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2. FACTORS AND FOUNDATIONS I: THE VALUE OF

EQUITY AND DIGNITY

In Chapter 1, we identified the following three fundamental tasks for

normative ethics:

I. Identify the moral factors.

II. Identify how those factors interact to determine the overall moral
status of the action.

III. Provide a principled, or foundational explanation for the answers

to 1 and 2.

The purpose of this chapter is to illustrate these tasks by looking at two

applied contexts: the allocation of scare medical resources and the policing
practice of “street check” or “stop-and-frisk.” While our focus will
primarily be on the first two tasks, our discussion will also attempt to
illustrate the role that the foundational theories play in determining what
types of factors and why it is important to determine the type of factor in
order to understand how those factors interact with other factors. In doing
this, one central aim of the chapter is to illustrate why it matters what
language and concepts we use to frame a given issue, specifically with
respect to contrast between the logic of rights and the logic of interests.
(This is a theme we will come back to and explore in more detail later in the
course.)

2.1. Pragmatism and the Allocation of Medical Resources

During the height of the Covid-19 pandemic, many hospitals had far more
patients requiring ICU (Intensive Care Unit) treatment than there were ICU
units available. This means that hospitals around the world had to develop
triage procedures, that is, principles for deciding who gets priority use of
those units. Since the development of Covid vaccines, hospitals are no
longer under the same strain from that particular disease. However, the
same underlying issue of access to scare medical resources applies to many
other instances, from organ donor lists to experimental treatments. In the
following article, the author contrasts two fundamental types of moral
factor:

UTILITY EQUITY
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Utility is the fundamental type of moral factor picked out by utilitarianism.

Equity, as we will see below, can either be thought of in utilitarian or
deontological terms, depending on how one thinks it contributes to the
overall moral status of something. If equity is just one good among many
potential benefits, then it is something to be traded against in a purely cost-
benefit analysis manner. If, on the other hand, equity acts as a type of
constraint against the pursuit of utility, then it is a deontological concept. As
you read the article pay attention to how the author understands the
concepts of “utility” and “equity.” What does it mean to base triage on
utility? What specific facts are relevant to utility? What does equity consist
in? Is equity a good or a constraint?
Click on the image below to link to the article (and then read the article):

Notice that when the author, Angela Ballantyne, introduces utility and
equity as moral factors, she characterizes them in terms of a “trade-off”:
These values are direct trade-offs. We can save more lives or we save
a more diverse group of lives. There is no perfect algorithm but we
need to identify an acceptable balance.
The author is treating equity here, not as a deontological side-constraint, but
as an interest or good that be traded-off against other interests. This is what
makes the view consequentialist. However, it is important to distinguish
two different types of consequentialist views at this point, what I’ll call
utilitarianism and pragmatism. Again, these can be understood in terms of a
set of claims about moral factors and their interaction.

Utilitarianism
UTILITY THESIS: The only morally relevant factors are those that
contribute to increasing utility in some quantifiable way.
MAXIMIZING THESIS: The overall moral status of an action is
determined by what maximizes utility.
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Pragmatism
PLURALIST THESIS:There are multiple qualitatively distinct types of
goods, such as equity.
DUE BALANCE THESIS: The overall moral status of an action is
determined by achieving a due balance of the relevant moral factors.

Equity is a distinct type of moral good from utility. As a moral factor,

“utility” refers to a rather narrow range of factors that has to do with some
quantifiable notion of goodness. In some context this might refer to financial
cost; in this case, it refers to the number of lives saved. To group a set of
factors such as “likelihood of recovery” or “expected time to recovery”
under the heading of “utility” is to see them as relevant to determining how
to save the greatest number of lives.
The first way that pragmatism differs from utilitarianism is in recognizing
qualitative types of moral facts, for example considerations having to do
with equity and diversity. The second way in which pragmatism differs is
in rejecting the maximizing claim and instead requiring a proper balance
among qualitatively distinct types of moral factors.
To bring the discussion back to triage policy, there are essentially two moral
factors, one corresponding to utility and one to equity:

F1. The triage policy will save X number of lives.

