Reviewing the Day in the Supreme Court #EERS

Whacker77

I listened to the entire oral arguments today and I am not as hopeful as some the mandate will be overturned. I say that for two reasons.

First, it’s a mistake to assume Kennedy’s questions are indicative of his position. At the end of the arguments, he gave the government hope by saying the young not participating in healthcare is a problem for all.

Second and more concerning was John Roberts. Time after time, he seemed to beg the government for a limiting prinicple if the mandate is upheld. He seemed to be looking for way to ensure an afirmation would give the Congress unlimited authority.

Now, I don’t think Roberts favors the mandate, but I think he was searching for a “Plan B” in case Kennedy goes wobbly. Signaling he wanted to know what the limiting principle should be tells me he will join Kennedy if he goes with the liberals so he can control the opinion writing process and tailor a narrow opinion.

Overall, I thought the conservatives were dubious of the mandate, but I didn’t get the sense Jeffery Toobin did. I believe Roberts and Kennedy will vote in favor of the mandate mostly because Roberts is as concerned about the public perception of the Court. A 6-3 ruling gives him the larger majority he has always pined for in major cases.

pieter

EE,

Will you have the temerity to mention Sheriff Arpaio’s preliminary finding that the President posted a fraudulent birth document and selective service registration?

No, silly question of course you won’t.

Some would consider this an amazing revelation…either the Maricopa County sheriff placed his credibility on the line with a false allegation or…well, who cares, right?

lapert

That was the sense I got too. I never like to bet on what the SC will actually do because they can surprise you but as of now I am expecting a 6-3 decision written by Roberts narrowly construed to define a limiting principle that, at least on the surface, seems to cover health care in general and the nature of insurance pools in particular as a unique environment that allows unique methods to achieve the governments ends (which nobody suggested wasn’t permitted within their commerce powers).

Flagstaff

hope on the part of liberals, fear on our part.

I didn’t hear the questions, but this seems an odd comment if Robert’s was looking “for a limiting principle if the mandate is upheld.”

He seemed to be looking for way to ensure an affirmation would give the Congress unlimited authority.

Did you mean “limited” authority?

I believe Roberts and Kennedy will vote in favor of the mandate mostly because Roberts is as concerned about the public perception of the Court.

Oh, I hope that such an important decision wouldn’t be made on such a shallow, selfish basis.

renl57

When the Dem convention meets, the only part of ObamaCare that will be fresh in the public’s mind is the mandate–the most hated part of it.

Flagstaff

of the commerce clause is that the commerce clause was intended to “regulate” those engaged in commerce, primarily businesses, not the customers. Wickard was a big stretch; this is much more so.

Example: A hotel generally must rent a room to anybody who asks for one, but not everybody is commanded to ask to rent a room.

The reasoning behind Wickard was specious, as well. Agriculture began as a cottage industry. Farmers grew food for themselves. Extra was sold on the market. Wickard turned that on its head, in the cause of trying to inflate demand. The farmer was restricted in how much he could produce, not how much he could sell. So what he kept for himself had to be subtracted from his total allowable production, as if he had actually sold it to himself. More government interference.

Flagstaff

But the cheaters in the Democrat Party want them to be able to vote without any ID at all.

pieter

I meant to say congratulations on your going on air to discuss the greatest threat to individual liberty in our lifetime, the healthcare individual mandate.

After that I wanted to challenge you to mention in passing what is evidently unmentionable in every polite circle…the unique instance of a government entity stating our President has committed multiple fraud.

EE, don’t sacrifice your considerable cred with this issue. You have too much to lose. Eh, just kidding…please ask the VA attorney what his thoughts may be…last I checked, it probably violates his state’s laws.

http://www.hakubi.us/ Neil Stevens

You’re guilty of being a loony birther.

aesthete

it’s fallacious to apply the commerce clause to any legislation which regulates personal action. “Commerce” applies to business, and the Commerce Clause clearly limits itself to commerce occurring between borders, not within them. Intrastate commerce cannot be regulated.

Wickard was just a terrible decision in almost every way.

doctorcynic

Who here knows what the most important (and least able to be legislated) driver of American health care costs actually is?

Hint #1: It’s also the most important driver of disease burden in the American patient

Hint #2: Over $1.8 trillion is spent on this yearly. To put that in perspective, the GDP of the continent of Africa is roughly $1.2 trillion per year.

