Monday, January 3, 2011

The Eighth Amendment Dichotomy

Last year (oops...technically it was the year before last now), I published this article on the prisoner's right to healthcare in America and lately I have been getting a lot of questions about it.  Now in an attempt to shamelessly cross promote my research and my blogging I give you the article in full which was published as a book's the reference:

2009 ~ The Eighth Amendment Dichotomy:  The Clinical and Legal Debate Over Prisoner's Constitutional Right to Healthcare and Organ Transplantation. In Francisco Manuel García Costa & María Magnolia Pardo López (Eds.), Retos Del Derecho En El Siglo XXI (pp. 131-155). Valencia, Spain: Ediciones de la Universidad De Murcia.

And here's the article...


Prisoners in the United States are the only citizens with the constitutional right to healthcare.  They are also the only members of society not allowed to donate organs.  This paper argues that under social contract theory a right guaranteed to one citizen must be granted to all citizens.  If prisoners have a constitutional right to healthcare, then all must be guaranteed that same right.  Equality dictates everyone must have the same duties and freedoms under that system. Fear of prisoners’ organs becoming a commodity and a possible motivation for sentencing people to execution has been posited by lawyers and ethicists as justification for keeping the prohibition of death row donations as a rule of law.  The abolition of the death penalty would effectively render these concerns moot.  This paper posits two actions that could end the ethical controversy over access to healthcare and prisoner organ donations. They are: a constitutional right to healthcare for all citizens with equal rights to decision-making capacity regarding organs under the law and the abolition of the death penalty to negate concerns over commodification of prisoner’s organs.

Keywords:  Constitutional Rights - Prisoners Rights – Healthcare - Organ Transplantation - Social Contract Theory - Death Penalty


The decisions of the United States Supreme Court in the cases of Estelle v. Gamble (1976) and Farmer v. Brennan (1994) created an ethical dichotomy.    Prisoners’ entitlement to a right denied the rest of the population while being denied another is absurd.  Federal law allows inmates in the general prison population to donate their organs to immediate family members only.  Prisoners condemned to death are not allowed to donate their organs at all.[1]  This interpretation of constitutional rights has woefully strayed from the social contract.
This paper will argue that it is neither just nor ethical and is a violation of social contract theory, for some to have a constitutional right that is not guaranteed to all citizens.  A constitutional right is a legal entitlement held by all citizens.  This paper will argue that prisoners should be allowed to donate their organs to whomever they choose.  Further, it will make the case for abolishing the death penalty under in order to negate all controversies surrounding the harvesting of organs from death row inmates.  Before these arguments can be convincingly made, an overview of healthcare in America, the United States prison system, the United Network for Organ Sharing (UNOS) and the death penalty must be examined.

For many, the idea of criminals receiving comprehensive state-funded healthcare is a miscarriage of justice.[2]  Nearly 47 million Americans have no health coverage at all[3] and an additional 72 million, nearly 24% of the population, are identified as ‘underinsured’[4], or ‘at risk for out-of-pocket expenditures of more than 10 percent of their income if they experience a catastrophic illness.’[5]  A 2006 Kaiser Family Foundation study[6] found that 55% of Americans are dissatisfied with the quality of healthcare in this country and a 2002 Harris Poll survey[7] found that 56% of the public, 46% of physicians and 51% of healthcare administrators said that the American healthcare system requires ‘radical change’.  Millions of Americans cannot access many of the most basic of healthcare services.  If faced with catastrophic illness such as organ failure the financial burden denies them the care they need.

