Category Archives: Health Care

An Apple A Day, Yadda, Yadda, Yadda

Ezra Klein:

File this one under “health care doesn’t work nearly as well as we’d like to believe.” A group of researchers followed almost 15,000 initially healthy Canadians for more than 10 years to see whether universal access to health care meant that the rich and the poor were equally likely to stay healthy. The answer? Not even close.

The researchers ran the data two ways: High-income patients vs. low-income patients, and highly educated patients vs. less educated patients. Over the course of the study, the high-income patients were only 35 percent as likely to die as the low-income patients, and the highly educated patients only 26 percent as likely to die as the low-income patients. And the problem wasn’t that the low-income and low-education patients were hanging back from the health-care system. Because they were getting sick while their richer and better educated counterparts weren’t, they actually used considerable more in health-care services.

The problem, the researchers say, is that the medical system just isn’t that good at keeping people from dying. “Health care services use by itself had little explanatory effect on the income-mortality association (4.3 percent) and no explanatory effect on the education-mortality association,” they conclude.

You don’t want to over-interpret this data. It’s possible that in the absence of insurance, the gap would be much wider. Indeed, there’s good evidence suggesting that’s true. Nevertheless, this should make us very skeptical about a world in which we’re spending almost one out of every five dollars on health-care services. Universal insurance is crucial both for certain forms of health care and for economic security. But as I’ve argued before, it’s probably not the best way to make people healthier. Rather, the best way to make people healthier would be to get health-care costs under control so there’s more money in the budget for things like early-childhood education and efforts to strip lead out of walls, both of which seem to have very large impacts on health even though we don’t think of them as health-care expenditures.

Arnold Kling:

And that is from a study in Canada.3. The Washington Post reports,

A 2006 study by the U.S. Department of Education found that 36 percent of adults have only basic or below-basic skills for dealing with health material. This means that 90 million Americans can understand discharge instructions written only at a fifth-grade level or lower.

My guess is that if you want to improve health outcomes in the United States, ignore health insurance and focus on literacy. Even if it has nothing to do with whether or not they can follow a doctor’s written instructions, my guess is that better literacy has a positive impact on health outcomes. The question is whether educators know enough about how to improve literacy to be able to do so effectively. I hope that is the case.

Tim Carney at The Examiner:

During debate over the health-care debate, liberal blogger Ezra Klein wrote that blocking the legislation would “cause the deaths of hundreds of thousands of people.” The liberals were relying on a study from the Urban Institute saying 20,000 people die a year because they are uninsured. Free-market blogger Megan McArdle read the study and concluded:

when you probe that claim, its accuracy is open to question. Even a rough approximation of how many people die because of lack of health insurance is hard to reach. Quite possibly, lack of health insurance has no more impact on your health than lack of flood insurance.

Klein came back with this:

I don’t want to be too harsh, and I don’t want to imply that anyone is sitting around twirling their mustache thinking up ways to hurt poor people. But opposition to health-care reform (which is different than opposition to the people who would be helped by health-care reform) is leading to some very strange arguments about the worth of health-care insurance — arguments that don’t fit with previous opinions, revealed preferences, or even the evidence the skeptics are citing.

But today, with the fight over ObamaCare behind us, and the President dealing with expectations over what his bill can deliver, Klein has a blog post that goes much farther than McArdle ever did. Klein’s headline:

Health care doesn’t keep people healthy — even in Canada

The main thrust of Klein’s blog post:

The problem, the researchers say, is that the medical system just isn’t that good at keeping people from dying. “Health care services use by itself had little explanatory effect on the income-mortality association (4.3 percent) and no explanatory effect on the education-mortality association,” they conclude.

I don’t want to be too harsh, and I’ve got nothing against what Klein used to call “arguments that don’t fit with previous opinions,” so I’ll just recommend you spend more time reading Megan McArdle.

The same is true, I’ll bet, for folks like Tim Carney who like to argue that medical care is ineffective as a way to argue against subsidizing health insurance for poor people. But for the record, the best evidence we have suggests that health-care coverage does much more for the health of poorer people than it does for the health of well-compensated, highly educated people like Carney. That folks like Carney use that evidence to continue a status quo in which they have health insurance and the poor don’t is, I think, proof of how seriously they take their arguments on this score, and of what this discussion is really about — and the answer isn’t “improving the health of the population.”

Karl Smith at Modeled Behavior:

I suspect we have two things going on.First, education confers status and status is related to health outcomes. For example Oscar winners live longer than those simply nominated. How this link occurs is not totally clear. It seems that the hormones associated with stress and disappointment – cortisol for example – reduce long run health. However, this may not be the mechanism. No one really knows at this point.

Second, for a long list of reasons there is correlation between education and physical attractiveness. Physical attractiveness is by evolutionary design a proxy for health. Which to say, healthier folks are more likely to become well educated.