Oh, for this to become common knowledge…

acat

including so much of civil rights legislation …

I’d wonder if the court weren’t looking to refine or repair it.

Mew

Mike Ferguson

I have been a Nurse for 15 years and while I do believe there are many area’s of healthcare that need to be addressed, one of the things that always astounds me is the “Medically Unsophisticated Patient”. A lot of healthcare is really just common sense, but you would be amazed at the number of people that are clueless when it comes to health issues. I am not talking about your high school only educated, I am talking Masters level and above that are absolutely clueless and would pretty much just do whatever they are told without ever asking a question.

Berean

It is equally if not more likely that Robert’s questions were designed to demonstrate to his benchmates that no workable limiting principle can be articulated. And that is what happened – none was articulated.From such he can then easily argue that they cannot use any limiting arguments to uphold the mandate, at which point it is dead. This is why the leftists are in a panic (listen to their TV and read their blogs – they are).

As to Kennedy, if he sounds heavily skeptical then he is heavily skeptical. Remember it is he who pointedly said that the “burden of proof” here is on the government and it is a tall one (not his exact words but it is what those words mean).

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

the only reason they do have a significant effect is because of the federal law that mandates ER treatment. Congress could repeal that law.

1stRichard

The Commerce Clause encompasses three parts, several States, Indian Tribes and foreign Nations. If expansion of power under the Commerce Clause is given then does it not affect all three? If the power to regulate individual non-participation were applied to the Commerce Clause then would it also include foreign Nations? Given the fact this started over a crop of wheat I am wondering what more is plausible?

doctorcynic

Not exactly, but patient ignorance is certainly a component of the answer.

My favorite example of what you’re talking about: I once followed a patient with renal failure who had been on dialysis three times a week for over a decade. One morning I mentioned something about his kidneys. He looks at me incredulously and says, “Kidneys? Ain’t nothin’ wrong with my kidneys!”

Seriously, what do you say in response to that?

Ausonius

I have seen estimates of between only 6 to 15 million truly uninsured, i.e. actually unable to afford any kind of health insurance, versus those who are free (so far) NOT to buy something they do not want to buy.

See:

http://hotair.com/archives/2009/07/24/ramirez-meet-the-uninsured/

And:

http://www.politifact.com/truth-o-meter/statements/2009/aug/21/orrin-hatch/who-are-uninsured-hatchs-take/

lineholder

A dialysis patient who isn’t aware that they have a problem with their kidneys?

I am hoping that you are joking…but after having limited contact with patients myself, it wouldn’t surprise me if you aren’t.

doctorcynic

Neither was the patient, unfortunately.

doctorcynic

PATIENT BEHAVIOR

Specifically: poor dietary and exercise habits and subsequent obesity; tobacco use; and alcohol abuse.

Which lead to hypertension, high cholesterol, diabetes, gallstones, COPD, cirrhosis, lung cancer, bladder cancer, liver cancer, heart attacks, strokes, toes and feet amputations, blindness, renal failure… All the top killers. The problem is, though, we won’t allow these people to be killed by their disease. They end up in ICUs and dialysis centers across the US, unwilling to change the underlying behavior but demanding the best medical care in the world (which we generally have and they generally get).

$1.8 trillion dollar yearly. Toss that number around in your head. That’s comparable to the whole economies of Russia or Spain (if it were a nation, it’s be the eighth largest by GDP, behind Italy).

Links, with no particular ideological bent:
http://www.cdc.gov/chronicdisease/resources/publications/AAG/chronic.htm
http://www.businessgrouphealth.org/preventive/businesscase/index.cfm

The real question is, why aren’t these numbers discussed? Thoughts?

macwell

Was presented by the most bumbling stumbling, stuttering lawyer they could find?
I didn’t listen, but I read the entire transcript and that guy seemed like he wasn’t sure what the hell he was doing.
I’m not a lawyer, but, if I ever hired one who spoke like that, I’d have to fire him/her and move to another country.

macwell

Doctorcynic is right on the money about patients, most of them are clueless. I’m lucky enough to be married to a nurse so she makes all the decisions about which doctor to see and which course of action to take on medical matters.

That story about the kidney patient is priceless by the way.

