Essentially Contested America

Should we consider the health care reform act, which President Obama signed into law today to be a civil rights act? There is good reason to do so. Though the Act is far from perfect, it does represent a commitment by Congress to expand access to a fundamental human right. Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” Martin Luther King called access to medical care a civil right. Though our Constitution does not include a right to health care (or any other substantive economic rights), it does give Congress the authority to create such rights. And, in a speech after the passage of the Act, House Speaker Nancy Pelosi invoked the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness.” Before the vote, Pelosi and other congressional leaders marched through protesters hurling racial epithets, an act that self-consciously harkened back to civil rights demonstrations of the past. The Act falls within the tradition of Congress enforcing the rights of social citizenship – economic rights that are essential preconditions to one’s ability to exercise other civil and political rights.

Strangely, opponents of the Act also think the Health Care Reform Act is a civil rights act, and argue that this is a reason to oppose it. In February, Rush Limbaugh called the Act a “civil rights act,” a “reparations” bill which people should oppose. Last week, Newt Gingrich compared the Act to the 1964 Civil Rights Act, arguing that Obama’s support of the Health Care Reform Act would wreck the Demcratic party like Lyndon Johnson’s support of the 1964 Act did.

How ironic! I have always thought of the passage of the 1964 Civil Rights Act as one of the great moments in American history. I also thought that as a society we had achieved a consensus that civil rights were a good thing. What could Gingrich possibly mean by his critique? Johnson was re-elected by a landslide in the fall of 1964, and he relied on that mandate to push through the Medicare Act and the 1965 Voting Rights Act the next year. When Gingrich says the 1964 Act wrecked the Democratic party, could he be referring to the fact that after passage of the Civil Rights Act, many of the pro-segregationist southern Democrats became Republican, eventually turning the South from a solid Democratic block to the solid Republican block we have today?

If so, why would Gingrich want to remind us of the southern Republican party’s roots in segregationism and racism? It’s hard not to see a connection between Limbaugh and Gingrich’s remarks and the racial slurs hurled by protestors against the African American and Latino members of Congress on Sunday. Like Congress’ tradition of expanding human rights in acts like the 1964 Civil Rights Act, the Social Security Act and the Medicare Act, there is an equally strong tradition of using race baiting as a tactic in American politics. One of the vestiges of segregation in our society is the racial disparity that still exists in our health care system. If this act helps to remedy this disparity, then it truly is a civil rights act.

This week, I have ahad a taste of what it might be like not to have health insurance for members of my family. Fortunately, my experience did not involve uninsured children, but instead an uninsured dog. My puppy, Owen, just turned 6 months old and he does not have health insurance. Being a risk adverse person, I investigated the insurance options when we got Owen. However, I soon learned that health insurance for dogs is prohibitvely expensive. Even simple catastrophic coverage cost at least $30-40 per month (For those who don’t know, “catastrophic insurance” is insurance that covers only “catastrophically” expensive health care for illness or injury), and regular health insurance coverage for dogs is simply not cost effective.

Last week, Owen had surgery. Fortunately, the surgery was routine (OK, we took away his ability to father puppies) and surgery for dogs is a lot less expensive than surgery for humans. Still, I paid several hundred dollars for his care. I had to make some tough decisions, such as whether to pay extra for the less invasive, less painful laser surgery, and how much to spend on pain medication (not to mention our worries about breaking or chipping the cone on his head – an added expense). Furthermore, when Owen’s stitches started bleding on Saturday afternoon, we had to decide whether to take him to the Emergency Animal Care and pay another large sum, or wait until Monday to have him re-checked by his regular doctor for free. Since Owen is, after all, a non-human animal, and since he continued to romp happily (as much as he could with a cone on his head), we decided to wait until Monday.

