Ken’s Take on the World


Tomahawks and Trump

A few days ago, President Trump ordered the launch of 59 Tomahawk missiles to strike an air base in Syria.  Ostensibly, this was a response to the use of chemical weapons against the civilian populace.  Responses from critics and supporters have been mostly predictable.  Unfortunately, these responses miss crucial points.

 

The Constitutional conundrum:  Critics of the President’s actions point out that he lacks the Constitutional authority to initiate military actions without Congressional approval.  Article I, Section 8 clearly defines the role of Congress in declaring war.  Article II, Section 2, however, vests the authority of Commander-in-Chief of the Armed Forces with the President.  Congress passed the War Powers Act (WPA) to permit a President to initiate military action to immediately protect “vital national interests.”  Since its inception, every President has used this as a justification for carrying out military actions.  President Trump is no different than Presidents Carter, Reagan, H.W. Bush, Clinton, W. Bush, or Obama in claiming their actions are covered under this provision.  While it may be worthwhile to debate the legal merits of Trump’s justification, it is unlikely (particularly with a Republican Congress) that anything significant will come of this in the form of restricting legislation on a President’s authority under the WPA.  It is inconceivable the President acted against an imminent threat to crucial national interests that prevented him from seeking approval from Congress, as his predecessor did in 2013.  While Republicans in Congress rebuffed President Obama’s request for authorization of military force when President Assad used chemical weapons against his own citizens then, it is not clear how Congress would respond to a similar request made by the current President.

 

Moral maladaption:  Republican talking heads claim the President, even if lacking legal justification for launching an attack on Syrian territory, had a moral imperative to take action against the use of chemical weapons.  The President, himself, states that he was moved by the images of small children killed by the heinous use of such banned weapons.  I do not doubt that he, like the rest of us, was indeed moved by the horrific imagery of babies, children, women, and men suffering the effects of what appears to be the nerve agent, Sarin.  To suggest President Trump was not touched by these images is unfair to him.  We actually expect our President to act as a moral leader, promoting our values as a civilized nation.  A moral leader, however, would likely have sought the support of our allies in formulating a strong and clear message of condemnation on the use of chemical weapons rather than appearing to act impulsively, and alone, in carrying out an act of war that violates international norms.  There is an argument to be made that it is actually immoral for the President to order the launch of military actions that could lead to civilian casualties.  There is plenty of history of the United States, accidentally, or intentionally, launching military strikes that led to the deaths of many more women, babies, and children than the recent chemical attacks have caused.  A stronger counterargument to his supporters suggesting that Trump had a moral obligation to act would be to note that President Trump has repeatedly attempted to block all refugees from Syria entering the United States.  Perhaps, his rationale for striking the air base in Syria would ring less hollow had his ongoing efforts pertaining to the Syrian people not been construed as hostile to them and ambivalent toward the Syrian dictator.

 

Pocketbook penumbra:  To those who have suggested the President authorized use of Tomahawk missiles because he owns stock in Raytheon, the manufacturer, just stop!!  Of all the reasons one might consider for why the President selected this option, this is not going to be one of them.  While I have stated on multiple occasions that Donald Trump acts only in the interest of Donald Trump, even this claim is ridiculous to me.  Now, I will state that I am disappointed, make that disgusted, that with nearly $90 million in military weaponry launched into Syria the other day we did not even negatively impact the capabilities of the Syrian government to continue its air campaign against rebels for even a single day.  It is unclear whether we even sent an effective message deterring the regime from future use of chemical weapons in these strikes.

 

Donald’s doubletalk:  We know the current President changes his positions constantly.  We know that he lies and misleads.  In 2013, Donald Trump strongly opposed any military action in Syria.  He demanded then-President Obama seek approval from Congress prior to undertaking ANY military action in Syria even after it was confirmed the Assad regime had used chemical weapons against the Syrian people.  Why, then, would President Trump launch military strikes in Syria without prior notification of, and approval from, Congress.  President Obama actually DID seek approval from Congress to take action against Syria.  What, from a legal perspective, has changed in the interim?  Nothing.  To those who suggest these actions made him appear “Presidential,” need I remind you of comments made regarding the President’s State of the Union Address in February?  Within 36 hours, he had demonstrated that he had not made the “Presidential Pivot” that people on both sides of the political spectrum have implored him to make since gaining the nomination last July.

 

Donald’s distractions:  The Trump Administration has been an epic lesson in incompetence, confusion, unethical behavior, obfuscation, and, perhaps, worse.  From a series of gaffes involving our allies, his inability to articulate a clear strategy on any policy position, allegations of collusion with an adversarial government, basement-level poll numbers, and infighting within his inner circle of advisors, it has been suggested the President, perhaps, sought a distraction that might cast him in a more favorable light.  If this is the case, it is reprehensible and inexcusable.  A more benign reason for ordering military strikes in the manner he did is the lack of competent advice from advisors who lack the breadth and depth of knowledge and experience to more carefully coordinate these strikes to produce greater effect and reduce potential negative consequences.  This, too, is unacceptable.  This failure in competence has led to a lack of support from our allies and jeopardized the safety of US service members, particularly in the Syrian theater of operations where we are currently active.  Despite prior notification of the Russian government which minimized damage to Russian military assets at the airbase, the missile strikes have led to amped-up rhetoric from Russia including statements that Russia will no longer advise US military officials regarding military operations which may lead to inadvertent US military casualties at the hands of Russian military munitions.

