Mortal Peril:
Our Inalienable Right to Health Care?
By Richard Epstein
Addison-Wesley, 503 pages, $27.50
Modern medicine can perform miracles, but the miracles are often costly. Even so, most of us would probably think something is wrong when we see or know about someone who has a condition that could be treated effectively but who is not being treated. If the problem is that the person does not have the resources (or the insurance) to cover the cost, someone ought to do something, and if no one steps forward voluntarily, government, in some way, should help. In “Mortal Peril: Our Inalienable Right to Health Care?” Richard Epstein, professor of law at the University of Chicago, begs to differ with this common view.
Epstein actually makes two arguments here, one legal and one political. He argues, based on legal principles and reasoning, that there is no such thing as a “right to health care” (inalienable or not) that the government should enforce. He further argues that, in any case, the government has no business using coercive taxes or regulation to provide, subsidize, or compel people into helping others get, health care. He argues that the government does not have to help, and, moreover, that it ought not to help.
These positions are argued vigorously and persuasively, and applied to a wide range of problems and issues. They are obviously intended to shock, to challenge what most people think (or think they think), and to substitute what Epstein regards as clear if painful reasoning for the fuzzy thinking most of us would otherwise use.
The legal argument is an application of Epstein’s earlier controversial work on the limits of government-enforced rights in the book “Simple Rules for a Complex World.” Using the principles of common law, he concludes that there is no inalienable right to health care, even care that would without doubt do some good, if the cost of that care would have to be paid by someone else. He uses the example of a young woman who, after nearly drowning, is left in a vegetative state with heavy custodial care–needs that have exhausted her parents’ insurance coverage limits. Epstein’s view is that the government ought not to be obliged to help, since deep legal principles do not support a government-imposed obligation on others. (Others may, of course, choose to help through voluntary private charity.) This woman has no right to care.
The political argument is that for the government to use scarce resources to help would not in any case be appropriate, since the benefits of care are far less than their cost, and the resources that might be used for care could better be used, he alleges, to prevent future drownings. (How Epstein knows the results of these cost-benefit calculations is unclear. After all, even when the most efficient amounts of resources are spent to prevent drowning, some drownings will still occur.)
The conclusion: Government should not use taxes or regulatory cross-subsidies to do something that, while helpful, is both illegal and inefficient.
These arguments are then applied to other controversial questions about government intervention. Private hospitals (even charitable non-profits) should not be required to provide indigent care, not even in the emergency room. “Community rating” of insurance premiums to bail out high risks is undesirable, as are the rules in the recently passed Kassebaum-Kennedy bill that forbid employers and insurers from denying insurance to new workers with pre-existing, high-risk conditions. Medicare and Clintoncare were both bad ideas.
A second section of the book deals with more-specific limits on “self-determination and choice.” Want to sell something medical? A kidney? Your willingness to be a surrogate mother? Your entitlement to sue for malpractice damages? These upsetting transactions are, according to Epstein, the real rights in health care that people should have, and that should not be limited by government. Moreover, government activities intended to help (such as the semi-governmental networks to allocate organs for transplantation) generally do not work well, and are, in any case, inappropriate interference.
While these positions are controversial and often politically unpopular, the arguments in support of them are many, strong and clearly presented. The range of issues considered is also enormous; if there is an issue in health policy left out here, I do not know what it is. The inalienable-rights argument is deftly skewered as resting on the illogical (and nonsensical) premise that there is no scarcity of resources, where “scarcity” here as elsewhere is really economic and legal code for “beneficial somewhere else.” The fatal flaw in the “rights” view–a usual unwillingness to consider, and a universal inability to specify, how much care is rightful, and for whom–is exposed relentlessly. The book should be required reading for anyone–politician, pundit or medical ethicist–who wishes to pontificate on what government must do in the health-care sector.
However, while Epstein effectively smites the mushy thinkers and the bumbling do-gooders, he is less successful in saying what government ought to do. Government, he shows, should not be required to expend scarce resources on beneficial health care, because the benefit may not be great enough. But couldn’t there be circumstances in which the benefit, correctly reckoned, is in fact large, larger than what could be generated by other uses of those resources, and yet private individuals in private markets might fail to achieve it?
Economists label such situations as ones involving collective goods, and some of them do exist in health care. The most obvious example is public-health activity dealing with contagious disease: Government resources spent to discover and then subsidize treatment for the person spreading disease to others cannot be counter to common law. Although the great bulk of medical care is not aimed at preventing or curing contagious disease, what logical difference is there between the benefit I get from my neighbor’s use of care that keeps me from feeling sick, and the benefit I, as an altruistic and concerned person, would get from his use of care that keeps me from feeling sad about his misery?
Epstein does treat this case, and he stumbles over an old chestnut in public economics. His main rejoinder (after an unconvincing argument that such sentimental benefits are somehow different from “real” benefits from collective goods like police protection) is that private charity can handle this problem. Of course, there are now and will continue to be charitable donations aimed at helping others get medical care, but that charity is often insufficient. Epstein’s last argument on this point is, not to worry, the government offers tax breaks for private donations. But such breaks are not calibrated to encourage the ideal amount of charitable giving, and, in any case, it is hard to see how invoking tax breaks to donors, which will require others to pay more coercive taxes to make up the difference, supports the case that we should keep government out of this.
The fundamental problem is this: When it comes to health care, we (including Epstein’s fuzzy-thinking opponents) know that government cannot do everything that would help. But we may need it to do something. Rather than presenting this as an issue involving inalienable rights, or even moral imperatives, we should probably present it as the political problem it is: How much do we want to spend collectively on the health of our fellows, how much good are we willing to leave undone so we can have money to spend on other things, and who should pay what? Epstein successfully shows that talking about rights does not help us decide what government should do. The alternative view he advances, that talking about rights can tell us what government should not do, is less compelling.
