The big news this week on the legal blogs – Google Scholar now searches case law!

It is fast and easy to use.  You can search by case name (Terry v. Ohio) or by topics (fourth amendment). 

Let’s Get Started

Go to Google.com.  Click MORE at the top of the page and from the drop down choices, select SCHOLAR.  Make sure to click the radio button for “Legal Opinions and Journals.”  Enter your search.  That’s it…very easy.  Here is a direct link to Google Scholar to save in your Favorites. 

Picking a Jurisdiction

Do you need to just search Ohio cases?  Click on the Advanced Scholar Search to the right of the search button.  At the bottom of the next screen you can select to search one state or a grouping of states.  You can also search just federal court opinions if you wish.  While you are on the Advanced Scholar Search page, you may also want to limit your search by date.

The Results

Did I mention that it was FAST!  Thousands of cases searched and results displayed in seconds.  The search results are sorted by the highest courts first and by the most cited cases.   From the resulting list of cases, click on the name of a case to read the opinion.  Your search terms are highlighted in the case.  Many cases mentioned in the opinion link directly to the case.  Statutes and rules cited in the opinion are not linked.  This should be an easy fix for Google since statutes and court rules are already available for free on the web.  See here for free Ohio Statutes and here for Ohio Court Rules.  

Page numbers on the left cite to the West Reporters.  Watch out…there has been some criticism that the pages numbers may be off by a couple of words.

The HOW CITED tab takes you to lists of cases that cite your case or are related in some way (Cited By, on the right).  Also on the left are cases that quote from you case (How This Document Has Been Cited).  The left column gives snippets from the citing case.  Opening one of these cases will take you directly to the relevant part of the case.

Searches will also list law journals but a subscription is usually needed to go to the full text copy of the article.   This may be changing as more law reviews move to the web.

Search Tips

• Use quotation marks to search phrases.  Many legal concepts are often phrases- habeas corpus, sovereign immunity, Second Amendment, etc., so use the quotes. 
• If your search pulls up too many results, use the date restriction at the top of the page in the SCHOLAR line.  The default is all dates.  The drop-down arrow allows you to narrow the results by year ranges.

Coverage

“Google Scholar allows you to search and read opinions for US state appellate and supreme court cases since 1950, US federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases since 1791 (please check back periodically for updates to coverage information).  In addition, it includes citations for cases cited by indexed opinions or journal articles which allows you to find influential cases (usually older or international) which are not yet online or publicly available.”   Source

 See Google’s Nov. 17^th announcement for more information.

     Yoani Sanchez, a courageous Cuban blogger, reports in the Huffington Post that President Obama responded to seven questions that she had posed to him.   More below.

     On November 6, Juan O. Tamayo of the Miami Herald reported that Yoani Sanchez was detained and beaten by Cuban state security officials while on her way to a march against violence.  On November 18, in an article posted by the Huffington Post, Sanchez revealed that she had submitted six questions to Raul Castro, President of Cuba, and seven questions to Barack Obama, President of the United States.  Here are the questions she asked President Obama:

For years Cuba has been a U.S. foreign policy issue as well as a domestic one, in particular because of the large Cuban American community. From your perspective, in which of the two categories should the Cuban issue fit?

Should your administration be willing to put an end to this dispute, would it recognize the legitimacy of the Raul Castro government as the only valid interlocutor in the eventual talks?

Has the U.S. government renounced the use of military force as a way to end the dispute?

Raul Castro has said publicly that he is open to discuss any topic with the U.S. provided there is mutual respect and a level playing field. Is Raul asking too much?

In a hypothetical U.S.- Cuba dialog, would you entertain participation from the Cuban exile community, the Cuba-based opposition groups and nascent Cuban civil society groups?

You strongly support the development of new communication and information technologies. But, Cubans continue to have limited access to the internet. How much of this is due to the U.S. embargo and how much of it is the responsibility of the Cuban government?

Would you be willing to travel to our country?

     The President's answers may be found here in an article posted today by Sanchez in the Huffington Post.  They may also be found here at Yoani's website, Generation Y.

     Carlos Lauria of CPJ (Committee to Protect Journalists) posted an article this afternoon reporting that Sanchez spoke to him from her home in Havana and that she was "astounded" when the President answered her questions.  Lauria also provides background information about Sanchez, including the fact that she received the Maria Moors Cabot Award from Columbia University for excellence in Latin American reporting.

In today's Wall Street Journal, there is an interview with Prof. Daylian Cain of the Yale School of Management.  Prof. Cain teaches a course entitled, "Business Ethics Meets Behavioral Economics."  In the interview, Prof. Cain states that:  "Behavioral economics is such a great tool because it shows how people make bad decisions and separate their actions from their values."  In other words, you can be really smart and have really great values and still make terrible mistakes because you are not the perfectly rational actor of classical economics who lives in a world where all the messy realities of life are assumed away.

Perhaps some of this insight is implicated by today's post by Prof. Lawrence Cunningham over at Concurring Opinions (HT: Kristina Melomed).  Prof. Cunningham recounts that:

In practice and scholarship, intensifying through the 1980s and into the 1990s, transactional and financial innovation was the rage.  Corporate lawyers turned innovative, cutting edge, exciting, doing deals, developing new contractual devices for financial products—including those I worked on.  Corporate law scholars took up finance theory with alacrity, doing exciting research showing how this innovation worked, with many producers and devotees of this work arguing how law should give it maximal space to flourish (though there were dissenters from this dominant view, including me).   As recently as 2005, Professor Romano, a leading scholar in this dominant style, urged doing more of it, more innovative financial engineering in practice and more finance oriented and exciting research in the academy.

However, as Prof. Cunningham goes on to point out, the roots of the recent financial crisis can be traced back to these very same "exciting" financial products:

Causes of the worldwide credit crisis include, perhaps dominantly, the proliferation of innovative financial contracts, purportedly devices that would reduce financial risk but that instead backfired to concentrate and intensify it on a galactic scale.

Maybe more attention to the lessons of behavioral economics can help stem some of the hubris that commonly precedes a fall.  But then again, perhaps we'll just do with the lessons of behavioral economics what we do with the knowledge that not everyone can be an above-average driver.  You know it's true, but that in no way changes the fact that you also know that you are one of the above-average drivers.

     Hallelujah!  Senate Majority Leader Reid (D-NV) has released the "Patient Protection and Affordable Health Care Act" – his melding of the health care reform bills that had been approved by the Senate Finance Committee and the Senate HELP Committee.  In addition, the Congressional Budget Office has released its estimate of the effect of the bill on the federal budget.  Details below.

     First of all, this is a massive bill.  It is over 2000 pages long – the table of contents alone is 13 pages long.  It is going to take some time to cover all of the changes that this bill will make to the system of medical care and how we pay for it.  Today's posting is only a start. 

     Second, the Reid bill contains some substantial differences from the Baucus bill and the Kennedy bill that had been approved by Senate Committees and from the Pelosi bill that was approved by the House of Representatives.  Unlike the Baucus bill, the Reid bill contains a public option, which it calls the "Community Health Insurance Option."  Unlike the House bill, the Reid bill provides that the states may choose not to offer the public option – the "opt out" provision.  In addition, unlike any of the other bills the Reid bill would raise money to pay for additional coverage by increasing the Medicare tax by one-half of one percent on individuals earning more than $200,000 per year and couples earning more than $250,000.  The House bill would raise the income tax on persons earning more than $500,000 per year and couples earning more than $1,000,000.  The Baucus bill had relied primarily upon a tax on expensive health care plans.

     Here is the CBO's comparison of the Reid bill to the Baucus bill:

[Under the Reid bill] The subsidies that would be provided through the insurance exchanges are larger, and there are provisions regarding a public plan that could be offered in the exchanges.

The penalties for individuals who do not obtain insurance are phased in more quickly and the exemptions from those penalties are less extensive. The penalties for employers whose workers receive exchange subsidies also differ.

The start dates for the individual mandate, exchanges, and employer penalties were all moved from July 1, 2013, to January 1, 2014.

This legislation contains a number of additional provisions, including those establishing the CLASS program and an abbreviated approval pathway for follow-on biologics, and providing increased funding for prevention and public health.

The thresholds for the excise tax on high-premium insurance plans are higher, and there is a new provision for an additional payroll tax on high-income individuals.

     Despite the differences, the main outline of the Reid bill is the same as that of the other health care reform bills.  The legislation will create a marketplace called the Exchange through which individuals and employers may purchase insurance.  Individuals will be required to obtain health insurance, and employers may either provide insurance or pay a fee.  The federal government will grant subsidies to low-income individuals and to small employers for the purchase of health insurance.  Medicaid will be expanded and the federal government will pay for the expansion.  Coverage may not be denied or made more expensive on account of preexisting conditions.  Annual co-pays and deductibles are limited, and lifetime limits on coverage are abolished.  The may be no co-pays or deductibles for preventive care.

     According to the CBO, the Reid bill will reduce the number of uninsured people by 31 million – that is, 31 million more people will have health insurance as a result of this legislation.  The CBO states that

under the legislation, the share of legal nonelderly residents with insurance coverage would rise from about 83 percent currently to about 94 percent.

     The CBO also estimates that the public option contained in the Reid bill pay for itself.  Each year, the premiums that people will pay for insurance under the Community Health Insurance Option is larger than the federal outlay.

     The key sentence in the CBO document relates to the effect of this bill on the federal deficit.  The CBO states that:

     enacting the Patient Protection and Affordable Care Act would result in a net reduction in federal budget deficits of $130 billion over the 2010–2019 period.

     Erica Werner and Ricardo Alonso-Zaldivar of the Huffington Post have posted an article comparing the Senate and House bills.  Here is a link to the Kaiser Foundation's description of the House bill (H.R. 3962), and here again are links to the Reid bill and the CBO estimate.  In future postings I will examine specific aspects of the Senate bill and the CBO's cost estimates.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     The United States Preventive Services Task Force has issued recommendations against using mammograms for routine screening for breast cancer among women 40-49, and recommends screening only every two years after age 50.  What timing!

