Mitigate the Filibuster

The health care reform effort, or shall we call it “The Grinch,” has stirred debate aplenty. What’s wrong with death panels, anyway? Do you want the government in charge of your health care, or do you want to keep Medicare? Would you accept drugs from Canadians? A former judge even dubiously argued that the legislation itself is unconstitutional. (The guy who wrote the textbook on the Constitution reminded him of the Commerce Clause.)
jimmy stewart
Having elected a president and members of Congress who campaigned on the need to reform health care, we could have expected results within a year or so. But the bill spent months floundering in the Senate, the world’s greatest deliberative body, where debate matters more than results. Now with Scott Brown’s victory in the Massachusetts Senate race, the Republicans once again have 41 votes — nothing near a majority, but enough to jettison the proposals already passed by both Houses of Congress.

We can now have a serious debate: whether it makes sense to derail the filibuster. If the Constitution does not allow for ending it, we should at least mitigate its effect on future legislation.

The Founders did not create the filibuster, and it stuck as a thorn in the side of one of the five greatest Senators. When a group of Senators challenged the Treaty of Versailles, President Woodrow Wilson insisted on enacting cloture—the ability to cut off debate. Until 1975, cloture required a two-thirds vote (67 votes). Now, of course, the infamous tally is 60. As Paul Krugman recently noted, the filibuster has not always proved such a dangerous weapon. Only since 2006 has the minority dramatically increased its use of the filibuster (or at least, the phantom filibuster) on major legislation.


Published in: on January 20, 2010 at 6:11 pm Comments Off on Mitigate the Filibuster

Debate Out of Control: What is Healthcare Reforms’ Public Option Anyway?

We’ve all heard the, “You lie!” and “die quickly” quotes in the media. The 2009 Healthcare Reform Debate will go down in historical archives as a contentious battle royal. One small piece of this debate has garnered far more attention than it actually deserves. Described as a “sliver” of healthcare reform even by supporters – the Public Option has taken a center stage in the debate.

A recent headline, however, suggests there is broad support for a public option included in the overall healthcare reform package. Another news source showed polls swinging wildly based on how the questions were phrased. For example, in a Wall Street Journal/ NBC News poll if you asked, “In any healthcare proposal, how important do you feel it is to give people a choice of both a public plan administered by the federal government, and a private plan for their health insurance?” 72% of the people said “Extremely or Quite important.” If you change that to, “Would you favor or oppose creating a public health care plan administered by the federal government that would compete directly with private health insurance companies?” the support fell to 48%. The truth is that the public option debate has become entrenched in scary and false images of government death panels, people facing terrible diseases with no insurance to pay for their treatment, and partisan competition to be as rude, controversial, and divisive as possible. What are they fighting about and what does it mean for Americans?
The Public Option would entail a government run insurance plan to cover people not covered by other health insurance plans – state or private. The plan would compete directly with private insurers. The current House Bill would allow healthcare providers to negotiate their reimbursement rates. A public option would require the government to provide money for the initial set-up, which in the proposed Senate bills would require to be repaid over the next ten years. The insurance plan would then be self-sustained by member premiums. The current bill proposed by the Senate includes an opt-out for states; that means that states can choose for themselves not to offer a public option. Support is divided mostly along party lines with Democrats in favor and Republicans against.

Supports of the Public Option Pros:
Provides coverage for some of the estimated 46 million people without insurance in the United States. Recent estimates, however, say that only 2 percent of the population under 65 would take the public option as laid out in the current House Bill.
Provides choice of plans so people can select the better of either their employer’s or the federal option.
Intended to drive down industry-wide premiums by encouraging competition especially in markets with local monopoly providers.
Intended to provide people who lose their coverage through unemployment with an affordable option.

Healthcare Reform Protests Cons:
Some claim that competition with the government would cause the health insurance industry to collapse. According to Aetna’s CEO, “when you have a government plan, you have in essence a player in the industry who is a participant in the market, but also is a regulator and a referee in the game. And we think that those two roles really don’t work well.” President Obama and other proponents state that the reform would include rules to level the playing field between the government and the insurance companies. Others claim this is just the response of insurance companies that don’t want to compete.
Some people against the public option believe that this would encourage employers to stop providing health insurance benefits for employees. Proponents claim this would just provide a less expensive option for small businesses and the self-employed.


