Sunday, March 28, 2004
Medicare: belly up or double down?
The trustees' report does, however, give one more reason to hate the prescription drug bill the administration rammed through Congress last year. If deception, intimidation, abuse of power and giveaways to drug companies aren't enough, it turns out that the bill also squanders taxpayer money on H.M.O.'s. . . .I hate to say 'I told you so,' but the consistent line from this blogger since last July has been that the Rx benefit was too expensive and not a sufficient benefit to those who need the help with their medications. Subsequent analysis and news have borne this out: (1) the true cost of the bill was intentionally underestimated by 25 percent and (2) the true beneficiaries of the bill are the pharmaceutical companies and the HMOs.
But whether because of ideology or because of H.M.O. campaign contributions, the people now running the country refuse to learn that lesson. As part of last year's prescription drug bill, they tried again, offering an even bigger subsidy to private plans.
And that turns out to be an important reason for the deterioration in Medicare's prospects: of the seven years lopped off the life of the trust fund, two are the result of increased subsidies mandated by last year's law, mainly in the form of higher payments to H.M.O.'s.
So what did we learn this week? Social Security is in decent shape. Medicare has problems, but ill-conceived "reform" has only made those problems worse. And let's rip up that awful prescription drug bill and start over.
When (and how) will the Administration's chicaneries catch up to Dubya? Time will tell . . . . Speaking of chicaneries, check out this report: "United States House of Representatives, Committee on Government Reform -- Minority Staff Special Investigations Division (March 16, 2004): Iraq on the Record -- The Bush Administration's Public Statements on Iraq, prepared for Rep. Henry A. Waxman."
Saturday, March 27, 2004
Seventh Circuit Court of Appeals Backs Privacy of Hospital Abortion Records
He based this ruling on their sensitivity, which he compared to that of psychotherapists’ treatment records, held privileged in Jaffee v. Redmond, 518 U.S. 1 (1996). The creation of new common law evidentiary privileges is authorized by Fed. R. Evid. 501, and Jaffee is not the only recent case in which the authority was exercised. Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 979–81 (6th Cir. 2003); In re Air Crash Near Cali, Colombia, 959 F. Supp. 1529, 1533–35 (S.D. Fla. 1997), and United States v. Lowe, 948 F. Supp. 97, 99–100 (D. Mass. 1996), all created new privileges on the authority of Jaffee. But none relates to medical records and we are reluctant to embark on a case-by-case determination of the relative sensitivity of medical records of different ailments or procedures. Most medical records are sensitive, and many are as sensitive as late-term abortion records, such as the records of AIDS patients. Proceeding down the path taken by the district court would inevitably result in either arbitrary line drawing or the creation of an Illinois-type comprehensive privilege for medical records. Northwestern Memorial Hospital concedes that there is no federal common law physician-patient privilege. It is not for us—especially in so summary a proceeding as this litigation to quash the government’s subpoena—to create one, whether all at once or by a process of slow but inevitable additions to the sole category recognized by Jaffee.The government wants abortion records on patients of doctors who are challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108–105, 117 Stat. 1201, 18 U.S.C. § 1531, presumably to impeach them when they testify as medical experts in their own case. The Court of Appeals ultimately decided the burdens of production outweighed the benefits to the government:
What is true is that the administrative hardship of compliance would be modest. But it is not the only or the main hardship. The natural sensitivity that people feel about the disclosure of their medical records—the sensitivity that lies behind HIPAA—is amplified when the records are of a procedure that Congress has now declared to be a crime. Even if all the women whose records the government seeks know what “redacted” means, they are bound to be skeptical that redaction will conceal their identity from the world.The full opinion contains the suggestion -- hinted at rather than explicitly stated -- that the government's true motivation in seeking these records from hospitals across the country is harrassment -- of physicians and patients alike. The Court of Appeals may not have created a new common-law privilege, but it did the next best thing.
This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that thelong-running controversy over the morality and legality of abortion has made combustible, the Partial-Birth Abortion Ban Act and the litigation challenging its constitutionality—and even more so the rash of suits around the country in which the Department of Justice has been seeking the hospital records of abortion patients—have generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who perform abortions. Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, persons of their acquaintance, or skillful “Googlers,” sifting the information contained in the medical records concerning each patient’s medical and sex history, will put two and two together, “out” the 45 women, and thereby expose them to threats, humiliation, and obloquy. . . .
Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.
If Northwestern Memorial Hospital cannot shield its abortion patients’ records from disclosure in judicial proceedings, moreover, the hospital will lose the confidence of its patients, and persons with sensitive medical conditions may be inclined to turn elsewhere for medical treatment. It is not as if the government were seeking medical records from every hospital and clinic that performs late-term abortions, in which event women wanting assurance against the disclosure of their records would have nowhere to turn. It is Dr. Hammond’s presence in the New York suit as plaintiff and expert that has resulted in the government’s subpoenaing Northwestern Memorial Hospital. . . .
The merits of the dispute are for determination at trial. The only issue for us is whether, given that there is a potential psychological cost to the hospital’s patients, and a potential lost in lost goodwill to the hospital itself, from the involuntary production of the medical records even as redacted, the cost is offset by the probative value of the records. The district judge presiding at the trial has said that the records are “relevant,” and no doubt they are—in the attenuated sense in which nonprivileged materials may be sought in discovery. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1); see Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350–52 (1978); CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 995–96 (7th Cir. 2002). The trial judge has not opined on the probative value of the records, which appears to be meager. . . .