This experience got me thinking. I have a friend who is pregnant who only has catastrophic health insurance. I have another friend who has children and no health insurance. I imagine how hard it must be to make health care decisions for them. Wait until the cheaper doctor on Monday or go to the ER? Purchase the highest quality, least pain method of surgery or opt for the cheaper and plan to do lots of handholding? These decisions can’t be easy – indeed, they must be agonizing for the millions of uninsured parents with uninsured children in this country. I am lucky. Only my dog is uninsured. But I sure do feel for the many others are not so lucky.

Will President Obama go the way of George H.W. Bush? There’s speculation that the president will not keep his promise to include a public option in the health care reform bill. That’s more than unfortunate. Moreover, word has it that the anti-rescission provision might fail as well.  Fully aware that the president is rescission by difficulties few presidents ever faced, failure to keep his promise can be devastating to his presidency. Surely any hope of being a transformative president seems already gone. The forces that have killed universal health care for the past half century will simply be emboldened by another victory. It would be better for the president to serve one term fighting for principle than hanging on to two terms by playing politics. Yet, he might not even succeed at that. The House progressive caucus has threatened not to support such legislation. Failure all around. A bad bill is not better than no bill at all. The president must resist a bill that includes a so-called “triggering” mechanism for a public option if the insurance companies do not control costs is a bad bill. There’s no way to guarantee compliance. It’s simply cosmetic. I sympathize with the president. But consensus-seeking is an inappropriate strategy when one hasn’t a partner in the consensus-seeking enterprise. Standing for principle, committing oneself to health care reform that is fair, cost-efficient, and universal, even if it fails, is better than a self-congratulatory bill that is unfair, doesn’t contain costs, even it covers more Americans.  How valuable is a bill that doesn’t preclude rescission of coverage? What kind of coverage is that? Please Mr. President take the high road. Keep your promise to principle. Even if we lose at least we will at least know what we’re fighting for?

As I watched Ted Kennedy’s funeral and listened to the coverage of his life and death last week, I heard the phrase “the end of an era” so many times, it convinced me that people should stop using the term “the end of an era.” What does an “era” mean? According to the Oxford English dictionary, an “era” is defined as “a system of chronology reckoning from a noteworthy event.” Perhaps the commentators mean their observation to refer to the era beginning with the birth of Joseph Kennedy Sr.’s children. True, a genertion of Kennedy brothers had passed away now, ending the era of that generation of the Kennedy brothers. True, many of us (including myself, born the year that Ted Kennedy entered the Senate) cannot remember a time when Ted Kennedy was not in the Senate. True, thousands of liberals in America can no longer count on Senator Ted Kennedy to always speak for us in the Senate, and never apologize for being liberal. But what is the point of calling this an “era?’ What more do we learn from this phraseology?

Perhaps those who called Ted Kennedy’s death “the end of an era” intend announce the end of liberalism in America that was most prevalent in the 1960s but lingered until Ted Kennedy’s death. If that is the case, then I must, most emphatically, object, not only to the phrasing but to the sentiment behind the phrase. There remains a strong progressive tradition in the Democratic party, shared by many members of he general public who dop not affiliate themselves with that party. The progressive tradition was most recently re-affirmed by the election of President Obama (with Ted Kennedy’s crucial support) and his numerous Demcratic colleagues in Congress. It is reaffirmed in the polls that show that despite months of the healthcare industry spending over a million dollars a day to fight health care reform, the American public still strongly supports it, and still demands a change to our health care system. So, let’s put an end to this talk about “the end of an era” and concentrate on what we need now. There’s never an end of the era of need for the poor and middle class folks in this country who demand health care reform.

