Mortal Peril: Our Inalienable Right To Health Care?

by Richard A. Epstein

In this seminal work, distinguished legal scholar Richard Epstein daringly refutes the assumption that health care is a “right” that should be available to all Americans. Such thinking, he argues, has fundamentally distorted our national debate on health care by focusing the controversy on the unrealistic goal of government-provided universal access, instead of what can be reasonably provided to the largest number of people given the nation’s limited resources.With bracing clarity, Epstein examines the entire range of health-care issues, from euthanasia and organ donation to the contentious questions surrounding access. Basing his argument in our common law traditions that limit the collective responsibility for an individual’s welfare, he provides a political/economic analysis which suggests that unregulated provision of health care will, in the long run, guarantee greater access to quality medical care for more people. Any system, too, must be weighed on principles of market efficiency. But such analysis, in his view, must take into account a society-wide as well as an individual perspective. On this basis, for example, he concludes that older citizens are currently getting too much care at the expense of younger Americans.The author’s authoritative analysis leads to strong conclusions. HMOs and managed care, he argues, are the best way we know to distribute health care, despite some damage to the quality of the physician-patient relationship and the risk of inadequate care. In a similar vein, he maintains that voluntary private markets in human organs would be much more effective in making organs available for transplant operations than the current system of state control. In examining these complex issues, Epstein returns again and again to one simple theme: by what right does the state prevent individuals from doing what they want with their own bodies, their own lives, and their own fortunes?Like all of Richard Epstein’s works, Mortal Peril is sure to create controversy. It will be essential reading as health-care reform once again moves to the center of American political debate.

Genres: Health Care, Politics, Economics, Law

528 pages, Hardcover

First published March 24, 1997

About the author

Richard A. Epstein is the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at The University of Chicago Law School.

Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.

He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.

His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.

He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.

Reviews

[Steven H · Rating 5 out of 5]

A CONSERVATIVE/LIBERTARIAN CRITIQUE OF A "RIGHT" TO HEALTH CARE

Richard Allen Epstein (born 1943) is a Professor of Law at the New York University School of Law, as well as associated with the Cato Institute, the Hoover Institution, and the Heartland Institute. He has written many books, including 'Takings: Private Property and the Power of Eminent Domain,' 'Why Progressive Institutions are Unsustainable,' 'Design for Liberty: Private Property, Public Administration, and the Rule of Law,' etc.

He wrote in the Preface to this 1997 book, "This book represents my sustained effort to demonstrate that the source of our collective anxiety begins with the elaborate and counterproductive schemes of entitlements that live off the illusion of abundance of scarcity. It deals first with the grand question of health care... Alas, this book is not rich in quick fixes for intractable problems."

He begins by stating, "The central thesis of this book is that the rules of the game as have just been laid out are more likely to lead to a sensible regime for the reform and regulation of health care than the dominant regime." (Pg. 19-20) He adds, "I think that the strongest theoretical argument in favor of a welfare right in health care, or anywhere else, is one that exploits the wedge between maximizing social wealth and maximizing utility." (Pg. 31)

He suggests that "No political system will be able to turn people away once the coverage is made universal." (Pg. 55) Rejecting the notion that "everyone has a right to health care regardless of ability to pay," he asks, "Why is this principle appropriate for health care when it has been rejected for vacation homes and fast cars?" (Pg. 112)

He argues that "Pay or play plans invite strategic maneuvering by employers... Employers with healthy work forces will choose to insure, so all the bad risk accounts are dumped into the public sector with insufficient funds to service them. The single-payer system prevents this strategy, but it invites abuse by a government monopoly that can stifle innovation, squeeze individual physicians, and operate in a slow and arbitrary way." (Pg. 188)

He concludes with the suggestion, "perhaps we might be better off in a world with reduced costs and enhanced access, even if liability is sharply curtailed or totally eliminated... we need open markets, with fully enforceable contracts, no ifs, ands, or buts, to find the best levels of legal protection against adverse medical outcomes." (Pg. 416)

Thought-provoking and controversial as are all of Epstein's books, this one is well worth reading, particularly given the renewed importance of health care in the current political debate.

[Joel · Rating 4 out of 5]

Intense. Epstein is brilliant and he walks through the issues involved in healthcare being a "right" from the legal/constitutional perspective of positive vs negative rights through the market and personal incentives that flow from the different approaches. Every paragraph is dense with insight and information.

[Kruiser · Rating 4 out of 5]

Older book about health care in America that explores in great detail what kinds of difficulties government intervention brings with it.