The Partial-Birth Abortion Ban Act was passed, as we said, in response to the Supreme Court’s decision in the Stenberg case. Stenberg was one of a number of “first generation” partial-birth cases. . . .
Were the government sincerely interested in whether D & X abortions are ever medically indicated, one would have expected it to seek from Northwestern Memorial Hospital statistics summarizing the hospital’s experience with late-term abortions. Suppose the patients who undergo D & X abortions are identical in all material respects (age, health, number of weeks pregnant, and so on) to those who undergo procedures not forbidden by the Partial-Birth Abortion Ban Act. That would be potent evidence that the D & X procedure does not have a compelling health rationale. No such evidence has been sought, in contrast to the Planned Parenthood case, supra, at Transcript 26 (Mar. 5, 2004). A variant of the suggested approach would be to obtain a random sample of late-term abortion records from various sources and then determine, through good statistical analysis, whether the patient characteristics that lead Dr. Hammond to perform a D & X lead other physicians to perform a conventional D & E instead, and whether there are differences in the health consequences for these two groups of women. If there are no differences, the government might have a good defense of the Act. Gathering records from Hammond’s patients alone will not be useful; but if the government has other records (say, from VA hospitals) already in its files, then records of Hammond’s procedures might enable a useful comparison. The government hasn’t suggested doing anything like that either. Its motives in seeking individuals’ medical records remain thoroughly obscure.
The question whether the D & X procedure is ever medically indicated will be resolved as a matter of legislative fact not requiring the taking of trial-type testimony at all (see Hope Clinic v. Ryan, supra, 195 F.3d at 885 (dissenting opinion)), or will pivot on the clash of expert witnesses at the New York trial, or perhaps, as suggested in Stenberg, will be answered by some combination of these two approaches to determining facts. The medical records of expert witnesses are irrelevant to the first inquiry; and, so far as we can determine after having listened to the government’s arguments at length, those records will not figure significantly in the resolution of experts’ disagreements either.
The fact that quashing the subpoena comports with Illinois’ medical-records privilege is a final factor in favor of the district order’s action. As we held in Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981), comity “impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.” See also United States v. One Parcel of Property Located at 31–33 York Street, 930 F.2d 139, 141 (2d Cir. 1991) (per curiam). Patients, physicians, and hospitals in Illinois rely on Illinois’ strong policy of privacy of medical records. They cannot rely completely, for they are not entitled to count on the state privilege’s being applied in federal court. But in a case such as this in which, so far as we can determine, applying the privilege would not interfere significantly with federal proceedings, comity has required us not to apply the Illinois privilege, but to consider with special care the arguments for quashing the subpoena on the basis of relative hardship under Fed. R. Civ. P. 45(c).
Tuesday, March 23, 2004
SCOTUS heard oral arguments in the Texas HMO case today.
Sunday, March 21, 2004
One Crucial Issue in Pledge Case: What Does "Under God" Mean?
Law profs weigh in on Scalia's recusal decision.
Saturday, March 20, 2004
More on Scalia's recusal refusal.
It would have been better for us all, especially for Scalia and the Court, if he hadn't gone duck hunting with the Veep three weeks after the Court granted cert. in Cheney's case. If Scalia truly believes in his heart that this is not true, he has as tin an ear for appearances as he has been accused of having. But it did happen. And he explained it in as direct and forceful a manner as one could wish. Is there still an appearance of impropriety? Do you really believe that Scalia has left the impression that he might throw the case for Cheney?
A generation ago, conservatives mounted a witch hunt to get William O. Douglas off the Court. Liberals howled, even though Douglas probably gave his opponents more impeachment fodder to work with than Scalia ever will. Going after the scalps of justices whose positions we oppose may seem like sport, but it can be turned against justices whose positions we support in a heartbeat. And, regardless of whose ox is getting gored, the Court and the rest of us are the losers at the end of this game.
More on the "F-word"
CMS issues guidance for exceptions to specialty-hospital moratorium.
For most transactional lawyers, the guidance probably comes a little too late to do their clients any real good, since the race was on last fall to get specialty hospitals "grandfathered" before the moratorium took effect on November 18, 2003. According to the press release, "The MMA also excludes from the moratorium (or grandfathers), hospitals that were in operation before or under development as of November 18, 2003. In determining whether a hospital was under development as of that date, the law instructs CMS to consider whether architectural plans were completed, funding was received, zoning requirements were met, and necessary approvals from appropriate State agencies were received. CMS can also consider additional evidence that would indicate whether a specialty hospital was under development."
Bush Medicare Reform Bill Become a Nightmare for GOP.
But less than four months after he signed it into law on Dec. 8, Bush's Medicare-reform dream has turned into a nightmare and a potential drag on his bid for re-election.You can say that again. In fact, the NY Times did, in today's editorial: "Credibility is indeed at the heart of the matter — not only for the media, but also for an administration intent on spinning its way toward November."
