first. Let’s call this principle
substantial benefit. Notice that this principle would support our judgments that it
would be permissible to treat someone who is expected to gain 50 years of good life
ahead of someone who is expected to gain only 6 to 12 months of good life. And
notice that this principle would support our judgment that it would not be permis-
sible to bump the 45-year-old ahead of the 55-year-old, since the 55-year-old would
certainly gain a substantial benefit from treatment.
Warren: That sounds better than minimize YPLL, for it applies only when there is a
large difference between patients. From behind a veil of ignorance, we would accept
the substantial benefit principle since it would be more likely to serve our interests
whatever triage category we might fall into. Where it serves our interests, our in-
terests are strong. Where it neglects them, our interests are slight. Where the gap
in interests is not great, we would have to appeal to other rules. Of course, what is
a large difference will be context-relative and depend on difficult judgment calls.
Patrick: Substantial benefit looks like a move in the right direction. In order to test this
principle, though, we need to spell out the notion of a substantial benefit.
Doran: This is a difficult task. Perhaps substantial benefit should be looked at as a mat-
ter of quantity and quality. A year of high quality could be a substantial benefit, but
a year or more of poor quality would not be a substantial benefit.
Patrick: What would this principle imply about a case like this? Suppose a person who
can walk has a higher quality of life than someone in a wheelchair. If that’s true
(and I’m not saying it is), is it permissible to bump that person ahead of the one in
the wheelchair? Surely that would be wrong.

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Doran: Of course that would be wrong. On the one hand, I want to say the benefit has
to be health related. But, on the other hand, we need to prevent the able-bodied be-
ing put ahead of those who are wheelchair bound. The best way to do that is to just
deny that those in wheelchairs have lower-quality lives. Certainly, the wheelchair
bound can substantially benefit from life-prolonging measures!
Warren: From the perspective of the original position we don’t want to say that some-
one who is permanently wheelchair bound would automatically be bumped. There’s
bound to be some vagueness about substantial benefit, but it helps to look at some
cases using such a principle.
Patrick: Good. So it seems that substantial benefit is an improvement over minimize
YPLL. It allows us to explain why it would be permissible to give priority to the
patient who will live 50 years over the not-quite-hopeless patient who will live one
year of poor quality. We can also explain why it would not be permissible to give
priority to the 45-year-old over the 55-year-old. Both would receive a substantial
benefit from treatment. But other difficulties remain.

Fair Turn

Warren: I agree. Suppose we have a 77-year-old man admitted to the emergency de-
partment with a critical heart condition, and shortly after he arrives, a 5-year-old
child comes in with a similar problem. In the original position we would accept a
rule that says that if the emergency physicians can treat only one of the patients,
then the child should be bumped ahead of the elder. The child would suffer a large
loss if left to die. The elder would suffer a relatively small one in terms of years of
potential life left to live. These last years of the elder would, nonetheless, be a sub-
stantial benefit to him.
Patrick: That’s exactly the kind of case I had in mind! It reminds me that Alice put a
young man in treatment before a much older man because the elder one had already
had “a good shot at life.” Both could get a substantial benefit from treatment, so we
need another principle to justify putting the younger patient first.
Warren: From the original position, I think we would accept a rule that favours those
who haven’t had a fair turn at life over
those who have. So what I’m propos- BACKGROUND
ing is the fair turn rule: Patient B can
Some philosophers call this the “fair
go ahead of patient A (who arrived
innings argument.” See, for exam-
first) if A has had a fair turn at life
ple, Michael M. Rivlin, “Why the Fair
and B has not. This rule explains why
Innings Argument Is Not Persuasive,”
it is permissible to bump the 5-year-
BMC Medical Ethics 1, no. 1 (2000),
old ahead of the 77-year-old, even
[Link]
when the 77-year-old, if treated, will
6939/1/1.
have a life worth living.

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 Chapter 9  Microallocation of Scarce Resources  291

Doran: The principle is too loose, I think, as it would allow a 1-year-old to bump a
40-year-old. I don’t think that would be right, however. The 40-year-old may be in
the midst of her life projects—family, career, and so on—and she may have small
children dependent on her for care, and so forth. Her “turn at life” is not done, so
she should not be passed in the queue by someone else who is no worse off than
she is. Likewise, I suppose, if a small child was ahead of the 40-year-old, the small
child should not be passed over in the queue either.
Warren: The fair turn rule would allow
the 1-year-old to bump the 40-year- TECHNIQUE
old only if we agree that 40 years is a Notice how Warren avoids a counterex-
fair turn. But if we think of fair turn as ample by clarifying how the principle is
average life expectancy, then the prin- to be understood.
ciple can avoid your counterexample.
Patrick: The fair turn principle will still
meet with difficulties, even if we base the idea of fair turn on average life expec-
tancy. The average life expectancy of a male in Canada is about 79, while the life
expectancy of a female is about 83.5 Now, suppose patient A is an 80-year-old male,
and patient B is a 75-year-old male. Fair turn, if understood in terms of life expec-
tancy, seems to imply that B should be given priority over A. But that doesn’t seem
right, does it?
Doran: Good point. This is tricky stuff! But perhaps it is not unreasonable to maintain
that, other things being equal, the 75-year-old should be able to bump the 80-year-
old, since the younger man has not had the benefit of an average life expectancy,
whereas the older man has. That’s not
unreasonable, is it?
Patrick: I’m not sure what to say about BACKGROUND
this case. The age difference between In 1961, a committee at the University
A and B is pretty small, and B is just of Washington, which came to be known
two years shy of having had a fair in the press as the “God Committee,”
turn. So I’m not sure we’d be justi- was formed to determine who would get
fied bumping B ahead of A on the access to a new life-saving treatment,
grounds that B has not yet had a fair dialysis. The committee used social cir-
turn at life. I think we’d have to ap- cumstances of candidates rather than
peal to other considerations to justify clinical assessment of need or potential
doing this. medical benefit. This caused a storm of
Warren: Right. When lifespans are close, controversy and helped to give rise to
the triage nurse could ignore dif- the field of health care ethics.
ferences or look at other factors like
the general health of the candidates. Source: Gregory E. Pence, Classic Cases
in Medical Ethics, 2nd ed. (New York:
There are many other influences on
McGraw-Hill, 1995), 297–313.
fairness that the nurse would not

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know about, of course. What if the 75-year-old had many unfair social advantages
over the 80-year-old? Exceptions to fair turn should be based on purely medical evi-
dence. Health status determines who gets resources. Normally, triage nurses cannot
be expected to take account of social advantages one patient may have had over
another because they do not know about them.
Patrick: But even then we are met with hard cases. Here’s another one. Suppose patient
A is 73 and has enjoyed 13 years of retired life. Patient B is 60, and is now look-
ing forward to his retirement. They both stand to benefit substantially from treat-
ment, and neither has had a fair turn
at life, if life expectancy is 77 years. UP FOR DISCUSSION
Yet I’m inclined to say that it would Do you think it would be permissible to
be okay to bump B ahead of A, be- bump a 60-year-old ahead of a 73-year-
cause A is much closer to having had old in the case Patrick raises?
a fair turn at life than B. What do you
guys think?
Doran: We could say that where B has not come close to having had a fair turn, and A
has obviously had nearly a fair turn, then B goes ahead of A. Or we could bite the
bullet and say that B should not go ahead of A, since neither has had a fair share
of life, and since A has been waiting for treatment longer than B. Neither position
strikes me as irrational.
Warren: There is going to be some arbitrariness here. Patient A may have been vir-
tuous and B vicious, for instance. There are all sorts of unknowns. The quality of
life measure is, for practical purposes, very difficult to make precise. And it may
be the case that rules that are general enough to be of use to triage nurses will
also be rules that contain some vagueness or arbitrariness. The problem with
shrugging this off here is that the decisions of triage nurses may be a matter of
life and death.
Patrick: Right. When patients are close in their needs, I think the nurse will perhaps
have to consider various non-clinical factors—factors like whether the patient has
dependents, whether the patient is responsible for their condition, the patient’s con-
tribution to society, and so on.
Warren: These justifications of exceptions could go either way. We might admit one
patient because of the patient’s large family or, instead, admit the other because he
is orphaned and has suffered enough from loss of family to merit special treatment.
Doran: I don’t think that non-clinical considerations, like those just mentioned, ought
to play a role in a triage nurse’s decisions about whom to treat.
Patrick: I’m inclined to think they should play a role, at least sometimes. But I’m
not entirely comfortable with this position. So why don’t we explore the ques-
tion of whether we should adopt principles that would give a role to these other
kinds of factors?

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MICROALLOCATION RULES: NON-CLINICAL CONSIDERATIONS

Moral Responsibility

Doran: Okay. Let’s first consider this: Should moral responsibility play a role in priori-
tizing health care? Consider this case. Suppose that Alice knew that Terence caused
the accident. He was brought in before Lena, one of the victims of the accident.
Both are level 1 and are in serious need of immediate medical care, but only one
patient can be treated, while the other must wait. What do you guys think—would
it be permissible to give priority to Lena because she is an innocent victim and put
Terence second because he caused the accident?
Warren: Normally, the nurse would not
know who was who among the ac- UP FOR DISCUSSION
cident victims, and the police and There are, of course, other cases of
ambulance attendants would not say moral (and non-moral) responsibil-
anything. There might, however, be a ity that can give rise to questions of
rare case where the nurse knows or is proper allocation of health care. For
told. Alice is in that situation because instance, should a person’s culpable
she knows many people in her small failure to take adequate care of himself
town, including some of the incom- be a consideration when deciding prior-
ing patients. Such cases put our prin- ity of care?
ciples to the test. Generally, we would
expect non-judgmental, impartial tri-
age according to the impartiality rule: health care professionals should usually be
impartial when helping patients. That’s natural in the original position. We don’t
want nurses acting as judges and juries. We don’t want them distracted by judg-
ments of guilt or innocence or value of persons. It would not be in our interest in
the original position to allow access
to care to be so clouded with nurses’ UP FOR DISCUSSION
individual judgments about things If two people well known to the triage
outside their training, if such judg- nurse come into an emergency room,
ments could be avoided, for this could one after the other, suffering from chest
leave any of us out in the cold. pain, and the first patient is someone
Doran: So you think the patients’ moral who has led a life of doughnut-eating
guilt or innocence should be completely sloth, and the second is someone who
left out of the triage nurse’s decision? has taken excellent care of himself,
Warren: No, triage nurses are human, would it be wrong, other things being
not superhumanly capable of staying equal, to treat the second patient ahead
within their area of expertise. Suppose of the first?
Alice knows Terence is responsible.

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In such a case, Alice might find it nearly impossible to treat Terence and let his vic-
tim die. In some extreme cases, then, we might make exceptions to worst first and
first come on the basis of known guilt plus sympathy. Normally, however, we would
expect triage nurses to use only clinical factors to make a decision.
Patrick: It’s not just that it’s nearly impossible to treat Terence ahead of his victims,
Warren. It’s that it would be morally wrong to do this, in the kind of case described.
I believe Terence’s victims warrant greater compassion and sympathy, and so they
ought to be given preferential treatment.
Warren: In rare cases where it is nearly impossible to ignore our sympathies, the rules
would be undermined if we required strict impartiality. That is why, in the original
position, exceptions to impartiality would be required. Consequently, it is morally
wrong to treat the guilty first in some rare cases where there is no doubt who is the
perpetrator and who is the victim.
Doran: I have a different take on this. In general, I accept the moral principle that if one
of two people should have to suffer more, it should be the person who is at fault for
the injury, and not the innocent victim. So, I think it is only fair that Lena be placed
ahead of Terence if they both cannot be treated immediately; however, we are talking
about the factors a triage nurse should be considering. And I guess I lean toward the
view that we want our health care professionals making treatment decisions based on
health care considerations, period. As a triage nurse, then, I think Alice ought not to
ask herself who was at fault for the accident, but should instead follow the rule that
a patient is a patient. Again, the best support I have for this may be an analogy with
other professions. Attorneys charged
with defending someone they know is UP FOR DISCUSSION
guilty would not be justified in failing When, if ever, would a triage nurse be
to vigorously defend their clients, but justified in putting one patient ahead
should follow the standards of their of another, on the grounds that one of
profession. I think the same is true of the patients was at moral fault for an
triage nurses—they ought to stick to accident?
clinical considerations.

Innocents First

Warren: It seems that Patrick and I accept a principle that we can call innocents first:
Patient A, who is innocent and who cannot wait for care, ought to be given priority
over patient B, who is known to be at fault for the injury and who also cannot wait,
other things being equal. The rule of innocents first is one reason I think Alice was
justified in treating Lena ahead of Terence in the revised case in which Alice knows
for sure that Terence is at fault.

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Patrick: Well, I accept it in the same spirit that I accept any principle. That is, it may hold
as a general rule of thumb, but like all principles, there are bound to be exceptions.
Doran: What about this sort of case? Suppose a prison vehicle was crushed in an ava-
lanche, and both the driver and a convicted felon, about whose moral fault we have
ample evidence, were seriously injured and in need of emergency medical care. Un-
like the case of Terence and Lena, neither person did anything to bring about the
injury. I don’t think considerations of a person’s guilt or innocence, virtue or vice,
should affect triage decisions. Do you?
Warren: I am not so sure I agree with you, Doran. Suppose, for example, that in
the case you imagined, the prisoner that is injured is an infamous child molester
and murderer, while the other person who is injured is the police officer assigned
to guard him. If both were level 1, would the nurse be required to ignore her
abhorrence for the molester and take him first because he came in just ahead
of the police officer with whom she strongly sympathizes? I think that’s asking
too much.
Patrick: I agree. As we’ve noted, medi- UP FOR DISCUSSION
cal professionals will often lack the Should the moral responsibility of pa-
information needed to make accurate tients for their own or others’ suffering
judgments about patients and their ever influence a triage nurse’s decision
guilt or innocence, virtue and vice, about whom to treat first when two pa-
and so on. But where they do have tients are at the same level of medical
this information, I think preferential urgency? Does your answer change if
treatment based on these and other the patient is not morally responsible for
non-clinical factors is sometimes his own or others’ injuries but is a felon
morally justified. who was convicted of a crime?
Doran: I don’t know. I understand the
nurse’s temptation to treat the police
officer ahead of the criminal, but I am UP FOR DISCUSSION
not sure that it is justified. As I said Worst first clearly takes priority over first
before, we should be reluctant to give come. What about the principles like
nurses the authority to queue people fair turn or innocents first? Should in-
up for care according to their per- nocents first come into play before fair
ceived moral worth. turn, for example?
Warren: In reality, the practice is “don’t
ask, don’t tell.” Ambulance drivers
would not tell nurses about a patient’s guilt, innocence, or any other non-medical
characteristics. Nurses would not ask. In a case like that of the molester, though, the
sympathy metarule allows the nurse to attend to the police officer first. These are
extreme cases that rarely come up but which demonstrate the limits on our principles.

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Third-Party Interests

Patrick: Thus far we have been focusing on exceptions to worst first and first come that
concern harms and benefits to particular patients. But there seems to be another
category of exceptions to these and perhaps other rules that involve harms and ben-
efits to third parties.
Warren: Yes, I was thinking the same thing. Indeed, there seems to be an incredibly
complex range of cases that may provide exceptions to the combination of the worst
first and first come rules as well as to other principles we have begun to contemplate.
To see what I have in mind, consider the following three cases:

1. Childless person versus parent of young child: Patient A, a childless person, arrives
in the emergency department with chest pain. Patient B, a single parent of a
young child, arrives in emergency shortly thereafter with chest pain, too. Both
are level 1 and are in serious need of immediate medical care, but only one
patient can be treated while the other must wait. (We will call this the depen-
dents case.)
2. Drunk versus doctor: Patient A, the town drunk, arrives in the emergency de-
partment with chest pain. Patient B, the neighbouring town’s only doctor, ar-
rives in emergency shortly thereafter, also with chest pain. Both are level 1
and are in serious need of immediate medical care, but only one patient can
be treated while the other must wait. (We will call this the public good case.)
(Note: This case puts more emphasis on the public good than the case of Lena
and Terence, which is focused on gratitude and perhaps the moral fault of
Terence for Lena’s injuries.)
3. Person with highly infectious disease versus person without infectious disease: Patient
A arrives in the emergency department with symptoms of a highly infectious
disease and needs immediate care. Treatment of this person will put health
care workers at significant risk of contracting the disease. Patient B arrives
in emergency shortly thereafter with chest pain. Both are level 1 and are in
serious need of immediate medi-
cal care, but only one patient can UP FOR DISCUSSION
be treated while the other must Some might say that it would be unfair
wait. Should A be treated first, or to Lena to ignore her exemplary life and
should A be quarantined while B let her die to save a wastrel like Terence.
is treated? (We will call this the Others might say it is unfair to Terence
innocent threat case.) to pass over him to treat Lena, given
that he was at the hospital first and
In each of these cases, the prin- equally in need of care. Which view do
ciples of worst first and first come you agree with more, and why?
support treatment of patient A, but

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common sense suggests that in at least some of these cases it would be permissible
to treat patient B first because of the rights or interests of third parties. If this is
correct, then we would need to identify some principled reason that explains and
organizes our judgments in these third-party cases.
Patrick: These are interesting and tricky cases, Warren. The challenge, of course, is to
explain which third-party interests matter and why.

Public Interest

Warren: I would say that we can account for some of these cases by appealing to a rule
we could call public interest: Where the public interest is great enough, a patient may
be given priority over those who came earlier. This rule leaves open the possibility that
not just prevention of great harm but promotion of enormous public benefit might
also motivate us to treat a patient ahead of others. What counts as a sufficient public
interest depends on balancing the needs of the patient who is passed over against
extreme benefits or harms to the community.
Patrick: Aren’t you flirting dangerously with utilitarianism?
Warren: Not necessarily; the position seems
to be more like extremitarianism. DEFINITION
We are not saying that the great- There is no recognized ethical term ex-
est good needs to be promoted—rath- tremitarianism. This is a word Warren
er, just that when much greater harm made up playing on utilitarianism. For
to others will result if B is not treated the extremitarian, the harms or ben-
ahead of A or much greater benefit efits have to be extreme before they
to others will result, then B may be can justify exceptions to worst first
bumped ahead of A. and first come.
Patrick: Okay, but what about the depen-
dents case, then? I’m torn here. I want
to say that the virtues suggest we should bump B ahead of A and, in general, give
priority to patients with young children. But I’m worried about unfairly discrimi-
nating against patients who can’t have children or simply choose to remain childless.
Doran: I am inclined to say that B should not be put ahead of A in the dependents case,
because it would not respect A as a person, and because no general public good will
be served by doing so. I worry that allowing the patient with young children to go
ahead of those without children would unfairly discriminate against the childless.
Patrick: Right. There’s a tricky balance here. The virtuous person would seek to balance
fairness against compassion for the parent and child. I think we’d need to know
more details to say what considerations are most salient in these cases. There are lots
of difficult issues to sort out here. For instance: How much greater benefit is enough
to count as sufficient to override the principles of worst first and first come? And
does it really make a moral difference that, in the public good and innocent threat

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cases, the interests being protected

UP FOR DISCUSSION
are those of individuals in society at
large, whereas in the dependents case, Should considerations of public inter-
the interests being protected are pri- est, or the fact that one patient has
marily those of the patient’s immedi- dependents and the other hasn’t, ever
ate family? affect triage decisions?
Warren: At least one factor in answering
these questions is the application of
the public interest rule. Is the public interest in protecting the community’s children
great enough to justify a preference for patients with dependents?
Patrick: It seems a bit odd to make pro-
tection of children subject to public UP FOR DISCUSSION
interest. Surely there is more to fa- Consider this rule: Give special protec-
vouring the interests of kids than just tion to the vulnerable. Would such a rule
the wisdom of public policies. I would help justify putting parents ahead of the
think that if a preference for patients childless to help protect children? What
with dependents is justified, it is justi- theoretical considerations would have
fied out of direct concern for the pa- us adopt such a rule? Consider objec-
tient and their dependents. tions and replies.
Warren: I agree. Public interest is only
one factor in the decision to bump the
parent ahead. The other rules we are discussing may also come into play, as well as
rules we have not put out for consideration here.
It is worth reiterating, though, that whether we are speaking of the public good
or just the interest of an individual third party, only in rare, extreme cases should
triage nurses take the public interest into account. Patient B should be bumped
ahead of patient A when there is an extreme and obvious difference in guilt and
innocence or when, to take another instance, it is obvious that treating B over A
would serve a great public good or prevent a great public harm. Extremitarianism
rides again.

Medical Interests

Doran: I am going to part company with you again. In the dependents case, I doubt that
common sense would suggest that it is okay to bump the childless person in favour of
the parent of a young child. It seems to me that triage nurses should not consider things
like whether or not a patient has dependents when deciding whom to treat first. The
nurse should focus on who needs care most, who was waiting for care longest, whether
the patient would substantially benefit from care, and so on. But non-medical consid-
erations, such as whether one person is a parent, or an only child, should not figure into

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 Chapter 9  Microallocation of Scarce Resources  299

treatment decisions. In part, this is because nurses are almost never going to be in a
position to know who has dependents and who hasn’t. But it goes deeper than this, for I
just don’t think that such factors should be relevant to treatment decisions. Parents and
non-parents are equally deserving of care. To pass over a person with no kids to save a
parent seems to discriminate against those who are childless.
Warren: Yes, it is only in rare cases that nurses are in a position to know about the
dependents, but in those rare cases that knowledge could be morally relevant
because of the way the sympathy metarule restricts impartiality and because of
other rules that may come into play. To say it is never relevant is to make too
strong a claim.
Doran: My views on the cases of public good and innocent threat are similar to yours.
I agree that the only doctor in town may be treated ahead of the layperson, and the
person without the highly infectious disease may be treated ahead of the one whose
infectious condition makes him a great threat to the medical staff. But my reasons
are different from yours. It is not quite public benefit that justifies this exception to
ordinary triage considerations, rather it is something like medical benefit that justi-
fies these decisions. This principle can be stated as Where the medical interest is great
enough, a patient may be given priority over those who came earlier. For it seems what
links public good and innocent threat is that if the person second in line is not treated,
a great medical harm will happen. For instance, a great medical harm will befall the
community if the doctor dies, or if the
medical staff is incapacitated by some UP FOR DISCUSSION
new plague. Triage nurses, as medical Can you think of an example of the pub-
professionals, have a legitimate inter- lic interest requiring that patient B go
est in promoting medical well-being, ahead of patient A while medical inter-
and so in these highly unusual cases est does not require bumping A?
they may treat second first so as to pre-
vent medical disaster.
Patrick: Well, I’m not sure that we can justify the preferential treatment in these
cases just by appeal to either the public interest or the medical benefit principle.
Each principle seems to capture part of what justifies special consideration, but
each leaves something out as well. The public interest and the medical benefit
justify putting the doctor ahead of the drunk, for instance, but I believe it’s also
supported by considerations about what kinds of life each is living. The doctor
is apparently leading an admirable and worthwhile life, while the same can’t be
said for the drunk. I know this is a potentially dangerous path to head down,
but in the extreme cases we’re considering, I think these sorts of considerations
are unavoidable.
Doran: As you know, I disagree that nurses should take into consideration the virtue of
their patients when making triage decisions.

