Saturday, July 04, 2009

Is ObamaCare the end of Roe v. Wade?

Talk about the law of unintended consequences. Stated or unstated, a driving force behind modern liberalism takes root in the 1973 Supreme Court decision Roe v. Wade, in which abortion was legalized. The Court found a "right to privacy" guaranteed by the due process clause of the 14th Amendment, saying that a woman had a constitutional right to abort her child up until the "point at which the fetus becomes viable." The Court quite specifically defined viability as the point at which a fetus is "potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

Quite aside from the political acrimony the Roe decision has generated from the day it was issued, the hot debate over President Obama's health care proposal alters the abortion debate in a fashion quite unintended. If passed, ObamaCare could instantly set up a legal confrontation between the principle behind President's health care system -- and the principle undergirding Roe v. Wade. Which in turn would launch a political battle royal between proponents of government health care and abortion rights.

Why? A reading of the Roe decision leaves no doubt whatsoever of what abortion advocates have claimed ever since the opinion was handed down. To quote the Supreme Court decision directly:

"We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life."

If, as Roe clearly states, "the State does have an important and legitimate interest in preserving and protecting the health [emphasis mine] of the pregnant woman" -- why doesn't it have "an important and legitimate interest" in protecting the health of the rest us? Like, say, the President's own late grandmother? Or U.S. Senator Arlen Specter? Or you?

According to the President himself in his recent health-care infomercial with ABC News, his late grandmother was "somebody who contracted what was diagnosed as terminal cancer. There was unanimity about that. They expected that she'd have six to nine months to live. She fell and broke her hip. And then the question was, does she get hip replacement surgery, even though she was fragile enough that they weren't sure how long she would last, whether she could get through the surgery."

Stop the tape. What if the diagnosis of his grandmother's terminal cancer had been wrong?

The U.S. Senate's newest Democrat, Pennsylvania's Arlen Specter, has vividly written of his own diagnosis with Hodgkin's disease, Stage IVB. Specter's doctor informed him that he should get his affairs in order because his time was short -- Specter was going to die and soon. A stunned Specter decided instead to get a second opinion. By his own account, this decision saved his life and (to the irritation of all sorts of people in both parties) Arlen Specter is still here years later famously running for re-election on the cusp of 80. This was not the case of Obama's grandmother, but a misdiagnosis like Specter's is something that happens all across America every day.

If you don't think so, just check in with those longtime stalwarts of the modern Democratic Party -- medical malpractice lawyers. Indeed, a random visit to the website of lawyers advertising their services as medical malpractice attorneys highlights the fact in detail. Their practice is based on patients who have received a "misdiagnosis" from a physician. Specifically, the law practice seeks clients who have received a misdiagnosis for heart attacks, stroke, and cancer. In the case of cancer patients who have been misdiagnosed, the list of misdiagnosed diseases handled is quite specific: "Breast Cancer, Cervical Cancer, Prostate Cancer, Colon/Rectal Cancer, Skin Cancer." Also listed is "Prenatal Misdiagnosis" resulting in "Cystic Fibrosis, Down Syndrome, Fragile X Syndrome, Sickle Cell Disease, Spina Bifida/Neural Tube Defects, Thalassemia."

Got that? It is the self-appointed job of these entrepreneurial lawyers to go to every length available to prove the doctor in question simply didn't do enough to correctly diagnose and correctly treat the diseases listed by the lawyers themselves. The lawyers are thus at one with patients who believe (as did Arlen Specter) that one more test, one more opinion correctly done -- a second or third or a fourth -- is the one that would have resulted in eventually restoring the patient to health. A health that Roe v. Wade quite specifically says is "an important and legitimate interest" of the State.

Yet here is the President on ABC (with anchor Charlie Gibson) responding to the notion at the very core of the medical malpractice profession and, indeed, of most Americans: that Americans want the freedom -- indeed have the right -- to seek the best health care that exists for themselves and their families. Says the President in the transcript provided by ABC News:

OBAMA: I think families all across America are going through decisions like that all the time. And you're absolutely right that, if it's my family member, it's my wife, if it's my children, if it's my grandmother, I always want them to get the very best care. But here's the problem that we have in our current health care system, is that there is a whole bunch of care that's being provided that every study, every bit of evidence that we have indicates may not be making us healthier.