     Is this panel trying to singlehandedly kill health care reform?   In an article published today in the Los Angeles Times entitled "Mammography Outcry Points to Trouble for Healthcare Reform," Noam M. Levey writes:

A core tenet of the healthcare overhaul President Obama is pushing through Congress is that medical care can be improved — and costs contained — if the country relies more on experts to determine which procedures and treatments work best.

But Monday's mammography report by the U.S. Preventive Services Task Force delivered a swift and stark reminder that few ideas are more explosive in healthcare.

     The American Cancer Society, which strongly supports health care reform so that people who are uninsured and underinsured can receive proper preventive care and treatment, has expressed opposition to the USPSTF recommendation.  The ACS recommends annual mammograms in women over 40.  Deborah Shlian of The Miami Health Care Examiner reported yesterday that Otis W. Brawley, Chief Medical Officer of the ACS, stated:

"As someone who has long been a critic of those overstating the benefits of screening, I use these words advisedly: this is one screening test I recommend unequivocally, and would recommend to any woman 40 and over, be she a patient, a stranger, or a family member."

     Here is a link to the USPSTF website, which describes the task force in these terms:

The U.S. Preventive Services Task Force (USPSTF), first convened by the U.S. Public Health Service in 1984, and since 1998 sponsored by the Agency for Healthcare Research and Quality (AHRQ), is the leading independent panel of private-sector experts in prevention and primary care. The USPSTF conducts rigorous, impartial assessments of the scientific evidence for the effectiveness of a broad range of clinical preventive services, including screening, counseling, and preventive medications. Its recommendations are considered the "gold standard" for clinical preventive services.

     The USPSTF has posted this Recommendation Statement on Screening for Breast Cancer in which it sets forth these rather surprising conclusions and recommendations:

The USPSTF recommends against routine screening mammography in women aged 40 to 49 years. The decision to start regular, biennial screening mammography before the age of 50 years should be an individual one and take patient context into account, including the patient's values regarding specific benefits and harms.

The USPSTF recommends biennial screening mammography for women aged 50 to 74 years.

The USPSTF concludes that the current evidence is insufficient to assess the additional benefits and harms of screening mammography in women 75 years or older.

The USPSTF recommends against teaching breast self-examination (BSE).

The USPSTF concludes that the current evidence is insufficient to assess the additional benefits and harms of clinical breast examination (CBE) beyond screening mammography in women 40 years or older.

The USPSTF concludes that the current evidence is insufficient to assess the additional benefits and harms of either digital mammography or magnetic resonance imaging (MRI) instead of film mammography as screening modalities for breast cancer.

     The Task Force admits that annual mammographies saves lives, but it contends that the harms outweigh the benefits.  Here is how the Task Forces describes the risks and benefits that are involved:

There is convincing evidence that screening with film mammography reduces breast cancer mortality, with a greater absolute reduction for women aged 50 to 74 years than for women aged 40 to 49 years. The strongest evidence for the greatest benefit is among women aged 60 to 69 years.

***

The harms resulting from screening for breast cancer include psychological harms, unnecessary imaging tests and biopsies in women without cancer, and inconvenience due to false-positive screening results. Furthermore, one must also consider the harms associated with treatment of cancer that would not become clinically apparent during a woman's lifetime (overdiagnosis), as well as the harms of unnecessary earlier treatment of breast cancer that would have become clinically apparent but would not have shortened a woman's life. Radiation exposure (from radiologic tests), although a minor concern, is also a consideration.

      The Task Force concludes that routine mammograms confer only a "small" benefit on women in their 40's:

For biennial screening mammography in women aged 40 to 49 years, there is moderate certainty that the net benefit is small. Although the USPSTF recognizes that the benefit of screening seems equivalent for women aged 40 to 49 years and 50 to 59 years, the incidence of breast cancer and the consequences differ. The USPSTF emphasizes the adverse consequences for most women—who will not develop breast cancer—and therefore use the number needed to screen to save 1 life as its metric. By this metric, the USPSTF concludes that there is moderate evidence that the net benefit is small for women aged 40 to 49 years.

          I find this reasoning somewhat opaque.  Further down the document the Task Force offers this "Explanation" for changing its previous recommendation which had supported routine mammography in women aged 40-49:

 …  the current USPSTF is now further informed by a new systematic review, which incorporates a new randomized, controlled trial that estimates the "number needed to invite for screening to extend one woman's life" as 1904 for women aged 40 to 49 years and 1339 for women aged 50 to 59 years. Although the relative risk reduction is nearly identical (15% and 14%) for these 2 age groups, the risk for breast cancer increases steeply with age starting at age 40 years. Thus, the absolute risk reduction from screening (as shown by the number needed to invite to screen) is greater for women aged 50 to 59 years than for those aged 40 to 49 years.

***

In conclusion, the USPSTF reasoned that the additional benefit gained by starting screening at age 40 years rather than at age 50 years is small, and that moderate harms from screening remain at any age.

     Again, I simply don't understand the reasoning.  If I correctly understand the Task Force's explanation, it takes 1904 mammograms to extend one woman's life, and on the whole this routine procedure reduces the risk from breast cancer among women in their 40's by 15%.  This seems to me to be a fairly substantial benefit.

     Personal note: my wife, who is an OB-GYN, disagrees with the panel's recommendations regarding the benefits of routine mammograms and self-breast examination. 

     For your convenience I repeat this link to the Summary Recommendations of the Task Force.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     Earlier today the Supreme Court announced that it would not hear the case that had been brought against the owners of the Washington Redskins football team challenging their use of the name "Redskins" as a trademark.  The issue in the case was not the First Amendment or even the substance of Trademark Law; instead, the issue was whether the plaintiffs had brought their lawsuit in time, or whether it was barred by the doctrine of "laches."

     In 1967 the corporation that owns the Washington Redskins football team applied for and was granted a trademark for the name "Redskins."  Section 2 of the Trademark Act (15 U.S.C. 1052) specifically prohibits the registration of a trademark that is "scandalous" or that is "disparaging" towards persons, living or dead, or that brings them into "contempt" or "disrepute."  The law states:

     No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it – (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute ….

     In 1992 a group of Native Americans challenged the "Redskins" trademark on the ground that it was "scandalous" or "disparaging" within the meaning of Section 2 of the Trademark Act.  Despite the fact that the statute allows a trademark to be challenged at "any time," the company that owns the club defended on the ground of the equitable principle of "laches" – the principle that if a plaintiff delays in bringing a lawsuit, and the defendant is harmed by the delay, then the lawsuit is barred.  The owners of the team alleged that they had been harmed in two ways by the delay: first, it would now be difficult to prove or disprove whether the trademark was "scandalous" or "disparaging" in 1967 when it was issued, and second, the owners had, in the meantime, invested substantial capital in marketing the team under the trademark "Redskins," and accordingly it would be unfair to allow a lawsuit after all this time.  One of the plaintiffs in the case, Mateo Romero, only turned 18 in the year 1984, so the period of "delay" was only from 1984 to 1992.  Nevertheless, the lower courts eventually ruled in favor of the owners and found that this 8-year period of delay in challenging the trademark was unacceptable.  The plaintiffs appealed to the United States Supreme Court, but in its ruling today the Court refused to hear their appeal.

     I think that the use of the term "redskins" is offensive and insulting, but my understanding of the Constitution is that individuals and private companies are permitted to use offensive and insulting language, and may even incorporate such language into the name of a business.  If someone wants to operate a company that has a racial or ethnic insult in the name of the business that is their right under the First Amendment.  But that not mean that people have a constitutional right to obtain a trademark for such language – that the law should preserve the owners' use of such language from trademark infringement, thus protecting them for the use of racist terminology. 

     Nor, in my opinion, should the doctrine of "laches" apply in a case like this.  The doctrine of laches is a principle of "equity," that branch of the law that is concerned with justice and fairness – and if there were ever a case where justice and fairness would dictate that the plaintiffs should have their day in court, it would seem to be this one.  Any company that wishes to obtain a trademark for the use of a questionable racial or ethnic characterization as the name of their business should be willing to defend the trademark in a court of law, and not rely on a defense that amounts to saying, "We've invested a lot of time and money into the use of this disparaging language!"  Away with the doctrine of laches in such a case!  Let's have the courts decide whether or not the term "Redskins" is "scandalous" or "disparaging" within the meaning of the Trademark Act!

Professor Huhn has taught Constitutional Law at The University of Akron School of Law for more than 25 years.  You may visit his website on Constitutional Law.

     The Business Roundtable has issued an enlightening and informative report on health care financing reform.  The Roundtable is concerned primarily with reducing the cost of health care, not with expanding coverage to the uninsured.  The Roundtable's position and the contents of the report are summarized below.

     The Business Roundtable describes itself as follows:

Business Roundtable is an association of chief executive officers of leading U.S. companies with more than $5 trillion in annual revenues and more than 12 million employees. Member companies comprise nearly a third of the total value of the U.S. stock markets and pay more than 60 percent of all corporate income taxes paid to the federal government. Annually, they return more than $167 billion in dividends to shareholders and the economy.

     In September of 2008 the Roundtable issued a press release announcing its support for comprehensive reform of our country's system of paying for health care.  The "four pillars" of the Roundtable's Plan are:

• Creating Greater Consumer Value in the health care marketplace by using health information technology and empowering consumers with more information about good, quality health care.

• Providing More Affordable Health Insurance Options for All Americans by creating an open, all-inclusive private market for health insurance, replacing today's highly fragmented, state-by-state market with multi-state markets. This would create more choices for more health care consumers through broader, more competitive markets.

• Placing an Obligation on All Americans to Obtain Health Insurance, either through their employer or the private market. Americans would also be encouraged to participate in employer or community-based prevention and chronic care programs.