 

The current President has positioned the United States on a very dangerous path with his reckless missile strikes on Syria.  The strikes appear to be merely symbolic and provided no tactical or strategic gains for the US.  They did not hamper Assad’s abilities to carry out attacks, including chemical weapons attacks, on his people.  They pushed Russia into a potentially stronger alliance with the Assad regime.  His disregard for the Constitution continues his trend of undermining our institutions of democracy.  Along with his increased use of military action, including drone strikes, that have led to the deaths of hundreds of civilians in the Middle East, he diminishes the safety of deployed US forces and the security of US citizens throughout the world.  A US Administration has traditionally been a stabilizing feature of the global community.  Under President Trump, this is no longer the case.  The President, and his Administration (with certain exceptions) have injected a level of uncertainty and instability that is not only foolish but is also extremely dangerous.



Healthcare: Commodity or Essential Right

The recently, spectacularly, failed American Healthcare Act (AHCA), once again, brought to the forefront the debate on whether healthcare access should be considered a commodity, much like an automobile, subject to the whims of a free market and made available to those who can afford it or, rather, that healthcare is an essential right of all Americans that must be guaranteed by government.  Democrats appear united behind the concept that healthcare access is crucial to society and must be available to every US citizen regardless of their economic status.  As the debate over the AHCA progressed, it became obvious that Republicans are divided over this central question.  Polling shows that overwhelming majorities of Americans believe every citizen should have access to high-quality, affordable, healthcare.  In this, it appears the GOP is at odds with the majority of Americans.

 

This week, President Trump signaled the AHCA is not actually dead and that his campaign pledge to repeal and replace the Patient Protection and Affordable Care Act, also known simply as the Affordable Care Act (ACA) or, “Obamacare” continues onward.  The problem with this position is that the President has not articulated what this would look like.  Even with Republican majorities in both chambers of Congress, and without input from Democrats, a coherent plan that would meet the President’s promises of providing affordable health insurance to even more Americans, and at lower costs than the ACA, was not presented.  Competing factions within the Republican Congress ensured that no bill put forth would garner a majority of votes or even entice moderate Democrats to join in support.  Party leadership attempted to rush the bill through the House even prior to scoring by the nonpartisan Congressional Budget Office (CBO) which ultimately decided that, although ten-year cost projections would reduce the budget, the result would be more people without health insurance than prior to enactment of the ACA.

 

After the AHCA was pulled prior to a vote, the President commented, “Who would have known that healthcare would be so complicated?”  What?!?!  Besides anyone who has ever studied this topic?  This point underlies a central problem within the Trump Administration.  There is a serious lack of competent Administration leadership that might be able to shepherd complicated proposals through a Congress that is itself lacking in effective leadership that is committed to promoting and implementing legislation that will serve to actually benefit the American people.  Basically, Republicans have demonstrated that, since at least 2010, they lack the ability, or desire, to govern in the best interests of the people.

 

The failure of the AHCA effectively leaves the Republican leadership in Congress with two choices.  They can continue in their efforts to undermine the ACA which will lead to its eventual collapse, or, they can work with Democrats to strengthen the law which is what a majority of Americans currently favor.  It should be noted that the ACA has been effective and would continue to remain viable for at least the next decade but for efforts of the Republican Party over the past seven years.  Elected Republicans, and right-wing talking heads on radio and television, have spent the last seven years misleading the American public.  This has resulted in ballot box gains, however, it has not actually helped the American people.  While the ACA did not seriously further the debate on whether healthcare was an essential right versus a commodity available to the highest bidder, it did suggest that access to insurance to provide for healthcare expenses was a necessary thing that should be promoted by government.  In contrast, the debate among Republicans since 2009 has brought into the open the role of government in healthcare access at all levels.  It should be noted that prior to 2010, there was no question that government should ensure the availability of some access to healthcare for all Americans.  In 1986, President Ronald Reagan signed the bipartisan Emergency Medical Treatment and Active Labor Act (EMTALA) into law.  Likewise, COBRA was enacted under the Reagan Administration which provided individuals with a continuity of health insurance coverage.

 

The most recent debate between Republicans over the AHCA has placed a focus on whether government has any role in determining access to health insurance or healthcare itself.  This debate also served to highlight a disconnect between elected Republicans in Congress and their constituents.  Had the AHCA passed, the harms would have been felt significantly more among rural voters who overwhelmingly voted Republican over the past several election cycles.  The more extreme members of the GOP who make-up the Libertarian-wing (aka the Freedom Caucus formerly known as the Tea Party caucus) believe healthcare should be left to the winds of a completely free market.  Health insurers should be let alone to serve only the customers they desire and to charge whatever rates the free market might bear.  Let the buyer beware lest they procure a policy only to find out it lacks the protections necessary when they are needed, or worse, they are dis-enrolled when they become ill or seriously injured.  Somewhat more moderate Republicans seek to provide competition among insurers by removing obstacles to the sale of health insurance policies across state lines.  Theoretically, this appears to be reasonable, however, there are a significant number of realities that make this an unattractive proposal.  The biggest one is that insurance companies establish provider networks where they operate.  Healthcare providers are not likely to want to participate in a network that is out-of-state, perhaps in a different time zone, when they need to have their billing issues resolved or if they need to seek authorization for patient care.  This is inefficient and costly.  Another major issue affecting consumers is relating to the need to, perhaps, sue an insurance company for denial of a claim.  Consumers would be subjected to the laws of a particular state which might be much more favorable to the insurance company in a classic David and Goliath tale.