-- The Bush administration deliberately didn't tell Congress that the measure could cost more than $100 billion more than advertised.
-- House Republican leaders abused House rules to push the measure to a narrow victory. There are also allegations of threats and bribes that are under investigation.
-- The Bush administration spent millions of taxpayer dollars on public service TV ads touting the Medicare reform law that look suspiciously like Bush campaign commercials. Those, too, are now under investigation.
-- Polls show that a majority of Americans don't like the Medicare reforms.
"It's something that's eating away at the credibility of the administration in an election year on a bill that he (Bush) thought was a building block for his re-election," said Stephen Hess, a political analyst for the Brookings Institution, a centrist think tank, and a former aide to President Eisenhower.
Times editorial on administration's phony TV ads.
Medicare Actuary Gives Wanted Data to Congress.
Friday, March 19, 2004
"F"-word illegal on broadcast airwaves (can cable be far behind?) . . .
WARNING: Mature Content Follows. Read at your own risk.The FCC handed down its decision Thursday in the case of the NBC stations' broadcast of the Golden Globes Awards in January 2003, at which Bono (lead singer for U2) accepted his award with the immortal words, "This is really, really, fucking brilliant. Really, really great." The Enforcement Bureau dismissed the numerous complaints filed against this broadcast because, the Bureau reasoned, "the material was not obscene or indecent, finding in particular with respect to indecency that the language used by Bono did not describe, in context, sexual or excretory organs or activities and that the utterance was fleeting and isolated." The FCC reversed, holding that fuck is always indecent or obscene:
"use of the phrase at issue is within the scope of our indecency definition because it does depict or describe sexual activities. We recognize NBC’s argument that the 'FWord' here was used 'as an intensifier.' Nevertheless, we believe that, given the core meaning of the 'F-Word,' any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition. This conclusion is consistent with the Commission’s original Pacifica decision, affirmed by the Supreme Court, in which the Commission held that the 'F-Word' does depict or describe sexual activities."The Commission also found fuck to be profane:
We also find, as an independent ground, that the use of the phrase at issue here in the context and at the time of day here constitutes “profane” language under 18 U.S.C. § 1464. The term “profanity” is commonly defined as “vulgar, irreverent, or coarse language.”34 The Seventh Circuit, in its most recent decision defining “profane” under section 1464, stated that the term is “construable as denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”35 We find that the broadcast of the phrase at issue here in the context and at the time of day qualifies as “profane” under the Seventh Circuit nuisance rationale.36 Use of the “F-Word” in the context at issue here is also clearly the kind of vulgar and coarse language that is commonly understood to fall within the definition of “profanity.”Can this definition of "profane" can survive First Amendment scrutiny?
I have a hard time arguing that Bono should be able to say fuck whenever and wherever he wants. It doesn't bother me terribly that the FCC wants to keep the broadcast airwaves free of such crudity. But the FCC's reasoning is off: the Enforcement Bureau was right to focus on the lack of any sexual context and the fleeting, inadvertent, unscripted nature of Bono's use. And where does this end? With 7-second delays on all football games and tennis matches so that the excited utterances of linemen and McEnroe wannabe's will be cleansed from our ears? For the time being, cable is exempt from this ruling, but there appears to be no reason in law why cable franchises can't be held to the same standard as broadcasters. That would seem to be the message from the Court in Denver Area Educational Telecommunications Consortium, Inc., et al. v. Federal Communications Commission et al. ("Cable television broadcasting, including access channel broadcasting, is as 'ccessible to children' as over the air broadcasting, if not more so. Cable television systems, including access channels, 'have established a uniquely pervasive presence in the lives of all Americans.' 'Patently offensive' material from these stations can 'confron[t] the citizen' in the 'privacy of the home with little or no prior warning.'")
Cleaning up the airwaves so that those who want to avoid crude speech and images is a fine goal. But it should be done in a manner that does not throw out the baby with the bathwater. The FCC's opinion in this case has no limiting principal and no handrail for the slippery slope to censorship of all artistic expression (yes, including the artistic use of fuck).
Thursday, March 18, 2004
Scalia responds to recusal motion: fuggeddaboudit!
For my Con Law students, there is an interesting passage in Scalia's memo about two previous, well-known occasions when a Justice accepted the hospitality of the President while a case that was important to the President was pending before the Court. One example was "Whizzer" White's ski vacation in Colorado with Attorney General Bobby Kennedy's family at a time when two cases were pending in which Kennedy was a named party and a third case was pending in which the AG argued the case himself. (White didn't recuse himself.) The second occasion involved Wickard v. Filburn, a seminal Commerce Clause case that we will be discussing in class on Monday:
Justice Jackson and Franklin Roosevelt
The second example pertains to a Justice who was one of the most distinguished occupants of the seat to which I was appointed, Robert Jackson. Justice Jackson took the recusal obligation particularly seriously. See, e.g., Jewell Ridge Coal Corp. v. United Mine Workers, 325 U. S. 897 (1945) (Jackson, J., concurring in denial of rehearing) (oblique criticism of Justice Black’s decision not to recuse himself from a case argued by his former law partner). Nonetheless, he saw nothing wrong with maintaining a close personal relationship, and engaging in “quite fre-quen[t]” socializing with the President whose administra-tion’s acts came before him regularly. R. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 74 (J. Barrett ed. 2003). In April 1942, the two “spent a weekend on a very delightful house party down at General Watson’s in Charlottesville, Virginia. I had been invited to ride down with the President and to ride back with him.” Id., at 106 (footnote omitted). Pending at the time, and argued the next month, was one of the most important cases concerning the scope of permissible federal action under the Commerce Clause, Wickard v. Filburn, 317 U. S. 111 (1942). Justice Jackson wrote the opinion for the Court. Roosevelt’s Secretary of Agriculture, rather than Roosevelt himself, was the named federal officer in the case, but there is no doubt that it was important to the President.
