ABSTRACT: Peter Singer has proposed health care rationing that includes an invidious discrimination against people with disabilities. Unfortunately, Congress has codified the potential for such discrimination in the 2010 Patient Protection and Affordable Care Act. But why should any public official have the discretion to treat the lives of people with disabilities as of "lower value" than the lives of anyone else. There must be a comprehensive limitation in the law against the misuse of comparative clinical effectiveness research to support the rationing of human life.
During the debate over health care reform, Peter Singer, a bio-ethicist at Princeton, published an article in the New York Times proposing a scheme for rationing. (1) As part of that plan, he singled out the presence of a disabling condition as a justifiable reason for limiting coverage.
Singer is no stranger to controversies over disability. For example, his 1983 article in Pediatrics argued for infanticide of disabled newborns, (2) dismissing the "sanctity of human life" as mere "religious mumbo-jumbo" and contending that such children had less moral value than healthy dogs or pigs. (3) Though Singer's Times piece is an artless polemic, it is worth taking seriously, not only because refuting falsehood helps us better understand the truth, not only because a prestigious publication has given credence to what most people would consider outrageous, but especially because the health reform Congress enacted left the door open for adoption of similarly shocking schemes.
Singer begins with the assumption that health care is a scarce resource and that all scarce resources are subject to some form of rationing. The guiding principle is getting the best value for the money, which means setting limits on what treatments the public should fund. The problem lies, not with these assumptions, but with his proposal for setting such limits.
Singer cites with apparent approval the health care system in Britain where monetary limits are openly set on what the public will pay for life-prolonging treatment. For example, the National Institute for Health and Clinical Excellence ("NICE"), which advises Britain's National Health Service on medical standards, preliminarily rejected payment for Sutent, a drug that would prolong the lives of patients with advanced kidney cancer for six months, because it exceeded the $49,000 guideline NICE had set on treatments that would extend life for a year. (4) In contrast, Singer charges that the U.S. effects rationing less candidly, through high co-pays and the failure to provide universal health care. Moreover, where the issue is consumer safety, he claims that government agencies in the U.S. already place a dollar value on life. When agencies reject proposed safety regulations because the cost is disproportionate to the number of lives saved, he contends that they necessarily judge such lives less valuable than the cost. "So why is it," Singer asks, "that those who accept that we put a price on life when it comes to consumer safety refuse to accept it when it comes to health care?" (5)
High co-pays, low reimbursement rates--indeed, the countless decisions legislatures and government agencies regularly make to apportion scarce funds among crucial services--though admittedly forms of rationing, are not the equivalent of placing a price-tag on life. Generally speaking, they merely reflect the fact that human life, though a great good, is not absolute, and that the inability to satisfy all legitimate needs is a mark of the human condition. When we act reasonably in making such decisions, we treat even those deprived with dignity since we respect the rational nature that sets them apart as human.
Whether, as Singer contends, we openly place a price on life when government agencies make consumer safety decisions is best answered in comparison with the British Sutent decision. In the former case, we balance abstractions with hypothetical conditions; in the latter, we conclude explicitly that a real person's life is not worth a given dollar amount. The fact that, bowing to public pressure, NICE finally approved payment...