!

"#$%&'() +



WIRE
HEADING
RAWLS:

A paper on
Opportunity,
Cognition,
& Justice.







By Jordan Birnholtz.












The future is here. It's just not evenly distributed.
William Gibson
!"#$%&'() ,
QUESTION:

This paper asks what the obligation of a just society to provide cognition enhancing surgery is. To answer it, we
must provide history, achieve some consensus on terms, and identify a particular framework of justice in which
to situate it. All of these will have to be included for me to offer a cogent thesis. So let it suffice for now, as a
hypothesis, to say that such an obligation exists, but not towards everyone.

BACKGROUND:

DRUGS, or MODULATING INPUT.

Many good books are devoted to the very long history of the human use of psychoactive drugs. For the
uninitiated, some anecdotes are unsystematically included: That coca leaves are found in the more than
thousand year-old tombs of Peruvian mummies. That the oldest beer receipt in history reports the purchase of
the "best" beer in the Mesopotamian city-state, Ur, circa 2050 BC; that the deliberate production of beer began
no later than 7000 years prior to that. That Freud really liked coke. Etc.

* * *

THE PLASTIC BODY.

On a similar note, body modification is also a very old practice. Again, some examples: That tzi the five
and a half thousand year-old Austrian Ice Man has pierced ears. That Indian doctors began performing plastic
surgery surgery meant to reconstruct, remold or reshape
1
around eight hundred BC. That nose jobs were even
more popular in Nazi Germany than on the Real Housewives of New Jersey. Etc.

EXPLICATION.

So we see that neither body modification nor psychoactive drug-taking or rather, the deliberate
modification of the mind by physical restructuring of the brain are in and of themselves new genres of human
behavior. My concern, it follows, is for the spiritual combination of the two. That is to say, for the first time in
history we are witnessing a meaningful intersection of these two tendencies
2
, which we will henceforth call
cognition-enhancing surgery
3
.

CES is hence defined as the physical manipulation of the body to improve cognition. (Contained in the
body, of course, is the brain.) CES is still an immature and limited practice, relative where I suspect it will be in
time, in scope and utility. Its most common varieties at present are deep brain stimulation, vagus nerve
stimulation, and transcranial magnetic stimulation. DBS and VNS are neuroprosthetic practices, involving the
implantation of a brain pacemaker which emits electrical pulses from within; TMS applies magnetic induction
to the head to induce the depolarization or hyperpolarization of neurons. So far these practices have been
adapted to treat neurodegenerative diseases, e.g. Parkinson's, epilepsy, and to treat intellectual and emotional
disturbances such as depression allowing patients to think more lucidly, freer from the specters of depression

1
Plastic meaning malleable, not being a reference to the physical composition of materials used, as is sometimes thought.
2
Lobotomies being excluded because they, broadly speaking, reduce cognition and the ability to abstract.
3
Henceforth CES.
!"#$%&'() -
and cognitive degradation.

Many good papers are being written about the future of CES. Lots of good fiction has already been
written. So here I note in the broadest sense that the purpose of this paper is to explore the joint economic and
philosophical implications of CES, in a long term and thus speculative sense, through the lens of Norman
Daniels Just Health Care and John Rawlss Justice as Fairness.

In accordance with this, the paper gives unsystematically the above examples only to instantiate the claim
that CES is real and its development expanding. I don't intend to project the future of the industry, only to
evaluate the practice (and implicit in that, the question I posed above) through the work of Rawls and Daniels.

In accordance with this modest ambition I will proceed.

INTRODUCING RAWLS + DANIELS.

"We ask: by what principles are differencesin life-prospectsmade legitimate and consistent with the
idea of free and equal citizenship in society seen as a fair system of cooperation?"

