Philip Alcabes discusses myths of health, disease and risk.

Disaster for Health Care Reform: Supreme Court Upholds Affordable Care Act

Chief Justice Roberts is the diabolical genius of free-market jurisprudence.  Reformers have been sucker-punched.  Any possibility of creating an equitable system for delivering medical care has been postponed for at least a generation.

Yet, liberals are rejoicing at yesterday’s Supreme Court ruling, in which Roberts left the three arch-conservatives (Thomas-Scalia-Alito) and Kennedy, to join the usually liberal wing (Brier-Ginsberg-Kagan-Sotomayor) in order to uphold the Affordable Care Act, the health care financing law of 2010.  Paul Krugman says that the “real winners are ordinary Americans — people like you.”

The celebration is misguided.  After yesterday’s ruling, there will be no national health system.  There will be no single-payer nonprofit insurance plan.  For the foreseeable future, diagnosis, treatment, and corporate profit will remain the inseparable triumvirate of medicine.  Hardly party-worthy.

Sure, there are a few things worth cheering about.  As Josh Levs set forth yesterday in a particularly cogent summary of the new law, insurers won’t be able to deny coverage to people with pre-existing conditions (young people immediately, everyone from 2014 on).   Until you’re 26, you will be able to get health insurance from your parents’ insurance policy, especially useful now with unemployment so high among the young.  Some of the “doughnut hole” in Medicare prescription drug reimbursements will be closed.

But Roberts’s brilliance was revealed in his handling of the vexatious issue of the mandate — the requirement that each non-indigent American purchase health insurance coverage or be fined by the Feds.  The fine would begin at $285 per family or 1% of income, whichever is higher, in 2014 but climb to over $2000 or 2.5% by 2016.  Instead of looking at the mandate and accompanying fine for noncompliance as a regulation, Roberts picked up on the fall-back argument adduced by Solicitor General Donald Verrilli, Jr. — he asserted that it’s really a tax.  And, of course, Congress can levy taxes.

At Slate, Tom Scocca explains that Roberts used his majority opinion on this case to undercut Congress’s right to regulate commercial activity.  For Scocca,

the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause… Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

According to CDC’s summary of the latest Congressional Budget Office estimates, about 30 million uninsured Americans will gain coverage under the ACA in the next few years, leaving about 27 million without health insurance at all.  That’s an estimate, because undocumented immigrants are untouched by the ACA.  Ditto prisoners, who supposedly get health care in their institutions but, by all indications, often don’t.

And, the Roberts ruling opens the door to questions about the Federal government’s capacity to get the states to expand Medicaid coverage.  Roberts and four justices say it’s limited.  Four others say it doesn’t exist at all.  As Charles Ornstein explains at ProPublica, that means that some states might simply refuse to expand Medicaid, which would undercut one of the aims of the ACA.

The final score is hardly a victory for “ordinary” Americans.

  • We now have a Congress that may tell Americans to give money directly to private corporations, or pay a penalty to the Federal government.  At least when Congress can claim that paying private corporations is in our best interest.  In other words, now private insurance companies may collect taxes.
  • We will have insurance companies that may continue to profit from Americans’ suffering.
  • We will still have nearly 10% of the population without access even to primary care.
  • We now have questions about whether Congress may impel the states to indemnify the sick poor.  (Hardly cause for optimism, especially at a time when states are seeking ways to lighten budgetary obligations, for instance by reducing pension benefits for public employees.)

And the Roberts ruling accomplishes this victory for corporate power by upholding the law, not striking it down.  That means that Congress won’t re-consider health care financing anytime soon.  Which means that the single-payer system will rest in its grave for the time being.

Yesterday was no cause for celebration.  It was a dark day for health care reform.



A Must-Read Book

I urge you to stop what you’re doing and read Rebecca Skloot‘s The Immortal Life of Henrietta Lacks (Crown, 2010).   It’s a rare combination: clear reporting on how medical science works, insightful consideration of deep moral issues about the uses of human tissue for the advancement of knowledge, and a moving, often troubling, family narrative.

Henrietta Lacks died of cervical cancer in the “colored” ward at Johns Hopkins Hospital, in 1951.  From samples of her cervical tissue, the immortal cell line called HeLa was developed (by Dr. George Gey, at Hopkins).  Skloot’s story covers the family’s travails before and since, but also digs deep into the problem of race in the business of American medicine.  Her account challenges, or should move us to challenge, the smug certainties about our supposedly post-racial society, and the convenient formulae about “informed consent” and “access to care.” I guess I should say, The Immortal Life should make us ask just what “care” means in today’s system.

