More on Scalia's recusal refusal.

Much has been made in the days following Scalia's memorandum opinion denying Sierra Club's motion to recuse about "the appearance of impropriety or bias." I agree that appearances matter, and that Supreme Court justices should strive mightily to avoid even the appearance of impropriety or bias. But if "appearance" is what a well-oiled publicity machine can get a dozen editorial-page writers to agree with, then we've created a kind of "heckler's veto," and we will all reap the whirlwind if that becomes the standard for recusal.

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"

The FCC can't have the last word, now, can it?

CMS issues guidance for exceptions to specialty-hospital moratorium.

The Centers for Medicare and Medicaid Services (CMS) announced Friday that it had issued a clarification of its "moratorium on physician investment in and referrals to certain specialty hospitals. Under the moratorium, a physician may not refer a patient to a specialty hospital in which he has an ownership or investment interest, and the hospital may not bill Medicare or any other entity for services provided as a result of a prohibited referral." The moratorium was required by last fall's Medicare reform act, "Medicare Prescription Drug, Improvement and Modernization Act of 2003" (MMA). (The moratorium provision begins on p. 230, sec. 507.)

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.

Excellent summary of the Medicare reform-law mess in today's Miami Herald. Up-to-date details on all pending investigations, and this observation:

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.

-- 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.

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."

Times editorial on administration's phony TV ads.

The Times ran an editorial today to make a point you would have thought did not to be made: that it's wrong for the government to create fake news clips -- replete with fake reporters ending their fake news stories with the fake signoff, "In Washington, I'm Karen Ryan reporting" -- so that gullible local news directors will run the tapes on the nightly news programs without realizing they are political ads masquerading as the real deal. Sure, there's a prankish air to the whole thing, but the GAO is reopening its investigation of the fraud to see if federal laws were violated by the perps in the Administration. This is less Dick Tuck-ish and a little more Orwellian than any of us should feel comfortable with.

Medicare Actuary Gives Wanted Data to Congress.

The NY Times reports today that on Friday Richard Foster turned over the data that shows the actual projected costs of the Medicare reform law signed into law last fall by Pres. Bush, months after it had been requested by Congress, after being ordered (Foster claims) not to give Congress the data before it voted. An inquiry is planned into Tom Scully's alleged role in plying Congress with incomplete (i.e., incorrect) data. Other inquiries are pending concerning the Bush Administration's phony ad campaign, which may have violated federal law, and allegations that lawmakers were bribed to vote for the reform package. Links to earlier stories are here and here.

"F"-word illegal on broadcast airwaves (can cable be far behind?) . . .

. . . or, "Farewell, Tony Soprano. It was fun while it lasted."

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).

Scalia responds to recusal motion: fuggeddaboudit!

His 21-pg. memorandum explaining why he won't recuse is here. Instant pundits can be expected to opine that any recusal suggestion (or motion, as this was styled) that takes 21 pages to be denied is a recusal suggestion that should be granted. No fan of Justice Scalia's legal positions, I have to concede that he makes a very good argument for staying in the case. Not only are many of the media's facts wrong, but many institutional considerations counsel more strongly against recusal than for it. Not that it should matter to anyone, but I'm satisfied.

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

A former student is working (pro bono, of course) to help set up a free medical clinic in a Dallas suburb. The hope is that by creating a clinic that can deal with the primary-care needs of the uninsured, they can take some of the pressure (and expense) off local emergency rooms, which are struggling to meet their EMTALA (anti-dumping) obligation to provide a appropriate medical screening for all who come to their emergency departments seeking emergency care and still have the resources needed to treat the true emergencies who come through the door. Their model is the Volunteers in Medicine Institute that sprang up on Hilton Head Island a few years back. The idea is that retired medical, nursing, and dental professionals could be organized into a free community clinic. According to their web page:

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.
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.

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.

DOD funds Swedish stem cell study.

Reuters and others reported Wednesday that the Department of Defense was awarding $240,000 in research grant money to Swedish researchers looking for a treatment for Parkinson's and similar illnesses. As long as the stem cell lines involved in the study were in existence before the Pres. Bush's August 2001 announcement of federal stem-cell funding policy, nothing would appear to be amiss in this grant. None of the reports have anything on this angle, but I'll keep monitoring the stories . . .

Lots of new stuff on the political intrigue surrounding the Medicare reform bill.