 

I doubt there is anyone who disagrees with the idea that society functions better when people are healthier.  Employee productivity is increased, chronic healthcare expenditures are decreased, and individual satisfaction is improved.  The United States outspends every other developed nation on healthcare but has significantly lower health outcomes on almost every measure.  Civilized societies throughout the world recognize this.  In promoting the well-being of their respective nations, leaders have already debated whether healthcare should be construed as a basic right to be assured by government.  It has been unanimously affirmed by economically- advanced societies that some level of healthcare must be provided for each person as by doing so it benefits every person.  The United States continues to be an outlier.  If, by independent measures, it was demonstrated that our status as an outlier made the health of our nation’s citizens better it would make perfect sense to continue our current system of healthcare delivery.  Unfortunately, this is not the case on ANY measure of national health.  Republicans continue to refuse to acknowledge this and continue to permit healthcare to consume ever-larger amounts of spending and an ever-growing share of our gross domestic product (GDP).

 

It is obvious the Republican Party is incapable, or unwilling to, of addressing this.  We, the people, must continue to demand healthcare access for all.  GOP-led efforts to undo the most significant healthcare reform in a generation is harmful to patients, providers, and insurers.  These efforts undermine the healthcare infrastructure and will lead to a significant collapse that would cause all of us to suffer.  If we recognize that a healthy citizenry makes for a more robust society, we must not maintain the idea of healthcare as a commodity to be enjoyed only by those who can afford it.  Essential healthcare must be available for all people.  This must be ensured by government.



On Guns and Sense

In the wake of the latest mass shooting event in San Bernardino that killed 14 and wounded 21, including at least two police officers, my Twitter and Facebook feeds lit up with calls to enact more vigorous gun control measures.  This is a recurring theme in this country.  There is a mass shooting that captures the attention of the public, there are calls for more gun control, the calls go, mostly, unheeded, and the nation moves on until the next day or next week when the next mass shooting event rivets the nation’s focus on gun violence.

 

In the aftermath of the latest shooting, which baffled investigators for nearly four days before determining this was an act of terrorism, albeit, one of the more convoluted episodes I can recall, Congress finally attempted to take action.  Senator Dianne Feinstein introduced a measure that would close a loophole that currently permits suspected terrorists to legally purchase firearms in the United States.  This measure failed on a mostly party-line vote with all but one Republican voting against the measure and all but one Democrat voting in favor of the measure.  Following the vote, there was condemnation from gun-rights proponents that the measure would have stripped away due process rights from those seeking to purchase handguns.  This was the first time I had heard this suggestion made, and from my Twitter feed, this line of conversation picked up a bit of steam.

 

First off, let me say that Twitter is a difficult environment to try and have a coherent and reasonable debate with anyone on any issue, let alone one as complex and controversial as access to firearms.  Nonetheless, I engaged in conversations with several folks who supported the view that barring people on a consolidated FBI watch-list from legally procuring firearms was a violation of due process rights established under the 5th Amendment of the US Constitution.  I admit that I was baffled at this suggestion as this is the text of the amendment:

 

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” – See more at: http://constitution.findlaw.com/amendment5.html#sthash.VZehsmyM.dpuf

 

The gist of the Twitter conversation is that, as the right to, “bear arms” is an enumerated right within the Bill of Rights, being, “…deprived of life, liberty, or property without due process of law…,” means that blocking specific individuals from obtaining a firearm infringes upon their Constitutional rights.  The focus of this discussion, left unspoken by proponents of this position, is on the word, “liberty” suggesting that not being able to buy a gun deprives an individual of her or his liberty.  Now, I am not besmirching any of the participants of this line of thought as I am certain they are each patriotic Americans.  However, their line of reasoning is flawed.  Being limited to 140 characters, I was unable to effectively explain the errors associated with this line of thought.  It is clear, however, that their focus on depriving a person of, “due process” BEFORE denying a fundamental right is un-Constitutional.  This is an incorrect interpretation of due process as related to the purchase of firearms by an individual who has had their name placed on a watch-list of suspected terrorists.

 

It has been publicly recognized that this list compiled by the Department of Justice is flawed and there are names on the list that, most likely, should not appear on the list.  Other names, like at least one of the suspected shooters in San Bernardino, should probably be on this list.  Some elected US officials, children and infants, and deceased individuals names appear on this list as has been reported by numerous media outlets.  See: http://www.wired.com/2007/09/700000-name-ter/  http://dailycaller.com/2015/12/04/san-bernardino-shooting-suspect-not-on-terrorist-watch-list/

 