Henrietta Lacks and her family members were almost never taken seriously as humans with real problems.  First, they were poor and uneducated black people from tobacco country relocated to Baltimore; then, they were the bearers of the same genes as a woman (Henrietta) who had died of a remarkably aggressive, and therefore medically interesting, cancer; later, they were background and local color to the story of the origin of the thriving, and therefore scientifically interesting, HeLa cell line.

To Skloot’s credit, she’s taken to heart, and acted on, the problem:  she founded the Henrietta Lacks Foundation to help raise funds for education and medical expenses for Henrietta Lacks’s family.  Skloot’s blog, Culture Dish, carries updates about some of the achievements of the foundation and sometimes takes up issues germane to the book, especially regarding personal rights to genetic information (here, for instance).

It’s also impressive that Skloot interweaves in her narrative (and takes up more fully and explicitly in an Afterword) the vexing question of ownership of tissue samples.  She highlights how the expanding capacity to extract information from genetic sequencing ups the ante on the questions of privacy of tissue samples — since it’s now possible to ascertain potentially identifying information from genetic sequences even in a sample from which the usual verbal identifiers (name, address, and so forth) have been removed.  And she asks how the profits potentially available from exploitation of new discoveries should be shared.

The intersection of these problems with the matter of race makes The Immortal Life of Henrietta Lacks, like James Jones’s Bad Blood and Harriet Washington’s Medical Apartheid, a book that should be required reading for everyone involved in the health sector today.

New Year’s Wishes for Public Health

May 2010 be the year when health officials return to the business of alleviating suffering and stop promoting panic. (Don’t miss Nathalie Rothschild’s “Ten Years of Fear” in Spiked!’s Farewell to the Noughties, recounting the hyped-up panics of the ’00s — from the Y2K bug to swine flu.)

May CDC become a force for real public health, not an advocate for the risk-avoidance canard.  May the new director, Dr. Frieden, stop favoring pharmaceutical companies’ profit making through expansion of immunization.  And may he direct the agency to begin to address legitimate public needs, like sound answers about vaccines and autism, and clear communication about what is — and isn’t — dangerous about obesity.

May WHO officials stop playing with the pandemic threat barometer.  May WHO begin demanding that the world’s wealthy countries devote at least the same resources to stopping diarrheal diseases, malaria, and TB as they do to dealing with high-news-value problems like new strains of flu.   Diarrheal illness kills as many children in Africa and Asia in any given week as the 2009 swine flu killed Americans in eight months.  So does malaria.   Direct policy, and money, toward sanitation, pure water free of parasites, adequate treatment of TB, mosquito control, and prevention of other causes of heavy mortality in the developing world — not just flu strains that threaten North America, Europe, and Japan.

May public health professionals lose their obsessions with bad habits. May the public health profession return to the problem of ensuring basic rights — access to sufficient food, clean water, decent housing, good education, a livable wage, and adequate child care — and ease up on its moralistic obsessions with nicotine and overeating (for recent examples of the preoccupation with tobacco, see this article or this one (abstracts here; subscription needed for full articles) in recent issues of the American Journal of Public Health).

May science be what Joanne Manaster does at her incomparable website: looking at the world with wonder, asking without dogmatic preconceptions how it works, and accepting that its irrepressible quirkiness makes it impossible to know the world perfectly.  May science not be the crystal-ball-gazing thing whose so-called “scientific” forecasts are really doomsday scenes worthy of the medieval Church — predictions of liquefied icecaps and rising seas,  hundreds of millions of deaths in a flu pandemic, or catastrophic plagues sparked by people with engineered smallpox virus.  There are plenty of reasons to be concerned about both the environment and disease outbreaks based on sound here-and-now observations; leave the forecasts of Apocalypse to the clergy, who know how to handle dread.

A new year’s wish (from the valedictory exhortation in Tony Kushner’s Angels in America):  “More life!”

No Meeting of Minds on Flu

As the story of the flu pandemic of 2009 matures, it brings out the characteristic traits of each of the  many spheres of interest that it touches.  The physicians are certain that the news is bad, the social critics are skeptical, the official agencies are — in their usual collusion with biotech corporations (especially pharmaceutical companies) — happily promoting high-cost, high-tech responses.  And so on.