As the health care reform debate shifts into high gear, we need to make sure that the reformers have the right priorities.  The fundamental issue before us is what is the purpose of our health care system – the health of the American people or the health of the private insurance companies?  Frankly, these two priorities are increasingly at odds with each other.  As Atul Gawande’s celebrated New Yorker piece reminds us, patients are best served, at the lowest cost, in locations where the medical culture is focused on the health of the patient instead of making a profit.  Because private insurance companies are for profit entities, they are institutionally poorly suited to best serve the needs of the patients.  This does not mean that all private health insurance companies are bad, of course, but it does explain why they are fighting the “public option” tooth and nail in this health care reform debate.  Their argument against the public option is that it is unfair to make private insurance companies compete with government provided health care.  Why?   Because the government can provide services at a lower cost so the competition would be unfair.  Are you kidding me?  All this argument proves is that the public option might hurt the private health insurance industry.

Currently the profits of private insurance companies account for 30% of the cost of our health care.  It’s time to face the fundamental question – how much does preserving the outrageous profits of the private health insurance companies matter?  Is it worth sacrificing access to health care at an affordable cost?  That’s really what’s at stake in the “public option” debate, and the answer to the question is obvious.  Interestingly, polls show that almost 80% of the American public supports a public option.  While Americans may distrust the government, they apparently distrust health insurance companies even more.  For the health of the nation, we need the public option.

After years of woeful neglect, health care reform is now thankfully at the top of the national agenda.  What’s missing from President Obama’s and Congress’ consideration?  A single payer health care system.  This omission is a huge mistake, since it is likely that only a single payer health care system  can solve our nation’s health care woes.

There are two reasons why our nation needs health care reform now: The first is the cost, and the second is the lack of accessibility of our current system.   Shockingly, 50 million people in our country currently lack health insurance.  At the same time, those of us fortunate enough to have health insurance face mounting costs and cuts in coverage by our employers.  Meanwhile, the cost of medical care in the United States is twice the average in other industrialized nations.  Patients aren’t the only one bearing these costs, either.  From small business owners to General Motors, American employers are being crippled by their responsibilities to pay health insurance premiums.

Why consider single payer?  Because it is the only system that would solve both flaws in our current health care system by expanding access and lowering costs.  Expanding the risk pool of a single insurance carrier to include every person in the country would reduce the costs of health care to all of us because it would include miliions of people who are now healthy but simply unable to afford insurance.  Moreover, if the insurer is the government rather than the private insurance industry, we can save as much as a third of our current health care costs, which currently go to funding medical insurance companies.  Finally, if everyone is insured, everybody will have access to cheaper preventive health care instead of waiting until they are so sick they have to go to the emergency room and rely on expensive life saving measures.

The single payer solution is so clear, no wonder 59% of physicians and 62% of Americans support it!  Yet despite this support, a single payer plan is not currently being considered by President Obama, nor is Representative Conyers’ bill, H.R. 676, receiving much consideration in Congress.  Why not?  The health care insurance industry is a powerful lobby, it’s far too easy for opponents of single payer to demonize it as “socialized medicine” and therefore Un-American, and many are concerned about raising taxes to fund a single payer system.  While it is not possible to just make the insurance lobby go away, the other two objections are easily answered.

Let’s make this clear – single payer is not socialized medicine.  Under a single payer system, the government would not run the health care system, it would just fund the system that already exists, absent the private insurance companies.  Our health care system would be similar to that of every other industrialized nation.  (As an aside, those other nations are home to industries that compete with our American companies without being saddled with health care costs.)

Nor would a single payer system cost more than the existing system.  As I have explained, it would cost at least 30% less than the existing system.  The difference would be that our health care would be funded by tax dollars instead of employer subsidies, employee co-payments and deductibles, and payments by uninsured patients.  Yes, our taxes would go up, but taxes would be our only health care costs.  American businesses would be able to compete on the international market, and small business owners would be able to stay in business.  The millions of dollars saved by employers could be invested in raising salaries of existing employees and hiring new employees.

Imagine being able to go to the doctor whenever you need one without worrying about paying the full bill, a co-payment or a deductable.  Imagine not fearing bankruptcy if God forbid you or a member of your family suffers from a catastrophic illness or injury.  Imagine not seeing your real wages go down every year as your meager raise is eaten up by higher medical expenses.  Imagine an economy in which small businesses flourish and larger corporations can compete in the international market.  All of this is possible, and it is within out reach – if our elected representatives will consider the single payer solution.