The Times is really working this story. Here's what is in Thursday's issue:

A story by Sheryl Gay Stolberg and Robert Pear on "a mysterious fax" received a House Democratic health policy aide (Cybele Bjorklund) that showed the CMS chief actuary's (Richard Foster's) real cost estimate for the 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.

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 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."

Another story by Ms. Stolberg reporting that "[t]he House ethics committee voted on Wednesday to start a formal investigation into accusations of bribery surrounding last November's vote on the Medicare prescription drug law, signaling that an initial fact-finding inquiry might have produced evidence of wrongdoing":

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."

Beyond Human (President' Council on Bioethics).

In his recent article for Slate, Carl Elliott notes:

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.

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.

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.

2 ministers charged in gay marriages

As reported in the Boston Globe and elsewehere, Ulster County (NY) DA Donald Williams has filed criminal charges against two Unitarian-Universalist ministers who have performed same-sex marriages in New Paltz. The DA's office explained that the basis of the charges was that the ministers "proclaimed their intent to perform civil marriages under the authority vested in them by New York state law, rather than performing purely religious ceremonies." This is so completely bogus. The ministers were not claiming authority they didn't have (i.e., authority to perform marriages). There was no fraud. The "illegality" of their conduct arises out of a contested interpretation of the state's constitution. And the answer is: arrest the miscreants before they bless another same-sex couple! Local clergy - of all faiths - announced their intention to continue to perform same-sex marriage ceremonies, regardless of the risk of criminal prosecution.

Jerome Groopman profile in NY Times

Jerome Groopman is a top AIDS cancer researcher and clinician, but more to the point, he's a gifted writer of clinical narratives and other essays for The New Yorker. His first two books provided the inspiration for the short-lived TV series, Gideon's Crossing. His latest book, The Anatomy of Hope, is a good read. And he's profiled in today's NY Times.

Medicare-reform shenanigans.

Good editorial in today's NY Times about both elements of the Bush Administration's fraudulent campaign last fall to sell Congress on the Medicare-reform bill:

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.

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.

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.'"

More on same-sex marriage.

Here's a good letter to the editor printed in the Chicago Tribune last week (thanks to Bill Bridge for passing this along):

VOICE OF THE PEOPLE (LETTER)
Dangerous unions

Jackie Bruns
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.

Body Parts Suit Enters Murky Area of the Law

The LA Times provides some legal and ethical analysis of the class action against UCLA in connection with the criminal charges against the managers of its willed-body program.

White House, GOP forced to take a new look at importing drugs from Canada.

The San Francisco Chronicle provides some detail on the movement within the Administration and GOP leaders on the drug-reimportation issue, which was key to getting a vote on the nomination of Mark McClellan to head CMS.

McClellan Is Approved as CMS head.

Ceci Connolly reports that Senate confirmed FDA head Mark McClellan (son of the Texas State Comptroller Carole Keeton Strayhorn and brother of White House press secretary Scott McClellan) to head up the federal Medicare/Medicaid agency. The quid pro quo for the confirmation was an understanding that HHS/CMS/FDA would work toward a loosening up of current restrictions on the reimportation of prescription drugs from countries like Canada, where many drugs sell for a fraction of the US price.

Inquiry Sought for Charge of Threat Over Medicare Data.

Robert Pear will have an article in Sunday's NY Times on the call of House Democrats for an inquiry in reports that the top actuary at the Centers for Medicare and Medicaid Services was ordered by his boss to withhold cost data on the Medicare reform bill passed last fall. Background on the story is here.

Salt Lake County case raises fundamental questions, ethicists, politicians warn.

The bioethicists are starting to weigh in on the murder prosecution for the woman who refused to consent to a C-section.

"Being Human" - humanities reader from the President's Council on Bioethics

Being Human -- published in December by the President's Council and available for free through their web site (1 copy per order) -- is described in Edward Rothstein's review in today's NY Times as possibly "the most unusual document ever produced by any government panel":

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.

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.

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):

One way of understanding that human and moral significance is to examine the written record of humanity's attempts to understand itself.
. . . 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.

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.

Rx reform bill: Medicare expert says he was told to withhold true cost info.