GIBSON: But you don't know what that test is.

OBAMA: Well, oftentimes we do, though. There are going to be situations where there are going to be disagreements among experts, but often times we do know what makes sense and what doesn't.

Let's parse. The "problem" says the President, "is that there is a whole bunch of care that's being provided that every study, every bit of evidence that we have indicates may not be making us healthier." In other words, the President has just said it that his health care plan, what we will call here ObamaCare, intends to insert a third party -- the government -- between you and your doctor. Why? Because the President, a third party, believes "a whole bunch of care...may not be making us healthier." This is in direct conflict with Roe, which says:

"The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

A "woman" as defined in Roe is a person, as in someone who, along with all other Americans of both genders, is entitled to "the Ninth Amendment's reservation of rights to the people" and the 14th Amendment's "concept of personal liberty." She may be pregnant, something not doable for men, but that both men and women are "people" is not in dispute. And whatever else one may say of abortion, it is precisely a medical procedure just as everything from brain surgery to stitches.

According to the principle laid down in Roe, every American (except, of course, the unborn) has the constitutionally protected right to have our health care decided on by ourselves and our doctors, without disapproving courts, legislatures, presidents or health care bureaucrats getting in the way. (In the case of Roe, the third party was the state of Texas.) Roe specifically forbids third parties interfering in the patient-doctor relationship. To say, as the President has said, that "every study, every bit of evidence" produced by some third party (an ObamaCare medical bureaucrat, for example) is somehow relevant to the treatment of a patient -- and that it will be mandatory to heed -- is a direct contravention of the two-party patient-doctor relationship legalized by Roe on the grounds of "personal liberty" and the "right to privacy." The President's ambition is simply to insert the federal government into the role played by the state of Texas in the original Roe decision.

Roe is quite specific as well that "the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman." In that one partial sentence every American becomes a pregnant woman, their health protected for the same reason as the pregnant woman's -- because the Court found a constitutional protection that does so. If there's any doubt about the sacredness Roe attaches to this principle, which in political and constitutional shorthand has become known as "the right to privacy," Roe restates it a second way. The State, says Roe, has still another "important and legitimate interest in protecting the potentiality of human life." Which it proceeded, to much controversy, to define as the "point at which the fetus becomes viable."

So in ruling out the unviable life -- the fetus -- as worthy of protection, the Court left no doubt whatsoever that "viable" human beings must be protected as the State has a "legitimate interest in protecting the potentiality of human life." Read those phrases again: "viable" and "protecting the potentiality of human life." If you are reading this, you are a "viable" human being as specifically defined by Roe v. Wade. If you have plans for five minutes from now, we are talking about your potentiality for human life.

Whatever else is said about Roe and the argument over the unborn, there is not the slightest doubt whatsoever that the born -- until their last breath is drawn -- meet exactly Roe's standard of "the potentiality of human life." Your beloved spouse, parent, child, relative, friend has at the minimum a potential for something as long as they live. That something could be a Michael Jackson-style 50-concert extravaganza or your 90-year-old mother bringing joy to life by simply holding your hand. Both are physical manifestations of the "potentiality of human life" as specifically defined by Roe. The much publicized exertions to save Michael Jackson are emblematic of the point, and in fact such ministrations go on all across America every single minute of the day. The entire point of frantic efforts to save a life -- Michael Jackson's, yours, your spouse's or the life of someone you have never heard of -- is because of the fundamental belief in that person's "potentiality" in human life.

As long as that question can be answered with any response that implies breathing by a born human, it is very clear that Roe, citing the 14th and 9th Amendments, protects not just the health of a woman but the health of us all. It gives every American with a beating heart a "right to privacy" to make exactly the medical choices they wish to make with their own bodies. Or, in the blunt words of a feminist blogger (the bloggers stylistic phrasing and caps included) over at one very typical liberal site called
Keep Your Hands Off My Body!

I'll make it simple for everyone.

MY BODY belongs to ME

I make decisions alone (or with the help of my family, my doctor, my God) for MY BODY


OK, then! Are we clear?

Well, apparently the President is not.

More here

Canada Sees Boom in Private Health Care Business

Private for-profit clinics are a booming business in Canada -- a country often touted as a successful example of a universal health system. Facing long waits and substandard care, private clinics are proving that Canadians are willing to pay for treatment.