Mike Ferguson

I once had a patient with Colon Cancer who I had educated with pictures and video’s. He looked me straight in the eye and said to stop talking about his colon cancer because he was trying to talk to me about the pain in his stomach, by which he actually meant abdomen, but you get the picture.

Mike Ferguson

(nt)

SoFiMil

I agree, that while perhaps undetstandble, this is conservatives fearing and expecting the worst.

lineholder

“Behavior modification” is one of their major themes. The lawyer even included in the argument today.

Why doesn’t the right discuss it? Because we hear so much of it from the left that we’d rather talk about other things.

You think the CDC is “no particular ideological bent”? When it comes to presenting statistical data, they’re fairly solid. So is WHO. But both agencies do display many pieces of information that rather obviously convey the mentality that ‘government HAS to save us…government HAS to regulate these things….citizens aren’t responsible enough to decide on their own”.

acat

Seems like the root question…

Mew

Common_Cents

so at least he has that going for him.

sarg01

The government’s case before the Supreme Court is always argued by the Solicitor General of the United States. And since he’s an Obama appointee, that pretty much means unqualified.

califgal

he’s just trashed the Constitution’s protection of the individual and trashed limited government FOREVER.

doctorcynic

The right needs to start discussing it in context of personal responsibility. Ought someone be allowed to overconsume calories until they are morbidly obese, with uncontrolled diabetes and heart disease? Yes. But who then must be responsible for funding the care of that patient?

Should someone be allowed to smoke two packs of cigarettes a day rather than purchasing a health insurance policy covering catastrophic disease? Yes. When that person’s tobacco use gives him lung cancer, should he be able to demand that his fellow citizens pick up the tab for his hospital bills?

The issue of personal behavior as relates to health care must be co-opted by conservatives, even if the answer must in the end be, “behave as you choose, but you will be allowed to suffer the health consequences of poor behavior and either die at no cost to your fellow citizen or be dependent on your neighbor’s charity for your care.”

I concur with your point about the CDC in general. Another reason we must co-opt this discussion. As they’ve proven aptly, government CANNOT regulate these things. Responsibility – and the permission to suffer natural and predictable consequences of one’s own behavior – should be the way of things.

(Incidentally, the one piece of legislation I’d like to see is a requirement to show proof of health insurance before buying cigarettes or alcohol.)

doctorcynic

But being allowed to suffer the natural and predictable consequences of morbid behavior should be, without the current system of the federal government compelling the taxpayers to pay most or all of the bill for care that in many ways is a waste of resources and ultimately futile.

Yes, that should include allowing patients who smoke, drink, and eat themselves into a fatal disease die for free.

(Although I believe we’d see a sufficient safety net provided by private citizens, churches and charity hospitals, and state programs spring up to treat the self-abusive patient that would be far more efficient – and constitutional! – than the unsustainable federal leviathan we have now).

acat

You assert – without argument, I’ll note – that suicide isn’t a right… but then you say suicide, if committed via a slow, painful, and – as you put it – morbid behavior should be a right.

Please first defend your position re. suicide, and then indicate why there’s a difference regarding the method – stepping in front of a bus vs. smoking a pack a day for decades…

Mew

Flagstaff

the idea of OCare reducing health costs is specious. Hope to have it out today.

lineholder

I do believe that there are ways Conservatives could contribute more to the conversation of health than we do. I just approach it from a very different perspective than what you have stated above.

You’ve acknowledged yourself that you cross paths with patients who do not even have the basic understanding of how the human body works to associate an illness with how some part within their own body might be functioning. And I would guess that you would agree that this places significant limitations on the ability of patients to be proactively involved in their own care.

With that in mind, what I would question is why this type of education does NOT exist at a younger age?

Plus, there are projects taking place in other countries, simple projects for the most part, that could be extremely advantageous for us to consider in the context of nutritional health and health maintenance. There is a project in Australia whereby schools have established gardens on school property. Students learn how to grow their own food. They also are provided with the opportunity to cook that food in various recipe formats. It wouldn’t be a reach in a situation of that sort to provide education about nutritional balances for fats, carbohydrates and proteins, along with the other dietary advantages to a proper diet.

There are also numerous anatomical websites that provide really simple educational programs. Are our educators, both within the private school system and within the health care field, utilizing those resources? If not, why not?

I think we have a lot of options, probably more than we realize, that encourage greater responsibility on the part of the individual.