As reported in a copyrighted story in The Philadelphia Inquirer today, the Medicare program's top actuary -- traditionally a nonpartisan expert whose numbers are freely accessible by legislators on both sides of the aisle -- claims that he was ordered during last fall's debate not to reveal the true cost estimates for the Bush Administration's Medicare reform bill's prescription drug benefit or he would lose his job. Apart from whether Richard Foster will be a candidate for one of Kennedy Library Foundation's Profiles in Courage awards, this story -- if true -- is yet another example of the extent to which this Adminstration will distort the facts to achieve its political goals. Tom Scully, the head of the Medicare agency at the time, denies that he threatened or squelched Foster, but as the article points out, his boss, DHHS Tommy Thompson all but admitted Scully stepped over the line in Congressional testimony last month:

"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.

NEJM e-published early a Perspective piece by Elizabeth Blackburn on the President's Council on Bioethics: Bioethics and the Political Distortion of Biomedical Science. Much of it appears to be a recital of facts and arguments presented in her earlier Washington Post piece. The PDF is apparently available to the public, not just subscribers, for free. Early, wide, and full-text dissemination by the editors of the NEJM suggest the importance they place on this story.

Wife-poisoner hired as medical-ethics lecturer.

The University of Manchester has hired a medical-ethics lecturer who served 7 years for trying to poison his wife (and then tried to cover his tracks by poisoning drinks in a Safeway supermarket). Here's the quote I love (from medical ethics lecturer Piers Benn of Imperial College London) in the Reuters report on this story:

"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.

Perhaps I should reserve judgment until more facts come to light, but it is certainly a shock to see that a Salt Lake County woman has been charged with murdering her stillborn son because of her refusal to follow her doctor's recommendation and have her twins delivered by C-section. See news story and follow-up (The Salt Lake Tribune -- Charge against W. Jordan mother creates legal challenge). This is a very long way from the D.C. Court of Appeals' approach in In re AC: "What a trial court must do in a case such as this is to determine, if possible, whether the patient is capable of making an informed decision about the course of her medical treatment. If she is, and if she makes such a decision, her wishes will control in virtually all cases. If the court finds that the patient is incapable of making an informed consent (and thus incompetent), then the court must make a substituted judgment. This means that the court must ascertain as best it can what the patient would do if faced with the particular treatment question. Again, in virtually all cases the decision of the patient, albeit discerned through the mechanism of substituted judgment, will control. We do not quite foreclose the possibility that a conflicting state interest may be so compelling that the patient's wishes must yield, but we anticipate that such cases will be extremely rare and truly exceptional. This is not such a case."

Same-sex marriages, redux.

As reported this morning in, inter alia, the San Francisco Chronicle, the California Supreme Court (in response to a request by the state's attorney general) has ordered San Francisco officials to stop issuing marriage licenses to same-sex couples. See Lockyer v. City & County of San Francisco, No. S122923 (Mar. 11, 2004): order to show cause; Lewis v. Alfaro, No. S122865 (Mar. 11, 2004): order to show cause.

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.

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.

The Journal of the Senate in Joint Session for Thursday, March 11, records the action.

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.

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.

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).

Cadaveric donation - ethical issues.

The June 1, 2003, issue of the Journal of Medical Ethics was devoted to the topic of cadaveric organ, tissue, and body donations. Most of the articles are focused on organ donation/transplantation, but there are also a couple of pieces on the market for cadaveric tissue.

Donated cadavers . . . the UCLA saga.

The scandal at UCLA Medical School over the unlawful sale of body parts from willed cadavers raises numerous questions. The NY Times hits a few on Friday with these articles:

"In Science’s Name, Lucrative Trade in Body Parts," by John Broder:

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.

"The Logistics of the Cadaver Supply Business," by Andy Newman: big business, large fees, but where's the informed consent?

Meanwhile, the news over at UCLA only gets worse:

The director of the university's willed-body program and one other employee were arrested over the weekend in connection with allegedly unlawful sales (Washington Post);

The director of the program apparently lied about his degrees in philosophy and music, filed for bankruptcy three times in six years, twice before being hired by UCLA (AP/San Jose Mercury News);

A class action suit on behalf of families of donors (CNN) will undoubtedly cost the university, and not just in green-backs, but also prestige, reputation, good-will with the community, and -- fairly or not -- the trust and faith of patients who will wonder whether there's something really rotten at this school, which suffered through a scandal involving the willed-body program ten years ago:

This is not the first time UCLA's cadaver program has been under investigation.

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.

(CNN)

Texas Company Removes Web List of Malpractice Plaintiffs.

The obnoxious and seriously misguided web site that alerted docs to the names of med mal plaintiffs has been shuttered, according to an article by Ralph Blumenthal, who broke the story in the NY Times last week. Good riddance of bad garbage.

