Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, March 15, 2012

Reply to a Reader’s Comment Regarding the Meaning of “Health”

The following is my reply to two comments posted by MOJ reader Andrew Mackie-Mason in response to Part 1 of my post on the HHS Contraceptive mandate here.  A portion of my original post as well as Andrew’s comment and my reply concern the meaning of “health” and “healthcare.”  This conceptual disagreement is part of the basis of the controversy over the HHS mandate and is the source of a wider disagreement in bioethics.  I hope that readers find it to be of interest.


Dear Andrew:

Thanks for the post and for taking the points I was (and am) trying to make seriously.  By way of response, I have a few questions for you – questions I believe that Matt Bowman and other readers likely share.

First, you suggest that the understanding of “health” that I put forth, as a scientific term with an objective meaning, is mistaken and should be replaced with an understanding of “health” as autonomy that has only a subjective meaning.  That is, you argue that “health” is “what each person sees as the proper functioning of their own body as an integral aspect of their self.”

You are of course free to advocate for this position, and you may truly believe that this subjective approach is correct, but you should be prepared to see and embrace the full implications of this view – you should be prepared to follow your argument where it leads.

Thus, if “health” is a subjective determination – a matter of personal autonomy – then you should be prepared to require physicians and hospitals (i.e. “healthcare providers”) to engage in assisted suicide – whether the person is young, old, or middle-aged; suffering from a debilitating, terminal illness or “the picture of health.”  Similarly, if “health” is subjective – a matter of individual autonomy – then “health” would seem to include every imaginable kind of plastic surgery, no matter how frivolous or self-indulgent it may appear to the outside observer.  Such a perspective is irrelevant, indeed, obnoxious to the concept of “health” that you put forth.

What is more, if autonomy is the touchstone of “health” then you should be prepared to require physicians and hospitals to perform “voluntary amputations” – that is, amputations on individuals who possess healthy limbs (sorry . . . it’s hard to avoid use of the term that doesn’t carry an objective meaning) – that is, limbs that are not diseased or somehow impaired but fully functioning.  That is to say, in the case of voluntary amputation, there is nothing wrong with a person’s hand or leg – he or she simply wants to be rid of it.

Now, traditionally, this sort of desire has been seen by the medical profession as a severe pathology and that it would be profoundly unethical to assist an individual in achieving his or her desire to have a limb removed.  Although some in the medical field now wish to explore this phenomenon and others even wish to assist these individuals by performing the requested amputations surgically, many continue to see this desire as pathological and the proposed amputation as conferring a disability on the individual (see here and here).  Your understanding of health would seem to leave no room for this traditional view.  Your view would, it seems, mandate that our healthcare system embrace the subjective desire for loss of limb as a dimension of “health.”  Are you prepared to argue for this?

Second, you responded to my characterization of health with respect to the conjugal act in human beings as relying on a “fuzzy teleological objectivism.”  Now I understand why you might wish to do so for rhetorical purposes, but are you prepared to do so on a substantive basis?  If so, am I correct in assuming that you would wish to characterize the process of providing the body with nutrition – the consumption and digestion of food – as likewise relying on a “fuzzy teleological objectivism”?  If so, you must do more than garnish a rhetorical flourish followed by a confident Q.E.D. 

 The reason why I offered the hypothetical involving a pill that would induce nausea and vomiting that would be marketed to bulimics was precisely to pose this challenge.  You ignored this hypothetical in your response.  The teleology of the digestive system (not to mention the circulatory system, the pulmonary system, the nervous system, the lymphatic system) is hardly fuzzy.  Indeed, you won’t hear that kind of derisive talk concerning bodily functions in medical school.  Many physicians today may (sadly) be ethical Nietzscheans, but when it comes to their ontology, they remain committed Aristotelians.  The problem that many encounter today (and I would suggest that this is your problem as well) is trying to fit their ethical commitments inside their scientific understanding of “health” without eviscerating the latter.

