Volume 75, no. 6 June 2019
Litigation challenging the constitutionality of the Affordable Care Act (ACA) has focused on the Commerce Clause and on religious liberty. Litigants and Justices have asked, “What is a tax?”, “Can we be forced to buy broccoli?”, or “Should nuns have to pay for contraceptives?” In its amicus brief before the Fifth Circuit Court of Appeals in Texas v. United States (AAPS News, January 2019) AAPS asks the Court to also consider the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
AAPS writes that: “The Tenth Amendment is the elephant in the room standing against the constitutionality of ACA, and the Tenth Amendment should be the starting point for analysis of it.”
“[T]he traditionally exclusive authority of States over medical care fits hand-in-glove with the purpose of the Tenth Amendment in safeguarding state autonomy. A ruling by the Supreme Court in favor of the Tenth Amendment, after it upheld the constitutionality of ACA by a 5-4 vote, casts doubt on the continued doctrinal vitality of the 2012 ruling in NFIB….” [See Bond v. United States, 572 U.S. 844 (2014)].
“ACA deprives patients of their liberty to buy, and insurers of their liberty to offer, coverage that does not conform to the dictates of ACA architects and enforcers. ACA usurps the authority of States to regulate insurance and infringes on individuals’ rights to arrange methods of payment for care. ACA also prevents patients from building their own patient-centered networks to receive medical care. The federal insurance mandates, like the Individual Mandate found below to be unconstitutional, essentially force people to buy products they do not want. While the penalty under ACA is no longer a tax, ACA is still imposing mandates that infringe upon state and individual autonomy over medical care….” “ACA handcuffed patients by depriving them of the immense benefits of free market competition, which is what drives down for consumers the costs of technology, travel, and nearly every other good and service of the economy. ACA conferred the equivalent of a monopoly on big health insurers by making it impossible for viable alternatives to compete with them.”
The complete brief is posted at https://aapsonline.org/judicial/aaps-amicus-texas-v-us-5-8-2019.pdf.
States Should Declare Their Freedom
In joining the AAPS amicus brief, Twila Brase, R.N., of the Citizens’ Council for Health Freedom stated: “The ACA has always been unconstitutional, regardless of any judicial decisions before or after Judge O’Connor’s ruling.” Based on the Tenth Amendment, states suffering from the effects of ACA should be able to move forward with laws and regulations that are non- compliant with its unaffordable requirements, for example:
- Welcome insurers to offer catastrophic indemnity policies prohibited by ACA for people age 30 and over;
- Authorize affordable child-only insurance policies;
- Re-open state high-risk pools for pre-existing conditions;
- End prohibitions against short-term or limited-duration plans.
Tenth Amendment and Medicare for All
If the Tenth Amendment is not a dead letter, it is hard to see how the Medicare-for-All proposals could be considered constitutional. As described in the Apr 30 House Rules Committee hearing on the Democrats’ Medicare-for-All bill introduced by Rep. Pramila Jayapal (D-Wash.), all private insurance that duplicates government coverage would be prohibited, as would out-of- pocket payments by patients.
Government generally enforces its will on states and patients by tying rules to receipt of federal funding, as it did with the 55 mph speed limit and still does with education guidelines. Refusing federal funding, even indirectly through federal aid to students, is a narrow escape hatch used by Hillsdale College and Grove City College. And physicians can avoid Medicare restrictions through opting out or disenrolling from Medicare. Patients can decline Part B and Part D or see an opted-out or disenrolled physician, but can escape Part A only by forgoing Social Security. But enrollment in Medicare for All would be universal and automatic.
A bill introduced by Sen. Bernie Sanders would allow wealthy people to pay for hair transplants and nose jobs. But to keep pesky citizens from complaining about treatments that could save their lives or the lives of their loved ones, his plan would ban all advertising for medical products and services.
