Abstract

Cox and Fritz state the central problem as the absence of a framework for healthcare policy decisions; but, they overlook the theoretical underpinnings of public law. In response, they propose a two-step procedure to guide fair decision-making. The first step relies on Thomas Scanlon’s ‘contractualism’ for stakeholders to consider whether, or not, they could reasonably reject policy proposals made by others; then in the second step, John Rawls’s principles of justice are applied to these proposals; a fair policy requires to pass both steps. I argue that Cox and Fritz misinterpret Rawls. His theory has two stages: first, public reason is used to generate principles of justice; second, public reason is used to interpret and apply these principles. The second stage requires that proposals are based on the principles of justice from the first stage, and these proposals have to be acceptable to reasonable persons. Thus, Rawls’s theory does not need Scanlonian supplementation. Moreover, the application of Rawls’s theory in Cox and Fritz’s model is confusing. In any case, the problems with applying Rawlsian justice to healthcare can be located elsewhere. First, Rawls’s theory would treat healthcare simply as a ‘primary good’ or resource. Social justice ought to, instead, consider healthcare as an opportunity, in the manner conceived by Amartya Sen. Second, Rawlsian justice rests, ultimately, on the conception of a reasonable person; until and unless the characteristics of reasonable stakeholders are clarified, any model of health justice will remain hostage to the unreasonable.