Richard Epstein - Guru of "Anti-Right to Health Care"

Richard Epstein is the guru of the "anti-Right to Health Care" crowd. He is cited at virtually every website and in every editorial which aims to discredit the concept. In the 500 pages of "Mortal Peril: Our Inalienable Right to Health Care" (Addison-Wesley Pub, 1997, 500 pp.), Epstein expounds on virtually each criticism that we have represented at this website coming from opponents of the Right to Health Care.

While reading through the 500 pages requires more time than anyone needs to expend on his arguments, some of those chapters may be of interest even to proponents for the right to health care who wish to perfect their ability to handle even outrageous assertions which will be frequently encountered in public meetings.

Just the last 5 pages of Epstein’s preface include all the worthwhile positions and arguments.

Let us begin with the sole point of agreement between Epstein and Project EINO: supporters of universal health care all seem to accept (implicitly or explicitly) the concept that coverage for health care is somehow "taken as a moral given" often with the major focus of discussion on how to fund the care. True, only a minority of the state organizations working towards universal health care (UHC) explicitly endorses the "Right to Health Care" as a focal principle. Still, we agree that a demand for real universal care (not just 95 or 98% of the people covered for a limited set of medically necessary treatments) is based logically on the moral given that everyone in society should be cared for. For Epstein this explains why he wrote a book against the right to health care when he intends to attack and destroy all work towards UHC.

Epstein begins by asserting that dealing with health care resources and society’s health care needs can only be properly discussed in context as a scarce resource, a resource which in fact will always be in short supply no matter what the "system of social control" (or no matter how we might attempt a just distribution). Health care, he states, will be inevitably constrained and the same principles of human behavior and institutional organization (with market control being the most appropriate and effective) apply as with any other scarce resource [like cars, kitchen appliances or lawn care services where standard business practices apply]. In all these cases, Epstein contends, scarce resources are best matched to desired ends by "free markets", with the possible addition of real charity (not coerced). Epstein makes two errors here (one in his scarce resource premise and the other in his omission from the book of any discussion of public education, fire and police services etc., public libraries etc. which could similarly be included as scarce resources). See discussion of scarce resources for UHC   CLICK and discussion of similarity to public education in need for social support   CLICK.

Epstein asserts that Medicare and Medicaid have been a disaster for the country " the health care system was working ideally in the 1940’s, before it became "a casualty of the government regulation systems of these two programs". He laments that it is now difficult to fix the problems they created, lamenting that it would have been much easier "to steer clear [of government involvement] in the first place". But how many Americans are ready to dissolve Medicare?

Charity in health care (which Epstein believes to be one of two appropriate premises for all care) should never be confused he states with justice. Charity must always come for the care provider (physician or clinic) and come freely (neither coerced, nor rewarded by society). So Epstein’s endorsement of charity cannot be construed as giving towards health care of others with any form of social encouragement attached.

Epstein uses the example of the saving a child’s life at great expense following a drowning accident that left the child in permanent vegetative state ". What an example!! In fact his book is directed towards denying help to similarly beleaguered parents who are watching a child die or suffer permanent disability NO MATTER WHAT THE PROBABLE OUTCOMES !! Ditto the case of grandparents (the other example in his preface) who, no longer in the workforce, find themselves without adequate health coverage, and without families wealthy enough to pay for needed care or treatments out of pocket. Epstein attempts to lull his readers in, describing a case in which it is unclear whether anyone (including the closest family member) would want to prolong life. In fact though, Epstein does not think that society is responsible to provide care even with an extremely modest dollar value, not even if such care could save a child’s life for that is "coercive giving" in his judgement.

The point Epstein makes about society not coercing health care providers (physicians, nurses, physician assistants etc.) to provide care without reimbursement is one that is clear to all people supporting UHC. The term used by the Institute of Medicine (division of the US National Academy of Sciences) is "uncompensated care" for this sort of coerced giving from providers, clinics and hospitals. This care represents a real cost with the expense largely made up through other avenues, so that it still costs society nearly the same dollar value. A UHC system would save this cost entirely for society. It is NOT a cost stemming from the ethic for universal care as Epstein would have the reader believe.   CLICK

It is true, as Epstein states, that "it is easy to spin arguments that insist that so long as health care is fundamental to the pursuit of happiness, then, in an evolving legal universe, it has to be accorded the same fundamental status as life and liberty themselves". Yes, it is easy and logical, but less of a "spin" than it is a necessary conclusion from paragraph 2 of the US Declaration of Independence. It is the proposition of our project and many other institutions concerned with human rights that health care will soon be acknowledged as an "inalienable right" just as education now is in our country (following the 150 years of grassroots struggle to make it such). These inalieanble rights "can never be removed by an well-functioning US administration" as Epstein describes the proper use of the term.

Perhaps the greatest weakness in Epstein’s preface and his book is that he does not address other socially shared responsibilities. Epstein’s universe is one in which there is no justification for the coercion needed to establish and maintain public schools, libraries, local fire and police departments, building inspectors etc. He has not the space in his 500 page tome to explain why he thinks health care is any less effectively provided through a well-thought out social system than say the local fire department, or elementary school. He simply fails to mention that such institutions exist and are nearly universally appreciated and strongly supported by the citizens of this country. The arguments which he has leveled against the right to health care are pretty much the exact same ones invoked 200 years ago against "common education" (the idea that primary and middle school should be the right of all children). See that history at   CLICK

If he had been more honest and forthright Epstein would have explicitly included public schools, libraries and fire and police departments in his attack - but that might have shown how extremely fringe his ideas really are. Much more effective to pretend that only health care falls under attack, or that it differs from public education in some way other than being undertaken and fought for much later.