A “moderate” proposal introduced by Rep. Rosa DeLauro (D-Conn.), would prohibit private contracts with any individual en- rolled under Medicare for America for any item coverable under the program. People could opt out only if they have “qualified health coverage” from an employer. But babies would be enrolled in the program at birth, and employers would have to pay an 8% payroll tax as soon as even one employee opts into the govern- ment program (Chris Jacobs, WSJ 5/12/19).
If these proposals are unconstitutional, what about Medicare: 42 U.S.C. § 1395ss(d)(3)(A)(i): “It is unlawful for a person to sell or issue to an individual entitled to benefits under part A or en- rolled under part B of this title… (I) a health insurance policy with knowledge that the policy duplicates health benefits to which the individual is otherwise entitled under this title….”?
The CBO “Trap”
According to the Washington Post, “Democrats eyeing Medicare-for-all are trying to avoid the same trap Republicans fell into back in 2017 when they were trying to replace Obamacare.” The trap is “a damaging analysis from the Congressional Budget Office, Congress’s official scorekeeper.” Budget Committee Chair- man John Yarmuth (D-Ky.) notably did not ask for a specific cost estimate for the Jayapal Medicare-for-All proposal, which has more than 100 congressional supporters.
“Democrats know well how CBO scores can be used as political ammunition” (ibid.). At the House Rules Committee hearing, economist Charles Blahous estimated that Medicare for All would add up to $39 trillion to federal health spending—to be offset (somehow) by eliminating private spending. “We never seem to ask where the money will come from if we declare war,” said Democrat witness Ady Barkan, an ALS patient.
Winners and Losers
- Social Security: Earlier retirees got back far more than they paid in; the younger generation has a 14-digit tab. Single people, those who started work at a younger age, and those with a shorter life expectancy lose most. All lose the opportunity to earn a higher return, to bequeath accumulated retirement savings to heirs, to use accumulated funds for emergencies prior to retirement, or to choose vehicles not dependent on appropriations by future Congresses. All suffer depressed incomes.
- Limits on Short-Term, Limited-Duration Insurance: H.R. 1010, to keep the Trump Administration from enforcing a rule to increase STLD insurance, would prevent 1.5 million from purchasing such policies; 500,000 would become uninsured (CBO).
- ACA Losers: 1.4 million lost health insurance since 2016 because of massive rate increases caused by ACA rules, according to an April CBO report.
- Insurance Giants Won: Cigna, Centene, Molina Healthcare, and Anthem all saw 2018 profits improve in their individual busi- ness that includes ObamaCare. Under the now-defunct individual mandate, Cigna’s customer base grew by 327,000 to 16.2 million. ACA provided stability and certainty. Government dictated the size, scope, and coverage requirements for all health insurance policies.
Paul W. Leithart, M.D.: R.I.P.
Dr. Paul Leithart, one of our longest-standing members, died on May 29, 2019, at age 98. He was a general practice doctor for more than 50 years. He delivered thousands of babies in the Columbus, Ohio, area and was medical director at Parkside Hospital, a clinic for alcohol and drug rehabilitation. He served as president of AAPS in 1970.
“[N]ot only does democracy make each man forget his ancestors, but it hides his descendants from him and separates him from his contemporaries; it constantly leads him back toward himself alone and threatens finally to enclose him entirely within the solitude of his own heart.”
Alexis de Tocqueville, Democracy in America
Flashback: Medicare for All in 1969
As Dr. Leithart assumed the presidency of AAPS, the AAPS News Letter of October 1969 read:
“Walter Reuther and the Committee for National Health Insurance, of which he is Chairman, met in New York October 14-15 to propagandize for extending a ‘Medicare’ type federal pro- gram for all age groups…. [A]bout 150 delegates representing 57 national groups, including Blue Cross and the American Medical Association, heard Mr. Reuther…. Legislation will be introduced in the United States Congress next year to impose this plan by federal compulsion without any authority in the Constitution to support it…. No wonder Reuther and other labor leaders oppose a Justice for the Supreme Court who is likely to interpret the Con- stitution as it was intended.”
