VJIL Symposium: Which Theory of Global Justice Best Accommodates the Uncertainties of Medical Tourism?

[Nathan Cortez is an Assistant Professor of Law at SMU Dedman School of Law.]

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.

Thanks to the Virginia Journal of International Law for inviting me to comment on Glenn Cohen’s important article “Medical Tourism, Access to Health Care, and Global Justice.” Like the other contributors, medical tourism is a primary research focus of mine. Glenn’s right: the scholarship is undertheorized (p. 9). His article admirably initiates a dialogue between theory and its application. On that criterion, his article is both ambitious and modest – ambitious in testing the grand theories of Global Justice, and modest in confronting just one of the cascading questions that medical tourism raises: What should we do if medical tourism decreases access to care for destination country residents?

Glenn evaluates three competing theories: cosmopolitan; statist; and intermediate. He prefers the intermediate theories of Joshua Cohen, Charles Sabel, Norman Daniels, and Thomas Pogge, which avoid the paralyzing moral obligations imposed by cosmopolitan theories but recognize that we probably owe more than what statist theories require. (Indeed, the statist theories limiting our obligations domestically seem quaint given the topic – a sprawling global trade in medicine.)

But before engaging these theories, Glenn first addresses the empirical question – Does medical tourism really diminish access to care locally? (pp. 9-14)

We just don’t know. Most of us have a strong intuition that the answer is yes. But as Glenn notes, our evidence is anecdotal, uncertain. Indeed, the lack of data is a persistent frustration for scholars in this area. As such, my inclination was to evaluate the Global Justice theories on how well they accommodate this reality.

Glenn prefers the intermediate theories in part because the duties they impose are triggered by causation – if medical tourism decreases access to care locally, then certain obligations follow. But that causal observation requires data.

The cosmopolitan utilitarianism of Mills and Bentham (pp. 18-19), also requires empirical information in the form of welfare measurements (e.g., “Does medical tourism increase the utility of uninsured Americans more than it decreases the utility of poor patients in India?” and countless other calculations). Likewise, the cosmopolitan sufficientarianism of Amartya Sen and Martha Nussbaum requires us to identify some minimum threshold below which we shouldn’t let local residents fall. But what’s the threshold?

Glenn’s article tees up this and many other conversations. As our discussion evolves, I would like to explore what we might learn from theories of regulatory uncertainty and probability. In the short term, it is highly likely that the six conditions that Glenn identifies for triggering some type of action will indeed occur, and probably get worse over time without some coercive redistribution. This should trigger at least some obligations, channeling Norman Daniels’ intuitions on medical migration. (p. 35) But in the longer term, it also seems probable that without medical tourism, countries like India wouldn’t be able to build the same health care infrastructure that might benefit local patients. Which theory allows us to address short-term deficits without sacrificing the long-term benefits?

Of these theories, the cosmopolitan prioritarianism of John Rawls and Charles Beitz doesn’t rely as much on empirical outcomes as on being sensitive to how medical tourism affects the “worst off.” (p. 20) In the context of medical tourism from the U.S. to India, it’s not hard to see who is the “worst off.” Eighty percent of the world lives in developing countries, most of whom are poor and have inadequate access to care. In the short term, medical tourism probably won’t help this population; but in the long term, given the right interventions, it could.

Thus, it’s clear someone should do something. The next questions are who should do what? Those are harder questions that Glenn’s research tees up.