Back to Basics in the Health Care Debate

Richard A Epstein

September 1996

Richard A Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, where he has taught since 1972. Previously, he taught law at the University of Southern California from 1968 to 1972.

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. He served as editor of the Journal of Legal Studies from 1981 to 1991, and since 1991 has been an editor of the Journal of Law and Economics.

His books include Bargaining With the State (Princeton, 1993); Forbidden Grounds: The Case Against Employment Discrimination Laws (Harvard, 1992); Cases and Materials on Torts (Little, Brown, 5th ed, 1990); Takings: Private Property and the Power of Eminent Domain (Harvard, 1985); and Modern Products Liability Law (Greenwood Press, 1980).

Professor Epstein has written numerous articles on a wide range of legal and interdisciplinary subjects and taught courses in contracts, criminal law, health law and policy, legal history, property, real estate development and finance, jurisprudence and taxation, torts, and workers' compensation.

His latest book, Simple Rules for a Complex World (Harvard, 1995), grew out of a series of lectures and seminars given in New Zealand and Australia in 1990. This lecture touches on some of the themes from his forthcoming book, Mortal Peril: The State Control Over Health Care (Addison-Wesley, 1997).

THE PERILS OF HEALTH CARE PROVISION

Health care has become an enormously contentious political and intellectual issue over recent years, both in the United States and else-where in the world. Previously the debate had taken place mainly among technical people - academics and health specialists. Now everyone is discussing health care. Indeed, it has moved so far up the political agenda that a dispute over the size of the Medicare premium recently shut down the United States government. I cannot do justice to all of this debate in a short address. I will give a brief overview of the big picture as I see it, and then focus on one part of that picture in greater detail.

The health debate can be divided into two broad sets of questions. One set consists of the bioethical questions. Here issues of law and economics and scarcity are always relevant, but in common discourse they tend to relate to isolated circumstances or discrete transactions. Bioethical questions cover issues such as organ transplantation - how organs should be supplied, whether sale should be permitted and gift encouraged, and so on. They also cover difficult issues concerning death and dying, from voluntary euthanasia to questions about liability - for example, the way in which health providers should be held responsible for negligence or misadventure. I will make only one comment today on the bioethical issues, which is that the reason they cause such enormous difficulty is that we have tended to treat them as special. Standard common law rules on the rights of disposition and self-control by contract have been applied to these areas erratically at best. Instead, we wrongly prohibit the sale of organs, just as we wrongly prohibit voluntary euthanasia.

While these interferences with voluntary choice and exchange constitute vital substantive issues, it is the second set of questions - those concerning access to health care - that I plan to discuss today. Who gets to be treated? Under what circumstances is the treatment to be supplied? Can anybody be excluded from the coverage of health systems? Are there special obligations to treat persons who are in emergency conditions? Faulty answers to these questions can bring a health system down, while sound responses may help to save systems that are otherwise destined to implode from over-use.