Published in: on November 3, 2009 at 11:03 pm Comments Off on Debate Out of Control: What is Healthcare Reforms’ Public Option Anyway?

What’s Height Got to Do with It?

Anyone who has taken the time to stroll around the arms and armor section of an art museum or who has carefully studied the size of a bed in a historical home easily comes to the same conclusion: the average person was a lot shorter in the past than he is now! A suit of armor intended for a fully grown man can often appear adequate for a fifteen-year old boy of today. Interestingly, the reasons for the relatively short statures of our forefathers provide us with a fascinating insight into how we can solve some of the health issues our country faces today.

A recent article in The New York Times discusses the importance of thinking about height in the current healthcare debates.* (Most studies deem a person “short” when they are under average height [5’10” for men and 5’4” for women].) It is practically common knowledge that Americans have gotten bigger in terms of girth. A fact that is not well known is that in comparison to other Western countries, where people are getting taller on average, people in the United States are staying the same height; some studies seem to suggest that Americans may even be getting shorter. Although obesity, i.e. thick waistlines, has been heralded as a major cause of sickness and death in this country, costing around one trillion dollars a year for Medicare, there are also substantial positive correlations between shortness and health problems.

Before any vertically-challenged people start raising their eyebrows, it is important to consider the many similarities between obesity and shortness. Many health issues that are often associated with being overweight are also attributed to being short. Short people are more likely than their taller counterparts to develop heart disease, stroke or diabetes, and short people, on average, do not live as long as those who are of average height or taller.


Published in: on October 21, 2009 at 8:53 am Comments Off on What’s Height Got to Do with It?

Pity the Soda Tax

Amid the general wrack and roil of the debate over healthcare, a dozen smaller dramas have played out.  The one I’ll be writing about today seems all but finished, and it proceeded along the rote lines of a typical legislative tragedy.  To wit; a good idea is put forward, high-minded politicians dutifully offer it guarded praise, and then a wealthy interest lobby smothers the proposed measure in its crib and everyone goes on like nothing happened.

This time our protagonist was a federal excise tax on soft drinks.  That was one of several revenue generators proposed last spring in the early stages of the health-care reform fight.  At the time President Obama and several other legislators called it an idea “worth considering,” which is about like describing a potential date as “a really nice person.”  We can assume that such tepid praise anticipated the vociferous opposition of the well-heeled beverage lobby, in the face of whose frothy, hammering assault the measure went down like a clubbed seal.  It does not appear on the current Senate version of the proposed bill.

Which is a shame, because there are a number of good arguments for it.  Many of them were laid out in a short article that two doctors, Kelly Brown and Tom Friedan, published in the New England Journal of Medicine on April 30.  The gist of the doctors’ case was this: First, the evidence linking soft drink consumption to obesity and diabetes is conclusive.  Especially telling is the significant increase in consumption of soft drinks by children over the course of the last few decades, and the very strong link between daily consumption of those drinks by children and their risk of obesity.  Second, there is good economic evidence that the demand for soda is strongly influenced by price signals.  An analysis by the soft drink industry found that increasing the price of soda by 6.8% caused sales to fall by 7.8%.  Kelly and Friedan concluded that a penny an ounce excise tax on drinks sweetened with sugar or corn sweeteners, which would reduce consumption by an estimated 13%, would have a positive effect on public health, not to mention raising billions of dollars.

They also pointed out that the relative costs of sweet drinks and fruits and vegetables have changed dramatically in the last 30 years (sodas have gotten cheaper while produce has gotten more expensive), and that beverage companies take advantage of massive advertising budgets and the information asymmetries created by dubious health claims (Vault gives you energy!  Sunny D contains vitamin C!) to sell their products to children.  Given all that, it seems that a soda tax is a reasonable, even desirable method for both improving health and funding health-care.

Not so! says the beverage industry, along with its hastily astro-turfed “citizens group,” Americans Against Food Taxes.  (more…)

Published in: on October 15, 2009 at 3:11 pm Comments Off on Pity the Soda Tax
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What’s So Great About Organic Food ?