Presently, inmates are the only members of American society who have a constitutional right to full healthcare.  As stated above, this special legal status has its genesis in the Supreme Court’s interpretation of the eighth amendment of the Constitution following the 1976 case of Estelle v. Gamble .[8]  A prisoner claimed he was given inadequate treatment for a back injury sustained while engaged in prison work and sued the prison system.  The Supreme Court ruled that prison officials are legally bound to ‘provide humane conditions of confinement’, which includes taking ‘reasonable measures to guarantee the safety of inmates’.
Eighteen years later the case of Farmer v. Brennan (1994)[9] came before the Supreme Court.  A preoperative transsexual who projected feminine characteristics was housed in the general male prison population and subsequently suffered physical assault and rape.  The prisoner filed suit against the prison for neglecting to address his personal physical danger and suffering.  The Supreme Court created a two-part test to establish a violation of the eighth amendment: (1) the injury must be ‘objectively and sufficiently serious’, and (2) the prison official must have a ‘sufficient culpable state of mind’, defined as ‘deliberate indifference to inmate health or safety’.  The wording of this ruling, combined with the ruling in Estelle v. Gamble (1976) created the present situation. 
In civilized society there should be an expectation of adequate healthcare for incarcerated individuals who, as wards of the state, must depend on the system.  Yet, with the high costs and limited access to healthcare many Americans are now faced with, this seems an affront.
Almost a decade after Farmer v. Brennan (1994) several prisoners filed the largest class action lawsuit in the American prison system’s history.  In  Plata v. Davis (2003),[10] prisoners alleged that California prison officials denied them access to healthcare and thus inflicted cruel and unusual punishment by being deliberately indifferent to their serious medical needs.  In order to protect the rights of prisoners the judge ruled in October of 2005 that California's prison medical care system be placed under the control of a court-appointed receiver.
This decision, combined with the above mentioned court cases as well as various other petitions filed by inmates and human rights groups, prisoners in the United States are presently guaranteed full access to essentially all facets of healthcare.  However, as an interesting aside, a result of Roe v. Wade (1973)[11] and Rust v. Sullivan (1991)[12] a female prisoner can choose to terminate her pregnancy but the abortion cannot be carried out through the use of federal funds.  Thus a female prisoner must pay for the cost of the abortion herself but the prison will pay for her transportation to the location where the abortion will take place[13].
Healthcare costs within the prison system have risen substantially, constituting almost 10% of the $49 billion spent annually to maintain the over 2.3 million prisoners[14] held in Federal or State prisons and local jails.[15] 

Currently in the U.S. there are 13 states that allocate more than $1 billion out of the state’s general fund to finance the corrections system.  California arguably demonstrates the most extreme case of healthcare spending for inmates.  In 2007 California allocated $8.8 billion, approximately 8.6% of the state’s budget towards caring for its 171,444 prison inmates.[16]  The 33 state prisons for adults, eight youth correctional facilities and four out-of-state correctional facilities that the state has contracted with have received approximately $1.8 billion for healthcare.  This is almost 20% of the total budget for corrections for this fiscal year.[17] 
In January of 2002, a 31-year-old California prison inmate serving 14 years for robbery became the first person to receive a heart transplant while in custody. The transplant procedure and follow-up exceeded one million dollars.  There were over 500 people waiting for heart transplants in California at the time.[18]  This raised serious ethical questions for many, including the authorities at the California State Department of Corrections and Rehabilitation.  However, citing Estelle v. Gamble (1976) and Farmer v. Brennan (1994) a spokesperson laid the ultimate responsibility for the decision on the precedent set by Jackson v. McIntosh/Victorino (1996)[19], saying, ‘Our hands are pretty much tied. It's not a question for this department to decide.’[20]
Organs, particularly kidneys, hearts and livers, are immeasurably precious and scarce commodities.  Qualifying for and ultimately receiving a transplant is a long and difficult process.  Not only are inmates guaranteed these procedures, but they can qualify for organs ahead of law-abiding citizens.

All legal procurement and transplanting of organs in the United States is carried out under the oversight of the United Network for Organ Sharing (UNOS).  Established in 1984 by the U.S. Congress, UNOS administers the United States’ only Organ Procurement and Transplantation Network (OPTN).  In order for a person to be placed on the national transplant list, they must first see a physician, which alone is often a difficult task for at least one third of the population.[21]  The physician must then refer the patient to one of the 254 transplant centers.[22]  Before making the referral the physician must weigh factors that could determine the patient’s ability to comply with medical care after a transplant.   Issues addressed include factors such as whether the patient has friends and family to support them or whether they are substance abusers or suffer from mental illness.  The physician must assess the patient’s ability to pay for the procedure and years of anti-rejection drugs which amounts to hundreds of thousands of dollars.  After all of these factors have been weighed and the physician feels the patient is a good candidate the patient is referred to a transplant center. 
The transplant center also evaluates the patient’s ability to pay and other psychosocial factors.  Some health insurance programs often impose their own criteria such as refusing to pay for a person with liver disease due to alcohol abuse.  If the patient is not accepted by one of the transplant centers he or she may move on and attempt the process again at another center that may have different protocols.  Some patients in search of an organ transplant find it necessary to shop transplant centers to ensure the best possible placement on the national waiting list.  
The organ transplant waiting list rules vary by organ but all patients must be in end-stage organ failure. The rules are the same for prisoners in end-stage organ failure.  A prisoner may ask the prison physician for a referral to seek candidacy for the transplant list. If the physician deems the patient medically qualified and assuming the prisoner invokes the ruling in the case of Jackson v. McIntosh/Victorino (1996) the prisoner is added to the list just like any other member of society.  The only difference is that the prisoner has no financial obligation.

