Ex-ante and ex-post inequalities

This section details how socioeconomic inequalities leave people unequally situated to protect themselves both ex-ante, from infection and ex-post, from severe illness and need of intensive care. The generic fairness argument that we unfold in the next section, draw support from both sides of this distinction.

The generic fairness argument

The above-mentioned effects of the COVID-19 pandemic all have implications for social justice, and, as we shall argue shortly, on an ecumenical account of fairness, they all support the conclusion that welfare-states have a special responsibility to protect the socially disadvantaged. We have already established in previous sections that the health risks engendered by the pandemic fall especially on the socially disadvantaged. This section unfolds the normative side of the argument.

By building on an ecumenical account of fairness, we mean to reach out to people of different moral dispositions. We do not want to commit our argument to any particular distributive principle in order to make the argument compelling to egalitarians and prioritarians alike. Two central lines of thought should be noticed, however. First, as is today widely accepted, lending much from the literature on luck-egalitarianism and its applicability to healthcare,31–33 that it is a central concern of justice to secure an equal distribution of healthcare resources. This does not necessarily imply that everyone should have the same outcome, but that healthcare resources are allocated to secure equality in the space of resources and opportunities, thus neutralising the effects of luck. As such, the egalitarian strand of theory speaks to a generic consideration of fairness, in the sense that it objects to inequalities that stem from unchosen differences. Hence, insofar as the distributive consequences of the Covid-19 pandemic are an instance of (bad) luck, egalitarianism would demand their rectification. Moreover, in the case that the health-related costs of the pandemic increased inequalities in health—that is, making the already badly off even worse off—this would be especially unjust from an egalitarian perspective.

Second, it is also widely accepted that justice involves a special obligation to assist the badly off. In addition to the above-mentioned egalitarian line of thought, many furthermore accept the claim, nested in distributive prioritarianism, that there is more intrinsic moral worth in helping people the worst their situation, independent of how well others are doing.23 Whereas egalitarianism is relatively evaluative—it evaluates the stakes of individual claims based on their relative stance compared with others—prioritarians are concerned with absolute levels of well-being. What matters is how badly off people are, not how badly off they are compared with others. Thus, while distinct from egalitarianism theoretically, the implications of the view for the pandemic’s distributive consequences are similar. We have strong moral reasons to protect the socially worse off from the effects of the pandemic.34

Thus, we arrive at the generic fairness argument for health-related pandemic justice.

P1—empirical: The health risks involved in the pandemic, both in terms of exposure and risk of severity and mortality, and resulting need of intensive care, fall especially hard upon the socially disadvantaged.

P2—normative: It is especially unjust when pandemic suffering falls upon the already worse off, because:

a. it makes things worse for people who are already comparatively badly off.

b. suffering has more negative moral value, the worse off people are.

Conclusion: Thus, pandemic effects are especially unjust.

The subpremises a. and b. are theoretically compatible, and many people intuitively accept both. However, given that they can be both conjunctively or disjunctively connected, even people who only accept one of them—for example, strict egalitarians or strict prioritarians—should find the conclusion compelling. Thus, it seems that the fairness argument is both ecumenical and quite strong.

Of course, this invites considerations of potential internal conflict. The generic fairness argument cannot guide us, for example, in choosing between a distribution benefiting the worst off at the cost of increased inequality and another distribution less beneficial to the worst off but which secures a more equal outcome. On such issues, the fairness argument needs further elaboration and egalitarians and prioritarians will disagree on that. We can imagine pluralist compromises such as inspired by Rawls’ difference principle35—for example, that we should distribute equally unless an unequal distribution is beneficial for the worst off—but as it stands, the fairness argument makes no such commitment. Like Cass Sunstein’s incomplete theorised agreements,36 its strength lies in the broad appeal of its conclusion despite being arrived at from different theoretical foundations.

So far, the straightforward interpretation of the fairness argument is as an instantiation of a telic, or patterned, moral principle. But this need not be the case; that is, the generic fairness argument is ecumenical also at a more foundational level, inviting in also procedural or contractualist considerations. On a contractualist account, we could say that it would be prudent for every individual person on the basis of lack of knowledge about socioeconomic status as well as health conditions related to COVID-19 to prefer access to intensive care as a result of the pandemic should one be socially disadvantaged than if one was socially privileged. Of course, this account of contractualist prudence assumes access to the empirical knowledge (such as in premise 1) about the health risks related to the pandemic, and thus depends on the thickness of the chosen veil of ignorance. However, the account of prudence does not presuppose knowledge of one’s health or social background, it merely draws on knowledge about empirical facts and probabilistic foresight. When this is assumed, a prudential account37 would support the generic fairness argument because it provides strong impartial reasons to prioritise giving healthcare to the socially disadvantaged.