Critics of this list complain that due to flaws, the list should not be a bar to legally obtaining a firearm.  They state that the list is arbitrary and that people are not informed their name is on a watch-list until they attempt to engage in activity (such as attempting to board a commercial airliner) that would cause the person’s name to appear.  Prior to September 11, 2001, several federal agencies maintained lists of individuals who were subjected to heightened scrutiny.  After the horrible terrorist attacks of that day, President George W Bush signed a Presidential Directive requiring the FBI to consolidate and maintain these listings.  There are currently nearly a million names in this database.  If your name is on the list, you can expect to be subjected to enhanced scrutiny in certain circumstances (boarding a commercial aircraft, being pulled over for speeding, attempting to purchase a firearm, etc.).  A number of reasons exist why a person’s name may appear on this list.  One reason, is that you are, in fact, suspected of being a terrorist.  Often, an individual’s name will appear because it is either identical to, or similar enough to, a name used by a known or suspected terrorist.  Senator Ted Kennedy’s name appeared on the watch-list because a suspected terrorist was using, “Edward Kennedy” as an alias.  Representative John Lewis had his name on the list for the same reason as did at least one Roman Catholic nun.  The list is hardly arbitrary as you have to be, “nominated” by someone in the intelligence community in order to be evaluated, promoted, and finally, placed on the list.  Additional information on being on this list, and how to remove your name on the list may be found here:  http://people.howstuffworks.com/government-watch-list.htm

 

In any case, the folks I attempted to carry on a debate with via Twitter, are incorrect that denying or, most likely deferring, the purchase of a firearm violates their due process rights under the US Constitution.

 

What, exactly, is, “due process?”

 

As the name implies, it is a method, or process, that is owed to another person.  This may be established within the framework of organizational policies or, as used in this discussion, a requirement that is established within the framework of our nation’s founding document, the US Constitution.  Due process provides a means for an individual, or group of individuals to seek relief, or a redress, of a grievance.  The process involves those steps put into place for that appeal.  Under the US Constitution, due process, especially as recognized under the 5th and 14th Amendments is recognized as two separate entities.  There is procedural due process and there is substantive due process.  Procedural due process requires that a process for redress of potential harms be provided for the person who has suffered.  Substantive due process requires that this process be sufficient to resolve the issue at hand.

 

The folks in the Twitter universe invoking the 5th Amendment due process provisions as a reason to not block actual or suspected terrorists from obtaining firearms are actually missing the entire point about both, procedural and substantive, due process.  A number of these folks have suggested that by not providing due process BEFORE denying a fundamental right, a person’s fundamental rights have been violated.  This is not the case.  My counterargument to this flawed assertion is that while procedural due process may exist prior to a “harm” being inflicted, substantive due process begins AFTER a fundamental right has been infringed upon.  Furthermore, none of the recognized, “enumerated,” or, “fundamental” rights is absolute.

 

An example of procedural due process would be if I intended to stage a protest rally in a certain location.  It should be noted that not all speech is protected under the 1st Amendment.  For example, a person cannot yell, “Fire!” in a crowded theatre because he or she feels like causing a commotion.  Politically protected speech, though, is recognized as an essential, or fundamental, right.  However, even politically-motivated speech is subject to certain restrictions.  Namely, the time and the place of such protest may be limited for specific reasons, including safety.  If I failed to obtain the appropriate permits prior to engaging in this protest, I could be arrested and denied permission to exercise what has been recognized as a fundamental right—the right to engage in politically-protected speech.

 

Additionally, a person must be legally capable of exercising the particular right.  Would any logical person suggest that a five year-old child has the legal capacity to purchase a firearm with their allowance money?  This is why those persons who have been adjudicated as being mentally-unfit are banned from possessing firearms.  The same goes with certain convicted felons even after they have served their prison sentences.  Aren’t we denying these individuals their fundamental rights?  Yes.  Again, no right established in the US Constitution is considered absolute!

 

Now, to the point recent Twitter postings allude to:  Denying a person the legal opportunity to purchase a firearm violates their 5th Amendment due process rights.  Never mind that this right generally refers to an individual who has been formally accused of committing a serious crime.

 

If I was to enter a gun store, or any other environment that sells firearms, and attempt to purchase a firearm, I may be required to provide certain information which is supposed to be checked against a database that includes names that are on the consolidated terrorist watch-list.  Suppose my name flags as being on this list.  I will assume I would be informed this is the reason that I was being denied the opportunity to purchase said firearm(s) as this has not happened to me before.  If nothing else, I would be informed that there is a process that I may follow to address and correct any information that I believe is erroneous and what that process is for doing so.  After all, the gun seller wants to make a sale and would like me to return to purchase the gun(s) I wanted, right?

 

If the folks I was conversing with through Twitter were able to catch on to what I was pointing out, they might have a viable claim that the placement of their name on a list of suspected terrorists violated their 5th and 14th Amendment due process rights.  I would suggest that an individual might want the ability to be notified PRIOR to their name being placed on the list.  There is no process for this, however.  This is where the folks I was having a dialogue with should have their grievance.  There is a process for having your name removed from this list.

 

The process for purchasing a firearm, as I stated before, requires that a purchaser be eligible to exercise this action.  One additional point regarding the folks I was conversing with is that I am surprised that folks who claim to be so patriotic are so sympathetic to the needs and desires of actual terrorists.  Perhaps, that was a bit snarky, however, that is what the Senate vote was designed to address—the ability of terrorists who WANT to legally purchase firearms.  Why would patriotic Americans want to, even inadvertently, facilitate the efforts of a terrorist?