"Any wait time was an enormous frustration for me and also pain. I just couldn't live my life the way I wanted to," says Canadian patient Christine Crossman, who was told she could wait up to a year for an MRI after injuring her hip during an exercise class. Warned she would have to wait for the scan, and then wait even longer for surgery, Crossman opted for a private clinic.

As the Obama administration prepares to launch its legislative effort to create a national health care system, many experts on both sides of the debate cite Canada as a successful model. But the Canadian system is not without its problems. Critics lament the shortage of doctors as patients flood the system, resulting in long waits for some treatment.

"No question, it was worth the money," said Crossman, who paid several hundred dollars and waited just a few days.

Health care delivery in Canada falls largely under provincial jurisdiction, complicating matters. Private for-profit clinics are permitted in some provinces and not allowed in others. Under the Canada Health Act, privately run facilities cannot charge citizens for services covered by government insurance. But a 2005 Supreme Court ruling in Quebec opened the door for patients facing unreasonable wait times to pay-out-of-pocket for private treatment.

"I think there is a fundamental shift in different parts of the country that's beginning to happen. I think people are beginning to realize that they should have a choice," says Luc Boulay, a partner at St. Joseph MRI, a private clinic in Quebec that charges around $700 for most scans.

Yet advocates looking to preserve fairness claim that private clinics undermine the very foundation of the country's healthcare system. "Private clinics don't produce one new doctor, nurse, or specialist. All they do it take the existing ones out of the public system, make wait times longer for everybody else while people who can pay more and more and more money jump the queue for health care services," said Natalie Mehra, member of the Ontario Health Coalition.

Canada spends $3,600 per capita on health care -- almost half of what is spent in the U.S. And while some in Washington look to its northern neighbor for ideas, the Canadian system is still changing. "One can understand that this is evolving and a mix of private and public seems to be favorable in some context. On the other hand, we need to be really careful that we're not treating health care the way we treat a value meal at McDonalds," Dr. Michael Orsini from the University of Ottawa told FOX News.

Provincial governments now face the difficult job of finding a balance in meeting the country's health care needs -- reducing wait times and maintaining fair access without redefining the universal ideals at the core of Canada's health care system.


Obama's "Progressive" vision for healthcare goes back to Hegel, not Jefferson

President Obama has one distinguishing feature. He is a man of rigid self-discipline. Politicians are a lot like actors: they tend to be vain; and, more often than the rest of us, they are presented with the temptations to which the vain are prone. Many--one thinks of Bill Clinton, John Edwards, John Ensign, and Mark Sanford--succumb. If, however, in his personal life as an adult, Barack Obama has strayed from the straight and narrow, we have heard nary a word.

It is, in fact, a sign of his astonishing self-discipline that we know next to nothing about his life apart from what he chose to impart in the two autobiographies he published. For a long time now, for longer than we can perhaps imagine, every move he has made has been carefully calculated, calibrated, and choreographed. In this regard, he is in the fullest sense what every politician aims to be: a self-made (one might even say a self-invented) man. It is easy to see why someone like Evan Thomas should think him a god.

Once in a while, however, when Obama gets separated from his teleprompter, the mask slips a tad. On the hustings, Joe the Plumber caught the candidate off guard and got him to admit the truth about his plans to effect a redistribution of wealth. Something of the sort happened again last week--when, at a carefully staged rally for the administration's health care proposal, to which the flacks who run ABC News tellingly invited no one who regards the current healthcare arrangement as even remotely satisfactory--President Obama responded to a question by acknowledging that his plan aimed to reduce medical costs by aligning "incentives" in such a fashion as to discourage the sick and the dying from undergoing "additional tests" or taking "additional drugs that the evidence shows is not necessarily going to improve care."

Obama's choice of words was, as always, soothing. But anyone familiar with the healthcare debate will immediately recognize what he left unsaid. We all know that, wherever there is socialized medicine, there is rationing. Cutting costs is, in fact, its rationale, and this end is achieved by a refusal on the part of the government to pay for care that the bureaucrats judge uneconomic. Already now, in the semi-socialized system to which we have been made subject, those consigned to HMOs come up against gatekeepers charged with shaving costs by restricting care.