This makes me doubt that power of health improvements from increasing education.

In general it is just damn hard to improve health outcomes. Our bodies are the product of about 4 billion years of evolution. Just making sense of how they work is hard enough. Making them work better is a herculean task.

Jim Manzi at The American Scene:

There is a debate going on in the blogosphere between Ezra Klein, Arnold Kling, Karl Smith, Tim Carney and others about, to put it crudely, whether health care really affects health that much. This is, in part, a proxy debate for whether it is worth it for the U.S. government to provide generous universal health care financing for all of its citizens (or, I suppose, residents).

Either position can be caricatured. On one hand, no sane person would want to be without the advances of modern medicine. Recently, a little girl I know had scarlet fever. A century ago, this would very possibly have meant burying a small corpse; today, it implies a 10-day cycle of swallowing medicine at breakfast and dinner. There are few people on Earth who have as much reason to be proud of how they spend their work week as pharmaceutical researchers.

On the other hand, the link from alternative methods of health care finance, through the actual differences in provision of medical care these imply in the contemporary U.S., to the actual differences in health outcomes these treatment differences would cause, isn’t nearly so obvious. The net health effect of providing universal health care coverage versus some alternative financing system is an empirical question, not a philosophy debate.

I’ve written a lot about why randomized experiments are so critical to understanding cause-and-effect relationships in social policy. In the case of health care financing, the reason is that what system of health care financing you have (high-quality “go to any doctor” plan; good HMO; catastrophic-only plan; VA; go to an emergency room because you are uninsured, etc.) is bound up with a myriad of other factors that influence health. A randomized experiment allows us to isolate the impact of the system of health care financing.

To my knowledge, the only large-scale randomized experiment in the U.S. that has tested the actual effects on health of providing various kinds of healthcare financing was the RAND Health Insurance Experiment (HIE). In this experiment, thousands of families were randomly assigned to one of five different health insurance plans that ranged from something like a plan that provides free health care, to something like a pure catastrophic-only plan in which consumers pay out-of-pocket for day-to-day healthcare. The study tracked what exact health care services each group used, and how their health varied over a period of 3 – 5 years.

Ezra Klein describes this experiment as “the best evidence we have,” and writes that it “suggests that health-care coverage does much more for the health of poorer people than it does for the health of well-compensated, highly educated people.” His statement is correct, but as a summary of the results of this experiment, seems to me to be radically incomplete. In fact, the experimenters wrote of the findings that “cost sharing reduced the use of nearly all health services,” but “the reduction in services induced by cost sharing had no adverse effect on participants’ health.” Think about that. Providing people coverage of their medical costs caused no average improvement in health.

Klein is correct that there appeared to be a net health benefit for the poorest participants, but this was for a tiny proportion of the population, and for a small subset of medical conditions. According to the study, “The poorest and sickest 6 percent of the sample at the start of the experiment had better outcomes under the free plan for 4 of the 30 conditions measured.” There are technical reasons why conclusions from such a experiment are not reliable for post hoc subgroups in the way that they are for average comparison of a test group versus a control group; but even if we were to accept this finding as valid, it’s not obvious to me that we would want to devise a health care financing system for the United States around helping 6% of the population partially ameliorate about 10% of their potential health problems, as opposed to developing some specific supplementary programs for these issues, if they could be addressed feasibly.

Klein clearly has a very sophisticated take on the issue, and wrote in 2009 that health care reform is not primarily about improving health, but in reducing how much we spend on it. As he put it, “The purpose of health reform, in other words, is to pay for health care — not to improve the health of the population.” Fair enough. But the real debate, then, would be about whether market forces or bureaucratic control would be better at reducing costs, not about which would be better at promoting health for the “poorest and sickest” or anybody else. It wouldn’t be about getting better health outcomes.

A single experiment like the RAND HIE is not definitive. Among other things: it finished in 1982, and we live in a different world; any such experiment requires replication; it might be that the important health effects take much longer than 5 years to materialize, and so on. But as an observer of the health care debates, it always struck me as fascinating that the fact that the “best evidence we have” showed that providing health care coverage doesn’t actually improve average health wasn’t treated as more central.

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Give The Public What They Want, More Blog Posts On Mandates

Sheryl Gay Stolberg and Kevin Sack at NYT:

Seeking to appease disgruntled governors, President Obama announced Monday that he supported amending the 2010 health care law to allow states to opt out of its most burdensome requirements three years earlier than currently permitted.

In remarks to the National Governors Association, Mr. Obama said he backed legislation that would enable states to request federal permission to withdraw from the law’s mandates in 2014 rather than in 2017 as long as they could prove that they could find other ways to cover as many people as the original law would and at the same cost. The earlier date is when many of the act’s central provisions take effect, including requirements that most individuals obtain health insurance and that employers of a certain size offer coverage to workers or pay a penalty.