 



The Supreme Court Ruling on Hobby Lobby, et al., and Implications for PrEP

This past Monday’s decision by the US Supreme Court regarding Hobby Lobby, et al., has been widely misinterpreted as both a sweeping victory for Christian businesses and a slap at the Obama Administration and the Affordable Care Act, as well as, a total annihilation of reproductive rights and reproductive healthcare in the United States.  Both of these extremes are flawed and completely miss the mark.

 

While I do believe the opinion, penned by Associate Justice Samuel Alito, is flawed, it was not a broad sweeping opinion and it attempted to narrowly relate to the facts presented in the case.  The ruling’s major flaws include its attempt to insert the Supreme Court into the role of determining, what is a legitimate religious liberty and, recognizing a corporate entity as having the legitimacy of personhood.  Other flaws associated with the ruling are more covert and may not be recognized for a period of time.

 

While many have been quick to claim the Justices voting in favor of the Hobby Lobby decision acted out of a political, or ideological, motivation, they miss the fact that the government failed to provide enough proof for the Court to rule otherwise.  The attorneys representing Hobby Lobby, Conestoga, etc., brought a case that expressed their clients’ opposition to four specific types of contraceptives that, to one extent or another, prevent the implantation of a fertilized egg into the wall of the uterus.  These drugs, referred to by Hobby Lobby, et al., attorneys as abortifacients, prevent the fertilized egg from implanting into the uterine wall.   They did not present evidence opposing forms of contraception that prevented the fertilization of the egg claiming only that their clients believed, as a matter of religious teaching that life begins at fertilization.  The government failed to counter these claims with satisfactory evidence otherwise including any rationale that may exist, demonstrating improved safety, cost-efficiency, or beneficence for women.   

 

The Court did not address, nor did the Hobby Lobby group claim, more invasive forms of contraception, including vasectomy or tubal ligation, violated their sincerely held religious beliefs.  Nor did the Court address forms of contraception that prevent the fertilization of an egg.  This is what narrows this particular ruling.  One flaw in narrowing the ruling is that the Court failed to recognize medical and scientific consensus that life can only be recognized as beginning when the egg implants into the wall of the uterus and begins to divide.  The Court relied on the Religious Freedom and Restoration Act (RFRA) to determine that the owner of a business does not sever their religious faith simply by entering into a contractual structure as in incorporating a business. 

 

It should be noted that an egg that does not implant in the uterine wall, but rather begins to divide anywhere else is referred to as ectopic and may often require the surgical excision of a dividing embryo.  This condition, an ectopic pregnancy, and the consequent surgical intervention associated with terminating this pregnancy would appear to also violate the religious beliefs of the Hobby Lobby participants in this case.  This demonstrates the convoluted rational the Court used in reaching its 5 to 4 decision.

 

While the ruling did note that future court cases seeking religious exemptions for vaccinations and blood transfusions may result in a different opinion than what was rendered here, it is important for those of us concerned about reproductive health, that there are implications for pre-exposure prophylaxis (PrEP) to be discussed.

 

Because the Court did not address other forms of contraception, including vasectomy and tubal ligation, they also did not, more broadly address other forms of reproductive healthcare including vaccination against the Human Papiloma Virus (HPV), post-exposure prophylaxis (PEP), or PrEP.  It is reasonable to anticipate that another corporate entity may elect to seek exemptions from requirements for other forms of reproductive healthcare.  For example, an employer may suggest that sex outside of traditional marriage between a man and a woman violates their sincerely held religious beliefs, therefore requiring them to provide insurance coverage for PrEP or PEP is a Constitutional violation of their religious liberties.  Notwithstanding the fact that there are male/female married couples that currently use PrEP as a part of their reproductive health, the Court’s failure to recognize legitimate scientific and medical consensus in the Hobby Lobby case should give us a reason to be concerned about how the current Court might rule when faced with such a case.

 

The Court erred in attempting to determine what constitutes a legitimate, and sincerely held, religious belief deserving of Constitutional protection which is troubling.  The US Constitution ensures that each of us, as individuals has a right to believe as we so choose.  The Supreme Court has now made itself the arbiter of what religious beliefs can be imposed by employers on employees which should be a concern for each of us.



Defunding “Obamacare?!”

Among a string of poor public policy positions advocated by members of the Republican Party, the recent decision to attach an amendment to a Continuing Resolution (CR) that would fund the government but withdraw all funding for various components of the Affordable Care Act (ACA) is among the dumbest.  There are several reasons for arriving at this conclusion.  The most dangerous is that it will potentially lead to a partial shutdown of government which affects every single American.

 

First, the amendment that was attached to the Continuing Resolution striking funding for the ACA is purely a political gimmick designed to appease a small, extremely regressive, faction of the Republican base.  It is highly unlikely this amendment will be attached to a Senate resolution for a floor vote.  If it is offered as an amendment, it will likely not be approved.  This means the Bill goes into a Conference Committee.  This will put the House of Representatives into a showdown with the Senate and pushes us closer to a deadline which will result in the stoppage of essential government services.  Think Social Security checks, Military paychecks, the Centers for Disease Control and Prevention (CDC) which is gearing up for flu season!