The same newsletter quoted from an editorial in the Richmond News Leader entitled “Said Better by Alinsky than Stalin”:
“[Saul] Alinsky concluded his lecture by admonishing his listeners not to rely on reconciliation and communication among people as a basis for social change…. ‘Reconciliation is when you get power and the other guy gets reconciled to it….’ Small wonder that Alinsky has become known as the radical’s radical.”
“Massive Cuts” Defined
President Trump’s proposal to “slash” Medicare funding by $845 billion over the next decade is likely to be “politically toxic” election fodder.
As AAPS business manager Jeremy Snavely points out, Medicare spending is proposed to be $1.21 trillion in 2029, up from
$645 billion in estimated Medicare spending for 2019. So, Trump’s 2029 Medicare budget is 188% of 2019. This hardly seems like a cut, but the baseline for 2029 Medicare is $1.36 trillion, or a 211% increase over 2019. For Medicaid, Trump is proposing $604 billion in 2029, up from $419 billion in 2019. The baseline for 2029 Medicaid is $703 billion.
Event Horizon for National Debt Death Spiral
Net interest on the national debt has become one of the fastest growing segments of federal spending. According to the U.S. Treasury Department’s Office of Debt Management, the
U.S. government is just 5 years away from the point at which every new dollar it borrows will go toward funding interest payments on the national debt. This is the penultimate “Ponzi finance” phase. As Craig Eyermann, creator of mygovcost.org notes, “If something cannot go on forever, it will stop.” The question is how painful it will be when it does.
Sep 18-21, 2019. 76th Annual Meeting, Redondo Beach, CA.
Sep 30-Oct 3, 2020. 77th Annual Meeting, San Antonio, TX
Enforcement of Contraceptive Mandate Enjoined
In a broad decision that certified as a class all employers and individuals whose religious beliefs are infringed by the Contraceptive Mandate, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas permanently enjoined the enforcement of the Contraceptive Mandate in DeOtte v. Azar.
AAPS general counsel Andrew Schlafly said, “This is 100 times bigger than the narrow victory won by Hobby Lobby in the Supreme Court in 2014.” That decision was a narrow ruling for a closely held company, only if certain conditions were met.
The DeOtte case was led by Stephen F. Hotze, M.D., whose company, Braidwood Management, has about 70 employees. Dr. Hotze stated that he believes that life begins at conception and that abortifacient contraception is tantamount to abortion. Also rooted in his Christian faith is his objection to the requirement that he provide non-abortifacient contraception at zero marginal cost, because it facilitates sexual activity outside of marriage.
As noted by Judge O’Connor, Braidwood argued that the Contraceptive Mandate forces it to “choose between: (1) Providing contraception to its employees; (2) Executing a self- certification form that leads to the provision of contraception by others, or (3) Paying a tax penalty of $100 per employee per day.” An “accommodation” is not an exemption.
Individual plaintiffs opted to forgo insurance coverage rather than violate their religious beliefs. It is a “‘substantial burden’ to close off the entire health-insurance market to individuals who are unwilling, for religious reasons, to purchase insurance that subsidizes other people’s contraceptives,” the Court ruled. Even if the government could demonstrate a “compelling interest” in making contraceptives available free of charge, the mandate is far from the least restrictive means for accomplishing that objective. Thus, the mandate violates the Religious Freedom Restoration Act (RFRA) of 1993. (Read decision at https://aapsonline.org/judicial/order-deotte-v-azar-6-5-2019.pdf).
The Trump Administration declined to mount a substantive defense of the mandate and the Obama-era accommodation process.
“This is a dramatic, historic victory for religious liberty in our country,” Dr. Hotze stated.