Given that healthcare should be afforded to inmates, the real question become one of limits.  How much healthcare should prisoners receive?  More importantly, should their priority differ from the general populace?  Estelle v. Gamble, (1976) established that prisoners have the right to ‘adequate’ healthcare.  However, the definition of ‘adequate’ is a matter of great contention.  Should they receive only basic care such as first aid and vaccinations?  Or does ‘adequate’ healthcare encompass all available treatments known to modern medicine?  Should controversial procedures such as gastric bypass or hormone therapy[23] be included in the definition of ‘adequate’?  If a prisoner can receive an organ, should he or she not be able to give an organ freely?  Currently, the Bureau of Prisons says no.
Under present United States law all states and federal penal authorities assume full responsibility of prisoners the moment they enter legal custody.  As a result of this custodianship the prisoner holds similar legal status to a foster child but with the Bureau of Prisons acting as the foster parents and making proxy decisions for the prisoner.  Just as a foster parent may not allow a minor foster child to donate an organ, the prisoner is not allowed to donate organs.  However, this does not mean organ donations from prisoners do not occur.  A program statement by the U.S. Department of Justice Federal Bureau of Prisons permits organ donation by an inmate who has reached the age of majority provided that the recipient is a member of the inmate’s immediate family and the family of the prisoner must bear the financial burden of the procedure.[24]
The laws regarding donation of organs from prisoners on death row differs from the laws pertaining to prisoners in the general prison population.  All states prohibit organ procurement from death row prisoners and do not allow these prisoners to donate organs before or after death.[25]
No legislation has been passed allowing condemned prisoners to donate their organs. This is not from lack of trying.  In 1998 Congressman Chuck Graham introduced his “life for life” bill to the Missouri legislature.[26]  The bill proposed commuting the death sentences of prisoners to life without parole if they agreed to donate a kidney or bone marrow.  Although popular opinion applauded the Old Testament ideology behind the bill, many members of the legislature argued that the idea of exchanging body parts for time off a prison sentence was coercive and immoral. 
The Arizona assembly considered a bill that would give prisoners a choice of their method of execution: lethal injection or having their organs harvested for transplant.  The bill was voted down in light of the American College of Physicians statement that physicians should not be involved in the execution process.[27] 
Georgia State Representative Doug Teper proposed writing legislation that would give prisoners a choice between death by electrocution or guillotine.  Those opting for the guillotine would be given the option to donate their organs.[28]  The legislation was never brought before the state senate.

On a primal level, depriving prisoners of healthcare may satisfy a need for some form of Draconian justice.  But, in a civilized society, in a nation built upon equality, justice and respect for human rights, depriving prisoners of healthcare would contradict those principles.  In his 1862 novel, The House of the Dead, Fyodor Dostoevsky wrote, ‘The degree of civilization in a society can be judged by entering its prisons.’[29]  His descriptions of prisoners dying of tuberculosis, frostbite and exhaustion as a result of neglect in a remote Siberian labor camp conjure up images surely no American should want recreated in American prisons.  However, no American should be comfortable with citizens living without access to healthcare either.  Further, no American should be comfortable with prisoners having a right they do not share. 
The notion of removing full access to healthcare from the prisoner’s list of rights is not a viable option under current federal and state law.  However, allowing prisoners to hold an unalienable right not shared by all American citizens is unethical and unjust.  If prisoners have the right to full access to healthcare then all citizens should have the same right.  Imagine if prisoners had the right to freedom of speech or religion while all other American citizens did not.    
The fourteenth amendment to the United States Constitution contains the Equal Protection Clause which provides that ‘no state shall…deny to any person within its jurisdiction the equal protection of the laws.’  The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that ‘all men are created equal’ by empowering the judiciary to enforce that principle against the states.  Yet, the fact that prisoners enjoy the right to healthcare while all other American citizens do not violates the amendment. 
The only viable resolution of this inequity in rights is to make healthcare a right of citizenship so that all American citizens share the same constitutional rights.  In 1983 the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research issued the statement “equitable access to health care requires that all citizens be able to secure an adequate level of care without excessive burdens.”[30]  What the government has not been able to do in the quarter of a century since that statement was issued is agree upon a definition of ‘adequate’.  Perhaps the first step of many in the process of establishing a system of nationalized healthcare is to agree to the definition of adequate care.  While it is beyond the scope of this paper to suggest how the United States government should define the scope of care or how to implement universal access to healthcare, it is not an impossible task.  Many other countries have successfully implemented nationalized healthcare plans and socialized medicine.  Presently, America is the only wealthy, industrialized nation that does not ensure that all citizens have coverage.[31]  The feasibility of implementing universal healthcare is respectfully acknowledged as a daunting task but the logistics of it is not the matter in question in this paper.  Countless other ethicists, economists, lawyers, physicians and critical thinkers have put forth suggestions and plans for radically changing the healthcare infrastructure as it exists.[32]  The essence of this paper is that the existence of a right not shared by all citizens is a violation of the Equal Protection Clause of the United States Constitution and the social contract theory upon which the constitution is based. 