 

For the sake of argument, let us say that the amendment does become a part of the final Bill that is presented to the President.  It is extremely likely the President the President would return the Bill to Congress with a bright VETO stamp across the top.  Republicans do not have the votes to overturn a veto and would be left holding the bag on a smelly collection of dog excrement when the deadline for government operational funding passes.  American citizens do not like when there is no one answering the telephone at the Social Security Office!  I personally would be quite pissed off if I found that our Military service members were not getting paid!!

 

Let’s enter the world of a Republican wet dream for a moment.  The amendment that defunds the ACA is passed through both chambers of Congress and the President accidentally signs this wrong-headed piece of legislative bovine-manure.  The Republican Party collectively orgasms all over themselves and claims they have achieved a monumental victory!  Orthopedic surgeons in the Beltway will be extremely happy for with all of the folks patting themselves on the back there are sure to be a few Rotator Cuff tears to deal with.

 

What happens next?

 

This amendment does not repeal the Affordable Care Act.  It does not block the implementation of any of the rules and regulations promulgated by the ACA.  It only does one thing.  It eliminates funding for any of the provisions of the Affordable Care Act.  So, what?

 

Hospitals have begun to implement Electronic Health Records (EHR’s) using money provided under the ACA.  Study after study has demonstrated that EHR’s reduce medical errors and have the potential to reduce costs.  The ACA requires that hospitals and physicians adopt the EHR as part of a goal to improve patient safety.  Doctors and hospitals are now left solely on the hook for the expense of this technology.  Failure to comply will result in a loss of eligibility for Medicare and Medicaid reimbursement.  The hospital I work at receives more than 40% of its reimbursement from these two programs.  Fortunately, we have already completed adoption of an EHR system.  I do not know about all of our affiliate physician groups and individual practice physicians, however.  If our surgeons cannot operate on Medicare patients, a huge piece of our revenue stream disappears.  Hospitals generally operate on extremely thin operating margins (gross revenue over expenses), typically 1 to 3%.  Many hospitals have a much higher percentage of Medicare and/or Medicaid patients and would be impacted even more by a loss of access to these revenue streams.  Loss of Medicare funding will mean the demise of a number of independent hospitals and loss of funding for EHR technology will mean that most independent practice physicians and many physician groups will cease to exist.

 

States are required to begin enrolling individuals in Health Insurance Exchanges (HIE’s) beginning on October 1.  Funding to set up these exchanges was allocated through provisions of the Affordable Care Act.  In a number of Republican-led states, the legislature and executive refused to participate in an HIE.  In these states, the Federal government is operating the exchange.  The money to administer these programs is eliminated as a result of the defunding amendment.  Insurance companies are participating in these exchanges anticipating a new influx of customers seeking health insurance.  From a business standpoint, health insurance companies know that having a broad base of customers allows them to spread risk among a broad base of payers.  This means that insurance rates can be maintained at an affordable rate for all consumers.  In a number of states that have already started operating these exchanges, insurance rates, including premiums and deductibles have been lower than suggested by certain folks on the right of the political spectrum.  Many of the folks enrolling are doing so in anticipation of subsidies available as part of the ACA.  Those subsidies are gone as a result of the amendment.

 

Under the Affordable Care Act, which, by the way, remains the law, insurance companies cannot deny coverage or charge exaggerated rates to individuals based on health status.  With the defunding amendment, Health Insurance Exchanges have been hobbled and not able to reach out to customers.  Since they will not be able to obtain, potentially 30 million additional customers, insurance companies will be forced to drastically raise the cost of premiums for all of their customers.  Except for the wealthiest among us, individuals will find they are unable to afford monthly premiums and will be forced to drop their coverage.  Businesses will find it increasingly difficult to afford the cost of health insurance for their employees and will begin to drop insurance coverage.  Instead of stable, affordable premiums, I would anticipate much more expensive premiums.  The result, millions more uninsured Americans!

 

This wrong-headed amendment to defund the Affordable Care Act would be dangerous for patient safety, health insurance companies, hospitals, doctors, taxpayers, and businesses.  The proponents of this legislation have failed to grasp the tremendous negative consequences of such a thing happening.

 

I am absolutely certain the Republican leadership in Congress is fully aware that they are playing political gimmickry with this amendment to defund the Affordable Care Act.  They know, completely, that this amendment will not make it to the President’s desk.  Speaker-of-the-House John Boehner knows this as does every member of the US Senate.  The absolute worst possible outcome for Speaker Boehner, and every Republican member of Congress would be for this to land on the President’s desk as part of a Continuing Resolution and actually be approved by President Obama.  The resulting collapse of the Affordable Care Act will lead to a collapse of the health insurance industry, hospitals and physician practices, and culminate in the establishment of a universal, single-payer healthcare system in the United States.  Speaker Boehner would be credited, single-handedly, with bringing Socialized medicine to the United States of America!



Hear ye, hear ye

Within the next two weeks the United States Supreme Court will issue its ruling on the Affordable Care Act (ACA). There is much speculation as to what the Court has decided (yes, the case has already been decided) when it issues its ruling on the Constitutional questions raised by the Affordable Care Act. Some think it will be completely struck down while others (you have to love dreamers) believe it will be completely upheld. Most of us who have actually read the Act, believe it is quite likely that the Justices have decided that parts of it fail to pass Constitutional muster and must be struck down while leaving large portions of the ACA intact. In any event, the ruling of the nine men and women who comprise the highest court in our land, will have far reaching effects on the lives of everyday Americans. Not only will their decision(s) affect average folks, the impact will be felt by healthcare providers, insurance companies, pharmaceutical companies, and medical device manufacturers.