Almost All FDA Rules Unconstitutional
According to a study by the Pacific Legal Foundation, 71% of rules issued by the Dept. of Health and Human Services, the majority of them from the Food and Drug Administration, are unconstitutional because the bureaucrats who issued them lacked constitutional authority. Under the Appointments Clause, only “principal officers” appointed by the President and confirmed by the Senate can make significant government decisions, such as issuing a regulation having the force of law.
The study looked at 2,952 rules issued between 2001 and 2017. Only 2% of FDA rules passed constitutional muster. Most came from “low-level officers and career employees.” One example is the 2016 “deeming rule,” which subjects tobacco-free vaping products to the same restrictions as cigarettes, including the requirement for FDA approval of related speech.
through 2012, regulations cost Americans $4 trillion in economic growth—$13,000
If You Submit Data…
If you submit claims to the government, they will be subject- ed to increasingly sophisticated data analysis. Data is used to “identify, target and prosecute providers.” According to Ryan Lynch of the HHS Office of the Inspector General in Tampa, Fla., “Many search warrants are built solely on data analysis.” Data analysis “uncovered” a Florida ophthalmologist with exceedingly high rates of ultrasounds (76510) that his peers were not using. He was convicted of defrauding Medicare of $42 million and sen- tenced to 42 years in prison. Doctors are advised to compare their data to peers, using government tools as at Healthdata.gov, to see whether they are outliers (Med Practice Compliance Alert, May 2019).
Tip of the Month: Beware of applying for a medical license through the Interstate Medical Licensure Compact. There was a surprise rejection of applications by two physicians for South Dakota medical licenses, and this has led to a lawsuit by the Commission against the State of South Dakota. Even worse, the Interstate Medical Licensure Compact Commission publicized the names of the physicians whose applications were rejected. Now they are forever on the internet in a disparaging way. The Commission sued South Dakota in federal court in Colorado, because that is where the Commission is located. Rarely must a State defend itself in a federal court in another state, but this is the result of the unwise abdication by some States of their own sovereignty by agreeing to the bad Compact.
Discrimination by Abortion Still Legal
The U.S. Supreme Court, in a 7-2 decision on Box v. Planned Parenthood of Indiana and Kentucky, will allow Indiana to enforce its law requiring respectful disposal of fetal remains, but the lower court’s block of the law banning abortions based on sex or disability still stands. Read the AAPS amicus at: https://www.supremecourt.gov/DocketPDF/18/18-483/72037/20181114150949195_18-483acAssnOfAmericanPhysiciansSurgeons.pdf
In a concurring opinion, Justice Clarence Thomas writes that the Court will eventually have to confront the issue that “enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement.” Planned Parenthood founder Margaret Sanger recognized her movement’s eugenic potential.
Justice Thomas notes that “abortion advocates were some- times candid about abortion’s eugenic possibilities.” Some black groups saw “‘family planning’ as a euphemism for race genocide” and believed that “black people [were] taking the brunt of the ‘planning’ under Planned Parenthood’s ‘ghetto approach’ to distributing its services.”
“Eight decades after Sanger’s ‘Negro Project,’ abortion in the United States is also marked by a considerable racial disparity”— the abortion rate for blacks is 3.5 times that for whites (ibid.).
Over 169 years, the total fertility rate for American blacks dropped by 77%. It was 3.6 births per woman in 1950, 2.3 in 1975, and 1.8 in 2019. At this rate, it could be 1.3 by 2050, and irreversible. “There is such a thing as ‘too late,’” writes Walter B. Hoye II. As Cecil Moore of NAACP said in 1965, Planned Parenthood’s plan is “replete with everything to help the Negroes commit race suicide.”
Free Market Phobia. The hospital and insurance industry are convulsing with anxiety over a new proposal to make prices trans- parent. According to the Wall Street Journal, the proposal would likely be met with stiff industry opposition, including lawsuits challenging the White House’s authority to mandate cost disclosures. Hospitals and insurers have FMP—Free Market Phobia. They have a morbid fear that if prices are made transparent, it will unleash competition, and…gasp!!…the distinct possibility of lower prices as a result.