I see nothing wrong about Justice White’s and Justice Jackson’s socializing—including vacationing and accepting rides—with their friends. Nor, seemingly, did anyone else at the time. (The Denver Post, which has been critical of me, reported the White-Kennedy-McNamara skiing vacation with nothing but enthusiasm.) If friendship is basis for recusal (as it assuredly is when friends are sued personally) then activity which suggests close friendship must be avoided. But if friendship is no basis for recusal (as it is not in official-capacity suits) social contacts that do no more than evidence that friendship suggest no impropriety whatever. Of course it can be claimed (as some editorials have claimed) that “times have changed,” and what was once considered proper—even as recently as Byron White’s day—is no longer so. That may be true with regard to the earlier rare phenomenon of a Supreme Court Justice’s serving as advisor and confidant to the President—though that activity, so incompatible with the separation of powers, was not widely known when it was occurring, and can hardly be said to have been generally approved before it was properly abandoned. But the well-known and constant practice of Justices’ enjoying friendship and social intercourse with Members of Congress and officers of the Executive Branch has not been abandoned, and ought not to be.
Volunteers in Medicine Institute
Volunteers in Medicine (VIM) began in Hilton Head, South Carolina. In 1992, one out of three people who lived on Hilton Head Island had no access to health care. At the same time, a number of retired medical personnel (physicians, nurses, dentists) began expressing an interest in finding a way to continue practicing their profession on a voluntary, part-time basis to help those without access to care.There are undoubtedly legal issues out the wazoo that would need to be addressed before such a clinic could be launched, but it's certainly a win-win-win solution for the patients, the retired professionals, and their community.
So in 1993, we brought these two groups together and created the Volunteers in Medicine Clinic, a 501 (c)(3) free health clinic utilizing retired health care professionals.
The response from the medical community was extraordinary: 55 physicians, 64 nurses, and 15 dentists were recruited, all of whom were retired. They tell us this is what they always wanted to do: to be able to practice their professions in a "hassle-free" environment.
Presently in the U.S., there are 160,000 retired physicians, 350,000 nurses, and 40,000 dentists. Most are looking for a meaningful way to spend their retirement. Not only do many retired medical professionals still want to practice, they need to practice. Serving those in need is as therapeutic for the caregiver as it is for the care recipient.
Wednesday, March 17, 2004
DOD funds Swedish stem cell study.
Lots of new stuff on the political intrigue surrounding the Medicare reform bill.
Dated June 11, 2003, the document put the cost at $551.5 billion over 10 years. It appeared to confirm what Ms. Bjorklund and her bosses on the House Ways and Means Committee had long suspected: the actuary, Richard S. Foster, had concluded the legislation would be far more expensive than Congress's $400 billion estimate — and had kept quiet while lawmakers voted on the bill and President Bush signed it into law.The Wall Street Journal reported on Wednesday that the White House supported an inquiry into whether Tom Scully pressured Foster to keep mum, which Scott McClellan described as "[o]bviously . . . a serious allegation."
Ms. Bjorklund had been pressing Mr. Foster for his numbers since June. When he refused, telling her he could be fired, she said, she confronted his boss, Thomas A. Scully, then the Medicare administrator. "If Rick Foster gives that to you," Ms. Bjorklund remembered Mr. Scully telling her, "I'll fire him so fast his head will spin." Mr. Scully denies making such threats.
The panel, formally known as the Committee on Standards of Official Conduct, met behind closed doors. Afterward, it issued a statement saying it had established an investigative subcommittee to conduct "a full and complete inquiry" into the bribery claims. The accusations were made by Representative Nick Smith, Republican of Michigan, described in the Washington Post on Thursday as "a relatively obscure sixth-term House member who will retire this year, [and who] was the subject of intense lobbying on the House floor in the predawn hours of Nov. 22, as GOP leaders sought the last few votes they needed to pass a bill adding prescription drug coverage to Medicare."
Tuesday, March 16, 2004
Beyond Human (President' Council on Bioethics).
Leon Kass, the University of Chicago social theorist and bioethicist, has had the misfortune to chair the President's Council on Bioethics under a man who inspires more revulsion among academics than any president since Richard Nixon. Last week, 170 academic bioethicists sent a petition to President Bush protesting the dismissal of two members of the council, the cell biologist Elizabeth Blackburn and the ethicist William May. . . . Blackburn had told the press she was dismissed because she clashed with Kass, and ethicists have been quick to assume that the two members were dismissed for ideological reasons. Perhaps it is a sign of our strange, politically charged times that the composition of the council can generate protests and petitions from bioethicists while its actual work has been largely ignored.Elliott has a valid point. It is hard to pidgeonhole the Commission and its work. As I wrote the other day about Being Human (now out of print because of extremely high demand and copyright limitations that prevent the Council from ordering more copies), the Commission's work can be ambitious and subtle.