Joshua Holland’s post at AlterNet yesterday tries to explain why H1N1 swine flu shouldn’t be cause for hysteria.  He puts this outbreak in the context of flu history and the threat posed by other, more harmful, conditions — malaria for instance.  Holland plays a little bit fast and loose with the numbers:  it probably isn’t accurate to extrapolate, from the number of confirmed flu deaths so far, to get a total number of deaths that will be caused by the swine H1N1 strain this year — more efficient spread in the  cities of the Northern hemisphere in the coming few months is likely to produce fatalities at a higher rate than the more sporadic outbreaks here in April and May.  And he’s overly critical of the media — a point brought out by Revere in a response to Holland at Effect Measure today.

But, as Frank Furedi has been telling us (recently in Erasmus Law Review, for example), try to explain how people’s deep-seated anxieties drive perceptions that risk is extraordinary and unprecedented (and contribute to demands for more and better high-cost technology to deal with it) and you get some people riled up.  Disappointingly, even Effect Measure, whose assessments are consistently level-headed and cogent, slips here, flashing the moral-entrepreneur card at Mr. Holland:

Joshua Holland has never cared for a critically ill person with Acute Respiratory Distress Syndrome (ARDS), which is often the terminal event for flu patients. So I’ll tell him. It doesn’t matter if it’s caused by bacteria (many are). Half of them die no matter what you do and no matter what intensive care unit you have available to you or what antibiotic or what computer controlled respirator. We still can’t do much.

Nobody thinks it’s a good idea to let people get ARDS, and Holland acknowledges that flu is a problem that should be dealt with.  But that’s not always enough.  Question the intensity of perceived risk or the need for all the technology, and you find this out fast.

But Revere is back on track when noting that lots of problems — including malaria — are horrendous and deserve attention, and probably don’t get it because they happen to people far away.

Where would the impetus to deal with global problems besides flu come from?  A global organization that can keep things in perspective would be useful.  Poor W.H.O. isn’t positioned to do that.  Yesterday’s flu advisory from W.H.O. emphasizes the use of antivirals (oseltamivir and zanamivir) to treat people with severe or possibly severe flu:

Early treatment is especially important for patients who are at increased risk of developing complications, those who present with severe illness or those with worsening signs and symptoms.

Yet, the W.H.O. also warns against hastening the development of resistance.  This agency gets a lot of flak for not doing more and for panic-mongering when it does do more.  But, really, it’s only doing its job:  offer advice, and support interventions when invited.  It isn’t consistent, naturally.  It can’t make binding policy.  It faces a limitless and essentially insuperable legitimation problem.  In a way, W.H.O.’s hardest job is simply to maintain its own legitimacy.

Still, in a world poised to interpret signs of illness as evidence of risk and eager for technical fixes to alleviate the sense of vulnerability risk instills, the W.H.O.’s announcements can seem authoritative — and look like beckoning to the drug makers.  A Reuters story yesterday is entitled “Early Use of Antivirals Key in H1N1 Flu: WHO,” and highlights the value of the two antiviral medications more than the caution W.H.O. wants to instill.

Meanwhile, agencies that should be making real policy are focusing on immunization.  In today’s Washington Post, Rob Stein reports on health care workers’ resistance to mandatory flu vaccination.  New York State made flu immunization mandatory early on, not only for salaried health care workers but for anyone — including medical and nursing students — who might come in contact with patients, and is putting teeth into the requirement with sanctions for refuseniks.  The state resorts to high  moral rhetoric to justify its policy.  The state’s health commissioner told Stein that “the rationale begins with the health-care ethic, which is: The patient’s well-being comes ahead of the personal preferences of health-care workers.”

And at CDC, the director is cautioning that there might be a rough start-up to the swine flu immunization campaign, as the first doses of vaccine will be made available in early October.  According to the NY Times, there should be 40 million doses of vaccine available by mid-October.

We wonder whether immunization will be of any public health value at all, by the time there’s enough vaccine that it can be offered to anyone other than health care workers and a few of the people who really need protection (young people, infants’ caregivers, and pregnant women, especially — DemFromCT’s round-up at DailyKos is always worth reading).  Given the rapidity of spread of flu — in 37 U.S. states, H1N1 spread is already regional or widespread; flu is spreading locally in 12 more states, Puerto Rico, and Washington, D.C. — and based on the usual course of flu outbreaks, it seems possible that this outbreak will peak by mid November.  There’s no knowing if that will be so, obviously.  Even if it is, immunization would continue to be useful to prevent severe cases among people who are likely to get very sick if infected.

But mass immunization would no longer be of much use in preventing further incidence of infection on a population level if high levels of acquired immunity are reached across much of the population by the time vaccine is widely available.

