Lecture 8 — Justice and Health Care

Part A: Theories of Justice and the Right to Health Care

Brendan Shea, PhD

An Introduction to Bioethics.

Who Lives, Who Dies?

A Case to Sit With

It is 1962. A Seattle hospital has just built the world’s first machine that can keep people with failing kidneys alive — but it has only three treatment slots. About sixty patients in the area will die without it. Every one of them is medically eligible. The machine cannot be shared.

You are on the committee that must decide who gets the three slots.

Write or discuss:

1. What criteria would you use to choose? Be specific.
2. Would you consider a patient’s job, family, or character? Should you?
3. Whatever rule you pick — could you defend it to the families of the people who die?

What the Committee Actually Did

The committee was real. At Seattle’s Swedish Hospital, seven anonymous citizens — a lawyer, a minister, a homemaker, a banker, a labor leader, a state official, and a surgeon — were handed exactly this choice.

• They chose largely by social worth: whether a patient had a steady job, went to church, was married, supported children, seemed likely to “contribute.”
• The journalist Shana Alexander watched them for six months and published what she saw in LIFE magazine in 1962, under the title “They Decide Who Lives, Who Dies” (Alexander 1962).
• The public was horrified — not because the committee was cruel, but because it had no principle beyond its own values.

After You’ve Discussed

Note

The committee’s mistake was not bad intentions. It was deciding life and death with no theory of justice — just an instinct about who “deserved” to live.

The reaction to the Seattle committee helped launch the field of bioethics, and within a decade Congress simply paid for dialysis for everyone who needed it (1972). But the deeper question never went away: when a life-saving resource is scarce, by what principle should it be shared?

Today we meet four serious answers — and test each one against a single donated organ.

Today

By the end of Part A, you will be able to:

• Explain what distributive justice is and why a “treat like cases alike” rule is not enough.
• State the utilitarian, Rawlsian, libertarian, and capabilities theories of justice in plain language.
• Apply all four to a concrete allocation problem — who should receive a scarce organ.
• Describe how the US actually allocates organs (UNOS), and the ethics of presumed consent and organ markets.
• Reconstruct Daniels’ argument that there is a moral right to health care, and the main objections to it.

What Is Justice in Health Care?

Distributive Justice

Distributive justice is the part of ethics that asks how a society should divide up benefits and burdens — here, scarce medical care — fairly.

• Almost everyone accepts a starting rule, the formal principle of justice: treat like cases alike, and different cases differently.
• The trouble is that the formal principle is empty until you say which differences matter. Need? Merit? Ability to pay? Likelihood of benefit?
• The Seattle committee thought “social worth” was a relevant difference. The four theories ahead each name a different feature as the one that counts.

The Problem We Will Keep Returning To

Every theory will be tested on the same hard case, so the differences between them stay visible.

One organ, many candidates.

As of late 2025, more than 108,000 people in the US were waiting for an organ transplant. About 94,000 of them — roughly 87% — need a kidney (Organ Procurement and Transplantation Network (OPTN) 2025). Most will wait years; some will die waiting.

When one donated kidney becomes available and several patients match it, someone decides who gets it. That decision is distributive justice in its rawest form — and each theory answers it differently.

Four Lenses

Each lens fixes on a different question — and that question, not a tidy formula, is what it brings to the bedside.

• Utilitarian: what produces the most total good?
• Rawlsian: what rules would we accept before knowing who we’d be?
• Libertarian: were the holdings and transfers fair?
• Capabilities: what does a person need to function as a human being?

Notice these are not four answers to one question. They are four different questions — which is why, as we’ll see, they rarely hand down a single verdict on their own.

The Utilitarian Lens

The Principle

Utilitarianism says the just distribution is the one that produces the greatest total well-being. Count everyone equally, add up the benefits, and choose the option with the largest sum.

• It is outcome-focused: what matters is results, not who gets what or why.
• Applied to scarce care, it becomes a simple instruction: do the most good per unit of a scarce resource.
• This is the logic behind cost-effectiveness analysis throughout modern medicine.

Applied to the Organ

A first pass says: give the kidney to whoever gains the most good — usually the most years of healthy life. But “total well-being” is bigger than one patient.

• A utilitarian also weighs system-wide effects: rules that keep public trust high, that encourage more people to donate, that don’t frighten families away.
• So the lens doesn’t simply crown a recipient. It might favor opt-out, or even a market (more organs, more lives) — or oppose a market if payment crowds out altruistic donation and shrinks the supply.

