Do we all have to agree on bioethics policies for them to be legitimate?
Several eminent ethicists and political philosophers say “yes”. Over the last three decades, there have been multiple expositions of a view that legitimacy comes from democratic deliberation and agreement between reasonable agents. If a policy is to have normative and political force, it has to be the product of the rights sorts of procedures, and it must be sufficiently “public” so that all reasonable persons can accept it. Proponents of this general view include well-known names like Amy Gutmann, Dennis Thompson, Norman Daniels and James Sabin.
Yet a new article in the Journal of Medical Ethics challenges this “orthodox” view. Philosopher and medical doctor William R Smith argues that legitimate medical policy need not be generated through processes of democratic deliberation; rather, we should be looking towards “extra-procedural considerations” and embracing “the possibility that we have the epistemic resources to do so”.
The key exemplar in Smith’s argument is the Affordable Care Act. According to Smith, the ACA is an example of a legitimate healthcare policy; yet it was not legislated in accord with the requirements of liberal procedural justice. The ACA was passed through “backroom dealing, inaccurate campaign promises and political misdirection”:
In passing the ACA, President Obama was not always forthright. His stump speech attacks on Hillary Clinton’s proposal for an insurance mandate seem disingenuous since, shortly after winning the primary, he privately told an internal advisor that such a mandate would be needed. Likewise, he ‘promise[d]’ that Americans could ‘keep [their]' doctor, period’ when his reform team surely knew that insurance changes could jeopardise choice of doctors…
Smith suggests that our political theory should match up with the real-world processes involved in lawmaking: “As debates about healthcare reform and resource distribution continue to arise, we should take stock of lessons that we should have already learnt”.
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