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AAPS News March 2012 – ObamaCare vs. The First Amendment

Volume 68, no. 3 March 2012

The Obama Administration’s mandate that insurance cover contraception, abortifacients, and sterilization “free of charge” is not just a problem for Catholic institutions that provide insurance for employees. All Americans have a conscience—even if they are not affiliated with a politically powerful religious group.

The earnings of workers pay insurance premiums even if their employer owns the policy. So if insurance pays for services that are harmful, immoral, or criminal, all subscribers are in effect accessories to a crime. Mandates in the Affordable Care Act (ACA) redistribute guilt as well as wealth.

Those who don’t mind subsidizing abortifacients might have qualms about future possibilities: euthanizing the disabled or the elderly, performing research on non-consenting prisoners, genital mutilation of baby girls, electroshock treatments for disruptive persons—things that seem unthinkable today, just as 50 million abortions may have been in 1970. Those who support Secretary Sebelius might not like her successor.

Once the Administration defines a service to be essential “health care,” ACA forces all Americans to pay for it. This point is so important to Obama that he risked antagonizing the Roman Catholic Church, even though its support was probably critical for passing ACA, and probably still is for Obama’s reelection.

The Establishment of Religion
Litigants who cite the “separation of church and state” generally seem mostly interested in being protected from religion. What the First Amendment actually says is this: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof;….” It protects against theocratic government, and it also protects religion from a government takeover.

In Communist China, the only lawful Christian churches are those that accept government supervision. Bishops in the Chinese Patriotic Catholic Association are not permitted to speak out publicly against abortion.

The model from which our Founders wished to separate was the British one, in which the monarch is still Supreme Governor of the Church of England. The monarch “shall have full power and authority…to…repress, redress, record, order, correct, restrain, and amend all…errors, heresies, abuses,…whatsoever they be.”

Obama has decided to “go Henry VIII” on the Church, writes Mark Steyn (IBD 2/10/12). Whatever religious institutions profess to believe in the area of “women’s health,” their supreme head on earth is determined to amend their heresies. They can either submit, or not continue to exist.

In England, those who dissented from the strictures of the state church were known as Nonconformists. Parliament then passed various “Acts of Uniformity.” In its micro-regulation of both body and conscience, ObamaCare is the ultimate Act of Uniformity, Steyn writes.

Obama may craft an exemption broad enough to mollify bishops. But a more basic question will not go away: what gives government the authority to define what is (or is not) a “religious” institution—or to enact a law that requires a government waiver to avoid the dilemma of committing a sin or violating a law?

Abortion Is Health
“Women’s health” and “reproductive health” are now code words for abortion, and “access” means that other people are obliged to pay for it, or perhaps even to provide it.

To classify abortion as health care assumes that pregnancy is a disease. To call it a potential cost-saver assumes that a new human life is just a drain on Society’s or the Planet’s resources.

The media and political power of the abortion lobby showed itself in a vast outpouring of rage heaped on the Susan G. Komen Foundation for withholding a $650,000 grant from Planned Parenthood, which reportedly has $1 billion in annual revenue. “Stop the war on women,” said the protesters’ signs. One might think that PP was a major provider of diagnosis or treatment of breast cancer (it generally does not even do mammograms) rather than a likely contributor to its increased incidence through 300,000 abortions a year and prescriptions for hormonal contraceptives (J Am Phys Surg, Spring 2008). Though not acknowledging the abortion-breast cancer link, Komen was concerned about investigations of PP for failure to report child sex abuse, inter alia (WSJ 2/7/12).

The Real Issue: Covert Rationing
A young female caller to the Sean Hannity radio show seemed to think that coverage is required for access. Perhaps it will be, answering John Cochrane’s question about why the Dept. of Health and Human Services (HHS) should decree that any of us must pay for “insurance” that covers contraceptives (WSJ 2/9/12). Richard Fogoros, M.D. (“Dr.Rich”) writes that “the real battle will be over “whether individual Americans will ultimately be restrained from using their own resources to provide for their own medical care” (http://covertrationingblog.com). Controlling all expenditures is necessary for the goal of covert rationing. If people can purchase “extra” care, it means that extra care exists, raising expectations and undermining the central planners.