John Wesley Rawls Justice as Fairness gives us a social contract theory of justice framed for a democratic
society, in which the most reasonable principles of justice are those that would be the object of mutual
agreement by persons under fair conditions [Rawls, EF:1]. It articulates [principles of] a broadly liberal
conception of basic rights and liberties, and only permit[s] inequalities in wealth and income that would be to
the advantage of the least well off [Rawls, EF:1]. Justice as Fairness provides a political conception of justice
justified by reference to political values and [not] presented as part of a more comprehensive moral, religious
or philosophical [doctrine] [Rawls, EF:1]. Its primary analytical device is the Veil of Ignorance, realized in the
Original Position, a hypothetical case in which the citizenry is divorced from its knowledge of self-status and
endowments and required to cooperatively develop just principles, which would result in a well-articulated basic
structure or core of government.

Rawls concludes this would produce a society with lexically ordered principles: that of liberty, and that
of equality which itself contains (in order) the fair equality of opportunity principle and the difference
principle.
4
It also produces a list of primary social goods a truncated scale of well-being used by moral agents
seeking a hypothetical social contract which contains: 1. A set of basic liberties; 2. Freedom of movement
and choice of occupations against a background of diverse opportunities; 3. Powers and prerogatives of office; 4.
Income and wealth; 5. Social bases of self-respect (Daniels 42-43).

Norm Danielss Just Health Care offers a skeleton theory of health care distribution contingent on the
existence of a general theory of justice, but the guts of his argument are Rawls. So he extends Rawlss theory of
justice as fairness, in particular the fair equality of opportunity of principle, to this problem.

Before I proceed further in describing Just Health Care, some definitions must be made clear, some
ambiguity eliminated.

TERMS & DEFINITIONS:

4
An important disclaimer: Rawls theory of justice, and thus these principles, are designed to apply to a plural and democratic society
which faces moderate scarcity. It precludes a society of extreme scarcity, among other things.
!"#$%&'() .
The Principle of Liberty;

"Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is
compatible with the same scheme of liberties for all. (Rawls 42)

The Principle of Liberty is the first principle in Rawls lexical ordering for the democratic, well-ordered
society of moderate scarcity. The freedoms it contains are thus enumerated: freedom of thought and liberty of
conscience; political libertiesand freedom of association, as well as the rights and liberties specified by the
liberty and integrity of the person; and finally the rights and liberty covered by the rule of law (Rawls 45).
Rawls notes such a list such as this could be derived either through a historical-genealogical lens, or through an
analytical one. He advocates the analytical approach, asking what liberties provide the political and social
conditions essential for the adequate development and full exercise of the two moral powers of free and equal
persons (45) and concludes that they are the capacity for a sense of justice [of [judging our] basic institutions
and social policies], and the capacity for the conception of the good. By which he means, the capacity to form and
revise ones plans in the rational pursuit, individual or cooperative, of ones notion of what is good in a classical
liberal sense.

The Principle of Equality;

Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and
positions open to all under conditions of fair equality of opportunity; and second, the are to be to the greatest benefit of the
least advantaged members of society (the difference principle). (Rawls 42)

The Principle of Equality is the second principle. Consequently it is always to be applied within a setting
of background institutions that satisfy the requirements of the first principle (Rawls 46). It ensures that
citizens similarly gifted and motivated have roughly an equal chance of influencing the governments policy and
of attaining positions of authority irrespective of their economic and social class (Rawls 46). This second
principle requires fair equality of opportunity and that social and economic inequalities be governed by the
difference principle (Rawls 47).

The Difference Principle, upon which he draws and briefly summarized in the above quote, concerns
distributive justice
5
, not allocative justice
6
. Namely, the differences in citizens' (reasonable) expectations their
life-prospects of primary goods over a complete life. (Rawls 59). Roughly it means that no possibility for
benefit at the expense of the worst off in society roughly approximated by income ought be encoded in to the
basic structure.

