BY Mike Magee MD

Events over the past year clearly have confirmed that we are a “work in progress” even as we stubbornly affirm our good intentions to create a society committed to “life, liberty, and the pursuit of happiness.”

With the Dobbs’ decision, our Supreme Court has unleashed long-abandoned regressive state laws designed to reinforce selective patriarchy and undermine the stability and confidence of America’s women and families. As a result, our nation’s health professionals, and the patients they care for, potentially find themselves “on the wrong side of the law.”

It calls to mind the well-worn phrase of mothers everywhere to their bossy children, “Who died and left you boss?”

Since our former President, on the eve of his latest indictment, decided to deliver a message to North Carolina Republican supporters this past weekend, claiming that he was engaged in the “final battle” with “corrupt” forces, most especially the “Deep State” that was “out to get him,” I decided to fact check his claims with the kids of North Carolina.

North Carolina’s K-12 lesson plan, titled “The Rule of Law,” begins with the Teddy Roosevelt quote, “No man is above the law, and no man is below it” from his 1903 State of the Union address.

In the very first paragraph, the plan affirms that law is fundamental to societal health stating:

“Every day, we are touched by rules and laws. They pervade every aspect of our lives, from traveling on the road to shopping at the mall. In this lesson, students will explore the rule of law in American democracy and its impact on every individual. Through class discussion and role play, students will gain an understanding of:

1. what the rule of law means in terms of American government, 
2. the functions laws play in our society, and 
3. the role all citizens and community members, from a student to the President, play in adhering to and upholding the rule of law.” 

The plan cues up questions that students will need to address, including:

• “From when and where does our system of law originate?” 
• “What functions do laws serve in our society?” 
• “What role does our government’s separation of powers play in ensuring adherence to the rule of law?” 
• “Why is an independent judiciary fundamental to the rule of law?” 
• “How might our society be different if we had no laws?” 

A bit further on, students are informed that:

“The rule of law is basically an agreement that everyone will play by the rules. This allows us to enjoy a more peaceful and safe existence. The rule of law also ensures the protection of certain rights for each of us. Ideally, the rule of law applies equally to everyone, meaning you are treated fairly and equally, under the same set of rules, regardless of who you are.”

The curricular plan then explores laws themselves helping students to uncover these insights:

“How do laws affect each of us? What functions do laws serve in our society? Ensure students discuss the following functions of laws:

1.“Laws serve as standards of conduct and dictate the ways people should behave and what activities are permitted or prohibited under certain conditions (e.g., drinking under age, driving, speeding, etc.)
2. Laws maintain order, ensure predictability, and provide security (e.g., they require that people drive on a certain side of the road; they require that people pay for services rendered.)
3. Many laws in America grant and protect particular individual rights and freedoms, ensure equality, and advocate for the common good.
4. Laws also guarantee certain benefits to citizens (e.g., schools, health services, etc.)
5. Laws assign responsibilities to citizens (e.g., paying taxes.)
6. Laws define what duties the government will perform and can also limit the power of governmental officials.
7. Laws can facilitate different forms of change (e.g., toxic waste disposal, anti-discrimination, prohibition of spousal abuse, etc.)
8. Laws are used to manage different forms of conflict, relying on courts, lawyers, and judges for such.
9. In summary, laws serve many different purposes. Ideally, laws should be well designed to ensure justice; they should be designed so that the average citizen can interpret, understand, and thus follow them.”

Finally there is a homework assignment. Students are provided with a copy of chapter 28 in Justice Sandra Day O’Connor’s “The Majesty of the Law,” to read.

In follow-up, the teacher is instructed to ask students: “When Justice O’Connor states, ‘A nation’s success or failure in achieving democracy is judged in part by how well it responds to those at the bottom and the margins of the social order,’ what message was she conveying and how does it relate to the rule of law?”

Mike Magee is a Medical Historian and author of CODE BLUE: Inside the Medical-Industrial Complex.

BY MIKE MAGEE

As we enter a new and potentially historic week, with a former President doing his best to reignite a Civil War in our nation, we do well to take a breath and reread James Madison’s words from Federalist No. 51. But first, a few words of history.

When it came to checks and balances in this new national experiment in self governance, the Founders, while establishing three co-equal branches, left one of those branches the task of defining by practice its own power and influence.

The new Constitution in 1787 awarded one branch, the elected Congress, the daunting power to impeach, convict and remove representatives or appointed federal officials for due cause up to the President himself. But it also empowered a second branch, the Executive, through its President, veto power to check legislative excesses and the privilege of initiating appointments to the federal judiciary. Only the third branch of the government, the Judiciary, was left deliberately “elastic,” destined to grow into “the triangle of power.”