The argument implies that not only is the health-related suffering caused by the pandemic morally problematic and unjust in the obvious sense that it requires state funded healthcare to prevent or as far as possible rectify this suffering; it also implies that the pandemic’s health-related effects are unjust in the sense of being unfairly distributed. If this is correct, we have arrived at an overlapping consensus around the conclusion that we have fairness-based reasons to take special obligation in protecting and treating the socially disadvantaged against these health-related effects.

What are the practical implications of the generic fairness argument? Imagine there are two patients equally in desperate need of intensive care because of COVID-19, but we only have resources for one. Say that the two are equal in all relevant respects except for their social background. Now, it seems that the generic argument implies that it would be more just to give the treatment to the socially disadvantaged. As a practical priority-setting guideline, this might be too radical. Reasons against include both that it runs counter to the ideal of equal access to healthcare (so central in welfare state health systems), and that it will often lead to less cost-effective prioritisations. In response, our argument does not imply that we should completely dismiss cost-effectiveness and equal access to healthcare as components in a just priority scheme. Rather, what we suggest is that these components should be taken into consideration in a way that is sensitive to how background social inequality affects the distribution of health risks, both ex-ante and ex-post. Without committing to any particular distributive theory, the generic fairness argument explains why this sensitivity is important.

Existing COVID-19 allocation schemes

The above discussion suggests that our distribution of healthcare resources in the face of the pandemic should be sensitive to social inequality. Disappointingly, however, when we evaluate current prominent proposals for distributing scarce resources, such as those suggested by Emanuel et al and those proposed by White and Lo, the initial impression is that social inequalities matter very little, if at all.38 39 Emanuel et al give a key role to utility and maximising benefits. Their framework identifies six core values: ‘maximising benefits, treating equally, promoting and rewarding instrumental value, and giving priority to the worst off’.38 From these, they argue that a number of recommendations follow: ‘maximise benefits; prioritise health workers; do not allocate on a first-come, first-served basis; be responsive to evidence; recognise research participation; and apply the same principles to all COVID-19 and non–COVID-19 patients’.38 The idea of the worst-off is, importantly for our purpose here, connected to age rather than socioeconomic conditions. They elaborate that maximising benefits will (often) mean giving priority to the worst off, because ‘young, severely ill patients will often comprise many of those who are sick but could recover with treatment’, therefore, their approach gives priority ‘to those who are worst off in the sense of being at risk of dying young and not having a full life’.38 However, due to the nature of pandemic rationing, the role of prognosis is also truncated: Emanuel et al write that ‘Limited time and information in a COVID-19 pandemic make it justifiable to give priority to maximising the number of patients that survive treatment with a reasonable life expectancy and to regard maximising improvements in length of life as a subordinate aim. The latter becomes relevant only in comparing patients whose likelihood of survival is similar’.38 So, while there is a role for the broad idea that we should prioritise the worse off, this is mainly understood as capturing the young—and as a further reason for favouring the recommendations from benefit maximisation.

Another prominent ethical framework for rationing under COVID-19 is the Multiprinciple Allocation Framework, adopted by a number of US hospitals.39 On this proposal, everyone in need is deemed eligible for critical resources. Every eligible person receives a priority score based on their likelihood of surviving with treatment and their life-expectancy after discharge. The score ranges from 1 to 8, where 1 is eligible for the highest priority. Age, or rather having gone through the fewest life phases, is then employed as a tie-breaker.39

One interpretation of the above would be to say that socioeconomic positions and inequalities matter little for how scarce medical resources are allocated. However, it is not true that just because a framework does not explicitly include socioeconomic conditions among its rationing criteria, then the priority people receive is unaffected by the social circumstances. It could be the case that socioeconomic conditions affect priority-setting indirectly through their unobserved effects on the parameters that the allocation frameworks do take into account. This is seemingly something that White and Lo concede, as they have suggested that such concerns should be given more weight.40

While socioeconomic conditions might play a role as a background factor in existing proposals for COVID-19 priority-setting, this is only indirectly so and with inadequate weight. The generic fairness argument, on the other hand, suggest that we make healthcare prioritisation much more directly and explicitly sensitive to existing social inequalities. This, we conclude, is a key lesson from the experiences of pandemic justice.