(The Rights to) Health and Health Care;

What sets do these terms denote and how do they overlap? How might such rights be constructed?
Daniels devotes several pages to examining this question. Acknowledging that many individuals have differing
interpretations of each, he collapses them together for the purposes of the argument them into one another. He
proposes that a right claim to equal health is best construed as a demand for equality of access or entitlement to

5
The problem of distributive justice in justice as fairness is always this: how are the institutions of the basic structure to be regulated
as one unified scheme of institutions so that a fair, efficient and productive system social cooperation can be maintained over time,
from one generation to the next? (Rawls 50)
6
Indeed, Rawlss methods are not meant to be applied to specific individuals, but to the development of a basic structure. AJ being
defined as justice pertaining to the allocation of goods to individuals with known desires or needs. (AC.uk)
!"#$%&'() /
health services where these may include preventative and environmental measures (7). Even with this
collapsed definition, a problem in constructing such a right claim persists:

Those who claim a right to health are often gloss over another important distinction. They may intend
only a system-relative claim to health care: whatever health-care services are available to any within the
given health-care system should be accessible to all. Such a claim [could] be met by removing services
accessibly only to a privileged few from the system Contrast this right claim with one that requires
some specifiable range of health-care services be made available to all (and perhaps that any additional
services be made available to some only if they are available to all) The two right claim have vastly
different implications for reform of a given [system]. (7-8)

He continues:

Talk about a right to health care can thus imply quite different things Claiming a right to health
care reduces to a composite of other rights and claims, among them: (1) society has the duty to its
members to allocate an adequate share of its total resources to health-related needs, such as the
protection of the environment and the provision of medical services; (2) society has the duty to provide a
just allocation of different types of health services, taking into account the competing claims of different
types of health needs; (3) each person is entitled to a fair share of such services, where a fair share
includes an answer to the question, Who should pay for such services? (8-9)

This expository mode serves to justify the need he sees: for a systematic theory of distributive justice for health-
related needs (9).

A WORKING THESIS.

Both Rawls and Daniels are alive to the fact that the severely cognitively-impaired disrupt their models.
Rawls notes his citizens must be capable of making moral judgments on institutions and of evaluating the good,
while Daniels realizes the severely impaired might require a much larger share of health care resources, and that
their autonomy or lack thereof might pose problems for the health-care delivery mechanisms of a just society.
So it is with their concerns and models in mind I ask again: if a subset of health care services CES can
make improve cognition, is a just society required to provide
7
such services? If so, to whom?
My extension of Norman Danielss model of just health care distribution, itself an extension of Rawls
theory of justice as fairness, says:
Yes, but not to everyone.
Now that I have contextualized this basic answer, I believe it can be extended.

EXTENSION.

Daniels remarks, the theory [of justice as fairness] is idealized to apply to individuals who are normal,
active and fully cooperating members of society over the course of a complete life. Such an idealization allows
Rawls to construct a theory of justice for the simpler, idealized case... In effect, there is no distributive theory for
health care because no one is sick! (Daniels 43). He argues that, in this way, Rawlss truncated scale of well-being
the list of primary goods is too truncated, once we drop the idealizing assumption that all people are normal
(Daniels 43). However simply adding health care, as we have defined it so far, to this list would not suffice.

7
And perhaps to deny.
!"#$%&'() 0
Indeed, the simple appendage of health care would abandon the useful generality of the notion of the primary
social good (Daniels 45).

I offer in affirmation that neither food nor housing are considered primary social goods. So let us
suppose as Daniels does that the special importance and unequal distribution of health-care needs, like
educational needs, are acknowledged by their connection to other institutions that provide for fair equality of
opportunity, so that opportunity is the primary social good we are concerning ourselves with (Daniels 45).
We can then include health-care institutions to the list of institutions governed by the principle of fair equality
of opportunity. Rawls argues it is not enough to simply to eliminate formal or legal barriers to persons seeking
jobs and offices that positive steps must be taken to secure fair equality of opportunity (Daniels 46).
Precedent for this can be found in the institution of public education. In essence, if it is important [enough] to
use resources to counter the advantages in opportunity some get in the natural lottery, it follows that it is
equally important to use resources to counter the natural disadvantages induced by disease (Daniels 46).