Government Accounting Office again proves its worth.

As reported in an article in Thursday's NY Times by Robert Pear, Congress' watchdog agency, the GAO, reported Wednesday that the Bush Administration's ads last year misrepresented the Medicare prescription drug benefit. Nice to seem some recognition of the intellectually corrupt campaign waged by the Bushites on this issue, though I am not at all persuaded the mendacity was different in degree or kind from previous Administrations, Democrat and Republican alike, on Social Security and Medicare issues.

Interesting side note, for what it's worth. The headline on Thursday's Washington Post story by Ceci Connolly will read, "Medicare Marketing Within Legal Bounds, GAO Says." On the Pear article, the Times went with this head: "A Watchdog Sees Flaws in Bush's Ads on Medicare." Both accurate, as far as they go . . .

HHS Secretary Tommy Thompson jumped on this story fast, issuing a statement that emphasized the positive in the GAO's report: "We are encouraged that the General Accounting Office (GAO) has affirmed our efforts to educate seniors about the new benefits being offered in Medicare, including help paying for prescription drugs. GAO confirmed that the law mandates us to educate seniors and that our ads are not political. The GAO report makes clear our responsibility to inform seniors. We feel a great responsibility to make sure seniors understand the new benefits and how they might help them."

The Biloxi Sun Herald probably got it more right than either the Times or the Post: "GAO says Medicare ads not misleading enough to be pulled."

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.

Starbucks.

This has nothing to do with health law, con law, or anything else this blawg cares about, but I was struck by this entry on Gregg Easterbrook's blog (Easterblogg):

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.

I'm not sure what this means, but I don't like it.

Sounds ominous . . . .

Recess appointments: Is the Pryor appointment constitutional?

Ted Kennedy has written to the sitting judges on the 11th Circuit and suggested they might consider this question sua sponte, before Judge Pryor sits on a panel that decides a case that is then challenged on the ground that Pryor's appointment was an unlawful exercise of the President's recess appointment power under Article II, section 2, para. 3. Here's some reading you can do on the subject:

Sen. Kennedy's letter to the court, with attached staff research memo.

The Library of Congress' Congressional Research Service (CRS) memo on all known intrasession recess appointments to Article III courts. It's happened 13 times before, but never during an intrasession recess that was nearly this short (10 days).

Lou Fisher's CRS memo from 2001 on recess appointments to Article III courts.

DOJ's Office of Legal Counsel has relatively few of its opinions on-line, but one of them -- an opinion written in 1992 -- is on this topic.

a 1948 opinion of the Comptroller General -- 28 Comp. Gen. 30 (requires WestLaw password) -- covers some of the same ground.

Another OLC opinion -- this one from 1979 -- on intrasession appointments. This one has some additional useful citations:

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.

There does not appeal to be a hard and fast rule that provides concrete guidance in all this. The older authorities seem to agree that a weekend adjournment of a couple of days is not a "recess" for purposes of II-2-3, and some of the functional factors that might decide the question are far from definitive:

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?
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.

This issue isn't going away of its own accord . . . .

Blackmun redux.

NPR has collected all of its reports (by Nina Totenberg) on the release of Harry Blackmun's papers in one place, and packaged them with previous interviews and other materials.

PBS' NewsHour ran excerpts from Harold Koh's 38-hour oral-history interviews with Harry Blackmun.

Linda Greenhouse's two articles ran in the NY Times ran on Wednesday and Thursday last week.

Norval Morris dead at 80.

Norval Morris, an author whose Brothel Boy stories have played an important part in my Law, Literature and Medicine course for many years, has died at the age of 80. The best obituary on him so far was in The New York Times, but the difficulty of finding a stable link to that article has sent me to The Seattle Times, which ran the Times' obit in full. Morris was an extraordinarily gifted writer whose explorations of criminal responsibility and justice were original and entertaining.

A 'Full Range' of Bioethical Views Just Got Narrower (washingtonpost.com)

Tomorrow's Outlook section of the Washington Post has the following article by Elizabeth Blackburn, the recently fired member of the President's Council on Bioethics. (The link will only work for 14 days.) Other material on this story can be found here, here, and here.

NY Times' second installment on the Blackmun papers.

Discussed at SCOTUSblog. I will have a complete set of links this weekend.

Just when you thought you'd heard it all.