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 300   DEBATING HEALTH CARE ETHICS

Warren: In most cases I think that is right, but there are the extreme cases where I would
want to reserve room for exceptions. I also think that the attempt to narrow consid-
eration to medical interests, while a good idea generally, will not work in all cases.

UP FOR DISCUSSION
Although Warren and Patrick argue that triage nurses can be justified in allocating re-
sources in ways that are not impartial in some exceptional cases, the issues of what
triage rules nurses should be taught, or what rules should be codified as part of official
triage guidelines, are separate matters. They are not examined here but rather left for
readers to consider.

COLLECTING OUR THOUGHTS

Patrick: There is so much more to be said UP FOR DISCUSSION

on this and the other complex issues Do we need principles to guide triage
surrounding third parties. We have nurses in cases where the public inter-
hardly broached the subtle distinc- est requires treating B ahead of A, but
tions between the problems presented the fair turn principle requires treating A
by different third-party interests. I ahead of B? Think of a hypothetical case
think that a complete account is be- where these principles could conflict.
yond what we can accomplish now, so How would a utilitarian versus a care
let’s stop and collect our thoughts. ethicist prioritize these principles? What
Doran: Yes, let’s stop here. Although about a Kantian, and a social contracta-
there are disagreements, there is a fair rian? How would you decide which prin-
amount of consensus among us, de- ciple ought to take priority in this case?
spite our coming from different plan-
ets with respect to theory.
Patrick: I suppose that indicates that we are probably onto something useful with War-
ren’s set of principles. Not surprisingly, we are rather tentative about some of our con-
clusions, and there is some disagreement over the extent to which non-clinical factors
should play a role in prioritizing patients.
Warren: True, we are far from confident in the really hard cases, and some disagreements
persist. I am encouraged, however, that our rules manage to address these difficult is-
sues with any success at all. Perhaps we have here the beginnings of a position on mat-
ters that seemed barely accessible to reason.
Doran: At the very least, we have raised some challenging issues for others to think
through and debate.

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 Chapter 9  Microallocation of Scarce Resources  301

UP FOR DISCUSSION
Apply the principles defended by Warren, Doran, and Patrick to Alice’s decision to treat
Lena ahead of Terence. Given these principles, did Alice act permissibly?

SUMMARY

Here is a summary of the main questions, concepts, and arguments covered in this chapter:

• This chapter focuses on questions of microallocation of scarce health care resourc-

es, that is, selecting which individuals are to receive scarce health care resources.
• The main questions explored are the following: Who should be given priority
in the treatment of patients in emergency situations when CTAS (Canadian
Triage and Acuity Scale) guidelines do not settle the issue? Are other factors
besides clinical urgency morally relevant? How are we to make decisions when
cases are equally urgent yet patients cannot all be cared for at once? In particu-
lar, was it right for Alice to treat Lena ahead of Terence in our drama?
• The rules we arrive at should generally be applied impartially, although we
need to recognize that health care workers are only human. Warren employs
the sympathy metarule: that normal sympathies need to be taken into account
when choosing rules in the original position.
• According to Warren, whether sympathies justify, excuse, or merely mitigate
blame will depend on the kind of case. Doran thinks sympathies may mitigate
blame, but that the sympathy metarule won’t justify violating the impartial ap-
plication of fair rules.
• Patrick, Doran, and Warren agree on the rule that the worst-off patient
should be treated first. In cases where several people are similarly badly off,
patients should normally be treated on a first come, first served basis. (These
are the worst first and first come rules.) However, there are some exceptions
to these rules.
• The hopeless second rule was intended to provide one of these exceptions. It
was replaced by a more inclusive rule, substantial benefit: if two patients both
need immediate care but the second patient (B) to arrive in the emergency de-
partment can benefit substantially from care while the first patient (A) cannot
benefit substantially, then B may be treated first.
• Articulating the idea of substantial benefit is very complicated. It involves con-
siderations such as whether A stands to gain only a little in quality of life from
the treatment whereas B stands to gain much more; exceptions will depend
on whether A has had a fair turn at life but B has not. Quality of life and

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 302   DEBATING HEALTH CARE ETHICS

fair turn are key notions, although they are difficult to specify in the abstract.
Sometimes it may be permissible to take a person who has not had a fair turn
at life over someone who has led a full life; the difference in the expected qual-
ity of life of the two patients must be large, however. Further, these judgments
may be very hard to apply in concrete cases, and so the discretion of health care
workers must be relied upon.
• Lastly, we discussed a category of exception to the worst first and first come
principles that is based on non-clinical matters. Here Warren and Patrick ac-
cepted two rules, innocents first and public interest. These rules state that worst
first and first come may be overridden in cases of extreme and obvious moral
responsibility for an injury (like Terence’s case), or extreme moral vice (like the
child molester case), or in cases of great public interest like the public good case
(about the town’s only doctor).
• Doran, on the other hand, argued for fewer exceptions to the rules of worst
first, first come, and substantial benefit. He argued that these principles should
not be overridden in cases of moral fault, vice, or public good, or where one pa-
tient had young children but the other did not; however, he accepted that triage
nurses would be justified in violating these rules in rare cases, where doing so
was necessary to promote great medical interests.

REVIEW QUESTIONS

1. What are the impartiality, worst first, first come, and hopeless second rules?
2. State an objection to each rule. Can the rule be revised to meet the objection?
3. What is the sympathy metarule?
4. Distinguish justifications from excuses and mitigations. How are these distinctions
significant in the application of the sympathy metarule, according to Warren?
5. What are the minimize YPLL, substantial benefits, and fair turn rules?
6. Why do Doran, Patrick, and Warren reject minimize YPLL in favour of substantial benefit?
What problems do they see with the substantial benefit rule?
7. What is the innocents first rule? Why do Warren and Patrick accept this rule, and why
does Doran reject it?
8. What is the public interest rule? With what would Doran replace it and why?
9. Why does support of the public interest not require utilitarian moral theory (accepting
happiness maximization as what is morally required)?
10. Explain the disagreement that remains among Patrick, Doran, and Warren at the end of
the debate.

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 Chapter 9  Microallocation of Scarce Resources  303

NOTES

1. In April 2018, a bus carrying 29 people, including the Humboldt Broncos junior hockey team,
was struck by a tractor-trailer outside of a small Saskatchewan town. Sixteen people on the bus
were killed, including 10 hockey players. Many others on the bus were badly injured. This driver
of the tractor-trailer was charged with dangerous driving causing death. First responders were
overwhelmed. This tragic incident reminds us, sadly, of the importance of sound triage principles.
2. See, for instance, National Advisory Committee on SARS and Public Health, Learning from SARS:
Renewal of Public Health in Canada (Ottawa: Health Canada, 2003), [Link]
[Link]/publicat/sars-sras/naylor/. See also Canadian Institutes of Health Research, Report on the
Pandemic Preparedness Research Initiative: Report on Activities & Outcomes (June 2006–June
2008), [Link]
3. See, for instance, “Senior’s Death Triggers Calls for ER Changes,” CBC News, April 26, 2006,
[Link] See also Thomas A. Mappes and
Jane S. Zembaty, Biomedical Ethics, 6th ed. (New York: McGraw-Hill, 2005), ch. 9, “Social Justice
and Health-Care Policy.”
4. Additional information about CTAS can be found at [Link]
implementation-guidelines/.
5. Statistics Canada, “Life Expectancy,” [Link]
645-x/2010001/[Link].

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 10
ALTERNATIVE MEDICATIONS
AND PROFESSIONAL
RELATIONSHIPS

INTRODUCTION

In recent years, increasing numbers of Canadians have been turning to complemen-

tary and alternative medicine to treat everything from the common cold to cancer. By
complementary and alternative medicine, we mean the kinds of drugs, therapies, practices,
and so on, that are not used in conventional Western medicine. Examples include acu-
puncture, homeopathy, naturopathy, and herbal therapy. When these drugs and thera-
pies are used together with conventional treatments, they are commonly referred to as
complementary or integrative medicine. When used in place of conventional drugs and
practices, they are called alternative medicine.1
Our drama begins with Mr. Nolle learning that he has a cancerous tumour.
Although there is no cure, the standard treatment, which involves chemotherapy and
radiation, is expected to prolong his life. Mr. Nolle, however, adamantly refuses the
standard treatment. As he is leaving the hospital, his nurse mentions to him the ex-
istence of an alternative herbal treatment that appears to have worked for the nurse’s
friend. Mr. Nolle is excited about the prospects of this herbal treatment, and he finds a
physician, Dr. Anderweg, who is willing to administer the herbal injections to him. Dr.
Anderweg does not agree that Mr. Nolle’s choice is the best for this kind of tumour;
however, she respects his decision.
Although this drama raises many interesting ethical issues, our focus is on whether
Dr. Anderweg behaves permissibly in administering the herbal injections to Mr. Nolle.
The more general question that we explore is whether physicians, in general, are morally
permitted to administer scientifically unproven alternative or complementary treatments
at their patients’ request. At first glance, there may seem to be nothing morally wrong
with this, since competent patients have a right to request whatever course of treatment
they think is best. But the issue is complicated by the fact that many alternative thera-
pies are scientifically untested and therefore potentially harmful. Moreover, patients
who opt for alternative medicine may be forgoing conventional forms of therapy that
have been proven to be life-saving or at least life-extending. These considerations (and

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 Chapter 10  Alternative Medications and Professional Relationships  305

others) make the provision of alternative medicine by physicians a morally complicated

matter. Warren uses social contract theory to argue that Dr. Anderweg acts permissibly
in Mr. Nolle’s case, and that physicians, in general, should be given ample discretion
to administer alternative therapies to their patients. Doran and Patrick take issue with
many of Warren’s claims.

BACKGROUND
Scientific varies its meaning considerably from one context to another. Here we are
concerned to use it in a sense that allows us to distinguish science from mere guesses
or speculation or even pseudo-science (fake science). Science makes use of rigorous
methods of observation, testing, and logic.
It may be counterintuitive that pseudo-scientists try to prove themselves right while
scientists try to prove themselves wrong. Scientists test precise ideas by experiments
that will show up any fault in those ideas. That is rigorous testing. Pseudo-scientists may
hide flaws in their ideas by using vague language.
For example, suppose a doctor experiments with an herbal remedy H on 10 people
with cancer, all of whom go into remission. For pseudo-science, this study might be
considered a proof positive of the vague idea that H cures cancer. For a real scientist
this rough guess needs to be made into a more precise idea, like this: H inhibits the
growth of cancerous tumours fitting the description serous papillary carcinoma of the
endometrium, stage 3. Now we have an idea that can be shown wrong by experiments
designed to test it. If this more precise idea is not shown wrong, then science keeps it
as possibly true. If an idea fails a good test, science discards it. Only pseudo-scientists
claim nothing could disprove their ideas.
For more on the scientific method, see Hanne Andersen and Brian Hepburn, “Scientific
Method,” Stanford Encyclopedia of Philosophy (Summer 2016 Edition), ed. Edward N.
Zalta, [Link]

In addition to exploring an important ethical issue, one of the primary purposes

of this debate is to illustrate how a philosophical position can evolve and improve by
responding to criticism. While reading this chapter, you should therefore pay particular
attention to Warren’s ample discretion principle, which specifies what Warren regards as
acceptable limits on the kinds of treatments physicians can provide to their patients. You
should also note Patrick’s and Doran’s use of counterexamples in an effort to reveal flaws
in Warren’s principle. These examples force Warren to revise the ample discretion prin-
ciple several times over the course of the debate. In the end, Warren arrives at a principle
that he thinks is justified and that demonstrates that Dr. Anderweg acts permissibly in
Mr. Nolle’s case. Doran accepts the final statement of the principle but doubts that it

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 306   DEBATING HEALTH CARE ETHICS

applies to Mr. Nolle’s case. Patrick goes further and argues that Warren’s principle, even
when fully revised, is false.

LEARNING OBJECTIVES
After completing this chapter, you should be able to:

• Explain Warren’s, Doran’s, and Patrick’s views on whether it was permis-

sible for Dr. Anderweg to administer the herbal remedy H to Mr. Nolle,
and whether it is permissible, in general, for physicians to administer
alternative treatments to their patients who request them
• Define Warren’s best interest principle
• Describe Warren’s final statement of the ample discretion principle
• Understand why Warren thinks the ample discretion principle would be
chosen in the original position
• Distinguish the various versions of the ample discretion principle, and ex-
plain how it evolves under pressure from the frog toxin, psychic surgery,
and prayer counterexamples
• Describe Doran’s view on why it was not permissible for Dr. Anderweg to
administer H to Mr. Nolle
• Explain Patrick’s reasons for thinking that it was not permissible for Dr.
Anderweg to administer H to Mr. Nolle, and why he thinks, in general, that
it is not permissible for physicians to administer alternative treatments to
their patients

DRAMA
Please note: This case is based on various true stories, although names, places, and some
uncontroversial elements of the case have been changed to preserve anonymity and con-
fidentiality. Discussions of this and similar cases with health care professionals have
also informed this fictional case. Mr. Nolle is presented as a rough-spoken person. This
is deliberate: we want to emphasize the distinction between being competent and being
educated or cultured. Patients should not be thought to be incompetent merely because
of the way they present themselves. The drama merely raises issues. The philosophical
arguments are to be found in the debate following the drama.

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 Chapter 10  Alternative Medications and Professional Relationships  307

CHARACTERS

Mr. Nolle: a patient with a cancerous Dr. Anderweg: a physician who

tumour, serous papillary carcinoma treats Mr. Nolle at home
of the endometrium, stage 3 Mr. Swan: a quality control admin-
Dr. Trad: Mr. Nolle’s attending istrator at the hospital where
physician Dr. Trad and Dr. Anderweg see
Nurse Einverstand: a nurse caring for patients
Mr. Nolle

Scene 1

The scene is a hospital ward. Dr. Trad briskly approaches the bed where Mr. Nolle is recovering
from having a tumour removed.

Nolle: You look like grim death, Doctor. What’s the bad news?
Trad: (Taken aback) Well, in fact, the news is not all that good. I’m afraid you have a
serous papillary carcinoma of the endometrium, stage 3, which is…
Nolle: (Interrupting) Tell me what I’ve got—in words I’ll understand.
Trad: (Continuing coolly) …which is a rather rare cancerous tumour. (Trad softens his
voice) The prognosis, that is, your outlook is for up to 24 months of life if you accept
chemotherapy and radiotherapy but only about 6 months if you don’t take treat-
ment. (Nolle holds up his hand) Let me explain these treatments.
Nolle: Nope. Those are two treatments I know all too well. Heather had that stuff done
to her before she died. I swore to God they’d never do that to me.
Trad: I am familiar with your wife’s case. Yours is different, believe me. If I were in your
shoes, knowing what I know, there is no question in my mind that I would take
these treatments. Nothing else works.
Nolle: You’re not saying it’ll cure me.
Trad: No, no, but it will give you some relatively healthy time. Every bit of time is precious.
Nolle: You’ve got that right. That’s why I sure won’t spend the last of my time like
Heather did. If you haven’t got a cure for me, I’m just not interested.
Trad: Don’t be hasty. This is an enormously important decision.
Nolle: And I’m the one making it. There’s no way I’m getting chemo, not over my dead
body. (Laughing heartily at Trad’s uncomfortable expression) I know you don’t think
I’m taking death serious, but laughter is still the best medicine.
Trad: You don’t have to decide right this minute. Please think carefully about this. I’d
like you to talk to…

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Nolle: Getting resigned to dying would kill me. Ha! You should have seen your face
when I said that, Doc.
Trad: Very well. We’ll talk again when you’re more accustomed to your diagnosis.
Nolle: When hell freezes we will. Look, if you got no cure, forget it. I’ve made my own
decisions all my life. I know enough to know chemo is no good for me. I’m not
about to give up and just try to die slowly. Don’t waste your time.

Scene 2

In the same ward, Nurse Einverstand is helping Mr. Nolle get ready to leave the hospital after
Mr. Nolle’s refusal of radiotherapy and chemotherapy for his tumour.

Nolle: Thank you. I don’t have much stuff to take home, ’cause I never did intend to stay
here long.
Einverstand: Well, I’m so glad you’re well enough to go home.
Nolle: Hell, I’m not well at all. Not one bit. I’m just not going to sit around here getting
chemo and radio till I drop. There’s other stuff to try. I don’t know where to find
it, but I’ll sure as hell look. I’m going to find a cure or die trying. (Laughs heartily)
Einverstand: Oh yeah, there are alternative therapies. My friend used one and is doing
great two years beyond her expected time.
Nolle: No kidding! What’s she taking?
Einverstand: Oh, it’s this new herbal thing that she gets injected. I don’t know much
about it except that it’s not a medically accepted treatment.
Nolle: I knew it. Natural cures, that’s the stuff.
Einverstand: Oh—well, I shouldn’t get your hopes up…
Nolle: Why the hell not? Hope is all I’ve got. Now you tell me where I can find out
about getting some of this herbal stuff.
Einverstand: I’ll call my friend and call you with the information.
Nolle: Cross your heart and swear to God?
Einverstand: (Laughing) Yes, of course.

Scene 3

Six months have passed. Nurse Einverstand waits in a meeting room. Dr. Anderweg enters.
Dr. Anderweg has been administering injections of an herbal remedy to Mr. Nolle at home. His
condition has worsened, there has been much growth in the tumour, and he has been readmitted
to hospital. He wishes to continue the herbal treatment in the hospital.

Einverstand: Dr. Anderweg?

Anderweg: Call me Kendra. Nice to meet you.
Einverstand: He’s such a neat old man. What a shame it didn’t work for him.

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 Chapter 10  Alternative Medications and Professional Relationships  309

Anderweg: Well, there was only a snowball’s chance.

Einverstand: What? You’ve been giving Mr. Nolle the injections. Don’t you believe in
this therapy?
Anderweg: I believe a patient has a right to choose, but I told him that if I had a ra-
diosensitive tumour, I would not be trying something untested on it instead of
radiotherapy. But you know Mr. Nolle. It was alternative therapy or nothing.
Einverstand: It seemed to work on Marjorie.
Anderweg: “Seemed” is the operative word here. Maybe your friend just got lucky and
had a remission. Maybe the herb only works for certain cancers. It was worth a try.
When medicine has no cure, I don’t mind patients trying anything if they’ve got
little or nothing to lose. Mr. Nolle joked with me that his cure might not be 100
percent effective, but resignation is 100 percent fatal.
Einverstand: Actually, the treatment gave him something and still does. He told me
when he came in that he probably would have died months ago without your treat-
ment. He wants you to keep injecting him. He says it’s his only hope.
Anderweg: Hope is a gift. He got six good months at home, too. He might have done
no better with chemo and radiotherapy.
Trad: (Entering the room, grim-faced) He might have had that with nothing. He might
have had two years with proper treatment. I’m surprised you aren’t dancing around
his bed with a rattle and feathers.
Einverstand: Dr. Trad!
Trad: (Turning to Einverstand) Nurse, if you ever again persuade one of my patients to
give up medically approved treatment for…
Einverstand: (Interrupting) Don’t take that tone with me. I didn’t persuade Mr. Nolle
of anything. I doubt anyone ever has. He is very strong willed. He asked me for
information and I gave it to him.
Trad: Sure. Information!
Anderweg: This won’t get us anywhere. Don’t you believe in honouring patient autono-
my and a patient’s right to choose his own therapy, when we have no cure?
Trad: Therapy! Since when have double-blind controlled studies been done on this stuff?
Einverstand: The patient thinks it’s working and he wants to continue treatment.
Trad: If you two get up to your quackery in here, I’ll have you up before the appropriate
disciplinary bodies so fast your heads will spin. (Trad storms out)

Scene 4

In an administrator’s office. Einverstand and Anderweg sit across from Mr. Swan, a hospital
administrator dealing with quality control.

Swan: I have taken your request and the patient’s request to our legal counsellors and I
have spoken with Dr. Trad.

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 310   DEBATING HEALTH CARE ETHICS

Anderweg: Did you get the recommendation of the Ethics Committee?

Swan: Oh yes, and I have given it careful consideration, as have our legal counsellors,
but we cannot agree with it.
Einverstand: So it’s a no?
Swan: To allow this treatment would make the hospital particularly vulnerable. Dr.
Trad has warned us that the injections could perhaps worsen the patient’s condition
by spreading the cancer.
Anderweg: Given that he will never take chemo or radiotherapy, he has nothing to lose
with this alternative.
Swan: I’ll let you and Dr. Trad argue the merits of that, but I can tell you that this hos-
pital has a great deal to lose.
Einverstand: Surely you are being overcautious. If all we can give him is palliation…
(The phone rings)
Swan: (Picking up the phone) Excuse me. Hello. I can’t talk now … ah. I see. (Putting
down the phone with exaggerated care) Mr. Nolle is dead.
Einverstand: Oh, that’s awful news. It’s too bad the herbal therapy didn’t work for
him… Well, we did try to respect his wishes.
Swan: This hospital takes patient autonomy seriously. Still, I will be guided by legal
advice.
Anderweg: Tell me, what is the Ethics Committee for?
Swan: Now, Dr. Anderweg, you know as well as I do that it is a subcommittee of the
Quality Committee, which is a subcommittee of the Board and, as such, has a
purely advisory function. We accept most of the advice of the Ethics Committee,
but in this case it took patient autonomy a little too far.
Einverstand: You’ll be hearing from my association. We nurses have a very different
view of the matter.
Anderweg: So, I hope, does the College of Physicians and Surgeons. We’ll do what we
can to bring this institution into this century.

