Mark D. White
It is no surprise that The New York Times columnist Mark Bittman laments the judicial rejection of New York City mayor Michael Bloomberg's ban on large sodas. Unfortunately he resorts to slander when addressing its opponents:
The argument that preventing us from buying 32 ounces of liquid candy in one container somehow restricts our “liberties” can be seriously made only by those who would allow marketing of tobacco to children.
I would hope that Mr. Bittman realizes that paternalistic intervention has significantly different ethical implications when directed towards children rather than adults. Or perhaps he doesn't, as indicated later in the piece:
If 16 ounces of soda isn’t enough for you, the ban would not, of course, have prohibited your purchase of two 16-ounce containers; the idea was to make you think twice before doing so.
This is a nice characterization of this particular nudge, "making you think twice." It's akin to cooling-off periods that are often mandated with major purchases (like cars and homes) and life decisions (such as divorce), to help ensure that people don't make such decisions in what psychologists call a "hot state" in which emotions may supersede rationality.
As I discuss in The Manipulation of Choice: Ethics and Libertarian Paternalism, these nudges are less offensive to autonomy than the standard type because they encourage better decision-making rather than steering people into the decisions policymakers want them to make. In other words, they engage rational deliberation rather than subverting it. Also, in principle they're outcome-independent, focusing on the process decision-making itself rather than actual decisions made. But in many cases, these outcome-independent interventions would not have been imposed if there were not some concern about the choices being made, and the ban on big sodas is a prime example.
I doubt supporters of the ban would be satisfied if people "thought twice" about their soda consumption decisions and still drink large amounts of it. After all, there is no way to test the quality of a person's decision-making process; they can see observe the decision made, not how or why it was made. And if the outcome is judged by policymakers to be inferior, they make an illegitimate inference regarding the decision-making process, judging it to be inferior as well—a judgment based on their idea of people's interests, not the actual interests of people themselves.
Maybe that's why Mr. Bittman feels it appropriate to "make people think twice" about soda consumption—if they only did, they'd come to the same conclusion he does. It is that presumption, the belief that policymakers both know better that people what's good for them and that they have the right to impose this by law, that makes the soda ban and other nudges so offensive.
(For more, I encourage you to check out The Manipulation of Choice: Ethics and Libertarian Paternalism.)
Mark D. White
Earlier today, a state judge overturned New York City mayor Michael Bloomberg's ban on large sodas, citing their arbitary nature, copious loopholes, and uneven consequences. Of more significant concern are the ethical ramifications of such a ban, as I describe in The Manipulation of Choice--we can only hope that this played a role in his decision as well.
UPDATE: Here is the decision.
Mark D. White
My latest book, The Manipulation of Choice: Ethics and Libertarian Paternalism, was released earlier this month by Palgrave Macmillan in both paperback and hardcover. In the book, written for popular audiences, I discuss the ethical and practical problems with the idea of "nudges" as popularized by Richard Thaler and Cass Sunstein in their book of the same name.
Walter Olson of the CATO Institute writes that "the 'libertarian paternalism' theory promises to use the state to help correct citizens' wrong decisions without asking their consent, yet also without truly entering the realm of coercion. Too good to be true? Indeed it is, as this book helps to show. Mark White gives us the sort of analysis we need to nudge back." Our own Jonathan B. Wight also comments that: "The Manipulation of Choice states that paternalists impose their own values and goals onto hapless consumers and citizens. Hence, public policies designed to correct the imperfections of behavioral irrationality are coercive. This is an important point and one that needs to be debated."
If you're interested, Palgrave has made the first chapter available for free, and I have written several blog posts recently tied into the book, including one at this blog commenting on Cass Sunstein's recent review of another book on paternalism at The New York Review of Books, and a post at Psychology Today on the nudge concept in general. (See also past posts at this blog on paternalism.)
Mark D. White
The latest issue of Health Economics, Policy and Law (7/4, October 2012) is a special issue on th topic of end-of-life care, stemming from a workshop held by the London School of Economics/Columbia Health Policy Group in December 2010:
Introduction (Adam Oliver)
The conventionally antithetical stereotypes of the United Kingdom and United States health care systems needs to be modified in the case of the elderly. Relative to the rest of the population, the over-65s in the United States are more satisfied with their medical care than their UK counterparts. There is also much common ground: shared worries about the quality of elderly care and similar attitudes towards assisted death. Comparison is further complicated by within country variations: comparative studies should take account of the fact that even seemingly polar models may have pools of similarity.
