Rawls’s original position was pulled into a debate about whether maximizing Quality Adjusted Life Years (QALYs) would be unjust or not. This gives us an opportunity to see how the original position would work and what we think of it.
Note: I am going to use the phrases “behind the veil of ignorance” and “in the original position” interchangeably. That is because the parties in the original position are behind the veil of ignorance. To put it the other way around, what it means to be behind the veil of ignorance is that you do not know the things that the parties in the original position do not know. In particular, you do not know how your decisions will affect your life because you do not know who you are on the other side of the veil or, if you prefer, outside of the original position.
Singer, McKie, Kuhse, and Richardson (henceforth, Singer et. al.) seek to defend the use of QALYs against what Harris called the double jeopardy problem, that is, the idea that people’s congenital health problems could both reduce the quality of their lives and also reduce their eligibility for treatment that might save their lives from other curable conditions. Harris thinks this is unfair.
Singer et. al. begin by pointing out that the use of QALYs does not systematically work against those with health problems. Where treatments that would enhance the quality of life are concerned, people with health problems are usually favored under the QALY system when compared with those who are in relatively good health. If the quality of your life is pretty high, medical treatment can’t make it much better. By contrast, if the quality of your life is fairly low, there is room for medical treatment to make a very large difference. For an illustration, see the case of Karen and Lisa (Singer et al. 1995, 145).
But they concede the possibility of the phenomenon that Harris was worried about. Sometimes we have to make decisions about saving lives. Transplantable vital organs like hearts are scarce: not everyone who needs one can get one. When deciding whose life to save, those who are handicapped and those who have fewer years to live can lose out when competing with those who can be restored to full health or those who have many years to live. For illustrations, see the cases of Michelle and Nina and Otto and Richard (Singer et al. 1995, 145–46).
In these cases, someone is going to die who does not have to die. Either one could be saved but there aren’t enough resources available to save both. That’s what we are imagining. So how do we go about deciding who to save?
Should we give the treatment to the person who will live the longest or healthiest life? That is what we would do if we were trying to maximize QALYs.
Or should we decide randomly, treating each person’s life as equally valuable by giving each an equal chance of being saved? This is a natural extension of Harris’s point of view.
Singer et. al. propose using the veil of ignorance to settle the question: how would you decide if you did not know whether you are the person who would benefit from the QALY approach or the person who would suffer from it? They argue that those behind the veil of ignorance would choose to maximize QALYs for the following reason:
“To maximize the satisfaction of their own interests, rational egoists would have to choose a system that gives preference to saving life when it is most in the interests of the person whose life is saved” (Singer et al. 1995, 148).
(I do not know why they did not say that this is the choice they would make if they were maximizing expected utility. I will discuss this later.)
That means saving the life of the person who is otherwise healthier or who otherwise has longer to live rather than the life of the person who is otherwise less healthy or otherwise has less time to live.
Singer et. al. claim that the fact that people would choose to maximize QALYs if they were behind a veil of ignorance is enough to rebut the double jeopardy argument (Singer et al. 1995, 149).
Harris makes basically four points in reply.
First, he argues that everyone has an equal interest in continuing to live. So someone behind the veil of ignorance cannot think that some people have a greater interest in survival than others (Harris 1995, 153).
Second, he believes that there is no way for people behind a veil of ignorance to prefer saving one person’s life rather than the other’s (Harris 1995, 153). They can only have a preference if they know which person they represent in the real world. But, by hypothesis, they lack that information.
(I wish that he had stopped there and explored this more. What would people behind the veil of ignorance want society to do in cases like these? How would they want society to make a choice that determines which one of them will live and which will die? I will say more about this later.)
Third, Harris thinks that veil of ignorance arguments are flawed because the people behind the veil (that is, the parties in the original position) could choose something unjust, such as slavery (Harris 1995, 154). I think the idea is that nothing prevents them from doing this, so the choice behind a veil of ignorance (that is, in the original position) does not guarantee a just result. Of course, Rawls had argued that it is overwhelmingly likely that the parties in the original position would reject unjust institutions like slavery. Their fear that utilitarianism might possibly allow slavery is supposed to drive them to reject utilitarianism, after all. But, Harris is implicitly saying, if you already know that slavery is unjust, why bother running the question through the intermediate steps of the original position? At best, the original position argument simply repeats what you already knew, namely, that institutions like slavery are unjust. At worst, if you are committed to follow the decisions of the parties in the original position, you could wind up with an unjust institution like slavery.