DEBATE

Clarifying the Case and Identifying Relevant Facts

Patrick: Let’s begin by making sure that we’re clear on the relevant facts of the case.
Many are spelled out, but key pieces of information are missing.
Warren: Well, just to summarize, Mr. Nolle was a strong-willed elderly man whose
wife had died an unpleasant and lingering death while getting the standard treat-
ment. He refused to even consider that treatment for his cancerous tumour. Nurse
Einverstand mentioned to him an alternative therapy, H—herbal injections that a
friend of Einverstand had used with apparent success. Nolle chose H over standard

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 Chapter 10  Alternative Medications and Professional Relationships  311

therapy, even though he was told that

TECHNIQUE
his case was different from his wife’s.
Mr. Nolle wanted to try treatments It is always important to try to estab-
that were intended to be cures, not lish the relevant facts before beginning
merely ways of delaying death. Dr. the debate. Factors such as whether
Anderweg agreed to give him these Mr. Nolle was informed; whether the
injections, although she said that she alternative medication, H, had been
herself would have taken the standard scientifically tested; the likely effects
treatment. Mr. Nolle died after six of conventional treatments; and oth-
months of treatment. ers, all make a difference to the moral
Doran: Dr. Trad mentioned that there evaluation of Dr. Anderweg’s, and oth-
was a risk that the injections of H ers’, behaviour.
could cause the cancer to spread. Did
Dr. Anderweg advise Mr. Nolle of this risk, and any others?
Warren: There was a small chance that injections could dislodge cells from the tu-
mour that would spread the cancer to
other sites. Since Mr. Nolle’s chances BACKGROUND
were slim in any case, this was not a
“Practitioners other than physicians
significant risk, in Dr. Anderweg’s
and dentists who may enroll and pro-
opinion. There was also a danger of
vide benefits under MSP [Medical
bleeding or infection from the injec-
Services Plan] include midwives, nurse
tions. These were more serious risks,
practitioners, optometrists and other
but Dr. Anderweg was confident that
supplementary benefit practitioners.
she could control them or deal with
The Supplementary Benefits Program
them if they arose. She did not dis-
assists premium assistance benefi-
cuss these risks with Mr. Nolle.
ciaries … and others, to access the fol-
Doran: So Dr. Anderweg didn’t discuss
lowing services: acupuncture, massage
these risks with Mr. Nolle. Hmmm.
therapy, physiotherapy, chiropractic,
Patrick: Warren, I was wondering about
naturopathy, and podiatry (non-surgical
the following. Given Dr. Anderweg’s
services). The program contributes
skepticism about H, why didn’t she
$23.00 towards the cost of each patient
just refer Mr. Nolle to a naturopath—
visit to a maximum of ten visits per pa-
someone who specialized in the sort of
tient per annum summed across the six
medicine Mr. Nolle requested?
types of providers.”
Warren: Even if Dr. Anderweg could
have found a naturopath, I suspect Source: Health Canada, Canada Health Act
that she was worried about having Annual Report 2016–2017 (Ottawa: Health
someone without her training giving Canada, 2018), [Link]
en/health-canada/services/publications/
the injections because of the chance health-system-services/canada-health-act-
of bleeding and infection. Still, there [Link].
might well be some very skilled

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 312   DEBATING HEALTH CARE ETHICS

naturopaths in the area. Dr. Ander-

UP FOR DISCUSSION
weg was also concerned about the cost
to Mr. Nolle, thousands of dollars, if Should our public health insurance
a naturopath took the case. The prov- cover unconventional and alternative
ince would cover the treatment if Dr. health care services?
Anderweg gave it, but would at best
cover a small fraction of the costs if
given by a naturopath. THEORY
Doran: Was Mr. Nolle offered any coun- Kantian respect for persons is typically
selling to help him think through his taken to require informed consent in or-
decisions about treatment? It seems der to treat a person always as an end,
that this would have been a good idea. and never merely as a means.
Warren: I don’t think anyone considered Defenders of an ethic of care would
counselling. The tumour was progress- also encourage extensive counselling
ing rapidly. Mr. Nolle was anxious to and open discussion by the entire medi-
get started. Also, he was the type cal team with a patient, so as to reach
to dismiss counselling. He wasn’t the solution that best responds to the
likely to listen to anybody’s advice but patient’s needs.
his own.
Doran: What was Dr. Anderweg’s opinion
about the likely effect of traditional BACKGROUND
therapy if Mr. Nolle received it? “The prevalence of complementary and
Warren: Dr. Anderweg thought Mr. alternative medicine (CAM) use has
Nolle had no chance in any case, and been estimated to be as high as 65%
the standard treatment could only in some populations. However, there
delay death. She knew she could not has been little objective research into
guarantee Mr. Nolle that he would the possible risks or benefits of unman-
not have nasty side effects from aged CAM therapies.”
standard treatment. She thought H
would be innocuous as far as side Source: Tyler C. Smith, Besa Smith,
effects were concerned. and Margaret A. K. Ryan, “Prospective
Investigation of Complementary and
Doran: Thanks for providing these de-
Alternative Medicine Use and Subsequent
tails, Warren. I think have a better Hospitalizations,” BMC Complementary
handle now on the relevant back- and Alternative Medicine 8, no. 19
ground facts. Patrick, do you have any (2008), [Link]
com/1472-6882/8/19.
other questions for Warren?
Patrick: Yes. I was wondering whether
there is any research at all on H that suggests that it could actually help Mr.
Nolle’s physical condition, aside from a possible placebo effect. Was H under-
going clinical testing?

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 Chapter 10  Alternative Medications and Professional Relationships  313

Warren: There was some anecdotal evidence suggesting that H may be effective in
treating cancer, but H had not been scientifically tested.
Patrick: Okay. If there are no more questions for now, I think we can move on.

MORAL ISSUES RAISED BY THE CASE

Patrick: One interesting question raised by the drama is whether competent patients have
a right to choose their course of treatment. I suppose most of us would agree that they
do. A related and more difficult question is what it takes for a patient to qualify as
competent. But this is a question we explore in chapter 4, so we can set it aside here.
Doran: We have an MD, in this case, giving unproven herbal medicine, and we have
a nurse recommending an alternative treatment that he knows little about to a pa-
tient that he scarcely knows. There is a gigantic range of alternative medicine being
marketed. Some of it may have merit; much of it is pure charlatanism. Given this,
we could consider debating whether it was reckless for Nurse Einverstand to sug-
gest H to Mr. Nolle and unprofessional for Dr. Anderweg to administer it. This
raises important moral questions about the professional responsibilities of health
care workers.
Warren: The case also raises the more general question of whether it is morally permis-
sible for doctors in general to administer unproven alternative therapies.
Patrick: Yes, that seems to be the main general question raised by the case. And given
the increasing demand for alternative medicine, discussing that issue would be
very timely.
Doran: Right. But let’s begin with the more specific question of whether it was morally
permissible for Dr. Anderweg to administer H, given that Mr. Nolle requested it.

UP FOR DISCUSSION
The Canadian Nurses Association Code of Ethics (2017) contains the following rule:
“Nurses provide education to support the informed decision-making of capable per-
sons. They respect the decisions a person makes, including choice of lifestyles or
treatment that are not conducive to good health, and continue to provide care in a
non-judgmental manner.”
Does this rule determine whether Nurse Einverstand should inform Mr. Nolle about
alternative medications? Do you think Einverstand acted inappropriately when he men-
tioned unproven therapies to Mr. Nolle? What role should nurses play in recommend-
ing therapies?

Source: Canadian Nurses Association, Code of Ethics for Registered Nurses

(Ottawa: CNA, 2017), [Link]
code-of-ethics-2017-edition-secure-interactive.

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 314   DEBATING HEALTH CARE ETHICS

Patrick: Sure. We can use this as a spring-

BACKGROUND
board to the more general question
Warren noted: Is it morally permissible In some jurisdictions, nurse practitio-
for doctors, in general, to administer sci- ners, in addition to doctors, may pre-
entifically unproven alternative thera- scribe and administer therapies. It is
pies if their patients request them? likely that the same ethical issues arise
Warren: Sounds good to me. Let’s get for those practitioners.
going.

Stating Our Positions

Warren: I believe that it was permissible for Dr. Anderweg to administer H. It was in
Mr. Nolle’s best interest.
Doran: I would say Dr. Anderweg’s actions were probably not morally permissible.
Mr. Nolle needed to receive more information about his treatment options, and he
needed to receive counselling to ensure that he was making the best choice for him.
I also think that it may have been better for Dr. Anderweg to refer Mr. Nolle to a
competent naturopath if one was available.
Patrick: As an MD, Dr. Anderweg should, in general, stick to treating patients with
drugs that have undergone, or are currently undergoing, rigorous clinical testing, or
at least have been proven effective over the course of time and have been generally
accepted by medical professionals. Because H does not fall into these categories, I
believe it was irresponsible and reckless of Dr. Anderweg, as an MD, to give it to
Mr. Nolle. If Mr. Nolle really wanted H, Dr. Anderweg should have referred him
to a naturopath or some other specialist in alternative medicine.
Doran: So it looks as if Patrick and I are inclined to think that Dr. Anderweg should
not have given Mr. Nolle the alternative treatment, whereas you see nothing wrong
with her doing this, Warren.
Warren: That’s right. I think Dr. Anderweg could’ve administered almost any therapy
that Mr. Nolle chose.
Patrick: Really? That seems like an excessively permissive position. But I suppose much
depends on what you mean by “almost,” so perhaps you could clarify. Is there any
therapy it would be wrong for Dr. Anderweg to administer to Mr. Nolle, assuming
that he requested it? What if he was ill informed and chose badly?

THE BEST INTEREST PRINCIPLE

Warren: Of course, few of us are as well informed as the experts in health care we con-
sult, so bad choices might happen on a regular basis. Let me propose the following

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 Chapter 10  Alternative Medications and Professional Relationships  315

principle: If a treatment is in a patient’s

TECHNIQUE
best interest, and the patient requests it,
then that treatment is permissible. This Warren is starting with an idea with
principle is too simple, but let’s use it which he is not completely satisfied, but
as our starting point and refine it as by inviting questions and objections he
problems emerge. will be able to test it until he can reject
Patrick: Warren, the notion of a patient’s or strengthen the idea. We can often
best interest is central to your prin- clarify our ideas by putting them under
ciple. Are you thinking of best inter- stress in this way.
est just in terms of a patient’s physical
condition, or do you have something more general in mind, something like the
patient’s overall condition, where this includes mental well-being?
Warren: I mean to take best interest very generally so as to include the use of medically
useless treatments that have a useful placebo effect on the patient; so the patient’s
psychological, physical, and any other kind of well-being can be promoted. The
idea is that a treatment is in a patient’s best interest if the net benefit to the patient,
judged in terms of their overall well-being, is higher than with any other treatment.
Doran: So, since you think it was permissible for Dr. Anderweg to administer H to Mr.
Nolle, I assume that you think H was in Mr. Nolle’s best interest, even though the
standard therapy could offer him up to 24 months of life instead of just 6?
Warren: Yes, he seems to have had 6 months of good life in lieu of 24 months of misery.
Doran: Why do you assume Mr. Nolle would have had 24 months of misery if he re-
ceived the standard care?
Warren: My assumption is based on what he and others said in the case.
Doran: Dr. Trad says that the prognosis is for up to 24 months of life, if Mr. Nolle
accepts the chemotherapy and radiation. Also, he says that Mr. Nolle’s case is dif-
ferent from his wife’s case. So I don’t think you can assume that he would have
experienced 24 months of misery if he went with the standard treatment.
Warren: Mr. Nolle would probably have been miserable with a treatment that he viewed
as horrifying, even if his course was different from his wife’s. It is not the physi-
cal effects of chemo and radiotherapy that would necessarily have undermined his
well-being, but his resignation and hopelessness. He clearly preferred a life, even
a short one, with hope, over the longer, less appealing life offered by Dr. Trad. As
Dr. Anderweg said, hope is a gift. She also said that for Mr. Nolle it was alternative
therapy or nothing. So the standard therapy was not a live option for him.
Doran: Well, I can agree with you, Warren, that if Mr. Nolle had six quality months on
the alternative therapy, this could be better than a longer life of poor quality. What
I question, however, is your claim that he would have been miserable if he had taken
the standard treatment. We just don’t know that. Perhaps if Mr. Nolle received
counselling and support, he would have had a longer, better life with the standard

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 316   DEBATING HEALTH CARE ETHICS

care. We just don’t know. So I have doubts about your claim that the alternative
therapy was in his best interest.
Warren: Doran, you are right to raise doubts. It is possible that, over time, he might have
been better off with the standard therapy because he had come to accept it as his best
option, but from what I know about the case that was very unlikely. The evidence sug-
gests that the alternative treatment alone gave him hope during six months of life and
that was better than resignation, which he said was “100 percent fatal.”
Patrick: But what were the various al-
ternatives? We seem to be assuming UP FOR DISCUSSION
that Mr. Nolle had just three options: Do you think that H was in Mr. Nolle’s
the standard treatment consisting of best interest? Suppose you do not. If Mr.
chemotherapy and radiotherapy, the Nolle would not take the conventional
herbal treatment, or nothing. But per- therapies, and given that there were no
haps there were experimental cancer experimental treatments, was H in his
treatments that would offer him more best interest then?
hope, and more months of life, than
H. Warren, do you know whether Dr.
Anderweg looked for any experimental cancer drugs or treatments that she could
have offered to Mr. Nolle?
Warren: She looked for other treatments, but for that particular kind of cancer there
were no experimental drugs that she thought would help.
Patrick: Okay. I acknowledge Mr. Nolle’s right to choose the course of treatment he
thinks is best. So, although I think he acted foolishly, I recognize his right to refuse
the standard course of treatment and seek an alternative therapy. What troubles me
about this case is that a medical doctor provided an untested and unproven alternative
therapy. Even if we grant your claim that H was in Mr. Nolle’s best interest, I’m not
at all convinced that it was permissible for Dr. Anderweg to give it to Mr. Nolle.
Warren: Why?
Patrick: You based your position on the best interest principle: If a treatment is in a
patient’s best interest, and the patient requests it, then that treatment is permissible. But
I believe this principle is false, and I have a counterexample that I believe proves
this.
Doran: What’s the counterexample, Patrick?

TECHNIQUE
Recall that a counterexample is an example that purports to counter a general claim,
principle, analysis, argument, and so on. Patrick’s aim is to show that Warren’s best
interest principle is false. His counterexample is intended to show that some treatments
might be impermissible even when patients request them and they are in those patients’
best interest.

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 Chapter 10  Alternative Medications and Professional Relationships  317

Patrick’s Frog Toxin Counterexample to the Best Interest Principle

Patrick: Suppose that Mr. Nolle had been raised among a group of religious extremists
who believed in the miraculous healing power of minute doses of the toxin secreted
by a particularly rare species of frog. Now, suppose that instead of H, Mr. Nolle
asked Dr. Anderweg to give him injections of the toxin. I’m assuming that the
injections of the toxin would be small enough that they would pose no greater risk
of harm than H. I’m also assuming that the injections of the toxin would give him
hope, just as H did. So, I’m imagining
a case that mirrors the actual case in BACKGROUND
all relevant respects, except that it in-
Many animal toxins appear to have
volves an unproven toxin therapy in-
clinically proven medical applica-
stead of herbal therapy. My intuitions
tions. See, for example, Chan and col-
are that it would be morally wrong for
leagues’ “Snake Venom Toxins: Toxicity
Dr. Anderweg to comply with Mr.
and Medicinal Applications,” Applied
Nolle’s request for the frog toxin. If
Microbiology and Biotechnology 100,
I’m right, then your principle is mis-
no. 14 (2016), [Link]
taken, Warren. Can you provide us
[Link]/pubmed/27245678. Patrick is
with a strong argument in support of
here imagining a toxin that has no clini-
your view—one that would show that
cally proven medical benefits.
my intuitions about the frog toxin
case are incorrect?
Doran: I think this is a convincing counterexample, Patrick. I share your intuition that
it would be wrong for Dr. Anderweg to comply with such a request.
Warren: Interesting example, Patrick; however, I am willing to bite the bullet on this
one. I maintain that Dr. Anderweg’s treatment of Mr. Nolle with herbal injec-
tions, or with any other treatment that is in his best interest and that he requests
(possibly even frog toxin), is morally permissible. I’ll argue for this by way of what
I will call the ample discretion principle—a rule that would be chosen in the
original position.

TECHNIQUE
When confronted with a counterexample, one can attempt to show that the example
does not in fact counter the claim, principle, etc., in question. That is what Warren tries
to do. Warren will accept the strange view that even frog toxin injections, under extreme-
ly restricted circumstances, could be permissible. He will then try to convince Doran and
Patrick that it is strange but true.

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THE AMPLE DISCRETION PRINCIPLE

Warren: It would be in the interest of the
THEORY
rule choosers in the original position
to accept the ample discretion prin- Here is an example of Warren’s use of
ciple: Physicians may exercise ample dis- his social contract ethical theory. To
cretion to decide whether or not to use any understand this, you need to remember
treatment that the patient chooses, pro- what the original position is and how it
vided that it is in the patient’s best inter- is used in contractarian ethics. You can
est. Like computer graphics, medicine see this at length in the statement of
is an art based on sciences. To limit Warren’s theory in chapter 3.
physicians to scientifically proven
treatments would be to rule out pos-
sible help from physicians that might DEFINITION
be critically important to the choos- Warren’s argument for the ample dis-
ers of rules once they are patients in cretion principle employs the concept
the real world. If you don’t know what of autonomy. Autonomy is often under-
shape you might be in, you need the stood as self-determination, making
right to autonomy to protect your in- one’s own uncoerced choices.
terest if you get into a tough situation,
for example, a situation where normal
medicine cannot help you.
Autonomy in the medical context, however, is a poor thing if some of the very
people who are best equipped to help you exercise autonomy, namely physicians, are
prevented from helping. I think it is clear that, in the original position, we would
reject any rule that forces us and forces our doctors in the real world to stick to what
is scientifically confirmed.
Limiting discretion would, moreover, limit medical research and discovery.
That is clearly contrary to the interests of patients who reject or have run out of
standard options. In the original position we would protect our interest by pro-
viding for the ample discretion of physicians. It’s hard to say exactly how much is
ample, but Dr. Anderweg was within reasonable limits.
Doran: So, in short, your argument is that whatever rules parties choose in the original
position are justified, and that they would choose a rule that gave physicians ample
discretion in hopeless cases, provided that the therapy is in the best interest of the
patient. Is that right? Mr. Nolle’s case was hopeless anyway, so anything goes when
Dr. Anderweg prescribes.
Warren: That’s not exactly it. You are right that I treat rules as justified if they would
be accepted in the original position. As to the second point, however, we come to
ample discretion through autonomy. First, we need to establish that a strong right
to autonomy would be chosen in the original position. Ample discretion is then

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 Chapter 10  Alternative Medications and Professional Relationships  319

needed to allow people to exercise au-

UP FOR DISCUSSION
tonomy. The case, moreover, does not
have to be hopeless, although that is What do you think are the appropriate
the clearest kind of case. The choice limits on patient autonomy? Do you
of the rule or principle of ample dis- think that people in Mr. Nolle’s dire
cretion is dependent on the patient’s straits should have the option of re-
strong interest in autonomy when the questing and receiving from physicians
patient is choosing a treatment. It is any treatment, however unconventional,
Mr. Nolle’s strong right to choose that is in their best interest?
that would wither if willing physi-
cians like Dr. Anderweg were pre-
vented from honouring his choice.
Patrick: I agree, Warren, that physicians ought to have the liberty to try out new drugs
and therapies. But this should be done in the right sort of setting. This is what clini-
cal trials are for. If H were part of a clinical trial, and the risks were clearly laid out
for Mr. Nolle, then I would have no objection to Dr. Anderweg complying with
his request for H. But that is not the case in this situation. Your ample discretion
principle gives physicians too much liberty. For that reason, I think the principle
would not be chosen in the original position.

Doran’s Indeterminacy Objection to Warren’s Principle

Doran: I agree. It’s not clear to me why people in the original position would choose
the ample discretion principle rather than some other competing principle. Perhaps
people in the original position will choose a rule that instructs physicians to do
what is in their best interest and protects patients from taking reckless decisions, or
perhaps they will choose a rule that instructs physicians to do whatever the patient
chooses, or a rule that instructs physicians to do whatever the patient chooses pro-
vided it is not too harmful. Your contract argument does not conclusively prove that
a principle of ample discretion is justified.
Warren: Actually, I think that “conclusively prove” is too strong a phrase. One can be
persuasive short of a conclusive proof.
In fact, I don’t think that any ethical THEORY
theory is capable of providing us with
Although Warren’s views have some dis-
moral certainties or absolutes that
tant Kantian heritage, notice how differ-
would come from a conclusive proof. It
ent they are with respect to conclusive
is enough if we can give good reasons
proof. If Kant thought that a principle
for why people in the original position
expressed a categorical imperative, he
would choose more or less discretion
would believe that it tells us our duty
for physicians, without knowing for
with absolute certainty.
sure what they would choose.

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Doran: Fair enough, but my problem remains. I just do not see what reasons people in
the original position would have for selecting your preferred rule, ample discretion,
over some other seemingly plausible rule—for example, Do what is in the patients’ best
interests, while protecting patients from their ill-informed choices. So I am not convinced
that your way of thinking about the case gives us a strong reason to accept the ample
discretion principle and to say that Dr. Anderweg did what was permissible.
Patrick: I’m with Doran on this one, Warren. Can you say more about why you believe
the ample discretion principle would
be chosen over competing principles? DEFINITION
Warren: Okay, let’s see how ample discre- Paternalism is the interference with a
tion can be defended against com- person’s liberty for that person’s own
peting principles. You suggested an good. For an excellent introduction to
alternative principle a moment ago, the concept of paternalism, see the
Doran, namely, Do what is in the pa- Stanford Encyclopedia of Philosophy’s en-
tients’ best interests, while protecting try at [Link]
patients from their ill-informed choices. paternalism/.
This is a highly paternalistic prin- Utilitarians have no objection to pater-
ciple, one that gives too much power nalism when it maximizes happiness. In
to the physician, so I do not think it contrast, Kantians would generally reject
could be considered in their interest paternalism for rational adults, since it
by the choosers of rules. That princi- violates their autonomy. Warren seems
ple would let Dr. Trad tell Mr. Nolle to be siding with Kantians on this point.
what to do. The other principles you
suggest are just not sufficiently re-
stricted to protect patients’ interests. TECHNIQUE
Protection of our interests is what we Doran and Patrick are chipping away
consider in the original position. at the plausibility of the ample discre-
Doran: But using your contract argu- tion principle to undercut one of the
ment, wouldn’t patients want to premises of Warren’s argument that
protect themselves from their poor Dr. Anderweg acts permissibly. If one of
choices? I might request some inef- Warren’s premises is not true, his argu-
ficacious therapy over a proven treat- ment is unsound. His conclusion about
ment because I am desperate for a Dr. Anderweg might follow logically from
miracle cure, or because I am simply the ample discretion principle (and so
afraid of some aspect of the standard the argument would be logically valid),
treatment. Surely, doctors should not but following from a falsehood is no rec-
be given the discretion to act on these ommendation for his conclusion about
choices. In Mr. Nolle’s case, the con- Dr. Anderweg’s action.
cern is that he is motivated by misun-
derstanding and desperation.