The Food and Drug Administration has been taking it on the chin in the courts – and for good reason.  For years, it has been apparent that the FDA process for approving and evaluating drugs is flawed.  Far too many drugs have been approved only to be recalled due to deadly side effects that were uncovered only after the drug’s approval.  This problem has gotten so bad that recently, one of my doctors told me that he waits a year after a new drug is approved by the FDA before he prescribes it.  The doctor said that he waits a year in order to ensure that the drug is safe and find out more about the drug’s side effects.  Removal of approved drugs from the market is surely embarassing to FDA officials, but it is profoundly disturbing to those of us who are potential users of those drugs.   It is also evidence that things are not working right at the FDA.  Maybe the drug industry has too much power, and maybe the agency has become too politicized.

In two recent high profile cases, courts have confirmed that the FDA’s decision making process is problematic.  In Wyeth v. Levine, the United States Supreme Court upheld a state court judgment against a leading drug company and in favor of a patient who lost her arm because her doctor used the risky “IV push” method to administer a drug to her.  Wyeth sold the medication with a label did not warn against using the IV push method.  The SCOTUS rejected the company’s argument that the claim was preempted by the FDA’s approval of its label.  Under the Bush administration, the FDA had changed its regulation to provide that “FDA approval preempts contrary or conflicting state law.”  However, the Court held that the new regulation had no authority because it was contrary to the legislative history of the Food and Drug Act, because the FDA had finalized the regulation without giving states or interested parties any opportunity to comment on the change, and because the FDA had failed to provide any reasoned explanation for overturning its long standing policy of non-preemption.  Why would the FDA unilaterally act to preempt state tort claims against drug companies?  It doesn’t take a rocket scientist to figure out that the Bush administration FDA wanted to protect drug companies from lawsuits regardless of the cost to public health.

This week, a New York federal district judge overturned an FDA regulation prohibiting girls under the age of 18 from purchasing the controversial “morning after” pill without a prescription.  The court held that the FDA’s rule was entirely unsupported by scientific evidence, and that there was strong evidence that the rule was based not on science, but on politics.  Why would the Bush administration FDA want to raise the age limit for girls to buy this form of contraception without a prescription?  The “morning after” pill is a hot button issue in the conservative “right to life” movement, a key constituency of President Bush.

We deserve a government that works, and a Food and Drug Administration that bases its policies on protecting our health, not protecting drug companies or religious principles.  Thank goodness our courts are doing what they can to make the FDA accountable for its shoddy performance.

The NY Times reports that Mr. Bush vetoed a relatively bipartisan bill to expand health insurance coverage for the nation’s children. Another fine example of Mr. Bush’s “compassionate conservatism.” The Times states that “On Capitol Hill, Democrats and their Republican allies seemed in no mood to compromise; they vowed to overturn the veto before entertaining any deal. ‘We’ve got to do what we can to try to override,’ said Senator Charles E. Grassley of Iowa, the senior Republican on the Finance Committee, who was the bill’s lead Republican sponsor and had personally appealed to the president not to veto the measure. There are enough votes to override the veto in the Senate, but not in the House. In a somewhat unusual move, House Democrats on Wednesday forced a vote to postpone the override attempt until Oct. 18, giving themselves two weeks to round up the roughly 20 votes they need. Mr. Grassley said he intended to personally appeal to House members who could provide the necessary votes to circumvent the president, and Democrats said they had already picked up a few. . . . Even Senator Hatch had difficulty understanding the President’s veto. If we’re truly compassionate, it seems to me, we’d want to endorse this program,’ Mr. Hatch said. ‘I don’t think the president is somebody who doesn’t want these kids to be covered. I think he’s been given some pretty bad advice by some who, though sincere, and sincerely wrong.’” No more hugs for Mr. Bush. Freep.com reports “Democrats unleashed a stream of harsh rhetoric, as they geared up for a battle to both improve their chances of winning a veto override and score political points against Republicans who oppose the expansion. Senate Majority Leader Harry Reid, D-Nev., decried Bush’s action as a ‘heartless veto.’ Never has it been clearer how detached President Bush is from the priorities of the American people,’ Reid said in a statement. By vetoing a bipartisan bill to renew the successful Children’s Health Insurance Program, President Bush is denying health care to millions of low-income kids in America.’”