Finally, Harris notes that Rawls himself thought the parties behind his veil of ignorance (the parties in the original position, that is) would choose the maximin, or best worst outcome (Harris 1995, 154–55). Given Harris’s disdain for this kind of argument, he is not sure what to do with that. I think he should have used it in support of his claim that society should give priority to saving lives over enhancing the quality of life. (I will say more about that in the last section.)
In brief, Harris’s first two points apply to questions about the use of QALYs when life saving treatments are at issue. His third point rejects original position arguments entirely. His fourth point could be used to support his position on the use of QALYs in deciding between life enhancing treatments and life saving treatments.
So we have something like a lawyer’s argument: “my client wasn’t even there but if he was the other guy provoked him.” In Harris’s case, “original position arguments are no good but they favor my side.”
Ideally, we would have discussed Harris’s points about the nature and value of veil of ignorance (that is, original position) arguments. But, alas, I didn’t manage our time well. So the notes in the preceding section will have to do.
We did talk about two things that puzzled us.
I will add one other thing.
Finally, I want to say something about a very good point that Aaron made.
I said that I was confused about why Singer et. al. did not use expected utility to argue that the parties in the original position would choose to maximize QALYs. This is what I thought they would say. (This is me, not them.)
The rational way to make a decision in the original position, that is, behind the veil of ignorance, is the same as the rational way of making any decision: maximize your expected utility. That is, you should estimate the value of the possible outcomes of your decision and multiply those values by the probability that those possible outcomes will actually happen.
For instance, look at Otto and Richard. Both need a heart transplant to live, but Richard will live longer if he gets it than Otto will if he gets it (Singer et al. 1995, 145–46).
| quality of life w/o treatment | quality of life w/treatment | difference | |
|---|---|---|---|
| Otto | 0 × 20 = 0 | 1 × 20 = 20 | 20 |
| Richard | 0 × 38 = 0 | 1 × 38 = 38 | 38 |
If you are behind the veil of ignorance, you do not know whether you are Otto or Richard. So how should you decide who gets the heart?
Here is what Singer et. al. did say.
“To maximize the satisfaction of their own interests, rational egoists would have to choose a system that gives preference to saving life when it is most in the interests of the person whose life is saved” (Singer et al. 1995, 148).
I think Harris is right to say that this is unsatisfactory. The people making the decision don’t know which person they are. So why would they assume that they are the person who would benefit the most from getting the heart? (Where “benefit” is measured by QALYs.)
However an expected utility calculation gets the answer that Singer et. al. wanted.
If you are behind the veil of ignorance, there is a 50% chance that you are Richard and a 50% chance that you are Otto.
If you choose to allocate heart transplants in a way that maximizes QALYs, there is a 100% chance that the heart will go to Richard. For someone in the original position, that is, behind a veil of ignorance, the expected utility of choosing to maximize QALYs is the probability of being Otto (50%) multiplied by the value of the outcome for Otto (death, so 0) added to the probability of being Richard (50%) multiplied by the value of the outcome for Richard (38 years of life at full health).
(.5 × 0) + (.5 × 38) = 19
If you choose to give eligible candidates an equal chance at a heart transplant, there is a 50% chance that the heart will go to Otto and a 50% chance that it will go to Richard. For someone in the original position, that is, behind a veil of ignorance, the expected utility of choosing to allocate heart transplants in this way is the probability of being Otto (50%) multiplied by the probability that Otto gets the heart (50%) multiplied by the value of the outcome for Otto (20 years of life at full health) added to the probability of being Richard (50%) multiplied by the probability that Richard gets the heart (50%) multiplied by the value of the outcome for Richard (38 years of life at full health).
(.5 × .5 × 20) + (.5 × .5 × 38) = 14.5
Since 19 is greater than 14.5, the expected utility calculation favors maximizing QALYs.
Of course, what is needed is an explanation of why it makes sense to maximize expected utility when making these kinds of decisions. Again, I think the best argument has to be that this is the only rational way of making decisions in general. They might add that it helps them to avoid apparently absurd outcomes, like flipping a coin to decide between giving a heart transplant to someone who will live for another month and giving it to someone who will live for forty more years.
We were puzzled by cases involving scarce resources, like transplantable hearts. In these cases, the decision is a matter of life or death. The person who gets the heart lives, the other one dies.