The term social contract has historically been used to describe an agreement between the people and their government or the people within a community and the implied agreement by which social order is maintained.  Social contract theory provides the rationale behind the premise that legitimate state authority must be derived from the consent of the governed.  Despite controversies surrounding the interpretation of social contract theory, social contract arguments have been important in the development of modern democratic states.  American and French revolutionaries explicitly acknowledged their debts to social contract theorists such as Locke and Rousseau.[33]  A careful examination of the writings of Constitutional framers Thomas Jefferson and John Adams on political theory shows a highly detailed following of Locke’s description of democracy.[34]
Social contract theory in its various permutations has existed since the writings of Epicurus in the 4th century BCE.  Epicurus endorsed ‘social contract’ ideas in the last fourth of his Principal Doctrines,[35] arguing that justice is agreeing not to harm each other, laws being made for mutual advantage, and that laws which are no longer advantageous are no longer just.[36] 
Over twelve hundred years after Epicurus first laid down the foundations of social contract theory Thomas Hobbes, John Locke and Jean-Jacques Rousseau fleshed out the practical workings of social contract in a series of works on political philosophy.  Thomas Hobbes, in his classic treatise on the political system and human nature, Leviathan[37], discussed how human beings can live together in peace and avoid the danger and fear of civil conflict.  He proposed a severe ultimatum: We give our obedience to an unaccountable sovereign (a person or group empowered to decide every social and political issue) or what awaits us is a ‘state of nature’ that closely resembles civil war – a situation of universal insecurity, where all have reason to fear violent death and where rewarding human cooperation is all but impossible.  Hobbes description of human nature was utterly self-interested and bleak at best. 
For Hobbes, the necessity of an absolute authority, in the form of a sovereign, followed from the utter brutality of the “state of nature”. The State of Nature was completely intolerable, and so rational men would be willing to submit themselves even to absolute authority in order to escape it.  But John Locke described the ‘state of nature’ as a very different type of place.  While Locke used Hobbes’ methodological device of the ‘state of nature’, as do virtually all social contract theorists, he interpreted it in quite a different way. 
Locke’s arguments for the social contract, outlined in his 1690 treatise, An Essay Concerning the True Original Extent and End of Civil Government outlined the right of citizens to revolt against their king.  Locke’s political theories were enormously influential on the democratic revolutions that followed, especially on Thomas Jefferson, and the founders of the United States.[38]  According to Locke, the “state of nature” is not a condition of individuals, as it was for Hobbes.  Rather, it is a ‘conjugal society’ filled with mothers and fathers and children who have a vested interest in the survival of each other.  Political society comes into being when individual men, representing their families, come together in the “state of nature” and agree to each give up their power to punish those who injure them and relinquish power to the government.  They then become subject to the will of the majority.  By making a compact to leave the ‘state of nature’ and form society, they make ‘one body politic under one government’[39] and submit themselves to the will of that body.  One joins such a body, either from its beginnings, or after it has already been established by others, only by explicit consent, such as registering to vote or taking the vow of citizenship or simply choosing not to remove oneself from the new state.  Laws, judges to adjudicate laws, and the executive power necessary to enforce laws are the result.  Each man therefore gives over the power to protect himself and punish transgressors of the law to the government created through the compact. 
Jean-Jacques Rousseau further developed the idea of social contract theory in his 1762 treatise, Du Contrat Social.  Rousseau took the concept of popular sovereignty, but defined it as indivisible and inalienable, thus advocating a form of direct democracy over representative democracy.  Rousseau wrote:
[The social contract] can be reduced to the following terms.  Each of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole.[40]
While Hobbes, Locke and Rousseau played a crucial role in developing the political philosophy that influenced the writing of the United States Constitution and the formulation of subsequent American law, John Rawls’ A Theory of Justice in 1971 developed the contractarian approach further to help define justice and democracy.  His argument of ‘justice as fairness’ offers a method for making the most fundamental decisions about distributive justice.[41]
Rawls offered a practical approach to the social contract by asking what principles of justice would members of a society agree to in order to live cooperatively.  The principle of ‘justice as fairness’ is put forward as an explanation of what people would choose.  We are, as Rawls puts it, both rational and reasonable, ‘we have ends we want to achieve, but we are happy to achieve them together if we can, in accord with mutually acceptable regulative principles.’[42]
The device he chose to use to make his argument for social contract theory was the ‘veil of ignorance’.  Rawls asked us to imagine a group of people who are tasked with choosing principles of justice for their society.  In order to choose principles which are just, the mechanism by which the principles are chosen must also be fair and no single person can dominate the decision process.  The principles of justice will be the result of a fair choice, ‘justice as fairness.’[43]  Perhaps this passage from Rawls best sums up his theory of justice under social contract, “Each person is to have equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.”[44]
The time has come to reinterpret not only the laws that give prisoners an extra constitutional right but also the laws that prevent them from donating their organs freely.  It has been established that the Constitution was profoundly influenced by the political philosophy of the Contractarians.  Furthermore, the social contract theory of both Epicurus and Rawls argues for a political system that is mutually beneficial and just and which proposes justice as fairness.  It is a breach of social contract if all participants in the healthcare system do not have the same obligations and freedoms.  Borrowing once more from the principles of Epicurus there are numerous court cases where the prisoners’ inability to decide the fate of their organ has been neither mutually beneficial nor just to the parties involved. 