“The Obama Administration has declared war on religion and freedom of conscience,” warned Southern Baptist officials (spectator.org 2/9/12). ACA as a whole makes war on the U.S. Constitution, private medicine, and the liberty of all Americans.

The 10%

Equality and harmony! Joyous crowds cheered at the time of the Bolshevik Revolution. What could be wrong with these ideas?

Actually, there was something wrong, something that made this different from other utopias. Lenin believed in the war of classes. The ultimate harmony can only be reached after certain groups of people are killed.

Whenever Communists come to power, no matter where, they destroy about 10% of the population, explains Vladimir Bukovsky in The Soviet Story. To restructure society, Communists kill the top intellectuals, best workers, and best engineers.

In the Soviet Union, brutal massacres killed an unknown number, perhaps 10 million, but did not break popular resistance, especially in ethnic populations. Hence, Stalin’s plan to confiscate all food in the Ukraine, cordon off the area so no one could leave, and forbid people to purchase food from elsewhere. Children trying to collect single ears of grain from NKVD-guarded fields were shot on the spot. Special units raided people’s home to collect dead bodies. They received 200 g of bread for each body—and many were buried alive in mass graves. At the time of this “famine,” grain exports to the West actually increased.

The most avid student of Stalin’s methods of industrial-scale killing, which began years before and continued long after the War—was Adolf Hitler. While there are many Holocaust memorials to Hitler’s victims, there are none to Stalin’s—he was an ally.

Americans filmed Nazi concentration camps they were liberating, to memorialize the horrors. But they did not say that the sites were being cleared for new inmates. The Buchenwald and Sachsenhausen camps operated as part of the GULAG until 1950.

When The Soviet Story. was released in 2008, a massive propaganda barrage denounced it. Latvian author and director Edvins Snore was burned in effigy in the streets of Moscow. The Economist called it “a kind of Oscar.” Everyone should have to watch the reality of socialism, told in historical footage and interviews of survivors. (See www.sovietstory.com.)

May Medicare Patients Spend Their Own Money?

Dr. Fogoros (see p 1) writes that he always knew ObamaCare would pass, because the health insurance industry needed the government to provide it with a graceful exit strategy. But the outcome of the real fight is still in question, and this “will determine not merely what kind of healthcare system we will end up with, but what kind of society we will have.”

There is nothing in the ACA that explicitly outlaws private medicine. But he believes that ultimately Americans will be able to expend any individual resources for any benefit (even food?) only if we vigorously fight oppressive efforts wherever we find them.

Covert rationing has begun with the elderly, even though Medicare explicitly promised that it would not interfere with private medicine. CMS has refused to answer our questions about Medicare disenrollment or patients’ filing form 1490S for services of nonenrolled physicians. We also asked it to cite “any law that denies Medicare beneficiaries the right to spend their own money for the medical care of their choice” [see action box].

“We cannot respond to your inquiry at this time,” writes Laurence Wilson, Director of the HHS Chronic Care Policy Group, citing AAPS v. Sebelius. Will he answer individual non-litigants?

Missing the Point

The contraceptive coverage requirement does violate freedom of religion, but there is a larger moral and policy issue (WSJ 2/8/12). “The HHS diktat isn’t something unique to President Obama. It is the political essence of government-run medicine. When politics determines who can or should receive what benefits, and who pays what for it, government will use its force to dictate the outcomes that it wants—either for reasons of cost or to promote its values, which in this case means that ‘women’s health’ trumps religious conscience.”

Contained within Obama’s secularism—and his desire to dominate church and state—is a “totalitarian seed, which will grow and grow until nothing is a ‘private’ matter,” writes George Neumayr (American Spectator 2/7/12).

Government mandates birth control but disallows Avastin for cancer. “The inner logic of Obamacare is that life-saving therapies inhibit the growth of the welfare state and the appropriate distribution of resources” (Goldberg, Amer Spectator 2/9/12).