 Now, on your account of “health” as autonomy, the hypothetical pill would seem to be unproblematic.  Indeed, if a person wants to control her weight and her body image in this way, taking the pill makes perfect sense.  Of course on this account bulimics are “healthy” people.  Are you prepared to argue that this is the case?  If not, I think you will find that invoking some kind of objective standard – a standard based on how the body functions – to be unavoidable.

 Third, you say that there are vaccines that “don't fix any problem in the body,” vaccines that “don't cure a disease or disorder.”  What vaccines do you have in mind?

 All the vaccines I can think of are true forms of preventive medicine in that they prevent the body from contracting a disease by aiding its resistance to polio, or whooping cough, or German measles, or some such malady.  And in this regard vaccines are decidedly unlike contraceptives.  These vaccines do not impede the natural function of the human body, they augment it.  They stimulate the body’s own immune system in defense of the body against some infection that would harm it, perhaps even fatally. 

 A contraceptive may “prevent” something (sometimes after the fact!).  Again, on your account of “health” based as it is on a subjective determination of the individual, pregnancy would or would not constitute a “disease” and thus an impairment of “health” based upon whether or not the pregnancy was “wanted.”  On this same account, however, polio, pertussis or rubella would be a disease only if the person who contracted it didn’t want it.  Likewise, a fully functioning eye, hand, liver or kidney would or would not be “diseased” based upon the person’s desire to retain it.  Are you prepared to defend this point of view?

 You note that some people decide to forego receiving vaccines due to the risk of side effects and others do so for moral or religious reasons.  With respect to the former, you say that “it would make perfect sense for someone to weigh whether the lack of functionality in their body was worth the risk/side-effects” such that “[v]accines for willing patients are clearly health care, [whereas] vaccines for unwilling patients clearly aren't.”  For you, what distinguishes the two as such – that is, as healthcare – is the subjective evaluation of the individual.

 This is not correct.  A vaccine is a form of healthcare – the benefit of which is prospective and often accompanied by risk – risk that one’s body may be impaired as a result of the vaccine.  That is, the judgment on whether or not to receive the vaccine is based on the function of the body and the risk calculation that this function will be impaired.  Thus, it is not necessarily the case that the same vaccine is or isn’t healthcare based on the subjective judgment of the individual.  Rather, it is entirely consistent with “health” understood as a scientific matter that the vaccine is healthcare that some individuals chose to forego based upon their assessment of the risk to health as objectively determined.

 Of course a subjective judgment may enter into the decision not to receive a vaccine.  But such a decision does not alter the status of the vaccine as “healthcare.”  It is not the case that a vaccine is or is not “healthcare” depending on the moral or religious objections of the individual.  Rather, the vaccination is healthcare that the individual chooses to forego based on other values.  There may be many good (perhaps even compelling) reasons to honor these values, but doing so doesn’t alter the meaning of “health.”

Pax Christi,



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Dear Andrew, how does the refusal of an employer to provide free contraception to one's employees because of Religious or moral reasons provide a health risk to the prevention, treatment and management of an illness since the purpose of Health Care is to prevent, treat and manage illness, to begin with?

Posted by: N.D. | Mar 15, 2012 6:52:38 PM

It seems to me a major weakness of trying to define health in such a way as to exclude contraception is that most healthcare insurance already covers contraception. If you want to know what healthcare insurance is, you look around and see what is common in the healthcare industry, and you see coverage of contraception is common. You also see that contraception has been provided by the government for over 40 years through Title X of the Public HEALTH Service Act. (I am using all caps for emphasis.) Here's a bit about what Title X does:

Nearly 100 Title X grantees provide family planning services to more than five million women and men through a network of over 4,500 community-based CLINICS that include State and local HEALTH departments, tribal organizations, HOSPITALS, university HEALTH centers, independent CLINICS, community HEALTH centers, faith-based organizations, and other public and private nonprofit agencies. In approximately 75% of U.S. counties, there is at least one CLINIC that receives Title X funds and provides services as required under the Title X statute.

The description of the Family Planning Services and Population Research Act of 1970 (i.e., Title X) is as follows: "An Act To promote public HEALTH and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government, and for other purposes."