Why, we might ask, should one have to wait months or even years for a hip-replacement operation? Why should one be denied a cataract operation if one is over a certain age? What business is it of Barack Obama's whether I choose to spend my own hard-earned money on procedures thought to have only a limited chance of success? What gives him--or, for that matter, anyone else--the right to make decisions that are for me a matter of life and death?

Defenders of Obama's proposal will reply that I am misrepresenting his proposal. No one, they will say, will be forced to give up the health insurance they have. Technically, of course, this is true. But what President Obama calls the "incentives" will be structured in such a way that employers will no longer have to offer coverage, and to save themselves the expense (which is considerable), they will seize the opportunity to opt out, and then we will have no choice.

Perhaps we will then be left free to spend as we see fit the money left to us after we have paid for the government-run insurance program. Perhaps we will be able to go into the private market and pay for a hip-replacement operation, a cataract operation, or for tests and procedures that our doctor recommends but that the government-run insurance program refuses to pay for.

Here is where Obama's "incentives" reappear. The government-run insurance program will, for all practical purposes, be a monopsony--the sole purchaser. It will be in a bargaining position enabling it to dictate the price that it will pay, and, of course, it will pay very little. You, as an individual purchaser, will have no leverage at all; and, like those not covered by employer-sponsored insurance plans today, you will have to pay through the nose. Unless you are filthy rich, you may well have to wait your turn for that hip-replacement operation, forego that cataract operation, or do without those expensive tests and procedures. In sum, you will not be in the driver's seat.

To grasp what is at stake, one must step back and consider what sort of thinking underpins the drive for what is called "health care reform." There was a time in the United States when we lived under a regime of individual rights, and as individuals we assumed responsibility for our own welfare. We worked; we saved; and we took pride in looking after ourselves. Many of us still think in this fashion, but this is not the manner in which our masters now think. We may be the heirs of the men who adopted the Declaration of Independence; those who rule us are the offspring of the Progressives, and men of this temper have dominated our political life for almost a century now.

Back in 1912, when Woodrow Wilson successfully ran for the presidency, he told his compatriots, "We are in the presence of a new organization of society." Our time marks "a new social stage, a new era of human relationships, a new stagesetting for the drama of life," and "the old political formulas do not fit the present problems: they read now like documents taken out of a forgotten age." What Thomas Jefferson once taught is now, he insisted, quite out of date. It is "what we used to think in the old-fashioned days when life was very simple." Above all else, he hoped to persuade his compatriots to get "beyond the Declaration of Independence." That document "did not mention the questions of our day," he told them. "It is of no consequence to us. It is an eminently practical document, meant for the use of practical men; not a thesis for philosophers, but a whip for tyrants; not a theory of government, but a program of action"--once of use, outdated now.

For Montesquieu--the only figure, apart from Jefferson, whom he mentioned by name--Wilson had no use, and the constitution drafted under the influence of the Frenchman's great compendium of political wisdom The Spirit of Laws--with its separation of powers, checks and balances, and distribution of authority between nation and state--he regarded as hopelessly passé. "Government," he argued:
is not a machine; but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living things can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. . . . There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action. . . . Living political constitutions must be Darwinian in structure and in practice. All that progressives ask or desire is permission--in an era when "development," "evolution," is the scientific word--to interpret the Constitution according to Darwinian principle.

What Wilson and his heirs have accomplished is a surreptitious substitution of Hegel for Locke and of the modern adminstrative state with its vast array of administrative agencies (each combining the legislative, executive, and judicial powers) for the regime of self-government imagined by Montesquieu and brought into being by the American Founding Fathers. What our masters aim at--whether they be Republicans, like Teddy Roosevelt, Herbert Hoover, Thomas E. Dewey, and Richard Nixon, or Democrats, such as Franklin Delano Roosevelt, Lyndon Baines Johnson, and Barack Obama--is what FDR termed "rational administration"; and over the years, in pursuit of this, they have adopted Wilson's convenient notion that ours is a "living constitution" subject to reshaping by the courts, and they have been willing not only to abandon federalism, the separation of powers, and checks and balances, but to run roughshod over the rights of individuals.