This is a shame. The council, which was formed in 2001 to advise the president on ethical issues surrounding medicine and biotechnology, has recently published the findings of a two-year project in a report titled Beyond Therapy: Biotechnology and the Pursuit of Happiness. As the title suggests, the report concerns the use of drugs and surgery that not only make sick people well but make well people better than well. Americans take Paxil for shyness, Provigil for sleepiness, Adderall for poor concentration, Ativan for anxiety, Humatrope for short stature, Propecia for baldness, Xenical for obesity, beta blockers for stage fright, designer steroids for poor athletic performance, and Viagra for poor sexual performance—and that's not even counting the possible future technologies on the table, from memory managers to genetic enhancement to longevity drugs. Beyond Therapy asks not whether it is right or wrong to use such technologies, but rather, what are the implications of these technologies, what will they mean for us "as individuals, as members of American society, and as human beings eager to live well in an age of biotechnology"? . . . .
The truly striking thing about Beyond Therapy is how just radically at odds it is with mainstream American culture, right and left alike. The report is skeptical of America's faith in technology, worried about America's radical individualism, alarmed at the transformation of medicine from a profession into a business, and deeply concerned about the role of the market in driving the demand for new medical technologies. Beyond Therapy may not please many bioethicists, but neither will it please the libertarian or the business-conservative wings of the Republican Party. When was the last time you heard a Republican complain, as the council does, that the pharmaceutical industry is expanding diagnostic categories as a way of selling drugs or express concern that it "can manufacture desire as readily as it can manufacture pills"? As much as it pains me to admit that anything worthwhile could come from a council appointed by the Bush administration, Beyond Therapy is a remarkable document: gracefully written, thoroughly researched, ideologically balanced, and philosophically astute. It will be a benchmark for all future work on the topic.
2 ministers charged in gay marriages
Jerome Groopman profile in NY Times
An Orwellian taint is emerging in the Bush administration's big victory last year in wringing the Medicare prescription drug subsidy from a balky Congress. The plan is being sold to the public through propagandistic ads disguised as TV news reports, and it turns out the government's top Medicare actuary was muzzled by superiors during the debate about the program's price tag.Meanwhile, the Washington Post reports that Capitol Hill Dems are asking the Bush administration not to take action against CMS' chief actuary, who broke the story that he was pressured to keep the real cost estimates on the program from legislators. They are also, predictably, seeking an investigation into the whole sorry affair. And the LA Times is reporting that "[o]n Monday, less than a week after it concluded that the administration's Medicare commercials and fliers were technically legal but contained 'notable omissions and errors,' the General Accounting Office said it would conduct another investigation to determine whether the video news releases constituted illegal 'covert propaganda.'"
Richard Foster, one of the government's foremost Medicare experts, says he was ordered not to provide requested information to Congress last fall when doubts were being raised about the drug benefit's cost. The administration denies this, but a ranking former official has confirmed Mr. Foster's story. As the bill was being considered, Mr. Foster privately cautioned that its cost could amount to as much as $600 billion, while the White House publicly stuck to the Congressional Budget Office figure of $400 billion over 10 years. The administration eventually conceded a cost of $534 billion, but only after the bill was safely signed into law.
With program in hand, the administration then attempted to rally support — and take political credit — with government-produced TV ads masquerading as news reports. Actors were hired by the Department of Health and Human Services to pose as television journalists purveying faux upbeat "news" segments about the expanded Medicare coverage. The hope is that TV stations will air them as their own. In one version, anchors are offered a script in which they promise that "reporter Karen Ryan" — an actress — will explain the details of the new drug plan.
This sleight of hand only deepens doubts about White House credibility on a complex issue. The public deserves straightforward information about the changes in Medicare, and federal agencies should not be engaging in political spin. This is no way to run a democracy nourished by information and taxpayers' money.
Monday, March 15, 2004
More on same-sex marriage.
- VOICE OF THE PEOPLE (LETTER)
Published March 8, 2004
Clarendon Hills -- Here are reasons why same-sex marriages will ruin society:
- Heterosexual marriages are valid because they produce children. That's why infertile couples and old people can't legally get married.
- Obviously gay parents will raise gay children, since straight parents only raise straight children.
- Straight marriage, such as Britney Spears' 55-hour, just-for-fun marriage, will be less meaningful.
- Heterosexual marriage has been around a long time and hasn't changed at all; for example, women are still property, blacks still can't marry whites and divorce is still illegal.
- Gay marriage should be decided by people not the courts, because majority-elected legislatures, and not courts, have historically done a swell job of protecting the rights of the minorities.
- Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That's why we have only one religion in America.
- Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.
- Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets, because a dog has legal standing to sign a marriage contract.
- Children can never succeed without a male and a female role model at home. That's why single parents are forbidden to raise children.
- Gay marriage will change the foundation of society. Heterosexual marriage has been around for a long time, and we could never adapt to new social norms because we haven't adapted to cars or longer life spans.