Evidence and values: paying for end-of-life drugs in the British NHS (Kalipso Chalkidou)
In January 2009, Britain's National Institute for Health and Clinical Excellence (NICE), following a very public debate triggered by its decision, six months earlier, provisionally to rule against the adoption by the National Health Service (NHS) of an expensive drug for advanced renal cancer, introduced a new policy for evaluating pharmaceuticals for patients nearing the end of their lives. NICE's so-called end-of-life (EOL) guidance for its Committees effectively advises them to deviate from the Institute's threshold range and to value the lives of (mostly) dying cancer patients more than the lives of those suffering from other, potentially curable, chronic or acute conditions. This article tells the story of the EOL guidance. Through looking at specific EOL decisions between 2009 and 2011 and the reactions by stakeholders to these decisions and the policy itself, it discusses the triggers for NICE's EOL guidance, the challenges NICE faces in implementing it and the policy's putative implications for the future role of NICE in the NHS, especially in the context of value-based reforms in the pricing and evaluation of pharmaceuticals, currently under consideration.
Valuing end-of-life care in the United States: the case of new cancer drugs (Corinna Sorenson)
New cancer therapies offer the hope of improved diagnosis to patients with life-threatening disease. Over the past 5–10 years, a number of specialty drugs have entered clinical practice to provide better systemic therapy for advanced cancers that respond to few therapeutic alternatives. To date, however, such advances have been only modestly effective in extending life and come with a high price tag, raising questions about their value for money, patient access and implications for health care costs. This article explores some of the key issues present in valuing end-of-life care in the United States in the case of advanced cancer drugs, from the difficult trade-offs between their limited health benefits and high costs to the technical, political and social challenges in assessing their value and applying such evidence to inform policy and practice. A number of initial steps are discussed that could be pursued to improve the value of advanced cancer care.
Health technology assessment processes aim to provide evidence on the effectiveness and cost-effectiveness of different elements of health care to assist setting priorities. There is a risk that services that are difficult to evaluate, and for which there is limited evidence on cost-effectiveness, may lose out in the competition for resources to those with better evidence. It is argued here that end-of-life care provides particular challenges for evaluation. Outcomes are difficult to measure, can take place over short time scales, and services can be difficult to characterise as they are tailored to the specific needs of individuals. Tools commonly used to measure health care outcomes do not appear to discriminate well in the end-of-life care context. It is argued that the assumption that units of time of different quality of life can simply be added to assess the overall experience at the end of life may not apply, and that alternative perspectives, such as the Peak and End Rule, might offer useful perspectives.
The End of Life Care Strategy (Department of Health, 2008) radically raised the profile of end-of-life care in England, signalling the need for development in planning and delivery, to ensure that individuals are able to exercise genuine choice in how and where they are cared for and die. Research has indicated that there have been continuing difficulties in access to high-quality and appropriate support at the end of life, particularly for patients with a diagnosis other than cancer. This article uses research findings from three case studies of end-of-life care delivery in England to highlight some of the barriers that continue to exist, and understand these challenges in more depth. Access to high-quality and appropriate end-of-life care has been a challenge for all patients nearing the end of life. However, the findings from this research indicate that there are several interrelated reasons why access to end-of-life care services can be more difficult for patients with a non-cancer diagnosis. These issues relate to differences in disease trajectories and subsequent care planning, which are further entrenched by existing funding arrangements.
US health care: the unwinnable war against death (Daniel Callahan)
For well over 40 years, the United States has struggled to improve end-of-life care. This effort, heavily focused on living wills, hospice and improved doctor–patient communications and palliative care, has been a modest success only. Both doctors and patients are often unwilling to accept the fact that death is on the way – only 25% of Americans have an advance directive. Advances in medical technology have provided more ways of keeping dying patients alive, making the line between living and dying harder to discern. The way physicians are paid promotes the use of technology not for talking with patients. Underlying these practical problems is a culture of American medicine with deep historical roots: that medical progress should be unending and is a moral imperative, that death is the greatest enemy and that cure, not care, is the primary goal. A better balance between care and cure is needed.
Stealing on insensibly: end of life politics in the United States (Lawrence D. Brown)
Because the United States often seems (and seems eager to present itself as) the home of the technological imperative and of determination to brand all challenges to it in end-of-life care as a descent into death panels, the prospects look unpromising for progress in US public policies that would expand the range of choices of medical treatments available to individuals preparing for death. Beneath this obdurate and intermittently hysterical surface, however, the diffusion across US states and communities of living wills, advanced directives, palliative care, hospice services and debates about assisted suicide is gradually strengthening not so much ‘personal autonomy’ as the authority, cultural and formal, of individuals and their loved ones not merely to shape but to lead the inevitably ‘social’ conversations on which decisions about care at the end of life depend. In short, the nation appears to be (in terms taken from John Donne's mediations on death) ‘stealing on insensibly’ – making incremental progress toward the replacement of clinical and other types of dogma with end-of-life options that honor the preferences of the dying.