• Offering Health Coverage and Assistance to Low-Income, Uninsured Americans, creating a stable and secure public safety net. This assistance would be financed from the cost savings and efficiencies generated by a more competitive and value-driven health care system.

     Here is a link to the Roundtable's September, 2008 Plan for Health Care Reform in America.

     On November 12 the Roundtable issued another report prepared by Hewitt Associates entitled "Creating a Sustainable Health Care Marketplace" assessing the effect that pending legislation would have on health care expenditures in America.  The report is admittedly concerned with limiting health care costs of large employers and their employees and not with expanding coverage – it is not aimed at securing health care for the millions of Americans who are currently uninsured or with helping small businesses pay for health care - but, with those limitations in mind, the report makes a valuable contribution to our understanding of the underlying problems we face and the legislative initiatives we must choose from.

     In a press release announcing the new report, it states:

“The crippling spike in health care costs makes it harder for America’s companies and workers to compete in the world economy. In this challenging economic environment, we need to make sure we improve, not erode, U.S. competitiveness,” said Ivan G. Seidenberg, Chairman of Business Roundtable and Chairman and CEO of Verizon Communications. “We can do that by implementing the broad-based delivery system reforms approved by the Senate Finance Committee and avoiding ill-advised proposals such as the public option.”

     According to the press release, the key findings of the Roundtable report find much to like about the bills pending in Congress:

Delivery system reforms, such as value-based purchasing; Innovation centers that identify alternative methods of provider reimbursement; Accountable care organizations that realign financial incentives to improve the quality and the value of the care delivered; Financial penalties for failing to avoid preventable hospital re-admissions; Increased individual accountability for health care spending decisions, including health reimbursement arrangements and health savings accounts; Cost and quality of care data that is easier for patients and providers to access and use; Elimination of sharp regional variations in practice patterns; Promote wellness and prevention programs and expand financial incentives to participate in specific programs to reduce lifestyle related illness; and Insurance market reforms that promote competition and choice.

     The Roundtable objects to provisions of the Democratic bills that would delay implementation of many of the cost-saving measures that they contain, that fail to include a strong enough penalty for individuals who fail to purchase health insurance, and that fail to increase the tax exemption for health spending accounts.  The principal report also proposes that insurers should be able to sell health insurance across state lines and that the tort reform measures in the current bills do not go far enough to restrict liability.  The most serious objections that the Roundtable has are to provisions of the Democratic bill that passed the House of Representatives (H.R. 3962) that would enact a "public option" while at the same time reducing payments to medical providers under Medicare – both of which, according to the Roundtable, would result in "cost-shifting to the private sector." 

     In a future posting I will make a more detailed assessment of the Roundtable's findings.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     The Centers for Medicaid and Medicare Services has released its report on the effect of H.R. 3962, the health care reform bill adopted by the House of Representatives.  There is very good news and very bad news. 

     Here is a link to the full report, "Estimated Financial Effects of the 'America's Affordable Health Choices Act of 2009 (H.R. 3962), as Passed by the House on November 7, 2009," and here is a summary of the report.

THE GOOD NEWS – 34 MILLION MORE PEOPLE WILL BE INSURED, AND EVERYONE WILL HAVE THE OPPORTUNITY TO PURCHASE BETTER HEALTH INSURANCE

      If enacted into law, the law would expand health insurance coverage to 34 million more Americans and improve coverage for everybody – there would be no limitation on coverage of preexisting conditions or lifetime coverage limits, and people's out-of-pocket medical expenses would have an upper limit of $5,000 for an individual and $10,000 for a family. 

     The principal means that the law uses to extend health insurance are to expand eligibility for Medicaid to persons earning up to 150% of the Federal Poverty Level and to offer federal subsidies to low income persons to purchase coverage through the Exchange, a regulated marketplace for health insurance.  Large employers will be more likely to offer health insurance, but small employers and employers who employ lower-wage workers may drop insurance coverage so that workers can qualify for Medicaid or for federally-subsidized health insurance through the Exchange.

THE BAD NEWS – THE BILL WILL HAVE ALMOST NO NET IMPACT ON TOTAL HEALTH EXPENDITURES, AND DOCTORS MAY BE HARD TO FIND

     The CMS (and many other agencies and organizations) have estimated that if we do nothing, under current law spending on health care will double over the next decade.  Although H.R. 3962 contains many cost-saving provisions, CMS believes that these savings will be offset by expanding access and increased utilization, and that total health care costs will increase at approximately the same rate that they would without any changes to the law.  In fact, CMS predicts that under this law total health care costs will be eight-tenths of one percent higher than they would be if we do nothing.

     Acknowledging that the reforms will significantly expand access to health care, the report states that "the additional demand for health services could be difficult to meet initially with existing health provider resources and could lead to price increases, cost-shifting, and/or providers willingness to treat patients with low-reimbursement health coverage."  The report concludes:

With the exception of the proposed reductions in Medicare payment updates for institutional providers, the provisions of H.R. 3962 would not have a significant impact on future health care cost rates.  In addition, the longer-term viability of the Medicare update reductions is doubtful.

     The House bill largely solves one of the problems this country faces – the problem of access to health care – but I think it's clear that we have more work to do to find a way to reduce the total overall cost of health care.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     Attorney General Eric Holder has decided to try five prisoners in the war on terror, including Khalid Sheikh Mohammed, on criminal charges in New York for the attacks of September 11.  They will face the death penalty.

    Yesterday Attorney General Eric Holder released a statement in which he said:

For the past several months, prosecutors at the Department of Justice have been working diligently with prosecutors from the Pentagon’s Office of Military Commissions to review the case of each detainee at Guantanamo who has been referred for prosecution. Over the past few weeks, I have personally reviewed these cases, and in consultation with the Secretary of Defense, have made determinations about the prosecution of ten detainees now held at Guantanamo, including those charged in the 9/11 plot and the alleged mastermind of the Cole bombing.

Today, I am announcing that the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks. Further, I have decided to refer back to the Department of Defense five defendants to face military commission trials, including the detainee who was previously charged in the USS Cole bombing.

The 9/11 cases that will be pursued in federal court have been jointly assigned to prosecutors from the Southern District of New York and the Eastern District of Virginia and will be brought in Manhattan in the Southern District of New York. After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

     In this report CNN quotes Senator John Cornyn (R-TX) as opposing the trials in New York because it "needlessly compromises the safety of all Americans," and Representative Lamar Smith (R-TX) as stating that trials in criminal court because it would "prioritize the rights of terrorists over the rights of Americans to be safe and secure."  The report also quotes Kristen Breitweiser, whose husband was killed in the attack, as supporting the administration's decision because "it would give many of us access to attend the hearings … this will be our opportunity to see justice served and have our day in court."  Josh Gerstein at The Politico reports that many other families of victims of the attack are opposed to the trial, and would rather see the plotters tried in military court.  House Minority Leader John Boehner (R-OH) issued a statement in which he said:

The Obama Administration’s irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people. The possibility that Khalid Sheik Mohammed and his co-conspirators could be found ‘not guilty’ due to some legal technicality just blocks from Ground Zero should give every American pause.

     In my opinion, the Attorney General made the correct decision.  Even if acquitted, the defendants would not be released from custody.  They are admittedly supporters of al-Qaeda who have waged war against us, and regardless of the outcome of any military or civilian trial we may continue to detain them as prisoners of war for the duration of this conflict – which may be a very long time.

     But there is a more fundamental reason to try these persons in America, in New York, in federal court.  Trial in civilian court will demonstrate to the rest of world that even in the face of a massive attack we have faith in our legal institutions and constitutional processes.   As an attorney, I am proud of the criminal justice system, and I have confidence that our prosecutors, judges, and juries will determine the truth and mete out appropriate punishment.  As an American citizen, I am proud that we have the courage to try these men as criminals – that we say to terrorists around the world – WE ARE NOT AFRAID!

     According to a recent summary from the Congressional Budget Office, because our population is becoming older and sicker spending on Social Security, Medicare, and Medicaid is set to explode and the resulting mountain of debt will overwhelm us.  Here are the depressing statistics.

     The CBO has posted a slideshow of charts entitled "Aging and Health: The Challenges of Entitlement Growth."  I would rate this report "not suitable for children" – not because of sex, violence, or bad language, but because of the despair it may engender in them for our country's future.  

     The essential problem is illustrated in Slide 8, entitled "The Population Age 65 or Older as a Percentage of the Population Ages 20 to 64."  This slide shows that during the 25-year period from 2012 and 2037 the ratio of Americans who are over age 65 will double in comparison to the number of persons who are aged 20-64 – from about 18% to about 36%.  That means that instead there being about 5 persons of working age for every person of retirement age, the ratio of workers to retirees will be less than 2:1. 

     On average, our population will be much older and sicker.  Fewer people will be working to support more people who are retired.  Spending on Social Security, Medicare, and Medicaid will skyrocket while tax revenues remain comparatively stable.  The result will be an accumulation of debt – a trend that is clearly not sustainable.

     Slide 3, "Revenues and Outlays Under Policy Alternative to Extend Tax Cuts and Index Alternative Minimum Tax," reveals that federal deficits have historically averaged about 3% of Gross Domestic Product, but that during 2009 the deficit ballooned to over 10% of GDP.  It also shows that if we repeal the Bush-era tax cuts and refuse to index the Alternative Minimum Tax threshold, then within a few years we will return to a period where federal deficits will average 4% of GDP.  However, the debt will continue to grow, due in part to yearly budget deficits, but ultimately because of interest accumulating on the debt itself – the magic of compounding.

     The really scary chart is on Slide 5, "Federal Debt Under CBO's Long-Term Budget Scenarios."  It shows that for several decades the federal debt has averaged between 30% and 50% of GDP, but that the debt will explode and within a few decades the debt will reach 200% of GDP.  Even if we repeal the Bush-era tax cuts it will only delay this process – it would still occur, commencing about the year 2025.  By that time there simply won't be enough working people to pay the bills.

