The National Catholic Review
Dr. Daniel P. Sulmasy

Richard Epstein, the James Parker Hall Distinguished Professor of Law at the University of Chicago, is a notable member of the so-called law and economics movement, which promotes within the field of law the free-market economics of Milton Friedman and his successors. This movement holds that the purpose of law is to promote the maximization of social utility, loosely translated as wealth. In Mortal Peril the author applies the premises and principles of this school not only to health care financing, but to euthanasia, surrogate decision making, organ transplantation, assisted reproduction and malpractice. The result is a tour-de-force. He sustains a consistent, vigorously argued, clearly written, well-researched and provocative argument for the primacy of the free market in all these spheres of health care. He is honest enough, however, to alert the reader that to accept these arguments, one needs to resist certain powerful moral instincts that might tend to make one disagree that the right thing to do is always and everywhere to apply his wealth-maximizing calculus. To the question, you cannot let them die, can you?’ we have to avoid the reflexive answer, no. To restore long-term stability to the system...the answer has to be yes, we can sometimes.’

According to Epstein, the transformation of medicine from an honorable profession to a mass-production business is obviously what people really want, because markets always reflect what people really want. After all, everyone knows that to have a physician chat with each patient for five minutes out of an hour might not seem like much, but over a year it amounts to a month of time. And this is not fuzzy math. It’s wasted money. Epstein repeatedly lambastes those bleeding heart liberals and government bureaucrats who want to do what the market says people don’t want to domake the young and the healthy pay for the health care of the elderly and the sick. Alas, he laments, Social Darwinism is a bit too unfashionable in modern circles of thought.

Fear not if you lose your job through market failures. Epstein has a ready solution: you can sell one of your kidneys! This is the beauty of the market. Even when it appears that there are failures, if we take markets seriously and get over the irrational idea that there is anything wrong with treating body parts as commodities, the market will come to our rescue. And if you’re still broke after having sold your kidney, how about renting your womb or selling your baby? He avers that parents really mean it when they speak of their children as precious commodities. Reason requires free markets in organs, babies and surrogate motherhood.

Suppose that having lost your job, you also have no health insurance. And having sold your kidneys, you might be on dialysis and past the age of reproduction. Charity isn’t what it used to be, but Epstein has a market solution for youeuthanasia! It would appear that do-gooders are needlessly restricting personal liberty by preventing a free market in euthanasia. With euthanasia, everyone would come out a winner. The patient would gain a quick and painless death, and the benefits to others would be even greater. Euthanasia, writes Epstein, serves as a form of liberation that allows family and friends to return to the ordinary rhythm of life after an appropriate period of mourning. After all, it is often difficult to see someone die slowly, and these psychological sentiments may be compounded by the crushing financial burdens of the final illness. Euthanasia helps keep markets efficient.

These are certainly provocative ideas. In the field of medical ethics, perhaps only the libertarian H. Tristram Engelhardt has advocated a similar program. But Engelhardt is dull reading compared with Epstein, who combines a forceful defense of personal liberty with aggressive economic utilitarianism. Like Engelhardt, Epstein is ruthlessly consistent. Grant him his assumptions and everything else follows. What are these assumptions? Basically two: that individual liberty cannot be abrogated unless it can be proven that its exercise harms at least one other person; and that the purpose of human institutions is to maximize net social utility, for which wealth frequently functions as its convenient proxy. If one thinks that charity, justice, social solidarity or anything else matters in human institutions, or that anything other than direct physical harm to other persons justifies restrictions on human behavior, one is not likely to find Epstein’s system congenial. But one must respect the force and erudition with which he argues for it.

Epstein displays an impressive command of the issues in three intersecting fieldsmedicine, law and economics. He has a great talent for making complex concepts clear and accessible for the general reader. There are only a few places where he fails to define technical terms, such as anencephalic, subrogation and moral hazard. He twice refers to Nancy Cruzan’s respirator, though the patient in that famous case was connected to a feeding tube, not a respirator. But such slips are minor and infrequent. The combination of lucid style and scholarly command of the issues is truly impressive.

In the Preface he reports that recently he was taken aback when at a faculty workshop a young doctor (with a Ph.D. in philosophy, no less) chided him for his views. I guess I join the vast conspiracy of young doctors with Ph.D.’s in philosophy out to chide him (respectfully). Epstein’s book is aptly named. His bright ideas, if ever put into practice, would spell mortal peril for us all.

 

Daniel P. Sulmasy, O.F.M., M.D., holds the Sisters of Charity Chair in Ethics and is director of the Bioethics Institute of New York Medical College.