Ralph Blumenthal's article in today's NY Times is certainly making the e-mail rounds today. It's about a website that lists medical malpractice plaintiffs and can be accessed by physicians who might decide they don't want to provide medical care to someone who has sued a doctor or hospital in the past. The website, most of which is off-limits to nonmembers is here. I have to admit, when I read this article and saw the website, I was stunned at the venality of the thing.

Drug testing in third-world countries.

In an article in today's NY Times, Gina Kolata explores the ethical issues confronting pharmaceutical manufacturers who test drugs in second- and third-world countries.

Justice Blackmun's papers released.

Fascinating pieces at SCOTUSblog on the NY Times and NPR stories based on the about-to-be-released papers of Justice Harry Blackmun. Check out:

• NPR story 1
• NPR story 2
• NY Times stories
• full scripts for all the stories Nina Totenberg will be doing about the papers for NPR

Most excellent: U.S. Department of Faith's proposed Federal Marriage Amendment(s)

This is one great site. Have to see it to believe it.

More on the Bioethics Council firings.

Ordinarily Leon Kass could expect to find some support for his actions from the journal Reason (subtitled "Free Minds, Free Markets"), but not when it comes to his op-ed piece in the Washington Post this week: "Leon Kass Learns to Spin". Does the President's Council on Bioethics have a shred of credibility after this sorry affair? I don't think so, and that's a shame.

Federal Marriage Amendment (FMA): Outlook Cloudy.

Today's Washington Post has some encouraging tidbits if you share my lack of enthusiasm for the Bush-endorsed FMA. In a story about the politics of gay marriage, Alan Cooperman and Dana Milbank report:

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.

'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.

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.

Chairman Kass responds to charge that Bioethics Council deck is being stacked.

Leon Kass wrote a strong denial of the charge in a Washington Post op-ed today: "We Don't Play Politics With Science". Among other things, Dr. Kass spins the personnel shakeup as one that is based on neutral principles, but the spin doctor may have gotten out ahead of the facts on this one. For example, he writes that Bill May wasn't pushed off the Council: he had expressed a desire to leave. But the Baltimore Sun reported today "that it wasn't his choice to leave the council. Although he and the chairman often disagreed, May said, the two had a good relationship." Reading between the lines, it sure sounds like the White House got its panties in a knot and axed two members in order to put some avowedly pro-life members on in their place.

Rationing in America.

For those few Americans who still believe that rationing is what the health care systems in Canada and the UK do, but not us, a subscription to the Wall Street Journal would be a real eye-opener. The Journal's been running stories about health-care rationing in the US for the past 6 months and has them collected on the home page of its special health care edition. The titles include:

• Six Prescriptions to Ease Rationing
12/22/03

• Universal Care Has a Big Price: Patients Wait
11/12/03

• Longer Dialysis Raises Hopes, but Poses Dilemma
10/02/03

• Stark Choices at a Texas Hospital
09/23/03

• Lilly Fuels Debate Over Rationing
09/18/03

• An Invisible Web of Gatekeepers
09/16/03

• Health Care's Big Secret: Rationing Is Here
09/12/03

Bush Ejects Two From Bioethics Council.

The President's Council on Bioethics lost two members yesterday and gained three, but in the process it lost *any* credibility it had as a source of public policy formulation. As reported in the Washington Post this morning, Bill May (my colleague here at SMU for the better part of 20 years, before his semi-retirement to Virginia last year) and Elizabeth Blackburn got their walking papers from the White House personnel office yesterday, presumably because of their outspokenness on the issue of stem-cell research, though the Post article mentions "[May's] views on . . . other topics had also run counter to those of conservative council members." You have to wonder whether his public comments lambasting the administration's Medicare prescription drug reform sealed his fate.

There are still a handful of excellent people on the Council, including Dan Foster from UT-Southwestern Medical Center here in Dallas. Like Bill May, Dan is someone whose learning and judgment I hold in the highest regard. But, frankly, a pink slip from this White House should be regarded as a badge of honor. It's all about politics all the time, isn't it, Karl?

U.S. to launch year-long study of prescription drug imports from Canada.