Thirteen years later, on February 17, 1801, Congress was forced to break a tie in the Electoral College vote, resolving a Constitutional crisis and declaring a victor in one of “the most acrimonious presidential campaigns” in U.S. history. Thomas Jefferson was awarded the victory, and John Adams acquiesced and was sent packing a month later. But two days before he departed, Adams unloaded multiple appointments of circuit justices and justices of the peace which the U.S. Senate quickly confirmed on March 3rd. In the rush, Adam’s Secretary of State, John Marshall (soon to become Chief Justice Marshall of the Supreme Court under President Jefferson) didn’t have time to complete a final necessary step, delivering the commissions, to some of the appointees.

When Jefferson took office on March 4th, and saw the opportunity to block some judgeships on the technicality, he instructed his new Secretary of State, James Madison, to not deliver the commissions. One of those prospective new judges, a Maryland businessman, William Marbury, after trying to unlock his commission for several months, filed a lawsuit in December, 1801 demanding that his commission be delivered through a “writ of mandamus.” ( “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”)

Eventually the case came to the Supreme Court and John Marshall delivered the unanimous verdict on February 24, 1803 in Marbury v. Madison. 

In short, William Marbury did not get his judgeship, but not because he didn’t deserve it. He did, and the decision said as much. But the Court also recognized that the authority that Section 13 of the Judiciary Act of 1789 had granted the Court to issue “writs of mandamus” (and effectively force Secretary of State Madison to deliver the appointment) was unconstitutional. 

This was because Article III of the U.S. Constitution  (signed September 17, 1787) made clear that the Supreme Court had “original jurisdiction over cases only where a U.S. state is party to the lawsuit.” As legal experts have explained: While the decision “limited federal court’s jurisdiction, it cemented the Court’s status as the ultimate interpreter of the Constitution.”

William Marbury’s loss became our nation’s gain. Our third branch of government, in finding its voice, defined its own powers. As Justice Marshall wrote “It is emphatically the province and duty of the Judicial Department to say what the law is…a Law repugnant to the Constitution is void.” As law historian Lawrence Friedman wrote, “Here for the first time John Marshall in the U.S. Supreme Court dared to declare an act of Congress to be unconstitutional.”

Donald Trump, for a time, sat himself in the middle of America’s triangle of power. From his seat as President, he installed himself as “a Golden Idol” and had a commanding view of the Executive branch of government. By aligning with the Federalist Society, the Christian Right and Mitch McConnell, he was able to stack the Judiciary and deliver a promised reversal of Roe v. Wade. But that federal overreach, which included rejecting  50 years of precedent and compromising women’s freedom and autonomy over their own bodies, fueled a resounding 2020 Trump defeat and Republican statewide under-performance in the 2022 Mid-term elections.

It also triggered a first ever President-led armed insurrection on January 6, 2021. But in a real-life “Democracy stress test,” this may be the moment when our three branches of government finally deliver a message to all Americans that no man is above the law. 

First, our citizenry pried the Executive branch free of Trump in 2020. 

Second, our Judiciary, including state and federal courts, have rejected nearly 100 bogus cases led by unethical lawyers on Trump’s behalf, and are nearing multiple indictments of a now, unprotected and disgraced former President. 

Third,  a Republican led Congress has been forced to privately cooperate on real issues, while publicly feigning continued fealty to Trump and a small band of Trump look-alike’s intent on driving their party over the cliff.

So what did James Madison, author of Federalist No. 51, have to say about all this? 

On February 8, 1788, he wrote: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.”

Trump is a stress test, and our nation is rising to the challenge. We are gradually, slowly and painfully, learning to “control ourselves” by enforcing our laws. Democracy is a work in progress.

Mike Magee MD is a Medical Historian and author of CODE BLUE: Inside the Medical-Industrial Complex.

BY MIKE MAGEE

Stable, civic societies are built upon human trust and confidence. If you were forced to rebuild a society, leveled by warfare and devastation, where would you begin? This is the question the U.S. Army faced at the close of WW II, specifically when it came to rebuilding Germany and Japan, hopefully into stable democracies. The Marshall Plan answered the question above, and its success in choosing health services as a starting point was well documented by many in the years to come, including the RAND Corporation. Their summary in 2007 said in part, “Nation-building efforts cannot be successful unless adequate attention is paid to the health of the population.” 

They began with services for women and children, the very location that a splinter of politicians and Supreme Court Justices has targeted, replacing entrusted doctors with partisan bureaucrats in an approach so obviously flawed that it forced a course correction a half-century ago in the form of Roe v. Wade.

The practice of Medicine is complex. Ideally it requires knowledge, skills, supportive infrastructure, proximity and presence. But most of all, it requires trust, especially in moments of urgency, with lives at stake, when an individual, and family, and community are all on high alert. When time is of the essence, and especially if one or more people are trying to make the right decision for two, rather than one life, decisions are impossibly personal and complex.

This was widely recognized by most physicians, including those most devout and conservative nationwide in the troubling years leading up to Roe v. Wade. As recently as 1968, the membership of the Christian Medical Society refused to endorse a proclamation that labeled abortion as sinful. In 1971, America’s leading conservative religious organization, the Southern Baptist Convention, went on record as encouraging its members “to work for legislation that would allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” In 1973, both the Southern Baptist Convention and the Christian Medical Society chose not to actively oppose the Supreme Court ruling against a Texas law prohibiting abortion known as Roe v. Wade, and reaffirmed that position in 1974 and 1976.