In recent years, there has been a lot of focus on healthy eating, and particularly about eating organic foods. Most organic food purchasers do so for one of two reasons. They believe either that organic food is more nutritious or that is better for the environment. There continues to be conflicting evidence about whether organic foods are actually healthier than “regular” food. The only thing that is clear is that a well balanced diet is key to staying healthy. Whether one chooses to purchase organic or conventional fruits and vegetables to balance their diet does not really make a difference.

One of the supposed benefits of organic food is that it is environmentally friendly. It is true that organic farmers do not use the same pesticides that conventional farmers use. On the flip side, however, because organic farming produces half as much as conventional farming, more land is required to yield the same amount of food as modern conventional farming techniques.

It has also been alleged that organic foods are more nutritious. Organic food advocates claim that Organic food has 50% more minerals and vitamins than conventionally farmed produce. Advocates not only claim conventionally farmed produce is less nutritious, they also claim that it may be detrimental to one’s health. The pesticides conventional farmers use on their crops have been said to cause many desieases such as, cancer, Alzheimer’s, birth defects, and obesity. A study found that there is more ascorbic acid in organically grown vegetables. There is a lower protein content, but the quality of protein in organic vegetables is higher.


Published in: on April 20, 2009 at 11:10 pm Comments Off on What’s So Great About Organic Food ?

Opening the Door to a New Medical Marijuana Policy

While marijuana continues to be illegal under federal law, thirteen states, including first California in 1996 and most recently Michigan in 2008, have adopted laws legalizing the medical use of marijuana. This conflict between federal and state policies was brought into sharp focus during the Bush administration, which authorized the Drug Enforcement Agency to raid medical marijuana dispensaries and distributors across the country. Taking a sharp turn from Bush’s anti-medical-marijuana policies, the Obama administration has now promised to put an end to the DEA’s raids and adopt a hands-off approach that will allow states to pass and enforce laws on medical marijuana as they deem fit. (See the NY Times article here.) Many speculate that this is a significant step towards a new and improved federal policy on medical marijuana.

Of course, with the economic crisis pressing, no one can expect legalizing marijuana to turn into a priority issue any time soon. Or could we? One of the less obvious benefits of legalizing medical marijuana is the potential for a dramatic increase in state revenue directly attributable to fees and taxes associated with production and possession. To give you an idea of the numbers we are talking about, consider a recent Wall Street Journal article, which reported that as a $14 billion crop in California, medical marijuana could generate over $1 billion annually when taxed at $50 an ounce. Not enough to bail out the U.S. auto market for sure, but a considerable sum nonetheless.

“This is a scan of a photograph of a legally grown marijuana crop in rural Crittenden County, Kentucky, that was taken in 1942. (more…)

Published in: on April 9, 2009 at 9:31 am Comments Off on Opening the Door to a New Medical Marijuana Policy

A CON Gone Bad

Last week, William and Mary held its annual Benjamin Rush Symposium, at which selected students presented papers addressing issues in health law and bioethics. Among the many well-researched and articulate presentations, one that was particularly enlightening (in that it addressed a topic directly relevant to our daily lives yet little known among most of us) was Jeff Palmore’s presentation on certificate of need (CON) laws.

CON laws are state laws that essentially require healthcare facilities to obtain a permit from the state before constructing new buildings, expanding existent ones, purchasing new medical equipment, or offering new medical services. State approval is based on an evaluation of current need for the service or facility and further takes into account factors like location, accessibility, and cost.

CON laws originated during the 1950s and 1960s and culminated in 1974 when the United States Congress passed the National Health Planning and Resources Development Act, requiring states to pass CON laws in order to be eligible for federal subsidies for hospital construction. This federal mandate was enacted with three daring objectives in mind: to restrain skyrocketing health care costs, to prevent unnecessary duplication of health resources and to achieve equal access to quality health care. The idea was that by restricting supply, allocating services based on geographic location and need, and creating local monopolies, a state could override the fluctuations of the market and the selfish interests of particular healthcare players, and thereby control healthcare costs.


Published in: on February 17, 2009 at 11:27 pm Comments Off on A CON Gone Bad

Access Denied? The Fight for Corporate Accountability

Our chapter recently screened the documentary “Access Denied? The Fight for Corporate Accountability”, which features the tragic story of Diana Levine.

Levine, a professional musician,  was suffering from migraine’s and sought relief at a hospital. Due to faulty labeling on her medicine, Levine ended up having to get her arm amputated. A completely preventable error ruined her livelihood. 