Meanwhile, Rawls uses income and wealth self-aware as he is of their roughness as a means to
approximate the standards by which we define the best and worst off. It seems insensible to add the broad sense
of cognitive powers to this approximation, even though these powers seem to dictate in no small measure our
life prospects in terms of income. This is for two reasons: first, just as having health is not a primary good,
neither is it to be intellectually fit which is a combination of native endowments and education; second, that
cognitive powers are varied and diverse, and that different powers correspond to different skills and thus
different life prospects.

* * *

(A BRIEF DIGRESSION)

With regards to the latter, I wish here to firmly reject the use of the concept of General Intelligence,
otherwise known as the g-factor, as an approximation of anything other than extreme native endowments of
intellect. This is a much more complex argument than this paper can shed light on, but it should be
uncontroversial that the brain is a very complex organ; it should suffice to say that the g-factor, as a single
variable to explain cognitive differences, is too parsimonious and borders in its use in psychometric studies on
tautological.

If we are in agreement or at least are willing to take for granted that (at least here) the g-factor is
useful only (or even primarily) as a measure of cognitive extremity, and that a just society rewards certain skills
or cognitive powers, which are a combination of native endowments and education, then we may proceed.

EXTENSION II.

Daniels develops the notion that a just health-care system might govern its services under the
expectation of what he calls species normal functioning. This will be a useful guideline but not the sole or final
basis of our understanding of who should and should not receive CES, and at the expense of whom. His
construction of the argument is what matters most.

Drawing on David Braybrooke and J.H. McCloskey, he writes:

One plausible suggestion for distinguishing the relevant needs from all the things we can come to
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need is the distinction between course-of-life needs and adventitious needs. Course-of-life needs are those
needs which people have all through their lives or at certain stages of life through which all must pass.
Adventitious needs are things we need because of the particular contingent projects, which may be long-term
ones, on which we embark. Human course-of-life needs would include food, shelter, clothing, exercise, rest,
companionship, a mater (in ones prime, says Braybrooke), and so on [Note that] a deficiency with respect to
them endangers the normal functioning of the subject of need considered as member of a natural species. (Daniels
26)

I include here some (of my) reservations about the term natural species. Its a very useful concept in
studying biology. I have no interest in trying to discredit that use
8
. But using scientific terminology sans the
scientific process is a dangerous enterprise; from phrenology to racial hygiene, the misappropriation of scientific
language has legitimated and enabled grave injustice. Is it appropriate here?

Though we should approach with caution, it will do. Daniels does not use the concept to enumerate
necessary conditions for being thought of as human, so as to exclude people from our scheme. Instead he uses it
to identify what adversities people face, taking for granted that we are speaking of humans, that are most relevant
in affecting ones functioning.

Danielss elaboration of this: impairments of normal species functioning reduce the range of
opportunity open to the individual in which he may construct his plan of life or conception of the good
(Daniels 27); moreover, that if persons have a fundamental interest in preserving the opportunity to revise their
conceptions of the good through time, then they will have a pressing interest in maintaining normal species
functioning (Daniels 28). Hence, the kinds of needs picked out by reference to normal species functioning are
objectively important because they meet this fundamental interest persons have in maintaining a normal range
of opportunities (Daniels 28).

Daniels writes: The concept of disease is not merely a statistical notion a deviation from the
statistical norm. Rather, it draws on a theoretical account of the design of the organism (Daniels 28).
Continuing in the vein of a biological-medical framework, he commits to developing his model of needs from a
concern with evolutionary theory. The most important implication of this is not that we ought implement a
Social Darwinist policy (a fear I tried to allude to above), but that humans require an account of the species-
typical functional organization that permits us to pursue biological goals as social animals
9
.