What they recognized was that the nation’s social capital, its political stability and security, relied heavily on the compassion, understanding and partnership engendered in the patient-physician relationship. As most doctors saw it, what possible good could come from putting politicians in the middle of such complicated, emotion-ridden, and highly personal decisions?

The American Medical Association’s prepared reaction to the June 24, 2022, reversal to Roe v. Wade was direct and immediate. They labeled the decision “an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship…” Their president, Jack Resneck Jr. M.D. went further to say, “…the AMA condemns the high court’s interpretation in this case. We will always have physicians’ backs and defend the practice of medicine, we will fight to protect the patient-physician relationship..” But what exactly does that mean?

Approaching 75, and a lifelong member of the American Medical Association, I expect I know the AMA, its history as well as its strengths and weaknesses, as well as anyone. Aside from having deep personal relationships with many of the Board of Trustees over the years (some of whom quietly continue to contact me for advice), I have studied the evolution of the patient-physician relationship in six countries over a span of forty years.

Those who know me well, and who have pushed back against my critique of the organization, know that my intentions are honorable and that the alarms that I sound reflect my belief that, for our profession to survive as noble, self-governing, and committed above all to the patients who allow us to care for them, we must have a national organization with reach into every American town and city, and official representation in every state, and every specialty.

My concern today, despite the strong messaging from Chicago, is that the AMA and its members have not fully absorbed that this is a “mission-critical” moment in the organization’s history. It is also an opportunity to purposefully flex its muscles, expand its membership, and reinforce its priorities. The strong words, without actions to back them up, I believe, will permanently seal the AMA’s fate, and challenge Medicine’s status as a “profession.”

Here are five actions that I believe the AMA should take immediately to make it clear that physicians stand united with our patients, in partnership with nurses and other health professionals, and that the actions of last week can not and will not stand.

1. The AMA should pull all financial support for all Republican candidates through the 2022 elections.
2. The AMA should actively encourage physician “civil disobedience” where appropriate to protect the health and well being of all women, regardless of age, race, sexual identity, religion, or economic status.
3. The AMA should convene, under the auspices of its’ General Counsel, Andra K. Heller, a formal strategy meeting with the legal counsels of all state and specialty medical societies to formulate an aggressive legal approach to minimize the damage of the recent Supreme Court action.
4. The AMA should actively promote AMA volunteers to help provide a full range of women’s health care services at federal institutions and on federal land, and stand up information sites that coordinate travel and expenses should inter-state travel be required for care access.
5. The AMA should immediately make clear that any restriction of prescribing authority of medications in support of women’s health care, including contraceptive medications and devices, and Plan B treatments will result in a coordinated nationwide disruption of health services.

Mike Magee MD is a Medical Historian and the author of “CODE BLUE: Inside the Medical-Industrial Complex.”

BY KIM BELLARD

Well, they did it.  We had a warning they were going to do it, from the leaked opinion in May, but it still was a blow to well over half the country when the Supreme Court struck down Roe v. Wade in its ruling on Dobbs v. Jackson Women’s Health Organization. It didn’t rule that abortion was unconstitutional – as Justice Kavanaugh wrote. “On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice” – but, rather, left it to the “voters,” i.e., the states, to decide.  And, boy, the “pro-life” states have been deciding and are ready to do a lot more deciding.  

There has been lots of outrage, many protests, and calls for the Senate to pass a federal law explicitly granting a right to abortion (although that would require changing the filibuster rules).  Aside from the fact that the Democrats probably don’t have the votes to do that, even if they did, as soon as the Republicans retook Congress and the White House, they’d just repeal it and perhaps pass a law outlawing abortion everywhere.  So it goes.

There are going to be many fights about abortion in Congress and in the states, but I think it’s time for a new strategy.  It’s time to amend the Constitution.  

No, we’ll never get an amendment explicitly granting the right to an abortion – but we might get enough consensus on an amendment explicitly assuring the right to privacy.

Many people are surprised to learn that the Constitution does not include a right to privacy.  It has many rights that Supreme Court has ruled “imply” certain rights to privacy.  It did so in 1965’s Griswold, which for the first time gave married couples the legal right to use birth control.  It similarly did so in 1971’s Eisenstadt (contraception for unmarried couples) and in 2003’s Lawrence (gay sex), as well as, of course, in Roe (1973).  The current Court, though, found the Roe decision had been wrongly decided.  

The Court’s majority opinion, and Justice Kavanaugh’s concurring opinion, took pains to clarify that no other precedents were at stake with this ruling, but the dissenting opinions raised the alarm, and Justice Thomas’s concurring opinion sort of exposed the conservatives’ plan by noting: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell [same sex marriage].”