Here's an interesting excerpt from Slate:

Title X’s passage capped a brief moment in the late 1960s and early 1970s when there was a bipartisan consensus that access to family planning was a "universal human right," as the proposed Title X legislation said. Politicians in both parties celebrated the public-private partnership that linked government funding with non-profit organizations to provide services for poor women. In 1967, Congressman George H.W. Bush urged federal agencies to "work even more closely with going private agencies such as Planned Parenthood" to provide access to birth control for all American women.

Last week [the date of this article is Feb. 22, 2011] the House of Representatives voted along party lines to defund Title X. When Congress enacted Title X in 1970, though, the vote was bipartisan and overwhelming: The Senate voted unanimously in favor of the law, and there were only 32 dissenting votes in the House.

The Institute of Medicine report that made the recommendations among which the "contraceptive mandate" can be found makes the case that unintended pregnancy is a public health issue. One example: "[A] recent systematic literature review found significantly increased odds of preterm birth and low birth weight among unintended pregnancies ending in live births compared with pregnancies that were intended."

Appropriate spacing of children is women's health issue:

Pregnancy spacing is important because of the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a prior pregnancy). Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small for gestational age births . . . . In addition, women with certain chronic medical conditions (e.g., diabetes and obesity) may need to postpone pregnancy until appropriate weight loss or glycemic control has been achieved . . . . Finally, pregnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension (etiologies can include idiopathic pulmonary arterial hypertension
and others) and cyanotic heart disease, and for women with the Marfan Syndrome . . . .

Certainly it is clear that preventing pregnancy is a health issue for women who might die if they become pregnant. One might oppose the use of artificial contraception, but a woman who might die if she becomes pregnant, if she uses contraception to avoid pregnancy, is certainly doing so for her health (particular if she wishes she could have children but dares not take the risk).

N.D. above says "the purpose of Health Care is to prevent, treat and manage illness." If pregnancy is not a illness (and of course it isn't), neither is childbirth, yet it almost always involves a trip to the hospital, a doctor to deliver the baby, and a bill for several thousands of dollars generally paid by health insurance. (Another definition argument is that insurance shouldn't pay for contraception because insurance is supposed to be about risk and unexpected costs. But the cost of prenatal care and childbirth are not unexpected. Babies are elective. So perhaps insurance should not pay for hospital delivery.)

In short, family planning and contraception have been an integral part of health care and a matter of public health for decades, and the current argument that contraception is not a matter of health and should not be covered by health care insurance should not be taken seriously.

Posted by: David Nickol | Mar 15, 2012 8:08:24 PM

David, that which is Life-affirming and Life-sustaining, such as the birth of a child, does involve Health Care. A healthy delivery would be Life-sustaining.

Here is a good article you should read in regards to the contraception deception:

Posted by: N.D. | Mar 16, 2012 8:36:53 AM


Had it not been for your very last paragraph, I might not have bothered to respond to your post, but I can't let it go unanswered.

The mere fact that a particular public policy had wide support at some point in the past does not permanently bind succeeding generations to it, nor does it foreclose debate over that policy or related issues. Public opinion, legislatures, and courts, do, in fact, often shift directions on seemingly "settled" issues. Under our system of government, the closest we can come to closing debate on a particular issue is to enact a constitutional amendment making a particular position on that issue the law of the land. Even then, courts can and do reverse their prior opinions regarding the interpretation and application of the Constitution. Amendments can be annulled through the same process by which they were enacted - see, for example, Prohibition.

I realize that what I have just said may seem pedantic, but it bears repeating. To assert that an argument "should not be taken seriously" simply on the grounds that it does, or may seem to, go against a prior consensus is a form of intellectually lazy sophistry.

Furthermore, Title X does not apply to the question of a mandate to require private employers and private insurers to cover the costs, the full costs at that, of chemical contraception.

Title X itself remains subject to debate. That includes the terminology it enacted into statutory law. For one thing, statutory language abounds with imprecise, euphemistic and misleading definitions. Just because a statute uses the terms "Clinic" or "Health" does not make them no longer subject to question or legislative reversal.