But what of mental disease? The biomedical model provides a very good point of references for
understanding normality and hence deviation for most of the body. A large hole in ones heart clearly threatens
ones normal range of opportunity. But we have a less well-developed theory of species-typical mental functions
and functional organization. The biomedical model clearly presupposes we can eventually develop the missing
account and that reasonable part of what we now take to be psychopathology will show up as diseases within the
model the difficulty of so extending the biomedical model to mental disease does not deter me from assuming
such an extension: psychopathology covers an important class of diseases which generate major health care
needs, many of which are unmet in our current health-care system (Daniels 29).

Yet he confesses to more difficulty in using the biomedical model as such a basis: [We] need an account
of the functional ascriptions in biology which does not depend on our making normative judgments More

8
I also dont wish to suggest its a social construct, because, duh. By which I mean it is and, as I said, its an extremely useful one for
study of biology.
9
I.e. cooperative. It is reassuring to hear that Daniels views the arc of evolution as one which encourages active inclusion and
cooperation, and not one that suggests the need to exclude more and with greater violence.
!"#$%&'() 2
specifically, we need to be able to distinguish genetic variation from disease, and we must specify the range of
environments taken as natural for the purposes of revealing dysfunction If we allow too much of the social
environment, then racially discriminatory environments might make being of the wrong race a disease; if we
disallow all socially created environments, then we seem not to be able to call dyslexia a disease (remember I
include certain disabilities) (Daniels 30).

Fortunately, for Daniels, these difficult issues need not detain us. My discussion does not turn on this
deeper, stronger claim about non-normativeness advanced by some advocates of the biomedical model. It is
enough for my purposes that the line between disease and the absence of disease is, for the general run of cases,
uncontroversial and ascertainable through publicly acceptable methods It will not matter if what counts as a disease
category is relative to some features for social roles in a given society, and thus to some normative judgments,
provided the core of the notion of species-normal functioning is left intact (Daniels 30).

Fortunate for both us and Daniels indeed
10
. However, the relationship between social roles, species-
normal functioning, and the brain requires from us a bit more explication than from him: we are, alas, arrested.

RAWLS, DANIELS, and the ESSAYIST GO TO JAIL:
EXTENSION III.

Among these judgments are those regarding normal and non-normal brain functioning, and implicit in
that, human behavior and skill. While a theory of just health care for CES could be developed without having
this conversation, I suspect that would leave us with something very vague and gutless. But if this is a
conversation about what health care services a just society would provide, we probably should first say more
about the mechanisms by which they will be provided, as to avoid that unhelpful generality. Let us return to the
matter of particular skills and our judgments of them later on.

What is meant when we speak of equitable access in health care? Daniels offers a few popular accounts
before settling on his own, a fair equality of opportunity account. As weve already stated:

The account says that health care is special because meeting health-care needs has an important effect
on the opportunity open to individuals to choose reasonable plans of life. Moreover, if there is a social
obligation to protect fair equality of opportunity, construed in this broad way, then health-care institutions
should be designed to meet that obligation. (Daniels 80)

He continues
11
:

First, the account is compatible with, though it does not imply, a multi-tiered health-care system Thus
the fair equality of opportunity account shares with [a] market approach the view that health-care services have
a variety of functions, only some of which may give rise to social obligations to provide them The basic tier on
[this] account would include health-care services that meet health-care needs, or at least important health-care needs
as judged by their impact on the normal opportunity range. Other tiers, if they are allowed, might involve uses of
health care services to meet less important health-care needs or to meet other needs and wants

Second, the fair equality of opportunity account provides a principled way of characterizing the health-
care services that fall in the socially-guaranteed tier. They are the services needed to maintain, restore, or

10
This paper would not be possible without the framework he devised!
11
I beg the reader for their patience and forgiveness in my tendency towards long quotes, but some things are important to get right.
!"#$%&'() 3
compensate for the loss of normal species-typical functioning