Dangers of the New Bioethics

The incentives and penalties in the ACA compromise the physician’s duty to individual patients, which is based on Judeo-Christian ethics, write AAPS members Jerome Arnett, Jr., M.D., and John Dale Dunn, M.D., J.D. (American Thinker 12/11/11). The ACA’s social engineering is based on the utilitarian ethic of societal good and the new “bioethics” pioneered 40 years ago by Joseph Fletcher, Episcopal priest-turned-atheist. Fletcher, the first professor of medical ethics at the University of Virginia, was one of many advocates of eugenics, euthanasia, and emphasis on the “qualities” of “humanhood.”

Mussolini, Lenin, and American Progressives

The exercise of state power and the violation of individual rights was not a war-time exception, in the view of progressives at the time of the Wilson presidency. Wilson clearly expressed his rejection of the ideas of the Founders. Many saw war as an opportunity to rid the country of classic liberalism and laissez faire.

Franklin Roosevelt brought an army of bureaucrats and intellectuals who shared the progressive vision. Many were enamored of Lenin and also admired Mussolini’s fascist regime, writes John Goodman (NCPA Health Policy Blog 12/7/11).

“Eugenics was the signature project of the progressives,” comments Kent Lyon. The Scopes Trial was really about the teaching of eugenics, not evolution, he states. The agenda simply went underground after Hitler’s death camps were liberated.

AAPS Calendar

May 18-19, 2012. Workshop, board meeting, near Newark, NJ.
Oct 4-6. 69th annual meeting, San Diego, CA.


Write to CMS and to Congress about the right of Medicare beneficiaries to spend their own money on life-saving care. Send us a copy of the answer. See http://tinyurl.com/7gzle79.

ACA Disclosure Rules

The Sunshine Act, part of ACA, requires pharmaceutical, biologic, and medical device makers to track and annually report payments or other transfers of value they make to doctors, and HHS will make these publicly available on the internet in a searchable database. The reporting threshold is $10 (say for lunch), or $100 aggregate value in a year (MPCA 1/23/12). This is supposed to “discourage inappropriate influence on decision-making” and help patients choose the right doctor. It will certainly impose a costly burden on suppliers. A surge of qui tam lawsuits alleging improper ties between physicians and manufacturers is likely, warns attorney Kirk Ogrosky (BNA’s HCFR 1/11/12).

Loewenstein et al. discuss potential unintended consequences such as increased bias. While disclosure is generally good, they state that it does not dispense with the professional’s obligation to deal with conflicts of interest: “Conflicts of interest, including fee-for-service arrangements [emphasis added] are at the heart of the astronomical increases in health care costs,…and transparency is no substitute for more substantive reform” (JAMA 2/15/12). These authors do not discuss the potential effect of the ACA’s accountable care organizations (ACOs), and their bonus-for-no-service arrangements, on the patient-physician relationship.

HHS has also unveiled requirements for disclosure by health insurance companies. It provides standardized language for describing benefits—but the price of the policy, included in the initial draft rules, has been dropped (KHN 2/9/12).

Enforcers Pressured to Find Fraud

Large savings from eliminating fraud have already been figured into budget calculations, states attorney Kirk Nahra. That will put “lots of pressure on fraud investigators and prosecutors.”

“For the sake of our country’s limited health care dollars, the fraud-fighting community hopes that OIG hangs a few coyotes on the fence,” said attorney Joseph E.B. White.

Adding to compliance burdens on providers will be Medicaid RACs (recovery audit contractors), which attorney Laurence Freedman compared with the “watch-watcher-watchers” in Dr. Seuss. According to Nahra, there is a significant risk of abuse by RACs—who sometimes “are not as knowledgeable as traditional government investigators.”

To strip away obstacles to ACO formation, strong waivers to draconian fraud penalties are needed (BNA’s HCFR 1/11/12).