For the President, the ideal situation would be for the Justices to decide that the entire Act is Constitutional, thus bouncing any attempts to modify or repeal all, or part, of it to Congress which is unlikely to muster the support for doing so. I, personally, think this scenario is unlikely for two reasons. First, I can see a lack of Constitutional backing for the individual mandate that is a key provision of the Act. Second, given the current make-up of the Court, I do not see a majority of its respected members agreeing that this provision is Constitutional. Certain members of the Court are not especially keen on having the Government require individuals to do certain things. In many ways, this is a very good thing.

For Congressional Republicans, an ideal scenario would be for the Court to strike down the entire Act. This would allow them to put forth legislation addressing the provisions of the Act that a majority of Americans have repeatedly identified are quite acceptable to them. This would allow Republicans, with very broad bipartisan support, claim they support meaningful healthcare reform. I also do not believe this scenario is very likely because precedent shows that the Court has supported the right of Congress to enact laws that address interstate commerce. The issue the Court must grapple with here is that there is no specific severability clause that would permit the Justices to only strike portions of the Act. Not that there is no precedent for allowing this, it is, however, interesting that no such clause was included in the final legislation that was sent to the President in March of 2010.

Personally, I am inclined to believe that the Justices have decided that the Act can survive with the removal of the individual mandate. It is not up to the Court to decide that the hardship forced on corporations resulting from a loss of revenue as this is not a question posed by this case. So, what happens if the individual mandate is struck down and the remainder of the Act survives intact?

Medical insurances companies will, initially, face the greatest financial burden. They will (continue to) be forced to provide coverage to anyone regardless of medical condition. Further, they will (still) not be able to drop people when they become ill. These are both extremely important issues for individuals who, inevitably, will require healthcare services at some point in their lives. Pharmaceutical companies are also on the hook for reducing the cost of medications to some groups and this would not change with or without the individual mandate. Hospitals and other healthcare providers will be hurt with the loss of an individual mandate as Medicare and Medicaid reimbursement rates are slated to be kept under a tight rein under provisions of the Act. With otherwise healthy folks showing up in Emergency Rooms, reduced reimbursement and increased volume will make it a challenge to continue to provide high-quality care.

The impact on businesses and individual purchasers of health insurance will become very noticeable without an individual mandate. These folks can expect their premiums for health insurance to rise significantly especially for those who have pre-existing conditions or who work in inherently dangerous fields. Without the guarantee of a large, relatively low-risk, pool of people purchasing insurance, companies that sell insurance will be forced to raise rates on everyone who does buy in order to maintain a healthy profit-margin and in light of the fact that individuals cannot be denied insurance. Businesses and corporations will likely decide that it may be cheaper to self-insure thus drawing even more customers out of the health insurance marketplace. As this begins to happen health insurance providers will begin to go into bankruptcy leaving millions with insurance policies that are worthless. This is the worst case scenario, however, it is what will ultimately lead to something I have recommended for more than a decade. As insurers fail, healthcare providers become sucked in by a staggering loss of revenue, and they, too become bankrupt. The Government, belatedly, recognizing that healthcare is not a commodity that cannot be satisfied by the traditional laws of supply and demand, will have to take action and a form of Universal Healthcare will be implemented.

Could this be avoided? Not likely. America has the greatest medical technology in the world. The healthcare industry in the United States makes up about 1/6 of our Gross Domestic Product (GDP). The costs associated with the development of new drugs and medical devices that are designed to improve the quantity, or quality, of life are, well, quite costly. Healthcare in this country is, literally and figuratively, too big to fail. Unfortunately, finding a way to pay for this is an issue. For far too long America and its leaders have acted as though healthcare, and access to it, is a commodity that is to be financed based on free-market principles alone with very limited regulation. American citizens have become so insulated from the actual costs associated with healthcare through employer-provided insurance benefits. We have come to expect the very best in medical innovation even though it is not always necessary. We demand the newest drugs. We know we will receive tests performed on the latest diagnostic machines and that a robotic system can be used for almost every surgical procedure. This is neither cost-effective nor wise. However, when the Affordable Care Act was introduced, critics called attempts to look at the feasibility or appropriateness of care, people balked and critics derided this, quite incorrectly, as the implementation of, “death panels.”

Instead of implementing a Universal Healthcare system, or at least the framework of such a system, when they had the opportunity, Congress attempted to circumvent the inevitable. Healthcare has become a major burden on businesses and individuals. A uniquely American model based on the healthcare systems of every other industrialized, and a significant number of developing, nations should have been seriously discussed and implemented. We had the chance to do this in 2009 (and a number of times in the century prior) and we failed. We were provided legislation that, despite its length, failed to ensure that every citizen had insurance. The final bill failed to provide sufficient cost-containment mechanisms. The expansion portions of the bill were challenged by Attorneys’ General, allegedly, acting in the best interests of their citizens. And this is why we eagerly, and anxiously, await the opinion of nine folks in black robes.

One other prediction. Whatever the ruling(s) that are presented, they will be nearly unanimous. The Court will have considered its own integrity and, realizing the view of the Court in recent years as more in lockstep with their Presidential nominator’s political affiliations, will make sure that whatever conclusion has been reached is supported by a near-unanimous Court.