    The CBO proposes the following solutions, none of which is an attractive choice: 

1.  Increase the retirement age;

2.  Decrease social security benefits, particularly among high-income recipients;

3.  Decrease payment to health care providers per health care service;

4.  Decrease the number of health care services provided;

5.  Increase tax rates within the current system; or

6.  Institute a new tax such as a value-added tax.

     Sorry to offer you such depressing reading today.  No wonder economics is referred to as the "dismal science."

On November 2, the U.S. General Accountability Office (GAO) released a report analyzing the Dept. of Defense’s ability to drawdown (or withdrawal) U.S. Forces from Iraq.   Troop withdrawal plans are based on the U.S.-Iraq Security Agreement signed in 2008 (support by President Obama here ) and intend to reduce to 50,000 troops by August 2010 and be completely withdrawn by the end of 2011.  This task is daunting and means the drawdown of 128,700 U.S. troops, 115,000 contractors, closing 295 bases and the retrograde of over 3.3 million pieces of U.S. DOD equipment in Iraq worth $45.8 billion.  Can the DOD meet the timeline set by the President and the U.S.-Iraq Security Agreement?  The GAO took a look.

The U.S. General Accountability Office is considered a watchdog agency that examines the use of public funds; evaluates federal programs and policies; and provides analyses, recommendations and other assistance to help Congress and the President make decisions.  The following are problems that the GAO identified as impeding the phased withdrawal of U.S. troops from Iraq.  More details about each are found in the report.

• contract services that need to support the drawdown have not been fully identified;

 • potential costs and other concerns of transitioning key contracts that may outweigh potential benefits;

• longstanding shortages of contract oversight personnel may increase the likelihood of wasteful practices during the drawdown;

• some key decisions about the disposition of equipment that have not yet been made; what equipment will be given to the Iraqi government and what will return to the U.S.?

• longstanding information technology system weaknesses and problems with legacy systems; and

• a lack of complete and accurate inventory over some equipment.

The GAO’s prediction- “Without resolution, these issues may inhibit the efficient and effective execution of the drawdown.”

________________________________________________ 

Below are some key documents related to the U.S. withdrawal from Iraq:

1. U.S./Iraq Security Agreement , also called Iraq Status of Forces Agreement (SOFA).  Agreement between the United States and the Republic of Iraq on the Withdrawal of United States Forces from Iraq Nov. 17, 2008  (24 pages) and from the White House website here. 
2. Strategic Framework Agreement  (SFA) Nov. 17, 2008 (8 pages) and from the White House website here.
3. Operation Iraqi Freedom: Preliminary Observations on DOD Planning for the Drawdown of U.S. Forces from Iraq, GAO-10-179, November 02, 2009, (29 pages).
4. Multi-National Forces-Iraq web site.   (Just click “continue” to get through the certificate errors.)
5. U.S. Department of State Weekly Iraq Status Reports
6. Other U.S. GAO reports on Iraq and Afghanistan

The University of Akron School of Law Center for Intellectual Property Law and Technology will host a lecture by Jacqueline Lipton, professor of law at Case Western Reserve University. The lecture, which is free and open to the public, is titled “Mapping Online Privacy” and will be held Wednesday, Nov. 18 at 5 p.m. in Room 152 at The University of Akron School of Law, 150 University Ave., Akron, Ohio. A reception will immediately follow the lecture.

Lipton’s lecture will address the difficulties in applying existing concepts of personal privacy to the maturing Internet. With Web 2.0 technologies, more people have more opportunities to post information about themselves and others online, often with scant regard for individual privacy.  Shifting notions of “reasonable expectations of privacy” in the context of blogs, wikis, and online social networks create challenges for privacy regulation. Courts and commentators struggle with Web 2.0 privacy incursions without the benefit of a clear regulatory framework.

     In yesterday's post I described how there appears to broad support in favor of enacting ENDA – the law that will prohibit employment discrimination on the basis of sexual orientation and gender identity.  In this post I sketch out the provisions of the proposed federal law.

     The heart of the bill is Section 4(a), which provides:

It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

     Section 3 of the bill defines "sexual orientation" as "homosexuality, heterosexuality, or bisexuality."  Accordingly, gays, lesbians, bisexuals, and heterosexuals are all protected against job discrimination.  The law defines "gender identity" in the following terms:

"The term 'gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth."

     Note also what the bill does not cover:

1.  There is no provision in the bill for a cause of action based on "disparate treatment."  That is, if the employer adopts a neutral policy that has the unintended effect of discriminating against gays or lesbians, that is not prohibited under the bill;

2.  The bill contains specific expemptions for religious organizations and the armed forces.  This law will not require any church, synagogue, or mosque to employ gays or lesbians, nor does it repeal or affect the "Don't Ask / Don't Tell" law that is in place for the military; 

3.  The bill will allow employers to make rules regarding the use of shower and dressing facilities "in which being seen unclothed is unavoidable," and it permits employers to require employees "to adhere to reasonable dress or grooming standards" so long as persons who are in transition from one gender to another are allowed to dress as either gender;

4.  Finally, with respect to the granting of employee benefits, the bill does not require employers to recognize same-sex marriages.  In this connection Sections 8(b) and 8(c) of the bill state:

(b) Employee Benefits- Nothing in this Act shall be construed to require a covered entity to treat an unmarried couple in the same manner as the covered entity treats a married couple for purposes of employee benefits.

(c) Definition of Marriage- As used in this Act, the term 'married' refers to marriage as such term is defined in section 7 of title I, United States Code (referred to as the Defense of Marriage Act).

     ENDA essentially leaves it for each state to decide whether or not employers must recognize same-sex marriages, a position that will no doubt make it easier to secure the enactment of the federal law.  According to this statement by Senator Tom Harkin, Chair of the Senate HELP Committee, twenty-one states already have laws banning employment discrimination on the basis of sexual orientation.  I do not know whether those state non-discrimination laws require employers to recognize same-sex marriages in awarding benefits.

A couple of weeks ago I blogged about the pending criminal trial of former Bear Stearns executives Ralph Cioffi and Matthew Tannin on charges they defrauded investors in connection with the failure of their hedge funds.  While I did not agree with those who characterized the case as one of "spin versus fraud", I did believe the prosecution would have a hard time proving criminal intent.  Apparently, the jury concurred because Cioffi and Tannin were acquitted this past Tuesday by a "jury of mostly working class Americans."  Now, the question becomes how much steam the government has left to pursue criminal convictions against other executives tied to the financial crisis–like some of those at AIG and Lehman.  Sorting that out will involve determining how much of what went wrong for the prosecution in this case is limited to its particular facts.  Here's a short list of possible explanations for why the jury sided with the defense:

• The jury was confused by the complexity of the case.  As the Wall Street Journal put it:

Throughout the case, the jury was bombarded with mortgage-related lingo — "collateralized debt obligations," "credit models" and the like — in an attempt to explain how two Bear Stearns funds run by the defendants imploded.

• To the extent the jury's confusion was alleviated, it was likely in favor of the defendants because of

the expert testimony of R. Glenn Hubbard . . . the dean of Columbia University’s business school, who said he reviewed data about the funds from the relevant period and said the men could reasonably expect to return to profitability, and that it was reasonable for them to ask investors for more money. . . . Hubbard, who is a former economic advisor to President George W. Bush and whose research for the Bear trial came with a $100,000 price tag declined to comment to the blog.

• The jury was not permitted to hear about a particularly incriminating email:

Today, Judge Frederic Block of Brooklyn, who was considered to be a great draw for the defendants, ruled that prosecutors could not introduce as evidence an email written by one of the defendants, in yet another apparent setback for the government’s case. In the email, Tannin wrote that hedge funds he helped run could “blow up.” Months later they did.

Personally, I think the government will continue to pursue criminal convictions where appropriate.  A spokesman for the government had this to say following the acquittal:

Honesty and integrity are the principles upon which our financial markets function. Enforcing and protecting those principals will continue to be one of the principle efforts of this office.

By the way, if you want a good read that will help you make up your own mind I can recommend "House of Cards" (the audio version is highly entertaining).

     The Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination on the basis of sexual orientation or gender identity is moving through both houses of Congress.  A similar law in Salt Lake City picked up unexpected support from the Church of Latter-Day Saints.

     The federal Employment Non-Discrimination Act, which would ban employment discrimination against gays, lesbians, bisexuals, and transgender people, has been introduced in Congress with broad bipartisan support.  Here is some background on the bill from the Human Rights Campaign.  In the House, Rep. Barney Frank (D-MA) has introduced H.R. 3017, which has 189 co-sponsors, and in the Senate, Sen. Jeff Merkley (D-OR), has introduced S. 1584, which has 43 c0-sponsors.  On November 5 the Senate Health, Education, Labor, and Pensions Committee held a hearing on S. 1584.  The Chair of the Committee, Senator Tom Harkin (D-IA), released a statement which commences with these words:

"The issue here could not be more simple. We are talking about a fundamental American value – equal treatment for all – a principle that citizens who work hard, pay their taxes and contribute to their communities deserve fair treatment and should not be discriminated against.

"Over the last 45 years, we have made great strides towards eliminating discrimination in the workplace. The Civil Rights Act of 1964 prohibited discrimination on the basis of race, sex, national origin and religion. The Age Discrimination in Employment Act, in 1967, prohibited discrimination on the basis of age. The Americans with Disabilities Act, in 1990, prohibited discrimination on the basis of disability. It is time, at long last, for us to prohibit discrimination on the basis of sexual orientation and gender identity as well. Such discrimination is wrong and cannot be tolerated.

     Rosemary Winters and Peggy Fletcher Stack of the Salt Lake Tribune report that the Church of Latter-Day Saints endorsed a municipal ordinance banning discrimination in employment and housing against persons based on sexual orientation and gender identity.  In an article dated November 11, they state:

At a public hearing Tuesday, church spokesman Michael Otterson expressed strong support for ordinances that, starting in April, will ban discrimination based on sexual orientation or gender identity in housing and employment. Salt Lake City, home to the worldwide faith's headquarters, approved the statutes in a unanimous City Council vote.