Rawls had said that the parties in the original position, that is, people behind a veil of ignorance, would choose the best worst outcome. Strictly speaking, he said that is what they would choose in the special circumstances of the original position: the decision happens only once, it could have drastic effects on the course of their lives, the worst outcome is unacceptable, they cannot estimate probabilities, and there is an acceptable alternative that avoids the worst possible outcome. Finally, the decision in Rawls’s original position governs people who are in what he called the “circumstances of justice;” that means there is moderate scarcity and everyone benefits from rules that regulate the distribution of goods. (For example, they all benefit from property rules since people in a society with property rights are more willing to work to produce things than they would be if they could not keep the results of their efforts as their own property.)
The cases at hand have many of these features, but not all of them. In particular:
The original position should be a sensible way of thinking through a problem like “how should we decide who gets the heart?” That is, it should be sensible to ask, “what would I decide if I did not know how the decision would affect me?” But it’s surprisingly difficult to say how the argument would work.
Maybe the answer is that they would opt for giving everyone an equal chance, as Harris suggests. Or maybe they would choose to maximize expected utility, as I think Singer et. al. should have said.
Or maybe they would be incapable of making a decision. If so, as Samuel argued, that appears to be an important limitation on original position arguments.
One of Harris’s better points was that a society that maximizes QALYs will sometimes shift resources away from treatments that save lives to treatments that improve the quality of life: for example, inexpensive hip replacements for lots of people will be favored over kidney dialysis for a few. Harris thinks that this is unjust because it does not put an equal value on lives. He thinks a just society would give nearly absolute priority to saving some people’s lives over enhancing the quality of other people’s life.
As we saw, Harris is suspicious of original position arguments. But this is a case where Rawls’s views naturally line up with his own.
Suppose the parties in the original position had to choose between two ways of allocating resources in their medical system:
The worst possible outcome under the QALY system is that you die because your society took the resources that could have been used to keep you alive and spent them instead on improving the quality of life for others. For example, suppose you need kidney dialysis to live but your society devotes the resources that could have gone to kidney dialysis to hip replacements instead.
The worst possible outcome under the second system is that you live with a debilitating condition, like an arthritic hip, that could have been cured. It was not cured because your society devoted the resources that would have gone to hip replacements to very expensive life saving treatments like kidney dialysis.
In short, these are the worst possible outcomes:
Living with an arthritic hip is better than being dead. So if the parties in the original position choose the best worst outcome, as Rawls said they would, they would agree with Harris. They would reject maximizing QALYs and instead insist that resources go to life saving treatments, like kidney dialysis, over life enhancing treatments, like hip replacements.
Finally, I want to say something about a point that Aaron made very strongly. In discussing these cases, we have made an assumption about scarcity: there are only enough resources to save one person or there are only enough resources to either save a life or to enhance the quality of life.
Aaron rejected that assumption as artificial and possibly pernicious. Wealthy societies can choose to spend a lot more on health care than they do. They just have to take the money from something else, like the military. (Or fancy private colleges? Nooooo!) We should not simply assume that this option is not available. And we should especially not let an assumption that we make for the purposes of a highly stylized discussion in a seminar spill over into our real political lives, such that we simply take scarcity for granted in the real world.
These are excellent points. That said, there are cases where scarcity is hard to avoid. There have to be some limits to what we want to spend on health care, even if other ways of spending our resources merely enhance the quality of life rather than saving it. (At least, that’s what I think. I am a doctor of philosophy rather than a medical doctor, after all.) But our demand for health is inexhaustible: who doesn’t want more health or a longer life? So I think there will always be a gap between our demand for health care and the resources available to meet the demand.
If that is too abstract, just think about transplantable organs. There simply aren’t enough relative to the need. There are things we can do to increase the supply, like allowing economic markets for organ transplants. But even then, we will probably face shortages. So I think the assumption of scarcity is legitimate, even granting the truth of Aaron’s observations.
(Remember: “behind the veil of ignorance” = “in the original position.”)
Harris, John. 1995. “Double Jeopardy and the Veil of Ignorance - a Reply.” Journal of Medical Ethics 21 (3): 151–57.
Singer, Peter, John McKie, Helga Kuhse, and Jeff Richardson. 1995. “Double Jeopardy and the Use of QALYs in Health Care Allocation.” Journal of Medical Ethics 21: 144–50.
There was a handout for this class: 26.OPandQALYs.handout.pdf