Righting Health Policy: Bioethics, Political Philosophy, and the Normative Justification of Health Law and Policy

245 Pages·2022·1.432 MB·English

by  D. Robert MacDougall

Righting Health Policy
RevolutionaRy Bioethics
Series Editor: Rachel Haliburton, University of Sudbury
Revolutionary Bioethics is a new series composed of scholarly monographs and
edited collections organized around specific topics that explore bioethical theory
and practice through the frameworks provided by feminist ethics, narrative
ethics, and virtue ethics, challenging the assumptions of mainstream bioethics
in the process. Contemporary mainstream bioethics has become ideological
and repetitive, a defender of activities that bioethics was originally created to
critique, and an apologist for unethical practices and policies in medicine that it
once saw itself as fighting against. Taking its title from recent work being done
on MacIntyre’s neo-Aristotelian ethics, Revolutionary Bioethics is organized
around the idea that bioethics needs to reform both its theory and practice, and its
goal is to begin the conversation about what a transformed bioethics—one that
is unafraid to explore new theoretical approaches, and to examine and critique
current bioethical practices—might look like.
Titles in the series
Righting Health Policy: Bioethics, Political Philosophy, and the Normative
Justification of Health Law and Policy, by D. Robert MacDougall
Caregiving, Carebots, and Contagion, by Michael C. Brannigan
Engineering Perfection: Solidarity, Disability, and Well-being, by Elyse Purcell
Physician-Assisted Suicide and Euthanasia: Before, During, and After the Third
Reich, Edited by Sheldon Rubenfeld and Daniel P. Sulmasy, with Astrid Ley
Righting Health Policy
Bioethics, Political
Philosophy, and the
Normative Justification of
Health Law and Policy
D. Robert MacDougall
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Contents
Acknowledgments vii
Introduction 1
Chapter 1: The Political Tasks of Bioethics 13
Chapter 2: Bioethics and Its Political Philosophy Problem 35
Chapter 3: Bioethicists on Kant and the Legalization of Organ
Markets 63
Chapter 4: Kantian Moral Theory and the Problem of Political
Legitimacy 87
Chapter 5: Rights as the Basis for Political Legitimacy 105
Chapter 6: State Authority and Morally Justifiable Coercion 129
Chapter 7: Kidney Markets and the Limits of Legitimacy 161
Chapter 8: Legal Standards of Informed Consent and the Authority
of the State 185
Conclusion 209
Bibliography 217
Index 227
About the Author 235
v

Acknowledgments
I owe gratitude to many others for help and encouragement during the writing
of this book.
Participants in the New York City Early Career Ethics Workshop deserve
special thanks for comments and feedback on earlier drafts of several chap-
ters. Sean Aas, Collin O’Neil, Travis Timmerman, Sari Kisilevsky, Jacob
Sparks, Duncan Purves, Regina Rini, and Daniel Fogal all provided com-
ments and discussion on various chapters. The group has been encouraging
in ways that go far beyond the present manuscript.
Audiences at the American Philosophical Association, American Society
for Bioethics and the Humanities, Canadian Bioethics Society, MANCEPT
Workshops in Political Theory, Dalhousie University, and New York City
College of Technology have provided valuable input on previous drafts
and talks.
A variety of friends and colleagues have provided thoughtful comments
and encouragement at different stages of the writing process, including
Nathaniel Brown, Aaron Jaffe, Tim Krahn, and Jason Breen.
Many colleagues at New York City College of Technology have also
contributed in one way or another to the writing of this book. Dean Justin
Vazquez-Poritz and President Russ Hotzler have both provided generous
support with their time and energy in helping me obtain books, pay for con-
ference travel, and organize research meetings on campus. Department chairs
Peter Parides and Jean Hillstrom helped encourage, organize, and facilitate
various affairs relevant to the book.
The City University of New York provided generous support for com-
pleting the manuscript through a CUNY Book Completion Award. The
Professional Staff Congress of the City University of New York provided
grants that made it possible for me to spend three summers focusing on the
present manuscript.
I owe an immense debt of gratitude to mentors who formed the intellectual
communities in which I first began thinking about bioethics and political
vii
viii Acknowledgments
philosophy. I am particularly grateful to Griffin Trotter, Jeffrey Bishop,
Francoise Baylis, Ana Iltis, and Tristram Engelhardt.
Editors Jana Hodges-Kluck and Rachel Halliburton at Lexington Books
have been supportive and professional from our first interactions and have
been gracious with me as I have tried to finish the manuscript through the
midst of several moves, a wedding, and a global pandemic.
My parents have, together, been an unending source of encouragement
and a dependable source for critical discussion of the themes in the book.
My father, Dan MacDougall, gave me my first insight into the importance of
scholarship and the possibility of contributing to a field by challenging widely
held views. My mother, Barb MacDougall, has taught me the importance of
communicating clearly. She contributed immensely to this book by reading
the entire draft and providing copious editorial and critical comments.
Most important, I would like to thank Moby Halverson MacDougall, my
wife, who has been the source of so much joy as I have been completing this
manuscript.”

Parts of chapters 3 and 7 appeared earlier as “Sometimes Merely as a
Means: Why Kantian Philosophy Requires the Legalization of Kidney Sales.”
Copyright © 2019 Oxford University Press. This article first appeared in The
Journal of Medicine and Philosophy Volume 44, no. 3 (2019), pages 314–34.
A version of chapter 8 first appeared as “Must Consent Be Informed?
Patient Rights, State Authority, and the Moral Basis of the Physician’s Duties
of Disclosure.” Copyright © 2021 Johns Hopkins University Press. This
article first appeared in Kennedy Institute of Ethics Journal, volume 31, no.
3, 2021, pages 247–70.
Introduction
THE TASKS AND TOOLS OF BIOETHICS
There is an old saying that when you have a hammer, everything looks like a
nail. It could mean that when you have a certain tool handy, it seems like the
best tool for every task. Or, it could mean that when you have a tool, every-
thing looks like a problem that needs to be fixed. Whatever else it means,
though, it surely means that the tools we have at our disposal influence the
way in which we solve problems. Sometimes we use a hammer when a pry
bar, a mallet, or a nail puller would be better.
This is a book about tools, the tools that we use to judge the moral accept-
ability of laws and policies regulating health and the various practices of
health care. What makes a law a good one? What makes a behavior deserv-
ing of regulation, incentivization, or prohibition? What should laws aim
at? When do laws go too far? Answering these questions requires tools, or
methods. It is crucially important that we use the right tool for the job when
answering questions like these. I will argue that bioethics has not been using
the right tools when answering questions such as these. It has tended to use
the tools it has available rather than the best ones for the job.
The tools that I am primarily concerned with in this book are philosophi-
cal ones. The discussion about methods in bioethics is a relatively big and
multifaceted one: bioethics is inherently interdisciplinary, and so there is no
single set of tools applicable to all, or perhaps even any, bioethics problems
or issues. Even the questions I listed above are not solely philosophical ques-
tions. When we ask whether a behavior should be regulated or prohibited,
for example, sociology and the medical sciences might be relevant. In fact, it
might be harder to list disciplines not relevant to these questions than it would
be to make a list of those that are. Everything affects everything; how can any
tool be the “wrong one” for the job, if we need so many tools to get a grasp
on the moral problems we face in real life?
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