Ordinarily this would be good news. The FDA has been implacable in its opposition to such imports, so a study ought to provide a basis for reevaluation of their position, perhaps leading to the development of safety-related guidelines, or with more permissive rules for certain classes of drugs. But the headlines in today's papers tell a slightly different story, because the head of the study is Mark McClellan, the president's nominee to head CMS, current FDA Administrator, and the point man in the administration's very public drive to squelch imports. In the N.Y. Times, both aspects of the story appear in their headline: "U.S. to Study Importing Canada Drugs but Choice of Leader Prompts Criticism". The San Diego Union-Tribune's headline over the A.P. story wasn't nearly as balanced: "Foe of drug imports to lead study of the issue". In a presidential election year, every move by the administration is subject to scrutiny and evaluation for its political content. This decision, however, defies ready explanation. As obviously talented as Mark McClellan is, he is not the right person for this job. Putting him in charge of the study makes it look like this will be a worthless effort to shore up our existing anti-importation policy. And who gets hurt by this policy? In large numbers, retirees whose votes the administration was cultivating with their disastrous Medicare reform law.

Mary Ann Glendon on the Federal Marriage Amendment.

In today's Wall Street Journal there's an op-ed piece (requires paid subscription) by Harvard Law professor Mary Ann Glendon in support of the federal marriage amendment. It begins, "President Bush's endorsement of a constitutional amendment to protect the institution of marriage should be welcomed by all Americans who are concerned about equality and preserving democratic decision-making." She argues that same-sex marriage:

• constitutes "a bid for special preferences of the type our society gives to married couples for the very good reason that most of them are raising or have raised children";
• will be enormously expensive (in terms of retirement and health benefits);
• creates "a real problem of distributive justice";
• will impair the rights of children;
• means that "[i]n marriage-preparation and sex-education classes, children will have to be taught about homosexual sex";
• is a threat to religious freedom;
• and contributes to a "flagrant disregard shown by judges and local officials for the rights of citizens to have a say in setting the conditions under which we live, work and raise our children."

These are bare conclusions, and she has her reasons for each one. Her reasoning is worth considering, even if you find it unpersuasive.

McCain threatens to stall CMS head.

The Hill is reporting that Mark McClellan's nomination, which would move him from his current position as FDA Administrator to head of the Centers for Medicare and Medicaid Services, may be held up by Sen. John McCain unless McClellan starts answering McCain's questions about the FDA's intransigence on the issue of prescription drug imports from Canada. McCain, whose relationship with the Bush administration is strained at best, says he wouldn't necessarily put a hold on the nomination. Part of the problem may be Senatorial pique: McClellan was a no-show on two occasions when invited to the Hill to defend the FDA's anti-importation stance.

But Robert Pear is reporting in Wednesday's N.Y. Times that Sens. Byron Dorgan (D.-N.D.) and Debbie Stabenow (D.-Mich.) are considering holds of their own until they get some satisfaction from McClellan on the FDA's position.

Constitutional conundrum.

President Bush today threw his support behind a constitutional amendment that would make it clear that "marriage" can only be between one man and one woman. Here are his remarks:

Thank you. Please be seated. Good morning. Eight years ago, Congress passed, and President Clinton signed, the Defense of Marriage Act, which defined marriage for purposes of federal law as the legal union between one man and one woman as husband and wife. The act passed the House of Representatives by a vote of 342-67 and the Senate by a vote of 85-14.

Those congressional votes, and the passage of similar defense of marriage laws in 38 states, express an overwhelming consensus in our country for protecting the institution of marriage. In recent months, however, some activist judges and local officials have made an aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest court have indicated they will order the issuance of marriage licenses to applicants of the same gender in May of this year.

In San Francisco, city officials have issued thousands of marriage licenses to people of the same gender, contrary to the California Family Code. That code, which clearly defines marriage as the union of a man and a woman, was approved overwhelmingly by the voters of California. A county in New Mexico has also issued marriage licenses to applicants of the same gender. And unless action is taken, we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty.

After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity. On a matter of such importance, the voice of the people must be heard.

Activist courts have left the people with one recourse. If we're to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America.

Decisive and democratic action is needed because attempts to redefine marriage in a single state or city could have serious consequences throughout the country. The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state.

Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act by declaring that no state must accept another state's definition of marriage. My administration will vigorously defend this act of Congress. Yet there is no assurance that the Defense of Marriage Act will not itself be struck down by activist courts.

In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city.

For all these reasons, the defense of marriage requires a constitutional amendment. An amendment to the Constitution is never to be undertaken lightly. The amendment process has addressed many serious matters of national concern, and the preservation of marriage rises to this level of national importance. The union of a man and woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society.

Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all.

Today, I call upon the Congress to promptly pass and to send to the states for ratification an amendment to our Constitution defining and protecting marriage as a union of a man and woman as husband and wife.

The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage. America's a free society which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions.