“I think that’s a reasonable proposal; I support it,” Mr. Obama told the governors, who were gathered in the State Dining Room of the White House.

“It will give you flexibility more quickly while still guaranteeing the American people reform.”

Kate Pickert at Swampland at Time:

As I wrote in November, there’s no guarantee Republicans governors will embrace this 2014 opt-out waiver plan, which would have to pass through Congress to become law:

Aside from the political implications of endorsing a plan championed by a Democratic leader on health reform – even if he is in cahoots with a Republican from a blue state – some on the right might balk at the Wyden-Brown plan on the grounds that it’s still an expensive expansion of government. The Wyden-Brown plan, after all, does not – as far as I can tell – spend any less money than the ACA without a state opt-out. On the contrary, it may cost more.

The Wyden-Brown plan also does not impact the huge Medicaid expansion called for in the ACA, which Republicans vehemently oppose. It doesn’t eliminate taxes on expensive health insurance plans, or fees levied on medical devices or pharmaceuticals.

Another catch: The Wyden-Brown plan only allows states to opt out if they have a good plan for how to undertake comprehensive health care reform on their own. Most states don’t have such a plan. Massachusetts, which enacted reform in 2007, obviously does, which is why Brown was a logical co-sponsor of the opt-out bill. California, Connecticut and Vermont are three other states that are on their way toward developing health care reform inside their borders. But red states – especially southern states – are among those least equipped to design and implement reform that could accomplish what the ACA attempts to do, as they typically have higher percentages of uninsured residents and looser insurance regulation.

Conn Carroll at Heritage:

As long as the HHS Secretary, whether it is Kathleen Sebelius or the next occupant of the office, has the final say on granting Obamacare waivers, then there is no real flexibility for states under Obamacare. All 50 of them would still be at the mercy of the whim of the HHS. The only real way to give states true flexibility on health care reform begins with the full repeal of Obamacare.

UPDATE: Politico confirms that Wyden-Brown has nothing to do with offering Obamacare critical states “flexibility” and everything to do with advancing single payer health care:

[A] White House conference call with liberal allies this morning says the Administration is presenting it to Democrats as an opportunity to offer more expansive health care plans than the one Congress passed.

Health care advisers Nancy-Ann DeParle and Stephanie Cutter stressed on the off-record call that the rule change would allow states to implement single-payer health care plans — as Vermont seeks to — and true government-run plans, like Connecticut’s Sustinet.

The source on the call summarizes the officials’ point — which is not one the Administration has sought to make publically — as casting the new “flexibility” language as an opportunity to try more progressive, not less expansive, approaches on the state level.

“They are trying to split the baby here: on one hand tell supporters this is good for their pet issues, versus a message for the general public that the POTUS is responding to what he is hearing and that he is being sensible,” the source emails.

Ezra Klein:

The question is whether this makes Wyden-Brown more or less likely to pass. I’m guessing less likely. The political theory behind Wyden-Brown was that it gave Republicans a constructive way to attack the Affordable Care Act: The waiver program could be sold as a critique of the law — “it’s such a bad bill that states need to write their own policy” — even as it entrenched the country’s basic commitment to universal health-care insurance. You could’ve imagined it being attached to the budget or one of the spending bills as part of a larger bargain.

But now that Obama has admitted it’s not a threat to the Affordable Care Act, a lot of the appeal for Republicans dissipates. Supporting it could even be seen as helping the White House in its efforts to defend the law against repeal. So the idea looks likelier to become a talking point for the administration — see how reasonable we’re being? — than an outlet for Republicans. But perhaps that doesn’t matter: Wyden-Brown hasn’t attracted any Republican co-sponsors beyond Scott Brown, so maybe it never had a chance of playing its intended part anyway.

Kevin Drum:

I suspect this is not as big a deal as it seems. Basically, Obama is calling the bluff of Republicans who insist that they can build a healthcare system that’s as extensive and affordable as PPACA using some combination of tea party-approved “free market” principles. He’s telling them to put their money (or, rather, money from the feds) where their mouths are, which will probably demonstrate fairly conclusively that they can’t do it. It’s possible that a state like Oregon might enact a more liberal plan that meets PPACA standards, but I doubt that Alabama or Tennessee can do it just with HSAs and high-deductible health plans.

Still, we’ll see. This is a chance for conservatives to show that they have a better healthcare answer in the real world, not just as talking points at a tea party rally. Obama is betting they’ll fail, and he’s also betting they’ll tear each other apart arguing over details while they do it. Life is easy when all you have to do is yell “Repeal Obamacare!” but it gets a lot harder when you have to produce an actual plan.