Few are satisfied with end-of-life care in the United States. For families and friends of people with dementia, end-of-life care is particularly frustrating. Providing better end-of-life care to people with dementia is urgent because the prevalence of the disease is increasing rapidly. Dementia is currently the seventh leading cause of death in the United States and fifth leading cause of death among people aged 65 years and older. By 2050, there will be around 19 million people with Alzheimer's disease. This article reviews ethical and policy challenges associated with providing end-of-life care for people with dementia in the United States. I explain how disagreements about the meaning of futility lead to poor care for people with dementia. Most people agree that we should not provide care that is futile, but there is little agreement about how futility should be defined. US policies and politics clearly tip the balance in the direction of treatment, even in the face of strong evidence that such care does more harm than good. Although we may never reach a consensus, it is important to address these questions and think about how to develop policies that respect the different values.
Dementia, death and advance directives (Jonathan Wolff)
This article considers the ethics of advance directives, especially in relation to conditions such as dementia. For some choices, such as over whether one's life should end at home or in a hospice, advance directives can be very enlightened and helpful. For others, such as those to end the life of an autonomous subject, against their will, have no moral appeal and would rightly be ignored. In a wide range of intermediate cases, given our typical lack of insight into how changes in our health condition will affect us in other ways, we should be very cautious indeed in promoting the use of advance directives in end-of-life decisions, at least where a reasonable quality of life remains. There may be some reasons for giving priority to the earlier autonomous self over a later, contented but non-autonomous self, but these reasons seem far from compelling.
Mark D. White
The latest issue of The Journal of Law, Medicine & Ethics (40/3, Fall 2012) features a symposium titled "The Health Care Reform Law (PPACA): Controversies in Ethics and Policy," based on a conference held at the Medical University of South Carolina in October 2011 and organized as a group of point-counterpoint discussions focusing on "the responsibilities of individuals versus those of society to provide health care, the morality of market-based health care reforms, the effectiveness of consumer-driven health care reforms, and the role of the principle of justice in grounding health care reform" ("Introduction," p. 523).
Introduction (Robert M. Sade)
Medical Responsibility (Ronald Hamowy)
Market-Based Reforms in Health Care Are Both Practical and Morally Sound (James Stacey Taylor)
No Theory of Justice Can Ground Health Care Reform (Griffin Trotter)
Mark D. White
New today from associate editor Brian Fung at The Atlantic is a piece on an experimental nutritional labeling system modeled on traffic lights. In use in the United Kingdom (where it was instituted by the British government's "nudge unit"), the revised nutrition labels would have color-coded icons for fat, calories, and other aspects of food products according to whether the levels are considered healthy or unhealthy. Mr. Fung reports the results of a study from Masschusetts General Hospital that--unsurprisingly--such labels increase the amount of healthy food consumered and lower the amount of unhealthy food consumed.
I discuss labeling systems such as these in my upcoming book, The Manipulation of Choice: Ethics and Libertarian Paternalism, in which I differentiate between the information provided by such label--which allows people to make better decisions according to their own interests--and schemes like the traffic light one which nudge people toward some food and away from others based on bureaucrats' judgment of what is healthy and what is not. (I also discussed nutrition labeling in an earlier blog post.) As Mr. Fung acknowledges, "Bickering over what red, yellow, and green actually mean is likely to be as difficult -- if not more so -- than actually putting the system in place." Some of this bickering may be political, of course, but some will be due to disagreements among health experts over what a proper diet consists of--a debate unlikely to be settled any time soon among the experts, much less by government fiat!
But what I found most interesting about Mr. Fung's article was the irony in the subheading:
If soda bans take an implicitly cynical view of human nature, food labels that give consumers the impression of freedom might be their opposite.
I don't know what could reflect a more cynical view of human nature then trumpeting proudly the prospect of "giving consumers the impression of freedom." These two approaches to paternalistic regulation are not opposites--the only difference is that one is clumsy and the other is "clever." This attitude continues as the article begins (emphasis mine):
From New York City's point of view, humans are notoriously bad at making good decisions. That's what makes a ban on large sodas necessary: the idea that Americans can't be trusted with their own health. But maybe there's a middle ground between letting people gorge themselves on junk food and making it illegal. The key to making it all work is creating an environment where consumers still believe they're in control.
