Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, March 20, 2012

Some thoughts for John Breen from John O'Callaghan, Thomist, on "health", etc.

My Notre Dame colleague, and MOJ-friend, John O'Callaghan (Philosophy), sends in the following, in response to John Breen's recent post:

Dear Mr. Breen,

As a Thomist, however mediocre an Aristotelian that makes me, I enjoyed reading your ontological thoughts, or better questions posed to those who would suggest that the terms “health” and thus “healthcare” signify subjective determinations of the autonomous power of the speaker wielding the terms when applied to their own persons, and not states of living organisms in pursuit of the goods of existence of the type of organism one is and the acts directed at promoting those states and goods.  But in reading it I was also reminded of the sorts of discussions I find myself engaged in in the philosophy courses I teach in which the student believes that because the door to the classroom is closed he or she can say pretty much anything no matter how manifestly absurd, absurdities that he or she would never think of uttering outside the classroom, as for example that he doesn’t know who his father is because knowledge excludes faith, and he has to have faith in his mother to have any inkling who his father is.  Those of us who teach philosophy enter every semester thinking things will be different this time, and our students will see the obvious absurdity our counterexamples are designed to elicit to the “everything is allowed behind closed doors” principle that our students have picked up.  Alas—no.  Horrendous evil only exists in the mind of some as a thought experiment to argue that God cannot possibly exist, not as a reality that presents an opportunity to think about justice and what it requires of us.  Our last refuge in the face of such bullet biting is to just say “tell it to your father or mother, or whoever else is footing the bill for this class.”

But this last refuge of a non-philosophical response brings me to the thought that confronting such claims about “health" and “healthcare” with ontology might miss the goal of the social, moral, and political questions that are now being asked about health care and the state’s role in it.  Many people are happy with a very large role for the state in the structure of health care.  Many people are unhappy with such a very large role.  But few people think there is no role whatsoever for the state in healthcare.  At the very least the licensing of doctors, nurses, therapists, pharmacists, etc. is a public good that promotes the goals of healthcare as a social good even if the state were to play no more part in it than that licensing role.  But there are additional goods that predate the success of the Obama administration in putting forward the Affordable Care Act, goods such as compelling healthcare professionals and institutions to provide healthcare to individuals regardless of ability to pay.  I believe it is the case that if you present yourself to a hospital in most, and I think it may be all, states in this country, you cannot be turned away from care because of your inability to pay.  Others know the particulars.

But with the involvement of the state comes the coercive power of the state.  And so there are at least two problems with the position that the very meaning of ‘health’ and ‘healthcare’ are subjective determinations of the autonomy of private individuals.  The first is semantic and bears upon coherence.  If the meaning of “health” and “healthcare” really are subjective determinations of the autonomy of private individuals, the state in mandating any sort of legislation concerning “healthcare” is quite literally legislating nothing.  Any apparent law involving the terms “health” and “healthcare” are really schema with place markers or variables in them like “X” and “Y”, which of course means that they are not laws at all.  Thus the incoherence--the law is not a law.

And this brings me to the second problem with the position, the moral or political.  Here what is not a law can only become a law if the place marker or variable is filled in with some semantic determination.  But the claim here is that such a determination is the expression of and determined by the autonomy of the private individual pursuing his or her own private interests.  So the autonomous private individual in fact becomes the legislator, not the public legislative body.  The philosophers among you will of course see the hand of Kant in the ideal of autonomy as self-legislation, each human being being a king in a kingdom of ends, except that Kant only argued for self-legislation as a kind of binding of oneself to an objective moral law that one does not create for oneself or others, but that exists apart from and independently of any autonomous or heteronomous individual.  The sort of self-legislation envisaged here by the autonomous-semanticist is quite different since it determines the very character of the law that binds, creating it, as it were, ex nihilo.  And here it is a law that does not bind the autonomous individual; no it is a law that binds everyone else to the self-determination of the individual, and uses the coercive power of the state to so bind them.

But one might have thought that it was fundamentally unjust for a private individual to use the coercive power of the state to enslave the lives of others to his or her private interests.  Political theorists have a very specific word for such coercion.  It is one thing for the state to protect the pursuit of private interests, quite another for it to advance such private pursuits particularly at the cost of enslaving others to them.  An ideal of equality or justice as fairness might suggest that if the coercive power of the state is used to advance the private interests of some it ought to be used to advance the private interests of all, to the extent that such massive promotion of private interests would be at all workable.  But that really just raises the more fundamental question whether the coercive power of the state can justly be used to advance the private interests of anyone.  And on point, whether the state can be justly involved in any aspect of healthcare conceived of as merely the advancement of the interests of autonomous private individuals? Or whether, on the contrary, in justice we ought to say goodbye to all laws that use the coercive power of the state to compel medical treatment of the poor, the halt, and the lame?


Garnett, Rick | Permalink

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Isn't John O'Callaghan replying more to Andrew Mackie-Mason? John Breen said:

“Health” is a scientific term that refers to the proper functioning of the human body and mind, and “healthcare” refers to the use of the medical arts to heal, cure or alleviate the effects of some disease, pathology, or physiological malady that impairs the health of the individual.

Andrew Mackie-Mason replied:

I don't think that claim is correct, though, and I think many people would agree. Health isn't about bringing everyone up to some objective universal standard of "proper functioning." It contains a highly subjective element of what each person sees as the proper functioning of their own body as an integral aspect of their self. This is a large part of the reason why we provide so much leeway for patient choice in health decisions (and, indeed, why religious claims are so often adhered to in health matters).

The problem with both, it seems to me, is that when a legislature passes a "healthcare" law, terms are defined to the extent the legislators intend to define them, and are open to interpretation to the extent the legislators leave them that way. If legislators include contraception in a healthcare law, they are, for the purposes of that law, defining contraception as healthcare. You can't go back and invalidate the inclusion of contraception in a law and argue that the legislators were mistaken to believe it was healthcare. When trying to determine the intent of legislators in applying the law, it seems to me you must try to determine what their intent actually was, rather than speculating what their intent would have been if they had had a different understanding of the meaning of some of the words in the law.

Posted by: David Nickol | Mar 21, 2012 10:01:31 AM

Mr Nickol is right

Nothing is more common than for the legislator to assign a particular meaning to a word. For example, “’cattle’ shall include any animal of the bovine species and any horse, ass, mule, pig, sheep or goat.” ,In this case, all that is necessary to understand the legislation is mentally to substitute the definition for the word “cattle,” wherever it occurs in the text. The fact that some people, in other contexts apply a different definition to the word, or that sheep, for example, are not commonly described as cattle is irrelevant.

Posted by: Michael Paterson-Seymour | Mar 21, 2012 1:08:47 PM

In this case, since contraception is not Life-affirming nor is it Life-sustaining, it is only logical to assume that the purpose of mandating that every Insurance Company provide contraception coverage, and that every institution provide free access to contraception was strictly political. Father John Jenkins, the first to respond to this mandate, knew the moment that he read the HHS mandate that this mandate would force him to have to choose between providing affordable Health Care or violating a revealed Truth of The Catholic Faith and thus pleaded with Kathleen Sebellius to reconsider, to no avail.

Posted by: N.D. | Mar 22, 2012 1:23:17 PM

I responded to this as a part of my response to John Breen here: http://source4politics.blogspot.com/2012/03/on-health-and-subjectivity.html

Posted by: Andrew MacKie-Mason | Mar 23, 2012 6:30:09 PM