1.2 Billion Claims to Monitor

Officials estimate annual losses of $70 billion to Medicare and Medicaid fraud. “For providers, Medicare is like an ATM: So long as they punch in the right numbers, out comes the cash,” writes Michael Cannon. He supports the Ryan voucher proposal, which would send money to 50 million beneficiaries, reducing the number of transactions by more than a billion (Nat Rev 7/4/11).

Like the AAPS proposal to outlaw assignment of benefits, so that money goes to beneficiaries rather than claims-filing machines, this would evidently deprive too many vested interests.

“Everything within the state, nothing outside the state, nothing against the state.”
—Benito Mussolini

ACA Medicaid Expansion Unconstitutional

In one of its eight amicus briefs filed concerning the constitutionality of ACA, AAPS argues that forcing the States to expand eligibility for Medicaid, a critical method for decreasing the number of uninsured, is “an assault on the sovereignty of the States.”

The Medicaid provision forces financially strapped States to increase spending on medical care of the indigent, either by expanding the program or withdrawing from it totally, thus losing the federal tax funds its citizens are nonetheless required to pay.

See http://tinyurl.com/7upb7yb for briefs and press.

“A Supreme Court ruling that the federal government overstepped its authority in the Medicaid expansion would be a bombshell,” writes John Iglehart (NEJM 1/12/12). “Medicaid is the foundation of the vast expansion of publicly funded authorized by [the ACA].” The Court’s announcement that it would consider this issue was unexpected; Congress reserved the right to amend Medicaid without State permission (NEJM 2/9/12). ACA’s supporters are “reeling” over it (Wash Post 11/16/11).

No Social Security Without Medicare

The U.S. Court of Appeals for the D.C. Circuit ruled that Social Security recipients cannot disclaim Medicare Part A benefits, in a case brought by former Congressman Dick Armey and others (Brian Hall v. Sebelius, No. 1:08-cv-01715).

Seniors were “already free” to “reject” or “decline” the benefits. They may “refuse to request Medicare payment” and instead “agree to pay for the services out of their own funds or from other insurance,” said the Court, citing Medicare Claims Processing Manual, ch. 1, §50.1.5 (2011). However, there was no statutory way to legally “disclaim” entitlement to benefits, once beneficiaries had applied for them by filling out a Social Security application, without giving up all past and future Social Security payments.

Plaintiffs claim that their private insurance benefits were reduced, without a corresponding reduction in premium, as long as they were legally entitled to Part A.

In dissenting, Judge Karen LeCraft Henderson quotes Silver Blaze by A. Conan Doyle:

What led Holmes to conclude that the dog knew the thief was its silence…. Ditto here. The majority’s silence on the sole question in this case—is the Social Security Administration (SSA) authorized to penalize an individual who seeks to decline Medicare, Part A coverage…—provides the answer: no.

In footnote 9, she shows that the option to “refuse to request” is illusory. Under 42 U.S.C. §1395cc(a)(1)(A)(i), a hospital cannot charge or accept private payment “for items or services for which [an] individual is entitled to have payment made under [Medicare, Part A].”

The decision is available at http://tinyurl.com/8355crx.

In a 2009 interview with Rachel Maddow on Meet the Press, Armey said that it defied logic for government to capture seniors in a program that is $43 trillion in the red and not let them out if they wanted to leave. He called forcing people into a government program they did not want was “tyranny.” Maddow concludes that Americans need to know that “the anti-healthcare reform lobby thinks that Medicare is tyranny.” Progressives called this a “radical opinion” (http://gocl.me/ahSD0R).


Abortionist Charged with Murdering Babies. When an attempted abortion resulted in a live birth at Women’s Medical Society in West Philadelphia, Kermit Gosnell allegedly severed the baby’s spinal cord with scissors. Gosnell was charged with murder “in the deaths of seven babies and one patient.” This fact was buried at the end of an article headlined “Abortion doctor faces painkiller charges.” The allegation that Gosnell was running a “profitable pill mill” for drugs like OxyContin, Xanax, and codeine-containing cough syrup was of greater interest to AP.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Too Much Power. In a letter to Secretary Sebelius, House Democrats complained that the Administration risks giving insurers too much power to determine Americans health benefits if it turns that decision over to the states, according to the Healthwatch blog in The Hill. But apparently they think that a 15-person group immune from judicial or legislative review should have such power.
Joseph M. Scherzer, M.D., Scottsdale, AZ