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 Chapter 10  Alternative Medications and Professional Relationships  321

Patrick: Right. And parties in the original position may want to protect themselves from
not just their own bad judgment, but also from the poor choices of their doctors.
Warren: I take your points. I agree that par-
ties in the original position will want to UP FOR DISCUSSION
make sure that physicians are not given Do you think that people in the original
the discretion to act on their own or position would accept the principle of
their ill-informed patients’ whims. ample discretion, or would they choose
Doran: But what if the patient is incapable a more paternalistic principle—say, one
of making rational choices, for in- that ensured that doctors gave only the
stance? Can the doctor just go ahead medically recommended treatments?
and do whatever he thinks is in the
patient’s best interest even if it is a very
weird treatment? Suppose Dr. Anderweg thinks Mr. Nolle is incompetent to choose?
Warren: There is an important difference between the rules that would be chosen af-
fecting competent and incompetent
patients. Incompetent patients re- BACKGROUND
quire protection that is much more Competence comes in degrees.
paternalistic, and the discretion of the Someone could be more or less compe-
physician would be much less. Since tent to perform some task. Beyond that,
incompetent patients cannot pro- we may be more willing to deem some-
tect themselves or decide to take big one competent as the risks one runs by
risks that might help them achieve exercising autonomy become smaller.
their goals, very conservative care is
warranted.
Rules set in the original position would honour only adventurous choices made
with the valid consent of competent persons.2 Dr. Anderweg would, of course, still
be required to pursue the best interest of an incompetent Mr. Nolle, but within
stricter limits. She could not do anything experimental or too strange at her own
discretion, like using H. If Mr. Nolle is deemed incompetent, then Dr. Anderweg
should just play it safe. If we are going to support autonomy with ample discretion,
then it must be for competent patients or their surrogate decision-makers to validly
consent to treatment.

THE AMPLE DISCRETION PRINCIPLE REVISED: VALID

CONSENT OF COMPETENT PATIENTS ONLY
Doran: Okay, Warren, so it seems you would like to replace the initial statement of
the ample discretion rule with the following: Physicians may exercise ample discre-
tion to decide whether or not to use any treatment to which a competent patient gives

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valid consent, provided that it is in the

UP FOR DISCUSSION
patient’s best interest.
Warren: Yes, that’s right. Do you think physicians should be free
Patrick: Warren, I have a couple of ques- to give competent patients unconven-
tions about the revised principle. First, tional and scientifically unproven treat-
what exactly do you mean by competent? ments if they are in the patients’ best
My second question is this: Now interests and the patients validly con-
that you have restricted the applica- sent to them?
tion of the ample discretion rule to
competent patients, I’m not sure why
you need the further clause that the chosen treatment is in the patient’s best inter-
est. Why not just say this: Physicians may exercise ample discretion to decide whether or
not to use any treatment to which a competent patient gives valid consent. This principle
would seem to be more consistent with the goal of protecting autonomy.

Ample Discretion, Patient Competence, and Valid Consent

Warren: Let me answer your first question. Patient competence is an exceedingly com-
plicated issue that we cannot fully address here.3 But perhaps we can agree on the
following: competence involves a capacity to make choices based on comprehension
of relevant information and the consequences of one’s choices. A person can be
competent in one area, but not other areas. For instance, a person can be competent
to make health care decisions, but not competent to make important decisions about
financial matters because of a phobia about money. To be competent to make health
care choices, it seems one must be capable of understanding one’s condition, treat-
ment options, the probable consequences of each treatment, and their respective
risks and benefits. One must then be able to make a decision based on this informa-
tion. When I speak of patients being competent or incompetent, I am speaking of
their having or lacking this ability.4 Before she agrees to Mr. Nolle’s request for H,
then, Dr. Anderweg must ensure that Mr. Nolle is competent in this sense.
Patrick: I agree with most of your remarks about competence. But how do we tell
whether Mr. Nolle is competent?
Warren: In legal and medical contexts, persons are generally assumed to be competent
unless there is good reason for doubting this. So the question is whether we have a
good reason for doubting Mr. Nolle’s competence. He is requesting a non-standard
course of treatment over a more conventional treatment that has been clinically
tested. But that, by itself, does not show that he’s incompetent.
Patrick: I agree that the mere fact that he requests an unconventional treatment is not suf-
ficient to show that he’s incompetent. But we have good reason to question Mr. Nolle’s
competence, given his complete refusal to seriously consider the course of treatment that

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 Chapter 10  Alternative Medications and Professional Relationships  323

BACKGROUND
“Legal standards for decision-making capacity for consent to treatment vary somewhat
across jurisdictions, but generally they embody the abilities to communicate a choice,
to understand the relevant information, to appreciate the medical consequences of the
situation, and to reason about treatment choices.”

Source: Paul S. Appelbaum, “Assessment of Patients’ Competence to Consent to Treatment,”

New England Journal of Medicine 357 (2007): 1834–40, doi:10.1056/NEJMcp074045.

the medical community in general thinks is best. His experience with his wife, who did
not do well with the standard course of treatment, prevented him from being able to
think rationally about his own situation. He wouldn’t even allow Dr. Trad to explain the
relevant differences between his own condition and his wife’s. This leads me to question
whether he is competent to make decisions about his course of treatment.
Doran: I am not sure that the problem is that Mr. Nolle is incompetent. I don’t think
he lacks the capacity to make his health care decisions; my concern is that he does
not give valid consent.5 In this case, in order to give valid consent, Mr. Nolle needs
a better understanding of his treatment options and the likely effects of his choices.
He then needs to deliberate about them in a way that is consistent with both his
goals and the facts at hand. My con-
cern is that because Mr. Nolle will TECHNIQUE
not even consider all of his treatment
Here, Patrick and Doran are not dis-
options, he does not really understand
agreeing with the revised ample dis-
the likely effects of the conventional
cretion principle; instead, they are
therapies and alternative therapies as
questioning whether this principle ap-
they relate to his circumstances. Be-
plies to Mr. Nolle’s situation.
cause he lacks the relevant informa-
tion, his consent to H is not valid.
Warren: He knows enough about the risks to know how to pursue his goal of living in
hope of a cure. Mr. Nolle prefers a short life of hope to a longer life of resignation.
He knowingly chooses to take a chance on non-standard treatment that gives him
hope instead of resignation. So his consent to be treated with H is valid. He is not
ignoring evidence relevant to his goal of maximizing hope. He is ignoring evidence
relevant to the medical view about his chances, but he does not want the evidence
for the medical view in case it undermines hope. “Where ignorance is bliss, ’tis folly
to be wise.” It would be different if Dr. Trad had offered him a cure or a means that
supported hope. Since hope makes his life worthwhile to him, Mr. Nolle would
be a fool to abandon hope and accept resignation by becoming informed about the
improbability of his long-term survival.

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Doran: It is not that I necessarily disagree with his final decision, Warren, but he should
have seriously considered his options. Dr. Anderweg should have made sure he was
properly informed. Perhaps with more discussion with Dr. Anderweg, and perhaps
even with Dr. Trad, Mr. Nolle could have come to see that there were advantages
offered by the standard therapy, or perhaps they could have found a way to encour-
age Mr. Nolle to choose both the standard therapy and H.
Patrick: I wonder whether it is responsible for a physician to encourage hope in compe-
tent patients when the situation is known to be hopeless (or nearly hopeless). If Mr.
Nolle truly was competent, Dr. Anderweg should have been honest with him; she
should have made it clear to Mr. Nolle, while being as sympathetic as possible, of
course, that the odds of survival were heavily stacked against him, and that taking
H would likely do nothing to change that.
In any case, as Doran notes, if Mr. Nolle had seriously considered his options,
he would have seen that it didn’t have to be a choice between H and the standard
therapy, between hope and resignation.
Warren: Mr. Nolle did consider his options seriously and with sufficient information.
His options were to live in resignation or to live in hope. Nothing Dr. Anderweg
could have told him could have made any difference to his goal of living in hope un-
less it was to make it more difficult to achieve that goal. For him, accepting standard
treatment would be an admission of defeat, engaging death with delaying tactics.
One cannot give up and maintain hope at the same time, and the standard treat-
ment, with its likely unpleasant side effects, was, for him, giving up. That is why Dr.
Anderweg withheld the details concerning standard treatment and arguments for
standard treatment that Mr. Nolle did not want or need to hear. She respected his
choice of hope. Physicians often leave out the gory details that we do not need to
hear when knowing them cannot help us.

Ample Discretion and Patient Autonomy

Patrick: What do you have to say in response to my second question, Warren? Now
that you have limited the application of the ample discretion principle to the valid
consent of competent patients, why do you need the best interest clause? Why not
just say this: Physicians may exercise ample discretion to decide whether or not to use any
treatment to which a competent patient gives valid consent.
Doran: Right. Warren, you argued that parties in the original position would choose
the ample discretion principle in order to protect their autonomy. But wouldn’t the
version of the principle Patrick just suggested give patients greater autonomy than
your principle when it comes to health care decisions?
Warren: In the original position we would want to have autonomy with safety precau-
tions built in. Unlimited autonomy is not in our interest, although a very strong
right to autonomy is. Finding the balance is difficult, but we would accept certain

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 Chapter 10  Alternative Medications and Professional Relationships  325

limits on our autonomy, like being required to wear seat belts, for example, that
would prevent us from sacrificing our lives or well-being because of a moment of
temporary carelessness or because we had insufficiently understood the information
about the possible outcomes. Similarly, we want autonomy with some safety precau-
tions in our medical decision-making. We need physicians to be good advisers and
guides to our medical decisions.
The restriction on physicians is a safety precaution to prevent a competent
patient from being granted a request that could be harmful because, for instance,
that patient does not fully understand a complicated set of medical facts the doc-
tor has explained. It allows the patient much choice and the physician a great
deal of latitude in fulfilling patient choices. It would allow all sorts of alternative
medications to be used by physicians. Patients, however, sometimes need physi-
cians to talk them out of bad decisions, not just accept them because they are the
patients’ choice. When the patient has very little to lose by treatment, the treat-
ments may be quite strange, but the physician is still restricted to pursuing the
best interest of the patient.
Patrick: Okay, but now I don’t see autonomy as having any real significance, in your
view. The ample discretion principle says that doctors can provide any treatment
a competent patient validly consents to, provided that the treatment is in the pa-
tient’s best interest. But how is this any different from just saying that MDs can
administer any treatment provided that it is in the patient’s best interest? Adding
the bit about what a competent patient requests doesn’t seem to add anything of
significance to the principle. Ultimately, it is the physician, not the patient, who
determines the course of treatment.
Warren: The piece about the valid consent of competent patients does add much. Pa-
tients can request and get many things that physicians would not think to provide
if physicians were guided only by their own knowledge and their patients’ best in-
terest. A physician might, for example, realize that a traditional cure that a patient
requests, previously unknown to the physician, would be a powerful placebo for that
particular patient. An innumerable variety of treatments is added.
Patrick: I’m not sure, Warren. To illustrate my point, consider the following example.
Suppose that patient A is ill and requests treatment x. Suppose also that A’s doctor
thinks that x would help A, but, all things considered, treatment y is in A’s best
interest. So A wants x, and x is beneficial, but A’s doctor is not permitted to ad-
minister x, according to your principle, because another treatment, y, is in A’s best
interest. It seems, then, that your principle does not give patient autonomy much
teeth, since it doesn’t allow competent patients to determine their course of treat-
ment, unless what they want is also what their doctor thinks is in their best interest.
Warren: Treatments are rarely so well evidenced that all physicians agree on what is
best. The patient can get a second opinion. The patient can, furthermore, refuse
treatment. The physician may, in such a situation, offer a second-best treatment that

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has now become the one in the patient’s best interest because the patient adamantly
refuses what would have been best. In that way, the patient may get x rather than y.
I say may, rather than will. The physician may refuse to offer certain treatments
if they pose enough risk of harm or the physician thinks the patient does not really
understand the choice, for instance. There may be allocation issues as well. Suppose
an 80-year-old demands a triple bypass which would be indicated if the patient
were younger. The physician may think it is too likely to kill the 80-year-old and
should be given instead to a 40-year-old. Autonomy gives us the right to refuse,
and the right to choose, some treatments without the interference of narrow ideas
about physicians’ roles. It does not let us have anything on the shelf to which we
take a fancy.6
Patrick: Okay, I think I now have a better handle on your principle and how it preserves
patient autonomy. Patient A can in fact get x, which is the treatment she wants, by
refusing to take y, which is the treatment her doctor thinks is genuinely best. But
then I don’t see how the best interest clause helps to protect patients from their bad
choices. When a patient refuses to take the three best treatments, for instance, the
fourth then becomes the treatment that is in the patient’s best interest. That is a very
unusual way of thinking about which therapy is in a patient’s best interest.
Warren: It is not unusual in practice. In a rare case in which a patient will accept only
a really poor treatment, the physician should refuse to give it; patients will usually
come to a reasonable decision with education. In some cases, like Mr. Nolle’s, the
treatment serves other interests of the patient than medical ones, and the physician
should be allowed to help the patient to pursue such powerful interests as hope. But
let’s move on—I can see that Doran is eager to ask a question.

THE AMPLE DISCRETION PRINCIPLE REVISED (AGAIN):

HARM AVOIDANCE
Doran: Let’s return to the proposed principle: Physicians may exercise ample discretion to
decide whether or not to use any treatment to which a competent patient gives valid consent,
provided that it is in the patient’s best interest. We disagree about whether Mr. Nolle
was sufficiently informed to give valid consent, and so we disagree about whether this
principle would justify Dr. Anderweg’s behaviour. But beyond this disagreement, I
think the principle itself is flawed. Even if a competent patient validly consents to
a certain treatment that is in their best interest, it may be wrong for the doctor to
administer the therapy. One reason it might be wrong is that the chosen treatment
would harm third parties. For instance, the principle, as it now stands, seems to allow
patients to receive, and MDs to provide, unfair distributions of medical resources.

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 Chapter 10  Alternative Medications and Professional Relationships  327

Warren: If you call Mr. Nolle’s consent invalid, you will have few valid consents. I have
more sympathy with your second point about third parties, though. Can you give
an example to illustrate your point, Doran?
Doran: Sure. If I need a kidney, it might be rational for me to request that my doctor
provide me with the next matching kidney that becomes available. But there might
be someone else who is entitled to the kidney, perhaps because he has been waiting
longer, and his condition is worse. I don’t see anything in your principle that would
prohibit my doctor from allowing me to receive the kidney. To avoid such counter-
examples, we can revise the principle as follows: Physicians may exercise ample discre-
tion to decide whether or not to use any treatment to which a competent patient validly
consents, provided that it is in the patient’s best interest, and that it is consistent with the
equal opportunity of all who are seeking medical resources.
Warren: I was assuming physicians would not exercise discretion in ways that would
harm people other than the patient, but you are right that we need to make some
explicit condition in the ample discretion principle.
Patrick: That principle may not go far enough, since we want to ensure against other
harms besides violations of equal opportunity. We want to guard against certain
harms to third parties in general. Part of my concern about Dr. Anderweg ad-
ministering H to Mr. Nolle is that this could harm the reputation of doctors in
general, and undermine public confidence in the medical profession, if it became
public knowledge. That may also be part of Dr. Trad’s worry about Dr. Anderweg
prescribing H.
Warren: Yes, but the danger of damage to the reputation of the profession in Mr. Nolle’s
case would come mainly through public misunderstanding of the discretion that
must be allowed physicians in such cases. Dr. Anderweg took a calculated risk,
exercised discretion, and did what turned out to be best for Mr. Nolle. It was not
publicized. It was not harmful.
Doran: When these remarks are applied to the specific case of Patrick’s frog toxin ex-
ample, Warren, your view implies that it is permissible for doctors to administer the
toxin only if they could keep this course of treatment secret, or take other steps that
would prevent harm to the medical profession and to third parties more generally.
Is that right?
Warren: Yes, that’s my view. Dr. Anderweg might say that she gave the injection of H
because it served Mr. Nolle’s goal of hope and because hope might have a strong
placebo effect. It would be much harder to justify frog toxin, however. Frog toxin
may be a reasonable choice in some extreme circumstances, but it may only be ad-
ministered when, on balance, no harm to others results. In any case, we need to
take into account, as your examples show, more harms than just the harm of unfair
access to resources.

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Here, then, is my revised rule:

TECHNIQUE
Physicians may exercise ample discre-
tion to decide whether or not to use any It is typical for principles to become
treatment to which a competent patient more complex as qualifications are
gives valid consent, provided that it is in added to reply to objections. If too many
the patient’s best interest and harmless to qualifications are added, philosophers
others on balance. This broader restric- start to speak of death by a thousand
tion against harm works against unfair qualifications.
practices like lack of equal opportunity
and disrepute, as well as other harms.
Yet these restrictions still allow the UP FOR DISCUSSION
principle to protect our interests. The What kinds of harms are serious enough
principle prevents excessive conser- to serve as harms that we must avoid
vatism in medicine, thereby allowing when applying the ample discretion
progress to be made. principle?
Patrick: There are many perfectly accept-
able treatments that harm others, in
some sense, that this principle would seem to rule out. For instance, if there’s one
kidney available, and two people need it, then there’s a clear sense in which the person
who doesn’t get it is harmed by the first person’s getting the kidney. But this kind of
harm is allowed, because it’s not unfair. So, I think you need to add something to the
effect that the harms to others that your principle doesn’t allow are unfair harms.
Warren: I intended to capture that by “harmless to others on balance,” which would rule
out a patient’s being given a treatment in a way that denied equal opportunity to
other patients. There may be a sense in which another patient who is second in line
for it is harmed, if someone gets the only kidney, but this is not unwarranted harm
or unfair harm of the sort the principle is intended to oppose.
Patrick: Well, I have another concern. You speak of excess conservatism in medicine
that this principle will avoid. Yet a medical establishment that is conservative with
regard to the adoption of strange and unproven treatments can still make significant
progress. What medical advances are promoted by ample discretion?
Warren: What if H had cured Mr. Nolle? Physicians need some leeway to practice ex-
perimental medicine, like the neurosurgeon who recently went against most of his
colleagues to induce hypothermia in a comatose patient, for example. The neuro-
surgeon saved a life and revealed a hypothesis worth researching by using a totally
non-standard treatment. The treatment was untested, but the patient had nothing
left to lose. Cutting-edge medicine is, necessarily, not yet accepted by most physi-
cians nor scientifically confirmed.7
Patrick: I don’t know, Warren. As I mentioned earlier, I’m not at all against the use of
unproven experimental drugs when they are part of legitimate trials and tests, and
when the patient has been fully informed of the risks. But this case is different.
H is not part of any clinical studies, and Mr. Nolle was not informed of the risks

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 Chapter 10  Alternative Medications and Professional Relationships  329

involved in taking it. So it seems it was irresponsible for Dr. Anderweg, as an MD,
to administer H, even if it would not harm Mr. Nolle or anyone else.
Doran: I might be persuaded to agree with you, Patrick, if there was a medically acceptable
treatment that could offer meaningful benefit. This may have been the case for Mr.
Nolle, given what Dr. Trad says. But
in cases where patients have no good UP FOR DISCUSSION
options, and where the unconventional If patients who have nothing left to lose
therapy is in the patients’ best interest are willing to try a new potential cure,
and harmless on balance to others, I what are the limits on administering ex-
think there may be nothing wrong perimental medications? Would you say
with physicians honouring their pa- that Mr. Nolle’s situation was one where
tients’ mental well-being—provided, he had nothing left to lose?
of course, that patients are informed
and counselled about their options.

AGAINST THE REVISED AMPLE DISCRETION PRINCIPLE: THE

DIVISION OF LABOUR OBJECTION
Patrick: Well, I suppose that at least part of what’s bothering me about H, frog toxin,
and other untested and unconventional therapies is the following. There seems to
be a kind of division of labour in the health services industry. The boundaries aren’t
sharp, but we have different kinds of
health care professionals responsible BACKGROUND
for different kinds of services.
The Canadian Medical Association’s
Medical doctors in our part of
(CMA) policy statement on the use of
the world are trained in conven-
complementary and alternative medi-
tional Western medicine. The rel-
cine notes that “the CMA’s position is
evant governing bodies, such as the
based on the fundamental premise that
various provinces’ Colleges of Phy-
decisions about health care interven-
sicians and Surgeons, require the
tions used in Canada should be based
practice of medicine to be informed
on sound scientific evidence as to their
by scientific evidence. 8 Thus, when
safety, efficacy and effectiveness—the
I go to see a medical doctor, I ex-
same standard by which physicians and
pect to be treated with medicine
all other elements of the health care
that has undergone clinical testing,
system should be assessed.”
or is currently in an experimental
phase (as is the case with many of Source: Canadian Medical Association,
the drugs used to treat HIV/AIDS, CMA Policy: Complementary and Alternative
for example), or is in some other Medicine (Ottawa: CMA, 2015), http://
[Link]/dbtw-wpd/Policypdf/
way supported by scientifically valid [Link].
testing and evidence.