So, after fifty years of believing they has a right to an abortion, America women suddenly are finding out that, well, it depends on where they live.  Some states are not allowing abortions even in the case of rape or incest, perhaps not even if the woman’s life is at stake.  Some states want to restrict women from traveling to other states to get abortions, or to get abortion medications through the mail.

Strange times.

We’re finding that what happens between a woman and her doctor isn’t private; we’re finding that what procedures she may have or what prescriptions she may get isn’t private.  These are matters for the state; HIPAA is not going to protect you.  We’re being reminded that HIPAA only goes so far, and, in our digital age, that isn’t very far.  Women who might have been using, say, a period tracker now have to worry who else can access their data, and what they can do with it.    

But, of course, I say “women” and I’m talking about pregnancy/abortion, but in 2022 all of us should be wondering who might be accessing our health information, for what purposes.  Our digital footprints and fingerprints are everywhere, and third parties are very interested in them, be they for law enforcement purposes or for more mercenary reasons.  

Hospitals recently got caught selling patients’ health information to Facebook, and you’d think both would know better.  Then again, Facebook is still targeting ads to patient groups on its platform, despite having promised several years ago to do better about that.  If you think there are some responsible parties watching out for our health data, I’d like to know who they are.  

It’s not just health data, of course.  We’re already concerned about data privacy generally, especially when it comes to Big Tech (whomever they might be).  A 2021 KPMG survey found that 86% of respondents had a growing concern about their data privacy, and 78% expressed fears about the data being collected.  Congress is supposedly working on the issue (long after the EU passed GDPR), with the American Data Privacy & Protection Act passing a House subcommittee earlier this week, but that’s a long way from actual passage.  

Congress is not going to be our savior.  Some states are trying, such as California, but that’s only going to go so far.  If we want to assure our privacy, and the benefits that accrue from privacy, we’re going to need to go further – much further.  We’re going to need to amend the Constitution.  

Now, I’m not naïve.  In the hyper-partisan country we live in, getting three-fourths of the states to agree on anything seems like an uphill climb.  Just ask proponents of the Equal Right Amendment, which never passed.  The last Amendment that passed (the 27^th) took 202 years, and all it tried to do was delay Congressional salary increases until after the next federal election.  

No, we’re never going to get three-fourths of states to ratify an amendment granting a right to an abortion.  But we might get enough states to ratify an amendment that codifies our rights to privacy more generally, and, if worded artfully, the right to an abortion should be a consequence.  “Pro-life” advocates are not known to be people who are usually willing to compromise, but neither are they people who typically are comfortable with either the government nor Big Tech “spying” on them.  

A right to privacy might be one thing we could all agree on; maybe not all, but perhaps at least three-fourths of us.  

Pro-choice advocates, and I count myself as one, should still be making our voices heard – going to protests, letting our local, state and federal elected officials know our feelings, advocating to strike down laws restricting access to abortions and/or proposing ones that help assure it, and, most importantly, truly voting as though our rights are at stake, because they are.  Those are all necessary actions, but not sufficient.

Anti-abortion advocates have been playing the long game, and Dobbs is its latest success.  The attack on our rights will continue to fit the conservative, evangelical Christian worldview that now drives the Republican party.  The only way to assure them is a Constitutional Amendment.

Kim is a former emarketing exec at a major Blues plan, editor of the late & lamented Tincture.io, and now regular THCB contributor.

By MIKE MAGEE

Warner Vincent Slack, MD, a pioneer of medical informatics, was a Professor of Medicine at Harvard Medical School in the Division of Clinical Informatics. When he died in 2018 at age 85, his memoriam read:

“For over 50 years, Dr. Slack conducted pioneering research on the use of computers in the medical world and was one of the founders of medical informatics. His goal was to empower both doctors and patients by improving the communication between them.”

Followers of Dr. Slack have labored hard over the past half-century to design solutions that will strengthen rather than weaken the bonds of the patient-physician relationship. But as he suggested at multiple points throughout his career, this goal becomes exponentially more difficult if politicians are allowed to “play doctor” with citizens’ lives.

His awareness of the fallout of the Terri Schiavo “right to die” case, beginning a dozen years after his seminal publication of  “Patient Power: A Patient Oriented Value System”, likely cast a long shadow on his optimistic vision. The case spanned 15 years, as it rode the poor health and disability of one unfortunate woman literally into her grave with devastating consequences for all concerned. 

