Monday, July 14, 2025

The Administration's Three-Pronged Assault on Health Care

I wish I could offer a link to an outstanding article in the current NY Review of Books entitled "The Dismantling of American Health Care," by Adam Gaffney, David U. Himmelstein, and Steffie Woolhandler.* It's the best (and most depressing) summary of the damage the Trump administration has already inflicted in three critical spheres of the country's health care matrix: 

The three fronts of this assault—on tax-funded medical coverage, public health, and medical research—have overlapping aims. The campaign to slash Medicaid—relied on by the poor since its establishment in 1965—follows a long neoliberal tradition of prescribing austerity for the working class and largesse for the rich. Trump and his allies seem to view public health, for its part, as waste that can be excised (DOGE-style) to fund tax cuts, as a source of regulatory excess that constrains profit-making, and as a locus of “woke” ideology and inconvenient facts. The assault on medical research is driven by similar concerns, with the added benefit of dominating rival centers of power like universities and the professions.

 The cuts to Medicaid and Medicare are incredibly short-sighted and cruel. The cuts to medical research are bound to lead to increases in morbidity and mortality. And the cuts to public health initiatives is particularly foolish. The authors write: 

This funding squeeze is without historical parallel. Yet it also bears stressing that public health agencies have long been underfunded and neglected. Unlike medical care—which almost everyone periodically encounters when they go to a doctor or an emergency room—the equally essential work of public health is often invisible. Americans’ life expectancy soared by more than twenty years in the first half of the twentieth century, mainly owing to public health measures like safe drinking water, rather than to improvements in medical care. In more recent decades public health measures, like those that decreased air pollution and smoking, have been responsible for about half of life expectancy gains.

For all that, public health initiatives have been historically underfunded. As a component of overall health expenditures, it's accounted for 3 percent in 2024:


 Gutting public-health infrastructure and programs puts barely a dent in the projected deficits of the One Big Beautiful Act bill,** so something else is going on here. 

Trump and his MAGA supporters fervently believe that the federal (and some state) public health authorities -- CDC: They are talking about you -- overplayed their hands during COVID: too many mandates (vaccines, masks) and not enough individual choice. This ignores at least two points: (1) public health is the antithesis of autonomy and self-determination,; it prioritizes community health over individual choice -- always has and always will, and (2) the mandates probably saved hundreds of thousands if not millions of lives. Were they onerous? Burdensome? Possibly broader than they needed to be? Yes, yes, and maybe. But taking funds away from research and public health initiatives, not to mention Medicare and Medicaid, is a gross overreaction to the 2020-24 response to COVID. And down the road we will all pay the price for this woefully benighted policy.

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* Contact me offline for a PDF of the article, which I share solely for the purpose encouraging you to subscribe to this outstanding publication.

** No longer the official name of the law signed by the president on July 4 (here).

Sunday, July 13, 2025

Just When You Thought It Couldn't Get Crazier . . . .

This post has nothing to do with health law, but it is in keeping with the subjects HealthLawBlog identifies as within its purview: Constitutional Law. 

News sources report that yesterday our dear leader has decided it may be time to revoke Rosie O'Donnell's citizenship. He posted on Truth Social: “Because of the fact that Rosie O’Donnell is not in the best interests of our Great Country, I am giving serious consideration to taking away her Citizenship,” Trump wrote in a social media post on Saturday. He added that O’Donnell, who moved to Ireland in January, should stay in Ireland “if they want her.” (AP, CNN, Fox News, NY Times)

There are a few possible explanations for what is going on here:

  • Argle-bargle: Trump can't possibly believe he or anyone else in the federal government can strip Rosie O'Donnell of her citizenship, which -- according to the XIVth Amendment -- was and is her birthright. Trump's intemperate threats to violate the Constitution come as easily to him as pounding sand and are just about as meaningful. These are the outbursts of a man-child mid-tantrum.
  • Media hog: Nobody in public life is quite as good as Trump at capturing and keeping the spotlight on himself. This is how it's done, ladies and gentlemen. For aspiring oligarchs, watch and learn.
  • Keep the base riled up: Most voters in this country don't know much about the Privileges and/or Immunities Clauses of Article IV and Amendment XIV of the Constitution or the Naturalization Act of 1906. Wild statements about denaturalizing a person who is a citizen by birth may appeal to some Trump supporters for whom a social media rant is a nearly free piece of red meat.
  • He hates her. He really hates her: The President dismisses those who either disagree with him or even accurately report on his mis- and disinformation as suffering from "Trump Derangement Syndrome". After years of picking fights with Rosie O'Donnell, Trump is exhibiting signs of O'Donnell Derangement Syndrome. There seem to be few people who can set Trump off the way Rosie does, and when that happens, the poor fellow can't think straight.
  • Remember, Trump is a fan of professional wrestling.  The match is scripted in advance, the violence is mostly fake, and the storylines are hatched by executives who are experts at hyping the crowd. The wrestlers know it's fake, and so does the audience, but the wrestlers are making good money and the audience loves the entertainment. It doesn't matter that it's only a show. So are the movies and TV shows, but we still care even if the blood and gore are fake. Give the people bread and circuses is never a bad strategy.
  • He believes his own nonsense. It doesn't seem likely, but he may truly believe that the presidency comes with kingly powers and royal prerogatives that are unbounded by statutes and the Constitution. His record since January 20 certainly suggests that "the rule of law" means nothing to him, and neither Congress nor the Supreme Court seem particularly interested in reeling in his autocratic aspirations. 
What have I missed? Is it possible that more than one explanation explains Trump's threat? All of the above?

Saturday, July 12, 2025

The Outrageous Upside-Down World of the Department of Justice

A Salt Lake City plastic surgeon -- Kirk Moore -- was indicted in 2023 for a COVID scam. I'll let the U.S. Attorney's announcement speak for itself:

According to court documents, Dr. Michael Kirk Moore Jr., 58, of Salt Lake County, Utah and his co-defendants, listed below including his neighbor, ran a scheme out of Plastic Surgery Institute of Utah Inc. to defraud the United States and the Centers for Disease Control and Prevention (CDC). The defendants allegedly destroyed at least $28,028.50 worth of government-provided COVID-19 vaccines, and distributed at least 1,937 doses’ worth of fraudulently completed vaccination record cards to others in exchange for either direct cash payments or required “donations” to a specified charitable organization, without administering a COVID-19 vaccine to the card recipient. As charged in court documents, defendants also administered saline shots to minors – at the request of their parents – so children would think they were receiving a COVID-19 vaccine.

At the time, this was considered fairly reprehensible behavior:

"By allegedly falsifying vaccine cards and administering saline shots to children instead of COVID-19 vaccines, not only did this provider endanger the health and well-being of a vulnerable population, but also undermined public trust and the integrity of federal health care programs,” said Curt L. Muller, Special Agent in Charge with the Department of Health and Human Services, Office of the Inspector General. . . . “This defendant allegedly used his medical profession to administer bogus vaccines to unsuspecting people, to include children falsifying a sense of security,” said Acting Special Agent in Charge Chris Miller, HSI Las Vegas. 

That was then; this is now.

True to form, this morning Attorney General Pam Bondi announced on X that she has directed the U.S. Attorney to move to dismiss the charges against Dr. Moore. As reported by CBS News:

"Dr. Moore gave his patients a choice when the federal government refused to do so. He did not deserve the years in prison he was facing. It ends today," Bondi wrote on X, thanking Rep. Marjorie Taylor Greene, who has a history of casting doubts on the efficacy of COVID vaccines, for raising awareness of his case. "She has been a warrior for Dr. Moore and for ending the weaponization of government," Bondi wrote. 

In a post on X on Saturday, Greene called Moore a "hero who refused to inject his patients with a government mandated unsafe vaccine!"

