We Should Not Use Randomization Procedures to Allocate Scarce Life-Saving Resources

Roberto Fumagalli

doi:10.1093/phe/phab025

We Should Not Use Randomization Procedures to Allocate Scarce Life-Saving Resources

Fumagalli, Roberto 2022-06-11 00:00:00 Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 PUBLIC HEALTH ETHICS VOLUME 15 ISSUE 1 2022 87–103 87 • • • We Should Not Use Randomization Procedures to Allocate Scarce Life-Saving Resources Roberto Fumagalli*, King’s College London, UK, London School of Economics, UK and University of Pennsylvania, USA *Corresponding author: King’s College London Department of Political Economy Bush House - NE Wing - 30 Aldwych London - WC2B 4BG - United Kingdom Roberto Fumagalli. Email: roberto.fumagalli@kcl.ac.uk; R.Fumagalli@lse.ac.uk In the recent literature across philosophy, medicine and public health policy, many inﬂuential arguments have been put forward to support the use of randomization procedures (RAND) to allocate scarce life-saving resources (SLSR). In this paper, I provide a systematic categorization and a critical evaluation of these arguments. I shall argue that those arguments justify using RAND to allocate SLSR in fewer cases than their proponents maintain and that the relevant decision-makers should typically allocate SLSR directly to the individuals with the strongest claims to these resources rather than use RAND to allocate such resources. organizations) should allocate SLSR on the basis of Introduction RAND (e.g. Glover, 1977; Kornhauser and Sager, 1988; During the COVID-19 pandemic emergency, dramatic Goodwin, 1992; Hooker, 2005; Stone, 2007, 2011). increases in the demand for intensive care units have In this paper, I provide a systematic categorization and a critical evaluation of the most influential argu- occurred worldwide (e.g. Antommaria et al., 2020; White and Lo, 2020). In several countries, the number ments that have been put forward to support the use of of patients needing intensive care exceeded the number RAND to allocate SLSR. I shall examine in turn: the ar- of available intensive care units, forcing medical person- gument from convenience; the argument from tie-break- nel to make thorny triage decisions (e.g. Cook, 2020; ing; the argument from equal chances; the argument from fairness; the argument from incommensurability; Truog et al., 2020). Most of the criteria proposed for allocating scarce intensive care units involve a combin- and the argument from unjust discrimination. I shall ation of medical need, various clinical factors (e.g. pres- argue that these arguments justify using RAND to allo- ence and severity of other medical conditions, expected cate SLSR in fewer cases than their proponents maintain speed of recovery) and some randomization procedures and that the relevant decision-makers should typically allocate SLSR directly to the individuals with the stron- (henceforth, RAND; e.g. British Medical Association, 2020a,b; Chisholm, 2020; Emanuel et al., 2020). The gest claims to SLSR, i.e. use what I call direct allocation use of RAND has been advocated to allocate many types procedures (henceforth, DIR) rather than RAND to allo- of scarce life-saving resources (henceforth, SLSR) besides cate SLSR. To be sure, my claim is not that all DIR are intensive care units (e.g. urgent organs for transplant, more justified allocation procedures than RAND. For in vaccines, organ replacement therapy). In the recent lit- many allocation problems, one may identify several DIR erature across philosophy, medicine and public health that are less justified than RAND (e.g. think of DIR policy, many influential arguments have been put for- grounded on racist criteria). Rather, my point is that ward to support the use of RAND to allocate SLSR (e.g. in most allocations of SLSR, one may identify at least Sher, 1980; Broome, 1984a,b, 1991a, b; Elster, 1988; some DIR that are more justified than RAND and should Waring, 2004; Saunders, 2009). The idea is that in cases therefore use such DIR to allocate the available SLSR. If where dividing the available SLSR among the individuals correct, my claim that the relevant decision-makers in need is impossible or significantly reduces SLSR’s should typically use DIR (rather than RAND) to allocate expected benefits, the relevant decision-makers (e.g. in- SLSR has widespread implications not just for the indi- dividual doctors, ethical committees, governmental viduals involved in these allocations, but also for public doi:10.1093/phe/phab025 Advance Access publication on 26 November 2021 V C The Author(s) 2021. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 88 FUMAGALLI policy and clinical practice across the biomedical/the for DIR is compatible with the pluralist view that which health sciences. For as illustrated in the coming sections, DIR should be used in a given allocation problem may many proposals for allocating SLSR in public policy and depend on various contextual features of such problem, the biomedical/the health sciences rest on presupposi- including what type of SLSR is allocated (e.g. urgent tions concerning the relative merits of DIR and RAND. organs for transplant versus intensive care units), how Before proceeding, three preliminary remarks are in much the involved individuals’ claims differ in strength, order. First, I speak of SLSR broadly to encompass a wide and how stringent the scarcity constraints faced by the range of medical treatments and therapies that are crit- relevant decision-makers are. ical to patients’ survival (e.g. intensive care units, urgent And third, there are many clinical and non-clinical organs for transplant, vaccines, organ replacement ther- grounds (e.g. medical need and conditions, age, desert, apy). Moreover, I use the term RAND to indicate allo- rights, willingness to pay, waiting time) on which one cation procedures that are designed to yield specific might ascribe to individuals claims to SLSR (e.g. Basson, distributions of the chances that the involved individuals 1979; Broome, 1991a; Elhauge, 1994; Schmidt, 1998; have of receiving the available SLSR (e.g. tossing a coin, Harris and Erin, 2002; Persad et al., 2009; Savulescu rolling a die, picking balls from urns). Some RAND et al., 2019; John and Millum, 2020; Wilkinson et al., (henceforth, weighted RAND) apportion each individu- 2020). Still, not all the reasons that an individual may al’s chance of receiving the available SLSR to the strength have for receiving SLSR ground claims to such SLSR (e.g. of this individual’s claim to such SLSR. Other RAND the mere fact that an individual thinks that she would (henceforth, unweighted RAND) give to each of the benefit from receiving some SLSR does not per se ground involved individuals an equal chance of receiving the a claim to such SLSR). I am not concerned here with available SLSR irrespective of how strong each individ- demarcating which particular reasons ground claims to ual’s claim to such SLSR is. Yet, by design, neither SLSR and what factors determine the strength of indi- weighted nor unweighted RAND allow the relevant de- viduals’ claims to SLSR in specific allocation problems cision-makers to directly determine which individuals (e.g. Broome, 2004; Childress and Beauchamp, 2009; will receive the available SLSR before such RAND are Voorhoeve, 2014; Sharadin, 2016; Emanuel et al., 2020, implemented (e.g. Stone, 2011: ch. 2; also ‘Argument for recent discussion). For my evaluation, it suffices to from Unjust Discrimination’ on the ‘sanitizing’ function note that if an individual has a claim to some SLSR, then of lotteries). there is a reason to think that the individual ought to Second, I use the term DIR to indicate allocation pro- receive this SLSR, but there may be overarching reasons cedures that give SLSR directly to the individuals with the not to give such SLSR to the individual (e.g. Broome, strongest claims to these SLSR rather than allocate such 1994; Stone, 2011: ch. 4; Tomlin, 2012; Kirkpatrick and SLSR on the basis of RAND (e.g. allocation procedures Eastwood, 2015, on cases where other individuals have based on medical need and clinical factors such as pres- stronger claims to the available SLSR). ence and severity of other medical conditions and expected speed of recovery). Designing and implement- ing DIR require the relevant decision-makers to rank the Argument from Convenience involved individuals according to the strength of their The argument from convenience holds that the relevant claims to the available SLSR and allocate these SLSR to decision-makers should use RAND (rather than DIR) to the individuals with the strongest claims to such SLSR. allocate SLSR on the alleged ground that designing and RAND and DIR may occasionally support similar (or implementing RAND is typically less costly and time- even identical) allocations of the available SLSR. Even consuming than designing and implementing DIR (e.g. so, profound differences remain in the justificatory prin- Persad et al., 2009; also Duxbury, 1999: 72, claiming that ciples which ground the use of RAND and DIR, respect- it is ‘appropriate and beneficial to resort to [RAND] ively. For on DIR, the strength of individuals’ claims to where a cost-effective method of decision-making is the available SLSR directly determines not only what required’). The idea is that acquiring the information chances these individuals have of receiving these SLSR, required to establish which candidates have the strongest but also which individuals will receive such SLSR (e.g. Broome, 1991a: 98; Hooker, 2005: 348–349). Below I claims to SLSR is ‘expensive and time consuming’ and that RAND avoid ‘the costs [.. .] of deliberate selection’ argue that the relevant decision-makers should typically use DIR (rather than RAND) to allocate SLSR, but I do (Broome, 1991a: 88; also Elster, 1988: 169, claiming that not take a position about the issue of which DIR should RAND are ‘rationally prescribed [...] because of their be used to allocate specific SLSR. In particular, my call simplicity and universal applicability’). Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 89 There are at least two reasons to doubt that the argu- to such SLSR (e.g. Broome, 1984b; John and Millum, ment from convenience justifies using RAND (rather 2020). than DIR) to allocate SLSR. First, convenience is not A proponent of the argument from convenience may the only factor that bears on the justifiability of the avail- object that when allocating SLSR, it is rarely convenient able procedures for allocating SLSR. In particular, time to attempt to identify which individuals have the stron- and resources are rarely so limited that they prevent the gest claims to such SLSR because the difference in the relevant decision-makers from being able to assess how strength of distinct individuals’ claims to SLSR is typic- the available allocation procedures fare in terms of fac- ally ‘small compared with the cost of acquiring the add- tors other than convenience (e.g. fairness). To be sure, itional information’ (Elster, 1988: 120, italics added; also one can envision situations where convenience consid- Stone, 2014: 198, on putative cases where the relevant erations have paramount importance (e.g. think of sit- decision-makers could differentiate the strength of indi- uations of unforeseen emergency where the relevant viduals’ claims ‘given further information, but obtaining decision-makers have limited time and resources to as- that information would be too difficult or costly to jus- sess different allocation procedures). Still, even in those tify making the effort’). The objection correctly notes situations, the relevant decision-makers typically have that identifying which individuals have the strongest sufficient time and resources to examine at least some claims to SLSR may occasionally involve expensive and of the factors besides convenience that bear on the jus- time-consuming evaluations. However, it is dubious tifiability of the available allocation procedures (e.g. that the difference in the strength of distinct individuals’ medical need and various clinical factors). And consid- claims to SLSR is typically ‘small compared with the cost erations of these factors often enable the relevant deci- of acquiring the additional information’. For allocations sion-makers to make some informed ordinal of SLSR have crucial life-and-death implications whose judgements regarding the strength of the involved indi- normative relevance typically trumps the cost of acquir- viduals’ claims to SLSR (e.g. Antommaria et al., 2020; ing the information required to identify which individ- Chisholm, 2020, on doctors’ widespread reliance on uals have the strongest claims to SLSR (e.g. Calabresi and considerations of medical need and various clinical fac- Bobbitt, 1978; Broome, 1984b; Kilner, 1990; Iapichino tors to allocate intensive care units during the first wave et al., 2010). In this respect, it would be of limited import of the COVID-19 pandemic emergency). to allege that ‘time pressure and limited information And second, even if convenience was the main factor [may make RAND] preferable to trying to make finer- that bears on the justifiability of the available procedures grained [evaluations] within a group of [.. .] similar for allocating SLSR, convenience considerations rarely patients’ (Emanuel et al., 2020: 2053). For the relevant (if ever) justify using RAND to allocate SLSR. For there decision-makers need time and resources to establish are plenty of different (weighted and unweighted) RAND whether the involved individuals’ claims to SLSR are one could use in a given allocation problem. And estab- ‘similar’ in strength and how ‘similar’ in strength they lishing which RAND are justifiably adopted in a given are. And as I argue in the coming sections, the propo- allocation problem (e.g. weighted versus unweighted nents of RAND are rarely able to demonstrate that indi- RAND, which weighted or unweighted RAND) requires viduals’ claims to SLSR are sufficiently similar in the relevant decision-makers to determine how much strength to justify using RAND (rather than DIR) to the involved individuals’ claims to the available SLSR allocate SLSR. differ in strength and how exactly such differences bear A proponent of the argument from convenience may on the justifiability of the proposed RAND (e.g. Den further object that when allocating SLSR, RAND relieve Hartogh, 2004: 17). Regrettably, determining how the relevant decision-makers of ‘the responsibility of much the involved individuals’ claims to the available deciding who is to live and who to die [and of the asso- SLSR differ in strength and how exactly such differences ciated] emotional burden’(Broome, 1991a: 88, italics bear on the justifiability of the proposed RAND requires added; also Glover, 1977: 219). However, using RAND time and resources. And for all the argument from con- to allocate SLSR does not generally alleviate the relevant venience shows, RAND may commonly be as costly as decision-makers’ emotional burden. For their decisions DIR in terms of time and resources. In fact, weighted ‘will make all the difference between life and death any- RAND will likely be more costly than DIR in all those way’ (Henning, 2015: 194) irrespective of whether they cases where identifying the individuals with the strongest use RAND or DIR. Moreover, even if using RAND gen- claims to the available SLSR is easier than allocating to erally alleviated the relevant decision-makers’ emotional each of the involved individuals chances that are propor- burden, the psychological benefits that using RAND (ra- tional to the strength of each of these individuals’ claims ther than DIR) putatively yields to the relevant decision- Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 90 FUMAGALLI makers (while normatively relevant) would rarely trump (e.g. Kirkpatrick and Eastwood, 2015: 87, claiming that situations where ‘the claims of two candidates are exactly the normative relevance of the differences in strength of different individuals’ claims to SLSR and these differ- equal and we know that their claims are exactly equal [are] incredibly rare’; also Broome, 1991a; Den Hartogh, ences’ life-and-death implications. More generally, the 2004; Voorhoeve, 2014, on the frequent cases where point remains that the availability of RAND does not per individuals significantly differ in terms of medical need se relieve the relevant decision-makers of the responsi- or likelihood to benefit from the available SLSR). In this bility of assessing the strength of different individuals’ respect, it would be of limited import to allege that in claims to the available SLSR. For even in those cases ‘matters of life and death [.. .] everyone has a claim to where they decide to use RAND, the relevant decision- life’ (Broome, 1991a: 99; also Kilner, 1981). For the makers are responsible for their decision to allocate SLSR alleged fact that all the involved individuals have a claim on the basis of RAND rather than DIR. And in such cases, to life falls short of implying that such individuals have it is up to the relevant decision-makers to explicate on equally strong claims to SLSR (e.g. Fumagalli, 2018; also what grounds exactly individuals’ living or dying should Broome, 1984b: 40, holding