[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?