HHS Secretary RFK, Jr. is on-board with this:

Health Secretary Robert F. Kennedy Jr., who for decades has sown doubt about the safety of vaccines contrary to evidence and research by scientists, wrote on X in April: "Dr. Moore deserves a medal for his courage and his commitment to healing!" (Jerusalem Post, July 12).

Hero? Neither AG Bondi nor Rep. MJT suggests the factual allegations that support the federal grand jury's indictment are not true. On that basis, Dr. Moore is a Public Health Enemy. But not to an administration that considered 1,575 insurrectionists hell-bent on subverting the 2020 presidential election "heroes."

Friday, July 11, 2025

New England Journal of Medicine: How the Supreme Court Got the Tennessee Transgender Case Wrong

In an analysis piece posted on the NEJM website, law professor Scott Skinner-Thompson criticizes SCOTUS's recent opinion in the Skrmetti case (https://www.supremecourt.gov/opinions/24pdf/23-477_2cp3.pdf). In this case, the Court upheld Tennessee's ban on "the use of certain medical procedures for treating transgender minors." In particular, the law prohibits a healthcare provider from

"[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being,” or “[p]rescribing, administering, or dispensing any puberty blocker or hormone,” for the purpose of (1) “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or (2) “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity” (citations omitted). 

The author starts -- as did Chief Justice Roberts in his opinion for the majority -- with a brief recitation of the misery and suffering the Tennessee ban virtually guarantees. That, of course, is not enough of a reason to strike down a state statute, even one as cruel and misguided as Tennessee's -- not to mention the similar laws in 20 additional states.

The fate of the plaintiffs' challenge to the Tennessee statute turns, as is so often the case, on the lawyerly notion of standard of review. The phrase refers to the lens through which challenged statutes are viewed and required different levels of justification from the government when its law is challenged on Equal Protection of Due Process grounds (among others). At one end of the spectrum is "rational basis" review. The question for a reviewing court is two-fold: (1) is there any conceivable governmental interest -- whether it was considered by the enacting legislature or not -- that is furthered by the law, and (2) is the law reasonably related to that interest. Sound like a slam-dunk for the state? It almost always is. The last time I looked, only five laws have ever flunked the rational-basis test (though, like nearly everything else in Constitutional Law, that number is debated). Most laws get this extremely low level of judicial review, so when the Court chooses that standard of review, it's usually lights out for the challenger.

There are, however, a couple of higher standards of review -- "intermediate scrutiny" and "strict scrutiny." Strict scrutiny is exceedingly difficult for the government to satisfy; the late Stanford law prof Gerald Gunther described it as "strict in theory, fatal in fact." (That was surely an overstatement; historically governments have enjoyed a non-zero success rate in such cases of 30%.) 

Discrimination on the basis of sex, however, requires the government to justify its law under the more forgiving review standard of "intermediate scrutiny" (sometimes referred to as "heightened scrutiny" or "rational basis with teeth"). To succeed under this standard, the government must prove that it is pursuing an important governmental interest and that the law in question is substantially related to that important governmental interest.

So the controlling question in Skrmetti came down to this: Was the Tennessee legislature's ban on most treatments for transgender minors a distinction based upon sex. If yes, intermediate scrutiny would be triggered, making it materially more difficult for the state to get a favorable ruling The Sixth Circuit Court of Appeals said the ban did not implicate sex and upheld the statute under rational basis review. The Supreme Court agreed with the Sixth Circuit and affirmed.

The result at first (and second and third) blush is surprising. As the quotes from the law at the top of this post show, the law is riddled with references to "sex." The majority justices tied themselves into knots in their effort to avoid that characterization, concluding (in the words of Chief Justice Roberts) that the law "prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex." If the law doesn't discriminate on the basis of sex, rational basis review applies and, as usual, the law easily passes the lowest level of review.

Prof. Skinner-Thompson argues that this conclusion is based on two logical errors. First, he relies on an argument made by Justice Sotomayor in dissent:

[A]s Justice Sonia Sotomayor points out in her dissent, the excluded medical purpose is defined with reference to a person’s sex: “Key to whether a minor may receive puberty blockers or hormones is whether the treatment facilitates the ‘medical purpose’ of helping the minor live or appear ‘inconsistent with’ the minor’s sex. That is why changing a patient’s sex yields different outcomes” under the statute.