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Vinson Goes The Whole Taco

Erick Erickson at Redstate:

I am not, with this post, going to attempt a detailed exposition on Judge Vinson’s ruling that declared the individual mandate unconstitutional and, due to the lack of a severability clause, struck the whole law as unconstitutional. But I will give you a brief overview and direct you to other good sources.

Here are the basics you will need to start your day.

First, you need to understand that the case before Judge Vinson was not directed at whether the federal government can involve itself in healthcare. Instead, the case was whether the individual mandate is constitutional.

The individual mandate is the keystone to the whole legislation. Without it, the funding mechanisms of the law collapse in on themselves. Judge Vinson ruled that forcing people to buy healthcare insurance, whether they want it or not, is unconstitutional.

Ilya Shapiro at Cato:

In short, if I read the opinion (plus this final judgment) correctly — quite apart from both the lofty philosophical principles I applaud Judge Vinson for adopting and the nitty-gritty technical details of his individual mandate analysis — Obamacare is dead in its tracks.  Now, Judge Vinson himself or the Eleventh Circuit (or even the Supreme Court) may issue an emergency stay of this or any other part of the ruling, but as of right now, the federal government must stop implementing Obamacare.

Aaron Worthing at Patterico:

Well, go ahead, see what happens if you try to implement Obamacare without actually overturning the decision.

And notice that term “activism.”  The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals.  They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air.  Let’s suppose for the sake of argument that the judge’s opinion is supported by the constitution or precedent—they have no principled objection to that.  So their objection is merely to losing.

And meanwhile anonymous White House officials had this to say:

White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.

“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on condition of anonymity.

David Bernstein:

Hmm. I think it’s a bit curious that the White House would send an “anonymous” official to criticize the ruling of an Article III judge, and surpassingly curious that a gaggle of reporters would agree to respect the aide’s anonymity in exchange for the “anonymous” quotes.
Shouldn’t the reporters either tell the official to go on the record, or refuse to take part in a “briefing” that amounts to simply a colorful attack on an unfavorable opinion?

Orin Kerr:

Now let’s return to Judge Vinson’s analysis of the Necessary & Proper Clause. The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.” Page 62. He writes:

[T]he Commerce Clause limitations on the federal government’s power would definitely be compromised by this assertion of federal power via the Necessary and Proper Clause. . . . .The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Anyway, I realize this argument will only resonate with readers who care about binding precedent, which at times seems like a vanishingly small group of readers. But it does seem to be the weak link in Judge Vinson’s opinion for the three of us who are interested in whether the decision is correct under existing law.

UPDATE: I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before.

ANOTHER UPDATE: My co-blogger Ilya Somin defends Judge Vinson by pointing out that the Supreme Court’s majority opinions insist that the federal government does not have completely unlimited power. Ilya’s argument is unpersuasive because the existence of nonzero limits in no way implies the existence of major limits. The current state of Commerce Clause doctrine is that there are certain largely symbolic limits on federal power but those limits are relatively minor: As Justice Thomas put it, Congress can regulate virtually anything.  Judge Vinson says that this cannot be the law because it would make the federal government too powerful. But Judge Vinson does not consult existing doctrine before declaring the principle, and that’s the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause.

Peter Suderman at Reason

John Hinderaker at Powerline:

Based on existing Supreme Court precedents, Judge Vinson’s opinion strikes me as well-reasoned. But this case is different from any that have yet come before the Court, and the Court could go either way. The final decision will be essentially political.

While everyone purports to agree in principle that our federal government is one of limited, enumerated powers, the true liberal position is that there are no limits at all on what the federal government can do, except as set forth in the Bill of Rights. Thus, the delineation of the role and powers of the national government, as laid out in the main body of the Constitution, is ignored. On the other hand, the amendments are selectively given an expansive reading where necessary to prevent the government from doing something that liberals do not think is appropriate (e.g., enforcing laws against abortion). Affirming Obamacare would represent a new high-water mark for that philosophy.

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The First Lady Kills! Or Doesn’t…

Get Up – Get Moving – Get Hit
Officials say an increase in pedestrian deaths may be linked to Michelle Obama’s exercise program.

Mark Weaver at 630 WMAL:

The Governors Highway Safety Association says pedestrian deaths increased in the first half of 2010 and the First Lady’s program to get Americans to be more active could be partly responsible.

Governors Highway Safety Administration spokesman Jonathan Adkins told 630 WMAL that Michelle Obama is “trying to get us to walk to work and exercise a little bit more.  While that’s good, it also increases our exposure to risk.”

After four straight years of steady declines, pedestrian deaths were up during the first six months of 2010, the latest figures available to be studied.

Other factors include distracted drivers, distracted pedestrians and what Adkins calls “aggressive pedestrians.”

“People who are not crossing where they are supposed to.  They’re running in front of cars.  We’ve even had examples of pedestrians getting out on the interstate,” said Adkins.

Alcohol is also factor in increased pedestrian deaths.

