Frameworks of Justice

In bioethics, justice has many dimensions, interpretations, and applications. The best frameworks for thinking about justice need to recognize its breadth and its many meanings. The doctor patient relationship as well as macro public policy lead to injustices that need to be addressed. Categorizing the type of justice at stake shapes the framing of the issues.

Justice of Opportunity

Justice as a level playing field or fair opportunity, referred to here as “justice of opportunity” is best applied to bioethical dilemmas in the realm of access to those social goods known to determine health, like education and fair wages. In such situations justice of opportunity should include making some people whole, accounting for past injustices, and leveling the playing field.

Justice of Equal Access

“Justice of equal access” can apply to situations where the goal is to end discrimination, especially if the discrimination prevented a group or individual from accessing the same amount of the same resource. For example, justice of equal access is a good framework to ensure every school child has internet access, but justice of opportunity is a framework to ensure every child in need of educational support like tutoring has it. One has been blocked out of the status quo, denied equal access; the other needs something extra to ensure opportunity.

In the clinical setting, justice of equal access can help sort out allocation of scarce resources, like ventilators in the pandemic. The framework must account for fairness when equal access is not achievable. A fair waiting list can meet the standards, while one that is not thoughtful or bars a marginalized group might not.

Public Goods

Justice of access can apply to “public goods.” Some economists view public goods as having a weak link between the payor and the receiver or user of the good. For example, taxpayers finance many things they do not use like national parks they do not visit or public schools they do use to educate their children. They also pay for intangible public goods like national security and the military, the appreciation of which varies significantly among taxpayers.

It has been difficult to ascertain the degree to which health care is a private good. Insurance is clearly a private good. Medicaid is also arguably a public good and has a tangible personal value to some (although not to the payers), and Medicare, is essentially purchased. Even the Affordable care Act is a move toward making health care more of a public good. But for now, health care is a private good. It falls in between the fact pattern for justice of opportunity and justice of access. The most ethical position, to me, is universal access with taxpayers covering people through Medicaid who cannot afford care. To some, nothing less than a single payer plan is ethical. To others, that is seen as an unfairness, and contrary to innovation or free choice. To those who think of healthcare as “extra”, the justice of opportunity framework also calls for providing care, even if it is seen as additional.

Apply Justice of Opportunity

To apply justice of opportunity, the fact pattern should show that those with access to certain social goods (but not others) are not reaching the goals that their peers are. Whether categorized by race, ethnicity, physical or neurological differences, the group (or the individual) needs something extra (a product or service) to reach success. The framework starts with critical analysis of what would help, not of what works for the others. A justice of opportunity process requires creativity and operates in a public, non-profit, and private sphere. After school tutoring or access to a part time job for a high school student to earn money could create opportunity. Justice of opportunity is significantly more tailored to groups and individuals.

A limitation or caveat is that justice of opportunity could be abused to hold everyone to a low level, that is, to equally distribute poor opportunity. Lifting everyone with a rising tide is a better approach when applying justice of opportunity.

Apply Justice of Access

To apply justice of equal access, the information collected must show a deprivation. Then, the framework is a process for remedying the deprivation through public policy. For example, if one cohort of public school students has internet access and a laptop and the interconnectedness, research opportunities, and college acceptances or ability to attain jobs with good wages is better, then under an analysis of justice of equal access, the critical analysis does not focus on what would help, but on how to get it. Rather than a simple call for computers, the ethical impetus to solve the practical problem should shape public policy, and possibly include charitable donations.

Both frameworks of justice apply to global health and well-being.

Recognizing limitations makes bioethics a realistic source of public policy input. To many people, justice and fairness are defined by getting one’s share, paying in equally (doing one’s fair share, whether through taxes or through becoming vaccinated), or getting out in proportion to what one paid in. Those issues are fundamental to both justice of opportunity and justice of equal access. There will be weighing processes that inform reasonable goals and best solutions. 

Competing Views of Fairness

It is important to define the way fairness is discussed. Whether it is fair that some people pay more in and get less out of a system (for example health insurance) depends on the framework and analysis. Societal goals and priorities can be legislated and sometimes a personal vote is the most involvement a person has. In policies that affect health and have the goal of elevating the worst off by providing health opportunity, justice frameworks shape the inevitable weighing process that values some public goods over others.