Skinner-Thompson's second argument concerns transgender discrimination:

The majority concludes that the statute does not exclude people on the basis of transgender status but instead “removes one set of diagnoses — gender dysphoria, gender identity disorder, and gender incongruence — from the range of treatable conditions.”

This interpretation is plainly wrong; the statute specifically excludes minors who “identify with” a gender inconsistent with their sex assigned at birth from receiving the relevant treatments. Even Justice Samuel Alito in his concurrence notes that “a strong argument” exists that the statute imposes a classification on the basis of transgender identity. But he, like Justices Amy Coney Barrett and Clarence Thomas, would conclude that drawing lines on the basis of transgender identity does not trigger heightened scrutiny — a question that the majority opinion avoids. 

The Court's opinion in Skrmetti offers a green light to all state legislators who are itching to deny appropriate medical treatment for transgender youth. The majority does what it can to conjure up medical doubt about these medical treatments, but the Tennessee law was opposed by a dizzying array of relevant medical associations. See Brief of Amici at p. 13 et seq. Their brief begins:

The [Tennessee law] prohibits healthcare providers from providing patients under the age of 18 with critical, medically necessary, evidence-based care for gender dysphoria. Denying such evidence-based medical care to adolescents who meet the requisite medical criteria puts them at risk of significant harm. Below, amici provide the Court with an accurate description of the relevant treatment guidelines and summarize the scientific evidence supporting the genderaffirming medical care for adolescents that is prohibited by [Tennessee]. (footnotes omitted; emphasis added)

To which six justices of the Supreme Court said "Meh."  

Wednesday, July 09, 2025

U.S. Measles Cases Reach 33-Year High

Twenty-five years after measles was eliminated in this country. there have been 1,288 cases this year (as of July 8), according to the CDC. The epicenter of this year's cases is one of the leading vaccine-skeptical states, Texas, where over 700 cases have been reported this year:

Source: CDC

65% of the cases involve individuals under 20 years of age. CDC reports 3 deaths, including 2 unvaccinated children. Overall, 92% of the patients were either unvaccinated or their vaccination status was unknown.

Vaccine skepticism has likely received a shot in the arm from the ambivalence of RFK, Jr. As reported in The NY Times:
“The most effective way to prevent the spread of measles is the M.M.R. vaccine,” he added, referring to the measles, mumps and rubella vaccine.

At the same time, Mr. Kennedy has stopped short of recommending universal vaccination in communities where the virus is not spreading.

And he has ordered a re-examination of whether the vaccine causes autism, a claim long ago debunked by research, to be conducted by a well-known vaccine skeptic.

And as of this morning:

In a statement to NPR, Health and Human Services Department spokesperson Andrew Nixon said, "CDC continues to recommend MMR vaccines as the best way to protect against measles. The decision to vaccinate is a personal one." [emphasis added]

"Herd immunity" requires at least a 95% immunization rate, which is a standard only 11 states currently achieve. Of the 40 remaining jurisdictions, 12 states have a vaccination rate below 90%. 

The lower the rate falls below 95% the greater the risk to the community of an outbreak. 

One of the contributing factors to the low rate of vaccination is permissive state laws that allow parents to opt their kids out of compulsory-vaccination for public-school enrollment. All states require some vaccinations, including the MMR (measles, mumps, and rubella) vaccine. But only 5 states limit parental exemptions to medical reasons. All 46 remaining jurisdictions add non-medical reasons for exemptions, including: religious, personal belief, or both.


Source: National Conference of State Legislatures

As expected, there is an almost-perfect correlation between these two maps: the vaccination rates >94% tend to be in the states that limit their vaccination exemptions to individual medical indications. 

The justification for non-medical exemptions is primarily -- if not entirely -- political, not legal. Although the issue has divided lower courts, one COVID-era Supreme Court opinion provides support for states that exclude religious reasons for vaccine exemptions.