that ‘when choosing be- be left to chance ‘when in so many other areas of human tween people it will never in practice happen that all life we believe that we have an obligation to [allocate the considerations in favor of [each] candidate will benefits and burdens on the basis of DIR]’ (Harris, exactly balance’). These considerations, in turn, cast 1975: 83; also Wolfle, 1970: 1201; Belliotti, 1980: 255). doubt on the argument from tie-breaking’s potential to ground a wide-ranging case in favour of RAND. As Argument from Tie-Breaking Sher puts it, RAND’s role in ‘breaking a tie [.. .] would be insignificant [since] it will hardly ever happen in prac- The argument from tie-breaking holds that the relevant tice that [claims] balance exactly. And if ever they do, the decision-makers should use RAND (rather than DIR) to slightest change in one of them would mean they were no allocate SLSR on the alleged ground that RAND ‘are longer balanced’ (1980: 203; also Den Hartogh, 2004: good tie breakers’, i.e. they are an effective ‘means of 18). getting the decision made [when the claims] of different A proponent of the argument from tie-breaking may candidates are exactly balanced’ (Broome, 1991a: 89; object that if one chooses to allocate SLSR directly to also Elster, 1988: 107–113; Goodwin, 1992). The idea is some individuals (rather than others), then one is treat- that in all situations where ‘two or more people have ing some individuals’ lives as more worthy than others equal claims’ to SLSR, unweighted RAND are ‘the mor- (e.g. Saunders, 2008: 362). Still, one may consistently ally preferable way of allocating [SLSR]’ (Sher, 1980: 203; hold that different individuals’ lives are equally worthy, also Kornhauser and Sager, 1988; Stone, 2007, 2009). For yet maintain that these individuals’ claims to specific in those situations, using allocation procedures other SLSR differ in strength (e.g. Broome, 1994:36–37). In than unweighted RAND ‘is either to say that [the this respect, it would be implausible to hold that since involved people’s] claims were not equal [or] to unjustly individuals’ lives are equally worthy, individuals should favour one of the equal claims over the other on the basis be given equal chances of receiving SLSR even when of irrelevant differences’ (Saunders, 2008: 362). their claims significantly differ in strength (e.g. There are at least two reasons to doubt that the Waring, 2004:ch. 1).For the alleged fact that individ- argument from tie-breaking justifies using RAND uals’ lives are equally worthy falls short of implying that (rather than DIR) to allocate SLSR. First, the relevant the relevant decision-makers can justifiably disregard decision-makers are not always able to establish whether major differences in the strength of distinct individuals’ different individuals’ claims to SLSR are equally strong. claims to SLSR (e.g. think of major differences in med- For the strength of individuals’ claims to SLSR depends ical need and expected benefits from treatment). And on multiple factors, and it is frequently difficult to assess whenever the relevant decision-makers can identify reliably the overall impact of such factors on the strength major differences in the strength of distinct individuals’ of individuals’ claims to SLSR (e.g. White et al., 2009; claims to SLSR, ‘selecting randomly is [neither] a way of Emanuel et al., 2020; also ‘Argument from refusing to judge between people [...] nor is it a way of Incommensurability’ on how this difficulty hampers affirming people’s equal worth as human beings’ the justifiability of various DIR). And second, in cases (Broome, 1984b: 52). where the relevant decision-makers are able to reliably A proponent of the argument from tie-breaking may assess the strength of individuals’ claims to SLSR, differ- further object that, in concrete allocation problems, de- ent individuals’ claims rarely have exactly equal strength cision-makers often reach a point where they are unable Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 91 to reliably identify any major differences in the strength supplemented with plausible and detailed criteria to es- of distinct individuals’ claims to SLSR (e.g. Rescher, tablish what level of preliminary screening is adequate. In 1969; White et al., 2009, on two-stage procedures where this respect, it would be of limited import to contend one first uses DIR to narrow down the set of potential that RAND are justifiably used ‘after the “right” amount candidates and then singles out the actual patients within of work has been done by reasons’ and that the relevant this group by means of RAND). The idea is that one can decision-makers should use RAND whenever ‘the dan- justifiably use RAND as tie-breakers when allocating gers posed by bad reasons outweigh the benefits offered SLSR among individuals who are ‘tied within the limits by good reasons’ (Stone, 2011: 150, italics added). For of comparability’ (Broome, 1991a: 101; also Stone, 2013: these contentions do not specify what the ‘right’ amount 591, holding that in many situations, individuals’ claims of work consists in, and leave unclear how the relevant are ‘so similar’ that the relevant decision-makers ‘are decision-makers are supposed to demarcate ‘good’ and more likely to [wrongfully distinguish] among candi- ‘bad’ reasons and how they should resolve disagreements dates with equal claims [than they are to reliably distin- about this demarcation issue. Moreover, DIR are not the guish] among candidates with unequal claims’). This only allocation procedures that face the risk of ground- objection correctly notes that in some situations, the ing allocations of SLSR on reasons that do not bear on relevant decision-makers are unable to reliably identify the strength of individuals’ claims to SLSR. For weighted major differences in the strength of distinct individuals’ RAND also face such risk (e.g. Stone, 2013). And claims to SLSR (e.g. Savulescu, 1998). Still, in many real- unweighted RAND face the opposite—and often more life allocation problems, the relevant decision-makers troublesome—risk of failing to track reasons that de- can reliably identify differences that are significant cisively bear on the strength of individuals’ claims to enough to break putative ties between individuals (e.g. 7 SLSR (e.g. Teira, 2013a). the coming sections on major differences in medical need and various clinical factors; also Fumagalli, 2020, on decision-makers’ ability to identify morally signifi- Argument from Equal Chances cant differences across several policy contexts). The argument from equal chances holds that the relevant Whenever this is the case, carefully designed and imple- decision-makers should use RAND (rather than DIR) to mented DIR are more likely than RAND to allocate SLSR allocate SLSR on the alleged ground that when different to individuals having comparatively stronger claims to individuals have equally strong claims to SLSR and such SLSR (e.g. ‘Argument from Fairness’). Moreover, dividing SLSR is not possible (or substantially decreases even in cases where the relevant decision-makers are un- their expected benefits), ‘justice demands that each per- able to identify differences that are significant enough to son receive an “equal chance” at getting [SLSR]’ (Stone, break putative ties between individuals, it is questionable 2007: 281; also Stone, 2011: 17). The idea is that RAND whether RAND are uniquely justified to break those ties. have ‘the unique capacity to divide a good probabilistic- For in such cases, many allocation procedures that do ally’ (Kornhauser and Sager, 1988: 491) and enable the not involve any kind of RAND may be justifiably used to relevant decision-makers to substitute equality of out- break ties (e.g. Ullmann-Margalit and Morgenbesser, comes with equality of chance, which is a ‘second-best 1977, on various so-called picking procedures). In this equity’ (Duxbury, 1999: 72–73) and a ‘surrogate satis- respect, it is telling that leading proponents of RAND faction’ of the individuals’ claims to SLSR (Broome, concede that when allocating SLSR, ‘it is doubtful that 1991a: 98; also Elster, 1988: 128; Saunders, 2008: 359). [RAND are] going to be the best way of breaking the tie’ There are at least two reasons to doubt that the argu- (Broome, 1991a: 101). ment from equal chances justifies using RAND (rather A proponent of the argument from tie-breaking may than DIR) to allocate SLSR. First, as noted in ‘Argument further object that RAND ‘become live options only after from Tie-Breaking’, the proponents of RAND are rarely some effort to [filter] out options has taken place’ able to establish that different individuals’ claims to (Stone, 2011: 149, italics added; also Elster, 1989: 67, SLSR have equal strength. This, in turn, casts doubt on claiming that ‘I know of no instance of social lotteries the argument from equal chances’ potential to ground a without some preselection [.. .] on the basis of need, merit, and the like’). This objection correctly notes wide-ranging case in favour of RAND. In particular, it indicates that the allocative decision to give each of the that RAND are rarely implemented without some pre- liminary screening of the involved individuals’ claims to involved individuals the same chance of receiving the the available SLSR. Still, the objection fails to ground a available SLSR ‘requires justifying as much as any other’ wide-ranging case in favour of RAND unless it is allocative decision (Broome, 1984b: 54). And second, Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 92 FUMAGALLI whenever the relevant decision-makers have reason to SLSR, the importance of giving each of the involved think that the involved individuals’ claims to the avail- individuals equal chances rarely trumps the normative able SLSR significantly differ in strength, it is dubious relevance of the differences in the strength of these indi- that giving each of the involved individuals the same viduals’ claims. For as noted in the previous sections, chance of receiving this SLSR has the normative relevance there frequently are major differences in the strength required to justify using RAND to allocate such SLSR. In of distinct individuals’ claims to SLSR, and allocations fact, it is hard to see in what sense ‘chances of satisfaction of SLSR often have life-and-death implications whose [would constitute] surrogate satisfaction, so that giving normative relevance trumps the importance of giving people equal chances would constitute a way to treat each of the involved individuals equal chances. To put [people’s] claims fairly’ (Henning, 2015: 177, italics it differently, when the relevant decision-makers can added; also Lazenby, 2014: 337, holding that giving identify major differences in the strength of distinct indi- one some chance of receiving a good does not per se viduals’ claims to SLSR, the reason to prefer individuals provide her with any ‘satisfaction of her claim [...] com- with comparatively stronger claims outweighs the im- mensurate with satisfaction in outcome’). portance of giving each individual an equal chance (e.g. A proponent of the argument from equal chances may Savulescu, 1998; Stein, 2002). In this respect, it would be object that ‘the provision of [.. .] epistemically equal of limited import for a proponent of the argument from positive chances of an indivisible, life-saving resource equal chances to object that if individuals’ claims signifi- to those with equal claims [.. .] ensures the equal distri- cantly differ in strength, then the relevant decision-mak- bution of something that it is rational for different indi- ers can track such difference by relying on weighted viduals to prudentially value equally’ (Otsuka, 2021, (rather than unweighted) RAND (e.g. Broome, 1991a: italics added; also Parfit, 2003: 376–378). This objection 98). For weighted RAND do not give each of the involved correctly notes that the involved individuals might re- individuals an equal chance of receiving the available gard their chances of receiving SLSR as intrinsically (ra- SLSR and face severe difficulties when it comes to appor- ther than just instrumentally) valuable (e.g. tioning each individual’s chance of receiving the avail- Goldschmidt and Nissan-Rozen, 2021). Still, the chances able SLSR to the strength of each individual’s claim to given by RAND do not directly benefit the involved such SLSR (e.g. Kirkpatrick and Eastwood, 2015: 82, individuals in a way that makes it prudentially rational holding that ‘it is almost impossible to calculate the for these individuals to value an equal distribution of weights of the lotteries in accordance with the [strength chances. In particular, it is not generally the case that of each individual’s claim]’; also the previous ‘the chance of a benefit is itself a benefit’ (Saunders, sections). 2008: 367; also Broome, 1984a; Wasserman, 1996). In fact, it would be mistaken to generally regard the chances given by RAND as an additional good to be added to the Argument from Fairness expected benefit of receiving SLSR (e.g. Henning, 2015: The argument from fairness holds that the relevant deci- 174, holding that it would ‘be double counting to regard sion-makers should use RAND (rather than DIR) to al- the chances provided by [RAND] as additional goods’). locate SLSR on the alleged ground that RAND are A proponent of the argument from equal chances may typically fairer than DIR and are ‘sometimes [.. .] the further object that ‘though the chance of a benefit is not fairest way of distributing a good’ (Broome, 1991a: 87– itself a benefit [.. .] we should not ignore such chance’ 88; also Rowe, 2021). The idea is that RAND yield a (Parfit, 2003: 377). In particular, she may maintain that fairness gain compared to DIR because fairness ‘requires when allocating SLSR, differences in the strength of dif- that each candidate’s claim should be satisfied in pro- ferent individuals’ claims to the available SLSR are often portion to its strength’ and RAND satisfy this require- of minor normative relevance compared to the import- ment better than DIR (Broome, 1994: 38; also Broome, ance of giving each of the involved individuals equal 1984b: 45, 1991a: 95). To be sure, the argument grants chances of receiving such SLSR (e.g. Harris, 1999; that RAND involve a fairness loss compared to DIR in Segev, 2005). The idea is that the relevant decision- that they are less likely than DIR to allocate SLSR to makers should use unweighted RAND to allocate SLSR individuals with comparatively stronger claims to on the alleged ground that the importance of giving each of the involved individuals equal chances trumps the SLSR (e.g. Broome, 1984b). Still, the argument holds that this fairness loss must ‘be weighed against normative relevance of the differences in the strength of these individuals’ claims. However, when allocating [RAND’s] contribution to fairness’ and that ‘if claims Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 93 are close to equality, holding [RAND] will be fairer than SLSR. As Hooker puts it, ‘suppose your claims to some not’ (Broome, 1991a: 99; also Stone, 2011: 88, holding indivisible good are very much [stronger] than mine. Is that when the involved individuals have ‘equal claims there any unfairness in your getting the indivisible good [.. .] it is impossible to imagine anything fairer’ than rather than my getting it? [...] Given that your claim is RAND). Hence, the argument goes, when allocating so much stronger than mine [...] letting the stronger SLSR, RAND are typically justified because in ‘matters claim win seems completely fair’ (2005: 349). of life and death, fairness is particularly important [and] A proponent of the argument from fairness may ob- everyone has a claim to life’ (Broome, 1991a: 90 and 99). ject that the argument justifies using RAND (rather than That is to say, when claims are equal, one should use DIR) to allocate SLSR on the alleged ground that any unweighted RAND, and when claims are not equal, change in the strength of the involved individuals’ claims one should use weighted RAND, with heavier weights to SLSR ‘warrant[s] a similarly-sized change to what fair- assigned to the individuals with stronger claims to the ness requires’ (Rowe, 2021: 1, italics added). I am not available SLSR (e.g. Broome, 1991a; White and Angus, persuaded that any change in the strength of the involved 2020; Rowe, 2021). individuals’ claims to SLSR warrants ‘a similarly-sized There are at least two reasons to doubt that the argu- change to what fairness requires’. For the fairness loss ment from fairness justifies using RAND (rather than involved in using RAND (rather than DIR) increases as DIR) to allocate SLSR. First, as the argument acknowl- the difference in the strength of the involved individuals’ edges, fairness is not the only factor which bears on the claims increases. And for all the argument from fairness justifiability of using RAND (rather than DIR) to allo- shows, RAND may be overall fair only when the involved cate SLSR (e.g. Broome, 1991a: 99, holding that the jus- individuals have claims of the same strength (e.g. tifiability of using RAND will depend on ‘how important Lazenby, 2014: 344; also Saunders, 2010; Voorhoeve, fairness is’ compared to the issue whether ‘the candi- 2014; Kirkpatrick and Eastwood, 2015, on cases where dates’ claims are equal’). And for all the argument shows, the difference in the strength of distinct individuals’ fairness considerations may frequently fail to trump claims to SLSR is so large that it seems rather unfair to other factors when assessing the justifiability of different use RAND to decide which individuals receive such procedures for allocating SLSR (e.g. Schmidt, 1994; SLSR). This, in turn, significantly constrains the argu- Nissan-Rozen, 2019; Savulescu et al., 2020, on various ment from fairness’ potential to ground a wide-ranging cases where major social welfare gains override the case in favour of RAND. For as argued in the previous demands of fairness). And second, the argument does sections, individuals’ claims rarely have the same not show that allocating SLSR on the basis of RAND is strength . Moreover, even assuming that any change in generally fairer than allocating SLSR on the basis of DIR. the strength of the involved individuals’ claims to SLSR This point can be explicated as follows. Several concep- warranted ‘a similarly-sized change to what fairness tions of fairness have been advocated in the recent lit- requires’, this assumption would not per se license the erature on the allocation of scarce resources (e.g. conclusion that any change in the strength of the Fleurbaey, 2008; Otsuka and Voorhoeve, 2009; involved individuals’ claims to SLSR warrants a similar- Fleurbaey and Maniquet, 2011). Few of the proffered ly-sized change in the chance that each of the involved conceptions endorse the argument from fairness’ pre- individuals should have of receiving SLSR. supposition that fairness requires that each candidate’s A proponent of the argument from fairness may fur- claim should be satisfied in proportion to its strength ther object that the argument ‘can be extended’ from (e.g. Saunders, 2010; Tomlin, 2012; Voorhoeve and cases where candidates have ‘exactly equal claims’ to Fleurbaey, 2012). In fact, various conceptions hold that SLSR to cases where they have ‘roughly equal claims’ to when individuals’ claims to SLSR significantly differ in SLSR, thereby vindicating the use of RAND in ‘a much strength, it would be unfair to allocate SLSR using wider domain’ (Broome, 1984b: 48, italics added; also RAND (e.g. Voorhoeve, 2014; also Stone, 2011: 150, Rowe, 2021, on cases where decision-makers are unable holding that it would be unfair to ‘toss [.. .] a coin before to reliably identify major differences in the strength of deciding whether [to cure] a moderately sick or critically individuals’ claims). The idea is that the argument from ill person’). For in presence of significant differences in fairness justifies using RAND (rather than DIR) to allo- the strength of individuals’ claims, the fairness gain that cate SLSR unless the involved individuals’ claims signifi- RAND putatively yield compared to DIR does not offset cantly differ in strength and enables the relevant the fairness loss occurring whenever individuals with decision-makers to identify clear cases where using comparatively weaker claims receive the available RAND is justified. To illustrate this objection, consider Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 94 FUMAGALLI the following scenario (e.g. Piller, 2017: 230, for a similar Argument from illustration). Assume, for the sake of argument, that we Incommensurability can reliably measure the strength of individuals’ claims to SLSR on some cardinal scale. Compare then a large- The argument from incommensurability holds that the difference case where a 99 per cent to 1 per cent distribu- relevant decision-makers should use RAND (rather tion of the chances of receiving SLSR reflects the strength than DIR) to allocate SLSR on the alleged ground that of two individuals’ claims to SLSR, with a small-differ- ‘when comparing candidates for life-saving treatment ence case where a 51 per cent to 49 per cent distribution [.. .] it often seems impossible to weigh the [candidates’ of the chances of receiving SLSR reflects the strength of claims to treatment] in a precise way’ (Broome, 1991a: two individuals’ claims to SLSR. The argument from 100; also Glover, 1977: 203–227). The idea is that the fairness does not recommend using RAND in the strength of different individuals’ claims to SLSR is often large-difference case since the fairness loss which occurs incommensurable (e.g. Rescher, 1969; Raz, 1999: ch. 3) when using DIR that reduce the chance of the individual and that whenever it is ‘impossible in practice to carry with the rather weak claim from 1 per cent to 0 per cent is out finely grained comparisons’ of the strength of indi- negligible. Conversely, the argument from fairness rec- viduals’ claims to SLSR, the relevant decision-makers ommends using weighted RAND in the small-difference should allocate SLSR on the basis of RAND (Elster, case on the alleged ground that using DIR that reduce the 1988: 131; also Broome, 1984b: 50, holding that ‘there chance of the individual with the slightly weaker claim are many possible criteria’ for choosing between the from 49 per cent to 0 per cent is less fair than using involved individuals, and ‘there may not even be any RAND that give such individual a 49 per cent chance single correct way of weighing up the criteria’). of receiving SLSR. The idea is that in the small- There are at least three reasons to doubt that the ar- difference case, allocating SLSR directly to the individual gument from incommensurability justifies using RAND with the slightly stronger claim would be unfair because (rather than DIR) to allocate SLSR. First, showing that the individual with the slightly weaker claim ‘is entitled the strength of different individuals’ claims to SLSR is to treatment only slightly less good’ than the individual incommensurable requires one to show that reliable com- with the slightly stronger claim rather than a 0 per cent parisons of the strength of such claims are ‘impossible chance of receiving SLSR (Broome, 1984b: 48). [.. .] not just costly or difficult’ (Elster, 1988: 163, italics This objection invites two rejoinders. First, the mere added). Yet, the proponents of the argument from in- fact that DIR give the individual who would otherwise commensurability have hitherto failed to show that cases have a 49 per cent chance of receiving SLSR a 0 per cent of incommensurability are sufficiently widespread to chance of receiving SLSR does not per se make DIR un- ground a wide-ranging case in favour of RAND. fair. In fact, the argument from fairness presupposes (ra- Second, it is dubious that cases of incommensurability ther than shows) that fairness requires to give such are sufficiently widespread to ground a wide-ranging individual a 49 per cent chance of receiving SLSR. In case in favour of RAND. For as illustrated in the previous particular, the argument fails to undermine conceptions sections, the difficulties inherent in assessing the of fairness according to which, when the relevant deci- strength of different individuals’ claims to SLSR rarely sion-makers can reliably identify differences in the prevent decision-makers from being able to make some strength of distinct individuals’ claims to SLSR, fairness informed ordinal judgements regarding the strength of requires giving SLSR directly to the individuals with the different individuals’ claims to SLSR. To give one ex- strongest claims to SLSR rather than giving all the ample, consider decision-makers’ judgements of medic- involved individuals chances proportional to the al need. When allocating SLSR, it is often difficult to strength of these individuals’ claims to SLSR. And se- assess how exactly the involved individuals differ in cond, the argument from fairness does not provide terms of medical need. Still, this difficulty does not pre- plausible and detailed criteria to establish exactly when vent the relevant decision-makers from being able to the difference between stronger and weaker claims can make some informed ordinal judgements regarding be justifiably regarded as small enough that the fairness individuals’ medical need and how considerations of gain putatively yielded by RAND trumps the unfairness medical need bear on the strength of those individuals’ which occurs whenever the individuals with compara- claims to SLSR (e.g. Broome, 1984b; also Antommaria tively weaker claims receive SLSR. Hence, the argument et al., 2020; Chisholm, 2020). And third, deciding which does not provide plausible and detailed criteria to estab- RAND to use to allocate SLSR (e.g. weighted versus lish in what situations RAND are fairer than DIR. unweighted RAND, which weighted or unweighted Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 95 RAND) requires the relevant decision-makers to assess also Stone, 2011, 105, holding that many calls for DIR the strength of different individuals’ claims to SLSR. betray ‘extraordinary confidence in what reason can Hence, pointing to the alleged incommensurability of do’). This objection invites two rejoinders. First, one the strength of different individuals’ claims to SLSR may consistently advocate DIR while acknowledging does not per se provide a reason to regard RAND as that the relevant decision-makers may be unable to iden- more justified than DIR. As leading proponents of tify all the reasons that bear on the strength of individ- RAND acknowledge, justifying RAND requires one ‘to uals’ claims to SLSR (e.g. ‘Argument from Convenience’ establish a rank ordering’ among the involved individu- on situations of unforeseen emergency). For justifying als’ claims, and ‘if the claims are incommensurable [.. .] DIR does not require decision-makers to identify all the it is unclear precisely what allocative justice demands’ reasons that bear on the strength of individuals’ claims to (Stone, 2011: 56). SLSR, but only requires them to identify the main rea- A proponent of the argument from incommensur- sons that bear on the strength of such claims. To be sure, ability may object that the relevant decision-makers if decision-makers identify only a few of the reasons that should use RAND (rather than DIR) to allocate SLSR bear on the strength of individuals’ claims to SLSR, then on the alleged ground that ‘when an agent is unsure what it is possible that some unidentified reasons offset the the morally right thing to do is [then using RAND] is the impact that the identified reasons have on the allocation best one can do, given one’s moral uncertainty’(Nissan- of the available SLSR. Still, if the proponents of RAND Rozen, 2012: 45–46, italics added; also Rescher, 1969). are to show that the RAND they advocate are more jus- The idea is that the relevant decision-makers often find it tified than DIR, then it is up to them to point to uniden- epistemically impossible to identify what procedure it is tified reasons and demonstrate that such reasons do (or morally right to use to allocate SLSR and that whenever at least likely) offset the impact that the identified rea- this is the case, ‘the only rational thing’ for the decision- sons have on allocation. And second, it is often calls for makers is to use RAND even though the decision-makers RAND (rather than calls for DIR) which rest on unsup- have reason to think that there is some other allocation ported presuppositions concerning decision-makers’ available which is morally better (Nissan-Rozen, 2012: evaluative abilities. By way of illustration, calls for 49). This objection aptly emphasizes the uncertainty that RAND commonly infer that, if the relevant decision- is often involved in identifying what procedure it is mor- makers do not happen to find any significant difference ally right to use to allocate SLSR, but does not ground a in the strength of the involved individuals’ claims to wide-ranging case in favour of RAND. For as its propo- SLSR, then they can justifiably treat these individuals’ nents grant (e.g. Nissan-Rozen, 2012: 45), the objection claims as if they have equal strength (e.g. Stone, 2009: recommends using RAND only when the relevant deci- 395–396). And in many cases, this inference only seems sion-makers find it epistemically impossible to identify plausible under the presupposition—often left unsup- what procedure it is morally right to use to allocate ported—that decision-makers’ assessment of the SLSR. And the relevant decision-makers can frequently strength of the involved individuals’ claims to SLSR resolve (or at least alleviate) their moral uncertainty by identifies all the main reasons that bear on the strength acquiring more information about the allocation prob- of these individuals’ claims. lems they face (e.g. which RAND and DIR can be feasibly adopted, what consequences the available allocations Argument from Unjust may have, and what value different normative theories assign to such allocations). Discrimination A proponent of the argument from incommensur- ability may further object that the relevant decision- The argument from unjust discrimination holds that the relevant decision-makers should use RAND (rather than makers are often unable to resolve their moral uncer- tainty by acquiring more information about the alloca- DIR) to allocate SLSR on the alleged ground that DIR are often unjustly discriminatory (e.g. Stone, 2013; tion problems they face (e.g. Hersch and Rowe, 2021,on cases where the relevant decision-makers disagree as to Chisholm, 2020), whereas RAND ‘can [ensure] that what criteria should be adopted to assess the strength of bad reasons be kept out of the decision’ (Stone, 2011: the involved individuals’ claims). The idea is that there vii; also Dowlen, 2008: 15; Saunders, 2008: 359). The idea are limits to decision-makers’ ability to identify all the is that the relevant decision-makers should use RAND reasons that bear on the strength of individuals’ claims to (rather than DIR) to allocate SLSR because RAND are SLSR and that ‘these limits provide reasons for accepting less vulnerable than DIR to unjustly discriminatory (e.g. regular use of [RAND]’ (Stone, 2013: 579, italics added; racist) biases and ‘are constitutionally incapable of Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 96 FUMAGALLI playing favorites’ (Goodin, 1988: 61; also Kornhauser (Elster, 1988: 166). The idea is thatRAND ‘limitthe and Sager, 1988; Stone, 2009, 2011, on the ‘sanitizing’ opportunities for corruption and prejudice in decision function of lotteries, which putatively prevents unjustly making [and] guard against partiality and oppression’ discriminatory reasons from influencing allocation (Broome, 1984b:40; also Stone, 2011: 82). This objec- decisions). tion aptly emphasizes the importance of countering the There are at least two reasons to doubt that the argu- influence of decision-makers’ potential biases and cor- ment from unjust discrimination justifies using RAND ruption on the design and the implementation of allo- (rather than DIR) to allocate SLSR. First, a number of cation procedures (e.g. Sher, 1980; Teira, 2013b). factors can make a significant difference to the allocation However, the objection fails to show that RAND are of SLSR across distinct groups of individuals without generally more effective than DIR in countering the in- being unjustly discriminatory (e.g. Lippert-Rasmussen, fluence of decision-makers’ potential biases and cor- 2013: ch. 1–2). To illustrate this, consider the issue ruption (e.g. think of transparency and accountability whether SLSR should be allocated on the basis of indi- concerns pertaining to the decision-makers who design viduals’ age. Several proposals for allocating SLSR rec- and implement the proffered RAND). In fact, various ommend prioritizing the young over the elderly in cases sources of biases and corruption (e.g. racist attitudes) of pandemic emergency where being above a particular may demonstrably influence both decision-makers’ age makes individuals significantly less likely to benefit calibration of the weights to be adopted in RAND and from SLSR (e.g. White and Lo, 2020; British Medical decision-makers’ judgements as to whether the condi- Association, 2020b). Allocating SLSR directly on the tions which putatively justify using RAND (rather than basis of individuals’ age is often regarded as unjustly DIR) are satisfied in the first place (e.g. Broome, 1991a: discriminatory (e.g. Popescu and Marcoci, 2020; also 16 88; Henning, 2015:183). Bognar, 2015; Nielsen, 2021, for discussion). Still, the A proponent of RAND may further object that the fact that grounding the allocation of SLSR on individu- procedures for allocating specific SLSR are often als’ capacity to benefit from SLSR may disadvantage the designed and implemented in contexts facing structural elderly does not per se make such allocation proposals discrimination (e.g. think of deep and persistent socio- unjustly discriminatory (e.g. Farrelly, 2008; Lazenby, economic inequalities) and that RAND are generally 2011; British Medical Association, 2020a). And second, more effective than DIR in correcting for such discrim- the fact that discriminatory biases do affect some DIR ination. The idea is that ‘we cannot, nor should we, ex- (e.g. Den Hartogh, 2010; Hersch and Rowe, 2021,on pect that health-care workers [.. .] redress the social