As the Supreme Court readies itself to serve up opinions in the Texas vigilante and Mississippi abortion cases, the Schiavo case remains a cautionary tale that deserves a careful review. Here’s a quick summary:

• Theresa Marie Schindler was born in a Philadelphia suburb on December 3, 1963.
• Terri married her husband, Michael in 1984 and moved to Florida to be close to her parents. 
• On February 25, 1990, suffering from an eating disorder, she collapsed in the lobby of their apartment, was resuscitated, and hospitalized.
• Her husband, Michael, was made legal guardian on June 18, 1990. Two physicians independently declared her in a “permanent vegetative state.” A gastric feeding tube was inserted.
• In mid-1993, Michael signed a Do Not Resuscitate (DNR) order.
• In May 1998, he filed a petition to remove the feeding tube.
• The parents challenged the removal in court and lost. The tube was finally removed on April 24, 2001.
• The parents charged Michael Schiavo with perjury, and a judge ordered the tube reinserted 2 days later.
• On September 17, 2003,  the appellate judge ordered the feeding tube removed for a second time.
• Operation Rescue/Right to Life extremist Randall Terry began daily public demonstrations at the care facility.
• The Florida legislature passed “Terri’s Law”, allowing Gov. Jeb Bush to order the feeding tube surgically reinserted for the third time.
• On May 5, 2004, “Terri’s Law” was declared unconstitutional.
• Senator Mel Martinez’s (R-FL) political career was damaged irreparably when memo’s revealed he played politics with the issue.
• Senator Bill Frist’s hopes for the presidency went up in smoke on March 17, 2005, when he declared on the Senate floor, “I question it (vegetative state) based on a review of the video footage which I spent an hour or so looking at last night in my office.”
• President Bush transferred the case to Federal Courts. The Federal Court agreed with prior State Court Appeals.
• Terri Schiavo’s feeding tube was removed a final time on March 24, 2005. She died at a Pinellas Park hospice on March 31, 2005.

In 2010, Dr. Slack wrote, “Dialogue between physician and patient continues to be the mainstay of clinical medicine.” Clearly, not all health technology innovators share this narrow focus. Much of today’s emphasis is on securing patient autonomy by enabling faster and more accurate prescriptions, rapid information sharing, reduced paperwork, reduced unnecessary tests, increased reliable follow-through, and privacy and security of information. 

But Slack argued that flawless information management is no substitute for the guidance and advice of a trusted professional when faced with a complex life and death decision. Such was the case in the Schiavo end-of-life debate ensnarled for 15 years in our nation’s courts. A more current example of malign interference is the attempt by Governor Greg Abbott to allow citizen vigilantes to insert themselves into complex individualized decisions by women facing an unintended or unwanted pregnancy.

Health information technology should be both assistive and transformational. Dr. Slack’s contemporary, Canadian-born American biomedical engineer and educator, Edward (Ted) Shortliffe MD. Ph.D. echoed this same theme in an address to the American Philosophical Society in Philadelphia in 1991. He said, “Any effort to anticipate the effect of information technology on relationships between patients and physicians must be viewed in this larger context of social change. Both doctors and patients will be very different… if there is any resulting dehumanization, it will occur because we allow it to happen, not because there is something inherently dehumanizing in the technology itself.”

Must HIT innovators now insert themselves directly into contentious contemporary issues such as abortion rights? No. But Slack would argue that the opportunity for HIT innovators to continue to design products that fully empower contemporary patients does solidly align with the patient’s rights movements, and requires an element of social awareness and engagement in the issues of the day.

Mike Magee, MD is a Medical Historian and Health Economist, and author of “CodeBlue: Inside the Medical Industrial Complex.“

The new Supreme Court, in all likelihood including just nominated Justice Amy Coney Barrett, will be hearing the California v Texas suit against the ACA on November 10th, seven days after the election. The lower courts have already ruled the ACA unconstitutional. Some hopeful moderates among my Democratic friends seem to believe that the justices will show cool heads, and not throw out the ACA. But it’s worth remembering that in the NFIB vs. Sebelius decision which confirmed the legitimacy of most of the ACA back in 2011 all the conservative justices with the exception of John Roberts voted to overturn the whole thing. With Ginsburg being replaced by Barrett there’s no reason to suppose that she won’t join Thomas, Alito, Kavanagh & Gorsuch and that Robert’s vote won’t be enough to stop them this time. The betting odds must be that the whole of the ACA will be overturned.

There is nothing the Democrats can realistically do to prevent Barrett filling RBG’s seat on the court, but assuming Biden wins and the Democrats take back the Senate, the incoming Administration can give the Supremes something to think about regarding the ACA. I would not suggest this level of confrontation before the election but, if Biden wins, the gloves must come off.

Assuming he wins and that the Dems win the Senate, this is the speech Biden should give on November 9th. (The TL:DR spoiler is, “Keep the ACA or I’ll extend Medicare to all ages”)

“I’m directing this speech to an extremely select number of people, just the Supreme Court Justices appointed by Republican Presidents. It is obviously no secret that we have political differences on many issues and we find ourselves in the strange situation in which I am the incoming President with an incoming Democratic Senate majority and yet you are considering overturning the signature bill of the administration in which I was Vice-President. You may recall that at the time of its signing I told President Obama that it was a “big f****** deal”  and, although many of my colleagues in the more progressive wing of the Democratic Party have criticized the ACA since its passage, it turns out that I was right. 

