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The right to assistive technology

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Abstract

In this paper, I argue that disabled people have a right to assistive technology (AT), but this right cannot be grounded simply in a broader right to health care or in a more comprehensive view like the capabilities approach to justice. Both of these options are plagued by issues that I refer to as the problem of constriction, where the theory does not justify enough of the AT that disabled people should have access to, and the problem of overextension, where the theory cannot adequately identify an upper limit on the AT that people have a right to. As an alternative to these justificatory frameworks, I argue that disabled people are owed access to AT at the expense of nondisabled people as a matter of compensatory justice. That is, I defend the position that disabled people are owed AT as part of due compensation for the harms they experience from being disadvantaged by society’s dominant cooperative scheme and the violation of their right to equality of opportunity that such disadvantage entails. I also propose a method for identifying an upper limit to what this right to AT requires. In this way, I argue that compensatory justice avoids both the problem of constriction and the problem of overextension.

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Notes

  1. Throughout this paper, I use identity-first rather than person-first language when referring to disabled people. For a relevant discussion of this terminology, see [1, pp. 5–6].

  2. Several examples of BCI-equipped AT are deployed to support my arguments below.

  3. If not subsidized, costs for these devices are likely to be prohibitive. Deep brain stimulators, one variety of BCI, can cost patients upwards of $65,000 [4]. A cochlear implant, which utilizes similar technology, can cost up to $100,000 in total [5].

  4. One very prominent theory of health care justice that does not frequently use the term “medical necessity” but follows this line of thinking comes from Norman Daniels [6, 7]. See discussion below.

  5. Elizabeth Barnes offers a thorough, if not completely comprehensive, survey of the landscape of this literature as part of the first chapter of The Minority Body [1, pp. 9–53].

  6. This is not an altogether original strategy and was deployed by Barnes in her 2014 article “Valuing Disability, Causing Disability” [9], prior to her articulation of her own metaphysical view of disability in The Minority Body.

  7. Improving, restoring, or maintaining health is a necessary condition for medical necessity, but it may not be a sufficient condition—in an environment of scarce medical resources, there may be other considerations such as cost or efficacy that also contribute to whether an intervention is considered medically necessary. Even if an intervention improves, restores, or maintains health, there may be alternatives that are as efficacious in achieving this goal and cost less. Thus, the pricier option may not be considered medically necessary.

  8. For a full explanation, see Christopher Boorse’s seminal article [11]. For a relevant critique from the philosophy of disability literature, see Ron Amundson [12].

  9. There has been at least one recent attempt to justify greater access to AT with Daniels’s theory of health care justice: Evelyne Durocher et al. [13]. For a critique of this attempt that is somewhat parallel to my argument in this section, see Mary Egan [14].

  10. Conversely, one may argue that some or even most alternative modes of function ought to count as restoring health if functionality is examined at the correct level of analysis. However, this argument presents what I take to be an intractable line-drawing problem. For a more detailed analysis of this difficulty, see my discussion of the “level of analysis” objection insisting that AT that employs a different mode of function can and should be regarded as restorative of health if it is examined at the correct level of analysis [10, pp. 1131–1132].

  11. Departure from normal mode of function and lack of mimicry are not sufficient for being AT though. There are many technologies—such as jumbo jets and smart phones—that improve normal function by way of a different mode without conferring disability group identity.

  12. Another way to frame this point is to note that assistive technology is not intrinsically medically necessary on the Boorsian view of health—unlike curative technology that often tends to restore both mode and level of function—but some AT may be instrumentally medically necessary.

  13. As noted above, an intervention’s capacity to restore or maintain health is a necessary but not sufficient condition for medical necessity. So it may be possible for a theory of health care justice that adopts a normative definition of health to balance a person’s interest in being healthy against other social goods when making choices about what counts as medically necessary. However, the WHO’s definition of health is so broad that it would not allow for such tradeoffs between health and other facets of human well-being because health would be inclusive of all such facets.

  14. For broader critiques of Daniels’s work from philosophy of disability, see [17,18,19,20].

  15. Another prominent normative account that is far more nuanced than the WHO’s is offered by Lennart Nordenfelt, who defines health in terms of a person’s ability to accomplish “vital goals” [21]. However, it strikes me as quite similar to the capabilities approach discussed in detail below and so I have foregone extensive discussion.

  16. For a legalistic argument favoring what seems to be a human rights approach to the provision of AT that has the potential to be philosophically grounded in the capabilities approach, see Johan Borg et al. [25].

  17. Notice how, in many ways, the capabilities approach runs parallel to normative accounts of health when it comes to the issue of distributive justice for AT. For an interesting analysis of the intersection between normative theories of health and the capabilities approach, see the paper by Sridhar Venkatapuram [29].

  18. Of course, this notion of average is quite different than the naturalistic statistical average of normality because, unlike a Boorsian theory of health, the capabilities approach is concerned with socially mediated capabilities and not biological functions.

  19. Of course, there may be other plausible theories that could ground such a right which I do not have space to fully address. Perhaps it is enough to have cleared the way for compensatory justice as one such alternative by showing the problems that arise with medical necessity and the capabilities approach, which are very prominent in the literature describing what disabled people are owed as a matter of justice.

  20. For two prominent examples of such criticisms, see [35, 36].

  21. For such critiques of the capabilities approach, see [37, 38].

  22. For the seminal work on the distinction between impairment and disability, see Michael Oliver [39]. For an important critique of this distinction, see Shelley Tremain [40].

  23. My pointing out that at least some of the disadvantages experienced by disabled people are socially constructed should not call into question my commitment to using an ordinary-language conception of disability in this paper. One need not be a social modelist to recognize that structural ableism exists and harms disabled people.

  24. I would include the built environment as part of this dominant cooperative scheme.

  25. For a critical analysis of universal design, see Aimi Hamraie [45].

  26. In fact, Wasserman’s argument bears some resemblance to Buchanan’s argument above that nondisabled people have a legitimate interest in maximizing the benefit they can garner from a dominant cooperative scheme.

  27. Notice that there is no clear way to resolve the competing claims of Deaf and blind people to fair equality of opportunity within the dominant cooperative scheme in this example. Both groups seem to have an equally valid argument that they have been wronged by their exclusion from dominant modes of communication as a result of prejudicial attitudes of disrespect that assume they are unworthy of social inclusion. This trade-off in access needs cannot simply be framed as morally defensible because of the incommensurability involved.

  28. One might recall the scene in the film The Matrix in which Keanu Reeve’s character “Neo” becomes an expert in Kung Fu instantly via such an upload from a BCI [50].

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Acknowledgements

Funding for this research was provided by the National Science Foundation (Grant No. #EEC-1028725). Additionally, I would like to thank the following individuals and groups for providing extensive feedback on earlier drafts of this paper that greatly improved its quality: David Wasserman, Sean Aas, J. Angelo Corlett, members of the “Ethics Thrust” of the Center for Sensorimotor Neural Engineering (especially Sara Goering, Eran Klein, Tim Brown, Marion Boulicault, Michelle Pham, and Paul Tubig), several anonymous reviewers, and the audience at the conference Philosophy of Disability: Perspectives, Challenges, and Aspirations hosted by University of Tennessee at Knoxville.

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Stramondo, J.A. The right to assistive technology. Theor Med Bioeth 41, 247–271 (2020). https://doi.org/10.1007/s11017-020-09527-8

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