cases where first-come first-served and waiting time fa- determinants of ill health’ and that in light of existing vour socio-economically privileged individuals) does socio-economic inequalities ‘it seems somewhat disin- not cast general doubt on the justifiability of DIR. For genuous to pretend that [DIR are not influenced by] the the proponents of DIR frequently have the means to social determinates of health’ (Silva, 2020: 891). Let us neutralize (or at least alleviate) the influence of discrim- assume, for the sake of argument, that the justifiability of inatory biases (e.g. Antommaria et al., 2020; Truog et al., the procedures for allocating specific SLSR depends on 2020, on blinding mechanisms to prevent the relevant how effectively these procedures correct for structural decision-makers from accessing clinically irrelevant in- discrimination. Even so, it is dubious that RAND are formation about individuals’ race and wealth; also generally more effective than DIR in correcting for struc- British Medical Association, 2020b; White and Lo, tural discrimination. For only DIR and weighted RAND 2020, on allocation criteria that explicitly prohibit allo- can be calibrated with the specific aim to correct for cating SLSR on the basis of clinically irrelevant informa- structural discrimination. And unweighted RAND occa- tion about individuals’ socio-economic status, ethnicity sionally tend to exacerbate (rather than correct for) and sexual orientation). Hence, pointing to some DIR’s structural discrimination (e.g. John and Millum, 2020, vulnerability to discriminatory biases does not per se in- for illustrations targeting iterated applications of dicate that the relevant decision-makers should allocate unweighted RAND). SLSR on the basis of RAND. A proponent of the argument from unjust discrim- ination may object that the relevant decision-makers Conclusion should use RAND (rather than DIR) to allocate SLSR on the alleged ground that RAND are more effective In this paper, I have provided a systematic categorization than DIR in preventing the relevant decision-makers and a critical evaluation of the most influential argu- ‘from [engaging in] arbitrary exercise of power’ ments put forward to support the use of RAND to Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 97 allocate SLSR. I have argued that these arguments justify RAND’ broadly to encompass both RAND that give to the involved individuals objectively equal using RAND to allocate SLSR in fewer cases than their proponents maintain and that the relevant decision- chances and RAND that give to such individuals epistemically equal chances (e.g. Elster, 1988: 113; makers should typically allocate SLSR directly to the Stone, 2007: 280; Saunders, 2008: 363). My critical individuals with the strongest claims to SLSR rather evaluation of RAND would hold also if one than use RAND to allocate SLSR. This result does not restricted the use of ‘unweighted RAND’ to indicate per se exclude that some further arguments may be only RAND that give to the involved individuals articulated which support using RAND to allocate spe- objectively equal chances (e.g. Henning, 2015: 175). cific SLSR. Still, it makes it pressing for the proponents of 3. Below I focus on situations where the relevant deci- RAND to articulate and support those arguments. In the sion-makers face scarcity of life-saving resources, absence of such arguments, the relevant decision-makers without inquiring into the economic, social and pol- should typically allocate SLSR directly to the individuals itical determinants of this scarcity (e.g. with the strongest claims to these resources rather than Scheunemann and White, 2011; Rowe and use RAND to allocate such resources. Voorhoeve, 2018, on cases where such scarcity results from previous governmental decisions to re- Conflict of Interest duce funding for the health care system). My evalu- ation of the justifiability of distinct allocation None declared. procedures in situations of scarcity in no way exempts the relevant decision-makers from the Notes duty to do all they reasonably can to prevent the scarcity of life-saving resources (e.g. increase invest- 1. RAND are often used to allocate benefits and bur- ments in the health care system). dens other than SLSR (e.g. Elster, 1988; Stone, 2013, 4. My evaluation focuses on justificatory (rather than on the use of lotteries for drafting public servants motivating or explanatory) reasons. RAND might such as jurors and soldiers and for determining ad- be said to allocate SLSR on the basis of reasons in mission to high schools and universities ). My evalu- the sense that, according to RAND, an individual ation focuses on the allocation of SLSR (rather than receives SLSR because this individual is selected by other benefits and burdens) and on allocation prob- RAND. These reasons, however, exclusively pertain lems where decision-makers can save only a given to the workings of RAND and do not refer to the number of individuals among all individuals in need strength of the individual’s claims (e.g. Sunstein and of SLSR. I do not expand on allocation problems Ullmann-Margalit, 1999; Stone, 2013). where decision-makers can save groups comprising 5. Similar remarks apply to the objection that individ- different numbers of individuals since these alloca- uals generally find it easier to accept unfavourable tion problems raise additional complexities tangen- allocations when these allocations result from tial to my evaluation (e.g. Taurek, 1977; Kamm, RAND rather than from DIR (e.g. Rescher, 1969; 1985; Timmermann, 2004; Otsuka, 2006; Hirose, Bolton et al., 2005; also Stone, 2007: 288, claiming 2007). that since RAND are not intended to yield ‘any out- 2. A number of factors (e.g. feasibility considerations, come in particular’, RAND provide ‘as much con- the comparative strength of the involved individu- solation as justice and impartiality can provide [.. .] als’ claims to SLSR) putatively bear on the justifi- to the losers’). For in primis, the proponents of ability of using weighted (rather than unweighted) RAND have hitherto failed to provide convincing RAND to allocate SLSR. I expand on various such evidence that individuals generally find it easier to factors throughout the paper. Some authors speak of accept unfavourable allocations just because these ‘fair’ (rather than ‘unweighted’) RAND to indicate allocations result from RAND (rather than from RAND that give to each of the involved individuals DIR). And second, even if individuals found it easier an equal chance of receiving the available SLSR (e.g. to accept unfavourable allocations just because these Sher, 1980: 203). Below I use the term ‘unweighted’ allocations result from RAND (rather than from to indicate these RAND since the term ‘fair’ has nor- DIR), this would not per se license the normative mative connotations that do not generally charac- claim that the relevant decision-makers should use terize such RAND (e.g. ‘Argument from Fairness’). RAND (rather than DIR) to allocate SLSR (e.g. the In particular, I use the expression ‘unweighted psychological benefits that using RAND rather than Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 98 FUMAGALLI DIR putatively yields to the involved individuals do suffices to express one’s commitment to satisfy indi- not generally trump the normative relevance of the viduals’ claims equally (e.g. John and Millum, 2020; differences in strength of different individuals’ Hersch and Rowe, 2021). I do not expand on these claims to SLSR and these differences’ life-and- debates since my response to the argument from death implications). equal chances does not directly depend on what pos- 6. A proponent of RAND may object that justifying ition one advocates in such debates. the use of RAND does not require decision-makers 9. Similar remarks apply if the argument from equal to establish that individuals’ claims are equally chances is rephrased in terms of expected utility ra- strong, but only requires them to exclude the pres- ther than expected benefit (e.g. Singer, 1977). For ence of obvious reasons or evidence to regard some the notion of expected utility has different norma- individuals’ claims as much stronger than others. tive properties than the notion of utility and one However, this objection fails to ground a wide- may consistently value equality in utilities without ranging case in favour ofRAND unlessthe propo- valuing equality in expected utilities (e.g. Broome, nents of RAND supplement it with plausible and 1984a; Fumagalli, 2013, 2019). A proponent of detailed specifications of how much time and RAND may object that although the chances of resources decision-makers must devote to assess- receiving SLSR do not provide surrogate satisfac- ing individuals’ claims to be able to justifiably infer tion, giving individuals equal chances often ‘satisfies that individuals’ claims are equally strong from the the demand of fairness to an extent’ (Piller, 2017: sole fact that they do not discern obvious reasons or 226). I shall address and rebut fairness-related calls evidence to regard some individuals’ claims as for RAND in ‘Argument from Fairness’. For now, I much stronger than others. And the proponents note that giving each of the involved individuals of RAND have hitherto failed to address this justi- equal chances does not eliminate the inequality in- ficatory challenge (e.g. note no. 10). herent in the fact that only some of these individuals 7. A proponent of RAND may object that decision- receive the SLSR. For the individuals who receive the makers’ reliance on DIR may lead them to regard SLSR receive both the equal chance given to each of their evaluations of the strength of individuals’ the involved individuals and the SLSR itself (e.g. claims to SLSR ‘as far more [reliable] than they Wasserman, 1996: 44). are’ (Stone, 2013: 592) and gather information 10. A proponent of the argument from equal chances about individuals’ claims beyond the point where may object that decision-makers often lack conclu- the marginal costs of information search offset the sive reasons/evidence to regard some individuals’ marginal benefits of such search (e.g. Stone, 2011: claims to SLSR as stronger than other individuals’ 153). However, decision-makers’ reliance on RAND claims to SLSR, and that whenever this is the case may have equally problematic effects (e.g. the avail- decision-makers should treat all the involved indi- ability of RAND may lead decision-makers to devote viduals’ claims to SLSR as equally strong and use little time and resources to assess the strength of unweighted RAND (e.g. Glover, 1977: 203–227). individuals’ claims to SLSR). And as I argue in the Yet, decision-makers may simultaneously lack con- coming sections, the relevant decision-makers clusive reasons/evidence to regard some individuals’ should often devote more time and resources to as- claims to SLSR as stronger than other individuals’ sess the strength of individuals’ claims to SLSR than claims to SLSR while having convincing reasons/evi- the proponents of RAND maintain . dence to regard some individuals’ claims to SLSR as 8. An allocation procedure can be said to give individ- stronger than other individuals’ claims to SLSR. uals an equal chance of receiving the available SLSR Whenever this is the case, using unweighted both in the sense that, for all the relevant decision- RAND may lead decision-makers to questionably makers know, it is equally likely that any of these disregard significant differences between the individuals will receive the SLSR (epistemic equi- strength of different individuals’ claims to SLSR probability), and in the sense that each of those (e.g. note no. 6). individuals has equal objective chance of receiving 11. A proponent of RAND may object that weighted the SLSR (objective equiprobability). In the speci- RAND can effectively reduce the risk that individu- alized literature, intense debates have taken place als with comparatively weaker claims receive SLSR. concerning how to distinguish these two notions Yet, on many conceptions of fairness, when the rele- of equiprobability (e.g. Bradley, 2017) and whether vant decision-makers can reliably assess the strength epistemic (as opposed to objective) equiprobability of individuals’ claims to the available SLSR, it is Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 99 unfair to use RAND that frequently deny SLSR to adopted by the relevant decision-makers (e.g. individuals who have comparatively stronger claims Savulescu et al., 2019, on cases where strong ethical to SLSR while giving SLSR to individuals who have arguments bear against including the allocation cri- comparatively weaker claims to SLSR (e.g. Elster, teria advocated by the involved individuals). 1988: 171). Moreover, as argued in the previous Moreover, individuals’ views do not generally sections, weighted RAND face severe difficulties favour RAND over DIR (e.g. Wilkinson et al., when it comes to apportioning each individual’s 2020, for experimental results about a number of chance of receiving the available SLSR to the hypothetical ventilator withdrawal scenarios). strength of each individual’s claim to such SLSR. 15. The argument from unjust discrimination targets 12. A proponent of the argument from fairness may not just cases where the allocation criteria used by object that decision-makers may circumvent the dif- the relevant decision-makers are directly discrimin- ficulties inherent in establishing exactly when the atory (e.g. think of openly racist allocation criteria), difference between stronger and weaker claims is but also cases where such criteria are indirectly dis- small enough that RAND are fairer than DIR by criminatory (e.g. Harris, 1995; Rothstein, 2010; adopting ‘a proportional chances scheme [.. .]in Silva, 2020, on how some DIR based on individuals’ the gray area in which it is hard to determine medical conditions tend to adversely affect disabled whether a difference is substantial or not’ (Segev, or otherwise disadvantaged individuals because of 2005: 250). The idea is to use DIR in cases where socio-economic factors that do not directly pertain distinct individuals’ claims to SLSR significantly dif- to these individuals’ medical conditions). I take my fer in strength (e.g. large-difference cases), response to the argument from unjust discrimin- unweighted RAND in cases where distinct individ- ation to hold for cases of both direct and indirect uals’ claims have exactly (or roughly) equal strength discrimination. (e.g. small-difference cases), and weighted RAND in 16. A proponent of RAND may object that RAND are all other cases. Regrettably, this proposal remains more effective than DIR in preventing the involved highly impractical unless it is supplemented with individuals ‘from trying to make themselves more plausible and detailed criteria to demarcate these eligible, at cost to themselves or to society’ (Elster, three types of cases and resolve disagreements about 1988: 166; also Elhauge, 1994, on putative cases such demarcation issue. where DIR incentivize the involved individuals to 13. The argument from incommensurability takes the withhold information from their physicians). strength of different claims to be incommensurable However, both the relevant decision-makers and so- when none of these claims is stronger than the others ciety at large may value the opportunity to incentiv- and the claims are not equally strong either (e.g. Raz, ize the involved individuals to adopt morally and 1986). In recent decades, different views of the rela- socially desirable (e.g. prudent) behaviour. And tionship between incommensurability and incom- DIR can often incentivize morally and socially de- parability have been advocated (e.g. Chang, 1997; sirable behaviour more effectively and directly than Broome, 2004; Rabinowicz, 2009). I mention these RAND (e.g. Glannon, 1998; Segev, 2005). For on views in passing since my response to the argument DIR, the strength of individuals’ claims to SLSR dir- from incommensurability does not directly rest on ectly determines not only what chances different which of those views one favours. individuals have of receiving the available SLSR, 14. A proponent of RAND may object that when the but also which individuals will receive such SLSR strength of individuals’ claims to SLSR is hard to (‘Introduction’). assess, many individuals believe that SLSR should be allocated on the basis of RAND (rather than Acknowledgements DIR), and therefore the relevant decision-makers should use RAND (rather than DIR). 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Publisher: Oxford University Press
Copyright: Copyright © 2022 Oxford University Press
ISSN: 1754-9973
eISSN: 1754-9981
DOI: 10.1093/phe/phab025
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Abstract

Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 PUBLIC HEALTH ETHICS VOLUME 15 ISSUE 1 2022 87–103 87 • • • We Should Not Use Randomization Procedures to Allocate Scarce Life-Saving Resources Roberto Fumagalli*, King’s College London, UK, London School of Economics, UK and University of Pennsylvania, USA *Corresponding author: King’s College London Department of Political Economy Bush House - NE Wing - 30 Aldwych London - WC2B 4BG - United Kingdom Roberto Fumagalli. Email: roberto.fumagalli@kcl.ac.uk; R.Fumagalli@lse.ac.uk In the recent literature across philosophy, medicine and public health policy, many inﬂuential arguments have been put forward to support the use of randomization procedures (RAND) to allocate scarce life-saving resources (SLSR). In this paper, I provide a systematic categorization and a critical evaluation of these arguments. I shall argue that those arguments justify using RAND to allocate SLSR in fewer cases than their proponents maintain and that the relevant decision-makers should typically allocate SLSR directly to the individuals with the strongest claims to these resources rather than use RAND to allocate such resources. organizations) should allocate SLSR on the basis of Introduction RAND (e.g. Glover, 1977; Kornhauser and Sager, 1988; During the COVID-19 pandemic emergency, dramatic Goodwin, 1992; Hooker, 2005; Stone, 2007, 2011). increases in the demand for intensive care units have In this paper, I provide a systematic categorization and a critical evaluation of the most influential argu- occurred worldwide (e.g. Antommaria et al., 2020; White and Lo, 2020). In several countries, the number ments that have been put forward to support the use of of patients needing intensive care exceeded the number RAND to allocate SLSR. I shall examine in turn: the ar- of available intensive care units, forcing medical person- gument from convenience; the argument from tie-break- nel to make thorny triage decisions (e.g. Cook, 2020; ing; the argument from equal chances; the argument from fairness; the argument from incommensurability; Truog et al., 2020). Most of the criteria proposed for allocating scarce intensive care units involve a combin- and the argument from unjust discrimination. I shall ation of medical need, various clinical factors (e.g. pres- argue that these arguments justify using RAND to allo- ence and severity of other medical conditions, expected cate SLSR in fewer cases than their proponents maintain speed of recovery) and some randomization procedures and that the relevant decision-makers should typically allocate SLSR directly to the individuals with the stron- (henceforth, RAND; e.g. British Medical Association, 2020a,b; Chisholm, 2020; Emanuel et al., 2020). The gest claims to SLSR, i.e. use what I call direct allocation use of RAND has been advocated to allocate many types procedures (henceforth, DIR) rather than RAND to allo- of scarce life-saving resources (henceforth, SLSR) besides cate SLSR. To be sure, my claim is not that all DIR are intensive care units (e.g. urgent organs for transplant, more justified allocation procedures than RAND. For in vaccines, organ replacement therapy). In the recent lit- many allocation problems, one may identify several DIR erature across philosophy, medicine and public health that are less justified than RAND (e.g. think of DIR policy, many influential arguments have been put for- grounded on racist criteria). Rather, my point is that ward to support the use of RAND to allocate SLSR (e.g. in most allocations of SLSR, one may identify at least Sher, 1980; Broome, 1984a,b, 1991a, b; Elster, 1988; some DIR that are more justified than RAND and should Waring, 2004; Saunders, 2009). The idea is that in cases therefore use such DIR to allocate the available SLSR. If where dividing the available SLSR among the individuals correct, my claim that the relevant decision-makers in need is impossible or significantly reduces SLSR’s should typically use DIR (rather than RAND) to allocate expected benefits, the relevant decision-makers (e.g. in- SLSR has widespread implications not just for the indi- dividual doctors, ethical committees, governmental viduals involved in these allocations, but also for public doi:10.1093/phe/phab025 Advance Access publication on 26 November 2021 V C The Author(s) 2021. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 88 FUMAGALLI policy and clinical practice across the biomedical/the for DIR is compatible with the pluralist view that which health sciences. For as illustrated in the coming sections, DIR should be used in a given allocation problem may many proposals for allocating SLSR in public policy and depend on various contextual features of such problem, the biomedical/the health sciences rest on presupposi- including what type of SLSR is allocated (e.g. urgent tions concerning the relative merits of DIR and RAND. organs for transplant versus intensive care units), how Before proceeding, three preliminary remarks are in much the involved individuals’ claims differ in strength, order. First, I speak of SLSR broadly to encompass a wide and how stringent the scarcity constraints faced by the range of medical treatments and therapies that are crit- relevant decision-makers are. ical to patients’ survival (e.g. intensive care units, urgent And third, there are many clinical and non-clinical organs for transplant, vaccines, organ replacement ther- grounds (e.g. medical need and conditions, age, desert, apy). Moreover, I use the term RAND to indicate allo- rights, willingness to pay, waiting time) on which one cation procedures that are designed to yield specific might ascribe to individuals claims to SLSR (e.g. Basson, distributions of the chances that the involved individuals 1979; Broome, 1991a; Elhauge, 1994; Schmidt, 1998; have of receiving the available SLSR (e.g. tossing a coin, Harris and Erin, 2002; Persad et al., 2009; Savulescu rolling a die, picking balls from urns). Some RAND et al., 2019; John and Millum, 2020; Wilkinson et al., (henceforth, weighted RAND) apportion each individu- 2020). Still, not all the reasons that an individual may al’s chance of receiving the available SLSR to the strength have for receiving SLSR ground claims to such SLSR (e.g. of this individual’s claim to such SLSR. Other RAND the mere fact that an individual thinks that she would (henceforth, unweighted RAND) give to each of the benefit from receiving some SLSR does not per se ground involved individuals an equal chance of receiving the a claim to such SLSR). I am not concerned here with available SLSR irrespective of how strong each individ- demarcating which particular reasons ground claims to ual’s claim to such SLSR is. Yet, by design, neither SLSR and what factors determine the strength of indi- weighted nor unweighted RAND allow the relevant de- viduals’ claims to SLSR in specific allocation problems cision-makers to directly determine which individuals (e.g. Broome, 2004; Childress and Beauchamp, 2009; will receive the available SLSR before such RAND are Voorhoeve, 2014; Sharadin, 2016; Emanuel et al., 2020, implemented (e.g. Stone, 2011: ch. 2; also ‘Argument for recent discussion). For my evaluation, it suffices to from Unjust Discrimination’ on the ‘sanitizing’ function note that if an individual has a claim to some SLSR, then of lotteries). there is a reason to think that the individual ought to Second, I use the term DIR to indicate allocation pro- receive this SLSR, but there may be overarching reasons cedures that give SLSR directly to the individuals with the not to give such SLSR to the individual (e.g. Broome, strongest claims to these SLSR rather than allocate such 1994; Stone, 2011: ch. 4; Tomlin, 2012; Kirkpatrick and SLSR on the basis of RAND (e.g. allocation procedures Eastwood, 2015, on cases where other individuals have based on medical need and clinical factors such as pres- stronger claims to the available SLSR). ence and severity of other medical conditions and expected speed of recovery). Designing and implement- ing DIR require the relevant decision-makers to rank the Argument from Convenience involved individuals according to the strength of their The argument from convenience holds that the relevant claims to the available SLSR and allocate these SLSR to decision-makers should use RAND (rather than DIR) to the individuals with the strongest claims to such SLSR. allocate SLSR on the alleged ground that designing and RAND and DIR may occasionally support similar (or implementing RAND is typically less costly and time- even identical) allocations of the available SLSR. Even consuming than designing and implementing DIR (e.g. so, profound differences remain in the justificatory prin- Persad et al., 2009; also Duxbury, 1999: 72, claiming that ciples which ground the use of RAND and DIR, respect- it is ‘appropriate and beneficial to resort to [RAND] ively. For on DIR, the strength of individuals’ claims to where a cost-effective method of decision-making is the available SLSR directly determines not only what required’). The idea is that acquiring the information chances these individuals have of receiving these SLSR, required to establish which candidates have the strongest but also which individuals will receive such SLSR (e.g. Broome, 1991a: 98; Hooker, 2005: 348–349). Below I claims to SLSR is ‘expensive and time consuming’ and that RAND avoid ‘the costs [.. .] of deliberate selection’ argue that the relevant decision-makers should typically use DIR (rather than RAND) to allocate SLSR, but I do (Broome, 1991a: 88; also Elster, 1988: 169, claiming that not take a position about the issue of which DIR should RAND are ‘rationally prescribed [...] because of their be used to allocate specific SLSR. In particular, my call simplicity and universal applicability’). Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 89 There are at least two reasons to doubt that the argu- to such SLSR (e.g. Broome, 1984b; John and Millum, ment from convenience justifies using RAND (rather 2020). than DIR) to allocate SLSR. First, convenience is not A proponent of the argument from convenience may the only factor that bears on the justifiability of the avail- object that when allocating SLSR, it is rarely convenient able procedures for allocating SLSR. In particular, time to attempt to identify which individuals have the stron- and resources are rarely so limited that they prevent the gest claims to such SLSR because the difference in the relevant decision-makers from being able to assess how strength of distinct individuals’ claims to SLSR is typic- the available allocation procedures fare in terms of fac- ally ‘small compared with the cost of acquiring the add- tors other than convenience (e.g. fairness). To be sure, itional information’ (Elster, 1988: 120, italics added; also one can envision situations where convenience consid- Stone, 2014: 198, on putative cases where the relevant erations have paramount importance (e.g. think of sit- decision-makers could differentiate the strength of indi- uations of unforeseen emergency where the relevant viduals’ claims ‘given further information, but obtaining decision-makers have limited time and resources to as- that information would be too difficult or costly to jus- sess different allocation procedures). Still, even in those tify making the effort’). The objection correctly notes situations, the relevant decision-makers typically have that identifying which individuals have the strongest sufficient time and resources to examine at least some claims to SLSR may occasionally involve expensive and of the factors besides convenience that bear on the jus- time-consuming evaluations. However, it is dubious tifiability of the available allocation procedures (e.g. that the difference in the strength of distinct individuals’ medical need and various clinical factors). And consid- claims to SLSR is typically ‘small compared with the cost erations of these factors often enable the relevant deci- of acquiring the additional information’. For allocations sion-makers to make some informed ordinal of SLSR have crucial life-and-death implications whose judgements regarding the strength of the involved indi- normative relevance typically trumps the cost of acquir- viduals’ claims to SLSR (e.g. Antommaria et al., 2020; ing the information required to identify which individ- Chisholm, 2020, on doctors’ widespread reliance on uals have the strongest claims to SLSR (e.g. Calabresi and considerations of medical need and various clinical fac- Bobbitt, 1978; Broome, 1984b; Kilner, 1990; Iapichino tors to allocate intensive care units during the first wave et al., 2010). In this respect, it would be of limited import of the COVID-19 pandemic emergency). to allege that ‘time pressure and limited information And second, even if convenience was the main factor [may make RAND] preferable to trying to make finer- that bears on the justifiability of the available procedures grained [evaluations] within a group of [.. .] similar for allocating SLSR, convenience considerations rarely patients’ (Emanuel et al., 2020: 2053). For the relevant (if ever) justify using RAND to allocate SLSR. For there decision-makers need time and resources to establish are plenty of different (weighted and unweighted) RAND whether the involved individuals’ claims to SLSR are one could use in a given allocation problem. And estab- ‘similar’ in strength and how ‘similar’ in strength they lishing which RAND are justifiably adopted in a given are. And as I argue in the coming sections, the propo- allocation problem (e.g. weighted versus unweighted nents of RAND are rarely able to demonstrate that indi- RAND, which weighted or unweighted RAND) requires viduals’ claims to SLSR are sufficiently similar in the relevant decision-makers to determine how much strength to justify using RAND (rather than DIR) to the involved individuals’ claims to the available SLSR allocate SLSR. differ in strength and how exactly such differences bear A proponent of the argument from convenience may on the justifiability of the proposed RAND (e.g. Den further object that when allocating SLSR, RAND relieve Hartogh, 2004: 17). Regrettably, determining how the relevant decision-makers of ‘the responsibility of much the involved individuals’ claims to the available deciding who is to live and who to die [and of the asso- SLSR differ in strength and how exactly such differences ciated] emotional burden’(Broome, 1991a: 88, italics bear on the justifiability of the proposed RAND requires added; also Glover, 1977: 219). However, using RAND time and resources. And for all the argument from con- to allocate SLSR does not generally alleviate the relevant venience shows, RAND may commonly be as costly as decision-makers’ emotional burden. For their decisions DIR in terms of time and resources. In fact, weighted ‘will make all the difference between life and death any- RAND will likely be more costly than DIR in all those way’ (Henning, 2015: 194) irrespective of whether they cases where identifying the individuals with the strongest use RAND or DIR. Moreover, even if using RAND gen- claims to the available SLSR is easier than allocating to erally alleviated the relevant decision-makers’ emotional each of the involved individuals chances that are propor- burden, the psychological benefits that using RAND (ra- tional to the strength of each of these individuals’ claims ther than DIR) putatively yields to the relevant decision- Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 90 FUMAGALLI makers (while normatively relevant) would rarely trump (e.g. Kirkpatrick and Eastwood, 2015: 87, claiming that situations where ‘the claims of two candidates are exactly the normative relevance of the differences in strength of different individuals’ claims to SLSR and these differ- equal and we know that their claims are exactly equal [are] incredibly rare’; also Broome, 1991a; Den Hartogh, ences’ life-and-death implications. More generally, the 2004; Voorhoeve, 2014, on the frequent cases where point remains that the availability of RAND does not per individuals significantly differ in terms of medical need se relieve the relevant decision-makers of the responsi- or likelihood to benefit from the available SLSR). In this bility of assessing the strength of different individuals’ respect, it would be of limited import to allege that in claims to the available SLSR. For even in those cases ‘matters of life and death [.. .] everyone has a claim to where they decide to use RAND, the relevant decision- life’ (Broome, 1991a: 99; also Kilner, 1981). For the makers are responsible for their decision to allocate SLSR alleged fact that all the involved individuals have a claim on the basis of RAND rather than DIR. And in such cases, to life falls short of implying that such individuals have it is up to the relevant decision-makers to explicate on equally strong claims to SLSR (e.g. Fumagalli, 2018; also what grounds exactly individuals’ living or dying should Broome, 1984b: 40, holding that ‘when choosing be- be left to chance ‘when in so many other areas of human tween people it will never in practice happen that all life we believe that we have an obligation to [allocate the considerations in favor of [each] candidate will benefits and burdens on the basis of DIR]’ (Harris, exactly balance’). These considerations, in turn, cast 1975: 83; also Wolfle, 1970: 1201; Belliotti, 1980: 255). doubt on the argument from tie-breaking’s potential to ground a wide-ranging case in favour of RAND. As Argument from Tie-Breaking Sher puts it, RAND’s role in ‘breaking a tie [.. .] would be insignificant [since] it will hardly ever happen in prac- The argument from tie-breaking holds that the relevant