     The reporters quoted another LDS official to the effect that the church would support similar state-wide legislation.  The church's position on this question was welcomed by local and national gay rights groups: here is an article on the subject by Michael Aaron of QSaltLake and a reaction from Harry Knox, Religion and Faith Director of the Human Rights Campaign.   

     With the LDS on board, I predict that any remaining opposition to ENDA will collapse, and that it will become law later this year or early next year.  In tomorrow's post I will describe what ENDA will and will not do.

A research team at Harvard Medical School estimates 2,266 U.S. military veterans under the age of 65 died last year because they lacked health insurance and thus had reduced access to care. That figure is more than 14 times the number of deaths (155) suffered by U.S. troops in Afghanistan in 2008, and more than twice as many as have died (911 as of Oct. 31) since the war began in 2001.

Just passing this story along.

     The Commonwealth Fund surveyed thousands of primary care physicians from several industrialized countries.  The findings help to explain why Americans pay so much more for health care but somehow have worse health than the people of other countries.

     The study surveyed 10,000 primary care physicians from 11 countries: Australia, Canada, France, Germany, Italy, the Netherlands, New Zealand, Norway, Sweden, the United Kingdom, and the United States.  Among the most significant findings in the survey were that:

1.  Far more U.S. patients had difficulty paying for health care;

2.  Far fewer U.S. primary care physicians earned financial incentives for delivering high quality care;

3.  In most other countries it was far more common for teams of nurses and other clinicians to monitor patients' chronic conditions such as diabetes and hypertension; and

4.  Physicians in other countries make far more use of IT in the delivery of medical care.

     The one bright spot – Americans have substantially less waiting time to see a specialist than patients in other countries.

     Here is a link to the synopsis of the report, and here are its key findings:

More than half (58%) of U.S. physicians—by far the most of any country surveyed—said their patients often have difficulty paying for medications and care. Half of U.S. doctors spend substantial time dealing with the restrictions insurance companies place on patients’ care.

Only 29 percent of U.S. physicians said their practice had arrangements for getting patients after-hours care—so they could avoid visiting a hospital emergency room. Nearly all Dutch, New Zealand, and U.K. doctors said their practices had arrangements for after-hours care.

Only 46 percent of U.S. doctors use electronic medical records, compared with over 90 percent of doctors in Australia, Italy, the Netherlands, New Zealand, Norway, Sweden, and the United Kingdom.

Twenty-eight percent of U.S. physicians reported their patients often face long waits to see a specialist, one of the lowest rates in the survey. Three-quarters of Canadian and Italian physicians reported long waits.

While all the countries surveyed use financial incentives to improve the quality of care, primary care physicians in the U.S. are among the least likely to be offered such rewards; only one-third reported receiving financial incentives. Rates were also low in Sweden (10%) and Norway (35%), compared with large majorities of doctors in the U.K. (89%), the Netherlands (81%), New Zealand (80%), Italy (70%), and Australia (65%).

Patients with chronic illness require substantial time with physicians, education about their illness, and coaching about treatment, diet, and medication regimens. Care teams composed of clinicians and nurses have been shown to be effective in providing care to people with chronic conditions and in improving outcomes. The use of such teams is widespread in Sweden (98%), the U.K. (98%), the Netherlands (91%), Australia (88%), New Zealand (88%), Germany (73%), and Norway (73%). It is less prevalent in the U.S. (59%) and Canada (52%), with France (11%) standing out on the low end.

The following post comes from Prof. Jay Dratler, Jr.:

The case of Bilski v. Kappos, argued yesterday before the Supreme Court, 2009 Term, No. 08-964, addresses a question vital to the survival of our free enterprise system. (Number citations are to pages and lines of the oral argument transcript.)

Can anyone with a new and nonobvious business idea (or business “model,” in current parlance) patent it and exclude competition for twenty years from the patent’s application date?  Twenty years are an eternity in many innovative businesses today, so the “limited Time” of the patent grant has limited practical effect.

Since Parliament adopted the Statute of Monopolies in 1623, England’s and others’ free-market economies have answered that question “no.”  In 1998, a panel of our own Federal Circuit—our primary patent appeals court—answered it “yes.”  See State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998).  See generally, Jay Dratler, Jr., Does Lord Darcy Yet Live?  The Case Against Software and Business-Method Patents, 43 Santa Clara L. Rev. 823 (2003).

Now the patentee-petitioner in Bilski wants the same “yes” answer for slightly different facts.  Yet this time the en banc Federal Circuit said “no,” in a limited way.  Our Deputy Solicitor General supported the Federal Circuit’s ruling in his oral argument.

There are some technical subtleties. The Bilski patent claims abstract steps in a process for consummating certain commodities-trading transactions.  The Federal Circuit, sitting en banc, rejected that process as unpatentable subject matter for being insufficiently tied to a physical machine or transformation. See 545 F.3d 943, 963-64 (Fed. Cir. 2008).  Its limitation has become known as the “machine-or-transformation” test. (3-12)

But as five Justices acknowledged in oral argument yesterday (see below), upholding that limitation will have no discernable effect, except on the parties to Bilski and others with already-issued patents whose claims cannot be amended.

The reason is simple.  Our patent law explicitly provides for patents on both a “process” and a “machine.”  35 U.S.C. § 101.  If Bilski wins, patent applicants can circumvent the age-old prohibition against general business monopolies by patenting business ideas in the abstract, step by step, as “processes” or “methods.”  As Chief Justice Roberts helpfully illustrated (10-7 to 10-8): “I initiate a series of transactions with buyers.  I buy low and sell high.  That’s my patent for maximizing wealth.”

But if Bilski loses, his successors can reach the very same goal by a slightly more circuitous route.  They can write a computer program to perform the desired process or method, load it into a computer, call the computer-cum-program a “machine,” and patent it.  In Justice Breyer’s words (46-20 to 46-24), “all you do is you get somebody who knows computers, and you turn every business patent into a setting of switches on the machine because there are no businesses that don’t use those machines.”

Thus any decision in Bilski, for which the patent bar has waited 28 years (since Diamond v. Diehr, 450 U.S. 175 (1981)), will be a practical, commercial and economic nullity, except perhaps for poor Bilski and those like him.  Heads Bilski wins and the public loses.  Tails the public loses and those who can still claim business ideas as programmed computers win.  As Justice Sotomayor sagely observed, “No ruling in this case is going to change State Street.”  (30-1 to 30-2; see also, Kennedy, 40-2 to 40-10)

Here’s the math:

Seven Justices (all but Alito and Thomas) expressed unease with both the current state of the law and any decision for Bilski that would reject the machine-or-transformation test. (Breyer, 6-5 to 7-4; Ginsburg, 5-22 to 6-1, 12-21 to 13-1, 39-17 to 39-22; Kennedy, 10-21 to 11-9, 18-4 to 18-9, 21-25 to 22-10; Roberts, 9-23 to 10-10, 22-16 to 22-18; Scalia, 16-1 to 16-17; Sotomayor, 7-7 to 7-12, 8-9 to 8-13, 14-5 to 14-9, 18-18 to 19-3, 20-17 to 21-11; Stevens, 14-24 to 15-8, 44-1 to 44-14)

Five Justices worried that a decision upholding the machine-or-transformation test might have unintended consequences for specific industries.  (Alito, 27-16 to 27-22; Breyer, 31-8 to 32-4; Ginsburg, 47-18 to 48-3; Scalia, 30-22 to 30-24; Sotomayor, 28-3 to 28-12, 36-23 to 37-4).

Five Justices noted that future Bilskis could circumvent a decision against petitioner Bilski by using the computer-program-machine three-step outlined above.  (Breyer, 46-10 to 46-23; Kennedy, 40-2 to 40-10, 44-15 to 44-16; Roberts, 33-8 to 33-18; 35-13 to 35-18; Sotomayor, 30-1 to 30-4; Stevens, 44-11 to 44-14, 45-19 to 45-22)  Deputy Solicitor General Stewart admitted as much. (42-1 to 42-12; 43-13 to 43-21; 45-11 to 45-18).

Two Justices asked for a better test than the Federal Circuit’s machine-or-transformation test and got no answer.  (Breyer, 9-1 to 9-17; 19-8 to 20-12; Sotomayor, 37-19 to 37-24)

So the Bilski math produces the following result, strange as it may seem:

7 + 5 + 5 + 2  = 0.

Apart from Bilski and those like him (who cannot now write computer programs and add new machine claims to their patents), nothing the good Justices may decide in Bilski will save our free-enterprise system from patent cancer.

Yet there is hope.  The five Justices who noted or described the easy “machine” circumvention of any decision in Bilski seemed not to like the idea.  So a definitive ruling on business-method and computer-program patents, which are intimately related, awaits the next case.  In the meantime, patent lawyers will continue to claim business ideas one way or the other, and the scope of freedom in our free-enterprise system will continue to shrink.

     The enactment of the Stupak Amendment as part of the health care bill reawakens the debate over abortion.  Both sides invoke arguments by analogy in support of their positions on abortion and abortion funding.  I find a third analogy to be more fitting – one that supports the Supreme Court's position that while abortion is fundamental right, abortion funding is not.

     In arguing against restrictions on abortion funding like the Hyde Amendment or the Stupak Amendment people who are pro-choice are prone to draw an analogy between abortion and war.  They contend that because every citizen may be compelled to contribute his or her tax dollars towards the prosecution of wars that they may be opposed to – wars that they consider to be unjust or immoral – accordingly, those who are opposed to abortion should be compelled to pay for the abortion procedure through their tax dollars.