Third, however the upper tiers of the health-care system are to be financed, there should be no
obstacles financial, racial, geographical to access to the basic tier. The importance of such equality of
access to the basic tier follows from two main lines of argument. First, the basic tier is defined by reference to
the impact of health-care services on opportunity, and inequalities of opportunity are not to be tolerated for the
sorts of economic reasons that might make the preservation of these obstacles appealing. Second, the
importance of equality of access follows from basic facts about the sociology of epistemology of the
determination of health-care needs

Fourth, the fair equality of opportunity account remains silent on what to make of demands for strict
equality in process variables ([i.e.] amenities]), that is, independently of their effect on utilization per need
rates. Where amenities have no effect on health status, they have no effect of fair equality of opportunity. Thus
[this] account does not insist of equality of amenities that do not affect health status. It also remains silent on
equity of access requirements for the upper tiers, if there turn out to be any. (Daniels 80-82)

This fourth point is understated in its importance not all health-care services fulfill health-care needs,
so to speak. Amenity services which do not affect the individuals ability to have at least a fair equality of
opportunity arent technically designed to health-care needs; we might count them among his upper tier of
services.
All that remains to answer the question I initially posed does a just society have an obligation to
provide CES? is to consider questions of payment, and of the obligations of providers. With that, we will have
all we need to proceed to a cogent thesis and answer.

EXTENSION IV.

Daniels purports here to give an example system of health care distribution rather than a proposal in
his work, but the distinction is trivial. He proposes a health care scheme in which providers acquire obligations
in the distribution of health care through specific contractual arrangements when they enter into roles within
the social system of health-care institutions, in which a basic tier of health-care is defined by reference to a
set of basic health-care needs, to be financed through a national health insurance scheme that eliminates
financial barriers (Daniels 118). In this model, physicians are contracted by a central authority to provide this
basic tier of health-care for a given reason. But he recognizes, as do I, that a number of alternatives to such a
model are possible (Daniels 119). Certainly we oughtnt be married to this.

But Ive added this particular example/proposal because the first question a pragmatic person might ask
in response to my own inquiry is, Who shall pay for it?

It depends. There a number of plausible ways we might guarantee access to the first tier of health care
services. So the answer to my initial question, What obligation does a just society have to provide CES?, depends in
large part on societys derivation of other first tier health care obligations. But supposing that there is a national
health insurance scheme for this basic tier monopolistic or otherwise it would follow that this national health
scheme would pay for it. Let us proceed in a way contingent upon and self-aware of this fact.

But to what extent have I demonstrated that CES truly belongs to the set denoted first-tier health-care?
The truth is that not all of it does. I propose here two methods by which to ascertain when this is the case:

!"#$%&'() +4
First, by way of IQ test. This may seem strange given my earlier insistence that General Intelligence
does not serve us much in the way of nuance. I stand by that; it doesnt. But it is quite good at capturing the
most severe of cognitive impairment. A plausible requirement, it follows, for an individual who might be a
candidate for sponsored or subsidized CES, could be considered a score of 70 points or below on the IQ scale,
as is convention for establishing substantial mental impairment. Here, there should seem no reason to overturn
the existing regime.

Second, let us consider less general cases where individuals are not severely mentally impaired in this
most conventional sense. This is undoubtedly a more controversial case, at least speaking in terms of for whom
such care should be paid for or subsidized. How should we determine who among them are candidates?

Precedent has already been established for those suffering from degenerative brain illnesses, particularly
motor-degenerative ones, such as Parkinsons. Same goes for epilepsy. And as of late, experiments in DBS for
the chronically and severely depressed have begun. In my scheme of justification, all of these are legitimate
candidates for sponsorship or subsidization because all of these impairments clearly ones ability to embrace and
revise a lifeplan within the boundaries of species normal functioning. We might enumerate, however
unsystematically, some others: dyslexia, dysgraphia, bipolar disorder, schizophrenia and autism. But what of less
well-defined and more socially controversial diagnoses, such as attention deficit disorder or Aspergers, a less-
severe form of autism?