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 330   DEBATING HEALTH CARE ETHICS

Other health professionals are trained in other, less conventional, forms of

health care where the standards of practice are not so strictly based on scientific
evidence. Consider, for instance, homeopaths and naturopaths. Many of the treat-
ments that homeopaths and naturopaths administer have undergone little, if any,
formal clinical testing. When we go to see health care professionals in these fields,
the expectation is that we will be treated with non-conventional medicine that may
not be scientifically proven.
Given these considerations, I think it is generally morally irresponsible and reck-
less, and therefore wrong, for medical doctors to administer untested and scientifically
unproven alternative therapies such as H or frog toxin, even if a competent patient
requests this.
In saying this, I’m not, of course, claiming that it would be wrong for all health
care professionals to administer strange and unusual therapies. I might not have any
objection, for instance, if a shaman administers frog toxin therapies. That’s the kind
of therapy I would expect a practitioner of that sort to administer. Even some natu-
ropaths might do that. So, if Mr. Nolle wanted H, Dr. Anderweg probably should
have referred him to a naturopath or someone who practiced alternative medicine.
Doran: Warren, do you think the fact that the Canadian Medical Association and the
College of Physicians and Surgeons forbid doctors from using scientifically untested
treatments is enough to conclude that Dr. Anderweg acted unethically in giving H
to Mr. Nolle?
Warren: No. We cannot determine ethi-
cal permissibility merely by consulting UP FOR DISCUSSION
current professional guidelines. For Do you accept the view that there
these guidelines are themselves fal- should be a division of labour among
lible. In the past, doctors have been health care professionals? If so, under
forbidden by their profession’s ethical what conditions are there allowable
codes from performing abortions and exceptions?
euthanasia, and they were instructed
to do whatever they thought was in the
best interest of their patients even if this involved breaches of confidentiality and lying
to their patients about their health status. So, we cannot determine right and wrong
just by looking at what a professional code permits or forbids.
Patrick: I agree with you about that, Warren, but in this case, I do think the guideline
that doctors stick to tested treatments is ethically correct.
Doran: I also agree with you, Warren, that a profession’s code of conduct is not morally
decisive. I believe it gives a practitioner a prima facie moral obligation to follow it, but
that, like other moral obligations, it can be overridden by other moral considerations.
I share your thoughts about the division of labour, Patrick. And you might be right
that the best thing to do is for Dr. Anderweg to refer Mr. Nolle to a naturopath, if
one is available. But let’s suppose one is not available, or the one who is available is
likely to botch the job, or that access to naturopaths is prohibitively expensive for the

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 Chapter 10  Alternative Medications and Professional Relationships  331

patient. Then, all things considered, it

BACKGROUND
may not have been wrong for Dr. An-
derweg to administer the alternative Here Doran is following a Rossian ap-
therapy if Mr. Nolle was competent proach to Mr. Nolle’s case. This is similar
and informed of his options. to the approach known as principlism
I think physicians have a variety that was popularized by Beauchamp
of prima facie obligations—obliga- and Childress. The principles include
tions that both of you have already beneficence, non-maleficence, auton-
touched on. They include duties to omy, and justice. See chapter 2 for a
promote their patients’ health and brief discussion of principlism.
well-being (physical and psychologi-
cal), to respect their patients’ auton-
omy, to promote the health of other patients, to safeguard the reputation of their
profession, and so forth. In a case such as Mr. Nolle’s, I’d judge that the duties to
promote his autonomy and his physical and psychological well-being would win out
if he was competent and informed. In other cases, though, the circumstances may
be different, and my judgment may be different.
Warren: Well, at least on those conditions we would come up with the same verdict in
Mr. Nolle’s case, but I think Patrick has some further arrows in his quiver for my
principle and our conclusion. Before we go on, however, I should say that the divi-
sion of labour is, in my view, merely an artifact of the ample discretion principle,
since it is usually in the best interest of patients if practitioners stay within the scope
of their practice. Division need not be morally required, however, when it is in the
patient’s interest that different kinds of practitioners share the labour.

The Psychic Surgery Counterexample

Patrick: Yes, even if there were no naturopaths available, then it would probably still be
wrong for a doctor to administer the frog toxin therapy. You must admit that the
toxin example gives you pause. Let me try another even more extreme example. Sup-
pose that Mr. Nolle was raised in a cult
that believed in psychic therapies and DEFINITION
psychic phenomena in general. And Psychic surgery is a magician’s trick,
suppose that Mr. Nolle was convinced although some patients have faith in it
that his only hope of beating cancer, and see the magician or trickster who
or at least getting the most out of his performs it as a saviour. The trickster
remaining time, was to have someone appears to pull something out of a per-
perform psychic surgery on him. son’s abdomen (often a chicken liver
Now suppose also that there was that has been palmed). Then the trick-
no one available to perform this kind ster announces that the tumor has been
of “surgery” except Dr. Anderweg. As removed.
an MD, Dr. Anderweg has a dim view

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 332   DEBATING HEALTH CARE ETHICS

of this sort of thing, of course, but she sees that it would give Mr. Nolle hope, just like
H, and would not harm him. Finally, suppose that Dr. Anderweg could “perform”
psychic surgery without any harm to the medical profession. Warren’s view seems
to imply that it is permissible for Dr. Anderweg to perform psychic surgery in this
situation. I think it would be irresponsible and dishonest, among other things, and
therefore wrong … very wrong! Physicians have a responsibility, I believe, to uphold
certain standards concerning the treatments they provide to their patients.
Warren: I think the doctor would have to look at all who are affected by this person’s
treatment, not just the patient. What if other members of the cult who did have
better options than the patient might be influenced to try psychic surgery rather
than a curative treatment? If, in a vanishingly rare circumstance, only the doctor
and the patient would ever learn of it, and it was in the patient’s best interest, then
the doctor would be morally permitted to perform psychic surgery. As long as only
the patient’s interests are affected, then the doctor should still have ample discre-
tion to choose treatments that include weird treatments, if those serve the patient’s
best interest as placebos, for example. We would be bound to choose that if we were
in the original position. How else could we protect our interests in the real world?
Division of labour for its own sake does not protect them. Those in the original po-
sition would look at their chances in the real world and say, “If it can do some good
and won’t do harm, then go for it.” The cases where such tricks as psychic surgery
do no harm are, however, so few as to be negligible. Patients are bound to talk about
their treatment and physicians know this. Confidentiality is often breached and
physicians know this. The division of labour will not be total but will remain largely
in place for that reason alone.
Doran: I do admit that the frog toxin example gives me pause. And I agree with
Patrick that it would be wrong for Dr. Anderweg to perform psychic surgery.
I suspect that is because a patient could not be competent and fully informed
and still give valid consent to psychic
surgery (or frog toxin, for that mat- THEORY
ter). I also think that physicians have
A Kantian who thought that a physician
a prima facie duty to uphold the stan-
was bound by their oath to uphold cer-
dards of their profession whether or
tain standards of practice would think
not anyone finds out about it. Taken
that this perfect duty must be done
together, these constitute powerful
no matter who knew or what were the
conditional reasons against a doc-
consequences of doing that duty. In
tor giving a patient psychic therapy.
contrast, a utilitarian would permit a
But the actual case of Mr. Nolle is
physician to use any therapy provided
a bit different, given that reasonable
that it had the best consequences,
people believe in herbal therapies,
all things considered, for everyone
and given that some herbal therapies
concerned.
almost certainly work.

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 Chapter 10  Alternative Medications and Professional Relationships  333

Warren: I’ll take Doran’s help here and say that my view does not license psychic sur-
gery if a competent person could not validly consent to psychic surgery.
Patrick: Given what was argued earlier regarding Mr. Nolle’s request for H, I’m not sure
we need to regard the patient who requests psychic surgery as incompetent or in-
adequately informed. If, for example,
the person was raised in a culture that UP FOR DISCUSSION
practiced this sort of thing, and was Do you agree with Doran that there is
suspicious of Western medicine, and only a prima facie obligation for doctors
if she believed that psychic surgery to give treatments that are medically
was her best and only hope, then I’m approved or undergoing clinical trials?
not sure we could regard the patient’s Or, do you agree with Patrick that there
request for psychic surgery as invalid. should be a more absolute division of
If I’m right, then Warren’s principle labour between physicians and other
implies something that seems clearly medical professionals? Is there a third
to be false: that it is permissible for option that you would endorse?
a medical doctor to perform psychic
surgery in certain cases.
Warren: Don’t forget that the cases in which such things are allowed are vanishingly
rare because of third-party harms. When can a physician be sure that the patient
will keep such a wild secret as having had psychic surgery?

More Counterexamples to the Ample Discretion Principle: Prayer and Other

Unconventional Treatments

Doran: Here’s a different example that may present a problem for your view, Warren.
Unlike the psychic surgery case, this example does not raise the question of whether
the person gives valid consent, nor is the kind of case I have in mind vanishingly
rare. Suppose Mr. Nolle refuses treatment but just asks Dr. Anderweg to pray with
him once a week. Is that permissible, or should the doctor refer him to a minister?
My initial reaction is that the doctor ought to refer, although I am not sure about
this. But what would the ample discretion principle say?
Warren: Well, I’m an atheist. Still, I have to
say that if all the conditions were met, BACKGROUND
the principle would license the prayer A 2018 poll found that 48 percent of
treatment. If there really were no harm patients wanted their physicians to pray
to MDs or others, nothing better the with them.
physician could do, and it really gave
the patient hope, as in Mr. Nolle’s case, Source: Dana E. King and Bruce Bushwick,
then it would be okay, but only then. “Beliefs and Attitudes of Hospital Inpatients
about Faith Healing and Prayer,” Journal of
Prayer would not be a rational choice
Family Practice 39, no. 4 (1994): 349–52.
for me, but it would for many.

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 334   DEBATING HEALTH CARE ETHICS

Patrick: Good example, Doran. As you two might have guessed, I don’t think physicians
ought to administer a “prayer treatment.” But just to clarify, I’m not claiming that it
is always wrong for a doctor to pray with a patient. For instance, suppose a patient
has become good friends with his doctor over the years, and the patient and doctor
belong to the same church. Then I do not see anything wrong with the doctor pray-
ing with his patient. But this must be done as his friend, not as his doctor. Since
prayer is not a recognized course of
treatment, medical doctors should not UP FOR DISCUSSION
be in the business of offering prayer as Is it morally permissible for physicians to
a course of treatment, even if competent pray with their patients if their patients
patients request it.9 If a competent pa- request it? Does it matter if the patient
tient wants a course of treatment that thinks prayer will help cure them, but
involves prayer or psychic surgery, her the physician thinks that prayer has no
doctor should refer her to a minister or medical benefit? Does your view change
psychic surgeon. Warren, your prin- if what the patient wants is not prayer,
ciple seems much too liberal to me. It but psychic surgery?
would allow doctors to treat people us-
ing all kinds of crazy things!
Warren: Doctors do in fact prescribe comforts to patients in palliative care. These comforts
may, in rare cases, include some strange and unusual things. These are ways of show-
ing compassion to patients, and they are very much in the interest of those who choose
the rules in the original position. The
frog toxin case is much more trou- UP FOR DISCUSSION
bling, however, because it is harder to Do you think that it is permissible for
reply to the charge that people other physicians to engage in non-standard
than the patient will be harmed. But treatments that have no therapeutic val-
that is why we had to explicitly bring ue but only symbolic value to patients,
out the restriction on harming others or do you think that a physician’s role
in the ample discretion principle. To- should be limited to more traditional
gether with the valid consent restric- therapies?
tion, these limit the permissible range
of weird treatments.

FINAL THOUGHTS

Patrick: Well, there’s a lot more to discuss. Unfortunately, however, we’re out of time,
so why don’t we wrap up our debate with some last words for now on the subject?
Doran: Doctors need to make sure that they are respecting the informed choices of
their patients. They do not want to be acting on patient requests when the patients
do not adequately understand their predicament or their options. Dr. Anderweg,

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 Chapter 10  Alternative Medications and Professional Relationships  335

therefore, had a duty to make sure Mr. Nolle was relevantly counselled about his
illness and options before acting on his request for alternative therapy. I think I
agree with the final statement of the ample discretion principle, but I do not think
it supports Dr. Anderweg’s behaviour, given my understanding of the facts about
the case. We want health care workers to respond with care and concern for their
patients, to look out for their best interests, and to respect their informed choices,
while not treating others unfairly and without damaging the medical profession.
This is a difficult balancing act. The first steps were to talk with Mr. Nolle and to
help him see that his situation was different from his wife’s, and to explain to him
compassionately and patiently why the standard therapies were likely to promise
better outcomes in his case than the alternative therapies. If he still insisted on the
alternative therapy, then he should have been referred to a competent naturopath. If
a competent naturopath was not available, then perhaps Dr. Anderweg would have
been justified in administering H.
Patrick: Competent patients have a right to choose whatever course of treatment they
would like. And physicians ought, in general, to respect the health care choices of
their competent patients. It does not follow from this, however, that medical doc-
tors are always morally permitted to comply with their competent patients’ requests,
even when those requests are in the patients’ best interest and do not unfairly harm
others. There are recognized limits to the kinds of tools medical doctors can and
should use to treat their patients, and physicians should generally stick within those
limits. There are likely exceptions to this, but I don’t think Mr. Nolle’s case is one
of those exceptions. Certain herbal therapies may be, or may soon be, within those
limits. But frog toxin, psychic surgery, prayer, and so on, are currently not within
those limits, and likely never will be. If Warren’s ample discretion permits doctors
to administer such things, then I believe that his principle is false.
I am certainly not against progress in medicine. Nor do I oppose physicians’
use of new and unconventional drugs and therapies—provided that the drugs and
therapies are part of legitimate tests and trials. Mr. Nolle, however, asked his phy-
sician to inject him with an untested and unproven herbal therapy. I do not think
this choice was informed. But even if it was an informed choice, it was reckless and
irresponsible, and therefore it was wrong for Dr. Anderweg, as an MD, to comply
with Mr. Nolle’s request.
Warren: The principle does not justify harmful or irrational choices, so it is hard
to come up with real cases of things like psychic surgery that this principle
would, in fact, justify. In general, we should not unnecessarily tie doctors’ hands
because of intuitions about division of labour or weirdness of treatments. In
reality, division of labour is also often preserved by the conditions on the prin-
ciple. In extraordinary circumstances, that division may be crossed or weirdness
allowed, but only very rarely would frog toxin or psychic surgery plausibly be
a treatment to which there is valid consent, and which is in the patient’s best

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 336   DEBATING HEALTH CARE ETHICS

interest and not harmful, on balance, to others. Dr. Anderweg did no harm and
did some good with H, which was a reasonable choice for someone with Mr.
Nolle’s goal of living in hope.
Think like those in the original position. We are all behind a veil of ignorance
with respect to the circumstances of our future medical care. If some day you are
in a situation where you have only a snowball’s chance, wouldn’t you want a physi-
cian you know and trust to be the one to help you with a long-shot cure? And what
about experimental medicine? Many currently accepted treatments were once weird
alternatives. Consider the maverick neurosurgeon’s successful induced hypothermia
cure. We must allow discretionary weirdness as a part of accountable medical prac-
tice. That does not mean that anything goes. We must allow ample discretion but
not unlimited discretion.
As to informed consent and counselling, Dr. Anderweg respected Mr. Nolle’s
adequately informed choice of hope by keeping information from Mr. Nolle that
would have been worse than useless
to him. She knew that Nolle under- UP FOR DISCUSSION
stood that the information he was re- After consideration of the arguments ad-
fusing was only good for the choice vanced in the debate, do you believe it
of resignation. Dr. Anderweg’s treat- was permissible for Dr. Anderweg to ad-
ment of Mr. Nolle was therefore mor- minister H to Mr. Nolle? Why or why not?
ally permissible.

SUMMARY

Here is a summary of the main questions, concepts, and arguments covered in this chapter:

• The main questions explored are whether it was morally permissible for Dr.
Anderweg to give an alternative therapy, H, to her patient, Mr. Nolle, and
whether it is morally permissible, in general, for physicians to administer alter-
native therapies to their patients who request them.
• Warren argues that it was morally permissible for Dr. Anderweg to give H
to Mr. Nolle, and he believes that it is morally acceptable for physicians, in
general, to administer alternative therapies to their patients, provided certain
conditions are met.
• Specifically, Warren defends the ample discretion principle: Physicians may ex-
ercise ample discretion to decide whether or not to use any treatment to which a com-
petent patient gives valid consent, provided that it is in the patient’s best interest and
harmless to others on balance. Warren thinks this principle is justified because it
would be chosen by people in the original position.

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 Chapter 10  Alternative Medications and Professional Relationships  337

• Doran agrees with the ample discretion principle; however, he does not think
that Dr. Anderweg acted permissibly in Mr. Nolle’s case. This is because, un-
like Warren, Doran does not think that enough was done to ensure that Mr.
Nolle understood his treatment alternatives so that he could give valid consent.
• Patrick agrees with Doran that Dr. Anderweg acted impermissibly in Mr.
Nolle’s case. But Patrick goes further and argues that the ample discretion
principle is false because it is vulnerable to counterexamples. Instead, Patrick
defends the existence of a division of labour, where physicians administer treat-
ments that are scientifically tested, or are undergoing scientific trials, or are
part of accepted medical practice, while practitioners of alternative medicine
treat patients who choose alternative therapies.

REVIEW QUESTIONS

1. Why does Warren believe it is permissible for Dr. Anderweg to administer H to Mr. Nolle?
2. What is the best interest principle? What is the response to Patrick’s question about the
nature of best interest?
3. Explain Patrick’s frog toxin counterexample and what it purports to show. What is
Warren’s reply?
4. What is the ample discretion principle? What is Warren’s argument for this principle?
5. Briefly explain Doran’s initial objection to the ample discretion principle and the reply to
this objection.
6. Explain Patrick’s concern about whether the ample discretion principle protects patient
autonomy. Why does Warren think that autonomy is, nonetheless, preserved?
7. What considerations motivate the first revision of the ample discretion principle?
8. What considerations motivate the second revision of the ample discretion principle?
9. Briefly explain Patrick’s division of labour objection. How does Doran respond to this
objection?
10. Briefly explain Patrick’s psychic surgery counterexample and Doran’s reply.
11. Describe Doran’s prayer counterexample and what it purports to show. How is this ex-
ample different from the psychic surgery example? Is the reply different as well?

NOTES

1. See the National Center for Complementary and Integrative Health, “Complementary, Alternative,
or Integrative Health: What’s in a Name?” [Link]
2. To say that a patient consents is just to say that the patient willingly accepts the treatment.
Since Mr. Nolle demands H, a fortiori, he willingly accepts H. But, of course, to say that a person
consents to treatment does not guarantee that this consent is valid.

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 338   DEBATING HEALTH CARE ETHICS

3. We focus more explicitly on the issue of competence in chapter 4.

4. An excellent discussion of competence and of informed consent can be found in chapter 3 of Tom
L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 5th ed. (New York: Oxford
University Press, 2001), 57–112.
5. We focus more explicitly on the issue of valid consent in chapter 4.
6. Warren’s example of the 80-year-old who demands a triple bypass raises questions of fair
allocation of scarce medical resources in emergency situations, an issue we discuss at length in
chapter 9.
7. According to a CBC television news report in December 2006, Dr. Joseph Varon at St. Luke’s
Hospital in Houston saved Dan O’Reilly from almost certain death after O’Reilly was knocked out by
a wave in Ixtapa, Mexico. O’Reilly, who went 45 minutes without oxygen, spent 72 hours in induced
hypothermia following coma—a treatment the physician had never tried before. O’Reilly continues to
surprise his physiotherapist (“Frozen Man,” The National, CBC TV, December 6, 2006).
8. See, for example, the College of Physicians and Surgeons of British Columbia practice standard
regarding the use of complementary and alternative medicine: [Link]
[Link].
9. A large study on the effectiveness of prayer revealed no clinical benefits. See “Prayers Don’t Help
Heart Surgery Patients; Some Fare Worse When Prayed For,” Science Daily, April 3, 2006, https://
[Link]/releases/2006/04/[Link].

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 GLOSSARY
abortion: The intentional termination of a pregnancy with the intent and result of kill-
ing the prenatal organism.

absolute moral truth: A moral truth that applies to all persons, at all times, in all situations.

act utilitarianism: The ethical theory that says the right action in a situation is the one
that maximizes happiness and minimizes unhappiness, where everyone’s happiness and
unhappiness is given equal consideration.

active euthanasia: Directly causing an individual’s death—for instance, by administer-

ing a lethal injection—for that individual’s own health-related good.

ad hominem: A Latin expression meaning “against the man,” a fallacy in which one
tries to refute an argument by attacking the one who offered the argument, rather than
the argument itself.

advance directive: A document in which one states one’s wishes in the event one is no
longer able to make health care decisions. It comes into effect when one is no longer
competent. There are two types: Instructional directives (living wills) may give specific
instructions or set out general principles to follow. Proxy directives (durable powers of
attorney for health care) specify who is to make health care decisions for a person who is
no longer able to make them. (Adapted from the End of Life Law and Policy in Canada,
Health Law Institute, Dalhousie University, [Link]

all-things-considered duty: The duty that is most pressing after all prima facie duties
are weighed in a situation, according to W. D. Ross’s pluralistic deontology.

alternative medicine: The kinds of drugs, therapies, practices, and so on, that are not
a part of conventional Western medicine. Examples include acupuncture, homeopathy,
naturopathy, and herbal therapy.

AMA: Stands for “against medical advice.” Patients who leave hospital when their doc-
tors tell them to stay are asked to sign a form certifying that they know their physician
wants them to stay. It gives legal certitude that the patient was warned against leaving.

amnesiac: Afflicted by amnesia, the loss of memory of past experiences.

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 340  Glossary

amnestic anesthetic: A drug that causes temporary amnesia but is designed to tempo-
rarily take away sensations.

amniocentesis: A procedure in which the uterus (the womb) is perforated to obtain

amniotic fluid—fluid from the membranes enveloping the fetus. The fluid contains skin
cells from the fetus, which are analyzed to detect abnormality in fetal development.

ample discretion principle: Warren’s view that physicians may exercise ample discre-
tion to decide whether or not to use any treatment that a competent patient chooses,
provided that it is in the patient’s best interest and harmless to others on balance.

anecdotal: Said of evidence that is not the result of research but of stories or anecdotes
about the efficacy of certain treatments.

appeal to emotion: The fallacy of using emotionally charged, biased language in order
to persuade someone to accept a conclusion without having to think carefully about the
issues involved.

applied ethics or practical ethics: A part of normative ethics concerned with specific
moral issues; for example, Is it ever permissible for a woman to have an abortion? Is it
always wrong for medical professionals to lie to their patients?

argument: A set of at least two claims, one of which is the conclusion. Any other
claims in the set are premises. The conclusion is the claim that one is trying to establish,
and the premises are the reasons offered in support of the conclusion.

asphyxia: A deadly condition caused by oxygen deprivation.

autonomous: Having autonomy, self-determining.

autonomy: Self-determination.

begging the question (circular argument): A fallacy in which the truth of the con-
clusion is presupposed by one or more premises. (All valid arguments do this, but
circularity is a problem when the conclusion you are arguing for occurs as one of your
premises, or is offered as a reason for accepting one of your premises, and you intend to
convince someone of the conclusion.)

blended private/public care: Health care that includes both publicly funded care and
care for which people pay privately.

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breech presentation: Breech means “buttocks,” and breech presentation is the presenta-
tion of the buttocks or feet in labour.