     This analogy fails for two significant reasons.  First of all, when a war is prosecuted presumably the majority of the people or a at least a majority of their representatives have agreed to fund the war.  (That is, by the way, an argument against allowing a President to commence wars or commit acts of war without Congressional approval.)  Citizens must pay their taxes for the prosecution of a war because we must be obedient to the law.  This is not analogous to a situation where Congress or a state legislature decides not to fund abortions.  In that case it is the pro-life position, not the pro-choice position, that is consistent with the will of the people.  Citizens must pay their taxes in support of wars they oppose out of respect for the Rule of Law.  That element is missing when the majority decides not to fund abortions.

     The second reason that the war funding / abortion funding analogy fails is because unlike the decision to go to war each decision to terminate a pregnancy is ultimately a matter of personal choice.  In contrast, the decision to go to war is a collective decision (again, not one that is committed to the sole discretion of the President).  There is a moral imperative to support one's country in a time of war, a moral imperative that can be legally enforced.  Not only may we be required to pay wartime taxes, we are even subject to being drafted for military service, and if we are unfit or unwilling to serve in the military we can be required to perform alternative service or to sit in jail. 

     On the pro-life side of the debate, advocates liken themselves to abolitionists.  They compare abortion to slavery – in their opinion the non-personhood of a fetus under the Fourteenth Amendment in Roe v. Wade is the same as the non-citizenship of a slave under Dred Scott v. Sandford.  A woman who procures an abortion is, in their eyes, no different from someone who holds another person in bondage.

     This analogy fails as well in two basic respects.  First, the analogy is inaccurate because of the undeniable process of fetal development.  I have the greatest respect for people who believe that a one-celled preembryo is a "person" within the meaning of the Constitution.  I only wish that they had more respect for those who respectfully disagree.  While there is undeniably "human life" from the moment of conception, as there is, indeed, in a sperm and an egg – life is unbroken – it is also true that life appears in different forms and that it gradually evolves into a person.  In contrast, a slave is undeniably a person, and the institution of slavery was at all times an invasion of those people's fundamental rights.

     The second reason that the analogy between abortion and slavery fails is because slavery did not take place inside a woman's body, like pregnancy does.  This is why pro-choice advocates also draw the analogy to slavery, arguing that restrictive abortion laws reduce women to a state of servitude.  A woman who does not wish to continue her pregnancy is simply not analogous to a slaveholder seeking to exploit people as property.

     I would draw another analogy that explains why laws that restrict abortion funding are constitutional but laws that restrict abortion are unconstitutional.  The government's position on abortion is closely analogous to the government taking a postion on matters of religion.  The government is powerless to dictate religious doctrine to any individual – in fact, the government may not even express a point of view on the subject.  The government does not have and may not have religious beliefs.  It is not only unwise, it is unconstitutional for the government to host religious expression, for example by erecting a cross in a public park, posting the Ten Commandments in public school, or placing a nativity scene on the steps of a courthouse.  Just as pro-choice advocates perceive restrictive abortion laws as invading their freedom of religion, pro-life advocates perceive laws funding abortion as invading their religious beliefs – as funding an activity that is undertaken not as the result of a collective decision like the decision to declare or approve war, but as funding a decision that is personal and fundamental to every individual woman.  It is for that same reason that the government may not unduly burden a woman's right to terminate a pregnancy in its early stages.

     This posting contains a description of the Stupak Amendment restricting the use of federal funds to pay for abortions and links to articles and sites discussing the amendment.

     Last night the House adopted an amendment sponsored by Bart Stupak (D-MI) prohibiting the use of federal funds for purchasing health insurance covering abortion.  This amendment was made a part of H.R. 3962 just before that landmark bill was enacted by the House of Representatives.  According to an article by Patrick O'Connor at The Politico, the inclusion of the amendment secured the support of the United States Conference of Catholic Bishops for the entire health care bill.  As it turned out, the amendment was necessary to obtain passage of the bill – 64 Democrats voted for the amendment, without whom the larger bill would not have come close to passage.  

     Here is a link to the Stupak Amendment itself, and here is a link to a statement issued by Representative Stupak.  Here is a thoughtful article by David M. Herszenhorn of the New York Times about the events leading up to the adoption of the Stupak Amendment.  Here is an excerpt from a statement by the Catholic Bishops supporting the amendment:

Despite some claims to the contrary, H.R. 3962 does not reflect the status quo on abortion. It fails to explicitly and clearly include the longstanding policy prohibiting federal funding of elective abortion and plans which include elective abortion (Hyde Amendment). Medicaid, Medicare, Children's Health Insurance Program (CHIP), and other federal health legislation include this provision. Currently H.R. 3962 has some helpful provisions on conscience protection and non- preemption of state laws, but it utterly fails to maintain current prohibitions on abortion mandates and abortion funding. Instead it creates elaborate measures requiring people to pay for other people's abortions with their taxes, private premiums or federal subsidies. Significantly, the Federal Employee Heath Benefit Program, which covers all members of Congress and their families, has long been governed by the Hyde amendment in all its aspects and is widely seen as a model for reform.

Health care expert Ezra Klein, writing for the Washington Post, offers the following criticism of the amendment:

Because of the limits placed on the exchanges, most of the participants will have some form of premium credit or affordable subsidy. That means most will be ineligible for abortion coverage. The idea that people are going to go out and purchase separate "abortion plans" is both cruel and laughable. If this amendment passes, it will mean that virtually all women with insurance through the exchange who find themselves in the unwanted and unexpected position of needing to terminate a pregnancy will not have coverage for the procedure. Abortion coverage will not be outlawed in this country. It will simply be tiered, reserved for those rich enough to afford insurance themselves or lucky enough to receive from their employers.

Several Democratic members of the House spoke out passionately against the amendment during the debate.  Jim at Irregular Times quotes Rep. Louise Slaughter, Chair of the House Rules Committee, as saying: 

“I am very concerned about this bill because in my own case (and many of my colleagues’) it means 30 or 40 years of our life is being cancelled out with this amendment. The things that we have fought for, that we are driving now? I am afraid young women, poor women who cannot afford to buy their own insurance policy out of their own pocket, will go back. Back to the back alley. I dread to see that day.”

     The amendment prohibits the federal government from offering coverage for abortions through the public option even if people pay the entire cost of that health insurance.  It also prohibits people from purchasing coverage for abortion services from private insurance companies through the Exchange if they receive any form of federal funding such as a direct federal subsidy or state Medicaid funding that is partially paid for with federal funds.  The only exceptions would be for cases where the woman's life is threatened by a physical disorder, injury, or illness or arising from the pregnancy itself, and in cases where the pregnancy was the result of rape or incest. 

     In all other cases women would have to purchase separate coverage for abortions, but the Stupak Amendment makes even that option more expensive by providing that:

"administrative costs and all services offered through such supplemental coverage or plan are paid for using only premiums collected for such coverage or plan."

     This provision is significant because if left to themselves private health insurance companies would probably cover abortions at no extra cost – in fact, a health insurance policy that covers contraception and abortion should cost less than one that does not, because childbirth is so much more expensive than either of the other alternatives.  In my opinion, the Stupak Amendment makes it more expensive for women to purchase private health insurance coverage for abortions than it would have been without the bill.

     As I discussed in postings Number 58 and Number 30 in this series, it is constitutional for the government to refuse to pay for abortions, but it is unconstitutional for the government to impose an "undue burden" upon a woman seeking to terminate a pregnancy or to place a "substantial obstacle" in her path.  Under a largely private system of health care these two principles could be easily coexist, but now that the government is becoming more involved in the funding and provision of health care these two principles are becoming more difficult to reconcile.  At the extreme, where the government directly provides all health care as in Great Britain, the government's refusal to perform abortions would constitute an absolute denial of the opportunity to secure an abortion.  In light of the increasing federal funding and regulation of health care that H.R. 3962 will bring about, the courts will have to determine whether the Stupak Amendment unduly interferes with women's reproductive freedom.

     My wife and I stayed up late last night (OK, I stayed up late – she does not consider 11:30 p.m. to be late) to watch the House of Representatives adopt H.R. 3962, The Affordable Health Choices Act of 2009.  Here is my bottom line on the bill.

     The bill achieves nearly universal coverage by requiring people to have health insurance, by subsidizing its purchase by low income persons, and by requiring insurance companies to insure people regardless of any preexisting medical conditions.  According to the CBO, once the law is fully effective, 96% of Americans will have health insurance coverage (as opposed to only 83% of Americans under current law).  In addition, the bill addresses the problem of people being underinsured.  People with health insurance will have more comprehensive coverage than they do today, covering virtually all medical conditions except abortion.  (More on that in the next installment of this series, Number 62, concerning the Stupak Amendment). 

     This law should substantially improve the average health and well-being of Americans.  According to studies by the Commonwealth Fund, the Organization for Economic and Cooperative Development, and the World Health Organization which I have collected on my health care website, Americans are on the average less healthy than the people of any other industrialized country.  The 2009 Harvard Study accessible from the same site found that uninsured Americans are more than 40% more likely to die than persons who have health insurance, even though they are matched for race, gender, age, income, education, and general state of health.  All of these sources attribute the relative poor overall health of Americans to our country's failure to provide adequate medical care for chronic conditions such as asthma, diabetes, and cardiovascular disease, all of which require a strong system of primary medical care and efficient medical recordkeeping.  The House bill seeks to strengthen those aspects of the American medical system.  Another element of the bill that should improve the overall health of Americans and ultimately reduce the amount that we spend on health care is that the bill requires insurers to cover preventive care without co-pays or deductibles. 

     The bill enacts several reforms that should make the delivery of health care more efficient and less costly.  It standardizes health insurance policies so that they can be easily compared by consumers; it abolishes the antitrust exemption for health insurers so that there can be no more market allocation or price-fixing; it encourages the development of "best practices" in the treatment of illness and injury; it attempts to streamline the system of billing and reimbursement system so that physicians and hospitals can be paid promply and accurately; and it authorizes the delivery of health care in the home.  The one cost-cutting reform with which I find fault is the half-hearted provision purporting to subsidize states that adopt "certificate of merit" laws in medical lawsuits.  This portion of the bill dealing with "tort reform" is criticized in Number 59 of this series.