I am not referring here to the apoplexy that the ACA created amongst the Republican Party including not only the current and outgoing President but also almost all Republican members of Congress between 2010 and 2018. Instead I’m referring to the ACA’s impact on the nation and its health care system. 

Since 2010 there have been many changes to the way our nation’s health care system operates; almost all of them have their roots in the ACA. 

First, the ACA gave access to health insurance coverage to many people who had great trouble getting it before. That includes young people moving between their parent’s home, college and getting into the workforce; small business owners; freelance workers; the unemployed; people with low incomes; and people with underlying “pre-existing” health conditions. I remind you that due both to the pandemic and changes in our economy, there are many, many more of these people now than there were in 2009. 

Before the ACA these people were either not well served by the private health insurance industry or literally were unable to buy coverage at all. This not only caused extreme personal and financial suffering and in some cases death to the people affected, but also impacted the economy. It restrained innovation and entrepreneurship, and it meant that the participants in the health care system–including very many well meaning clinicians and provider organizations–had to play very inefficient games in order to try to provide those people with much-needed care, which drove up the cost of care to everyone else. Warren Buffet calls that the tapeworm in the US economy.

The ACA changed this in two main ways.

First it created a system of standardized insurance benefits and mandated insurers to provide those benefits to anybody regardless of health status. It also directly subsidized the cost of insurance for people of low to moderate-incomes. Given that median household income is around $63,000 in the US and the current cost of family insurance is around $28,000, these subsidies are essential. Otherwise people who do not have employment-based insurance would not be able to purchase coverage.

Second, the ACA expanded Medicaid coverage for the poor, creating a standardized set of benefits for those earning up to 133% of poverty. Sadly, the conservative majority on the court, joined (in my view to their everlasting shame) by Justices Breyer and Kagan, decided that the federal government did not have the right to force states to expand Medicaid even though the federal government paid 100% of the cost. It turned out that many states with Republican governors chose not to expand Medicaid, even though this meant that many rural hospitals in their states were forced to close. Numerous studies have shown that Medicaid expansion has improved the financial and emotional health of the poor, and other work has shown that the current Administration’s policy of allowing states to restrict access to Medicaid, by using such tricks as work requirements, have been cruel and counterproductive–and that they have not reduced health care costs or increased employment. States that have not expanded Medicaid have left their most vulnerable and poor populations in an extremely difficult state. For example in Texas a single parent with two  children is only eligible for Medicaid if the children are on Medicaid and total household income doesn’t exceed $230 a month, which would barely cover your clerks’ daily lunch bill. Some estimates suggest that nearly three-quarters of a million people in Texas are in the coverage gap between Medicaid and qualifying for the ACA.

However, the ACA was not just about expanding insurance for those who had trouble getting it before. It also closed several loopholes that had confronted many other people who needed to use the health care system. This included closing the donut hole in the drug coverage for seniors provided by the Medicare Modernization Act in 2003. It also did away with maximum coverage benefits which severely compromised the care received by extremely sick people–often children or those with very rare diseases. And, in a great benefit to many, many young Americans from middle class and even wealthy families, the ACA allowed parents to keep their children on their insurance up until the age of 26, when they were usually established in the workforce.

Many of you on the Supreme Court believe that private delivery of insurance and health care services are superior to those delivered by the government. For you the ACA should indeed have been a very welcome piece of legislation. All of the new enrollment coming through the ACA exchanges went through private health insurance companies, and the vast majority of Medicaid expansion is also managed by private health insurers. While federal tax dollars are subsidizing this coverage expansion, it’s worth pointing out that a IRS decision in 1954 confirmed the tax-free status of private health insurance premiums paid by employers which translates to an annual subsidy to private employers that exceeds the cost of the premium subsidies in the ACA. On the night that the ACA was passed a Canadian journalist reported that America had just seen the largest expansion of private health care coverage ever–and he was right.

This coverage expansion was by no means all that the ACA did. It was also the legal and regulatory basis for a substantial modernization of the nation’s health care system. Of course since the 1930s, US health care has largely been based on a fee-for-service payment approach, acknowledged by experts to be both inefficient and inflationary. The ACA created the Center for Medicare and Medicaid Innovation which has been at the forefront of creating programs that encourage improved care at a lower cost by, for instance, bundling payments for joint surgery, cancer and other care. It also created the system of accountable care organizations which encourages doctors and hospitals to work together to more efficiently and effectively manage the health of large populations of Medicare recipients. And while the ACA did not create the Medicare Advantage program, it put in place an environment in which private health insurance companies were able to use government funding within the Medicare program to deliver innovative programs that are improving the quality of care received by our seniors. 

In addition, since the passage of the ACA, and assisted by it and the HITECH Act passed in 2009, there has been a considerable boom in the development of new types of health care technologies, particularly digital technologies. These show amazing promise for delivering 24/7 care to many vulnerable populations. The significant spread of telehealth and remote patient monitoring during the current COVID-19 pandemic was only possible because of the innovation of numerous private companies. They developed those technologies in large part in response to incentives created by the ACA.