Our government should respect every person and protect the institution of marriage. There is no contradiction between these responsibilities. We should also conduct this difficult debate in a matter worthy of our country, without bitterness or anger. In all that lies ahead, let us match strong convictions with kindness and good will and decency

First, has the president thrown his support behind the constitutional amendment currently pending before before both houses of Congress (S.J. Res. 26; H.J. Res. 56)? I don't believe so. It provides:

SJ 26 IS

108th CONGRESS

1st Session

S. J. RES. 26

Proposing an amendment to the Constitution of the United States relating to marriage .

IN THE SENATE OF THE UNITED STATES

November 25, 2003

Mr. ALLARD (for himself, Mr. BROWNBACK, Mr. SESSIONS, Mr. BUNNING, and Mr. INHOFE) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

--------------------------------------------------------------------------------

JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States relating to marriage .

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article--

`Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'.

As I read it, the amendment would ban same-sex marriage and civil union statutes such as Vermont's, and Bush said the amendment should "leav[e] the state legislatures free to make their own choices in defining legal arrangements other than marriage." But who knows? Maybe the president's call for an amendment will end up prohibiting civil unions, as well, whether he intends that result or not.

Second, is such an amendment a good thing or a bad thing for federalism? Is this an example of the federal government taking control of a state-law issue and shoving a single, one-size-fits-all answer down the throats of all 50 states? Or is this an example of appropriate federal protection for a social norm that has broad majority support at the state level? On the federalism point, it's been argued that there will be a federal answer sooner or later, either from the Supreme Court (interpreting the due process clause (Vth and XIVth Amendments) or the equal protection clause (XIVth Amendment) or from an amended constitution, so what's really wrong with the president jumping in there with a constitutional amendment before the issue gets to SCOTUS? But that argument gives away too much. Certainly one federalist response to the Massachusetts Supreme Judicial Court and to San Francisco's mayor would be to say that the federal constitution doesn't speak to these issues at all, so it's up to each state to figure out what its marriage rules should be. Another federalist response, if Bush cared at all about state's rights, would be a call for an amendment that put the Defense of Marriage Act (i.e., "no state is required to recognize a same-sex marriage that is legal in another state") into the constitution and leave it at that. But Bush's call is much broader than that.

Third, wouldn't Bush's amendment be a Romer-like statement of political animus against a group of citizens without parallel in our federal constitution since the repeal of Article I, sec. 2, cl. 3 by the XIVth Amendment? Put otherwise, I never thought I'd live to see a President of the United States propose a constitutional amendment that was so blatantly bigoted and discriminatory.

Do physicians have a duty to treat during epidemics?

I recently wrote (in an editorial for the Pediatric Infectious Disease Journal) that they do, but not beyond the point where heroism turns into martyrdom. There's a nice piece on the web site of the American Journal of Bioethics by Samuel Huber and Matthew Wynia that reaches about the same conclusion but develops the historical, social, and ethical themes at greater length than I did in my short piece. Here's the abstract:

The threat of bioterrorism, the emergence of the SARS epidemic, and a recent focus on professionalism among physicians, present a timely opportunity for a review of, and renewed commitment to, physician obligations to care for patients during epidemics. The professional obligation to care for contagious patients is part of a larger "duty to treat," which historically became accepted when 1) a risk of nosocomial infection was perceived, 2) an organized professional body existed to promote the duty, and 3) the public came to rely on the duty. Physicians' responses to epidemics from the Hippocratic era to the present suggests an evolving acceptance of the professional duty to treat contagious patients, reaching a long-held peak between 1847 and the1950's. There has been some professional retrenchment against this duty to treat in the last 40 years but, we argue, conditions favoring acceptance of the duty are met today. A renewed embrace of physicians' duty to treat patients during epidemics, despite conditions of personal risk, might strengthen medicine's relationship with society, improve society's capacity to prepare for threats such as bioterrorism and new epidemics, and contribute to the development of a more robust and meaningful medical professionalism.

The full piece is well worth reading . . .

Sierra Club files motion with full Court to have Scalia recused from Cheney's case.