In particular, "Public Health" can mean just about what anyone wants it to mean. Among the barely concealed "public health" goals of the supporters of Title X, including both Nixon and H.W. Bush, was a desire to enact population control, in particular to reduce births among low-income, a barely disguised euphemism for black, women. This is not any kind of "right-wing" conspiracy talk, these views were widely held and publicly stated by "Rockefeller Republicans". Note the use of the term "population research" in the enacting clause you cite above.

It might be possible to have a debate over and come to some kind of legislative, and I stress the word legislative, as opposed to regulatory, public policy consensus in regards to private coverage of contraception for women who have a health condition that would make pregnancy a higher risk condition, or for women who have a medical condition such as ovarian cysts for which hormonal birth control could serve as one possible treatment. But the proponents of the HHS mandate are not arguing for mandatory coverage on that basis.

Posted by: Peter S | Mar 16, 2012 9:04:52 AM

Peter S.,

Thanks for your reply. I am not really arguing so much about what public policy ought to be as pointing out that family planning has been accepted as a part of health care for decades. What some people who oppose the contraceptive mandate are doing is trying to argue that prescribing contraceptives is not "healthcare," and paying for contraceptives is not the proper role of "insurance"—but they want to define "healthcare" and "insurance" in such a way as to exclude contraception. The World Health Organization's definition is as follows: "Health is a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity." That has been criticized as overly broad, and I would agree. But the fact is that there is no one, definitive, objective definition of "health" or "healthcare," and while John Breen can argue for a definition that excludes contraception, others can just as easily argue for a definition that includes it. And my point is that the prevailing concept of healthcare and health insurance includes contraception.

It seems to me that these debates about the definitions of "health" and "insurance" are purely sideshows. It is interesting to try to come up with a definition of "health," but it is extraordinarily unlikely that debates about definitions are in any way going to facilitate a resolution of the religious freedom issue that is the heart of the matter.

Posted by: David Nickol | Mar 16, 2012 10:32:12 AM

David, I suppose, based upon The World Health Organization's definition of Health, one could argue that since it is true that our inherent Right to Religious Liberty is grounded on the inherent Right of all persons to come to know, Love, and serve The True God, and it is true that The True God affirms and sustains Life, then every Health Care Plan should include Religious Liberty:)

Posted by: N.D. | Mar 16, 2012 11:17:24 AM

@David Nickol says: It seems to me that these debates about the definitions of "health" and "insurance" are purely sideshows. It is interesting to try to come up with a definition of "health," but it is extraordinarily unlikely that debates about definitions are in any way going to facilitate a resolution of the religious freedom issue that is the heart of the matter.

If definitions, which articulate the meaning and common understanding, of terms like "health" and "insurance" are sideshows, then what do you propose as a basis for making legislative or policy decisions about health insurance?

On the contrary, the disputes going on are exactly about these philosophical foundations of the law. In order for the law to be applied and enforced in the public sphere, the entire public has to (be able to) know and acknowledge what the law means. In order for the law to be accepted, obeyed, or considered just, the public must agree that what the law says and means is correct.

Further, for those of us who consider human or positive law to be a concrete application of natural law (I know I'm oversimplifying here), what the law says and means must reflect both physical and moral reality.

The law cannot exist without the definitions, and we cannot resolve the issue - which includes but is not limited to religious freedom - unless we resolve the disputes about the definitions of "health" and "health care" and, for that matter, "religion" and "freedom".

Posted by: Robert King | Mar 17, 2012 1:24:13 PM

Robert King,

From my viewpoint, the issue of what "health care" is has already been resolved in this matter in that family planning has been considered health care for decades, and will continue to be considered health care whether or not some broader religious exemption from the contraceptive mandate is implemented. I don't believe any of the serious players, not even the American bishops, are trying to have contraception declared "not health care" and get coverage deleted from health insurance policies. Family planning, including contraceptives, is so closely associated with what Americans think of (and want) as health care coverage that an argument that it is not really "health care" is more likely to be an argument against using the term "health care insurance" and keeping what we have than changing what health care insurance actually covers. If we say "medical insurance" rather than "health care insurance," this particular argument against covering contraception goes away.