Finally, although the cost of health care in the United States is still significantly higher than it is in other countries, since the passage of the Affordable Care Act the rate of increase of health care cost has slowed and up until this year the health care system was barely growing as a share of the overall economy for the first time ever (other than a brief blip in the mid 1990s).

This is just a brief overview of the impact of the Affordable Care Act. It has directly meant access to health care coverage for around 20 to 30 million people and, as health futurist Ian Morrison points out, has tentacles impacting every single part of the health care system. This was not the case when four conservative justices including two currently on the bench (Alito & Thomas) voted to throw out the ACA in 2012. And it has not escaped my attention that the two justices who have replaced Scalia and Kennedy appear to have similar or perhaps even more conservative viewpoints.

If following the arguments you will hear this week, the Supreme Court decides to uphold the lower court hearing and abolish the entire ACA on what is pretty much a technicality, the consequences will be dramatic. And they will be very bad.  

Tens of millions of people will lose their health insurance. Of course they will still require care. The cost of delivering that care will fall upon the nation’s health care providers, and eventually on the taxpayer. That cost will be distributed in an unplanned and chaotic manner –resulting in much actual and financial pain.

In addition, virtually every current organization funding, delivering or involved in care delivery will have to completely reformat the business operations it has spent the last decade putting in place. American health care will be thrown into chaos and the cost in both dollars and human suffering will be extreme. 

Given the extreme impact of throwing out the ACA,  I will appeal to all the justices to maintain the ACA in place.

Unlike the outgoing president, I respect the institutions and separation of powers inherent in the constitution of our nation. But given that I and my colleagues in the Senate have just been elected by a significant majority of Americans, and also given that none of the conservative justices on the court were appointed by a President who won the majority of the vote of his fellow citizens when initially elected, I would recommend that the court consider its actions very carefully. Unlike some in my party, I am not advocating significant constitutional changes such as appointing more justices, but the more the court bends against the arc of history, the more likely it is that such actions may be taken in the future.

However, in regards to the nation’s health care system I am hereby telling you exactly what I will do–should the court return a verdict overturning the ACA.

You are well aware that in the Democratic primary campaign, which was largely settled before the covid-19 pandemic had its full effect, my opponent Senator Sanders was campaigning to create Medicare for All. While I was and am opposed to this policy, it is clear that a significant majority of Democrats and in some polling a majority of Americans were in favor of expanding Medicare For All even before the full effect of the pandemic was realized. 

The world of course is radically different now compared to how things were even at the start of 2020. Not only has our health care system had to deal with the onslaught of the pandemic, but the recession that it caused has placed many more millions of Americans out of work, and some 5 million of those have already lost their health insurance. I pledged in the election campaign both to get the economy moving and also to support those who were victims of the recession, which includes those millions who lost their health insurance. 

In my campaign I pledged to build on the successes of the ACA. As you are well aware, two of the most significant policies I proposed were to create a public option and to reduce the eligibility age for Medicare to 60 years old. If the Supreme Court throws out the ACA, it will be by definition impossible for me to build on the ACA’s infrastructure.

But at a time of a pandemic during a recession I will not stand by and allow tens of millions of Americans to suffer. 

Instead let me tell you what I will do. 

As you know under the current rules of the Senate and from the convoluted passage of the ACA itself, it is virtually impossible to pass significant legislation without 60 votes. In the election that just happened we Democrats have retaken control of the Senate, but only with a slight majority. However, as you also know, the Senate can pass legislation impacting budgets under the process of reconciliation with a simple majority. You will recall that using reconciliation the Republican majority in the Senate tried to repeal the ACA in 2017, and were only prevented from doing so by the deciding vote of my friend the late Senator John McCain.

On the day which I hope never comes that the Supreme Court invalidates the ACA, my colleagues in the House and Senate will immediately introduce legislation amending Title 18 of the 1965 Social Security Act that created Medicare to reduce the age of eligibility not to 60 but to zero. At the same time we will amend title 19 of the 1965 Social Security Act that created Medicaid to reduce its budget to $0 other than to pay the premiums into Medicare for those known as “dual eligibles” and to pay for long term care and other services that Medicare currently doesn’t cover.

You and other conservatives might believe that we will not be able to complete this because of the Byrd Rule for reconciliation which was designed in the 1980s to ensure that reconciliation did not radically change the budget of the federal government. But the Senate Republican majority in the Congress before last essentially already violated these rules by passing a scandalously unfair and unfunded tax cut, and my colleagues in the Senate will be prepared to override the Byrd Rule. This, I point out, is significantly less controversial than overriding the filibuster or changing the number of justices on the Supreme Court.

Conservatives might also believe that Medicare expansion would significantly increase the budget of the federal government. This would be true but is ignoring two salient facts. The first is that the expansion to the federal budget would be something of the order of 2 trillion dollars a year, as the federal government already spends roughly 1.5 trillion of the 3.5 trillion the United States spends on health care. That level of expansion of government is somewhat similar to the deficit spending which just happened under the CARES act and other stimulus money spent during the current pandemic. So it’s not that large a leap for the country to make.