The QALY. Health economists measure benefit in quality-adjusted life years (QALYs). One year in perfect health = 1 QALY; a year in poor health counts as less.

Britain’s NICE uses roughly this math to decide what the NHS funds — often around £20,000–£30,000 per QALY. It is the utilitarian instinct turned into a spreadsheet. But notice it answers “is this worth it overall?”, not “which patient deserves it?”

Where It Bites

The strength of the utilitarian lens — maximize benefit — is also its danger.

• It can sacrifice the few for the many: a patient who would gain only a few good years loses to one who would gain decades, every time.
• QALY math can systematically disadvantage the elderly and the disabled, because they are counted as having fewer or “lower-quality” years to gain.
• It treats the individual as a site where good is produced, not as someone with a claim. That is what the next lens insists on.

The Rawlsian Lens

Justice as Fairness

John Rawls asked a different question: not “what maximizes good?” but “what rules would we choose if we were fair?” (Rawls 1971)

The original position. Imagine designing a society’s rules from behind a veil of ignorance: you know nothing about who you will be — your wealth, talents, health, or whether you’ll be the patient who needs the kidney.

Rawls argues that rational people choosing under that veil would not gamble on landing at the bottom. They would choose rules that protect everyone, especially the worst-off — because that worst-off person might be them.

Two Principles, In Order

Behind the veil, Rawls argues, we would choose two principles — and the order matters as much as the content.

1. Equal basic liberties — the same rights and freedoms for all (speech, conscience, bodily integrity).
2. (a) Fair equality of opportunity, and (b) the difference principle: inequalities are just only if they help the least advantaged.

Crucially, the first principle is lexically prior: you may not trade away basic liberties for greater welfare, however large the gain. That priority is exactly what divides Rawls from the utilitarian — no one’s liberty is a line item in someone else’s sum.

Applied to the Organ — with a Caveat

A caution Rawls himself would press. Rawls’s principles govern the basic structure of society — its constitution and institutions — not who gets the next kidney. Using the difference principle to micro-allocate one organ is an extension of his view, not a verdict it strictly delivers.

Read in a Rawlsian spirit (or its prioritarian cousin — give extra weight to the worse-off), the lens does two things:

• It rejects the Seattle committee’s “social worth”: behind the veil, no one would agree to be judged on their job or churchgoing.
• It tilts toward the worst-off — the sickest, or those with the least access — even when that isn’t the choice that maximizes total life-years. Whether it picks a specific recipient still depends on how you build the institution.

Thought Question

Two patients match the one available kidney.

• Patient A is 30, otherwise healthy, and would likely gain ~40 good years.
• Patient B is 55, sicker, and would likely gain ~12 good years — and has already been waiting three years on dialysis.

1. Who does the utilitarian choose? Who does the Rawlsian lean toward?
2. Behind the veil of ignorance — not knowing if you’re A or B — which rule would you pick?
3. Does “years gained” feel like the right measure of a fair claim? What’s missing?

The Libertarian Lens

Entitlement, Not Distribution

Robert Nozick rejects the whole question. There is no “just distribution” to engineer — only just transactions (Nozick 1974).

• A distribution is just if people acquired what they have fairly (without theft or fraud) and transferred it freely.
• On this view, no one is owed health care. Care is a service, produced by others, that you obtain by buying it or being given it.
• Forcing some to pay for others’ care is, for Nozick, a kind of coercion — taking what people justly earned.

Applied to the Organ

The libertarian focuses on one fact the other theories skip: the kidney belonged to someone.

• An organ is the donor’s to give — so donor wishes, including directed donation (“give it to this person, or people like me”), carry real moral weight.
• From self-ownership, the logic runs that what you may give, you may also sell — pointing toward a market.
• But libertarians don’t all land there. Nozick’s Lockean proviso (“enough, and as good, left for others”) and the requirement that acquisitions be just can constrain markets that prey on the desperate — and left-libertarians read self-ownership very differently. The lens leans toward markets; it doesn’t compel them.

The Market Made Real: Iran

Since 1988, Iran has run the world’s only legal, regulated kidney market. Living donors are paid — officially about $1,400, plus negotiated payments from recipients.

The result libertarians predict actually happened: Iran eliminated its kidney waiting list by around 1999 (Ghods and Savaj 2006). People who would have died on dialysis received transplants.

Important

The catch

In surveys, about 43% of Iranian donors said their motive was purely financial, and roughly three-quarters said selling kidneys should be banned. The sellers are overwhelmingly poor.