One question I would ask you, as a doctor, is how often do physicians and other health care employees (such as case managers) utilize a structured format of any sort to provide patients with access to that type of information? And I know that health care providers have plenty to concern themselves with at this point, but this IS one area where providers could become the driving force behind societal change that moves in the direction you’ve suggested.

doctorcynic

I’ll play along.

First: may we agree on the fundamental American axiom from which we derive our rights, namely that “we are endowed by our Creator with certain inalienable rights…life, liberty, and the pursuit of happiness,” is valid? A “right to suicide” can certainly not be derived from this, since suicide is definitively and obviously anathema to the first of those – life – and in no version of Judeo-Christian morality is suicide allowed or approved. Thus, no right to suicide.

Second: your conflation of potentially morbid behavior with “slow suicide” is flawed and invalid. One reason is the intent of the individual. Indeed, going back to the preamble of the Declaration of Independence, a persongenerally engages in tobacco use, overeating, and alcohol abuse in an ill-advised form of “pursuit of happiness,” and not at all with the intent to kill themselves. Another is the simple fact that behavior that is PREDICTABLY morbid is not NECESSARILY so. Although chronic disease with fatal results is often the rule, the exception is not entirely uncommon – ie, the lifelong smoker who lives to ninety.

That’s just off the top of my head. I’m sure others here could elucidate further…

acat

He can’t afford my fees.

The thing is, if someone knows that – statistically – the likelihood of reaching 90 as a smoker, a binge drinker, or a Chocodile*-chomping fattie is unlikely, then .. they are committing slow suicide in pursuit of happiness.

The point is, if a slow death is allowed under the “pursuit of happiness”, then why isn’t a fast one … and – be careful when answering – if the government can deny the fast death, then aren’t you giving the government the power to block the slow one?

Mew

* one of the more obscure Hostess bakery products, the Chocodile is basically Twinkie dipped in the same chocolate coating as a Ding-Dong.

doctorcynic

For at least the reasons noted above: intent and absolute predictability. If the definition of “suicide” is expanded to encompass “behavior with a certain likelihood of eventual mortality” as you’re doing, what percentage of likely mortality will you draw the line? Should that percentage include driving a motorcycle? A car? Traveling to certain areas of the globe? You’ve just erased the normative definition, distinctly black-and-white, basically “intentionally and acutely harming oneself to induce immediate death,” to an indefinable slippery-sloped gray zone.

Anyway, ultimately I disagree with the premise in your first paragraph defining “slow suicide.” Besides, the likelihood of reaching ninety is low anyway;)

doctorcynic

For at least the reasons noted above: intent and absolute predictability. If the definition of “suicide” is expanded to encompass “behavior with a certain likelihood of eventual mortality” as you’re doing, what percentage of likely mortality will you draw the line? Should that percentage include driving a motorcycle? A car? Traveling to certain areas of the globe? You’ve just erased the normative definition, distinctly black-and-white, basically “intentionally and acutely harming oneself to induce immediate death,” to an indefinable slippery-sloped gray zone.

Anyway, ultimately I disagree with the premise in your first paragraph defining “slow suicide.” Besides, the likelihood of reaching ninety is low anyway;)

acat

That’ll stop the “double-tap”.

Second, “slow suicide” is hardly a new term. Go forth and google “He drank himself to death”…. that’s been going on as long as the country, eh? Then there’s the daredevils – not stuntmen, there’s a *lot* of engineering that goes into a good stunt – but those who engage in risky behavior for the thrill of it. Adrenaline junkies.

The point, Doctor, isn’t whether you disagree… it’s whether the courts will. I choose to take the risk of avoiding broccoli. Can’t stand the stuff. Does my increased risk give government the right to force-feed me?

This is the problem with discussing patient behavior in a vacuum – it can come across as “Somebody should Do Something”… but at that point, it conflicts with personal liberty.

It appears that we both reach the same conclusion – people do, in fact, have the right to eat or drink or {copulate} themselves to death, so long as they harm no others along the way. I would add fiscal harm to that, i.e. don’t expect me to pony up for their viagra.

Mew

Common_Cents

people are less likely to change their poor health habits if they have “free” healthcare.

Flagstaff

Here it is, the latest on ObamaDon’tCare.

RS

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Reviewing the Day in the Supreme Court #EERS

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