tice that [claims] balance exactly. And if ever they do, the decision-makers should use RAND (rather than DIR) to slightest change in one of them would mean they were no allocate SLSR on the alleged ground that RAND ‘are longer balanced’ (1980: 203; also Den Hartogh, 2004: good tie breakers’, i.e. they are an effective ‘means of 18). getting the decision made [when the claims] of different A proponent of the argument from tie-breaking may candidates are exactly balanced’ (Broome, 1991a: 89; object that if one chooses to allocate SLSR directly to also Elster, 1988: 107–113; Goodwin, 1992). The idea is some individuals (rather than others), then one is treat- that in all situations where ‘two or more people have ing some individuals’ lives as more worthy than others equal claims’ to SLSR, unweighted RAND are ‘the mor- (e.g. Saunders, 2008: 362). Still, one may consistently ally preferable way of allocating [SLSR]’ (Sher, 1980: 203; hold that different individuals’ lives are equally worthy, also Kornhauser and Sager, 1988; Stone, 2007, 2009). For yet maintain that these individuals’ claims to specific in those situations, using allocation procedures other SLSR differ in strength (e.g. Broome, 1994:36–37). In than unweighted RAND ‘is either to say that [the this respect, it would be implausible to hold that since involved people’s] claims were not equal [or] to unjustly individuals’ lives are equally worthy, individuals should favour one of the equal claims over the other on the basis be given equal chances of receiving SLSR even when of irrelevant differences’ (Saunders, 2008: 362). their claims significantly differ in strength (e.g. There are at least two reasons to doubt that the Waring, 2004:ch. 1).For the alleged fact that individ- argument from tie-breaking justifies using RAND uals’ lives are equally worthy falls short of implying that (rather than DIR) to allocate SLSR. First, the relevant the relevant decision-makers can justifiably disregard decision-makers are not always able to establish whether major differences in the strength of distinct individuals’ different individuals’ claims to SLSR are equally strong. claims to SLSR (e.g. think of major differences in med- For the strength of individuals’ claims to SLSR depends ical need and expected benefits from treatment). And on multiple factors, and it is frequently difficult to assess whenever the relevant decision-makers can identify reliably the overall impact of such factors on the strength major differences in the strength of distinct individuals’ of individuals’ claims to SLSR (e.g. White et al., 2009; claims to SLSR, ‘selecting randomly is [neither] a way of Emanuel et al., 2020; also ‘Argument from refusing to judge between people [...] nor is it a way of Incommensurability’ on how this difficulty hampers affirming people’s equal worth as human beings’ the justifiability of various DIR). And second, in cases (Broome, 1984b: 52). where the relevant decision-makers are able to reliably A proponent of the argument from tie-breaking may assess the strength of individuals’ claims to SLSR, differ- further object that, in concrete allocation problems, de- ent individuals’ claims rarely have exactly equal strength cision-makers often reach a point where they are unable Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 91 to reliably identify any major differences in the strength supplemented with plausible and detailed criteria to es- of distinct individuals’ claims to SLSR (e.g. Rescher, tablish what level of preliminary screening is adequate. In 1969; White et al., 2009, on two-stage procedures where this respect, it would be of limited import to contend one first uses DIR to narrow down the set of potential that RAND are justifiably used ‘after the “right” amount candidates and then singles out the actual patients within of work has been done by reasons’ and that the relevant this group by means of RAND). The idea is that one can decision-makers should use RAND whenever ‘the dan- justifiably use RAND as tie-breakers when allocating gers posed by bad reasons outweigh the benefits offered SLSR among individuals who are ‘tied within the limits by good reasons’ (Stone, 2011: 150, italics added). For of comparability’ (Broome, 1991a: 101; also Stone, 2013: these contentions do not specify what the ‘right’ amount 591, holding that in many situations, individuals’ claims of work consists in, and leave unclear how the relevant are ‘so similar’ that the relevant decision-makers ‘are decision-makers are supposed to demarcate ‘good’ and more likely to [wrongfully distinguish] among candi- ‘bad’ reasons and how they should resolve disagreements dates with equal claims [than they are to reliably distin- about this demarcation issue. Moreover, DIR are not the guish] among candidates with unequal claims’). This only allocation procedures that face the risk of ground- objection correctly notes that in some situations, the ing allocations of SLSR on reasons that do not bear on relevant decision-makers are unable to reliably identify the strength of individuals’ claims to SLSR. For weighted major differences in the strength of distinct individuals’ RAND also face such risk (e.g. Stone, 2013). And claims to SLSR (e.g. Savulescu, 1998). Still, in many real- unweighted RAND face the opposite—and often more life allocation problems, the relevant decision-makers troublesome—risk of failing to track reasons that de- can reliably identify differences that are significant cisively bear on the strength of individuals’ claims to enough to break putative ties between individuals (e.g. 7 SLSR (e.g. Teira, 2013a). the coming sections on major differences in medical need and various clinical factors; also Fumagalli, 2020, on decision-makers’ ability to identify morally signifi- Argument from Equal Chances cant differences across several policy contexts). The argument from equal chances holds that the relevant Whenever this is the case, carefully designed and imple- decision-makers should use RAND (rather than DIR) to mented DIR are more likely than RAND to allocate SLSR allocate SLSR on the alleged ground that when different to individuals having comparatively stronger claims to individuals have equally strong claims to SLSR and such SLSR (e.g. ‘Argument from Fairness’). Moreover, dividing SLSR is not possible (or substantially decreases even in cases where the relevant decision-makers are un- their expected benefits), ‘justice demands that each per- able to identify differences that are significant enough to son receive an “equal chance” at getting [SLSR]’ (Stone, break putative ties between individuals, it is questionable 2007: 281; also Stone, 2011: 17). The idea is that RAND whether RAND are uniquely justified to break those ties. have ‘the unique capacity to divide a good probabilistic- For in such cases, many allocation procedures that do ally’ (Kornhauser and Sager, 1988: 491) and enable the not involve any kind of RAND may be justifiably used to relevant decision-makers to substitute equality of out- break ties (e.g. Ullmann-Margalit and Morgenbesser, comes with equality of chance, which is a ‘second-best 1977, on various so-called picking procedures). In this equity’ (Duxbury, 1999: 72–73) and a ‘surrogate satis- respect, it is telling that leading proponents of RAND faction’ of the individuals’ claims to SLSR (Broome, concede that when allocating SLSR, ‘it is doubtful that 1991a: 98; also Elster, 1988: 128; Saunders, 2008: 359). [RAND are] going to be the best way of breaking the tie’ There are at least two reasons to doubt that the argu- (Broome, 1991a: 101). ment from equal chances justifies using RAND (rather A proponent of the argument from tie-breaking may than DIR) to allocate SLSR. First, as noted in ‘Argument further object that RAND ‘become live options only after from Tie-Breaking’, the proponents of RAND are rarely some effort to [filter] out options has taken place’ able to establish that different individuals’ claims to (Stone, 2011: 149, italics added; also Elster, 1989: 67, SLSR have equal strength. This, in turn, casts doubt on claiming that ‘I know of no instance of social lotteries the argument from equal chances’ potential to ground a without some preselection [.. .] on the basis of need, merit, and the like’). This objection correctly notes wide-ranging case in favour of RAND. In particular, it indicates that the allocative decision to give each of the that RAND are rarely implemented without some pre- liminary screening of the involved individuals’ claims to involved individuals the same chance of receiving the the available SLSR. Still, the objection fails to ground a available SLSR ‘requires justifying as much as any other’ wide-ranging case in favour of RAND unless it is allocative decision (Broome, 1984b: 54). And second, Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 92 FUMAGALLI whenever the relevant decision-makers have reason to SLSR, the importance of giving each of the involved think that the involved individuals’ claims to the avail- individuals equal chances rarely trumps the normative able SLSR significantly differ in strength, it is dubious relevance of the differences in the strength of these indi- that giving each of the involved individuals the same viduals’ claims. For as noted in the previous sections, chance of receiving this SLSR has the normative relevance there frequently are major differences in the strength required to justify using RAND to allocate such SLSR. In of distinct individuals’ claims to SLSR, and allocations fact, it is hard to see in what sense ‘chances of satisfaction of SLSR often have life-and-death implications whose [would constitute] surrogate satisfaction, so that giving normative relevance trumps the importance of giving people equal chances would constitute a way to treat each of the involved individuals equal chances. To put [people’s] claims fairly’ (Henning, 2015: 177, italics it differently, when the relevant decision-makers can added; also Lazenby, 2014: 337, holding that giving identify major differences in the strength of distinct indi- one some chance of receiving a good does not per se viduals’ claims to SLSR, the reason to prefer individuals provide her with any ‘satisfaction of her claim [...] com- with comparatively stronger claims outweighs the im- mensurate with satisfaction in outcome’). portance of giving each individual an equal chance (e.g. A proponent of the argument from equal chances may Savulescu, 1998; Stein, 2002). In this respect, it would be object that ‘the provision of [.. .] epistemically equal of limited import for a proponent of the argument from positive chances of an indivisible, life-saving resource equal chances to object that if individuals’ claims signifi- to those with equal claims [.. .] ensures the equal distri- cantly differ in strength, then the relevant decision-mak- bution of something that it is rational for different indi- ers can track such difference by relying on weighted viduals to prudentially value equally’ (Otsuka, 2021, (rather than unweighted) RAND (e.g. Broome, 1991a: italics added; also Parfit, 2003: 376–378). This objection 98). For weighted RAND do not give each of the involved correctly notes that the involved individuals might re- individuals an equal chance of receiving the available gard their chances of receiving SLSR as intrinsically (ra- SLSR and face severe difficulties when it comes to appor- ther than just instrumentally) valuable (e.g. tioning each individual’s chance of receiving the avail- Goldschmidt and Nissan-Rozen, 2021). Still, the chances able SLSR to the strength of each individual’s claim to given by RAND do not directly benefit the involved such SLSR (e.g. Kirkpatrick and Eastwood, 2015: 82, individuals in a way that makes it prudentially rational holding that ‘it is almost impossible to calculate the for these individuals to value an equal distribution of weights of the lotteries in accordance with the [strength chances. In particular, it is not generally the case that of each individual’s claim]’; also the previous ‘the chance of a benefit is itself a benefit’ (Saunders, sections). 2008: 367; also Broome, 1984a; Wasserman, 1996). In fact, it would be mistaken to generally regard the chances given by RAND as an additional good to be added to the Argument from Fairness expected benefit of receiving SLSR (e.g. Henning, 2015: The argument from fairness holds that the relevant deci- 174, holding that it would ‘be double counting to regard sion-makers should use RAND (rather than DIR) to al- the chances provided by [RAND] as additional goods’). locate SLSR on the alleged ground that RAND are A proponent of the argument from equal chances may typically fairer than DIR and are ‘sometimes [.. .] the further object that ‘though the chance of a benefit is not fairest way of distributing a good’ (Broome, 1991a: 87– itself a benefit [.. .] we should not ignore such chance’ 88; also Rowe, 2021). The idea is that RAND yield a (Parfit, 2003: 377). In particular, she may maintain that fairness gain compared to DIR because fairness ‘requires when allocating SLSR, differences in the strength of dif- that each candidate’s claim should be satisfied in pro- ferent individuals’ claims to the available SLSR are often portion to its strength’ and RAND satisfy this require- of minor normative relevance compared to the import- ment better than DIR (Broome, 1994: 38; also Broome, ance of giving each of the involved individuals equal 1984b: 45, 1991a: 95). To be sure, the argument grants chances of receiving such SLSR (e.g. Harris, 1999; that RAND involve a fairness loss compared to DIR in Segev, 2005). The idea is that the relevant decision- that they are less likely than DIR to allocate SLSR to makers should use unweighted RAND to allocate SLSR individuals with comparatively stronger claims to on the alleged ground that the importance of giving each of the involved individuals equal chances trumps the SLSR (e.g. Broome, 1984b). Still, the argument holds that this fairness loss must ‘be weighed against normative relevance of the differences in the strength of these individuals’ claims. However, when allocating [RAND’s] contribution to fairness’ and that ‘if claims Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 93 are close to equality, holding [RAND] will be fairer than SLSR. As Hooker puts it, ‘suppose your claims to some not’ (Broome, 1991a: 99; also Stone, 2011: 88, holding indivisible good are very much [stronger] than mine. Is that when the involved individuals have ‘equal claims there any unfairness in your getting the indivisible good [.. .] it is impossible to imagine anything fairer’ than rather than my getting it? [...] Given that your claim is RAND). Hence, the argument goes, when allocating so much stronger than mine [...] letting the stronger SLSR, RAND are typically justified because in ‘matters claim win seems completely fair’ (2005: 349). of life and death, fairness is particularly important [and] A proponent of the argument from fairness may ob- everyone has a claim to life’ (Broome, 1991a: 90 and 99). ject that the argument justifies using RAND (rather than That is to say, when claims are equal, one should use DIR) to allocate SLSR on the alleged ground that any unweighted RAND, and when claims are not equal, change in the strength of the involved individuals’ claims one should use weighted RAND, with heavier weights to SLSR ‘warrant[s] a similarly-sized change to what fair- assigned to the individuals with stronger claims to the ness requires’ (Rowe, 2021: 1, italics added). I am not available SLSR (e.g. Broome, 1991a; White and Angus, persuaded that any change in the strength of the involved 2020; Rowe, 2021). individuals’ claims to SLSR warrants ‘a similarly-sized There are at least two reasons to doubt that the argu- change to what fairness requires’. For the fairness loss ment from fairness justifies using RAND (rather than involved in using RAND (rather than DIR) increases as DIR) to allocate SLSR. First, as the argument acknowl- the difference in the strength of the involved individuals’ edges, fairness is not the only factor which bears on the claims increases. And for all the argument from fairness justifiability of using RAND (rather than DIR) to allo- shows, RAND may be overall fair only when the involved cate SLSR (e.g. Broome, 1991a: 99, holding that the jus- individuals have claims of the same strength (e.g. tifiability of using RAND will depend on ‘how important Lazenby, 2014: 344; also Saunders, 2010; Voorhoeve, fairness is’ compared to the issue whether ‘the candi- 2014; Kirkpatrick and Eastwood, 2015, on cases where dates’ claims are equal’). And for all the argument shows, the difference in the strength of distinct individuals’ fairness considerations may frequently fail to trump claims to SLSR is so large that it seems rather unfair to other factors when assessing the justifiability of different use RAND to decide which individuals receive such procedures for allocating SLSR (e.g. Schmidt, 1994; SLSR). This, in turn, significantly constrains the argu- Nissan-Rozen, 2019; Savulescu et al., 2020, on various ment from fairness’ potential to ground a wide-ranging cases where major social welfare gains override the case in favour of RAND. For as argued in