Journal of Medical Ethics 44 (6):416-423 (2018)

Authors
Will Smith
University of Pennsylvania
Abstract
Several prominent writers including Norman Daniels, James Sabin, Amy Gutmann, Dennis Thompson and Leonard Fleck advance a view of legitimacy according to which, roughly, policies are legitimate if and only if they result from democratic deliberation, which employs only public reasons that are publicised to stakeholders. Yet, the process described by this view contrasts with the actual processes involved in creating the Affordable Care Act and in attempting to pass the Health Securities Act. Since the ACA seems to be legitimate, as the HSA would have been had it passed, there seem to be counterexamples to this view. In this essay, I clarify the concept of legitimacy as employed in bioethics discourse. I then use that clarification to develop these examples into a criticism of the orthodox view–that it implies that legitimacy requires counterintuitively large sacrifices of justice in cases where important advancement of healthcare rights depends on violations of publicity. Finally, I reply to three responses to this challenge: that some revision to the orthodox view salvages its core commitments, that its views of publicity and substantive considerations do not have the implications that I claim and that arguments for it are strong enough to support even counterintuitive results. My arguments suggest a greater role for substantive considerations than the orthodox view allows.
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DOI 10.1136/medethics-2017-104559
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References found in this work BETA

What We Owe to Each Other.Thomas Scanlon - 1998 - Belknap Press of Harvard University Press.
A Theory of Justice: Revised Edition.John Rawls - 1999 - Harvard University Press.
What We Owe to Each Other.Thomas Scanlon - 2002 - Mind 111 (442):323-354.
The Morality of Freedom.Joseph Raz - 1986 - Philosophy 63 (243):119-122.
Why Deliberative Democracy?Amy Gutmann & Dennis F. Thompson - 2004 - Princeton University Press.

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Citations of this work BETA

Religious Accommodation in Bioethics and the Practice of Medicine.William R. Smith & Robert Audi - 2021 - Journal of Medicine and Philosophy 46 (2):188-218.
Saving Environmental Justice From Proceduralism.William R. Smith - 2018 - American Journal of Bioethics 18 (3):55-56.
Notes on Substantance in Orthodox Theory: A Reply to Badano.William R. Smith - 2019 - Journal of Medical Ethics 45 (4):275-276.

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