Wednesday, September 14, 2011

Taking a Pass on Obamacare

    Following the passage of the Patient Protection and Affordable Care Act in 2010, opponents of what has been commonly referred to as Obamacare and the individual health insurance mandate began waging legal challenges against what has been President Obama's most notable domestic policy initiative. Nearly 30 states have jointly filed lawsuits claiming that Obamacare is unconstitutional because they believe that having the federal government compel citizens to purchase health insurance is not justified under the interstate commerce clause. Many supporters of Obamacare, including prominent legal scholars like Laurence Tribe, Akhil Amar, and Erwin Chemerinsky, believe that its constitutionality is doubtless.
    However, the lawsuits persist and opponents of Obamacare scored a notable victory when the 11th Circuit Court of Appeals upheld a lower court's ruling against Obamacare. Their ruling conflicts with the 6th Circuit Court ruling, and the Supreme Court awaits. The high court should, if it can, take a pass on this one.
    The arguments against the individual mandate basically center around the idea that the individual mandate is not a necessary and proper measure for the regulation of the health insurance industry because such a broad reading of the interstate commerce clause would grant too much power to the U.S. Congress and jeopardize the notion of our government as one of enumerated powers. Supporters of the individual mandate say that such an objection is rubbish and that the individual mandate is necessary and proper for the broader regulatory goal of making everyone eligible for health insurance independent of medical history. Neither side is decisively correct.
    Then what should the court do? It could defer to the determination of the legislative branch and implicitly accept that Obamacare is constitutional; many believe that the court will take such a route. However, expanding the power of the federal government (if it is an expansion) in such a way will stink in the nostrils of the conservative bloc who may wish to revisit the issue at a later date or assert the court's authority to prevent federal overreach in the name of social welfare; they may not be eager to overturn Obamacare, but what about the next legal conflict between economic autonomy and the regulatory powers of Congress?
    If the Supreme Court could punt the issue away on narrower legal grounds or some technicality then it could save itself a huge headache in the 2012 session. They could conjure an argument that questions whether or not state attorney generals and conservative legal groups have legal standing; they could point out that the individual mandate does not take effect until around 2014; they could ask if there have been any legal damages that would warrant such lawsuits; they could simply say that they would rather revisit the issue at a later date (although that is unlikely because that would be conceding fallibility) and promise to expedite similar lawsuits that are filed after a certain point. Such a tact essentially amounts to upholding Obamacare if only temporarily.
     After all, Republicans are poised to take both houses of Congress following the 2012 election and have a better than even chance of capturing the White House. A Republican administration with any of the current frontrunners at the helm will more than likely overturn Obamacare and replace it with something else which would make the lawsuits a moot point. Alternatively, if President Obama is reelected and Obamacare doesn't get axed then voters will have more of a chance to evaluate if Obamacare is effective and desirable in action and not just in theory; in that case, there may be little demand for the court to overturn the law and the high court can comfortably uphold it. The legislative process can spare the Supreme Court some grief.
     And what grief it would be! Any decision will create a storm of controversy that would further politicize the Supreme Court and possibly put the court front and center on the stage of a presidential election. On the other hand, allowing the issue to ripen before judicial intervention would be palatable for many Americans even if it does resemble a political calculation because it is a calculation that reflects judicial modesty. Lawyers, legal activists, and some legislators may find the lack of resolution and direction on commerce clause jurisprudence from the high court undesirable, but the electorate doesn't care about legal purity. They want something that works.

Monday, September 5, 2011

No Bone Marrow for You!

“Instead of getting a felony conviction for it, you would get a gold star.”
 - 9th Circuit Judge Andrew Kleinfeld, on the contrast between selling and donating bone marrow

     The LA Times article “Ban on Paid Marrow Challenged” (2/21/20) tells the story of how the National Organ Transplant Act of 1984 is being challenged in the court system by plaintiffs that fault the law for contributing for a shortage of bone marrow donations through its ban on the sale of human organs for medical use. This shortage leaves many who are suffering from life-threatening illnesses like leukemia waiting in a long queue for a good match. In some cases patients expire during their wait or accept less than optimal bone marrow matches that leave their bodies vulnerable to graft-versus-host complications which can be fatal. The plaintiffs legal case may be lacking (a lower court tossed their lawsuit because it lacked legal grounds), but their grievance is eminently legitimate.
     The ban originated from several considerations. Chief among those reasons was the fear that poorer Americans would be disadvantaged by the commercialization of organ donation. In particular, if organs could be bought and sold then a wealthier patient could get the pick of the litter (a better match) while a poorer patient might be forced to settle for an inferior match because the poorer patient is likely to be outbid. Alternatively, a rich man could overpay for a decently matched kidney that would have been a near perfect match for someone else. These concerns help explain the establishment of the Organ Procurement and Transplantation Network where patients are matched with organs based on compatibility and medical outlook.
     By banning the sale of organs and bone marrow in the name of equal access, the government prevents a legal market from emerging and exacerbates shortages. Price controls and government rationing of goods and services generally fail because the former distort the market and the later destroys it. The ban on organ selling essentially forces the government to ration organs. Markets create incentives (a profit motive) for suppliers of goods and services to increase to supply when shortages exist. If potential suppliers are denied compensation then shortages persist.
     If the ban were lifted, a dramatic increase the supply of organs would largely mitigate the potential problem of poorer patients settling for interior matches. After all, even if rich patients were to receive the pick of the litter it may not force poor patients into settling for inferior organ matches because the size of the litter is much larger. But even if dramatic inequalities in organ quality persist between rich and poor recipients, the government can impose modest regulations to ensure greater equality without destroying the market altogether through rationing.
     The fears over unequal access to organ transplants are misguided, and they parallel the fears over unequal access to medical care in general. Concern over inequality in health care largely motivates those who support single-payer (nationalized) health care. In this case, it is also partly to blame for the organ rationing program that mostly succeeds in creating shortages while still allowing people to cut in line if they take extraordinary measures like organ bartering or if they are wealthy and well-connected (as some have said of Steve Jobs).
     Of course, the idea of selling organs raises ethical questions. Is it proper for the law to allow poorer Americans to jeopardize their health by selling kidneys or parts of their liver for money?  Perhaps not, but the idea of selling organs should still be viable because the selling of organs can be recast as a selling of rights to organs after death. Someone who may not otherwise consent to being a donor may give consent if he is compensated for his consent or if his estate or family is compensated.
     However, this does not apply to bone marrow donations because they are almost always live donations and not from cadavers. The marrow donation process is highly inconveniencing for the donor because one method of extracting stem cells leaves the donor with flu like symptoms for several days and the other is surgical. Considering the level of inconvenience, shortages are not surprising.
     Employees of the bone marrow registry, medical technicians, nurses, doctors, administrators, and others who participate in pairing donor marrow to recipients all receive payment.  Why shouldn't someone receive modest compensation for donating marrow especially if they have to miss work?
     One common answer from individuals who work for the bone marrow registry is that donating marrow is someone's duty and people should not expect to be paid. It is not without irony that there are those who receive hourly pay to register bone marrow donors yet (piously) expect others to donate their time and body parts without compensation.