That’s the problem with relying on mass immunization as the centerpiece of public health response: as in the old joke about comedy, timing is everything.  In 1976, there was too much immunization, too soon.  It might turn out that this year, there’s too little, too late.  The dynamics of vaccine availability and the dynamics of flu spread have to be watched in tandem, and policy updated accordingly.

In any case, with vaccine at the center, the rest of the story — the complex environmental interactions that allow flu genomes to recombine, the trade in animals and feed that allow viruses to move around, the problems of affordability and immune status and competing viral subtypes, the health care facilities to handle severe cases, and so on — gets shoved to the side.

The “Deadly Choices” Report

Sheri Fink’s thoughtful and masterfully composed “Deadly Choices” report discusses the death of patients at New Orleans’ Memorial Medical Center (MMC) in the days after Hurricane Katrina in 2005 (additional material is at ProPublica).

“Deadly Choices” is heartbreaking.  It recounts a situation that was miserable, terrifying, and in some cases, fatal.  Fink reports that, among 45 Memorial Medical Center patients who died in the days during and immediately following the storm, 17 were deliberately administered lethal doses of morphine, sometimes along with a sedative, by physicians who apparently intended to hasten the patients’ deaths.  (Many of these 17 were patients at a hospital-within-the-hospital, a long-term care hospital under separate ownership that shared some staff with MMC.  At Slate today, Josh Levin discusses some of the troubling truths about the financing of long-term care hospitals, and Fink fills in some more of the blanks with a response at ProPublica.)

As Fink explained to Amy Goodman in an interview with Democracy Now earlier this week, at least one of the patients who were killed was not in extremis; he had not given up.  He was

“Ready to rock and roll, wanted to get out. And apparently, according to several people who later spoke with investigators, a discussion was had in which they talked about how they might get him out, and they decided that because he was so heavy and it was so hot and people had—I mean, just imagine….They had been going on no sleep for days, the medical workers. They were tired. They were terribly disturbed by all the suffering that they felt that they saw around them. And so, in this sort of moment, they apparently decided that [the patient] could not be brought down, could not be evacuated, that there was no way to get him out.”

The story of what happened at MMC is also profoundly disturbing.  It moves us to ask what sort of moral world physicians are expected, and allowed, to operate in.  And to wonder why moral boundaries should be so elusive to exactly the people who, with access to the means to both prolong life and hasten death, walk on morally fraught territory more often than anyone.

The horrifying events at MMC are especially  germane today — because they highlight a vexing question about health care reform that is very hard to answer:   Is our doctors’ job to alleviate suffering, or is it to improve health?

A favored guru on health care ethics, Ezekiel Emanuel, is explicitly in favor of the latter.  In “Justice and Managed Care” (subscription) in Hastings Center Report in 2000, he writes

“The allocation of health care resources should aim at and be justified by the improvement in people’s health…. The special aim or purpose of health care is curing disease, relieving pain and suffering, promoting public health, pursuing research to improve health, and so on.”

The “and so on” means that improving health — the obligation of a health care system, Emanuel asserts — amounts not just to the relief of pain and suffering but also to research and public health, and other tasks as well.  The relief of suffering might not be a priority, that is.  Or it might be a contingent priority, of importance for a limited time, or in certain circumstances — but not the only thing to worry about.

The point is not to vilify Emanuel.  He has opposed euthanasia and physician-assisted suicide, so we should assume that he was as appalled by the actions of the chief physicians at MMC as others were.

But the Emanuelian sensibility is that the system in which physicians work is not meant to be dedicated to the relief of suffering alone.  Rather, it bears other duties as well:  a broad obligation to the public to promote health, and another obligation to contribute (through research) to the future of health care.

In this narrative, the physician is marshal of a campaign — not merely joined in a series of caring relationships with each of a number of patients, but commander of troops who have a long-term goal and territory to win.   By implication, the rights of patients might take second seat to the needs of the public, or to the desire to learn more about how to improve health in the future.  Patients shouldn’t be killed, this thinking goes, but they will have to understand that the prolongation of life is a luxury commodity to which physicians have the keys — and not everyone can have access.

The sense of the physician as a responsible manager, not merely a giver of care, connects with the utilitarian credo, “the greatest good for the greatest number” — a phrase that occurs three times in Fink’s piece as she strives to characterize the sensibility of MMC providers.

But the killings at MMC should, at the very least, make us ask whether it’s a good idea to have doctors making decisions about the greater good — or whether we want them to recognize individual persons above all.