No, there's no cynical view of human nature on display there.
Finally, as the article ends, Mr. Fung writes:
New York's faith in humanity must be low indeed if it thinks only the most blatant coercion can get people behaving differently. Whether collectively or alone, people are hopelessly incompetent, is the message Bloomberg's soda ban sends. A more accurate way to put it might be that people are incredibly malleable, open to having their decisions swayed in terrible ways by factors that are out of their hands. The difference is slight, but in the small gap between those two statements lies an opportunity to move people in the right direction without taking away their freedom.
As above, I disagree with Mr. Fung: the difference is not slight, it is nonexistent. In my view, all paternalists have little faith in humanity, as shown by their willingness to substitute their own judgment for those of the people they claim to help, based on an overly simplistic view of decision-making and interests. And if you "move people in the right direction" by manipulation rather than by reasoned persuasion--subverting their deliberative processes rather than engaging them--you are taking away their freedom, little by little.
But as long as they're left with the "impression" of their freedom, as long as they "still believe they're in control," I guess that's OK.
Mark D. White
Today on The Atlantic's website, Dan Ariely describes an experiment he conducted with Mike Norton in which they survey people about both the current distribution of wealth in the U.S. and what they thought the ideal distribution of wealth is. Not surprisingly, they find that most everybody underestimates the level of inequality of wealth, and that most everybody would prefer a more equal distribution of wealth--and, most interestingly that the "desired" distribution is extremely stable regardless of political party or nation of origin.*
In fact, he writes, "most likely, if you participated in one of our tests, your response too would have fallen in line with these findings." Uh, no, it wouldn't--I would have refused to answer the question because I don't accept its premise, which is that the final distribution of wealth is more important than the processes which led to it. In Robert Nozick's terms, Ariely implicitly uses a patterned theory of justice, whereas I prefer a historical theory of justice. When I see a skewed distribution of income or wealth, my first thought is not, "let's correct that," but rather "let's see what caused the skewed distribution and see if they're anything unjust about that."
Ariely illustrates this distinction with his two proposals for lessening inequality: education and taxation. Education improves the process while taxation improves the results after the fact. This is comparable to making sure a football game is officiated fairly, but then adjusting the score after the game is finished. If the outcomes of a football game--or of the economy--result from just and fair processes, then it is difficult to find a justification for questioning the results (outside simple utilitarianism).
Ariely describes his methodology as inspired by John Rawls' "veil of ignorance," in which people are asked what kind of world they'd like to live in if they had no idea where they'd fall in socio-economic terms (or, more broadly, in terms of race, gender, and so on). Ironically, however, Rawls was opposed to redistribution after the fact, and meant for his veil of ignorance metaphor to be used when designing institutions that would benefit the worst-off in society so wealth would not have to redistributed after the fact. (Ronald Dworkin's resource-egalitarianism takes the same approach: equalize resources at the beginning of persons' lives, and let them make of their lives what they will.)
My point does not lean only to the left or the right; people on both sides of the political spectrum (and especially libertarians) will happily point out injustices in the system that lead to unjust outcomes. This is one thing that the Occupy movement and the Tea Party have in common: there is corruption throghout the system that benefits the few at the expense of the many. But it does little good to say what we want the world to look at any point in time. Instead, we should focus on how we want to world to work over time--all the time--so everyone has a fair chance at leading the life they want to live.
* They also neglect to ask what means people are willing to accept to reach their desired level of inequality--I imagine that's where differences in political affiliation would show up the most. Ariely admits to this shortcoming, but casts it in terms of what sacrifices people would be willing to make themselves to lower inequality, not what structural changes in our institutions they would recommend:
Our study also doesn't deal with how to bring what people say they want under the veil of ignorance into line with what they're willing to do when it's their money and resources that are about to be distributed. It is one thing to get people to tell us what kind of society the would want to join, and another to get them part with their money in order to create that society.
Mark D. White
One of the topics that fascinates me, but which I never seem to have time to catch up on, is the moral/political status of health and health care. In most cases (other than particularly infectious or contagious diseases), I consider health and health care to be matters of personal choice and responsibility, but I'm eager to hear the arguments on the other side as well.