Caesarean section or C-section: The delivery of a fetus by surgical incision through the
abdominal wall and uterus.

categorical imperative: A command that states what one ought to do regardless of one’s
desires or goals. For Kant, these imperatives are the rules of morality. Kant has, how-
ever, a particular principle called the categorical imperative. It comes in several forms,
including the universal law version and the humanity version.

chemotherapy (short form, chemo): A cancer treatment using chemical means.

circular argument: See begging the question.

classical act utilitarianism: See utilitarianism.

clinical factors: Considerations that may affect the proper order of care, arising from an
assessment of the medical needs of the particular patients.

codifiable: Expressible as a set of rules with priorities for their application.

cognitivism: In metaethics, the view that our moral claims are descriptions of the
moral features of actions, persons, and so on. As such, moral claims are the kind of thing
that are true or false, and that we believe, know, assert, doubt, and deny.

comforts: Whatever is prescribed for a patient that has no medical use but is merely
intended to make the patient more at ease. See also palliation.

competent: Capable of rational self-determination; in this context, capable of rationally

choosing one’s own medical treatment. Individuals may be competent relative to some
tasks, but not others.

complementary medicine: The use of alternative medicine in conjunction with stan-

dard Western medicine.

conclusion: The claim one is trying to prove through an argument.

conclusion indicator: Verbal clue which signals that a conclusion is being offered, for
example, therefore, thus, hence, and so.

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consequentialism: The view that the right act is entirely determined by its consequenc-
es, which are the promotion of the greatest amount of good or the least amount of bad.

conservatives: In the context of the abortion debate, those who generally oppose abor-
tion—claiming that abortion is wrong in all, or virtually all, cases.

contractarianism: See social contract theory.

contradiction in conception: A result pertaining to Kant’s universal law version of the

categorical imperative. It occurs when one is not able to will a maxim as a universal
law because the practice would be self-defeating or self-contradictory if it were practiced
by everyone all the time. It signals the violation of a perfect duty.

contradiction in will: A result pertaining to Kant’s universal law version of the cat-
egorical imperative. Kant admits that one can conceive of a maxim as a universal law,
but still not be able to will it because a contradiction will arise between the universal law
and what a person will (later) want. It signals a violation of an imperfect duty.

counterexample: An example that is intended to counter a given claim or argument.

CSBC: Caesarean section by choice; Caesarean delivery in the absence of medical in-
dications at the choice of the mother.

CTAS: The Canadian Triage and Acuity Scale, introduced during the late 1990s. The
CTAS is now being implemented as a national triage standard for Canada’s emergency
health care system.

cultural imperialism: A phrase used to object to the imposition of the beliefs of one
culture on another.

cultural relativism: The ethical theory that says there are no objective truths in ethics,
and the correct moral rules are determined by each culture.

deductive argument: An argument intended as one in which it is necessary that if the

premises are true, so is the conclusion.

dementia: A loss of intellectual function.

deontology: A category of ethical theory that sees right action as doing one’s duty.

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descriptive ethics: A part of ethics that seeks to describe what is the case rather than
what ought to be the case; for instance, it seeks to describe what people actually believe
about particular moral issues. Descriptive ethics also is concerned with questions of why
people believe what they believe about ethics, and how they come to hold their particu-
lar moral beliefs and attitudes.

difference principle: John Rawls’s view that there should be social and economic equal-
ity, unless inequality benefits everyone, especially those in the worst-off group.

dilemma: An argument that shows that one’s opponent is faced with only two or more
logical alternatives, none of which the opponent would accept.

diminishing marginal utility: Said of money, it expresses roughly the idea that an extra
portion of income is unlikely to benefit a person above a certain level of wealth as much
as it would benefit someone below that level of wealth. After you get a certain amount,
money is worth less to you (diminishes in utility) as you get more of it.

dispositional properties: Roughly, properties that objects, persons, and so on, have in
virtue of their being disposed to behave in a certain way under certain conditions.

dispositional view of moral properties: The view that moral properties are disposi-
tional properties; for example, an action is morally right in virtue of its tendency to
elicit certain responses (e.g., approval).

doctrine of the mean: Aristotle’s doctrine that the virtues exist as a mean between two
extremes—one of excess and the other of deficiency.

double jeopardy: The name of a legal rule that prohibits being tried twice for the same
crime on the same set of facts. Warren applies the term to health care, saying that a
patient should not be required to prove their competence twice in a short period of time.

Down syndrome or Down’s syndrome: A condition in which an extra chromo-

some causes birth defects, notably slow, incomplete physical development and mental
retardation.

duty, all things considered: See all-things-considered duty.

dysphagia: A potentially very dangerous condition causing one to be prone to choke.

egalitarian: A term with multiple meanings, often said of philosophers who emphasize
equality above such values as liberty.

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 344  Glossary

embryo: A developing organism prior to birth. In humans this stage runs from concep-
tion until about the end of the eighth week.

end or end in itself: In Kant’s usage, a rational being deserving of respect.

epistemic problem: A philosophical problem concerning knowledge.

epistemology: The philosophical study of knowledge.

equal consideration: The principle that no one’s good is to be counted as more impor-
tant than anyone else’s.

equivocation: The fallacy of equivocation occurs when a term slides, without acknowl-
edgement, between two or more different meanings within a single argument, so as to
make an argument which is not valid appear valid.

ethical objectivism: The view that there is objective truth in ethics. By saying that a
statement is objectively true, we mean (roughly) that the statement is true independently
of whether anyone happens to believe that it is true or desires it to be true.

ethical relativism: Also called moral relativism, the view that there is no objective
truth in ethics. Instead, it is suggested that moral truths are simply relative to a given
individual or group.

ethics of care: The view that rather than using principles to arrive at the solutions to
moral problems, one needs to adopt a perspective of caring. Here the focus is on main-
taining and improving one’s relationships.

eudaimonia: A Greek term roughly translated as “flourishing” or “happiness.”

euthanasia: An act or omission, intended by one or more individuals, to bring about the
death of another individual for that individual’s own (health-related) good.

excusable: Said of wrong acts for which there is an excuse.

excuse: A reason for wrong action that removes blame by removing the responsibility of
the one who did the action.

extremitarianism: There is no recognized ethical term “extremitarianism.” This is a

word Warren made up playing on utilitarianism. For the extremitarian, the benefits
have to be extreme before they can justify exceptions to worst first and first come.

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fair turn rule: (a proposed triage rule) Patient B can go ahead of Patient A in the queue
for life-saving treatment if A has had a fair turn at life and B has not.

fallacy: A mistake in reasoning.

false dilemma: A fallacy in which fewer options are presented than are actually avail-
able in a way that is misleading.

feminism: The view that women (and girls) have been, and in various ways continue to
be, oppressed; it seeks to understand the nature of the oppression and to determine how
best to overcome this oppression.

fetus: A stage of a developing organism; in humans, from about the end of the eighth
week until birth.

first come: (a proposed triage rule) Those who arrive first get treated first, other things
being equal.

genetic code: Information encoded in the DNA of an organism that determines what
kind of organism it is. Each species has a unique genetic code that distinguishes it from
all other species.

good will: (Kant’s conception) If one does an act out of respect for morality—out of
respect for a categorical imperative—then one is said to have a good will, and so one’s
act has moral worth.

hard paternalism: The interference with a competent person’s liberty for that person’s
own good.

health care ethics: An area of inquiry within normative ethics, or more narrowly,
practical (or applied) ethics, which deals with ethical problems that arise in and around
the practice of health.

hedonism: The view according to which the sole intrinsic good is pleasure and the sole
intrinsic bad is pain.

hopeless second: (a proposed triage rule) Do not treat hopeless cases ahead of those
where there is hope.

humanity: The term that Kant uses to mean the set of rational beings.

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 346  Glossary

humanity version of the categorical imperative test: Kant’s principle that one must
treat humanity, whether in one’s own person or that of another, always as an end and
never merely as a means.

human-sympathy metarule: A part of Warren’s favoured ethical approach. It is a rule

about making rules in the original position that requires the choosers of rules to choose
rules that can be followed by those with ordinary human sympathy.

hypothermia: A low body temperature usually caused by cold weather but sometimes
induced as a way to decrease metabolism and use of oxygen by a patient.

hypothetical imperative: A command that states what one ought to do given the pres-
ence of a desire or goal.

hypoxia: A reduction of oxygen to tissue in spite of adequate blood circulation. If it is

not remedied immediately, the brain is deprived of oxygen, causing damage.

hysterectomy: An operation in which the uterus (the womb) is removed.

ideal social contract: The ideal set of rules to govern moral relations of people in a com-
munity, e.g., rules chosen in the original position.

impartiality rule: (a proposed triage rule) Health care professionals should usually be
impartial, i.e., free from bias, favouritism, or prejudice, in helping patients.

imperfect duty: According to Kant, a duty that one must sometimes follow, but which
need not be followed all the time (e.g., the duty to be charitable).

incompetent: Not competent.

inconsistent: Rationally incompatible. A set of sentences is inconsistent if and only if

not all of them can be true at once. We say a set of desires, preferences, or wishes are
inconsistent if and only if a person could not satisfy the whole set. See rationality.

inductive argument: An argument intended as one in which it is probable that if the

premises are true, so is the conclusion.

informed consent: Consent given with a satisfactory understanding of treatment op-

tions and the likely effects of treatments if those effects are known.

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innocents first rule: (a proposed triage rule) Patient A, who is innocent and who cannot
wait for care, may be given priority over patient B, who was at fault for the injury and
who also cannot wait, other things being equal.

instrumental value: Value as a means to something else.

instrumentally good: Good as a means to something else. See also instrumental value.

internalism: The view that reasons or motives are somehow “built into” the fact, or
judgment, that an action is morally right (or wrong).

intrinsic value: The worth that something has in itself, and not because of its utility or
usefulness.

intrinsically good: Good that is valuable for its own sake. See also intrinsic value.

intuitionism or ethical intuitionism: Within ethics, a term that generally refers to the
view that there is a plurality of fundamental moral principles that are known through
a special faculty of intuition—i.e., these basic moral principles are self-evident or ap-
prehended directly, rather than through inference or demonstration. In some instances,
however, those who accept only one self-evident fundamental principle are called “intu-
itionists.” The term may also be applied to those who think we intuit moral properties.

invalid argument: An argument intended to be deductive but with premises that fail
to guarantee that the conclusion is true. In an invalid argument the conclusion could be
false even if all the premises are true.

involuntary active euthanasia (IAE): Active euthanasia of a competent patient with-

out her consent.

involuntary euthanasia: Euthanasia of a competent patient without her consent.

involuntary passive euthanasia (IPE): Passive euthanasia of a competent patient

without her consent.

jump the queue or queue jumping: What people are said to do when they unfairly get
ahead of others in line for medical care. Also used for getting ahead unfairly in other
contexts.

justice as fairness: The name of John Rawls’s social contract theory of justice.

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justification: A reason for something that shows that it was permissible. Contrast ex-
cuse and mitigation.

Kantianism: The philosophy of Immanuel Kant.

libertarian: Said of philosophers who emphasize liberty above such values as equality
and beneficence. In political philosophy it is associated with the view that the state may
restrict citizens only to protect them against violence, theft, or fraud.

liberty principle: See principle of maximal equal basic liberties.

macroallocation: Large-scale distribution of resources such as those with which public

health policies are concerned.

magnetic resonance imaging (MRI): A technique for scanning for muscle and joint
injuries. Both the scans and the machines that scan are referred to as MRIs.

MAID: Stands for “medical assistance in dying.” It includes euthanasia and physician-
assisted suicide. MAID is legal, though strictly regulated, in Canada.

maxim: As used by Kant, the principle behind one’s action.

maximin: According to Rawls, a strategy that one should adopt in the original posi-
tion, namely choose in such a way so that you will be doing maximally well if you should
turn out to be in the minimum (or worst-off) position.

means only: In Kant’s usage, a mere thing, as opposed to a rational person.

means to an end: A way to achieve a goal. When people are used merely as a means to
an end they are treated as tools or things rather than as rational beings who have their
own goals and are able to make their own decisions.

medical benefit: (a proposed triage rule) Where the medical interest is great enough, a
patient may be given priority over those who came earlier.

medicalize: To turn a natural process into a medical procedure. This is a term of medical
jargon not in common use.

mesoallocation: Medium-scale allocation of resources, distribution of resources at the

level of institutions.

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metaethics: A part of ethics concerning the rational investigation into the nature of
morality. Here, the focus is on questions about morality, rather than questions within
morality; for example, “Are moral judgments capable of being true or false?” and “What
are the meanings of moral terms?”

metaphysical problem: A philosophical problem concerning reality.

metaphysics: The philosophical study of reality.

metarule: A rule that governs the production, use, and interpretation of other, lower-
level rules. It is a rule about making rules rather than a rule about what to do.

MI or myocardial infarction: A heart attack.

microallocation: Distribution of resources at the level of individuals, selecting which

individuals are to receive health care resources.

minimize YPLL: (a proposed triage rule) Minimize years of potential life lost.

mitigation: A reason for an action that does not excuse or justify a wrong done but
lessens blameworthiness.

moral antirealism: The view that (i) moral claims are not descriptive at all, or (ii) that
moral claims are (partly) descriptive, but none of these descriptions are true. So moral
antirealists deny that there are any moral truths or facts.

moral argument: An argument in support of a substantive moral claim.

moral pluralist: One who believes there is no single basic moral principle that explains
all of our moral obligations, but instead, that there are many general moral principles.

moral realism: The view that (i) moral claims are (at least partly) descriptions or reports
of the moral features of actions (persons, etc.), and (ii) that some of these claims are true.
The moral realist therefore holds that there are moral facts.

moral relativism: See ethical relativism.

morbidity: The lack of health in a population represented as the ratio of diseased or

injured persons to healthy persons; hence, maternal morbidity is the rate of ill-health of
new mothers. Said of an individual, morbidity means being unhealthy or morbid.

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motility: The ability to move spontaneously. If this ability is lost in the parts of the body
used to swallow, dysphagia results.

multiple sclerosis (MS): Scarring of nervous tissue throughout the body, sometimes
including the brain, leading to damage to the covering (myelin sheath) of the nerves.
It can lead to weakness, loss of coordination, and visual complaints. It may be mild or
severe and is usually prolonged with remissions and relapses over many years. Only in
rare cases does it lead to serious loss of intellectual function.

naturopath: A practitioner of health care based on alternative medicine that empha-

sizes natural healing methods, while avoiding surgery and drugs.

negative rights: Rights to non-interference, such as the right not to be physically

harmed. Negative rights are contrasted with positive rights.

nepotism: Showing favouritism to relatives or close friends when impartial, objective

criteria should be used.

non-clinical factors: Those that do not arise from an assessment of the medical needs
of the particular patients. An example of a non-clinical factor might be the guilt or in-
nocence of the patients waiting for treatment.

non-consequentialism: The view that the right act is not entirely determined by its
consequences.

non-voluntary active euthanasia (NAE): Active euthanasia on individuals who lack

the competence to make a decision about euthanasia.

non-voluntary euthanasia: Euthanasia on individuals who lack the competence to

make a decision about euthanasia.

non-voluntary passive euthanasia (NPE): Passive euthanasia on individuals who lack

the competence to make a decision about euthanasia.

normative: Normative principles are generally contrasted with descriptive principles.

normative ethics: A part of ethics concerned, in large part, with general theoretical
questions such as what makes acts morally right or wrong, which states of affairs
are desirable or undesirable, what constitutes a good life for the person who leads it,
which character traits are virtuous and which are vicious, and, most generally, how
one ought to live.

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objective truth: There is no single, universally accepted definition of the concept of

objective truth. Most would agree, however, that an objective truth is a truth that is inde-
pendent of whether people happen to think, believe, or feel that it is true. For instance,
if it is an objective truth that water is H 20, then it is true whether or not anyone happens
to believe it or desire it to be true. Morality is sometimes said to be objective, meaning
that the rightness and wrongness of actions is independent of the thoughts, beliefs, and
feelings people happen to have toward those actions. This makes moral claims about
right and wrong actions objective truths.

optimific: Maximum good consequences; an optimific act is the one that does the most
net good, or the least net bad.

original position: John Rawls’s conception of a hypothetical situation from which peo-
ple are to choose the principles of justice to regulate the major social institutions. Unlike
Rawls, Warren uses the original position to generate all moral rules. In the original
position, people are equally powerful, equally intelligent, self-interested, and ignorant
of their own advantages and disadvantages in the real world.

palliation: Easing a patient’s pain or the severity of a patient’s disease without removing
the cause. See also comforts.

passive euthanasia: Allowing an individual to die—for example, by withholding life-

prolonging treatment—for the sake of the individual’s (health-related) good.

paternalism: Interference with a person’s liberty for that person’s own good. See hard
paternalism, soft paternalism, strong paternalism, and weak paternalism.

perfect duty: According to Kant, a duty that must always be followed.

physician-assisted suicide: Occurs when a physician provides a hopeless, usually ter-

minally ill patient with the means (such as a prescription for a lethal dose of a drug) to
commit suicide.

placebo effect: The healing effect of a treatment that works only because the patient
believes it will work.

pluralistic deontology: W. D. Ross’s view that morality consists in many conditional

duties which will sometimes conflict. In cases of conflict, one must study the situation
carefully and try to reach a considered judgment about which duties are most pressing
in that situation. Whatever the strongest duties recommend in that situation constitutes
the right thing to do in that situation.

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positive rights: Rights whose satisfaction requires the provision of some action, good,
or service. Positive rights are contrasted with negative rights.

practical ethics: A part of normative ethics concerned with specific moral issues; for
example, Is it ever permissible for a woman to have an abortion? Is it always wrong for
medical professionals to lie to their patients?

premise: Reasons provided in support of a conclusion.

premise indicator: Verbal clue which signals that a premise is being offered. E.g., be-
cause, since, given that, for.

prescriptive: Said of language that tells people what they ought to do in contrast to
merely describing what people do.

presumptively, morally permissible: Presumed to be not morally wrong.

prima facie duty: The usual translation of the Latin phrase prima facie is “on the face
of it.” For W. D. Ross, however, prima facie duties should be understood as conditional
duties. Conditional or prima facie duties can then be contrasted with duties, all things
considered.

primary social goods: As defined by John Rawls, goods, under the control of society,
that everyone, or almost everyone, can be presumed to want, regardless of their plans in
life. For Rawls, these include rights and liberties, opportunities and powers, income and
wealth, and the bases of self-respect.

principle of charity: Principle according to which an author’s claims and arguments

are to be interpreted in the best possible light. The general aim is to arrive at a fair and
sympathetic understanding of the author’s position in order to evaluate it critically.

principle of fair equality of opportunity: A principle of John Rawls’s social contract

theory. It holds that each person should have a meaningful opportunity to attain em-
ployment, education, and positions of power.

principle of maximal equal basic liberties: A principle of John Rawls’s social contract
theory. It holds that each person is to have maximal equal basic liberties such as freedom
of expression, thought, assembly, religion, and so on.

principlism: The theory that moral problems (especially in health care) are to be solved
by weighing a set of widely agreed upon moral principles, such as respect for autonomy,
benevolence, and justice.

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prolapse: A falling or sinking down of part of the body. In chapter 7, it refers to a down-
ward displacement of the uterus.

psychic surgery: A magician’s trick in which the magician appears to remove tissue
from a person’s body without surgery. Typically, this is used to dupe the gullible into
thinking they have had a growth removed from inside their bodies.

public interest: (a proposed triage rule) Where the public interest is great enough, a
patient may be given priority over those who came earlier.

quadriplegic: A person who is paralyzed so as to be without the use of all four limbs.

queue: A line of people waiting for service or admission. This is used metaphorically to
refer to the fair ordering of patients awaiting medical care in Canada. See jump the queue.

radiosensitive tumour: A tumour that will respond to radiotherapy (radiation therapy).

radiotherapy: The use of ionizing radiation to treat an illness.

rational being: In Kant’s conception, a being that can freely set goals for itself and then
determine the various means to accomplish those goals (hypothetical imperatives),
and can also recognize and choose to follow (or not to follow) moral rules (categorical
imperatives).

rational intuition: A faculty or sense that enables one to “see” moral truths directly,
without the need for inference, argument, etc.

rational nature: The ability to freely make one’s own decisions and to freely set goals
for oneself.

rationality: A perennially contested term referring to the capacity of people to choose

actions, beliefs, goals, plans, inferences, and other things on the basis of reasons. It is
generally thought to include, but not to be limited to, the capacity to employ rules of
reasoning that make up correct logic.

reasonable person test: A test of acceptability. Appeals to what a reasonable person

would believe are used by philosophers as a common-sense, intuitive test to clarify con-
cepts, determine right and wrong, and so on.

recuse: Disqualify oneself as a judge; by extension, said of other public officials making
decisions where they excuse themselves from decision-making on grounds of a conflict
of interest.

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redistributive taxation: Taxation that redistributes wealth to modify the ways in which
it is distributed in society through the forces of commerce. Usually it is aimed at making
citizens’ advantages more equal than they would be without the tax.

reflective equilibrium: For many, it is the end point of a process of philosophical delib-
eration. It involves going back and forth between principles and what they imply about
specific cases to attain a state of coherence or consistency among the moral principles we
accept and our considered moral beliefs.

remission: A period during (or a stage of) a disease in which the patient does not show
any symptoms.

right to self-determination: Right to autonomy, right to self-government.

robust advantage principle: A part of Warren’s ethical approach. It says that we should
bias our decisions about allowing social and economic differences so as to provide a ro-
bust advantage to the least advantaged. This should be distinguished from John Rawls’s
difference principle, which is much more egalitarian.

rule utilitarianism: The ethical theory that says the right action is the one that is done
according to a set of rules that maximizes happiness and minimizes unhappiness if
consistently followed.

Sanctity of Life principle: The view that it is wrong to kill human beings because hu-
man life is sacred. This principle is subject to various interpretations, for example, it may
protect only innocent human life or it may prohibit only the intentional killing of (inno-
cent) humans. We also consider a Kantian version: the sanctity of rational life.

secondary quality: Roughly, powers of objects to produce certain sensations in us.

Colours, tastes, and sounds, e.g., are commonly regarded as secondary qualities. Many
philosophers take secondary qualities to be dispositional properties.

situational ethic: The view that whether an act is right or wrong will depend on the
particular situation.

social contract theory: A type of ethical theory that takes a hypothetical agreement
among a group of people under special constraints to be the source of the correct moral
rules. Social contractarians differ in the details of their theory, but they share the funda-
mental belief that justified moral rules are the ones that rational individuals would agree
to for their own benefit. See original position and veil of ignorance.