Campbell v. Wainwright (1969)[45] is the earliest example of a prisoner being denied the right to donate an organ.  Calvin C. Campbell, a prisoner on death row in Florida, sued the Florida prisons system for the right to undergo medical tests to determine whether he qualified as a potential kidney donor to a Florida youth.  He asked to be taken to a Denver, Colorado hospital for the tests and, if he qualified, for the surgical removal of his kidney.  He also asked for postoperative medical care upon his return to the Florida prison system and for removal back to Denver if rehospitalization should be necessary.  The surgical operation was to have been performed in January 1969.  Campbell argued that the prison system “had no vested constitutional right or authority to deprive (him) of personal liberty to donate a kidney,” and that to deprive him of the right to donate his kidney deprived the youth who needed it of his life without due process of law.  The district court dismissed the complaint citing the decision in Adams v. Ellis (1952)[46], which held that healthcare, was a matter of prison administration and not a matter for the court to decide.  Calvin Campbell was executed.  None of his organs were donated.
On 28 June, 1995, the day of his scheduled execution, Larry Lonchar a Georgia death row inmate, filed an eleventh hour petition for habeas corpus.  Lonchar’s legal filing contained 22 claims, including one that challenged the method of execution.  He told the state court judge that he wished to pursue each of the 22 claims, but was litigating them only to delay his execution, with the hope that the State would change the execution method to lethal injection so he could donate his organs.  Lonchar expressed his desire to donate his kidney to the detective who had led the investigation. The state courts stayed the execution briefly, and then, two days later, denied the petition.  The case went before the Supreme Court in Lonchar v. Thomas, (1996).[47]  Lonchar’s petitions were denied.  He was executed in the electric chair on November 14, 1996.[48] 
In 2005, Stephen Sage, a 53-year-old inmate at Orleans Parish Prison in Louisiana convicted of aggravated battery read an advertisement in the newspaper placed by Charlene Wiltz.  Wiltz was looking for a kidney donor.  Sage responded to Wiltz and offered to donate one of his kidneys.  Unfortunately for Wiltz the prison would not allow Stage to undergo the tests necessary to determine if he was a match.[49]  Even though Medicaid, Wiltz's medical insurer, would cover all medical fees, including a blood test to determine whether she could receive Stage's kidney, Stage could not be considered as a donor because the Federal Bureau of Prisons only allows non-death row prisoners to donate organs to immediate family members.[50] 


The cases of prisoners denied the right to donate organs to the people of their choosing illustrate the inequity in rights between citizens in prison and free citizens.  The United States Constitution guarantees all citizens the right to enjoy equally the rights and privileges of citizenship established by law.  If the law gives prisoners the right to healthcare then all citizens should have the right to healthcare.  The Supreme Court passed down the ruling that prisoners have a ‘right to healthcare, not a ‘privilege.  The Supreme Court did not say that prisoners receive healthcare as a gift of the state or as an act of benevolent charity from the government, the Supreme Court gave prisoners a constitutional right.  Therefore the absence of a right to healthcare for all non-imprisoned citizens is neither just nor ethical and undermines the principles of the Constitution. 
While guaranteeing all citizens a constitutional right to healthcare would be the first step in rectifying inequities it would not address the miscarriage of justice that results when prisoners are prohibited from donating their organs.  If prisoners and free citizens alike share the same right to healthcare under the law, then the fact that the prisoners happen to live within controlled policed communities should have no effect on their personal rights to donate organs.  If a prisoner has the right to request a sex change operation or a gastric bypass which will forever alter the anatomical and physiological structure of his or her body, and they can request and sign a ‘Do-Not-Resuscitate’ (DNR) order or refuse medical care altogether, then there is no logical reason that a prisoner should not have the right to donate their organs. 
Assuming that healthcare were guaranteed as a right to all citizens, and prisoners and free citizens alike could donate organs to whomever, whenever and wherever they choose, there would still be the matter of prisoners sentenced to death being denied the right to donate their organs. Three frequently used arguments against allowing prisoners awaiting execution to donate organs are: (1) The process of execution may be modified with donation in mind, (2) executions might be arranged specifically to meet the needs of people in organ failure, and (3) if it is legal for prisoners condemned to death to donate organs, they may be coerced into donating.[51]  These are legitimate concerns.  Abolition of the death penalty would render these concerns moot.
Prisoners have a constitutional right to healthcare because a lack thereof would constitute cruel and unusual punishment. Certainly death by ceremony as opposed to neglect would constitute cruel and unusual punishment.  If state executions did not take place then there would be no cause to fear the possibility of organs from executed prisoners being sold for profit.  There would be one additional benefit to abolishing the death penalty: there would be no more risk of the innocent being wrongly convicted and sentenced to death.
The United States is the last remaining industrialized nation to practice capital punishment.  Between 1976 and 2006 123 people awaiting execution were exonerated.[52]  Not only would abolishing the death penalty satisfy the need to prevent condemned prisoners from being coerced into donating organs and the commodification of such organs but also it would prevent people from being victims of the greatest miscarriage of justice of all.

