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?