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soft paternalism: The interference with an incompetent person’s liberty for that per-
son’s own good.

sound argument: A valid argument where all of the premises are true.

standard form: The form of an argument presented as a numbered list with the prem-
ises above a horizontal line and the conclusion below the horizontal line.

state of nature: A hypothetical time and place where there is no organized society, no
recognized social rules, in which everyone is free to do as they please. This concept is a
central part of many social contract theories.

straw man: The fallacy of misrepresenting one’s opponent’s argument or view so that it
is easily shown to be unsound or weak.

stress incontinence: The inability of the bladder to retain urine under stress, usually
because the bladder neck is weakened.

strong inductive argument: An inductive argument where the premises, if true, make
the conclusion probably true. The more support provided by the premises of an induc-
tive argument, the stronger the argument.

strong paternalism: The interference in a competent person’s liberty for that person’s
own good, in order to prevent that person from attempting to realize irrational or mis-
taken goals.

subjective truth: Truth dependent on whether a person happens to think, believe, or

feel it is true. In morality, the view that the rightness or wrongness of actions is depen-
dent on individuals’ personal attitudes and feelings toward the actions makes moral
truth subjective. This view is given the name subjectivism. For example, a speaker’s claim
that abortion is wrong is true if and only if the speaker sincerely believes that abortion
is wrong (or disapproves of abortion).

substantial benefit rule: (a proposed triage rule) If a patient stands to benefit substan-
tially from being treated first, while the patient ahead in the queue will not benefit
substantially from being treated, then the patient who will benefit substantially should
be treated first.

substantive moral claim: A claim made directly about the moral status of acts, policies,
persons, and so on. Examples of substantive moral claims include “Jones is a bad person”
and “Involuntary euthanasia is morally wrong.”

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 356  Glossary

surface grammar: Superficial grammatical and idiomatic aspects of language that con-
vey apparent meaning.

sympathy metarule: See human-sympathy metarule.

the categorical imperative: Kant’s test for determining whether a particular action is
morally permissible or morally wrong. It comes in several forms, including the universal
law version and the humanity version. See also categorical imperative.

thing: in Kant’s usage, “not a rational being.” Things are not capable of following both
hypothetical imperatives and categorical imperatives.

third parties: People other than the two main people in a situation. In this context,
people other than the patient or the health care provider.

thought experiment: An example developed to prove or disprove a particular claim or

argument or to persuade us of the plausibility of a thesis.

thromboembolism: The obstruction of a blood vessel with particles carried by the blood
from another site.

triage: Sorting patients by degree of urgency in order to allocate treatment. See CTAS.

Trojan Horse: By analogy to the fabled statue of a horse in the siege of Troy, a device
used to surreptitiously introduce something.

two-tier health care: A system in which one tier or level is publicly funded and one tier
is privately funded.

universal care: Care that is provided to every citizen (and lawful resident) regardless of
that individual’s financial means.

universal law: A principle that states that everyone follows a particular maxim all the
time, as if it were a law of nature.

universal law version of the categorical imperative: Kant’s principle “Act only on
those maxims that you can, at the same time, will as a universal law.”

unsound argument: An argument that either contains a false premise, or is logically

invalid, or both.

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 Glossary  357

utilitarianism: An ethical theory that takes many forms, but in its classical formulation,
as articulated by Jeremy Bentham and John Stuart Mill, is the view that right actions,
laws, or policies promote the greatest net amount of pleasure, or the least net amount of
pain, where everyone’s pleasures and pains receive equal consideration.

valid argument: An argument in which it is impossible for all of the premises to be

true and the conclusion false. In other words, if all of the premises are true, the conclu-
sion must be true.

valid consent: Acceptable consent. When we speak here of valid consent, it means
something different from “valid” as applied to arguments. See valid argument.

veil of ignorance: A central feature of the original position, a barrier that prevents
people from knowing any particular facts about themselves. For instance, they do not
know their race, gender, class, natural abilities, religious convictions, specific values,
goals in life, and so forth.

virtue: A character trait needed for being a good person and living well. These traits
include the moral virtues (e.g., courage, honesty, industriousness, trustworthiness,
compassion, and loyalty). These are deep and stable character traits that dispose
those who possess them to take certain actions and have certain feelings. Honest
people, for instance, are disposed to act honestly and to feel disapproval toward
persons who are dishonest.

virtue ethics: Roughly, an approach to ethics that focuses on moral (virtuous) character,
rather than on principles of right action.

voluntary active euthanasia (VAE): Active euthanasia on a competent person with

that person’s consent.

voluntary euthanasia: Euthanasia on a competent person with that person’s consent.

voluntary passive euthanasia (VPE): Passive euthanasia on a competent person with

that person’s consent.

weak inductive argument: An inductive argument where the premises, if true, pro-
vide little support for the conclusion.

weak paternalism: The interference in a person’s liberty for that person’s own good, in or-
der to prevent that person from behaving in ways that are likely to defeat their own goals.

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 358  Glossary

worst first: (a proposed triage rule) Treat the worst cases in the emergency depart-
ment first.

xenotransplantation: The transplantation of nonhuman organs into humans.

zygote: A single diploid cell that results from the merging of a sperm and ovum through
a process of fertilization. The developing organism, from the moment of conception
until about the end of the eighth week, is called an embryo. From that point until birth
it is called a fetus.

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 INDEX
A statement of positions, 168–169
abortion sufficiency of sentience, for right to life, 190–191
see also abortion (case); fetus Thomson’s violinist example, 181–185
bodily integrity, right of, 179 virtue-based argument for abortion, 180–181
Canadian law, 161 virtue ethics, and vegetarianism, 195–196
debate over, 161–162 absolute moral truth, 86–87
early abortions, 189–190 abusive relationships, 60
genetic vs. moral humanity, 169–172 access to medical services. See two-tier MRI (case)
legal landscape, 161 ACOG. See American College of Obstetricians and
and rape, 182, 197n6 Gynecologists (ACOG)
sex-selective abortion, 179 act utilitarians, 71, 110
as vicious act, 184 see also classical act utilitarianism
abortion (case) active euthanasia, 132
arguments against morality of abortion, 169–185 and intention, 138
arguments for the morality of abortion, 185–196 non-voluntary active euthanasia (NAE). See non-
clarification of the case, 165–167 voluntary active euthanasia (NAE)
conservative arguments, against abortion, 162, vs. passive euthanasia, 132, 138–139
169–185 voluntary active euthanasia (VAE). See voluntary
contraception objection, 174–175 active euthanasia (VAE)
discrimination against the disabled, 177–180 ad hominem, 14–15
equivocation objection, 175–177 against medical advice (AMA). See AMA (“against
focus of debate, 161–162 medical advice”)
genetic code, 169–172 agreement, facilitation of, 50
identification of relevant facts, 165–167 all things considered, duty, 44
life criterion, 186–187 allocation of health care. See microallocation of
Marquis’s argument against abortion, 173–177 scarce resources (case)
moral issues raised, 167–169 alternative medicine, 304–305
more rational vs. less rational individuals, see also alternative medicine (case); ample discre-
192–193 tion principle
necessity of sentience, for right to life, 191–192 alternative medicine (case)
Noonan’s argument against abortion, 169–172 ample discretion principle, 317, 318–334
objections to sentience criterion, 187–196 anecdotal evidence, 313
opening scenes, 163–165 best interest principle, 314–317
original position, 168, 179 clarification of the case, 310–313
“party hard” lifestyle, 184 competency vs. incompetency, 321
principle of charity, 171 counterexamples, 305, 316, 331–334
protection of worthwhile goods, 180–181 division of labour objection, 329–334
rational non-humans vs. non-rational humans, final thoughts, 334–336
194–195 frog toxin counterexample, 317
rational vs. non-rational individuals, 193–194 harm avoidance, 326–329
rationality, and sentience, 188–190 identification of relevant facts, 310–313
rationality criterion for a right to life, 185–186, indeterminacy objection, 319–321
192–195 moral issues raised, 313–314
right to life vs. virtues, 181–185 moral permissibility, 304–305
sentience criterion, 187–196 opening scenes, 306–310
social contract theory, 168, 194 paternalism, 320

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 360  Index

patient autonomy, 318–319, 324–326 revised statements, 144

placebo effect, 312 sound argument, 5
prayer, 333–334 standard form, 2, 3
psychic surgery counterexample, 331–333 strong argument, 6
statement of positions, 314 underlying rationale, 144
valid consent, 321 unsound argument, 5
valid consent of competent patients only, 321–326 valid argument, 4–5, 175
AMA (“against medical advice”), 102, 107 weak argument, 6–7
see also right to refuse treatment (case) Aristotle, 54–55
American College of Obstetricians and Aristotle’s virtue theory, 54–57
Gynecologists (ACOG), 205, 206, 224 articles of peace, 47–48
American health care system, 267 artificial blood, 225
amnesiac, 84 asphyxia, 202
amnestic anesthetic, 84 assisted suicide. See MAID (medical assistance in
amniocentesis, 161 dying) (case)
ample discretion principle, 317, 318–334 autonomy, 85
competence, 321 alternative medicine (case), 318–319, 324–326
division of labour objection, 329–334 Autonomy and Best Interest argument, 142–145,
harm avoidance, 326–329 152
incompetent individual, 321 and C-section by choice, 199, 223–224
indeterminacy objection, 319–321 defined, 227
paternalism, 320 free choice, 120, 123
patient autonomy, 318–319, 324–326 limits on, 74, 85, 86, 211
prayer, 333–334 meaning of, 104, 318
psychic surgery counterexample, 331–333 and medical model of childbirth, 224
valid consent, 321 and patient safety, 128–129
valid consent of competent patients only, 321–326 respect for, within medical context, 92
analogy, argument by, 217–219, 254 right to refuse treatment. See right to refuse treat-
analyses, 9 ment (case)
anecdotal evidence, 313 self-determination, 105, 318
animals, non-human. See non-human animals social safety net, 249–250
antirealist theory, 75 and voluntary active euthanasia, 142–145, 152
appeal to emotion, 13–14 Autonomy and Best Interest argument, 142–145, 152
arguments, 1–8 average life expectancy, 291–292
acceptance of premise, for sake of argument, 109,
213 B
analogy, argument by, 217–219, 254 background assumptions, 16n4
bad argument, 3–4 bad argument, 3–4
in the broad sense, 170 Bartky, Sandra, 60
circular argument, 11–12, 16n3, 79 BC Civil Liberties Association, 135
deductive argument, 4–5 Beauchamp, Tom, 46, 331
defined, 1 because (premise indicator), 2
derivation, 170 begging the question, 11–12, 176
different purposes, 16n1 see also circular argument
dilemma, 151 Beloved (Morrison), 136
evaluation of, 3–8 beneficence, 67n42, 331
inductive argument, 6–7 Bentham, Jeremy, 24
intuitive appeal, 246 see also utilitarianism
invalid argument, 5, 175 Bergeron, Véronique, 224
logic, 4–5 best interest
moral argument, 7–8 see also ample discretion principle
in the narrower sense, 170 alternative medicine (case), 314–317

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 Index  361

Autonomy and Best Interest argument, 142–145, Canada’s current public health care system, 264
152 Canadian Medical Association (CMA), 137, 329
and euthanasia, 136, 142–145, 152 Canadian Nurses Association, 286, 313
frog toxin counterexample, 317 Canadian Triage Acuity Scale (CTAS), 277, 280
never-best-interest objection to NAE, 157–158 cancer
and non-voluntary active euthanasia, 153–155 see also alternative medicine (case)
and passive euthanasia, 143 chemotherapy, 307
use of term, 315 radiotherapy, 307
and voluntary active euthanasia, 142–145, 152 remission, 305
“biting the bullet,” 286 categorical imperative, 319
blended private/public health care system, 232 the categorical imperative, 36
see also two-tier MRI (case) categorical imperatives, 34–36
bloodless surgery, 225 humanity version, 38–40
bodily integrity, right of, 179 universal law version of the categorical impera-
Boonin, David, 182–183 tive, 36–38
breastfeeding, 219 CDMR. See Caesarean Delivery on Maternal
breech presentation, 222 Request (CDMR)
Chamberlain, Wilt, 244–245
C charity, principle of. See principle of charity
C-section. See Caesarean section chemotherapy, 307
Caesarean Delivery on Maternal Request (CDMR), childbirth. See Caesarean section by choice (CSBC)
205, 208 (case)
see also Caesarean section by choice (CSBC) (case) childless person, interests of, 296
Caesarean section, 199 Childress, James, 46, 331
see also Caesarean section by choice (CSBC) (case) circular argument, 11–12, 16n3, 79
Caesarean section by choice (CSBC) (case) clarification of concepts, 121
argument by analogy, 217–219 see also specific cases
autonomy, 199, 223–224 classical act utilitarianism, 24–32, 64n11
clarification of the case, 205–210 see also utilitarianism
driving to school analogy, 218–219 clinical factors (microallocation rules), 278, 279–292
economic costs of delivery, 209–210, 225 fair turn, 290–292
fast food analogy, 217–218 fairness of microallocation rules, 279–282
global statistics, 205–206 first come rule, 280–281
good reason requirement, 215–216, 220–221 hopeless second rule, 281, 287–288
harms to the baby, 215–222, 230n19 minimize YPLL (years of potential life lost) rule,
harms to the mother, 222–224 288–289
harms to others, 224–226 substantial benefit, 289–290
home birth example, 219–220 sympathy metarule, 282–287
identification of relevant facts, 205–210 worst first rule, 280
informed consent, 224 code of ethics, Canadian Nurses Association, 286,
medicalization of safe, natural process, 214 313
moral issues raised, 210–212 codifiability of morality, 80
moral permissibility, argument for, 212–214 cognitivism, 76
National Institute for Health and Care Colleges of Physicians and Surgeons, 329
Excellence (NICE) guidelines, 208–209 comatose individuals, 191–192, 328
opening scenes, 201–205 comforts, 334
original position, 215, 223 common human sympathy. See sympathy metarule
placenta accreta, 207 compassion objection, 251–253
potential harms, implications of, 214–226 compassionate society, 248
safety of modes of delivery, 206–208, 229n9 competence
statement of positions, 210–212 ample discretion principle, 321
Canada Health Act, 232 and capacity to choose and understand, 123

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 362  Index

hard paternalism, 108 cultural relativism, 87

and inability to communicate, 140 culture, and sympathy, 284
meaning of, 111–112 cutting-edge medicine, 328–329
and patient autonomy, 92
presumptively morally permissible decisions, 213 D
psychiatric evaluation, 116–120 debate, 212
and right to refuse treatment, 111–113 deductive arguments, 4–5
valid consent, 321–326 defining the issue, 205
complementary and alternative medicine (CAM), delay, and doubt, 126–129
312, 329 deontology, 34
see also alternative medicine (case) derivation, 170
complementary medicine, 304 descriptive ethics, 18
see also alternative medicine; alternative medicine empirical study, 19
(case) vs. normative ethics, 18
conceptual analysis, 135 descriptive moral claims, 75
conclusion, 1–2, 4, 12, 170 difference principle, 50, 52–53, 244
conclusion indicators, 2 A Different Voice (Gilligan), 58
conditional contract, 183 dilemma, 151
consciousness, 167, 187–188 diminishing marginal utility of money, 247
consent disability, discrimination against, 177–180
and C-section by choice, 224 disaster scenarios. See microallocation of scarce
consensual private incest, 152 resources (case)
decision-making capacity, and legal standards, 323 discrimination
informed consent, 39, 92–93, 120, 123, 224 against the disabled (abortion case), 177–180
meaning of, 337n2 reverse discrimination, 274
right to refuse treatment, 92–93, 119–124 unjust discrimination, 177–178
tacit consent, and abortion, 182 wrongfulness of, 177–178
valid consent, 92–93, 119–120 dispositional view of moral properties, 76, 77, 81
voluntary euthanasia, 139 division of labour objection, 329–334
consequentialism, 24, 25, 27–28, 31, 56, 65n13 doctrine of the mean, 55, 68n57
consequently (conclusion indicator), 2 “don’t ask, don’t tell,” 295
conservative arguments, against abortion, 162, Doran’s pluralistic approach to ethics, 70–75
169–185 double jeopardy, 118
contraception, 197n7 doubt, and justification of delay, 126–129
contraception objection, 174–175 Down’s syndrome, 161, 162, 179
and early abortions, 190 see also abortion (case)
contractarian theory. See social contract theory drunk persons, 296
contractarianism, 249 duty
contradiction in conception, 36 all things considered, 44
contradiction in will, 36 of beneficence, 67n42
contrarian ideas, 82–84 dysphagia, 92
cortex, 188
counterexamples, 9–11, 74, 143, 149, 152, 186, 288, E
291, 305, 316, 317 early abortion, 189–190
see also specific cases Edwards, Jonathan. See right to refuse treatment
Cowart, Donald (Dax), 124 (case)
Criminal Code, 161 egalitarian argument, 248
criticism, responding to, 305 self-respect argument, 255–257
CSBC. See Caesarean section by choice (CSBC) (case) two-tier MRI (case), 253–257
CTAS. See Canadian Triage Acuity Scale (CTAS) embryo, 166, 172
CTAS National Working Group, 277 emergency departments. See microallocation of
cultural imperialism, 87 scarce resources (case)

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 Index  363

empirical matters excusable behaviour, 268

and moral reasoning, 207 excuse, 282
reasonable guesses, 284 experience machine, 29
end, 38, 39 experimental medicine, 328–329, 338n8
the environment, 62 see also alternative medicine (case)
epidemics, 271–272 experts, ignoring, 104–111
epistemic problem, 80 see also right to refuse treatment (case)
epistemology, 89 exploitative relationships, 60
equal consideration, 24, 26–27, 29–31 extremitarianism, 297
equal treatment, 26–27
equality. See egalitarian argument F
equivocation, 13, 175–177 fair equality of opportunity, principle of, 50
ethical inquiry, 18–21 fair innings argument, 290
ethical objectivism, 23 fair turn, 290–292, 295
ethical relativism, 21–23, 64n8, 284 fairness
ethical subjectivism, 64n8 humanized impartiality, 285–286
see also ethical relativism impartiality, 279, 282, 285–286
ethics justice as fairness, 49–53
vs. morality, 64n1 microallocation rules, 279–282
types of ethics. See specific types of ethics strict impartiality, abandonment of, 285–286
ethics of care, 58–62, 73 fallacy
caring relationships, 60–61 ad hominem, 14–15
difficulties with, 60–61 appeal to emotion, 13–14
health care ethics, application to, 59–60 circular argument, 11–12, 79
moral knowledge, 59 common fallacies, 11–15
partiality, implications of, 118, 128 defined, 11
perspective of caring, 59 equivocation, 13, 175–177
and relationships, 60–61 false dilemma, 13
and right to refuse treatment, 118, 126 straw man, 14
status-oriented feminist approaches, 61–62 false dilemma, 13
euthanasia, 132 feminism
see also MAID (medical assistance in dying); and Caesarean section by choice (CSBC), 211
MAID (medical assistance in dying) (case) defined, 57
active euthanasia, 132, 138–139 ecofeminists, 62
best interests, 136 and ethics of care, 61–62
CMA definition, 137 feminist ethics, 57–58
definition of, 134–137 and justice as fairness, 51
etymology of, 134 and power, 57
involuntary euthanasia, 139–140 status-oriented feminist approaches, 61–62
kinds of euthanasia, 137–140 and traditional ethical approaches, 58
vs. MAID, 140 feminist ethics, 57–58
moral permissibility of, 141 fetus, 166
non-human animals, 135, 153–154 see also abortion; abortion (case)
non-voluntary active euthanasia (NAE). See non- and consciousness, 167, 187–188
voluntary active euthanasia (NAE) cortex, 188
non-voluntary euthanasia, 139 defined, 166
passive euthanasia, 132, 138–139 development of, 166–167
use of term, 132 future of value, 174
voluntary active euthanasia (VAE). See voluntary and genetic code, 169–172
active euthanasia (VAE) pain, ability to feel, 167, 188
voluntary euthanasia, 139 FIGO. See International Federation of Gynecology
exceptions, 144, 284 and Obstetrics (FIGO)

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 364  Index

first come rule, 280–281 hedonism, 24

Foot, Philippa, 156–157 and classical utilitarianism, 26
for (premise indicator), 2 objections against, 28–29, 30–31
fraud, 250–251 and well-being, 65n16
free choice, 120, 123 hence (conclusion indicator), 2
frog toxin counterexample, 317 Hobbes, Thomas, 47–49, 82
Frye, Marilyn, 62 home birth, 219–220, 226
hopeless second rule, 281, 287–288
G human-sympathy metarule, 83–84
gametes, 192 see also sympathy metarule
genetic code, 169–172 humanity, 38, 39
genetic humanity, 172 humanity test, 39–43
Gilligan, Carol, 58, 211 humanity version of the categorical imperative,
given that (premise indicator), 2 38–40
glossary of terms, 339–358 humanized impartiality, 285–286
God arguments Humboldt Broncos, 303n1
God’s creation argument, 150–151 hypothermia, 328
sacredness of human life, 145–146 hypothetical cases, 287–288
“God Committee,” 291 hypothetical imperatives, 34–35
Golden Rule, 67n36, 149 hysterectomy, 206
good reason requirement, 215–216, 220–221
good will, 35 I
governmental-level allocation. See macroallocation ideal observer theories, 242
The Groundwork of the Metaphysics of Morals (Kant), illustration, of principle, 282
248 impartiality, 279, 282, 285–286
imperatives (commands) of morality, 35
H imperfect duty, 36
hard paternalism, 108 incest, 152
Hare, R. M., 148 incompetent individual
harm ample discretion principle, 321
harm avoidance, 326–329 and non-voluntary active euthanasia, 158
non-human animals, 41–42 and right to refuse treatment, 114–116
potential harms, and CSBC, 214–226 soft paternalism, 108
serious harms, 328 inconsistency, 23
and two-tier MRI, 256–258 indeterminacy objection, 319–321
unfair harms, 328 individual-level allocation. See microallocation of
harm avoidance, 326–329 scarce resources (case)
health care inductive arguments, 6–7
see also two-tier MRI (case) infectious diseases, 296
allocation of health care. See microallocation of informed consent, 39, 92–93, 120, 123, 224
scarce resources (case) innocents
blended private/public health care system, 232 counterexamples, 147
Canada’s current public health care system, 264 innocents first principle, 294–295
investment in, 260 moral guilt or innocence, 293–294
“ jumping the queue,” 237 rule against killing, 25–26
as positive right, 243 Sanctity of Life principle, 145
private health care, 233 innocents first principle, 294–295
public health care, 233 institutional-level allocation. See mesoallocation
in United States, 267 instrumentally good, 26
health care ethics, 17, 18 insufficient resources. See microallocation of scarce
ethics of care, application of, 59–60 resources (case)
reasoning, and solutions, 20 internalism, 77