- Civil unions, providing most of the same benefits as marriage with a different name, are preferable, because separate-but-equal institutions are constitutional.
Saturday, March 13, 2004
Body Parts Suit Enters Murky Area of the Law
White House, GOP forced to take a new look at importing drugs from Canada.
McClellan Is Approved as CMS head.
Inquiry Sought for Charge of Threat Over Medicare Data.
Salt Lake County case raises fundamental questions, ethicists, politicians warn.
"Being Human" - humanities reader from the President's Council on Bioethics
Last month the first cloned human embryo was produced by South Korean scientists who said they would continue their research despite the queasiness of critics.As this excerpt demonstrates, Rothstein sees a direct connection between the Council's collection and the controversy swirling around the dismissal of cell biologist Elizabeth Blackburn (see her piece in an upcoming issue of the New England Journal of Medicine and Chairman Leon Kass' reply to her earlier piece in The Washington Post):
This month a biologist at Harvard announced that he had developed 17 new lines of human stem cells, using private money to bypass a government moratorium on such research.
And as if in demonstration of the roiling passions stirred up by such probings of nascent human life, a renowned biologist at the University of California at San Francisco, Elizabeth H. Blackburn, was dismissed from the President's Council on Bioethics. She then accused the administration of stacking the council with opponents of this research.
In the face of all this, what purpose can possibly be served by a 628-page publication of the bioethics council, an anthology called "Being Human," with its accounts of Peter Pan's short memory, Richard P. Feynman's approach to problem solving and a baseball batter's lightning-fast analysis of a pitch? Do "Silas Marner" and Walt Whitman and Achilles have anything to do with debates over the harvesting of microscopic human cells or the development of antidepressants?
Yes, as it turns out, they do.
One way of understanding that human and moral significance is to examine the written record of humanity's attempts to understand itself.The full review is worth reading. The long knives are out for Leon Kass these days, because he wears his agenda on his sleeve and the agenda is skeptical of "scientific progress." He, or the president's people, appear to be manipulating the Council by excluding dissenting views. But Kass has made a significant contribution to the debate by firmly situating the bioethics issues in their humane and humanistic context. Kass takes serious ideas seriously (maybe too seriously -- Rothstein: "The anthology abridges a bit too liberally at times, and too completely ignores the importance of humor, but otherwise it is a compelling portrait of what it means to be human"). His efforts to enrich the bioethics vocabulary by drawing from literature should be applauded.
. . . Mr. Kass wants [these] concerns at the center, not at the margins. The real problem with human cloning or with drugs that might one day extend life and postpone death, he argues, is that they will change fundamental aspects of being human: the way the course of life unfolds, how sufferings are endured, whether children are eagerly sought, whether humanity retains its special status. That is what this anthology implicitly argues.
The human is the terrain over which the battles are being fought. The political problem with the manufacture of human embryos, however early in their development, is not just that it upsets opponents of abortion. It is that it shifts a barrier that might become porous, weakening the sacral quality of the human. And once that takes place, the slippery slope becomes far more slippery. Where are lines to be drawn? Will human life forms ultimately be harvested for the sake of other humans?
This uneasiness may be more widely felt than it seems; the idea of reproductive human cloning is often shunned the way incest is, as a form of primal violation. Therapeutic cloning — the use of these cells in what might become new tissues or organs — is heralded for social benefits: the goal presumably is to alleviate human suffering. But since the slope always slips, the debate must always take place, balancing competing goods and competing risks.
Mr. Kass would prefer to restrict all human cloning research (though as recent news suggests, that would not be easy). But whatever path is taken, the crucial thing, Mr. Kass keeps insisting, is that those risks be clearly recognized. For some reason, this point is often missed. Ms. Blackburn, for example, may or may not be correct in her accusation that the council does not reflect a "full range" of bioethical opinion. But in a polemical article she just wrote with Janet D. Rowley, a council member (and professor of medicine at the University of Chicago), the focus is on scientific realities and "progressive technologies," as if they were sufficient in themselves. The arguments being rejected are not fully grasped. (The article, "Reason as Our Guide," is at: www.plosbiology.org [PDF; text version].)
The problem is that progressive technologies, Mr. Kass might say, could turn out to be regressive. Eliminate all suffering, postpone or weaken a sense of mortality, ease all trauma, and what is left may be something less than human. Even if the revolutionary implications for health care were beyond all doubt, it wouldn't settle the matter. The altered nature of being human would still have to be understood. Which is precisely why Nabokov, Tolstoy and Frederick Douglass are here called to testify.
Friday, March 12, 2004
Rx reform bill: Medicare expert says he was told to withhold true cost info.
"I may have been derelict in allowing my administrator, Tom Scully, to have more control over it than I should have," Thompson said. "... And maybe he micromanaged the actuary and the actuary services too much... . I can assure you that from now [on], the remaining days that I am secretary you will have as much access as you want to anybody or anything in the department. All you have to do is call me."Liz Fowler, Ph.D., chief health counsel for Democrats on the Senate Finance Committee, believes Thompson, saying of Tom Scully: "He's a liar."
