VJIL Symposium: Response to Commentary on Medical Tourism, Access to Health Care, and Global Justice

[I. Glenn Cohen is an Assistant Professor of Law and the Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

I have relied on the work of each of these commentators and think of them as scholarly partners, so I am very grateful for their kind words and their comments on my piece.

I will respond to them collectively, under two headings.

Missing Evidence and Burdens of Proof:

As Snyder, Crooks and Cortez emphasize, empirical evidence on the effects of medical tourism on access to health care by the destination country poor, as with most aspects of medical tourism, is largely unavailable, and what is available is often not rigorous. As Crooks and Snyder put it “[w]ithout more data on the impacts of specific forms of medical tourism in particular communities, providing action-guiding, normatively-informed analyses of medical tourism will be challenging.” While their own excellent work aims to generate such empirical data, as they recognize, we are still a long way off.

The question is how to proceed in the interim? I try to advance the ball in my article through by generating conclusions that should follow if we can demonstrate that medical tourism has negative effects, and specifying six triggering conditions under which that conclusion seems likely. Chen and Flood misread me when they object to the idea (they ascribe to me) that “all six conditions laid out by Cohen must be satisfied to conclude that medical tourism undermines health access in the destination country.” Instead as I write on page 13 of my article: “In countries where the triggering conditions all obtain, one would expect medical tourism to cause some diminution in access to health care for the destination country’s poorest due to medical tourism; as fewer factors obtain, this becomes less likely,” so we are actually in agreement.

Chen and Flood do actually disagree with me about the burden to justify regulatory action, writing that “[t]here is an inherent bias in Cohen’s framework in that the burden seemingly rests on opponents of medical tourism to establish its adverse effects rather than vice versa.” My priors, similar to Cortez’s, is that where there are willing providers of services (destination country physicians and facilities) and willing consumers (home country patients, insurers, governments) pursuing an ordinarily morally unproblematic activity (providing medical services) involving voluntary transactions, the proponents of introducing new regulatory interventions should come forward with evidence showing a need to act. I would say the same domestically: we legislate to solve problems.

That said, this disagreement is not all that important for two reasons: (1) I and the other commentators are in favor of doing the research needed to answer the question of what medical tourism’s effects are, such that we hope to reach an actual answer to this question rather than having to decide the matter on a kind of “summary judgment” where the mover’s burden may prove crucial; (2) the vast bulk of my Article proceeds on the assumption that the evidence for the negative effects is obtained and asks what should follow.

Access versus Equity:

Chen and Flood write that “medical tourism engenders concerns about both health access and health equity….[yet] Cohen’s framework addresses the former but neglects the latter.” They then suggest as problematic a case where medical tourism spurs new investments “that were not previously available, and therefore health access for local patients would theoretically have stayed the same.”

I am a bit puzzled by what they mean. Perhaps they mean a case of Pareto superiority: the welfare of medical tourists is improved while destination country patients are made no worse off, as compared to a world where medical tourism is prohibited or heavily regulated. Finding such a case problematic would be to argue for “leveling down.” While some extreme forms of Cosmopolitan egalitarianism might endorse that view, I find it hard to think that Chen and Floods’ claim is that we should prevent a flow of trade that makes some people better off yet no one worse off. But if that is what they mean, we indeed disagree.

Perhaps they instead have in mind is a case where prohibiting/regulating medical tourism would cause investment or improvement in the health care available to destination country poor as against a counterfactual where the trade is unencumbered. Analysis of such a case, the transfer of welfare from health care from tourists to destination country poor, is addressed by the Intermediate and Cosmopolitan theories I discuss, and so clearly within my “framework.” Indeed, as I make clear in the paper, the Cosmopolitan theories can accommodate cases where we have obligations to the destination country poor simpliciter unconnected to whatever harms are caused by medical tourism.

Finally, I should emphasize that like Norman Daniels I am of the view that the mere existence of health inequalities as a descriptive matter does not in and of itself mean that such inequities are unjust, nor does it tell us who among all possible actors has an obligation to correct even unjust health inequities.