When "scientific racism" was the rage, Woodrow Wilson segregated the civil service, gave "The Birth of a Nation" his imprimatur, and thereby promoted Jim Crow in the North. He campaigned on behalf of the sterilization of criminals and insane asylum inmates, and the progressive jurist Oliver Wendell Holmes conferred judicial sanction on this gross violation of individual rights. All of this was done in the name of the public good. The rights of individuals were made to give way to a utilitarian calculus.

Scientific racism is no longer in fashion, at least for the time being; and we have thankfully become chary of sterilizing those who reside in our mental hospitals and prisons. But we have no principle restraining us from succumbing to either propensity, for our masters are still inclined to sacrifice the rights of individuals to what elite opinion at any given moment understands as the public good. There is no other way to explain their embrace of affirmative action and of the redistributionist ethic.

"To take from one," Thomas Jefferson wrote, "because it is thought that his own industry and that of his father's has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association--'the guarantee to every one of a free exercise of his industry and the fruits acquired by it.'" It was on this foundation that Abraham Lincoln objected to slavery, and it is on this foundation that one can object to the health care reform proposed by our President. For this proposal is designed to take from those who have earned and to give to those who have not bothered to do so; and, by way of constraining "incentives," it will take from us the right to manage our own lives in a matter most dear to each and every one of us, and it will confer this responsibility on experts empowered to decide whether, given the cost of care, it is of greater value to society that we suffer or are cured, that we live or die.

It is easy enough to see why progressive doctrine should be attractive to our masters. Tyrannical ambition is nothing new, and throughout human history it has nearly always presented itself to men in the guise of idealism. We are all inclined to meddle in other people's business; we are all inclined to think that we know better; and higher education tends to inflate our vanity and to make us more inclined to lord it over those who are less well-instructed. Never for a moment does a Barack Obama stop to ask whether depriving us of responsibility for our own well-being is demeaning. He and his supporters know that they know better, and their putative wisdom in this regard constitutes for them an absolute claim to rule. The logic unfolding within the progressive impulse requires that there be a class of Guardians empowered to supervise our lives in every particular, and to an ever-increasing degree this is the reality with which we live.

It is less easy to see why ordinary citizens should find the administrative state and the progressive doctrine underpinning it attractive. It is less easy to understand why they should regard what Alexis de Tocqueville, in Democracy in America, called "soft despotism" as alluring. To explain why the tyrannized should savor tyranny will require, I fear, another post.


Protective father saved daughter from lung cancer after NHS doctors sent her home with antibiotics

Grateful Laura Hicks has every reason to listen to her father. When the twenty-year-old developed breathlessness and persistent coughing three years ago, her doctor said she had asthma and sent her home with antibiotics. But concerned father Stan Hicks refused to accept the diagnosis.

The osteopath sent his daughter back to the clinic with a letter insisting that she receive an X-ray. The scan revealed a tumour taking up two-thirds of her right lung. Miss Hicks, now aged 20, underwent six months of chemotherapy and radiotherapy to shrink the tumour which was then removed along with her lung and two ribs in 2007. Miss Hicks, from Midsomer Norton, in Somerset, is now cancer free.

‘There was something in the back of my mind that it was more serious, but I had so many things on at the time I ignored it because the doctor's diagnosis seemed logical,’ she said. ‘I was lucky that my doctor actually listened. You have to think that GPs see so many patients a day, and my dad sees me every day so he could tell things weren't right. ‘I wasn't shocked when they told me it was cancer as I suppose subconsciously I was prepared for it, but it has put things into perspective. ‘I listen to my dad more now, well on some things anyway.’

Miss Hicks was unable to sit her A-level exams while undergoing treatment but has now completed a foundation access course in economics and hopes to go to the University of Bath to study economics. ‘I can't walk very far and I am more prone to chest infections so I have to look after myself, but I did the Race for Life a few weeks ago,’ she said.

Mr Hicks, who is also an animal osteopath, said his medical knowledge and instinct made him question Laura's initial diagnosis. ‘There were certain symptoms that she had that concerned me and in my letter I mentioned a type of cancer that was not too far off what she was diagnosed with,’ he said. ‘Doctors have to work on percentages to some extent, and make a judgment on the likelihood that someone of Laura's age would have lung cancer because there was no reason for it.

‘The lesson here is not to be too complacent about persistent symptoms, people tend to ignore things but if the symptoms are maintained there is probably a reason for it.’


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