It's not as if the politicos in past administrations haven't bent the truth and concealed unpleasant facts when they pitched their legislative packages to the Hill. That's what lobbyists do: they spin. But Congress enjoys certain traditions and relationships with sources of information that have to be counted upon for nonpartisan, factual testimony and reports: the Congressional Budget Office, the Government Accounting Office, the intelligence agencies, and CMS' actuarial office. These are human institutions and they sometimes fall short of the ideal of objective, truth-seeking purveyors of the truth-as-we-know-it. But when their message is deliberately distorted, when inconvenient facts are deep-sixed and more convenient fictions are inserted in their place, Congress has a right to be outraged. So do we all, because representative democracy is threatened by lawless demagoguery. In the case of this story, the result is a Medicare bill that is seriously flawed, bloated, and unaffordable. Other policy failures in other realms are heart-breakingly apparent. Mistakes happen, but it's hard to forgive them when it is so abundantly apparent that this administration disrespects and dishonors both the facts and the process.
NEJM -- Bioethics and the Political Distortion of Biomedical Science.
Wife-poisoner hired as medical-ethics lecturer.
"Normally people who get into moral philosophy do so because they care about making the world a better place or putting things right . . . But I can't see any logical contradiction between being able to think about ethical questions and being able to do rather criminal acts."I hate to be too hard on the fellow, but is it not a bit odd that a criminal conviction for Medicare fraud would almost certainly get you bounced from the bioethics elite, but not the attempted murder of your spouse?
Maternal-fetal conflict results in murder charge against mother.
Same-sex marriages, redux.
And in the Commonwealth of Massachusetts, the legislature voted three times yesterday to support a constitutional amendment to ban same-sex marriage. As reported in the Boston Globe:
The Massachusetts Legislature voted three times yesterday to ban gay marriage and establish civil unions, but maneuvers by both opponents and supporters of gay marriage left it unclear whether the constitutional amendment would ever get to the voters. The House and Senate will resume their Constitutional Convention March 29, and other proposals may be considered then.The Journal of the Senate in Joint Session for Thursday, March 11, records the action.
Meeting in a Constitutional Convention for the second time in a month, lawmakers spent nearly 10 hours debating the proposed compromise that would overturn the Supreme Judicial Court's landmark ruling establishing the right of gay couples to marry. It would also give same-sex couples rights and benefits under state law that would approximate marriage, though under a different legal designation. But the amendment cleared only three of the four votes it needed for final passage before the session recessed at about 11:40 p.m. While the margins were comfortable on all of the votes taken, many of those supporting the measure were doing so for strategic reasons rather than genuine support, in the hopes of winning a different outcome later.
According to the Globe (and as verified by my reading of the Journal, above), here's the text of the amendment:
It being the public policy of this Commonwealth to protect the unique relationship of marriage, only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts.Here are some links to the federal marriage amendment debate and the Massachusetts Supreme Judicial Court's advisory opinion (majority, dissents) and original opinion from last July (majority, dissents).
Two persons of the same sex shall have the right to form a civil union if they meet the requirements set forth by law for marriage.
Civil unions for same sex couples are established hereunder and shall provide entirely the same benefits, protections, rights, and responsibilities that are afforded to couples married under Massachusetts law. All laws applicable to marriage shall also apply to civil unions.
This Article is self-executing, but the General Court may enact laws not inconsistent with anything herein contained to carry out the purpose of this Article.
Thursday, March 11, 2004
Cadaveric donation - ethical issues.
Donated cadavers . . . the UCLA saga.
About 10,000 Americans will their bodies to science each year, choosing a path that, in the popular imagination at least, leads to the clinical dignity of the medical school or teaching hospital, where the dead help to unveil the wonders of human anatomy or the mysteries of disease.
Few donors, it is safe to say, imagine the many other ways corpses give their all for science: mangled in automobile crash tests, blown to bits by land mines or cut up with power saws to be shipped in pieces around the country or even abroad. Few see themselves ending up in a row of trunks, limbless and headless, arrayed on gurneys in the ballroom of a resort hotel for a surgical training seminar.
Nor do many people suspect that corpses are precious raw material in a little-known profit-making industry, and that they are worth far more cut up than whole.
A scandal at the cadaver laboratory at the University of California, Los Angeles, has thrown back a heavy curtain that has kept this business largely hidden from public view.
The university suspended its Willed Body Program this week, and university police arrested the program's director and a man the university accuses of trafficking in as many as 800 cadavers in a six-year body-parts-for-profit scheme.
The accused middleman, Ernest V. Nelson, who has cut up and carted away hundreds of cadavers from the U.C.L.A. medical school since 1998, said the university had been fully aware of what he was doing. He transferred the human parts, for sizable fees, to as many as 100 research institutions and private companies, including major companies like Johnson & Johnson, his lawyer said.
Meanwhile, the news over at UCLA only gets worse:
This is not the first time UCLA's cadaver program has been under investigation.(CNN)
Ten years ago, it was accused of mixing medical waste and animal remains with the ashes of human donors -- then disposing of them in a garbage dump, according to the suit.
In 1994, the school entered into a settlement agreement with the California Department of Health Services to restructure the program.
Wednesday, March 10, 2004
Texas Company Removes Web List of Malpractice Plaintiffs.
Government Accounting Office again proves its worth.