The important debate is about religious liberty, not about the meaning of "health," "health care," and "insurance." I am perfectly willing to concede that health care insurance is not, strictly speaking, insurance, at least to some degree. But that does not mean that, because we call it health care insurance, we are forced to remake it to conform to a more strict definition of insurance.

One might argue that "health care insurance" is actually a misnomer, typically when something is a misnomer, the argument is to change the name to conform to what the thing really is, not change what the thing really is to conform to the name.

Posted by: David Nickol | Mar 17, 2012 3:48:17 PM

the bill is not simply confirming that family planning is healthcare
neither it is asserting that oral contraception is part of family planning and thus a part of healthcare
it is a financial mandate that puts contraception at the top of public healthcare priorities at the time when multiple studies point to its health risks and millions of citizens refuse to see it even as healthcare

i don't (and, in fact, never knew) a single person whose health suffered because of lack of access to free contraceptives, yet i see people around me who struggle to pay for their life-saving drugs
(my neighbor, in fact, was forced out of his retirement, just to pay for the medications without which he would die and still keep his house
i see his struggle daily and cannot imagine a comparable effort of a young law student during her summer job)

Posted by: elena | Mar 17, 2012 5:46:22 PM


I am responding to the argument that contraception should not be covered by insurance because if we go by a certain definition of health, providing contraceptives is not "healthcare." I think it is a very weak argument. There may be many other arguments against contraceptive coverage or against the entire Affordable Care Act, but I am not dealing with those here. I will say, thought, that many who argue against contraception coverage say that contraceptives are cheap, and women can afford to pay for their own. Many also argue that including contraception in insurance coverage will be financially burdensome for those who pay the premiums. It seems to me that those two arguments are contradictory. Also, there is good evidence that providing contraceptive coverage *saves* money.

Posted by: David Nickol | Mar 17, 2012 10:01:25 PM

Regarding contraceptive coverage saving money, if it were clear that it does, then insurance companies would surely already be offering it for free. I am aware of no hard evidence that providing contraceptive coverage saves money and insurers appear fairly well persuaded that it does not save money. See http://reimbursementintelligence.com/wp-content/uploads/2012/02/Contraceptive-Report_V3FINAL.pdf

The issue brief offering a case to the contrary cited in the HHS advanced notice (http://aspe.hhs.gov/health/reports/2012/contraceptives/ib.shtml) appears to have been prepared by the administration within the past month; The case offered there is, mostly, speculative.

Posted by: TomH | Mar 18, 2012 4:09:25 PM

i understand that you were arguing the definition of 'healthcare'
you do it remarkably well and your postings are clearly well written;

the reason i shifted the argument, however, is my frustration precisely with the fact that the debate is being dragged into those secondary issues
while the main vice of the mandate - gross social injustice - is bing ignored

we cannot provide universal healthcare, let's provide universal contraception - how absurd is that?
(at this moment european countries with universal healthcare and no contraceptive coverage - the case in most of the countries - seem not only more catholic despite of the declining churchgoing population, but simply more humane)
declining assistance to sick people and offering it to the strong and young who are by no means sick (withholding moral judgment)?
Orwell could have painted where that road leads

and then, in addition all, turning it political from another end;
the first 'end' as i see it, was reaching for the female voters who otherwise would have not voted at all,
on the other 'end' is religious freedom, "let's talk about that", maybe there'll be some concessions, already have been, but basically, what's wrong with paying a little more 'tax' to help out people not of your faith, aren't we destined to help our neighbor, it's her 'healthcare' after all, and your patients, of course, will never ask for contraceptives and you are not obliged to impose?
there are so many political debates that we can easily forget about injustice

Posted by: elena | Mar 18, 2012 9:45:23 PM

Health is one of the important things that one human being need to maintain.

Posted by: Beday | Mar 18, 2012 11:31:53 PM


Sorry for the delay. My response is here: http://source4politics.blogspot.com/2012/03/on-health-and-subjectivity.html

Posted by: Andrew MacKie-Mason | Mar 23, 2012 6:29:36 PM