F2. The triage policy will promote equity to Y degree.

There is no easy answer to the question of what counts as a “proper

balance” between these factors. This is one consequence of recognizing
goods which cannot be reduced to or expressed in terms of something
quantifiable. One must make a qualitative judgment as to how much
weight to attach to these different types of goods.
Fortunately, the fact that there is no ideal algorithm doesn’t mean that there
aren’t considerations that can tip the scales in one direction or the other.
For example, the author notes that, when it comes to COVID-related
diagnoses, there are many uncertainties. This fact needs to be taken into
account when we are weighing factors on the utility side:
If we are going to deny specific patient’s access to ICU on the
grounds of population utility we need a high degree of confidence
in the clinical evidence…
Where there is uncertainty, we should err on the side of broader
rather than stricter clinical criteria; meaning a wider range of
patients get a shot at ICU, even where this is likely to be less efficient
overall.
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The uncertainty speaks to lowering the weight we attach to considerations

of utility. There are also things to be said in favour of giving sufficient
weight to considerations of equity and other morally significant values:
Regardless of the specific number of patients who survive severe
COVID19, we will need to tell a story about the values that guided
us as a community in a time of crisis. The narratives that emerge
during this pandemic will have a lasting legacy in bioethics. Public
interest requires the responsible use of resources. But this does not
exclusively entail maximizing utility. There is public interest in re-
affirming human rights, the value of diversity, promoting fairness,
and resisting entrenched privilege.
There likely is no one ratio of utility to equity that is morally acceptable;
rather, there is likely to be some reasonable range where different hospitals
might choose to balance in slightly different ways. The point is that there
are other goods and those goods ought to be given substantial weight in
determining the overall moral status of a policy.

2.2. Street Checks and Dignity

Next, we will look at the controversial policing practice of “street checks,”

also known as “stop-and-frisk.” We will look at two different readings. The
first is an article written for the online publication The Conversation, which
aims to present academic research in a journalistic style in order to reach a
broad audience of non-specialists and non-academics. The second is a
memorandum written by Pivot Legal Society to the Director of Police
Services’ Street Checks Committee in which Pivot advocates for Vancouver
Police Department to abolish the practice of street checks.
In the piece for The Conversation, the authors – criminologists Henry
Fradella and Michael White – distinguish between two importantly
different practices which the phrase “stop-and-frisk” can be used to
describe. One practice is that of stopping, questioning, and sometimes
searching individuals when the police officer has a reasonable suspicion that
those individuals in actively engaged in a criminal activity. For example in
the case of Terry v. Ohio, which set a legal precent for the practice in the
United States, police observed two black men walking up and down a street
and repeatedly peering into a store window. Eventually, they were joined
by a white man, at which point, the police officers intervened, stopping and
frisking all three suspects. The pat-down revealed the men to be carrying
illegal firearms and tools typically used for burglary.
The second practice is that of stopping individuals where there is no
reasonable suspicion of criminal activity. This can be used as part of a much
broader strategy for advancing “public safety.” The authors state at the
outset that this second practice is “illegitimate,” and fails to follow the legal
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requirement established by the Terry case that a person may only be

stopped if there is reasonable suspicion of criminal activity.
The Pivot memo specifically addresses this second practice, which they
refer to as “street checks” or “carding” and define as “the unregulated
practice of stopping people for information, including identification,
outside of a police investigation.” In this memo, Pivot advocates that “The
Director of Police Services should adopt a policy prohibiting the practice of
street checks.”
As a legal society, the Pivot memo is partly concerned with the legality of
this practice, specifically as it relates to Canada’s Charter of Rights and
Freedoms. We will look at certain aspects of our Charter-rights later in the
course. For now, you should focus on the moral analysis. What are the
moral factors that they identify as relevant to the practice and how should
we conceive of those factors (e.g. as constraints or values)? Pay particular
attention to the section in which they discuss “social harms.”
Click on the images below to link to the articles (and then read the articles):