Ultimately this burden rests on individual health care providers. But could we construct any additional
benchmarks which follow from the understanding that CES is to be provided in a subsidized way to individuals
as to ensure fair opportunity, so as to ensure access to a normal range of opportunity? For controversial cases,
such as those mentioned above, a practical solution might be found in closer and longer monitoring. The
diagnosis of those (ADD in particular) is often made from only a few hours of examination, which is thought
easy to game to deceive the psychometrician. Requiring more extended observation periods, as would seem
intuitive in debating whether or not to offer brain surgery, could go far in resolving that.

What mental illnesses might we exclude from subsidy? I have a hard time singling out any in particular.
My only remark to this end is to state the obvious: whether or not we ought subsidize a particular procedure, in
any given but particular case, is dependent on our scientific perception of its probability of success. Indeed, we
recognize there is a great deal of variation in individual brain structure and plasticity. But for us to arbitrarily
designate a probability of success rate here at which our national insurance would begin to provide CES would
ignore the complexity of measuring such success. Again, this burden ultimately rests on individual health care
providers and on the pre-existing institutions tasked with collecting and interpreting medical statistics.

Earlier in this paper I noted that society rewards particular cognitive powers, not cognitive power in
the broadest sense. With respect to disturbances of perceptions and emotion, and with respect to sensory-input
disorders, I wish to return to this fact. For example, the United States, as a developed post-industrial economy,
values both literacy and mathematical ability. It does so both economically, in terms of jobs provided, and in its
expectations of informed citizens with Rawlss two moral powers who will read (hopefully) the papers the
Congressional Budget Office writes, and read the policy papers the White House issues, etc. So we see it is well
within the normal range of expected opportunity to engage in this kind of intellectual activity on some basic
level, free from severe impediment. Hence why we ought consider CES to be appropriate in cases of
(sufficiently severe, as defined by our medical institutions and as judged by individual practitioners) dyslexia and
dyscalculia (dyslexias symbolic cousin).

A similar logic applies to questions of emotional disturbance. The author Graham Greene once
!"#$%&'() ++
remarked that his bipolar disorder produced "a character profoundly antagonistic to ordinary domestic life".
That is, the ability to carry oneself in a consistent and civil fashion is an important aspect of social cooperation
this being a primary preoccupation in our concern for developing a social contract. Society, e.g. in business and
in our personal lives, is in part organized around the expectation of stable relationships. In the absence of this,
ones ability to engage in the normal range of expected opportunity would be impaired. So it follows that CES
for this class of mental disease ought be subsidized as well.

A question remains: what of people for whom CES would constitute a health-care service but not a
health-care need, as we have defined it? In this case I defer to the lexical ordering of Rawlss principles of
justice, and then (to a lesser degree) to pragmatic concerns. While it is clear the government or national
insurance program would not subsidize such a procedure, could they be permitted to fund it independently or
through a private insurance scheme? Rawls is concerned with what liberties provide the political and social
conditions essential for the adequate development and full exercise of the two moral powers of free and equal
persons (45), enumerated earlier. Though some might object to brain implants as part of their comprehensive
worldview, this is quite explicitly not the concern of Rawlss core structure. If CES contributes to what
individuals consider to be their adequate development and full exercise of those two moral powers, then the
Principle of Liberty predominates over the Principle Fair Equality concerns raised by its purchase by non-
needy individuals. And speaking on a (perhaps too) pragmatic level permitting for its purchase outside of
subsidy or sponsorship by national insurance would discourage the well-to-do from trying to deceive medical
practitioners in order to get it, at the expense of those who truly require it as a health care need.

THE PROBLEM of CONSENT.

