Mortal Peril: Our Inalienable Right to Health Care?

• Author: Greaney, Thomas L.

Mortal Peril: Our Inalienable Right to Health Care? By Richard A. Epstein. Addison-Wesley Publishing Company, Inc. 1997. Pp. xvi, 503 $27.50

There's an old joke about a Southern preacher who is asked whether he believes in the sacrament of infant baptism. "Believe in it?" thunders the preacher. "Hell, son, I've seen it done." In Mortal Peril: Our Inalienable Right to Health Care?, Richard Epstein(1) gives testimony that markets should be left unfettered to distribute health care services. Arguing from first principles, he aims to persuade that the messy, confusing business of health care is best dealt with by simple legal rules: permit free contracting, countenance no government-induced subsidies, recognize no positive rights. One leaves this particular revival tent feeling he has heard a good sermon on the wages of sin (failed government regulation), but has not been given much reason to believe in the preacher's promised land (libertarian capitalism).

The book's skeptically phrased subtitle, "Our Inalienable Right to Health Care?" cleverly captures the two principle themes of the book. Used in a positive sense, as in the Declaration of Independence, an "inalienable" right to health care connotes a fundamental right -- an interpretation that might be derived from regarding health care as a prerequisite to the pursuit of happiness. From this, Epstein warns, it is "but a short leap to the proposition of universal access to health care" (p. xiv), which is the bete noire that he seeks to slay in the first half of the book. He marches the reader through the difficulties in limiting futile care, the problems of defining and providing necessary indigent care, the paradoxes of community rating and mandatory insurance, and finally the failure of two comprehensive access programs, Medicare and the proposed Clinton administration health reforms. The second meaning of "inalienable" is negative: legal rules impose restraints on alienation in health care by restricting freedom of contract in matters such as organ transplantation, euthanasia and assisted suicide, and tort liability. The second half of the book investigates the law's pervasive interference with autonomy in health care matters from an individual rights perspective that Epstein asserts is "closer to the sense of the original Declaration of Independence than the modern gloss that has been placed on it:" (p. xv).

Why Epstein believes his two targets (government-sponsored access and legal restrictions on contracting) place us in "mortal peril," however, is less clear. True, a free market for organs might save lives by expanding the supply of a scarce resource. But euthanasia, assisted suicide, and contracting for lower thresholds of tort liability? Though these practices might save resources, they might well increase the aggregate mortal peril of the citizenry. Likewise, removing entitlements to health care services hardly seems calculated to improve the nation's health. Wasteful as government entitlements may be, their eradication can scarcely be said to avoid mortal peril for those who rely on them to obtain health services. Epstein's apparent answer lies in the alchemy of the market. Free markets improve the flow of resources and increase aggregate social welfare. Ultimately this rising tide will lift even the health care boat: "[T]he size of the resource base does more for the creation of good health than any political interventions designed to skew its use" (p. 219). I say apparent answer because Epstein is uncharacteristically vague about explaining just how things will work themselves out. And despite the asserted power of Epsteinian economics, he looks to the deus ex machina of charitable care to assure adequate health to all.

In this review, I argue that the history, economics, and politics of health markets belie Epstein's abstract reasoning. Though much of the argument in Mortal Peril is written in the language of economics and cost-benefit analysis, Epstein's core faith is libertarianism. I attempt to show below that he eschews careful analysis of the economic complexities of health care markets in favor of simple principles that focus almost entirely on autonomy. It should be understood, especially by policymakers, that the resulting harsh policy prescriptions are not compelled by economic reasoning but by a set of arbitrarily chosen first principles.

Because of the constraints of time and my own predilection, this review focuses on the portions of the book of greatest importance to the health care reform debate that has been going on in Washington and most state capitals over the last five years. Part I discusses the principles and methodology Epstein brings to the task of analyzing health law and policy and Part II expressly takes up the author's challenge to test his analysis with empirical evidence. The remainder of the review focuses on the three principal market reform issues addressed in Mortal Peril: Part III takes on Epstein's critique of programs providing care to the poor or cross-subsidizing such care; Part IV analyzes his approach to regulations affecting insurance and managed care; and Part V focuses on the discussion of Medicare and the Clinton administration's health reform proposals.