In addition while the expansion of Medicare under reconciliation would not directly abolish private health insurance in the manner that my colleague Senator Sanders has proposed, the fact that Medicare part A is free to Medicare recipients, and that parts B & D are very heavily subsidized, will mean that it is not only those who have lost their insurance or have trouble buying it in the individual market, or those who were previously on Medicaid, who will voluntarily enter the Medicare program. It is extremely likely that the vast majority of employers who are currently providing health insurance for their employees, which to be noted would be voluntary if there is no ACA, will cease to do that. After all their employees could now enter the Medicare program at no extra cost to them. While this will cost the government more, it will save employers and individuals an approximately equal amount and so the net effect on the economy will be limited.

Part of the reason that I am not a proponent of Medicare for all, has been that the change it would cause to employer-based health insurance, and to the finances of our nation’s health care system would be too extreme. It is worth noting that Rand  recently showed that employer-based health insurance paid hospitals and doctors at nearly 250% the rate they receive from Medicare. There will certainly be high transition costs for the health care system from this move but everyone in the health care system already understands how Medicare works. My Administration will to work with providers and care delivery organizations to make sure that they are able to fulfill their mission of providing high-quality care to Americans.

Even though I have been a political centrist my entire life and have never been a proponent of Medicare For All–despite the fact that every other industrialized nation has something pretty similar to it–if you strike down the ACA I will act immediately. I would view the suffering of Americans as being too great not to respond. With no ACA in place there is no available legislative option other than this Medicare expansion.

I am well aware of the ideology of many on the political right in the US including most of the conservative justices on the Supreme Court. I would stress that this type of radical expansion of Medicare is not what I would ordinarily want to see. But if the ACA is abolished in the middle of a pandemic and a massive depression, my first duty to the American people as their President will be to relieve the suffering of as many of them as possible.

As you consider your judgement in the California v Texas case I would ask you not to put me in the position where I would have to take such a radical step.  

But I assure you that if necessary I will have no hesitation in doing so.

Matthew Holt is the publisher of THCB. He has not written a speech for Joe Biden before but would happily lend him this one

Episode 17 of “The THCB Gang” was live-streamed on Thursday, July 9th! Watch it below!

Joining me were some of our regulars: patient advocate Grace Cordovano (@GraceCordovano), health economist Jane Sarasohn-Kahn (@healthythinker), WTF Health Host Jessica DaMassa (@jessdamassa), and guests: Tina Park, partner at Diagram (@diagramoffice) & Shannon Brownlee, Senior VP at the Lown Institute (@ShannonBrownlee). The conversation focused on asynchronous care, the gap between patients & technology, and the Supreme Court ruling on employers’ ability to limit women’s access to birth control coverage. It was a great and engaging conversation with some of the top health care experts in the field.

If you’d rather listen, the audio is preserved as a weekly podcast available on our iTunes & Spotify channels — Zoya Khan

By MIKE MAGEE

“The ‘Right’ to Health Care and the U.S. Constitution.”

(Register For Virtual Zoom Access Here.) https://securelb.imodules.com/s/1878/lg21/form.aspx?sid=1878&gid=2&pgid=1306&cid=3139&srce=WBpcfall2021

Join me, in-person or virtual, on 4 consecutive Thursdays this Fall.

Together we’ll examine 250 years of history and case law, to expose what our U.S. Constitution says (and leaves unsaid) about Americans’ “right” to health care. From the Bill of Rights to the Federalist Papers, from McCulloch v. Maryland to Griswold v. Connecticut, from “Comstockery” to Sanger, and FDR’s  “Court Packing,” we’ll cover it all.

You’ll learn about “penumbras” from William O. Douglas, and Due Process within the XIV Amendment; how the AMA chose Reagan as their spokesperson against “socialized medicine”, and how LBJ forced integration of hospital wards on Bible Belt states.

 We’ll do a deep dive into Roe v. Wade and learn how Justice Blackmun arrived at his compromise solution for “Jane Doe” and others, and examine why Texas Governor Abbott is trying to torpedo it a half-century later.

We’ll revisit the politicization of the Terri Schiavo “Right to Die” case, and uncover “conflicts of interest” and deficiencies in “informed consent” at the University of Pennsylvania that contributed to the research death of Jesse Gelsinger.

We’ll hear the voices and opinions of students and professors, analyze Justice Roberts’ National Federation of Independent Business v. Sebelius split decision that preserved the Affordable Care Act…address mandated vaccines, and much, much more.

In just four 90-minute packed sessions, you’ll gain a perspective on the current struggle for health care in America.  Most of all, you’ll learn and participate in the process. That’s a promise!

Register Today HERE. https://securelb.imodules.com/s/1878/lg21/form.aspx?sid=1878&gid=2&pgid=1306&cid=3139&srce=WBpcfall2021