“We’ve done a good job of getting people, after a night out of partying, to leave their keys behind.  But just because you are walking does not mean you are not at risk,” said Adkins.

Pedestrians are also increasingly distracted by iPods and smart phones.  It is not uncommon to see people crossing streets while fiddling with an electronic device and not watching where they are walking.  Hospital emergency rooms have reported an upsurge of people injured in a fall because they were distracted by electronics.

Scott McCabe at The Washington Examiner:

First lady Michelle Obama’s campaign to get people to exercise outdoors might be a factor in an increase in the number of pedestrian deaths during the first half of last year, according to the Governors Highway Safety Association.

GHSA executive director Barbara Harsha said her organization doesn’t know why there were more deaths in the first six months of 2010 than in 2009, but the increase is notable because overall traffic fatalities went down 8 percent during this period, and the increase ends four straight years of steady declines in pedestrian deaths.
But the “get moving” movement, led by Obama’s “Let’s Move” campaign to eliminate childhood obesity, could be to blame, Harsha told The Washington Examiner.

“There’s an emphasis these days to getting fit, and I think people doing that are more exposed to risk [of getting hit by a vehicle],” said Harsha, who conceded to having no scientific evidence that the Let’s Move campaign has led to an increase in walkers and runners, or deaths.

“This is all speculative,” Harsha said. “Obviously, further study is needed.”

The first lady’s office did not respond immediately Wednesday to a request for comment.

Amanda Carey at Daily Caller:

Governors Highway Safety Association Director Barbara Harsha says she was misquoted in a story alleging she blames a rise in pedestrian deaths on Michelle Obama’s anti-obesity program, according to the Atlantic.“I was misquoted, said Harsha. “We in no way oppose Ms. Obama’s program.” She said she was trying to make a broader point about pedestrian awareness and safety. If Obama’s program is getting more people to walk, “they need to be aware of their surroundings and do so in a safe manner.”

Pedestrian deaths increased sharply during the first half of 2010, according to the GHSA.

Where to start?

Well, first off, there are no figures provided.  Via Dr. Google, I see “The Governors Highway Safety Association says in the report that 1,891 pedestrians were killed in the first six months of 2010, up from 1,884 in the same period in 2009 — a 0.4 percent increase. ”  Now, I don’t know the historical variation in these things, but I’d say offhand that this is a statistically insignificant swing.   Regardless, a variety of factors — alcohol, technology, and road design among them  – seem to be considered possible explanations for the slight reversal in trend.

Second, while I don’t pay much attention to the social campaigns of First Ladies, I don’t recall Mrs. Obama telling people that they should get drunk, strap on an iPod, and go wandering around the streets reading their BlackBerries.  She’s advising people to get some exercise, not to go wander around in traffic.  Yes, that’s technically a form of exercise.  There are others.

Third, anecdotally at least, I have indeed seen an increase in pedestrians distracted by electronic devices, whether it be texting while walking or grooving to whatever’s piping through their little white earbuds.  Then again, I’ve seen the same thing among people operating automobiles — and traffic deaths are down 8 percent during the same period.

Ed Morrissey:

An increase of 0.4% is, statistically speaking, noise.  It’s a random variation that occurs in smaller data sets.  Changes in weather conditions could account for the difference.

[…]

We have plenty of reasons to disagree with this administration and fight their policies.  These are not those.

Megan McArdle:

What to say about a statement by the Governor’s Highway Safety Association spokesman which seems to blame–I swear, I am not making this up--Michelle Obama’s national fitness campaign for an uptick in pedestrian deaths?

In order to make this sort of statement, I’d want some pretty ironclad evidence that, first of all, Michelle Obama’s exhortations were actually causing people to spend more time walking on our nation’s roads–a premise that this libertarian, for one, is pretty skeptical of.
I’d also want to see some evidence that they were walking on roads where, y’know, more people were dying.

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Today We’re Gonna Party Like It’s 2009

Elspeth Reeve at The Atlantic with a round-up. Reeve:

House Republicans will vote to repeal the health care law Wednesday–a vote widely expected to go nowhere, because the Senate won’t pass repeal, and if it did, President Obama would repeal it. But is the vote more than symbolic? It certainly won’t be the last we hear of the health care debate, The New York Times’ David M. Herszenhorn and Robert Pear report. Not by a long shot. Lawmakers will be fighting for the next two years over the government’s proper role in the health care system, and so will 2012’s presidential candidates.

The House began debating repeal Tuesday. Republicans argue that the Congressional Budget Office is underestimating the future cost of the law. Democrats say the CBO might be overestimating the price tag, because the law is meant to improve the delivery of care and thus slow the growth of its expense. Another major point of contention is whether the law will create or destroy jobs.