Thomas Hobbes’ essays on social contract theory influenced the wording and the intent of the United States Constitution.  Hobbes’s description of a ‘state of nature’ portrayed a world without law, devoid of civilization and justice.  To escape this brutish world required a social contract so that people would agree to rules that would create an agent of authority.  The agent of authority, known as the state, would govern relations between individuals and enforce the rules.  The state, would propose a code of ethics, a whole set of rules, governing how people are to treat one another.  Rational people would agree to these rules because it would result in mutual benefit.  However this contract will only work if all people are subject to the same rules, so that everyone can participate and follow them equally.  The social contract is not being honored. 
The Constitution does not currently give the same rights to all citizens and this situation must be remedied.  Although the conditions for true democracy require dedication to the contract and often result in dissatisfaction for some members of society, they are also the only means by which we can, according to Jean Jacques Rousseau, save ourselves, and regain the freedom to which we are naturally entitled. 
In the case of the matters discussed in this paper, healthcare, as a constitutional right with equal access and obligations to receive adequate coverage, is the only foreseeable solution to remedying the breach in the contract.  The definition of “adequate” must also have a definition recognized by the contract.  Assuming that balance was restored and all citizens had equal rights outlined in the Constitution, there is still need for a reinterpretation of the eighth amendment, redefining capital punishment as ‘cruel and unusual punishment’.  This redefining of the wording of eighth amendment and the subsequent abolition of the death penalty would render the concerns of those who believe organs from the executed will become a currency worth more than the life of the person who gave the organs, null and void. 
As with all philosophical and political models, social contract theory has to be interpreted to conform to the given situations.  The Constitution itself is constantly redefined to adapt to situations that the framers could not possibly have foreseen two centuries ago.  The same is true with social contract theory.  Perhaps there is fear in the medical profession of a nationalized healthcare system because it is seen as a move toward socialized medicine, which, by its very nature would shift away from specialties and focus more closely on primary care.  Given the current situation, a decreased standard of care is preferable to no care whatsoever.  The federal government could choose to act as large corporations do for their employees and provide a nationalized health insurance.  With the amount of tax dollars going to an astounding array of costly, ineffective programs and poorly managed foreign policy, social contract theory would demand these resources be reallocated in a fashion that would truly serve the whole.

[1] United States Department of Justice. 2005. Federal Bureau of Prisons Program Statement: Patient Care.  Washington, DC: Federal Bureau of Prisons: 46-47.

[2] In an on-line poll conducted in the February 2008 issue of the American Medical Association’s on-line journal Virtual Mentor available at, 56% of the people polled believed prisoners should receive the same scope and quality of health care that is available to non-prisoners.  A poll conducted on,, asked, “Should prisoners receive organ transplants?”, A sampling showed 23% of those who voted chose, “No, none of them-not even if they are in for short sentences”, 16% said “Yes, but not those on death row and 19% said “Yes, but not those on death row or serving a life sentence.”  Both polls are ongoing and these numbers represent the polls as of April 5, 2008.

[3] National Coalition On Health Care (NCHC). 2008.  Facts on Health Insurance Coverage.  Washington, DC: NCHC.  Available at: [Accessed 28 Mar 2008].

[4] This data is drawn from a survey conducted by the Consumer Reports National Research Center in May 2007, which sampled 2,905 Americans between ages 18 and 64.  The findings were first published in an on-line article:  Consumer Affairs. 2007.  Study Finds 24% of Americans Underinsured. Los Angeles, CA: Consumer Affairs.  Available at: [Accessed 25 Feb 2009].

[5] P.F. Short & J.S. Banthin.  New Estimates of the Underinsured Younger than 65 Years. JAMA 1995; 274: 1302-1306.