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 Index  365

International Federation of Gynecology and L

Obstetrics (FIGO), 206, 208 Lamb, Julia, 135
intrinsically good, 26 Latimer, Robert, 139
intuitionism, 45 Latimer, Tracey, 139
see also pluralistic deontology laws, 141
intuitive appeal of arguments, 246 legal principles, 323
invalid argument, 5, 175 legal rights, 141
involuntary euthanasia, 139 Level 1, 273
irrational rule worship, 34 libertarian argument
IVF (in vitro fertilization), 172 compassion objection, 251–253
complicity objection, 250–251
J intuitive appeal, 246
Jehovah’s Witnesses, 225 negative rights, 243
“ jumping the queue,” 237 objections raised by, 247
justice as fairness, 49–53 positive rights, 243
justice principles, 249 redistributive taxation, 245–250
justification, 282 two-tier MRI (case), 242–253
Wilt Chamberlain example, 244–245
K liberty
Kant, Immanuel, 34, 82, 248 individual liberty, 105
see also Kant’s ethics interference with, and autonomy, 106–107
Kantians, 71–72 liberty principle, 106
see also Kant’s ethics life criterion, for right to life, 186–187
Kant’s ethics, 34–43 lifespans, 291–292
the categorical imperative, 36 Lindemann, Hilde, 57, 58
categorical imperatives, 34–36, 319 Locke, John, 82
contradiction in conception, 36 logic, 4–5, 175–177
contradiction in will, 36 lorry driver counterexample, 148–149
end, 38, 39 Lutherans for Life–Canada, 146
humanity, 38, 39
humanity test, 39–40 M
hypothetical imperatives, 34–35 macroallocation, 279, 288
imperatives (commands) of morality, 35 magnetic resonance imaging (MRI), 232
imperfect duty, 36 see also two-tier MRI (case)
means, 38, 39, 42, 248–249 costs of, 237–238
moral worth, 34–35 government investment in, 238
objections to, 40–43, 72 wait times, 233, 238
perfect duty, 36 MAID (medical assistance in dying)
physician’s duty, 332 see also MAID (medical assistance in dying)
rational beings, 38–39, 39 (case); voluntary active euthanasia (VAE)
rational nature, 39 defined, 132
rationality, and possession of moral rights, 198n17 vs. euthanasia, 140
sanctity of human life, 146, 147 MAID (medical assistance in dying) (case)
things, 39 Autonomy and Best Interest argument, 142–145,
universal law test, 37–38, 40–43 152
universal law version of the categorical impera- counterexamples, 143–144, 152
tive, 36–38 description, 133–140
killing different kinds of euthanasia, 137–140
rule against killing innocents, 25–26 euthanasia, definition of, 134–137
Sanctity of Life. See Sanctity of Life principle God’s creation argument, 150–151
King, Martin Luther, Jr., 255 Hare’s lorry driver counterexample, 148–149,
Kohlberg, Lawrence, 58 156–158

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 366  Index

issues in debate, 141 non-clinical factors, 278, 292, 293–300

MAID vs. euthanasia, 140 opening scenes, 272–276
moral reasons against killing, non-application original position, 279, 281
of, 150 practice standards, 286
morality of NAE, 152–158 public interest, 297–298
morality of VAE, 141–152 reflective equilibrium, 289
original position, 141 statement of positions, 278
Sanctity of Life principle, 145–147 substantial benefit, 289–290
suicide counterexample, 148 sympathy metarule, 279–280, 282–287
Marissa and Don case. See abortion (case) third-party interests, 296–297
Marquis, Don, 173–177 traditional triage practices, 281
maternal mortality, 222 use of term, 279
maxim, 36 virtue ethics perspective, 286–287
maximal equal basic liberties, principle of, 50 worst first rule, 280, 295
maximin, 50, 68n54 midwives, 219–220, 225, 311
mean, doctrine of the, 55 Mill, John Stuart, 24, 105, 110
means, 38, 39, 42, 248–249 see also utilitarianism
medical assistance in dying. See MAID (medical minimization of overall suffering, 10–11
assistance in dying) minimize YPLL (years of potential life lost) rule,
medical benefit, 299 288–289
medical interests, 298–300 mitigation, 282
Medical Services Plan (MSP), 311 money, diminishing marginal utility of, 247
medicalization, 214 moral antirealism, 75
Medicare. See two-tier MRI (case) moral arguments, 7–8
mesoallocation, 279, 288 moral claims, 77
metaethics, 18, 20, 75, 76–77 moral coding, 80
metaphysical problem, 80 moral development, 58–59
metaphysics, 89 moral equivalency, the problem of, 22
metarule, 279 moral humanity, 172
see also sympathy metarule moral infallibility, the problem of, 21
microallocation of scarce resources (case) moral knowledge, 59
Canadian Triage Acuity Scale (CTAS), 277, 280 moral loss, 176
clarification of the case, 276 moral pluralism, 71, 73–75
clinical factors, 278, 279–292 see also pluralistic deontology
closing (collecting our thoughts), 300–301 moral principles, 8
counterexample, 288 evaluation or testing of, 9
fair turn, 290–292, 295 vs. legal rights, 141
fairness of microallocation rules, 279–282 and normative ethics, 19–20
first come rule, 280–281 qualifications, 328
“God Committee,” 291 moral realism, 75
hopeless second rule, 281, 287–288 moral relativism, 21
humanized impartiality, 285–286 see also ethical relativism
hypothetical case, 287–288 moral worth, 34–35
identification of relevant facts, 276 morality
innocents first, 294–295 codifiability of morality, 80
medical interests, 298–300 vs. ethics, 64n1
minimize YPLL (years of potential life lost) rule, first-order issues, 76
288–289 objective morality, 76–77
moral issues raised, 277–278 and rationality, 198n17
moral responsibility, 293–294 morbidity, 207
nepotism, 284–286 Morrison, Toni, 136

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 Index  367

MRI. See magnetic resonance imaging (MRI) morality of, 152–158

multiple sclerosis (MS), 92 never-best-interest objection to NAE, 157–158
see also right to refuse treatment (case) slippery-slope objection, 153
myocardial infarction (MI), 273 non-voluntary euthanasia, 139
Noonan, John T., Jr., 169–172
N normative ethical theory, 17, 24, 70–71
NAE. See non-voluntary active euthanasia (NAE) normative ethics, 17, 18–21, 64n2, 75, 78–79
Nancy B. case, 138 vs. descriptive ethics, 18–19
National Institute for Health and Care Excellence evaluation of, 19–20
(NICE), 208–209 first-order issues, 76
natural advantages, 176 good reasoning, 19
natural birth, 202, 203, 215 key concepts, identification of, 19
see also Caesarean section by choice (CSBC) (case) vs. metaethics, 20, 75–76
nature, state of, 47–49 and moral principles, 19–20
naturopath, 311 relevant facts, 19
negative rights, 243 Nowell-Smith, Patrick, 148–149
nepotism, 284–286 Nozick, Robert, 29, 244–245
neutral loss, 176
never-best-interest objection, 157–158 O
non-clinical factors (microallocation rules), 278, objective intrinsic goods, 30–31
292, 293–300 objective moral truths or facts, 75
innocents first, 294–295 objective morality, 76–77, 79
medical interests, 298–300 objective truth, 21
moral responsibility, 293–294 objectivity, concept, 64n6, 91n
public interest, 297–298 observations, 9
third-party interests, 296–297 On Liberty (Mill), 105, 110
non-consequentialism, 34 optimific act, 25, 32
non-hedonistic utilitarianism, 30–31 optimific rule, 32
non-human animals organ transplants, 171
ecofeminism and, 62 original position, 49–50, 51, 83–86
and ethics, 87–89 see also sympathy metarule
euthanasia, 135, 153–154 abortion (case), 168, 179
harm to, 41–42 Caesarean section by choice (CSBC) (case), 215,
and Hobbes’s social contract theory, 48–49 223
and humanity test, 41 MAID (medical assistance in dying) (case), 141
Kant’s ethics, 41 microallocation of scarce resources (case), 279,
moral obligations to, 18 281
practical social contract theory, 87–89 right to refuse treatment (case), 104, 106
rationality criterion, 186, 192–193 two-tier MRI (case), 241, 255–256
right to life, 189, 193–195 “ought implies can,” 252, 287
social contract theory, 49, 51, 72 ova, 174
utilitarianism, 65n17
vegetarianism, 78, 195–196 P
virtue ethics, 72–73, 81 pain
xenotransplantation, 171 ability to feel pain, 167, 188
non-interference, rights to, 243 and medical judgment, 280
non-maleficence, 331 palliative care, 334
non-moral claims, 77 parents, interests of, 296
non-voluntary active euthanasia (NAE), 132 passive euthanasia, 132
Foot’s objection, 156–157 vs. active euthanasia, 132, 138–139
and incompetence, 158 and best interest, 143

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 368  Index

and intention, 138 preferential treatment. See microallocation of scarce

Nancy B. case, 138 resources (case)
paternalism, 320 premise indicators, 2
hard paternalism, 108 premises, 1–2
justification of, 108 prescriptive ethics, 18
right to refuse treatment (case), 103, 106–107, see also normative ethics
108, 125 prescriptive moral claims, 75
soft paternalism, 108 presumptively morally permissible decisions, 213
strong paternalism, 125 prima facie duties, 43–44, 332–333
weak paternalism, 86, 125 primary social goods, 51–52, 241, 261–263
patient safety, 128–129 principle of charity, 66n33, 171
perceptual capacity, 78–79 principle of fair equality of opportunity, 50
perfect duty, 36 principle of maximal equal basic liberties, 50
permanent coma, 192 principlism, 46, 331
perspective of caring, 59 private, for-profit health care. See two-tier MRI (case)
philosophical methodology, 9–11 private education, 254–255
philosophy, vs. debate, 212 private health care, 233
physician-assisted suicide, 137 the problem of moral equivalency, 22
see also MAID (medical assistance in dying); the problem of moral infallibility, 21
MAID (medical assistance in dying) (case); prolapse, 202
voluntary active euthanasia (VAE) pseudo-science, 305
placebo effect, 312 psychiatric evaluation, as proof of competence,
placenta accreta, 207 116–120
placenta percreta, 207 psychic surgery, 331–333
plague victims, 146–147 public health care, 233
Plato, 82, 89 public interest rule, 297–298
pluralism, 43
pluralistic deontology, 43–46, 74 Q
duty, all things considered, 44 quadriplegic, 139
prima facie duties, 43–44 qualifications, to moral principles, 328
rational intuition, 44 queue, 143, 237
politicians, and two-tier health MRI, 264–266
positive character traits, 54 R
positive rights, 243 radiotherapy, 307
potential rape, and abortion, 182, 197n6
harms, and CSBC, 214–226 rational beings, 38–39, 188–190, 192–195
and value, 174 rational intuition, 44
power, 57 rational nature, 39
practical ethics, 18 rationality, 89
practical social contract theory, 82–89 less rational individuals, 192–193
choosing moral rules, 82–84 and non-human animals, 186, 192–193
committee metaphor, 84–86 non-rational individuals, 193–195
cultural relativism, 87 and possession of moral rights, 198n17
ethics regarding non-humans, 87–89 rationality criterion, for right to life, 185–186,
human-sympathy metarule, 83–84 188–190, 192–195
original position, 83, 84–86 rationing health care, 138
veil of ignorance, 83, 84–85 Rawls, John, 49–53, 82, 106, 249
video game metaphor, 86 realist theory, 75
Warren’s use of social contract theory, 86–87 reasonable person test, 113, 221
prayer, 115, 333–334, 338n9 recusal, 284
preferences, informed, 30 redistributive taxation, 245–250

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reflective equilibrium, 10, 90n4, 195, 289 Lutherans for Life-Canada, 146
refusal of treatment. See right to refuse treatment (case) and voluntary active euthanasia, 145–147
Regan, Tim. See MAID (medical assistance in dy- scarce resources. See microallocation of scarce
ing) (case) resources (case)
relevant facts, 30 scientific, meaning of, 305
see also specific cases seat belt legislation, 86, 107
religion. See God arguments secondary quality view, 76
remission, 305 see also dispositional view of moral properties
revised statements, 144 self-defence, 146, 151
rhythm method, 197n7 self-determination. See autonomy; right to
right to ignore experts, 104–111 self-determination
right to life. See abortion (case) self-interest, 47, 223
right to refuse treatment (case) self-regarding duties, 223
clarification of premises, 105–108 self-respect argument, 255–257
competence, and psychiatric evaluation, 116–120 sentience
competence of Edwards, 111–113 fully sentient, 188
doubt, and justification of delay, 126–129 necessity of, for right to life, 191–192
gangrenous foot example, 113–114 objections to sentience criterion, 187–196
health care team, error of, 108–111 and rationality, 188–190
identification of relevant facts, 100–102 sentience criterion, for right to life, 187–188
incompetence to refuse medical care, 114–116 sufficiency of, for right to life, 190–191
informed consent, 92–93, 120, 123 September 11 terrorist attacks, 148
liberty principle, 106 sex-selective abortion, 179
moral issues raised by the case, 102–103 Shafer-Landau, Russ, 41
objections to premise, 111–129 Sherwin, Susan, 57, 58, 61, 62
opening scenes, 94–99 since (premise indicator), 2
original position, 104, 106 situational ethic, 25
paternalism, 108, 125, 339 skepticism without reason, 114–116
reasonable person test, 113 slippery-slope objection, 153
right to ignore experts, argument for, 104–111 so (conclusion indicator), 2
right to self-determination, 104–107 social contract theory, 46–54, 72
skepticism without reason, 114–116 abortion, 168, 194
social contract theory, 104 cultural relativism, 87
standard form, 104–105 difference principle, 50, 52–53
statement of positions, 102–103 ethics regarding non-humans, 87–89
valid consent, 92–93, 119–124 Hobbes’s social contract theory, 47–49
validity of refusal, 119–124 human-sympathy metarule, 83–84
virtue, vs. right to refuse, 124–126 ideal social contract, 83
right to self-determination, 104–107 justice as fairness, 49–53
robust advantage principle, 259, 266 maximin, 50
Rodriguez, Sue, 137 moral obligations, 48–49
Ross, W. D., 43–46, 331 objections to, 48–49, 51–53, 72
Rousseau, Jean-Jacques, 82 original position, 49–50, 51, 83–86
rule utilitarianism, 32–34 practical social contract theory, 82–89
rules, 33–34, 194, 265 and rationality, 89
Rawls’s social contract theory, 49–53
S right to refuse treatment (case), 104
sacredness of human life, 145–146 robust advantage principle, 259
Sanctity of Life principle self-interest, 47, 50
counterexamples, 146–149 state of nature, 47–49
God’s creation argument, 150–151 sympathy metarule, 194

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 370  Index

two-tier MRI, 259–260 two-tier health care. See two-tier MRI (case)
veil of ignorance, 50, 83, 84–85 two-tier MRI (case)
Warren’s use of, 86–87 see also magnetic resonance imaging (MRI)
social institutions, 242 argument by analogy, 254
social safety net, 249–250, 259–260 benefits to public health care system, 258
Society of Obstetricians and Gynaecologists of Canada’s current public health care system, 264
Canada, 208 clarification of the case, 236–240
soft paternalism, 108 closing arguments, 266–268
sound argument, 5 compassion objection, 251–253
special relationships, 29–30 complicity objection, 250–251
speculation, 305 effect of, 256
sperm, 174 egalitarian argument, 248, 253–257
sports, participation in, 239 harm to public health care system, 256–258
standard form, 2, 3, 104–105, 213 ideal observer theories, 242
Stangl, Fritz, 60 identification of relevant facts, 236–240
Stangl, Teresa, 60 individual perspective, 264–266
state of nature, 47–49 “ jumping the queue,” 237
status-oriented feminist approaches, 61–62 libertarian argument, 242–253
straw man fallacy, 14, 66n33 means, treatment of people as, 248–249
stress incontinence, 202 moral issues raised, 240–242
strict impartiality, 285–286 moral permissibility of, 233–234
strong argument, 6 opening scenes, 234–236
strong paternalism, 125 original position, 241, 255–256
subjective moral truths or facts, 75 political perspective, 264–266
substantial benefit, 289–290 primary social goods, 261–263
substantive moral claim, 7 redistributive taxation, 245–250
suicide, 136–137, 148 robust advantage principle, 259, 266
Supplementary Benefits Program, 311 self-respect argument, 255–257
surface grammar, 76 social contract theory, 259–260
sympathy metarule, 194, 265, 279–280, 282–287 sympathy metarule, 265
two-tier arguments, 257–263
T virtue-based view, 260–263
temporary coma, 191–192 Wilt Chamberlain example, 244–245
theft, 250–251
theological views. See God arguments U
therefore (conclusion indicator), 2 unconventional health care services. See alternative
things, 39 medicine (case)
third-party interests, 296–297, 326 unequal access to health care. See two-tier MRI
Thomson, Judith Jarvis, 181–185 (case)
thought experiment, 9–11 unfairness, 176
thromboembolism, 222 United States, health care in, 267
thus (conclusion indicator), 2 universal care, 232
tolemin, 68n54 see also two-tier MRI (case)
Tong, Rosemarie, 61 universal law, 36
treatment, refusal of. See right to refuse treatment formulation of the categorical imperative, 36–38
(case) test, 37–38, 40–43
triage, 271 unnecessary medical procedures, 225
see also microallocation of scarce resources (case) unsound argument, 5
triage nurses. See microallocation of scarce resources US Public Health Service, 22–23
(case) utilitarianism
Trojan Horse, 91n17 bad, defined, 27
Tuskegee syphilis experiments, 22–23 classical act utilitarianism, 24–32

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 Index  371

consequentialism, 24, 25, 27–28 virtue theory, 72–73

equal consideration, 24, 26–27, 29–31 virtuous character, 54–55
good, defined, 27 virtuous person. See virtuous person
hedonism, 24, 26, 28–29 virtue theory, 72–73
non-hedonistic utilitarianism, 30–31 see also virtue ethics
objections, 27–30, 71 virtuous person, 55–56, 58, 72, 76, 81–82, 183
redistributive taxation, 247 virtuous society, 251–252
responses to objections, 30–32 Vital Signs/True Sport Foundation study, 239
rule utilitarianism, 32–34 voluntary active euthanasia (VAE), 132
theory of right action, 64n12 see also MAID (medical assistance in dying);
MAID (medical assistance in dying) (case)
V advance directives, 158
VAE. See voluntary active euthanasia (VAE) Autonomy and Best Interest argument, 142–145
vaginal delivery, 206–208 Christian-inspired argument in support of, 149
see also Caesarean section by choice (CSBC) (case) God’s creation argument, 150–151
valid argument, 4–5, 175 Kantian-inspired argument in support of, 149
valid consent, 92–93, 119–120, 321–326 moral permissibility, 141–142
valid refusal, 119–124 and moral reasons against killing, 150
vasectomies, 225 morality of, 132–133, 141–152
vegetarianism, 78, 195–196 Sanctity of Life principle, 145–147
veil of ignorance, 50, 83, 84–85 slippery-slope objection, 153
violation of rights, 250–251 voluntary euthanasia, 139–140
violence, 250–251 vulnerable people, protection of, 215
violinist example, 181–185
virtue, 54 W
virtue ethics, 54–57 Warren, Mary Anne, 172
abortion, 180–181 weak arguments, 6–7
Aristotle’s virtue theory, 54–57 weak paternalism, 86, 125
compassion objection, 251–253 Wendy’s CSBC case. See Caesarean section by
and consequentialism, 56 choice (CSBC) (case)
defended, 79–82 will, 36
doctrine of the mean, 55 Williams, Nancy, 61
Foot’s objection to NAE, 156–157 women
ideal observer theories, 242 see also abortion (case); Caesarean section by
moral character, 54 choice (CSBC) (case)
moral claims, 75 bodily integrity, right of, 179
objections, 79–82 breastfeeding, 219
objections to, 55–57, 72–73 mother’s right to autonomy, 199
Patrick’s approach to ethics, 75–82 rape, and abortion, 182, 197n6
perceptual capacity, 78–79 World Trade Center, 148
right to life vs. virtues, 181–185 worst first rule, 280, 295
right to refuse treatment, 124–126
rights in, 252 X
and social institutions, 242 xenotransplantation, 171
sympathy metarule, and microallocation rules,
286–287 Z
two-tier MRI, 260–263 zygote, 166, 174, 192
vegetarianism, 195–196

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Debating Health Care Ethics begins with an excellent overview of the nature of arguments,
philosophical methodology, and normative ethical theory. In the remaining chapters, the
authors explore moral problems in health care of interest to Canadians through dramas,
case studies, and dialogues. This approach makes vivid these real-world issues and demon-

Findler, Smolkin, and Bourgeois

strates how arguments are developed, as well as criticized, defended, and reformulated,
from multiple philosophical perspectives to deal with these moral problems.

Rich with boxed features that encourage reader participation and demystify complex con- Patrick Findler
cepts, this new edition includes an expanded discussion on feminist ethics, a case study on
euthanasia that highlights recent changes to Canadian law, and an update on fetal conscious- Doran Smolkin
ness that informs the debate on abortion. Supplementary resources available to instructors
include an ethics case reporting form, a sample syllabus, and sample essay and exam ques- Warren Bourgeois
tions. This engaging and accessible edition will greatly benefit students in philosophy, health
studies, and nursing.

Findler, Smolkin, and Bourgeois tackle a wide range of complex issues in a manner
that is at once unique and sophisticated. Its extensive Canadian content makes this
book essential for students planning to work in the health care system of this country
and an excellent choice for instructors tasked with preparing them. Written in a way
that effectively mimics the Socratic method of debate, readers are quickly drawn in

Debating
a symphony of dialogue between the three authors. If the essence of philosophy
can ever be captured in a movie script, this is the way to do it.

Debating Health Care Ethics

— Mazen M. Guirguis , Ph.D., Department of Philosophy,

Health Care
Kwantlen Polytechnic University

The use of dialogue provides an effective model of how to engage in civil discourse
on controversial topics about which reasonable people might disagree. It is unique in
its inclusion of a chapter on philosophical arguments and method in addition to the
more standard chapter on moral theory. These two aspects make this textbook an
accessible resource for students of health care ethics who are new to philosophy.
— Meredith Schwartz , Ph.D., Department of Philosophy,
Ethics
Ryerson University
Canadian Contexts
Patrick Findler is a member of the Department of Philosophy at Kwantlen Polytechnic
University, who specializes in ethics, metaphysics, and the philosophy of sport.
Doran Smolkin is a member of the Department of Philosophy at Kwantlen Polytechnic
University, who specializes in moral philosophy.
Warren Bourgeois is a Professor Emeritus from the Department of Philosophy
at Kwantlen Polytechnic University, who specializes in environmental ethics,
moral philosophy, and the nature of persons.
EDITION
SECOND

SECOND
EDITION