A market clears the list — by routing the burden onto people who feel they have no choice.

The Capabilities Lens

What People Are Actually Able to Do

Amartya Sen and Martha Nussbaum offer a fourth lens: justice is about securing the real freedoms and functionings people need to live a fully human life (Sen 1999; Nussbaum 2011).

• A capability is a genuine opportunity to do or be something a person has reason to value — to be healthy, to move about, to take part in their community.
• Money and even “welfare” are only means. What matters is whether a person can actually function.
• On Nussbaum’s list, bodily health is a central capability that a just society must secure for everyone above a real threshold.

Applied to the Organ

The capabilities lens asks not “who gains the most life-years?” but “what does this person need to function as a human being?”

• Against the utilitarian, it refuses to reduce a person to a QALY score. A disabled candidate is not “worth less”; the question is what they need to flourish.
• Against the libertarian, it treats health as something a just society owes people, not merely a good they may buy.
• But it, too, under-determines the rule: proponents disagree about what it requires, Sen resists a fixed list, and “secure a threshold for all” doesn’t say who gets this organ when there isn’t enough to go around.

Same Patient, Two Verdicts

The utilitarian counts a candidate with a permanent disability as gaining fewer “quality-adjusted” years — and so ranks them lower for the organ.

The capabilities theorist asks what this person needs to live a full human life, and rejects the idea that a disabled life is worth less. The disability lowers their score in one lens and is irrelevant to their claim in the other.

On the same disabled candidate, the two lenses weigh identical facts in opposite directions — and send the kidney to different people. Which considerations you treat as decisive has real stakes.

Four Lenses, One Organ

The Theories Head to Head

Each lens foregrounds a different consideration — and that, not a final verdict, is what it contributes.

Lens	What it makes salient	Why it doesn’t settle policy alone
Utilitarian	total benefit, system-wide effects	depends on the empirical facts; can back many rules
Rawlsian	basic liberties, then the worst-off	governs institutions, not one organ
Libertarian	whose it was; consent; fair transfer	the proviso and “just acquisition” cut both ways
Capabilities	what a person needs to function	proponents disagree on what it requires

Theories Don’t Hand Down Policies

Important

The single most common mistake in these debates is to say “utilitarianism requires a market” or “Rawls forbids it.” None of these theories delivers a policy by itself.

• Each one tells you what to weigh — total welfare, the worst-off, consent, capabilities.
• Turning that into a rule needs empirical facts (does a market grow or shrink supply?) and interpretive choices (what does “fair acquisition,” or “the threshold,” actually demand?).

So the lenses don’t end the argument. They tell you what the argument is about — and that is exactly what the Seattle committee never worked out.

Discussion

Look back at the Seattle “God Committee.”

1. Which of the four lenses, if any, was the committee using when it judged “social worth”?
2. Which lens would have most changed its decisions — and how?
3. If you had to build a real allocation system, which lens would you make the backbone, and which would you keep only as a check?

How We Actually Allocate Organs

The UNOS System

In the US, the Organ Procurement and Transplantation Network, run through UNOS, matches donated organs to waiting patients by a published algorithm — not a committee’s gut feeling (Organ Procurement and Transplantation Network (OPTN) 2025).

The algorithm blends factors that, in fact, come straight from our four lenses:

• Medical urgency — how sick the patient is (a nod to Rawls’ worst-off).
• Expected benefit — how well and how long the graft will work (utilitarian).
• Time on the waiting list — first-come fairness.
• Matching and proximity — blood type, tissue, distance.

Three Principles in Tension

“Sickest first” and “best outcome” often point at different patients — the sickest patient may do worst with the organ. No rule escapes the trade-off.

Where Do Organs Come From? Opt-In vs. Opt-Out

The US uses opt-in: you are a donor only if you register. About 48 donors per million people.

Spain uses presumed consent (soft opt-out): everyone is a donor unless they say no. Spain leads the world at 52.6 per million (2024) (Matesanz et al. 2017).

Why Spain really wins

The law is not the whole story. Spain pairs opt-out with the ONT — full-time donation coordinators in every hospital and skilled family support. Spanish families consent about 8 times in 10; the UK, also opt-out, gets about 6 in 10.

Infrastructure, not just the default rule, drives the result.

When Money and Choice Bend the System

Even a need-based system has seams that wealth and preference can widen.