Justice in the Legal and Criminal Law Sphere

“Legal justice” effects bioethics as well. In the legal arena, to many people, justice can mean punishing for a past action. In bioethics, that type of justice may be relevant to a wrongdoer who fudged research to get FDA approval for an unsafe drug. It also can apply in the arena of medical neglect where justice could ensure that all people (often parents) are subject to investigation based on like behaviors. For example if a Black mother and a White mother each refuse the same treatment for their child with the same condition, they should face equal treatment whether that is respect for the refusal or a motion to compel care.

Discerning which framework applies will help those in bioethics apply justice in a more goal-oriented way.

Benjamin R. Informed Refusal: Toward a Justice-based Bioethics. Science, Technology, & Human Values. 2016;41(6):967-990. doi:10.1177/0162243916656059 Ruha Benjamin Article

Jonathan Haidt, (2012). The righteous mind: Why good people are divided by politics and religion. Pantheon/Random House.

HÄYRY, M. (2019). Justice and the possibility of good moralism in bioethics: CQ. Cambridge Quarterly of Healthcare Ethics, 28(2), 236-263.  Hayry Justice and the Possibility of Good Moralism (Explores six different interpretations of justice and discusses morality versus moralism. Contrasts bioethical approaches in the American and European domain, addresses polarized political constructs and their relevance to bioethics. Explores libertarianism, communitarian, socialist, utilitarian, capability, and identity and recognition. The different realms cover some space where views on justice do not overlap or necessarily address the same concerns.)

Ubaka Ogbogu Lorian Hardcastle, “Bioethics and practical justice in the post‐COVID‐19 era,” Developing World Bioethics, July 2020. Volume 21, Issue 1 (March 2021) First published: 30 July 2020  Hardcastle Article

Gabriela Arguedas‐Ramírez, “Bioethics in the Times of Contagious Populism,” Developing World Bioethics, March 3, 2021 Bioethics in Contagious Populism

Zimmerman, Anne, “Reframing the healthcare debate: targeted problems and solutions,” Master’s Thesis, Columbia University, 2020. Reframing the Healthcare Debate

Malte Luebker, “Income Inequality, Redistribution, and Poverty: Contrasting Rational Choice and Behavioral Perspectives,” The Review of Income and Wealth, February4, 2014 Leubker Article

Gopal Sreenivasan (2001) Opportunity Is Not the Key, The American Journal of Bioethics, 1:2, 1b-2b, DOI: 10.1162/152651601300168997

(Income inequality and whether it results in greater redistribution. “The findings challenge the narrow concept of human motivation that underpins rational choice, and point to the importance of fairness orientations that have been emphasized in behavioral economics.”)(Relevant to justice of opportunity as arguably some opportunities should be created with public taxpayer dollars.)

Bradley, David, et al. “Distribution and Redistribution in Postindustrial Democracies.” World Politics, vol. 55, no. 2, 2003, pp. 193–228. JSTORhttp://www.jstor.org/stable/25054218. Distribution and Redistribution in Postindustrial Democracies  (Covers the role of many theories in the support of distribution of resources; vindicates power resources theory, that working class power leads to the most redistributive policies, using data to demonstrate the strong relationship to redistribution.)(Applying this article to the US — implies that issues of who holds political power, or whose vote is drowned out either by structures (electoral college or senate representation that is geographic rather than population-based), voter disenfranchisement or suppression, or waning unions affects outcomes for those hurt by income inequality.)

Global justice and bioethics / edited by Joseph Millum and Ezekiel J. Emanuel.

New York : Oxford University Press, c2012. includes:

Global bioethics and political theory / Joseph Millum

Is there a human right to essential pharmaceuticals? : the global common, the intellectual common, and the possibility of private intellectual property / Mathias Risse

Global justice and health : the basis of the global health duty / Jonathan Wolff

Justice in the diffusion of innovation / Allen Buchanan & Robert O. Keohane

What is non-ideal theory? / Gopal Sreenivasan

Global justice and the “standard of care” debates / Ezekiel J. Emanuel

The bioethics of second-best / Robert E. Goodin

INGO health programs in a non-ideal world : imperialism, respect, and procedural justice / Lisa Fuller

Promoting global health through accreditation : the case of medical tourism / Nir Eyal

The obligations of researchers amidst injustice or deprivation / Alan Wertheimer.

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