[6] Kaiser Family Foundation. 2006. 2006 Update on Consumer's Views of Patient Safety and Quality Information. Washington, DC, The Kaiser Family Foundation / Agency for Healthcare Research and Quality.

[7]Harris Interactive Health Care Research.  Attitudes Toward the United States Health Care System: Long Term Trends. Health Care News 2002; 2:16.  Available at:  [Accessed 25 Feb 2009].

[8] Estelle v. Gamble, 429 U.S. 97 (1976)
[9] Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994)

[10] Plata v. Davis, 329 F.3d 1101 (9th Cir. 2003)
[11] Roe v. Wade, 410 U.S. 113 (1973)

[12] Rust v. Sullivan, 500 U.S. 173 (1991)

[13] Federal Bureau of Prisons. 2008.  Legal Resource Guide to the Federal Bureau of Prisons. Washington, DC: United States Department of Justice: 22.

[14] A 2006 study conducted the Centre for International Prison Studies at King’s College in London found that the United States has the largest prison population in the world.  Additionally the Pew Center found the United States has the highest incarceration ratio in the world with 1 in 100 Americans behind bars.  For more information see Roy Walmsley. 2005. World Prison Population List (Sixth Edition). London: King's College: International Centre for Prison Studies: 1, and Jenifer Warren. 2008. One in 100: Behind Bars in America 2008. Washington, DC: The Pew Center on the States: 5.

[15] Ibid: 11
[16] Ibid: 14, 28.  Also see W.J. Sabol, et al. 2007. Prison and Jail Inmates at Midyear
2006. Washington, DC: United States Department of Justice.

[17] California Department Of Corrections And Rehabilitation (CDCR).  2008. California Department of Corrections and Rehabilitation: Budget Overview. Sacramento, CA: CDCR.  Available at: [Accessed 25 Mar 2008].

[18] Josefson, D.  US Prisoner at Centre of Heart Transplant Row. British Medical Journal 2002; 324: 808.

[19] Jackson v. McIntosh/Victorino, No. 94-16741 (9th Cir. 1996).  In this case Raymond D. Jackson, a state prisoner on dialysis, brought suit contending that Dr. Duncan McIntosh and Dr. David Victorino had violated his rights under the Eighth Amendment by refusing him a kidney transplant. The doctors moved for summary judgment on the ground of qualified immunity.  The doctors contended that they were entitled to qualified immunity from prosecution because there was no clearly established law requiring them to provide a kidney transplant to a prisoner on dialysis.

[20] CBS News. 2002. Prisoner Gets $1M Heart Transplant: Should Convicts Receive Hard-To-Get Human Organs? Sacramento: CA.  Available at: [Accessed 29 Mar 2008].

[21] National Coalition On Health Care, op. cit. note 3.

[22] United Network for Organ Sharing (UNOS).  2008.  United Network for Organ Sharing: Transplant Centers. Richmond, VA: UNOS.  Available at: [Accessed 29 Mar 2008].

[23] United States Department of Justice, op. cit. note 1, 43, “Inmates who have undergone treatment for gender identity disorder will be maintained only at the level of change which existed when they were incarcerated in the Bureau. Such inmates will receive thorough medical and mental health evaluations, including the review of all available outside records”.

[24] Ibid: 46
[25] Ibid

[26] Strait, J. 1998.  House Panel Nixes Plan for Inmate Organ Transplants. St. Louis Post-Dispatch. 10 April: C3.

[27] American College of Pyhsicians (ACP), Human Rights Watch (HRW) & The National Coalition to Abolish the Death Penalty. 1994.  Breach of Trust: Physician Participation in Executions in the United States.  Philadelphia: PA: ACP: 11.

[28] Indiana University Center for Bioethics. 2008.  Death Row Organ Donations: The Johnson Case. Indianapolis: IN.  Available at: [Accessed 25 Feb 2009].
[29] F. Dostoevsky. 1915. The House of the Dead. New York, NY: The Macmillian Company.

[30] Institute of Medicine.  1988. Homelessness, Health, and Human Needs.  Washington, DC: The National Academies Press: 77.

[31] Institute Of Medicine.  2004.  Insuring America's Health: Principles and Recommendations.  Washington, DC.  Available at [Accessed 28 Mar 2008].
[32] James F. Childress addresses the practical realities of agreeing upon and implementing a nationalized healthcare system in his 1997 book Practical Reasoning in Bioethics, Indianapolis, IN:  Indiana University Press.  He discusses the citerion of adequacy in great detail in Chapter 13, “Rights to Healthcare in a Democratic Society.”

[33] J. Hampton. 1999. The Cambridge Dictionary of Philosophy: Second Edition. In social contract. R. Audi, ed. Cambridge: Cambridge University Press: 855-856.

