May 15, 1997
Vol. 16, No. 17

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    Epstein: Health-care reform poses 'mortal peril' to society

    Noted and controversial legal scholar Richard Epstein, the James Parker Hall Distinguished Service Professor in the Law School, says our piecemeal regulatory approaches to reforming health care "pose a mortal peril to the very ends they are supposed to advance: the health and prosperity of society."

    In his new book, Mortal Peril: Our Inalienable Right to Health Care?, Epstein writes against the grain of modern policy analysis, challenging the assumption that health care is a right for all Americans.

    "The simple and compact set of common-law rules does a far better job of providing health care than the endless set of legislative and judicial innovations of our day," Epstein said. "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 in a world of scarcity. It deals first with the question of access to health care."

    Epstein, a University faculty member since 1973, has written on a variety of legal topics from a perspective that seeks to blend concerns about individual liberty with the insistent need for collective social control. The National Law Journal recently named Epstein one of its 100 "Most Influential Lawyers in America."

    In Epstein's opinion, scarcity necessarily limits universal access to health care. "We must face the possibility that someone may have to 'do without' in a world of scarcity," he said. "We can no longer start our public debate with the false but comforting assumption that our social abundance can support social safety nets and minimum entitlements to everyone in society.

    "I think it is important . . . to argue that philosophical questions of health care do not begin and end with the passionate observation 'that you can't just let anyone die.' The short answer is that you can, and indeed in some cases, you should. The longer answer requires a reconstruction of the basic system of rights and duties -- one that goes far beyond health care, but ultimately embraces it."

    In Mortal Peril, Epstein says that measures designed to secure access to health care have unintended consequences that supporters of such measures would shrink from endorsing. He says that mandatory access to emergency care without public or private reimbursement reduces the ability of charitable organizations to manage their own budgets and to remain in business. He also claims that the extensive provision of Medicare benefits accounts for the cost-squeeze on many middle-class families with young children and limited means. And he offers his detailed explanation of how the Clinton health care legislation would aggravate the very inefficiencies in allocating health care resources that the plan was designed to eliminate.

    Epstein is equally insistent in his treatment of issues involving individual choice in receiving health care. He argues that the current legal prohibition against live organ sales "misfires because it rests on a misguided and perhaps immoral view of altruism, which is beset by two fatal weaknesses. First, the current altruistic policy overestimates the ability of detached generosity to meet the demand for organ transplants and thus tolerates inexcusable organ shortages.

    "Second, its excess confidence in donative transactions is improperly used to justify the ban on the social institutions -- voluntary markets -- that could alleviate the current shortages," he said.

    Epstein also examines the current debates over physician-assisted suicide. He takes into account both individual claims for personal autonomy and the dangers of abuse inherent in the project, and concludes that the best approach splits the difference. He encourages a liberalization of the current prohibition on physician-assisted suicide but counsels against making it a constitutional issue.

    Epstein is the author of numerous articles and books on a wide range of legal topics, including Simple Rules for a Complex World (1995); Bargaining with the State (1993); Forbidden Grounds: The Case Against Employment Discrimination Laws (1992); and, perhaps his best known work, Takings: Private Property and the Power of Eminent Domain (1985).

    -- Catherine Behan