The Sierra Club has taken the unusual, and usually futile, step of filing a motion with the full Court to get Justice Scalia recused from the Cheney case based upon his January duck-hunting trip with the Vice President, according to an Associated Press article filed by Gina Holland. It's unusual because the Supreme Court's Rule 21 -- which Sierra presumably invoked -- governs motions to the Court, while recusal motions are traditionally handled with a motion to the individual justice pursuant to Rule 22. The existence and rationale for this tradition are covered well today in Goldstein Howe's SCOTUSblog, and as recently as January 26th, CNN reported that Chief Justice Rehnquist dismissed senators' calls for recusal as "ill considered": "'It has long been settled that each justice must decide such a question for himself,' he said, although he added that justices often consult among themselves when such issues are raised."

Sierra Club hires savvy lawyers who know the odds. They have to know that the Court is not going to grant their motion and is likely not even to consider it on its merits. And despite the public comments of Scalia himself (at Amherst College on Feb 10: "It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack."), SC must be thinking that Scalia will surely bow to the rising tide of calls for him to recuse himself (unlikely), and failing that, that the full Court will "consult among themselves" -- including Justice Scalia -- on the subject. (And never let it be said that the Sierra Club's motives are pure. They desperately want Scalia out of the case because they predict his will be a vote against their likely position on the merits, which has less to do with the National Energy Policy Cheney produced than it does the process by which the policy was developed and the authority of the federal district court to compel the Vice President to comply with discovery requests concerning that process.) As much as Scalia would not want to appear to be bowing to public pressure to bow out, he could change his mind for the good of the Court, and no one would think any less of him.

Concierge medicine now supported by trade association.

As reported in today's "Daily Dose" from Modern Healthcare,

A new national organization has been formed to serve as an advocate and information clearinghouse for practitioners of concierge medicine -- a controversial model of patient care that usually requires patients to pay an annual membership fee for such perquisites as customized-care plans and round-the-clock access to doctors. Officials with the not-for-profit American Society of Concierge Physicians said doctors in about two dozen states now offer some form of concierge service but remain a small fraction of all practicing physicians. An ASCP spokeswoman said the group has 26 members, representing "10% to 20%" of doctors involved in concierge services. John Blanchard, president and co-founder of the group and founder of Premier Private Physicians in Detroit, said he expects the number of physicians involved in concierge services to grow dramatically in the next several years because the model "allows (doctors) to practice medicine the way it was intended to be practiced -- with the patient as the focus." The organization has scheduled its first annual conference for May 27 and 28 in Denver, where about 20 practitioners from across the country will discuss ethical, legal, regulatory and social issues surrounding retainer-based practices.

Membership in the ASCP requires payment of a $500 fee; the application form doesn't say whether this is an annual or one-time fee.

For the time being, CMS is taking no position as to whether retainers paid to physicians to secure preferential treatment constitute "balance billing" or "private contracts" under Medicare law. A plausible argument could be made either way, but if CMS were to take the position that the retainers were either one, that would be a serious blow to the concierge-medicine movement. "Balance billing" is limited to 109.25% of the Medicare approved amount for covered services; presumably concierge retainers are significantly in excess of that amount. "Private contracting" is permitted under the Medicare law, but it requires that the physician agree not to bill Medicare for any covered services for any Medicare beneficiaries (not just the one with whom the private contracted is entered into) for a period of three years. There are some specialties that can afford to take the hit (i.e., those with relatively few Medicare beneficiaries and those with a high percentage of services that are not covered by Medicare), but many can not. A Feb. 2004 publication (Physician's News Digest) does a nice job of reviewing the developments from the AMA (so far, the practice is deemed to be not inconsistent with their ethics opinions, which are supportive of diversity and innovation in the delivery of physicians' services, as long as certain guidelines (adopted by the Council on Ethical and Judicial Affairs at its June 2003 meeting) are adhered to).

The most sustained criticism of concierge medicine is from Troy Brennan (faculty member at Harvard's Medical School, School of Public Health, and Law School ("Luxury Primary Care -- Market Innovation or Threat to Access?" N. Eng. J. Med. 2002;346:1165-1168) (requires subscription), who identifies a number of ethical concerns with concierge medicine: (1) transitioning from a standard to a concierge practice may result in the abandonment of existing patients or in a diminished quality of care; (2) concierge medicine undermines the cross-subsidization of care for patients with lousy insurance or no health insurance at all; and (3) by allowing physicians to focus on the needs of a relatively small patient population defined by their ability to pay fairly steep retainers, the practice could exacerbate inequities in access to care that already exist. Of course, the flip side, as Brennan concedes, is that the development of concierge medicine may be the crystallizing event that leads organized medicine to examine more seriously than it has to date the myriad ways in which financial inequities limit access to care and to start addressing them in a concerted fashion.