I have tried to address the most relevant counterarguments or problems in the preceding sections. But an
important one remains: how can the most severely cognitively or emotionally impaired give consent? While it
should be uncontroversial that those with sensory-input disorders but otherwise typical levels of functioning
should have their liberty respected over the need for fair equality of opportunity, in terms of their ability to
reject CES, what about others? Can we even take their consent at face value?

In such cases, I think a good if imperfect line of authority can be devised one with an important caveat.
It will save us some time if I state that up front: age.

That is, for cases where the medical need for CES arises from a congenital or very early-life impairment,
it may not be ethically or medically wise to grant it much later in life. This question is far from resolved by
bioethicists, but it seems as in the case of Sidney Bradford, who went blind at ten months and recovered sight
after a cornea transplant at 52 the substantial disruption of ones senses can cause psychological turmoil
(Gregory, 28). So substantial study into how we psychologically assimilate substantial changes in brain behavior
and perception is required to better understand the ethical wisdom of CES at different life stages.

To continue: where an individuals ability to consent is in question, let us consider two cases: one in
which the individual gives (what we might suspect to be superficial) consent, and one in which the individual
refuses consent or gives mixed messages. For the latter case, the Principle of Liberty should unqualifiedly
predominate. No CES can be performed for such a person. For the former, medical professionals should look to
the legal guardians, if they exist, for affirmation of the individuals choice. In addition and perhaps more
prudently, institutions across the country should populate their medical-ethical review boards with experts and a
committee on CES to ensure that consent was not obtained by threat of coercion and that the decision is indeed
consistent, to the best of the boards knowledge, with the interests of the individual. It is in the latter case we
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might expect the question of age, and the soundness of our psychological support services for such patients, to
come into play.

Another problem, speaking of age, puzzles our model of consent: kids. Many disorders, usually
neurodegenerative or schizo-affective, do not make themselves apparent or develop until later in life. So let us
exclude conversation of those for this section.

But many more remain. I confess to a greater degree of uncertainty here than elsewhere in my concern
for we might effectively obtain consent. Just as above, to do it full justice requires greater explication than I am
here prepared to give, given constraints of essay size, time and my knowledge. But it is an important question,
so let it suffice to say for now: where parents refuse consent for younger children, their rights in accordance with
the Liberty Principle are to be respected by the state no surgery can be performed, unless the particular CES is
deemed imminently and physiologically life-threatening. Where parents refuse to consent for older children, say
fifteen to eighteen, who purport to want the surgery, a similar procedure to that for the severely impaired is to
be taken, in the consultation of a special medical-ethics review board. Failing this, of course, these individuals
can pursue CES as adults.

CONCLUSION.

A just health care system as part of a Rawlsian just society builds and governs its health care institutions
in accordance with the Fair Opportunity Principle. Consistent with this, it would provide cognition-enhancing
surgery to those in need of it, as we define need in terms of ones ability to enjoy and revise ones life plan in a
way consistent with a normal expected range of opportunity, consistent with but not limited to species typical
functioning. It does not prohibit the acquisition of CES by others, who may obtain it by private insurance or
out of pocket payment. A more specific and very plausible instantiation would read: Where some form of
national insurance scheme for health care needs, as defined above, exists, it provides for CES in these cases.
These cases might include those with broadly expressed cognitive impairments, particular sensory-input
disorders, severe emotional disturbances, and particular cognitive-function problems. It will be necessary for
medical institutions and professionals to adhere strictly and conservatively to ethical conduct in matters of
consent; the development of new institutions and bodies and fields of research will be necessary towards this
end.














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Works Cited

* * *
Daniels, Norm. Just Health Care. 6
th
ed. Cambridge, MA: Cambridge University Press, 1985. Print.
Gregory, Richard, and Jean Wallace. "Recovery from Early Blindness." Experimental Psychology Society.
Monograph No. 2 1963 . N.p., Mar. 2001. Web. 8 Dec. 2012.
Rawls, John. Justice as Fairness: A Restatement. 3rd ed. Cambridge, MA: Belknap Press, 2003. Print.