This must be what Mr. Bush thinks “compassionate conservatism” means. If the Democrats can’t (or won’t) override this veto, let’s start thinking about a new third-party.

ECA is very pleased to introduce Stephen L. Wasby (B.A., Antioch College; M.A., Ph.D., University of Oregon). Professor Wasby is professor emeritus of political science at the University at Albany-SUNY, Visiting Scholar at the University of Massachusetts- Dartmouth, and Editor-in-Chief of Justice System Journal. Prior to coming to Albany, Professor Wasby taught at Southern Illinois University-Carbondale from 1966 through 1978. His research and writing focuses on the federal courts, particularly the U.S. Court of Appeals for the Ninth Circuit. Among his many other publications, Professor Wasby has published Race Relations Litigation in an Age of Complexity (1995). His post “On the Health of Supreme Court Justices” follows immediately.

I wish the Chief Justice the best of health. I have some friends with seizure conditions, and I know that it does make their life more difficult –in part because they cannot drive and in part because others know so little that they don’t know what to do and are afraid a seizure will happen “in front of their very eyes.”

I believe that the question of “what we know”–and “what we should have known” (about the earlier seizure)–are crucial matters which deserve more airing. The treatment in the NYTimes piece, which includes information about our non-knowledge with respect to the “health issues” of Rehnquist, Marshall, and Blackmun, is a start–but only a start.

While we may learn more about a president’s health than we may need to know (and one could sympathize with Ike’s distress when his intestinal activity was reported), and while it may be crucial to learn about the president because that is one person, certainly it is important to know about the health of the members of the Supreme Court when a body like that has only nine members, and certainly, the amount of attention given to confirming a Supreme Court justice (and particularly, but not only, the CJ) would suggest the position is sufficiently important that we ought to be provided far more health information. When the numbers in a policy-making body are larger than nine, e.g., the Senate or House, we learn little, although we were told a fair amount about the condition of an ailing senator, at least initially, but likely was only because the Democratic majority in the Senate was so narrow.

I venture the thought that the media have not been sufficient assertive/aggressive in seeking out medical information about justices, but it will not be easy to break down the “culture” that allows media deference when justices evade media questions about health and that allows the justices to brush off the few questions that are asked.

One reason that I believe it important to know “past history” is that it allows us to evaluate present incidents, about which we learn willy-nilly. For example, a seizure today, if it is the sole event in the person’s history, means one thing, but put together with another 14 years ago, it might mean another. And certainly if we did not know of the earlier one and there is a subsequent one two years down the road, our evaluation would differ from having “three points” on which to base our judgments. In this regard, I would add that the NYTimes article has a reference to only one of many episodes in which Thurgood Marshall was ill. Had someone written an article “putting them all together,” questions might have been raised about whether he should continue to serve rather than, as he asserted, stay until he went out feet first. Here, I suspect that many did not push the matter out of fear of being seen as criticizing a liberal icon and thus giving “aid and comfort” to the enemy. Yet we should not have to risk a recurrence of the sad state of affairs when Justice Douglas, after his stroke, would not leave the Court.

I hasten to add that I acknowledge the difficulty of making judgments as to when a certain condition is a disqualifier (for appointment) or the basis for calls that someone step down from office. However, that difficulty notwithstanding, I believe that we need to know more not less, so that we can make our own judgments, however “intelligent” or not they might be.