the previous demands of fairness). And second, the argument does sections, individuals’ claims rarely have the same not show that allocating SLSR on the basis of RAND is strength . Moreover, even assuming that any change in generally fairer than allocating SLSR on the basis of DIR. the strength of the involved individuals’ claims to SLSR This point can be explicated as follows. Several concep- warranted ‘a similarly-sized change to what fairness tions of fairness have been advocated in the recent lit- requires’, this assumption would not per se license the erature on the allocation of scarce resources (e.g. conclusion that any change in the strength of the Fleurbaey, 2008; Otsuka and Voorhoeve, 2009; involved individuals’ claims to SLSR warrants a similar- Fleurbaey and Maniquet, 2011). Few of the proffered ly-sized change in the chance that each of the involved conceptions endorse the argument from fairness’ pre- individuals should have of receiving SLSR. supposition that fairness requires that each candidate’s A proponent of the argument from fairness may fur- claim should be satisfied in proportion to its strength ther object that the argument ‘can be extended’ from (e.g. Saunders, 2010; Tomlin, 2012; Voorhoeve and cases where candidates have ‘exactly equal claims’ to Fleurbaey, 2012). In fact, various conceptions hold that SLSR to cases where they have ‘roughly equal claims’ to when individuals’ claims to SLSR significantly differ in SLSR, thereby vindicating the use of RAND in ‘a much strength, it would be unfair to allocate SLSR using wider domain’ (Broome, 1984b: 48, italics added; also RAND (e.g. Voorhoeve, 2014; also Stone, 2011: 150, Rowe, 2021, on cases where decision-makers are unable holding that it would be unfair to ‘toss [.. .] a coin before to reliably identify major differences in the strength of deciding whether [to cure] a moderately sick or critically individuals’ claims). The idea is that the argument from ill person’). For in presence of significant differences in fairness justifies using RAND (rather than DIR) to allo- the strength of individuals’ claims, the fairness gain that cate SLSR unless the involved individuals’ claims signifi- RAND putatively yield compared to DIR does not offset cantly differ in strength and enables the relevant the fairness loss occurring whenever individuals with decision-makers to identify clear cases where using comparatively weaker claims receive the available RAND is justified. To illustrate this objection, consider Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 94 FUMAGALLI the following scenario (e.g. Piller, 2017: 230, for a similar Argument from illustration). Assume, for the sake of argument, that we Incommensurability can reliably measure the strength of individuals’ claims to SLSR on some cardinal scale. Compare then a large- The argument from incommensurability holds that the difference case where a 99 per cent to 1 per cent distribu- relevant decision-makers should use RAND (rather tion of the chances of receiving SLSR reflects the strength than DIR) to allocate SLSR on the alleged ground that of two individuals’ claims to SLSR, with a small-differ- ‘when comparing candidates for life-saving treatment ence case where a 51 per cent to 49 per cent distribution [.. .] it often seems impossible to weigh the [candidates’ of the chances of receiving SLSR reflects the strength of claims to treatment] in a precise way’ (Broome, 1991a: two individuals’ claims to SLSR. The argument from 100; also Glover, 1977: 203–227). The idea is that the fairness does not recommend using RAND in the strength of different individuals’ claims to SLSR is often large-difference case since the fairness loss which occurs incommensurable (e.g. Rescher, 1969; Raz, 1999: ch. 3) when using DIR that reduce the chance of the individual and that whenever it is ‘impossible in practice to carry with the rather weak claim from 1 per cent to 0 per cent is out finely grained comparisons’ of the strength of indi- negligible. Conversely, the argument from fairness rec- viduals’ claims to SLSR, the relevant decision-makers ommends using weighted RAND in the small-difference should allocate SLSR on the basis of RAND (Elster, case on the alleged ground that using DIR that reduce the 1988: 131; also Broome, 1984b: 50, holding that ‘there chance of the individual with the slightly weaker claim are many possible criteria’ for choosing between the from 49 per cent to 0 per cent is less fair than using involved individuals, and ‘there may not even be any RAND that give such individual a 49 per cent chance single correct way of weighing up the criteria’). of receiving SLSR. The idea is that in the small- There are at least three reasons to doubt that the ar- difference case, allocating SLSR directly to the individual gument from incommensurability justifies using RAND with the slightly stronger claim would be unfair because (rather than DIR) to allocate SLSR. First, showing that the individual with the slightly weaker claim ‘is entitled the strength of different individuals’ claims to SLSR is to treatment only slightly less good’ than the individual incommensurable requires one to show that reliable com- with the slightly stronger claim rather than a 0 per cent parisons of the strength of such claims are ‘impossible chance of receiving SLSR (Broome, 1984b: 48). [.. .] not just costly or difficult’ (Elster, 1988: 163, italics This objection invites two rejoinders. First, the mere added). Yet, the proponents of the argument from in- fact that DIR give the individual who would otherwise commensurability have hitherto failed to show that cases have a 49 per cent chance of receiving SLSR a 0 per cent of incommensurability are sufficiently widespread to chance of receiving SLSR does not per se make DIR un- ground a wide-ranging case in favour of RAND. fair. In fact, the argument from fairness presupposes (ra- Second, it is dubious that cases of incommensurability ther than shows) that fairness requires to give such are sufficiently widespread to ground a wide-ranging individual a 49 per cent chance of receiving SLSR. In case in favour of RAND. For as illustrated in the previous particular, the argument fails to undermine conceptions sections, the difficulties inherent in assessing the of fairness according to which, when the relevant deci- strength of different individuals’ claims to SLSR rarely sion-makers can reliably identify differences in the prevent decision-makers from being able to make some strength of distinct individuals’ claims to SLSR, fairness informed ordinal judgements regarding the strength of requires giving SLSR directly to the individuals with the different individuals’ claims to SLSR. To give one ex- strongest claims to SLSR rather than giving all the ample, consider decision-makers’ judgements of medic- involved individuals chances proportional to the al need. When allocating SLSR, it is often difficult to strength of these individuals’ claims to SLSR. And se- assess how exactly the involved individuals differ in cond, the argument from fairness does not provide terms of medical need. Still, this difficulty does not pre- plausible and detailed criteria to establish exactly when vent the relevant decision-makers from being able to the difference between stronger and weaker claims can make some informed ordinal judgements regarding be justifiably regarded as small enough that the fairness individuals’ medical need and how considerations of gain putatively yielded by RAND trumps the unfairness medical need bear on the strength of those individuals’ which occurs whenever the individuals with compara- claims to SLSR (e.g. Broome, 1984b; also Antommaria tively weaker claims receive SLSR. Hence, the argument et al., 2020; Chisholm, 2020). And third, deciding which does not provide plausible and detailed criteria to estab- RAND to use to allocate SLSR (e.g. weighted versus lish in what situations RAND are fairer than DIR. unweighted RAND, which weighted or unweighted Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 95 RAND) requires the relevant decision-makers to assess also Stone, 2011, 105, holding that many calls for DIR the strength of different individuals’ claims to SLSR. betray ‘extraordinary confidence in what reason can Hence, pointing to the alleged incommensurability of do’). This objection invites two rejoinders. First, one the strength of different individuals’ claims to SLSR may consistently advocate DIR while acknowledging does not per se provide a reason to regard RAND as that the relevant decision-makers may be unable to iden- more justified than DIR. As leading proponents of tify all the reasons that bear on the strength of individ- RAND acknowledge, justifying RAND requires one ‘to uals’ claims to SLSR (e.g. ‘Argument from Convenience’ establish a rank ordering’ among the involved individu- on situations of unforeseen emergency). For justifying als’ claims, and ‘if the claims are incommensurable [.. .] DIR does not require decision-makers to identify all the it is unclear precisely what allocative justice demands’ reasons that bear on the strength of individuals’ claims to (Stone, 2011: 56). SLSR, but only requires them to identify the main rea- A proponent of the argument from incommensur- sons that bear on the strength of such claims. To be sure, ability may object that the relevant decision-makers if decision-makers identify only a few of the reasons that should use RAND (rather than DIR) to allocate SLSR bear on the strength of individuals’ claims to SLSR, then on the alleged ground that ‘when an agent is unsure what it is possible that some unidentified reasons offset the the morally right thing to do is [then using RAND] is the impact that the identified reasons have on the allocation best one can do, given one’s moral uncertainty’(Nissan- of the available SLSR. Still, if the proponents of RAND Rozen, 2012: 45–46, italics added; also Rescher, 1969). are to show that the RAND they advocate are more jus- The idea is that the relevant decision-makers often find it tified than DIR, then it is up to them to point to uniden- epistemically impossible to identify what procedure it is tified reasons and demonstrate that such reasons do (or morally right to use to allocate SLSR and that whenever at least likely) offset the impact that the identified rea- this is the case, ‘the only rational thing’ for the decision- sons have on allocation. And second, it is often calls for makers is to use RAND even though the decision-makers RAND (rather than calls for DIR) which rest on unsup- have reason to think that there is some other allocation ported presuppositions concerning decision-makers’ available which is morally better (Nissan-Rozen, 2012: evaluative abilities. By way of illustration, calls for 49). This objection aptly emphasizes the uncertainty that RAND commonly infer that, if the relevant decision- is often involved in identifying what procedure it is mor- makers do not happen to find any significant difference ally right to use to allocate SLSR, but does not ground a in the strength of the involved individuals’ claims to wide-ranging case in favour of RAND. For as its propo- SLSR, then they can justifiably treat these individuals’ nents grant (e.g. Nissan-Rozen, 2012: 45), the objection claims as if they have equal strength (e.g. Stone, 2009: recommends using RAND only when the relevant deci- 395–396). And in many cases, this inference only seems sion-makers find it epistemically impossible to identify plausible under the presupposition—often left unsup- what procedure it is morally right to use to allocate ported—that decision-makers’ assessment of the SLSR. And the relevant decision-makers can frequently strength of the involved individuals’ claims to SLSR resolve (or at least alleviate) their moral uncertainty by identifies all the main reasons that bear on the strength acquiring more information about the allocation prob- of these individuals’ claims. lems they face (e.g. which RAND and DIR can be feasibly adopted, what consequences the available allocations Argument from Unjust may have, and what value different normative theories assign to such allocations). Discrimination A proponent of the argument from incommensur- ability may further object that the relevant decision- The argument from unjust discrimination holds that the relevant decision-makers should use RAND (rather than makers are often unable to resolve their moral uncer- tainty by acquiring more information about the alloca- DIR) to allocate SLSR on the alleged ground that DIR are often unjustly discriminatory (e.g. Stone, 2013; tion problems they face (e.g. Hersch and Rowe, 2021,on cases where the relevant decision-makers disagree as to Chisholm, 2020), whereas RAND ‘can [ensure] that what criteria should be adopted to assess the strength of bad reasons be kept out of the decision’ (Stone, 2011: the involved individuals’ claims). The idea is that there vii; also Dowlen, 2008: 15; Saunders, 2008: 359). The idea are limits to decision-makers’ ability to identify all the is that the relevant decision-makers should use RAND reasons that bear on the strength of individuals’ claims to (rather than DIR) to allocate SLSR because RAND are SLSR and that ‘these limits provide reasons for accepting less vulnerable than DIR to unjustly discriminatory (e.g. regular use of [RAND]’ (Stone, 2013: 579, italics added; racist) biases and ‘are constitutionally incapable of Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 96 FUMAGALLI playing favorites’ (Goodin, 1988: 61; also Kornhauser (Elster, 1988: 166). The idea is thatRAND ‘limitthe and Sager, 1988; Stone, 2009, 2011, on the ‘sanitizing’ opportunities for corruption and prejudice in decision function of lotteries, which putatively prevents unjustly making [and] guard against partiality and oppression’ discriminatory reasons from influencing allocation (Broome, 1984b:40; also Stone, 2011: 82). This objec- decisions). tion aptly emphasizes the importance of countering the There are at least two reasons to doubt that the argu- influence of decision-makers’ potential biases and cor- ment from unjust discrimination justifies using RAND ruption on the design and the implementation of allo- (rather than DIR) to allocate SLSR. First, a number of cation procedures (e.g. Sher, 1980; Teira, 2013b). factors can make a significant difference to the allocation However, the objection fails to show that RAND are of SLSR across distinct groups of individuals without generally more effective than DIR in countering the in- being unjustly discriminatory (e.g. Lippert-Rasmussen, fluence of decision-makers’ potential biases and cor- 2013: ch. 1–2). To illustrate this, consider the issue ruption (e.g. think of transparency and accountability whether SLSR should be allocated on the basis of indi- concerns pertaining to the decision-makers who design viduals’ age. Several proposals for allocating SLSR rec- and implement the proffered RAND). In fact, various ommend prioritizing the young over the elderly in cases sources of biases and corruption (e.g. racist attitudes) of pandemic emergency where being above a particular may demonstrably influence both decision-makers’ age makes individuals significantly less likely to benefit calibration of the weights to be adopted in RAND and from SLSR (e.g. White and Lo, 2020; British Medical decision-makers’ judgements as to whether the condi- Association, 2020b). Allocating SLSR directly on the tions which putatively justify using RAND (rather than basis of individuals’ age is often regarded as unjustly DIR) are satisfied in the first place (e.g. Broome, 1991a: discriminatory (e.g. Popescu and Marcoci, 2020; also 16 88; Henning, 2015:183). Bognar, 2015; Nielsen, 2021, for discussion). Still, the A proponent of RAND may further object that the fact that grounding the allocation of SLSR on individu- procedures for allocating specific SLSR are often als’ capacity to benefit from SLSR may disadvantage the designed and implemented in contexts facing structural elderly does not per se make such allocation proposals discrimination (e.g. think of deep and persistent socio- unjustly discriminatory (e.g. Farrelly, 2008; Lazenby, economic inequalities) and that RAND are generally 2011; British Medical Association, 2020a). And second, more effective than DIR in correcting for such discrim- the fact that discriminatory biases do affect some DIR ination. The idea is that ‘we cannot, nor should we, ex- (e.g. Den Hartogh, 2010; Hersch and Rowe, 2021,on pect that health-care workers [.. .] redress the social cases where first-come first-served and waiting time fa- determinants of ill health’ and that in light of existing vour socio-economically privileged individuals) does socio-economic inequalities ‘it seems somewhat disin- not cast general doubt on the justifiability of DIR. For genuous to pretend that [DIR are not influenced by] the the proponents of DIR frequently have the means to social determinates of health’ (Silva, 2020: 891). Let us neutralize (or at least alleviate) the influence of discrim- assume, for the sake of argument, that the justifiability of inatory biases (e.g. Antommaria et al., 2020; Truog et al., the procedures for allocating specific SLSR depends on 2020, on blinding mechanisms to