[34] J.F. Dienstag. Between History and Nature: Social Contract Theory in Locke and the Founders. The Journal of Politics 1996; 58: 985-1009.
[35] Epicurus. 2007. The Essential Epicurus: Letters, Principal Doctrines, Vatican Sayings, and Fragments. Amherst, NY: Prometheus Books.

[36] R.G. Mugan. Lycophron and Greek Theories of Social Contract. Journal of the History of Ideas 1979; 40: 121-128.

[37] T. Hobbes. 1904.  Leviathan: Or the Matter, Forme & Power of a Commonwealth, Ecclesiasticall and Civill. London: Cambridge University Press.

[38] Dienstag, op. cit. note 34, p.1006.

[39] J. Locke. 1824. Two Treatises of Government and a Letter Concerning Toleration. London: C. and J. Rivington Publishing House: 187.
[40] J.-J. Rousseau. 2003. On the Social Contract. New York, NY: Courier Dover Publications: 9.

[41] K. Lebacqz. 1986. Six Theories of Justice. Minneapolis, MN: Augsburg Publishing House: 33.
[42] J. Rawls. 1999. A Theory of Justice, Revised Edition. Oxford: Oxford University Press: 476.

[43] Ibid: 9, 11.

[44] Ibid: 222.
[45] Campbell v. Wainwright, 416 F.2d 949, (5th Cir.1969)

[46] Adams v. Ellis, 197 F.2d 483, (5th Cir. 1952)
[47] Lonchar v. Thomas, 517 U.S. 314 (1996)

[48] Death Penalty Information Center (DPIC). 1996.  Executions in the U.S. in 1996.  Washington, DC: DPIC.  Available at: [Accessed 31 Mar 2008].

[49] Indiana University Center for Bioethics, op. cit. note 28, p. 1.

[50] United States Department Of Justice, op. cit. note 1, p. 46.

[51] J. Cameron & R. Hoffenberg. The Ethics of Transplantation Reconsidered: Paid Donation and the Use of Executed Prisoners as Donors. Kidney International 1999; 55: 724-732.

[52] American Civil Liberties Union (ACLU). 2008. American Civil Liberties Union: Death Penalty 101.  New York, NY: ACLU.  Available at: [Accessed 31 Mar 2008].


Bill A said...

Prisoners have health care because we've taken away their ability to earn money. It's as simple as that.

Your argument appears to be based on the fact that "if someone get's free health care, we should all get free health care." If we are going to apply that rule here, then we should apply it everywhere. If a doctor earns $300,000 a year, we should all earn $300,000 a year. If someone can afford a home, then we should all get homes. etc, etc. Pretty soon what you have is socialism. I'm not going argue the pros and cons of socialism, but it's not what we are about here in America.

Consider this, we also take away the right of felons to own guns. Is that fair? If someone has the right to a gun, we all should have the right. Or so the logic goes.

Let me be clear. I have NOTHING against affordable health care. I think there are a lot of improvements that can be made to the health care system. I think free health care provided by the government (ie our tax dollars) is a horrible, terrible idea. What does the government do efficiently? Please give one example of the government taking over something and improving it. I truly believe the government should stick to what the constitution says it should be doing (which doesn't include health care). The government could help over see health care reform. But that's about as involved as I want them.

Ryan DeRamos said...

Is this the article you also wrote in Spanish, Whit? Just to sort of reply to the first comment:

It's a fine, oft-ignored balance what the government can do well and what the government can do poorly, and at which level of government can do this optimally, if applicable.

The development of the Interstate highway system, (to simplify the history) from private entrepreneurs to the Federal government, is probably a more 'efficient' (albeit lacking) outcome than most of the possible private enterprise alternatives. I assume this because virtually every successful for-profit venture will put proprietor's/partners'/members'/shareholders' interests above all else, including (if they can get away with it!) public safety.

The above Interstate analogy may or may not be applicable when it comes to improving health care in an empire-sized United States. Non-profit insurance providers, in which executives don't take home ridiculously-sized paychecks, could possibly be a good start.

Whitny said...

Bill...I totally agree that in the United States very few government run programs work as efficiently as those in the private sector. When I was writing this paper I wasn't really focused on what would be practical as much as what, on principle, seemed right. I believe that the bill of rights...those granted at the time of the writing of the constitution and those granted after the fact should be immutable and should apply to all members of society.

I personally feel that felons should not lose the the right to vote or own handguns...but I am a principled based thinker and not really as much of a pragmatist as perhaps I should be.

I am not saying that everybody should get the same paycheck or should live in the same style of house. I am just arguing that when it comes to a "right" then it should be extended to all individuals.

Like I said at the end of the paper...I am not suggested how we might do this...I am just saying that if you have the first amendment right to freedom of speech then I should get it and if you have freedom of religion then I should get it. However what we choose to do with those rights is totally up to us.