Andrew Stiles at The Corner:

House Majority Leader Eric Cantor (R., Va.) continues to challenge Senate Majority Leader Harry Reid (D., Nev.) to take up the Republican repeal of health care reform in the Senate once it (presumably) passes the House, where a vote is currently scheduled for 6:30 this evening.

“We have [s]aid that we are going to be a results driven Congress,” Cantor told reporters this morning. “So I have a problem with the assumption here that somehow the Senate can be a place for legislation to go into a cul-de-sac or a dead-end.”

“The American people deserve a full hearing,” he continued. “Let’s see the votes.”

Reid has said he has no plans to bring repeal to the Senate floor, in part because it has no hope of passing. Cantor has urged the Democratic leader to put his money where his mouth is. “If Harry Reid is so confident that the repeal vote should die in the Senate, then he should bring it up for a vote, if he’s so confident he’s got the votes,” Cantor said Tuesday.

Jennifer Rubin:

The conventional wisdom (i.e. the consensus of wishful-thinking, generally liberal elite opinion makers) is that it then goes nowhere. But don’t be so sure. Senate leadership advisers tell me there is always a way, through amendments and other procedural efforts, to get votes. They point out that filibusters also can be mounted. That is precisely why filibuster reform is going nowhere.

The Republican Senate leadership does not expect any Senate Democrats to flip sides on the vote for an out-and-out repeal. The consolation prize is that Democratic senators such as Jim Webb, Claire McCaskill, Ben Nelson and Bill Nelson will have to defend those votes in 2012.

On votes on discrete issues, there is a high likelihood that some provisions — e.g. the massive paperwork burdens on business — will draw Democratic votes. Likewise, there may be difficult votes for Democrats on everything from Medicare Advantage to the individual mandate.

Red state Democrats up for re-election in 2012 will have a very tough time of it — back the president or help their own re-election prospects? And as this goes on, the House will be holding hearing after hearing on ObamaCare to, in Nancy Pelosi’s words, find out what is in it.

Jimmie Bise:

For reasons I can’t quite fathom, progressives have decided that one of the big stories this week should be whether or not Speaker Boehner will change the name of the “Repealing The Job Killing Health Care Law Act”. Apparently, “job killing” is now verboten speech, lest some barely-hinged right winger mistake a Democrats for a job and kill…wait…mistake a Democrat for Obamacare and…

…okay, I’m baffled here. I don’t know why this is a story except that it involves the word “killing”, which is violent rhetoric, and violent rhetoric is wrong.

To Boehner’s credit, he toyed around with a few alternate phrasings, such as “job crushing” and “job destroying”, but they didn’t send the requisite tingle down Chris Matthews leg so he went back to the original name.

However, I am in possession of a super secret, ultra-classified list of names the GOP had considered to replace the “Repealing The Job Killing Health Care Law Act”. At the risk of running afoul of Dick Cheney’s Haliburton Ninja Death Squads, I will share them with you now.

5) The “We’re Not Going to Grind Gramma Into An Edible but Nutritious Slurry Act”.
4) The “Sarah Was Right; There Really Are Death Panels Act”.
3) The “Dear God in Heaven, What Were We Thinking Act”.
2) The “We’re In Charge, So How Do You Like Us Now Act”.
1) The “Happy Cuddle Puppies Nuzzle Wuzzle Act”.

I’m glad they stuck with the original.

Philip Klein at The American Spectator:

Of all the arguments liberals have been making during the health care debate, among the most tenuous is the idea that Republican members of Congress who accept government sponsored health insurance are being hypocrites for favoring repeal of government-sponsored health insurance for other Americans. Today, bloggers over at Think Progress post what they evidently think is a clever video of them challenging Republican members to explain why they accept government health care benefits.

The explanation for this is quite simple. Most Americans receive their health insurance through their employers, and members of Congress are employees of the government. Hence, the government helps pay for their coverage.

To extend the logic being used by liberals would mean that if Democrats were to propose a law in which the federal government sends $100,000 checks to every lower-income American, any Republican members who still collected their salaries would be hypocrites for opposing it.

Peter Suderman at Reason:

Here’s Health and Human Service Secretary Kathleen Sebelius’s latest defense of the administration’s health care overhaul: If it were repealed, according to the headline from an HHS press release yesterday, “129 million Americans with a pre-existing condition could be denied coverage.” That’s roughly half of all Americans under 65 who might “be at risk of losing health insurance when they need it most, or be denied coverage altogether,” according to the release.

Or maybe it’s a little less. OK, perhaps even a lot less. The release quickly qualifies the headline estimate to indicate that it may be that as few as 50 million Americans—just 19 percent of the non-elderly population, rather than half—under 65 have “some type of pre-existing condition,” which apparently means everything from cancer to high blood pressure. It’s all rather hard to pin down, you see. 50 million. 129 million. It’s somewhere in there. With precision estimates like these, you know they’ve got the goods.