Two articles in the latest issue of The Journal of Law, Medicine & Ethics (40/2, Summer 2012), part of a symposium on pharmaceutical firms and the right to health, address this issue:
"Health as a Basic Human Need: Would This Be Enough?" by Thana Cristina de Campos
Although the value of health is universally agreed upon, its definition is not. Both the WHO and the UN define health in terms of well-being. They advocate a globally shared responsibility that all of us — states, international organizations, pharmaceutical corporations, civil society, and individuals — bear for the health (that is, the well-being) of the world's population. In this paper I argue that this current well-being conception of health is troublesome. Its problem resides precisely in the fact that the well-being conception of health, as an all-encompassing label, does not properly distinguish between the different realities of health and the different demands of justice, which arise in each case. In addressing responsibilities related to the right to health, we need to work with a more differentiated vocabulary, which can account for these different realities. A crucial distinction to bear in mind, for the purposes of moral deliberation and the crafting of political and legal institutions, is the difference between basic and non-basic health needs. This distinction is crucial because we have presumably more stringent obligations and rights in relation to human needs that are basic, as they justify stronger moral claims, than those grounded on non-basic human needs. It is important to keep this moral distinction in mind because many of the world's problems regarding the right to health relate to basic health needs. By conflating these needs with less essential ones, we risk confusing different types of moral claims and weakening the overall case for establishing duties regarding the right to health. There is, therefore, a practical need to reevaluate the current normative conception of health so that it distinguishes, within the broad scope of well-being, etween what is basic and what is not. My aim here is to shed light onto this distinction and to show the need for this differentiation. I do so, first, by providing, on the basis of David Miller's concept of basic needs, an account of basic health needs and, secondly, by mounting a defense of the basic needs approach to the right to health, arguing against James Griffin who opposes the basic needs approach.
"A Right to Health Care" by Pavlos Eleftheriadis
What does it mean to say that there is a right to health care? Health care is part of a cooperative project that organizes finite resources. How are these resources to be distributed? This essay discusses three rival theories. The first two, a utilitarian theory and an interst theory, are both instrumental, in that they collapse rights to good states of affairs. A third theory, offered by Thomas Pogge, locates the question within an institutional legal context and distinguishes between a right to health care that results in claimable duties and other dimensions of health policy that do not. Pogge's argument relies on a list of “basic needs,” which itself, however, relies on some kind of instrumental reasoning. The essay offers a reconstruction of Pogge's argument to bring it in line with a political conception of a right to health care. Health is a matter of equal liberty and equal citizenship, given our common human vulnerability. If we are to live as equal members in a political community, then our institutions need to create processes by which we are protected from the kinds of suffering that would make it impossible for us to live as equal members.
But what I most look forward to reading is What Makes Health Public?: A Critical Evaluation of Moral, Legal, and Political Claims in Public Health by John Coggon, whom I had the pleasure of meeting and listening to at the "Regulating Bodies and Influencing Health" symposium in Rotterdam in June.
John Coggon argues that the important question for analysts in the fields of public health law and ethics is 'what makes health public?' He offers a conceptual and analytic scrutiny of the salient issues raised by this question, outlines the concepts entailed in, or denoted by, the term 'public health' and argues why and how normative analyses in public health are inquiries in political theory. The arguments expose and explain the political claims inherent in key works in public health ethics. Coggon then develops and defends a particular understanding of political liberalism, describing its implications for critical study of public health policies and practices. Covering important works from legal, moral, and political theory, public health, public health law and ethics, and bioethics, this is a foundational text for scholars, practitioners and policy bodies interested in freedoms, rights and responsibilities relating to health.
Mark D. White
With respect to the dissent in the Obamacare decision from Justices Scalia, Kennedy, Thomas, and Alito (starting on page 127 of the PDF), I want to note several phrases that struck me as interesting, both in relation to Justice Ginsburg concurring opinion as well as Chief Justice Robert's majority opinion (discussed in a previous post here).
With respect to the activity/inactivity distinction supported by Roberts but refuted by Ginsburg, the four dissenters had this to say:
If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction... a proposition that has never recommended itself, neither to the law nor to common sense. To say, for example, that the inaction here consists of activity in “the self-insurance market”... seems to us wordplay. By parity of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Commerce becomes everything. (pp. 13-14)
With respect to Justice Ginsburg's expansive reading of the Necessary and Proper Clause, they say simply:
Article I contains no whatever-it-takes-to-solve-a-national-problem power. (p. 15)
Finally, with respect to Chief Justice Roberts' reading of the ACA as imposing taxes rather than penalties, justifying his vote to uphold the individual mandate, they say:
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. (p. 24)
As many have noted already, Scalia et al's dissent repeatedly refers to Justice Ginsburg's opinion as "the dissent" rather than a concurrence, with only the final part of the actual dissent (beginning of p. 64) reflecting the fact that they lost the case, making the timing of Roberts' decision-making process all the more intriguing. Oh, to be a fly on the wall...