prevent the relevant how effectively these procedures correct for structural decision-makers from accessing clinically irrelevant in- discrimination. Even so, it is dubious that RAND are formation about individuals’ race and wealth; also generally more effective than DIR in correcting for struc- British Medical Association, 2020b; White and Lo, tural discrimination. For only DIR and weighted RAND 2020, on allocation criteria that explicitly prohibit allo- can be calibrated with the specific aim to correct for cating SLSR on the basis of clinically irrelevant informa- structural discrimination. And unweighted RAND occa- tion about individuals’ socio-economic status, ethnicity sionally tend to exacerbate (rather than correct for) and sexual orientation). Hence, pointing to some DIR’s structural discrimination (e.g. John and Millum, 2020, vulnerability to discriminatory biases does not per se in- for illustrations targeting iterated applications of dicate that the relevant decision-makers should allocate unweighted RAND). SLSR on the basis of RAND. A proponent of the argument from unjust discrim- ination may object that the relevant decision-makers Conclusion should use RAND (rather than DIR) to allocate SLSR on the alleged ground that RAND are more effective In this paper, I have provided a systematic categorization than DIR in preventing the relevant decision-makers and a critical evaluation of the most influential argu- ‘from [engaging in] arbitrary exercise of power’ ments put forward to support the use of RAND to Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 97 allocate SLSR. I have argued that these arguments justify RAND’ broadly to encompass both RAND that give to the involved individuals objectively equal using RAND to allocate SLSR in fewer cases than their proponents maintain and that the relevant decision- chances and RAND that give to such individuals epistemically equal chances (e.g. Elster, 1988: 113; makers should typically allocate SLSR directly to the Stone, 2007: 280; Saunders, 2008: 363). My critical individuals with the strongest claims to SLSR rather evaluation of RAND would hold also if one than use RAND to allocate SLSR. This result does not restricted the use of ‘unweighted RAND’ to indicate per se exclude that some further arguments may be only RAND that give to the involved individuals articulated which support using RAND to allocate spe- objectively equal chances (e.g. Henning, 2015: 175). cific SLSR. Still, it makes it pressing for the proponents of 3. Below I focus on situations where the relevant deci- RAND to articulate and support those arguments. In the sion-makers face scarcity of life-saving resources, absence of such arguments, the relevant decision-makers without inquiring into the economic, social and pol- should typically allocate SLSR directly to the individuals itical determinants of this scarcity (e.g. with the strongest claims to these resources rather than Scheunemann and White, 2011; Rowe and use RAND to allocate such resources. Voorhoeve, 2018, on cases where such scarcity results from previous governmental decisions to re- Conflict of Interest duce funding for the health care system). My evalu- ation of the justifiability of distinct allocation None declared. procedures in situations of scarcity in no way exempts the relevant decision-makers from the Notes duty to do all they reasonably can to prevent the scarcity of life-saving resources (e.g. increase invest- 1. RAND are often used to allocate benefits and bur- ments in the health care system). dens other than SLSR (e.g. Elster, 1988; Stone, 2013, 4. My evaluation focuses on justificatory (rather than on the use of lotteries for drafting public servants motivating or explanatory) reasons. RAND might such as jurors and soldiers and for determining ad- be said to allocate SLSR on the basis of reasons in mission to high schools and universities ). My evalu- the sense that, according to RAND, an individual ation focuses on the allocation of SLSR (rather than receives SLSR because this individual is selected by other benefits and burdens) and on allocation prob- RAND. These reasons, however, exclusively pertain lems where decision-makers can save only a given to the workings of RAND and do not refer to the number of individuals among all individuals in need strength of the individual’s claims (e.g. Sunstein and of SLSR. I do not expand on allocation problems Ullmann-Margalit, 1999; Stone, 2013). where decision-makers can save groups comprising 5. Similar remarks apply to the objection that individ- different numbers of individuals since these alloca- uals generally find it easier to accept unfavourable tion problems raise additional complexities tangen- allocations when these allocations result from tial to my evaluation (e.g. Taurek, 1977; Kamm, RAND rather than from DIR (e.g. Rescher, 1969; 1985; Timmermann, 2004; Otsuka, 2006; Hirose, Bolton et al., 2005; also Stone, 2007: 288, claiming 2007). that since RAND are not intended to yield ‘any out- 2. A number of factors (e.g. feasibility considerations, come in particular’, RAND provide ‘as much con- the comparative strength of the involved individu- solation as justice and impartiality can provide [.. .] als’ claims to SLSR) putatively bear on the justifi- to the losers’). For in primis, the proponents of ability of using weighted (rather than unweighted) RAND have hitherto failed to provide convincing RAND to allocate SLSR. I expand on various such evidence that individuals generally find it easier to factors throughout the paper. Some authors speak of accept unfavourable allocations just because these ‘fair’ (rather than ‘unweighted’) RAND to indicate allocations result from RAND (rather than from RAND that give to each of the involved individuals DIR). And second, even if individuals found it easier an equal chance of receiving the available SLSR (e.g. to accept unfavourable allocations just because these Sher, 1980: 203). Below I use the term ‘unweighted’ allocations result from RAND (rather than from to indicate these RAND since the term ‘fair’ has nor- DIR), this would not per se license the normative mative connotations that do not generally charac- claim that the relevant decision-makers should use terize such RAND (e.g. ‘Argument from Fairness’). RAND (rather than DIR) to allocate SLSR (e.g. the In particular, I use the expression ‘unweighted psychological benefits that using RAND rather than Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 98 FUMAGALLI DIR putatively yields to the involved individuals do suffices to express one’s commitment to satisfy indi- not generally trump the normative relevance of the viduals’ claims equally (e.g. John and Millum, 2020; differences in strength of different individuals’ Hersch and Rowe, 2021). I do not expand on these claims to SLSR and these differences’ life-and- debates since my response to the argument from death implications). equal chances does not directly depend on what pos- 6. A proponent of RAND may object that justifying ition one advocates in such debates. the use of RAND does not require decision-makers 9. Similar remarks apply if the argument from equal to establish that individuals’ claims are equally chances is rephrased in terms of expected utility ra- strong, but only requires them to exclude the pres- ther than expected benefit (e.g. Singer, 1977). For ence of obvious reasons or evidence to regard some the notion of expected utility has different norma- individuals’ claims as much stronger than others. tive properties than the notion of utility and one However, this objection fails to ground a wide- may consistently value equality in utilities without ranging case in favour ofRAND unlessthe propo- valuing equality in expected utilities (e.g. Broome, nents of RAND supplement it with plausible and 1984a; Fumagalli, 2013, 2019). A proponent of detailed specifications of how much time and RAND may object that although the chances of resources decision-makers must devote to assess- receiving SLSR do not provide surrogate satisfac- ing individuals’ claims to be able to justifiably infer tion, giving individuals equal chances often ‘satisfies that individuals’ claims are equally strong from the the demand of fairness to an extent’ (Piller, 2017: sole fact that they do not discern obvious reasons or 226). I shall address and rebut fairness-related calls evidence to regard some individuals’ claims as for RAND in ‘Argument from Fairness’. For now, I much stronger than others. And the proponents note that giving each of the involved individuals of RAND have hitherto failed to address this justi- equal chances does not eliminate the inequality in- ficatory challenge (e.g. note no. 10). herent in the fact that only some of these individuals 7. A proponent of RAND may object that decision- receive the SLSR. For the individuals who receive the makers’ reliance on DIR may lead them to regard SLSR receive both the equal chance given to each of their evaluations of the strength of individuals’ the involved individuals and the SLSR itself (e.g. claims to SLSR ‘as far more [reliable] than they Wasserman, 1996: 44). are’ (Stone, 2013: 592) and gather information 10. A proponent of the argument from equal chances about individuals’ claims beyond the point where may object that decision-makers often lack conclu- the marginal costs of information search offset the sive reasons/evidence to regard some individuals’ marginal benefits of such search (e.g. Stone, 2011: claims to SLSR as stronger than other individuals’ 153). However, decision-makers’ reliance on RAND claims to SLSR, and that whenever this is the case may have equally problematic effects (e.g. the avail- decision-makers should treat all the involved indi- ability of RAND may lead decision-makers to devote viduals’ claims to SLSR as equally strong and use little time and resources to assess the strength of unweighted RAND (e.g. Glover, 1977: 203–227). individuals’ claims to SLSR). And as I argue in the Yet, decision-makers may simultaneously lack con- coming sections, the relevant decision-makers clusive reasons/evidence to regard some individuals’ should often devote more time and resources to as- claims to SLSR as stronger than other individuals’ sess the strength of individuals’ claims to SLSR than claims to SLSR while having convincing reasons/evi- the proponents of RAND maintain . dence to regard some individuals’ claims to SLSR as 8. An allocation procedure can be said to give individ- stronger than other individuals’ claims to SLSR. uals an equal chance of receiving the available SLSR Whenever this is the case, using unweighted both in the sense that, for all the relevant decision- RAND may lead decision-makers to questionably makers know, it is equally likely that any of these disregard significant differences between the individuals will receive the SLSR (epistemic equi- strength of different individuals’ claims to SLSR probability), and in the sense that each of those (e.g. note no. 6). individuals has equal objective chance of receiving 11. A proponent of RAND may object that weighted the SLSR (objective equiprobability). In the speci- RAND can effectively reduce the risk that individu- alized literature, intense debates have taken place als with comparatively weaker claims receive SLSR. concerning how to distinguish these two notions Yet, on many conceptions of fairness, when the rele- of equiprobability (e.g. Bradley, 2017) and whether vant decision-makers can reliably assess the strength epistemic (as opposed to objective) equiprobability of individuals’ claims to the available SLSR, it is Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 SCARCE LIFE-SAVING RESOURCES 99 unfair to use RAND that frequently deny SLSR to adopted by the relevant decision-makers (e.g. individuals who have comparatively stronger claims Savulescu et al., 2019, on cases where strong ethical to SLSR while giving SLSR to individuals who have arguments bear against including the allocation cri- comparatively weaker claims to SLSR (e.g. Elster, teria advocated by the involved individuals). 1988: 171). Moreover, as argued in the previous Moreover, individuals’ views do not generally sections, weighted RAND face severe difficulties favour RAND over DIR (e.g. Wilkinson et al., when it comes to apportioning each individual’s 2020, for experimental results about a number of chance of receiving the available SLSR to the hypothetical ventilator withdrawal scenarios). strength of each individual’s claim to such SLSR. 15. The argument from unjust discrimination targets 12. A proponent of the argument from fairness may not just cases where the allocation criteria used by object that decision-makers may circumvent the dif- the relevant decision-makers are directly discrimin- ficulties inherent in establishing exactly when the atory (e.g. think of openly racist allocation criteria), difference between stronger and weaker claims is but also cases where such criteria are indirectly dis- small enough that RAND are fairer than DIR by criminatory (e.g. Harris, 1995; Rothstein, 2010; adopting ‘a proportional chances scheme [.. .]in Silva, 2020, on how some DIR based on individuals’ the gray area in which it is hard to determine medical conditions tend to adversely affect disabled whether a difference is substantial or not’ (Segev, or otherwise disadvantaged individuals because of 2005: 250). The idea is to use DIR in cases where socio-economic factors that do not directly pertain distinct individuals’ claims to SLSR significantly dif- to these individuals’ medical conditions). I take my fer in strength (e.g. large-difference cases), response to the argument from unjust discrimin- unweighted RAND in cases where distinct individ- ation to hold for cases of both direct and indirect uals’ claims have exactly (or roughly) equal strength discrimination. (e.g. small-difference cases), and weighted RAND in 16. A proponent of RAND may object that RAND are all other cases. Regrettably, this proposal remains more effective than DIR in preventing the involved highly impractical unless it is supplemented with individuals ‘from trying to make themselves more plausible and detailed criteria to demarcate these eligible, at cost to themselves or to society’ (Elster, three types of cases and resolve disagreements about 1988: 166; also Elhauge, 1994, on putative cases such demarcation issue. where DIR incentivize the involved individuals to 13. The argument from incommensurability takes the withhold information from their physicians). strength of different claims to be incommensurable However, both the relevant decision-makers and so- when none of these claims is stronger than the others ciety at large may value the opportunity to incentiv- and the claims are not equally strong either (e.g. Raz, ize the involved individuals to adopt morally and 1986). In recent decades, different views of the rela- socially desirable (e.g. prudent) behaviour. And tionship between incommensurability and incom- DIR can often incentivize morally and socially de- parability have been advocated (e.g. Chang, 1997; sirable behaviour more effectively and directly than Broome, 2004; Rabinowicz, 2009). I mention these RAND (e.g. Glannon, 1998; Segev, 2005). For on views in passing since my response to the argument DIR, the strength of individuals’ claims to SLSR dir- from incommensurability does not directly rest on ectly determines not only what chances different which of those views one favours. individuals have of receiving the available SLSR, 14. A proponent of RAND may object that when the but also which individuals will receive such SLSR strength of individuals’ claims to SLSR is hard to (‘Introduction’). assess, many individuals believe that SLSR should be allocated on the basis of RAND (rather than Acknowledgements DIR), and therefore the relevant decision-makers should use RAND (rather than DIR). This objection I thank John Broome, Susanne Burri, Lucas Miotto, Tom correctly notes that individuals’ views may import- Rowe, David Teira and two anonymous reviewers for antly inform the design and the implementation of their comments on previous versions of this paper. I allocation procedures (e.g. Biddison et al., 2018,on also received helpful feedback from audiences at the how community engagement forums informed tri- Sowerby Philosophy & Medicine Project (King’s age guidelines for influenza pandemic in some US College London), the Maastricht Law and Philosophy states). However, individuals’ views do not directly Seminar, the University of Pittsburgh, California State determine what allocation procedures should be University, the conference ‘Bioethics and Law’ (Czech Downloaded from https://academic.oup.com/phe/article/15/1/87/6444252 by DeepDyve user on 14 July 2022 100 FUMAGALLI Academy of Sciences), Waseda University (Tokyo), the Calabresi, G. and Bobbitt, P. (1978). 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We Should Not Use Randomization Procedures to Allocate Scarce Life-Saving Resources

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We Should Not Use Randomization Procedures to Allocate Scarce Life-Saving Resources

We Should Not Use Randomization Procedures to Allocate Scarce Life-Saving Resources

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