     The most serious defect in H.R. 3962 is that it does not reduce this nation's total expenditures on medical care.  All studies and reports including this June 29, 2009 CMS Report on Projected Health Expenditure Projections 2010-2019 and this 2008 report from the insurance industry agree that the amount that we spend on health care has doubled in the past ten years and is expected to double again in the next ten years.  According to a report issued October 21 by CMS (accessible from this site) it is estimated that the Democratic bill will do nothing to reduce those overall costs, and that in fact the bill will result in an additional 2% increase in health care spending – that is, over the next ten years health care spending will increase 102% instead of 100%.  Another way of looking at this is that the Democratic bill will vastly increase the number of Americans who are covered, and will vastly improve the scope of coverage that we have, without increasing total expenditures by a significant amount.  I would take that deal in a heartbeat.  But there still remains the difficult task of reducing the overall cost of medical care.  If improvements in primary care, preventive care, medical information technology, best medical practices, home health care, and billing systems are inadequate to get a handle on costs that are spiralling out of control, then pressure will be brought to bear on health care providers.  Pharmaceutical companies and the manufacturers will face price controls, either through direct regulation or by having to negotiate prices with entities that have equivalent market power, and managed care will replace fee-for-service among doctors and hospitals, meaning that doctors and hospitals will not be allowed to charge for each separate office visit, hospital stay, or medical procedure, but will instead be organized in larger groups such as HMOs or PPOs that will bid to provide all of the medical needs for specific populations.

     The House Republican alternative that was issued Tuesday, the proposed Common Sense Health Care Reform and Affordability Act, does not achieve any of the goals that the Democratic bill seeks to accomplish.  According to this November 4, 2009, CBO report the Republican bill would not reduce the percentage of uninsured Americans.  It does not prohibit exclusions for preexisting conditions or regulate differences in premiums based on gender and age.  It does not address the problem of "underinsurance" – that is, insurance policies that simply don't cover all medical conditions or that have high co-pays and deductibles.  Many of the Republican members of Congress who spoke on the floor of the House last night admitted that the existing system of medical care needs reform – they want to increase access, maintain quality, and reduce costs, just like the Democrats - but they are unwilling to admit what appears to me to be obvious – that the unregulated market for health insurance and health care is incapable of achieving these goals. 

     The weakest argument that Republicans mounted in defense of their alternative bill is that it would reduce the cost of medical care.  That is not what the CBO said.  The CBO stated that the Republican bill would reduce health insurance premiums by up to 10% what they otherwise would be under current law – that is, that instead of doubling, health insurance premiums will only go up 90% over the next ten years.  This is a rather modest reduction in the exploding growth of health insurance premiums.  And the Republican bill fails to take into account what people's out-of-pocket expenses would be if the market for health insurance remains unregulated.  It does not address the problem or the cost of caring for the uninsured.  It does not reduce the growth in the cost of Medicare and Medicaid.  It does not reflect the fact that every year insurance policies are covering fewer and fewer aspects of medical care.  The House Republican bill simply would not achieve very much, if anything, to help Americans pay for the cost of medical care.

     In my opinion the most powerful argument that Republicans mounted against the bill last night was directed against the "individual mandate" – that requiring people to purchase health insurance invades personal freedom and is contrary to the principles of the Declaration of Independence and Constitution.  While theoretically this argument could appeal to any American, as a practical matter those of us who are middle-aged or older are mostly aware of how necessary health insurance is.  This argument is most likely to appeal to healthy young people – the "young invincibles" who quite rationally choose to forego purchasing health insurance under current law.  As described in Number 40 of this series, the Democratic bill contains a number of features designed to ameliorate the effect of this requirement.  Young people will qualify for coverage under their parents' health insurance policies until the age of 27.  Government subsidies will be available for persons earning less than 400% of the Federal Poverty Level to help them purchase health insurance.  The law allows for exceptions in hardship cases, and permits individuals to purchase low cost – low quality "catastrophic care" policies in some cases.  Finally, for someone who is determined to exercise his or her fundamental right not to be insured, the legal penalty for not purchasing health insurance is not too onerous – $750 annually.   (Of course, there is the practical penalty for remaining uninsured – the out-of-pocket payment of medical bills.)  Finally, as well all know, no-one is young and healthy forever.  Within a few short years the "young invincibles" become mothers and fathers seeking health insurance for themselves and their families, and looking ahead they must ask themselves whether or not high quality health insurance will be both available and affordable.

     It was exciting to witness the passage of this landmark legislation.  Now our attention shifts to the Senate where we await the unveiling of the Democratic bill and, perhaps, a Republican alternative, in that chamber.

Questions:

1. In the last 50 years or so, how many U.S. Supreme Court cases dealt with Fifth Amendment self-incrimination?
2. Of the four Court eras covered by the database (Warren, Burger, Rehnquist and Roberts), which court era had the most number of liberal decisions?
3. How many cases from Ohio made it to the U.S. Supreme Court?

 
Answering these types of questions just got easier.  Released this week, the Supreme Court Database allows anyone to search, pull up cases, and perform simple analyses.  This new database has created quite a stir on the legal blogs. 

 
The best part of the Supreme Court Database is the search options! 

If you are interested in a single case, you can access information about it (along with links to the decision) by entering the citation or case name.  A detailed case report includes lower court background, a break down on how the Justices voted for each legal issue in the case, whether the outcome is considered conservative or liberal, and links to copies of the decision on the web.  Two links point to free copies of the case decision.

If you want to analyze all the cases or a grouping of cases, use the database search to create lists of cases by legal issue, or by Court Era, by vote detail by each Justice, vote direction (liberal or conservative), legal precedent changes, etc.

I had fun trying all sorts of searches.  How many cases declared law unconstitutional?  How many cases changed precedent?  What are the 50 most prevelant petitioners (the person who initiated the case)?  The database searches are lightening fast!  No waiting for tables to display.

“In addition to providing a web-based platform to search and analyze the Supreme Court Database, this site also provides downloadable files that researchers can use with their own statistical software.”  Durable links to searches, lists and tables work also!  Generate lists or tables and share the link with others.   For an example, see my answer links below.   Way Cool!

To use the database:  At the Supreme Court Database site, click the Analysis search tab and then click the Specifications tab.

Coverage:   Data coverage right now is from 1953 to 2008 and includes data for 7367 cases. The database will be continuously updated.   Funding from the National Science Foundation is supporting the posting of the court’s decisions and data back to 1792 over the next four years.

Answers:

1. There have been 106 U.S. Supreme Court cases on self-incrimination under the Fifth Amendment.  Click for a list of these cases.   
2. The Warren Court had 66.7% liberal decisions and only 32.1% conservative.  Click for the table.  (If you wish to see how liberal and conservative is determined, click on documentation. )
3. In the last 50 years, 80 cases from Ohio reached the U.S. Supreme Court.  Click for a list of these cases.     

     This posting compares the tort reform provisions of the Democratic and Republican health care bills which are pending in the House of Representatives.

     The civil litigation system fails us in several important respects in medical cases.  First of all, because of the extraordinary expense of bringing one of these cases, only the most serious claims have even a chance of being redressed.  If you miss a month of work because of injury resulting from medical malpractice or a faulty medical device and you have some lingering pain no responsible attorney will do more than write a letter on your behalf.  It costs money to hire experts and depose witnesses, and small or even medium-size claims are never litigated.

     Second, most medical claims which are brought are meritless.  There are plenty of bad outcomes – pretty much everyone dies in the end – and patients and their families are often prone to blame medical care providers for the result.  As a consequence both patients and doctors have to "lawyer up," and this costs money too – most of the money that is spent for medical malpractice insurance goes to attorneys, not patients.

     Third, there is no efficient mechanism for reporting medical error and fixing the problem.   Because of the severe consequences and expense of malpractice litigation, doctors and hospitals are defensive about admitting error, and as a result incompetency and ineffectiveness among health care professionals is more difficult to address.   

     In light of the foregoing problems there is ample room for "tort reform" – an overhaul of the system of discovering and correcting instances of medical error and compensating persons who are injured as a result of such errors.

     The Republican bill, the Common Sense Health Care Reform and Affordability Act, contains more extensive "tort reform" measures than the Democratic bill, the Affordable Health Choices Act of 2009, H.R. 3962.  In my opinion, insofar as they address the question of tort reform, neither bill is worth a bucket of warm spit.

     The Republican bill contains a number of proposals limiting medical claims.  These provisions are contained in Sections 301-310, beginning at page 150 of the bill.  The Republican bill would enact the following measures: 

The statute of limitations in medical injury cases would be 1 year from the date of treatment or three years from the date of the manifestation of the injury or one year after the patient discovered or should have discovered the injury.  Children injured under the age of six would have until their eighth birthday to commence a lawsuit (too bad, you dilatory nine-year olds!);

Awards for noneconomic damages (pain and suffering) may not exceed $250,000, and the jury may not be informed of the existence of this cap – I suppose because in many cases they would be outraged;

Health care providers would be liable only for their "fair share" of the damage caused by their own malpractice.  This sounds good, but this will encourage defendants to "gang up" on one defendant, particularly if that person is dead or uninsured;

Attorney fees would be limited to certain percentages of awards, including 15% of any recovery over $600,000.  Because attorneys have to invest substantial sums into pursuing any particular lawsuit, this alone would prevent many claims from being pursued;

Evidence of "collateral source benefits" would be admissible – that is, if the plaintiff was entitled to payment from health insurance, disability insurance, Social Security, Workers Compensation or virtually any other program as a result of the injury, the defendant could introduce this fact into evidence.  In my opinion this is unbelievably unfair.  People pay for these kinds of insurance themselves, either through premiums or through their taxes, and the benefits under these policies and government programs belong to them, not to the persons who injured them;

Punitive damages may be awarded to a plaintiff "only if it is proven by clear and convincing evidence that such person acted with malicious intent to injure the claimant, or that such person deliberately failed to avoid unnecessary injury."  Punitive damages would be capped at $250,000 or two times the economic damages awarded, whichever is greater.  There are several problems with this portion of the Republican bill.  First of all, it would eliminate recovery of punitive damages in cases of gross incompetency or recklessness, and in another common situation where punitive damages are routinely awarded – when medical records have been altered by the defendant.  In addition, if the patient was a child or elderly or disabled or unemployed, and the patient is killed, not simply injured, then economic damages would be relatively small, and punitive damages would also be limited even in the most egregious cases of willful misconduct.  Finally, it is one thing to limit the amount of punitive damages that a sole practicioner might be liable for in an isolated case – it is another thing to limit the amount of punitive damages that a multinational corporation might be liable for in widely distributing a product which it knew was defective;

These provisions would preempt all state laws except state laws that impose greater limitations on medical claims and state laws that specify different damage caps for noneconomic and punitive damages.