• Directed and conditional donation lets donors steer organs toward specific people or groups — honoring the donor’s liberty, but pulling against equal access.
• Multi-listing: a patient can register at several transplant centers in different regions at once. The famous example is Steve Jobs, who registered in Tennessee while living in California and received a liver there.
• It is legal. It is also a reminder that the ability to travel and pay can quietly improve your odds in a system meant to run on need.

Philosophers Take Sides

This is a live debate among serious philosophers — and it does not split neatly along left and right.

Allow regulated sales

• Radcliffe-Richards and colleagues: if we let people take risks for money in far more dangerous jobs, banning kidney sales is inconsistent paternalism (Radcliffe-Richards et al. 1998).
• Cherry: self-ownership and consent make a regulated market legitimate — and it saves lives (Cherry 2005).

Forbid them

• Satz: kidney markets are noxious — built on desperation and weak agency, with harmful, unequal outcomes (Satz 2010).
• Sandel: pricing organs corrupts how we value the body and one another, regardless of consent (Sandel 2012).

Note both sides include egalitarians and libertarians — the disagreement is about consent, exploitation, and what money does to a thing, not simply about markets.

Thought Question

You are a healthy college student, deep in debt. A patient on dialysis offers you $30,000 for one of your kidneys. You can live a normal life with one. The exchange is voluntary, and it would save the patient’s life and clear your debt.

1. Is there anything wrong with this trade? If so, what exactly?
2. Does your answer change if the seller is desperate rather than merely willing?
3. Would you feel differently about selling blood plasma, or an egg, or a lung? Why?

Make It Contemporary

The US bans organ sales outright — the National Organ Transplant Act of 1984 makes it a federal crime (United States Congress 1984). Iran allows them, and has no kidney waiting list.

So the trade-off is stark and real: the US protects the poor from being pressured to sell, and tens of thousands wait — some die. Iran clears the list, and its sellers are overwhelmingly poor and largely regretful.

Discuss: If a regulated market would save thousands of lives a year, is banning it a moral stand — or a comfortable way of letting people die so we don’t have to watch the poor sell their organs?

After You’ve Discussed

Note

The same three ideas from research ethics return here — coercion, undue inducement, and exploitation — and they still come apart the same way: a kidney sale may involve no coercion at all and remain exploitative.

What the market case adds is a fourth idea the first three miss: commodification — the worry that some things (organs, votes, people) are degraded the moment they carry a price. That, not coercion, is what splits the debate.

Is There a Right to Health Care?

From One Organ to the Whole System

The organ case was a stand-in. The same theories now face the largest distributive question of all: does a person have a right to health care at all?

Two kinds of rights.

• A negative right is a right to be left alone — free speech, the right to refuse treatment. It only requires others not to interfere.
• A positive right is a right to be provided something — and it requires others to act, and usually to pay.

“A right to health care” is a positive right. That is exactly why it is contested: it places a claim on other people’s resources.

Daniels: Health and Fair Opportunity

Norman Daniels builds the strongest case for a right to care by extending Rawls (Daniels 2008).

• Rawls says justice requires fair equality of opportunity: your life chances shouldn’t be set by the lottery of birth.
• Disease and disability, Daniels argues, shrink your range of opportunity just as surely as poor schooling does — they shut doors a healthy person can walk through.
• So a society already committed to fair opportunity is committed, by its own logic, to the health care that restores normal functioning.

On this view, health care isn’t charity. It’s what fair opportunity requires.

The Counterarguments

The libertarian (Nozick)

There is no positive right to care, because it forces some to fund others. Compassion may be a virtue, but it cannot be coerced through taxation without violating people’s just holdings.

The utilitarian

Whether to guarantee care is not a matter of right at all — it’s an empirical question. Guarantee it if and only if doing so maximizes overall welfare. The answer could change with the budget.

Daniels says opportunity grounds a right; Nozick says rights run the other way; the utilitarian says “right” is the wrong word. Three lenses, three verdicts.

Where the US Stands

The US is the rich-world outlier, and its pattern is revealing.

• It treats education as a right (free K–12), food and housing as partial rights (SNAP, vouchers) — floors below which it tries not to let people fall.
• But it treats most health care as a market good: something you get mainly through a job, a purchase, or by qualifying for a program.
• The result is a patchwork with real gaps — which is the subject of Part B.

The Cancer Drug Test

A new cancer therapy (CAR-T, a real treatment) can cost around $475,000 for a single course. A public insurer must decide whether to cover it.

How does each lens rule?

