1. Medicine and Social Justice
2. 6. The Emergency Medical Treatment and Active Labor Act (1998), Pub. L. No. 99–272, 100 Stat. 164, codified as amended at 42 U.S.C. 1395dd [hereafter referred to as EMTALA].
3. 39. See Franklin, Budenholzer, , supra note 34.
4. 15. If hypothetical consent has to be embraced to operate with PFR in the actual world, another difficulty in using the principle to justify coercion will still have to be confronted: Some legitimate “honest holdouts” may remain, people who receive benefits from the enterprise less than their share of its costs. Coercive payment laudably catches many free-riders but in the real world will also likely catch some who really do prefer to forgo all benefits to paying their share of costs (see Schmidtz, , supra note 11, at 84). Why should they, too, have to fund what is then essentially other people's chosen projects? Perhaps, then, all we have is a PFR principle that proclaims free-riding to be regrettable, not one in which it is objectionable enough to justify coercively extracting contribution. Additional considerations, however, push PFR toward justifying coercion. (1) Honest holdouts and free-riders are not necessarily different people. If the good the collective enterprise produces is virtually universal, then even if one is an honest holdout because one judges benefit insufficient to balance fair-share cost, the matter may be a close call. And even if being an honest holdout should block enforced participation, the fact remains that if the enterprise proceeds and one is not required to pay, one still gets for free a benefit that may be nearly worth the cost. (2) Another balance-of-cost-and-benefit factor is also relevant: How close do the alternative arrangements of private contract and individual voluntary decision come to achieving benefits equivalent to those of the collective enterprise imposing contribution? The closer they come, the weaker the case for the collective enterprise and enforcing a contribution to prevent free-riding.
5. 19. Not only is the immediate moral call of rescue more clearly in play in emergency care than in most other care, but financial responsibility for mandating it can be rather conveniently dodged because “backdoor” financing is feasible. Emergency care is provided by sizable institutions (hospitals) large enough to absorb immediate costs and shift them. No such hidden financing is as feasible for primary care, which is usually delivered in smaller institutional settings.