1. METHODOLOGY AND MESSAGE

   Mortal Peril can be seen as Epstein's effort to deploy many of the themes and principles developed over an uncommonly prolific academic career to see how they might work in practice. His influential and widely discussed writings on takings, tort law, individual rights, and regulation form a body of scholarship that rivals Richard Posner's in sweep and renown among legal academics. An important feature of his recent scholarship is an attempt to develop simplified, common-law-based principles to address complex legal issues.(2) Epstein is also justly acclaimed for his willingness to confront the most difficult challenges to his positions. In choosing to paint on the canvas of the health care sector, he has characteristically taken on a daunting challenge. Health care markets are notorious for their peculiarity and complexity, as well as the emotional rhetoric they inspire. One would be hard pressed to think of an area less hospitable to consensus on simple solutions that rely on first principles. Epstein at least deserves credit for choosing to test drive his theories on such a difficult terrain.

   In the end, however, Mortal Peril does not meet this ambitious goal. Measured against his promise that the book's arguments are "not advanced as deductive certainties, but as empirical propositions, capable of being tested in particular contexts" (p. 20), Epstein utterly fails to meet his own standard of proof. Indeed, he hardly tries. Instead of marshaling evidence and proposing policies that would persuade the reader that simple rules based on first principles can and do work in health care, Epstein contents himself with tracing out the implications of his philosophy and selectively criticizing deficiencies in existing regulation.(3) Part II of this review takes up the author's challenge, offering some empirical observations that raise serious questions about the economic efficiency of the libertarian health care market Epstein envisions. Ultimately, Epstein comprehensively documents the failure of health law and policy to heed his advice, but neglects to offer convincing proof that society would be better off if that advice were followed. As the author acknowledges, in understatement, his book "is not rich in quick fixes for intractable problems" (p. xii). Indeed, one might go further: the reader is only given a glimpse of what the Epsteinian health market would look like.

   A second problem involves Epstein's methodological inconsistencies. A social scientist would probably find it surprising that a law professor professing a strong kinship with economists and economics-oriented policy analysts would disregard their research in the health care field. The works of thoughtful health economists like Pauly, Fuchs, Dranove, Newhouse, and Reinhart are ignored and the voluminous health services literature is not consulted. Likewise, Epstein does not discuss the important writings on risk, preference shaping, and psychological analyses of market behavior. These omissions are particularly glaring because throughout Mortal Peril the author purports to champion a welfare-maximizing approach consistent with sound microeconomic principles. Indeed, notwithstanding Epstein's libertarian philosophy, his argument is distinctly deontological and utilitarian. Throughout Mortal Peril he deploys the language and methodology of economics and costbenefit analysis, principally to deride the current state of regulation in health care.(4) Yet, as discussed in this review, he pays no attention to the subtleties and imperfections of the market that have caused even the most ardent market: enthusiasts to endorse some forms of governmental intervention.

   Never far from the surface is the tension between Epstein's strongly held libertarian views, which reject most forms of state coercion, and his invocation of economic/utilitarian modes of analysis, which sometimes require governmental meddling to assure efficient outcomes. The sources of this tension are several. First, as Martha Nussbaum has noted, the libertarian preference for liberty over other values is "on a collision course" with utilitarianism, which is at bottom committed to pursuing the greatest total (or average) utility.(5) Infringements upon liberty and property may produce greater social welfare; categorically assuming that such infringements inexorably decrease utility is nothing more than a sleight of the invisible hand.(6) Second, under Sen's paradox, libertarianism comes into inevitable conflict with utilitarianism employing the Pareto optimality criterion whenever one recognizes other-regarding preferences.(7) Dismissing all such preferences cannot withstand close economic and...