Why Is So Much Money Thrown at EMRs? Why is so much borrowed money being used to incentivize physicians to use electronic medical records, designed by a small group of industry insiders, that resemble a Tower of Babel? Jonathan Bush, Founder-CEO of AthenaHealth called it “healthcare information technology’s version of cash-for-clunkers.” The reason: control by third parties. Policy could be implemented simply by removing an option in the EMR. If you can’t select a particular treatment from the menu, it might as well not exist, or the red tape to choose it is so painful that there is little incentive to fight the system. http://par8o.com/wordpress/why-emr-is-a-four-letter-word-to-most-doctors
Adam Sharp, M.D., Founder, Par8o and SERMO

Where Computers Excel. For data mining, computers are wonderful. If I wanted to know what percentage of my patients have major depression, or how many SSRI prescriptions are for Celexa, EMRs would be perfect. But I never have such questions. The people who do care about such questions are the ones pushing for EMRs, and they are neither doctors nor patients.
Stuart Gitlow, M.D., Woonsocket RI

It’s Not the Same 1% (or 10%). According to AHRQ, of the 1% of the population accounting for one-fifth of all medical spending, 80% were no longer in that category by the following year. Of the top 10% who spent 64% of all medical dollars, fewer than half of them were still in this category the following year.
John Goodman, Ph.D., National Center for Policy Analysishttp://healthblog.ncpa.org/persistence/

It Doesn’t Matter, John. The real purpose of saying that 1% of the people spend 22% of the money is to drive doctors and health plans to give these sick elderly people “palliative care” and thereby hasten their deaths to save money. See the writing of anointed New York Times columnist Ezekiel Emanuel about the “complete lives system.” This is a not-so-subtle targeted campaign of genocide against the sick elderly.
Brant S. Mittler, M.D., J.D., San Antonio, TXhttp://healthblog.ncpa.org/persistence/

There Are Laws Against “Distracted Driving,” but… Walk into any operating room with EMRs, and the circulating nurse will have her back to the patient for almost the entire case, frantically typing, trying to complete the operating room record before the case’s conclusion. This is the new and dangerous distraction introduced into clinical areas that has left patients feeling more abandoned than ever. The idea that this technology is not distracting, whereas “personal electronic devices” are, strikes me as strange and inconsistent. We do not have computers in our operating rooms at Surgery Center of Oklahoma.
G. Keith Smith, M.D., Oklahoma City, OK – http://surgerycenterofoklahoma.tumblr.com/

Root Cause of the Housing Bubble. The book Engineering the Fiscal Crisis by Jeffrey Friedman and Wladimir Kraus explains why a housing bubble occurred not only in the U.S. but in Iceland, Ireland, Spain, and other countries. In 1988, geniuses from around the world agreed on the Basel banking regulations that set lower capital requirements for banks that held highly rated mortgage-backed securities. The Basel bunch gambled the world economy on the assumption that housing was a sure bet, despite ample historical evidence that it was not. Contrary to conventional wisdom, the banks were not unregulated; they were simply complying with Basel regulations in a big way.
Craig Cantoni, Scottsdale, AZ

TMA and ICD-10. The TMA resolution voted into AMA policy to oppose ICD-10 is a good start. I wonder whether TMA will stop providing ICD-10 “boot camps” for physicians, to send a clear and strong signal regarding our position. For unknown reasons, the TMA seems to feel obliged to collaborate with the government and insurers to prepare physicians to unthinkingly accept and obey ACA—even as the law is being challenged in court.
Jaime Durand, M.D., Arlington, TX

Political Chess. In the large game now being played, doctors and patients are just the “naked pawn.” It’s time to lead a march of the pawns off the chess board. Restore the rights of Americans!
David M. McKalip, M.D., St. Petersburg, FL

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