Fine. 50 million is still a big number. Should we seriously worry that almost 20 percent of Americans will lose their health coverage without the Patient Protection and Affordable Care Act?

Not really. As the Cato Institute’s Michael Cannon points out, a 2001 study by none other than HHS noted that only 1 percent of Americans have ever been denied health coverage for any reason. And according to a just-published study in the health policy journal Health Affairs, “the fraction of nonelderly uninsured persons…who would be rated as actuarially uninsurable is generally estimated to be very small, less than 1 percent of the population.”

Scott Johnson at Powerline:

Putting Obamacare out of its misery is the critical mission that must be carried out be Republicans in the coming years. It seems to me to raise in a profound form the question Lincoln asked regarding Douglas’s professed indifference to slavery: “I ask you in all soberness, if all these things, if indulged in, if ratified, if confirmed and endorsed, if taught to our children, and repeated to them, do not tend to rub out the sentiment of liberty in the country, and to transform this Government into a government of some other form.” The form of the question suggests that the answer is yes, as I believe it to be in both cases.

In “Buck up and stop Obamacare,” Dr Milton Wolf asserts: “Obamacare has become ground zero in the fight for America’s future.” And that’s the spirit in which the task of killing Obamcare must be approached.

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A Day Of Reckoning For Jenny McCarthy, And Not Just For “John Tucker Must Die”

Frankie Thomas at New York Magazine:

One of the most famous flawed studies ever conducted, Dr. Andrew Wakefield’s now-retracted 1998 paper that linked vaccines to autism has been found to be not a scientific error, but a deliberate lie. BMJ, a British medical journal, has just published its investigation of the matter and concluded that Dr. Wakefield purposely falsified his data. They report that he was contracted by lawyers determined to sue the vaccine manufacturers, regardless of scientific truth.

Jonathan Adler:

A report by journalist Brian Deer in the British Journal of Medicine, the first in a series, reveals that the Wakefield study relied upon “bogus data” that was “manufactured” by those who conducted the study.  Specifically, Deer found that the study’s authors misrepresented medical and other information about the children in the study, including the timing and appearance of relevant symptoms, creating a false impression of a vaccine-autism link that was not there.

An accompanying editorial in the BMJ pulls no punches.

The Office of Research Integrity in the United States defines fraud as fabrication, falsification, or plagiarism. Deer unearthed clear evidence of falsification. He found that not one of the 12 cases reported in the 1998 Lancet paper was free of misrepresentation or undisclosed alteration, and that in no single case could the medical records be fully reconciled with the descriptions, diagnoses, or histories published in the journal.

Who perpetrated this fraud? There is no doubt that it was Wakefield. Is it possible that he was wrong, but not dishonest: that he was so incompetent that he was unable to fairly describe the project, or to report even one of the 12 children’s cases accurately? No. A great deal of thought and effort must have gone into drafting the paper to achieve the results he wanted: the discrepancies all led in one direction; misreporting was gross. Moreover, although the scale of the [General Medical Council’s] 217 day hearing precluded additional charges focused directly on the fraud, the panel found him guilty of dishonesty concerning the study’s admissions criteria, its funding by the Legal Aid Board, and his statements about it afterwards. . . .

Meanwhile the damage to public health continues, fuelled by unbalanced media reporting and an ineffective response from government, researchers, journals, and the medical profession. Although vaccination rates in the United Kingdom have recovered slightly from their 80% low in 2003–4, they are still below the 95% level recommended by the World Health Organization to ensure herd immunity. In 2008, for the first time in 14 years, measles was declared endemic in England and Wales. Hundreds of thousands of children in the UK are currently unprotected as a result of the scare, and the battle to restore parents’ trust in the vaccine is ongoing.

(citations omitted)

Perhaps now, finally, the vaccine-autism charade is over. I’ll await the reports on Oprah and MSNBC’s “Countdown.”

mistermix:

Wakefield was employed by a lawyer who wanted to sue vaccine makers and was paid a total of £435 643, plus expenses. He “discovered” the autism-MMR link after being put on the payroll, but before doing any research at all.

Nick Gillespie at Reason

Kevin Drum:

The punchline, of course, is that parents panicked over Wakefield’s results and lots of them decided not to get their kids vaccinated. As a result:

Measles has surged since Wakefield’s paper was published and there are sporadic outbreaks in Europe and the U.S. In 2008, measles was deemed endemic in England and Wales.

The vaccine-autism quackery that Jenny McCarthy and her ilk continue to promote isn’t just harmless fun and games. It’s damaged untold children and might well have killed a few. It’s long past time for it to stop.