Tuesday, July 08, 2025

Larry Summers: One Big Beautiful Bill Act* is Shameful

In today's NY Times, economist Larry Summers shreds the new law* not for the horrible macroeconomic effects (an exercise he has already performed**) but for the impact on people. The op-ed is well worth reading (and the link should provide free access to nonsubscribers).

A few highlights:

  • "[A] focus on macroeconomics, while valid, misses the human brutality that I now see as the most problematic aspect of the legislation. I don’t remember on any past Fourth of July being so ashamed of an action my country had just taken." By the way, the headline for this op-ed -- presumably provided by a line editor at the paper -- erroneously stated "This Law Made Me Ashamed of My Country." Big difference.
  • "This round of budget cuts in Medicaid far exceeds any other cut the United States has made in its social safety net. The approximately $1 trillion reduction, over 10 years, represents about 0.3 percent of gross domestic product. Previously, the most draconian cuts came with President Ronald Reagan’s 1981 tax law. But they were far smaller — $12 billion over 10 years and 0.03 percent of G.D.P. The Trump law will remove more than 11 million people from the rolls, compared with about three million under the Reagan cuts. Other noteworthy reductions to the social safety net, such as the Clinton-era welfare reform, were even smaller."
  • "A number of studies suggest that removing one million people from the rolls for one year could result in about 1,000 additional deaths. It follows that removing more than 11 million people for a decade would probably result in more than 100,000 deaths. Because this figure fails to take account of the degradation of service to those who remain eligible — fewer rides to the hospital, less social support — it could well be an underestimate."
  • "The cruelty of these cuts is matched only by their stupidity. Medicaid beneficiaries will lose, but so will the rest of us. The cost of care that is no longer reimbursed by Medicaid will instead be borne by hospitals and passed onto paying patients, only at higher levels, because delayed treatment is more expensive. When rural hospitals close, everyone nearby loses. Hospitals like the one where my daughters practice can no longer accept emergencies by air because those beds are occupied by patients with chronic diseases and no place to go."
Summers is not all doom-and-gloom. He ends on this cheery note: 
  • "Because of the congressional instinct for political survival, the Medicaid cuts are backloaded beyond the 2026 midterms. Cynicism may have a silver lining. As more people realize what is coming, there is time to alter these policies before grave damage is done. TACO — Trump always chickens out — is a doctrine that should apply well beyond financial markets."
There's more to the op-ed than I've set out here. Definitely worth a few minutes to read the whole thing.

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* No longer the obnoxiously titled "One Big Beautiful Act" Bill, it's now simply "An Act to provide for reconciliation pursuant to title II of H. Con. Res. 14." There's a story behind the name change, courtesy of something called the Byrd Rule. The authoritative congress.gov version is at the top of this post. The "official" reference is Pub. L. No. 119-21.

** Summers: "Last week, Robert Rubin and I warned of the many macroeconomic risks created by the domestic policy bill President Trump signed into law on Friday. I stand by our judgment that it will most likely slow growth, risk a financial crisis, exacerbate trade deficits and undermine national security by exhausting the government’s borrowing capacity. This is more than ample reason to regret its passage."

Tuesday, July 01, 2025

DOJ's Annual Health Care Fraud Takedown Nets Record Charges

On June 30, DOJ announced the results of this year's Takedown:

The Justice Department today announced the results of its 2025 National Health Care Fraud Takedown, which resulted in criminal charges against 324 defendants, including 96 doctors, nurse practitioners, pharmacists, and other licensed medical professionals, in 50 federal districts and 12 State Attorneys General’s Offices across the United States, for their alleged participation in various health care fraud schemes involving over $14.6 billion in intended loss. . . . 

I would guess that most if not all of the investigations that resulted in these charges began under President Biden. We can be thankful that the enforcement program wasn't reflexively derailed by the new leaders of DOJ. 

Click here for more details of the largest Takedown (in dollars) in history.