There is a “vaccination” for FMP, but the hospital and insurance industry are not likely to take it voluntarily. Perhaps if this “vaccination” were to be made mandatory for the good of society, we could protect the public from the spread of failed and harmful ideas. The “vaccination” should consist of mandatory reading, followed by a check on the immunity titer (successfully passing a test) of the following: (1) Adam Smith’s The Theory of Moral Senti-ments; (2) Adam Smith’s The Wealth of Nations; (3) Frederic Bastiat’s The Law; and (4) the U.S. Constitution.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
History of the Term “Provider.” Calling me a “provider” is a professional insult. The source of any argument can often be found by looking at the language used to frame it. So I decided to investigate the history of the word. I made the surprising discovery that the term “provider” was first utilized by the Third Reich, which embraced it to devalue Jewish physicians as medical professionals. In 1938, their licenses were revoked, and they were no longer able to call themselves “Arzt” or “doctor,” but were de- graded to the term “Behandler” or, freely translated, “provider.”
Beware of the Palliative Care Lure. Palliative care patients selectively choose treatment to avoid excessive surgery or medication. This can last for years. Hospice is an extension of palliative care when a patient is actively dying. None of my patients have been on hospice longer than 7 days. Hospice is paid by Medicare, but separately. Palliative care is not, except in a hospital or nursing home, and definitely not as an out-patient. Hospital administrators and HMOs may convert hospitalized patients into hospice, then discharge them to terminate their financial obligation and increase profit. Patients are lured into palliative care by hospitals and home health agencies with promises of “more services” like nursing, bathing, and feeding at home. But, they immediately con- vert out-patients to hospice so they can get paid.
Our House Divided. The Left has managed to create a divisive/ explosive environment by pushing claims of oppression of this or that demographic (ethnic/racial/sexual) and demonizing Western civilization. As Thomas Klingenstein writes, Trump “framed the 2016 election as a choice between two mutually exclusive regimes: multiculturalism and America. What I call ‘multiculturalism’ includes ‘identity politics’ and ‘political correctness.’ Multiculturalism conceives of society as a collection of cultural identity groups, each with its own worldview, all oppressed by white males…. [It] carves ‘tribes’ out of a society whose most extraordinary success has been their assimilation into one people.” It is an existential threat to America.
John Dale Dunn, M.D., J.D., Brownwood, TX
“Health” Is All-Encompassing. UnitedHealthcare is working with the AMA to develop new billing codes that would better equip insurers to tackle their members’ social determinants of health. This is ominous. If there ever was a reason to get out of commercial contracts and be out of network this is it—and you have to give 6 months’ notice. Codes are a ridiculous exercise in commandeering the language and protocols of medicine: another thing with which we all complied to get paid or to allow our patients to get reimbursed. What a slippery slope!
Jane Hughes, M.D., San Antonio, TX
Watershed Moments. Luther’s posting the 95 Theses and the 1929 stock market crash are considered the start of the Reformation and the Great Depression, respectively, though there were multiple events leading up to the major movement. I suggest that Amazon’s surrender to the socialists over locating its headquarters in New York City might be the moment for the start of the modern socialist revolution. The Amazon move would have been a win/win, especially for the impoverished people living in the “opportunity zone.” But socialists insist that you lose. It reminds me of a joke from the Soviet days: A Russian man one day stumbles across an old metal lantern. He picks it up and shines it, and a Genie pops out, saying “I am a Communist genie…so you only get one wish. Plus, I have to give your comrade neighbor twice as much as I give you.” So the man says, “Then I wish for you to blind me in one eye.” This is the essence of modern socialism that is taking over America: everybody loses.
P.C. Education. We should remember the words of the late Dr. Nino Camardese: “Truth plus one equals a majority.” Lately, it seem as though the Twilight Zone plus one makes reality.