The documentary, produced by the Alliance for Justice, follows Levine as she seeks a remedy in the federal court system. Seemingly every step she takes, Levine is thwarted by the legal issue of preemption.

Eventually, the Supreme Court granted cert on Levine’s case and it was argued on Nov. 3, 2008 (Wyeth v. Levine). Legal experts do not expect Levine to get the result she was hoping for, which will surely disappoint millions of Americans that seek to hold corporations more accountable.

After the film, we were happy to host Prof. Tortorice as he gave a lecture on the topic of statutory construction and federal preemption. 


Published in: on February 3, 2009 at 11:34 pm Comments Off on Access Denied? The Fight for Corporate Accountability

Religion in Hospital Rooms, Making the Call on Life Support and Death

On Monday, a 12-year-old boy who had been kept alive on life support died in a D.C. hospital. Motl Brody had aggressive brain cancer and his family grabbed the media’s attention when they began working through the judicial system to keep him on life support. His doctors declared Motl legally dead two weeks ago when a brain function test detected no brain activity at all. His family, Orthodox Jews, disagreed based on their Hasidic sect’s view that life continues as long at the heart is beating. The family sought help from the District’s judicial system in keeping Motl on life support, and asked for an order to prevent the hospital from performing any further tests for brain function. The hospital, who asked Motl’s parents for permission to end life support measures once there was no longer brain function, then requested permission from the judge to end the treatment and stated that the institution’s “scarce resources are being used for the preservation of a deceased body.” Religious supporters campaigned with phone calls and emails to the hospital, hoping to keep Motl on life support. Yet it appears the Jewish community is not wholly in agreement on where life ends, some perspectives aligning with Motl’s doctors that life ends with brain activity. What had the look of a long and emotional court battle, however, ended on Monday when the drugs and machines could no longer keep Motl’s heart beating. He died and was buried in Brooklyn, his family’s hometown, ending the dispute before the court could.

The question of when, and at whose discretion, medical life support should cease dominated headlines in 2005 with Terri Schiavo. In Schiavo’s case, the struggle between her husband (fighting to remove her feeding tube) and her parents (fighting to keep the feeding tube in place) centered on what Terri would have wanted – to be kept alive in the persistent vegetative state or not. In the case of Motl and his parents, religious belief is at the heart of the matter. It makes for a tricky situation for doctors who have to strike a balance between respecting the beliefs of patients and their families, and in making the best decision supported by science and medicine. Should the hospital in this case have gone as far with the Brodys as they felt their religion required? Does the right to freedom of religion entitle each of us to call the shots in medical situations – whether refusing treatment of demanding it? Or, should doctors make scientific decisions on end-of-life questions and leave spiritual beliefs completely out of it?

Motl Brody’s court case ended before any court orders were issued but, even if a judge had ruled with one side or the other, the questions raised by this situation would remain. Religious freedom is an unquestionably precious right, but doctors must be empowered to make medical choices based on the best information available to them. The best chance for a balance of these interests seems to be for medical decisions, especially ones of life or death, to be made based on conversations between patients and doctors. Of course, the Brodys’ experience illustrates that these conversations won’t always lead to agreement. Respect for religion and respect for science – there’s got to be a way they can both exist in a hospital room.


Published in: on November 20, 2008 at 1:02 pm Comments Off on Religion in Hospital Rooms, Making the Call on Life Support and Death
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Death with Dignity

In a historical election that stirred political excitement in unprecedented ways, it was easy to overlook some of the potentially groundbreaking state measures that made it on the ballot. One such measure was Initiative 1000, Washington’s Death with Dignity Act (PDF), legalizing physician-assisted suicide for terminally ill, competent adults, medically predicted to die within six months.

Physician assisted suicide (PAS), or death with dignity, the term its proponents prefer, has been a relatively dormant issue on the legislative front for some time. Almost all states explicitly criminalize the act; in some, it is subsumed under manslaughter, in others, it is considered a separate offense (inducement to commit suicide). Prior to November 4th, the only state to legally recognize the right of a terminally ill patient to die was Oregon. The Oregon Death with Dignity Act was passed in 1994 and recently upheld by the Supreme Court in Gonzales v. Oregon (PDF).


Published in: on November 12, 2008 at 11:50 pm Comments Off on Death with Dignity