The Naked Gun
May 25, 2012, 2:30 pm
Filed under: Health and Medicine, Legal | Tags: , , , , ,

Imagine a situation such as this.  A young guy, in his late-20’s, decides to surprise his live-in girlfriend of three years with an engagement ring for her Birthday.  He gets home early from work and intends on hiding the ring inside her nightstand drawer.  He opens the drawer and is surprised to see that there is a handgun sitting atop a nice concealed holster.  It is a Glock, 9 mm semi-automatic.  The guy is stunned.  Actually, he is shocked.  How could this woman he has lived with for three years have kept this hidden from him?

He immediately goes to the local police department and says that he wants this woman arrested for failing to disclose that she had concealed a deadly weapon from him for all this time.  The Desk Sergeant asks him if the safety was on and the man replies, “Yes.  There was even a trigger lock in place.”  The cop asks him what the problem is then.  He says, “It’s a deadly weapon!  She could shoot me at anytime if she wanted.”  The police officer inquires if the girlfriend has ever expressed an intent to harm him in the past and the man says that she has not.  The cop, being patient, asks the man if the gun was loaded and the man says he figured that it was.  “Why else have a gun?”  The man proceeds to tell the police officer about a the brother of a friend of his cousin who was shot to death during a robbery in San Francisco in the late-‘80’s.  He says that he is petrified of guns because of that and that it should be against the law not to tell someone that you are intimate with that you own a deadly weapon.  The police officer suggests the man go home and talk with his girlfriend about his concerns and that there is nothing the police can do because it is not against the law to own a firearm in most cases.

Pretty silly, right?

Now, picture this.  A young guy, in his late-20’s, decides to surprise his live-in girlfriend of three years with an engagement ring for her Birthday.  He gets home early from work and intends on hiding the ring inside her nightstand drawer.  He opens the drawer and sees some prescription medications inside the drawer.  Curious, he Google’s the names of a couple of the drugs and is shocked to learn they are prescribed to treat HIV.

He immediately goes to the local police department and says that he wants this woman arrested for failing to disclose that she had concealed a deadly weapon from him for all this time.  Now, here is where things change.  In many states, a law enforcement officer does not have to investigate as to whether there was an intent to harm or even an ability to harm.  The fact that the woman may not have disclosed her status to her partner is sufficient to initiate a warrant for her arrest.  The arrest will likely lead to either a plea or a conviction, and, depending on the Judge, imprisonment is a likely possibility.  This is the nature of disclosure laws drafted in the late 1980’s in most states.  This is also a very real possibility for anyone living with HIV or AIDS.  Without regard to any effort a person with HIV may make to prevent transmission, the law looks simply at whether or not there was disclosure to an intimate partner.  This attitude is outdated and inconsistent with regulations governing any other communicable illness.

Today, however, the law fails to keep up with current realities associated with infection with the Human Immunodeficiency Virus (HIV).  First, contemporary therapies are able to significantly reduce levels of HIV within blood and other body fluids to a point where the risk of infecting others approaches very remote.  Second, the use of condoms is well documented to be the most effective (following abstinence) method of prevention of any sexually-transmitted infection (STI).  Third, laws requiring disclosure were introduced prior to the availability of effective anti-retroviral medication regimens and while scientific knowledge regarding modes of transmission was still being determined.

Some Prosecutor’s have invoked terrorism statutes against people with HIV.  Some have invoked assault with a deadly weapon laws and attempted murder laws.  Some have used rape provisions even though no force or coercion was involved.  Terrorism, assault with a deadly weapon, rape and attempted murder each has a common link.  They are each associated with an intent to harm.  Failure to disclose one’s HIV status does not even imply intent to harm.  A case may, perhaps, be made regarding a breach of contract.  Failure to disclose does not necessarily violate an implied or informed consent between two parties.

In recent cases, a Michigan man was charged under terrorism statutes because he bit his neighbor during an altercation and a 23-year-old Ohio man was put on trial for failing to disclose that he had contracted HIV from a blood transfusion in his early teens before having protected sex with his 20 year-old girlfriend.  In the Michigan case, Prosecutors dropped the terrorism charges and the judge in the Ohio case refused to follow the Prosecutors recommendations for jail time and making the young man register as a sex offender.

In a majority of these cases, civil remedies are available to address these cases.  I believe it is now time to review, and revise, laws relating to disclosure of HIV status.  I do not believe that the law should be used to criminalize a person’s status.  If that is the intent of the law, then why is it not applicable to other STI’s including syphilis, gonorrhea or herpes?  Should it not apply to individuals with Hepatitis B or C as it is well known the HBV or HCV can lead to liver cancer or liver failure?  If the answer is no, then there is an inconsistency in the law and that inconsistency is based on bias which cannot be tolerated in the law.  If the answer is yes, then there is an inconsistency in our values regarding personal responsibility and that those who claim that individuals must have the ability to make reasoned decisions are failing to be consistent in this regard as a result of prejudice.

In any case, without proof of intent to cause harm, criminal statutes are inappropriate for the regulation of consensual behaviors between mentally competent adults.  Civil statutes exist for this purpose and should be thus used.  This topic is a controversial one, however, critical thought suggests this is a topic worth examining and discussing.