1. Utilitarian: is the QALY gain worth $475,000 versus spending it elsewhere?
2. Rawlsian / Daniels: does fair opportunity require funding it for the worst-off who can’t pay?
3. Libertarian: is anyone owed this at all — or should those who want it buy it?

Which answer can you live with — and who pays for it?

Mini-Recap

We started with seven citizens in Seattle deciding who lived, and asked what principle could replace their guesswork. Four answered: the utilitarian (maximize good), Rawls (protect the worst-off), the libertarian (free transactions, even markets), and the capabilities view (secure what people need to function). We watched them split over a single kidney, over selling organs, and over whether health care is a right at all — with Daniels arguing it follows from fair opportunity.

We now have the values. Part B brings the facts: how the actual US health care system spends the most in the world and yet leaves Americans sicker and shorter-lived than their peers — and what, by these four lenses, we might owe each other.

Review Questions

Recall

State the difference principle and explain how a Rawlsian and a utilitarian would allocate one kidney differently.

Apply

A city has one ICU bed and two patients: a 40-year-old with a 70% survival chance and a 70-year-old with a 40% chance. Pick a theory of justice and defend who gets the bed.

Debate

Is there a moral right to health care? Defend your answer using Daniels and at least one objection to him.

Key Terms

• Distributive justice — how a society fairly divides scarce benefits and burdens.
• Utilitarianism — maximize total well-being; outcome-focused.
• Veil of ignorance — choose rules not knowing your place (Rawls).
• Priority of liberty / difference principle — equal basic liberties come first (lexically prior); then inequalities must help the worst-off (Rawls).
• Entitlement theory — justice is fair acquisition and transfer, not a pattern (Nozick).
• Capabilities — the real freedoms people need to function (Sen, Nussbaum).
• QALY — quality-adjusted life year; a unit of health benefit.
• Presumed consent — everyone is an organ donor unless they opt out.
• Negative vs. positive rights — a right to non-interference vs. a right to be provided something.
• Fair equality of opportunity — the Rawlsian idea Daniels uses to ground a right to care.

Further Reading

• Rawls, John. A Theory of Justice. Harvard University Press, 1971.
• Daniels, Norman. Just Health: Meeting Health Needs Fairly. Cambridge University Press, 2008.
• Nussbaum, Martha. Creating Capabilities. Harvard University Press, 2011.

References

Alexander, Shana. 1962. “They Decide Who Lives, Who Dies.” Life 53 (19): 102–25.

Cherry, Mark J. 2005. Kidney for Sale by Owner: Human Organs, Transplantation, and the Market. Georgetown University Press.

Daniels, Norman. 2008. Just Health: Meeting Health Needs Fairly. Cambridge University Press.

Ghods, Ahad J., and Shekoufeh Savaj. 2006. “Iranian Model of Paid and Regulated Living-Unrelated Kidney Donation.” Clinical Journal of the American Society of Nephrology 1 (6): 1136–45. https://doi.org/10.2215/CJN.00700206.

Matesanz, Rafael, Beatriz Domínguez-Gil, Elisabeth Coll, Beatriz Mahíllo, and Rocío Marazuela. 2017. “How Spain Reached 40 Deceased Organ Donors Per Million Population.” American Journal of Transplantation 17 (6): 1447–54. https://doi.org/10.1111/ajt.14104.

Nozick, Robert. 1974. Anarchy, State, and Utopia. Basic Books.

Nussbaum, Martha C. 2011. Creating Capabilities: The Human Development Approach. Belknap Press of Harvard University Press.

Organ Procurement and Transplantation Network (OPTN). 2025. National Data: Waiting List and Transplants. U.S. Health Resources and Services Administration. https://optn.transplant.hrsa.gov/data.

Radcliffe-Richards, Janet, A. S. Daar, R. D. Guttmann, et al. 1998. “The Case for Allowing Kidney Sales.” The Lancet 351 (9120): 1950–52. https://doi.org/10.1016/S0140-6736(97)08211-1.

Rawls, John. 1971. A Theory of Justice. Harvard University Press.

Sandel, Michael J. 2012. What Money Can’t Buy: The Moral Limits of Markets. Farrar, Straus; Giroux.

Satz, Debra. 2010. Why Some Things Should Not Be for Sale: The Moral Limits of Markets. Oxford University Press.

Sen, Amartya. 1999. Development as Freedom. Alfred A. Knopf.

United States Congress. 1984. National Organ Transplant Act of 1984, Pub. L. No. 98-507. 98 Stat. 2339. https://www.congress.gov/bill/98th-congress/senate-bill/2048.