Ann Althouse:

What psychological suffering this man caused in so many vulnerable parents of little children! For a scientist to subvert science — why don’t we have a much more intense feeling of horror about that? How dare those trained in science to misuse it and undermine the enterprise of science? Our shared interest in science is so strong – our need to rely on experts so great — that we should severely punish those who betray it. But we can’t, really, can we? If we tried, we might only exacerbate the pressures on scientists to toe the line and give us the answers we want, lest we target them for destruction.

Scott Lemieux at Lawyers, Guns and Money

Max Read at Gawker:

Unfortunately, it’s unlikely it’ll do much to convince the conspiracy-minded, who are positive the pharmaceutical industry is covering up the real evidence that autism is caused by vaccines; like birtherism and other nutty beliefs, fear of vaccination is about strong feelings and not really about evidence. Which is too bad. Babies are dying of vaccine-preventable diseases, and people like Andrew Wakefield need to be held responsible.

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Virginia Is Not For Lovers Of A Mandate

Kevin Sack at NYT:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.

Daniel Foster at The Corner:

Suit was brought by Virginia attorney general Ken Cuccinelli.

“I am gratified we prevailed. This won’t be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution,” said Cuccinelli in a statement.

Cuccinelli has made the extraordinary request that the case bypass the regular appellate order and proceed directly to the highest court, arguing that the Obama administration, too, would benefit from a speedy resolution.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Tom Maguire

Jonathan Cohn at TNR:

Hudson’s ruling is not unexpected. He is a Republican appointee with a history of conservative rulings. Nor is it definitive. Two other federal district judges, Democratic appointees both, have already ruled that the entire law passes constitutional muster. A fourth decision, by a judge in Florida, is expected by year’s end.

Most legal experts expect that, eventually, the case will come before the U.S. Supreme Court. Hudson himself acknowledged as much, writing “The final word will undoubtedly reside with a higher court.”

And how might the five Republican appointees and four Democratic appointees on the Surpeme Court rule? Most court observers I know believe that at least one of the Republican appointees, most likely Anthony Kennedy, would agree with the government that the Affordable Care Act falls well within traditional boundaries of the taxing and interstate commerce powers. (For an example of such logic, see the Michigan ruling from a few weeks ago.)

I tend to think those experts are right, for reasons I’ll get around to explaining one of these days. Then again, I recall hearing similar confidence about another highly anticipated court ruling–one about, oh, ten years ago.

For more on the mandate and some varied opinions on how an adverse ruling by the Supreme Court might affect the Affordable Care Act overall, see Aaron Caroll, Jonathan GruberEzra Klein, and Igor Volsky.

Meantime, if you’re looking for a more generic primer on the individual mandate, I highly recommend this video from the Kaiser Family Foundation.

Orin Kerr:

I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

Ezra Klein:

he real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn’t penalize anyone for deciding not to do something (which is the core of the conservative’s legal argument against the provision). Here’s one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.

Doug Mataconis:

In this particular case, the next step on the appellate ladder would be the Court of Appeals for the Fourth Circuit, which has generally had a reputation of being among the more conservative Courts of Appeal.  However, Virginia’s Attorney General has reportedly been mulling the idea of  applying to the Supreme Court to leave to bypass the  Court of Appeals and proceed directly to the final state of the appellate process. Even if such an application were made, there’s no guarantee it would be granted so the the case may end up in the 4th Circuit anyway, but this strikes me as mistake. It seems to me that a final hearing before the Supreme Court might have a better shot, for Virginia, if it had other rulings against the law from other Courts behind it.

In any event, it’s clear that the Federal Government was unable to overcome much of the initial skepticism that Judge Hudson expressed about the arguments in favor of the mandate in his ruling on the government’s Motion to Dismiss. On the Commerce Clause, Hudson ruled that the requirement that American citizens purchase health insurance or face a penalty to exceed even the relatively liberal bounds of Congressional authority as set forth in case likes Wickard v. Filburn and Gonzalez v. Raich and that failure to act cannot itself be considered an act occurring within interstate commerce. On the government’s backup argument that the mandate and it’s penalty are justified under Congress’s far broader authority to tax for the “general welfare,” Hudson essentially ruled that the taxing power cannot be used to accomplish a purpose not authorized under the specific grants of power given to Congress under Article I, Section 8, and that the Attorney General’s argument is undercut by the fact that both Congress and the President specifically denied during the build up to passage of the Affordable Care Act that the mandate was a tax (a relevant fact because it goes to the question of Congressional intent).

Finally, rather than declaring the entire ACA unconstitutional, Hudson’s decision merely enjoins enforcement of the individual mandate. However, given the fact that mandate is the centerpiece of the entire regulatory scheme, it is hard to see how the rest of the law could survive without it.

This case is obviously going to be appealed, but it’s nonetheless a victory for Virginia, and it’s noteworthy as one of the few times in recent memory that a Court has said to Congress — no, you can’t do that. For that reason alone, it’s a good thing.

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Filed under Health Care, The Constitution