As I've written here on more than one -- hell, more than ten -- occasions, the Medicare reform bill was bloated, deeply flawed, insufficiently protective of seniors' interest, and more expensive than we can afford. It figures that even the GAO sees that we were sold a bill of goods by the Administration on this one.
AND THERE'S A LONG SLOW-MOVING LINE IN EVERY ONE OF THEM: Starbucks now has 167 outlets within 20 miles of the White House, 219 stores within 20 miles of the Space Needle in Seattle, and 242 locations within 20 miles of the Empire State Building.Sounds ominous . . . .
I'm not sure what this means, but I don't like it.
Tuesday, March 09, 2004
Recess appointments: Is the Pryor appointment constitutional?
The question whether an intrasession recess of the Senate constitutes a recess within the meaning of Article II, Section 2, Clause 3, of the Constitution has a checkered background. Attorney General Knox ruled in 1901 that an adjournment of the Senate during the Christmas holidays, lasting from December 19, 1901, to January 6, 1902, was not a recess during which the President could make recess appointments. 23 Op. Att'y. Gen. 599 (1901). That interpretation was overruled in 1921 by Attorney General Daugherty, who held that the President had the power to make appointments during a recess of the Senate lasting from August 24 to September 21, 1921. 33 Op. Att'y. Gen. 20 (1921). The opinion concluded that there was no valid distinction between a recess and an adjournment . . . . The Attorney General, however, closed with the warning that the term 'recess' had to be given a practical construction. Hence, he suggested that no one 'would for a moment contend that the Senate is not in session' in the event of an adjournment lasting only 2 days, and he did not believe that an adjournment for 5 or even 10 days constituted the recess intended by the Constitution. He admitted that by 'the very nature of things the line of demarcation cannot be accurately drawn.' He believed, nevertheless, that:the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate. Every presumption is to be indulged in favor the validity of whatever action he may take. But there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review.This opinion was cited and quoted with approval by the Comptroller General in 28 Comp. Gen. 30, 34 (1948), and reaffirmed by Acting Attorney General Walsh in 1960 in connection with an intrasession summer recess lasting from July 3, 1960, to August 15, 1960. 41 Op. Att'y Gen. 463 (1960). Presidents frequently have made recess appointments during intrasession recesses lasting for about a month.
Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?This issue isn't going away of its own accord . . . .
In this connection I think the President is necessarily vested with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate. Every presumption is to be indulged in favor of the validity of whatever action he may take. But there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review.
Sunday, March 07, 2004
Norval Morris dead at 80.
Saturday, March 06, 2004
A 'Full Range' of Bioethical Views Just Got Narrower (washingtonpost.com)
Friday, March 05, 2004
NY Times' second installment on the Blackmun papers.
Just when you thought you'd heard it all.
Drug testing in third-world countries.
Thursday, March 04, 2004
Justice Blackmun's papers released.
Most excellent: U.S. Department of Faith's proposed Federal Marriage Amendment(s)
More on the Bioethics Council firings.
Federal Marriage Amendment (FMA): Outlook Cloudy.
In Washington, the Senate held a contentious hearing on whether to amend the Constitution to restrict marriage to the union of one man and one woman. Sen. John Cornyn (R-Tex.), who presided over the hearing, argued that defending 'society's bedrock institution' should be 'a bipartisan issue.' But Democrats were having none of it.If Orrin Hatch thinks the current version of the FMA will be a loser in the Senate, the administration would do well to sit up and listen. But don't expect much action on any version of the FMA until after the election. The real question for members of Congress from both major parties is how to tee up the issue so that they have an issue to run on while avoiding a vote that will commit them to a position before November. After the election, who knows? One thing is for sure: the biggest backer of the FMA in Washington (Bush) won't need the issue for his reelection, no matter what the outcome is in the presidential race.
'This is a divisive political exercise in an election year, plain and simple,' said Sen. Russell Feingold (D-Wis.), the ranking minority member of the Judiciary subcommittee on the Constitution.
In a sign that the constitutional amendment endorsed by President Bush may be running into trouble on Capitol Hill, the Judiciary Committee's chairman, Orrin G. Hatch (R-Utah), is preparing to introduce wording that would leave the definition of marriage up to the states.
Congressional aides said that Hatch, while vowing to support the version of the amendment favored by Bush, has drafted language to appeal to conservatives concerned that Bush's version would intrude on states' responsibilities.
Bush last week announced his support for an amendment banning gay marriage, such as the text introduced by Rep. Marilyn Musgrave (R-Colo.) and Sen. Wayne Allard (R-Colo), which would define marriage as the union of man and woman. Hatch's proposal would allow each state legislature to define marriage as it chooses and to decide whether to recognize the standards of marriage allowed in other states.
Wednesday, March 03, 2004
Chairman Kass responds to charge that Bioethics Council deck is being stacked.
Tuesday, March 02, 2004
Rationing in America.
• Six Prescriptions to Ease Rationing
• Universal Care Has a Big Price: Patients Wait
• Longer Dialysis Raises Hopes, but Poses Dilemma
• Stark Choices at a Texas Hospital
• Lilly Fuels Debate Over Rationing
• An Invisible Web of Gatekeepers
• Health Care's Big Secret: Rationing Is Here