     I am married to a physician and I used to defend physicians in medical malpractice cases, but I have to admit that the only word that springs to mind to describe the Republican bill is "draconian."  While some of these proposals have great merit, the cumulative effect this law would, as a practical matter, foreclose any reasonable possibility for any person, at any time, to recover any damages for any medical injury.  And keep in mind that these limitations on medical claims protect not only individual physicians but medical conglomerates and the manufacturers of medical devices.  The Republican bill goes too far – by a longshot.

     Republicans also contend that their bill will significantly reduce the cost of medical care.  The Congressional Budget Office respectfully disagrees.  The CBO report on the Republican bill indicates that it would create savings in the federal budget of about $5 billion per year, on the average.  This is peanuts.  Total health care expenditures in the United States this year are estimated to be $2.2 trillion.  The savings from tort care reform set forth in the CBO report on the Republican bill amount to two-tenths of one percent.

     In contrast, the "tort reform" measures contained in Section 2531 of the Democratic bill, beginning on page 1431 of that bill, seemed designed to accomplish nothing.  Under the Democratic proposal the federal government would make an incentive payment to states that adopt an "alternative medical liability law in compliance with this section."  In deciding whether or not a state should receive an incentive payment, the Secretary of Health and Human Services would have to consider whether the state law:

(A) makes the medical liability system more reliable through prevention of, or prompt and fair resolution of, disputes;

(B) encourages the disclosure of health care errors; and

(C) maintains access to affordable liability insurance.

     It is difficult to imagine what measures would qualify for subsidies under the foregoing criteria.  But the succeeding paragraph is more specific:

The contents of an alternative liability law are in accordance with this paragraph if—

(A) the litigation alternatives contained in the law consist of certificate of merit, early offer, or both; and

(B) the law does not limit attorneys’ fees or impose caps on damages.

     The Democratic bill seems designed to roll back tort reform in states like Ohio which have already adopted measures capping damages or attorney fees.  Furthermore, requiring a "certificate of merit" is fruitless unless there are penalties imposed upon the plaintiff for proceeding with a meritless case.  The Democratic bill is silent on this point.

     Furthermore, if the Democratic bill specifically rewarded or even authorized "alternative dispute resolution" of medical claims – that is, mandatory arbitration of medical claims – then it might extend a significant benefit for both patients and health care providers.  Arbitration is cheaper and quicker than litigation, and if a system of arbitration were institutionalized attorneys would not be necessary and small claims could be redressed.  But I do not read the Democratic bill encouraging "alternative liability laws" as authorizing arbitration, and the "certificate of merit" requirement is not sufficiently fleshed out to merit applause.  The Democratic bill does not go nearly far enough in weeding out junk lawsuits and improving access to the justice system.

     It would seem like this is an area where Democrats and Republicans could, if they chose, reach a compromise that would balance everyone's interests in reducing medical error and compensating victims.  That does not seem to be in the cards.

Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue.

     In the comments to Posting Number 55 of this series Quidpro and Dan S. debate what the effect of health care financing reform legislation will be on physicians and the willingness of persons to enter or stay in the medical profession.  We will learn more over the weekend as doctors debate whether to ratify AMA support for the House Democratic bill.

     Yesterday the AMA announced that it would support the House Democratic bill, the Affordable Health Choices Act of 2009 (H.R. 3962).  James Rohack, AMA President, stated:

“On balance, H.R. 3962, The Affordable Health Care for America Act, is consistent with our principles of pluralism, freedom of choice, freedom of physician practice and universal access. It will significantly expand health insurance coverage to Americans to empower patient and physician decision making; institute meaningful insurance market reforms; make substantial investments in quality; institute prevention and wellness initiatives; provide incentives to states that adopt certificate of merit and/or early offer liability reforms, and reduce administrative burdens.”

“H.R. 3962 is not the perfect bill, and we will continue to advocate for changes, but it goes a long way toward expanding access to high-quality affordable health coverage for all Americans, and it would make the system better for patients and physicians,” Dr. Rohack said. "This is not the last step but the next step toward health system reform. We will remain actively engaged with patients, physicians, Congress and the administration to ensure that the final bill results in marked improvements to our health system."

AMA also called on Congress to pass the Medicare Physician Payment Reform Act of 2009 (H.R. 3961) to permanently repeal the broken physician payment formula and preserve access to care for seniors, baby boomers and military families.

     If enacted the Democratic bill would achieve near-universal medical coverage through a combination of insurance regulation, individual and employer mandates with federal subsidies for low-income persons to purchase insurance, an expansion of Medicaid and CHIP, and increased taxes on the wealthy to pay for all this.  Dan and Quidpro argue about whether or not this bill will drive persons out of the medical profession.

     The Democratic bill (like the Republican bill, the Common Sense Health Care Reform and Affordability Act) fails to address the problem of SGR reform – which, if not addressed, would reduce physician fees under Medicare by over 20% next year and by additional amounts in succeeding years.  I assume that the AMA endorsement of the Democratic bill H.R. 3962 means that there has been a promise that SGR reform, H.R. 3961, will be swiftly enacted.  But the question remains, will doctors come out ahead or behind under these new laws?

     Noam N. Levey and Bruce Japsen of the Chicago report that some physician groups intend to challenge the AMA's decision in a meeting of the House of Delegates on Saturday.  Quoting the dissenters, the reporters state:

"These bills go far beyond what is necessary to fix what is broken with our health care system, and they grant the federal government considerable new powers and authority, which could ultimately amount to a complete government takeover of health care and which is anathema to doctors and patients," a resolution introduced by the American Association of Neurological Surgeons, the American Society of General Surgeons and the American Academy of Facial Plastic and Reconstructive Surgery. The resolution also was supported by AMA delegations from George [sic, Georgia] and the District of Columbia.

     I think it is notable that the specialist groups which are opposed to the Democratic bill are all surgeons.  Under the reform bill payments under Medicare and Medicaid will be redirected away from specialists and towards primary care physicians, and there will be funding to encourage the entry of physicians into primary care.  Surgeons are also more likely than primary care physicians to be liable for increased taxes under the Democratic bill.

     The weekend vote by the AMA House of Delegates on the surgeons' resolution should be instructive.

     One of the most divisive questions in health care financing reform involves funding for abortions.  Pro-life House Democrats have threatened to vote against the House Democratic bill, H.R. 3962, unless it is amended to ensure that federal funds are not spent on abortions.   A member of this group, Rep. Brad Ellsworth (D-IN), has proposed an amendment to the House Democratic bill. 

     On November 3 Representative Ellsworth issued a statement announcing his proposal.  He stated:

Ellsworth's proposal would make 5 key pro-life changes to the bill; effectively preventing federal tax dollars from being used to fund abortions and ensuring Americans have access to pro-life insurance options in the proposed Health Insurance Exchange:

Explicitly prevents all federal tax dollars from being used to provide abortions in the public option;

Prohibits any funds from the US Treasury from paying for abortion services in any of the plans purchased through the proposed Health Insurance Exchange-private or public;

Establishes clear, strict rules for separating public funds from the premiums of private individuals (ensuring that no public funds are ever used to pay for an abortion in any health plan offered on the Health Insurance Exchange);

Guarantees every American participating in the Health Insurance Exchange will always have access to a pro-life insurance option;

Expands conscience protections to prevent the government from discriminating against pro-life health insurance plans.

     Reuters reports that the pro-life organizations Americans United for Life is opposed to the House Democratic bill even with the Ellsworth amendment, stating:

"The Ellsworth Amendment will explicitly authorize federally funded abortions in the public option."

The National Right to Life Committee appears to be similarly opposed, stating that the anticipated "manager's amendment" amounts to a "cosmetic" change.  The NRLC states:

"The bill would create a national federal agency health program, the "public option," and would explicitly authorize that federal agency program to pay for elective abortions. This federal agency program will pay for abortions with federal funds (which are the only kind of funds that federal agencies can spend)."

     These organizations' characterizations of the House Democratic bill and the Ellsworth amendment are disingenuous.  The federal government will not be fully subsidizing the cost of health insurance which is purchased through the Exchange or even through the "public option."  Individuals will instead be paying premiums to purchase their own insurance.  People who earn less than 400% of the Federal Poverty Level will be eligible for federal subsidies to purchase insurance – but those subsidies are provided on a sliding scale, and people who earn more than that amount will be still be paying for health insurance out of their own pockets, even if they purchase insurance through the "public option."

     It is one thing for the law to prohibit the government from paying for abortions, and I am sympathetic to that position.  It is quite another for the law to prevent individuals from purchasing health insurance that would cover abortions, as pro-life organizations appear to be demanding.  In my opinion if such a law were adopted the government would cross the line from simply refraining to pay for abortions to interfering with people's choices in this regard – and that might be construed as "unduly burdening" the right to choose to terminate a pregnancy in violation of the Constitution.

     As a practical matter this question might be easily resolved.  If the cost of an "abortion rider" would be relatively cheap – and insurance companies might be willing to offer such riders at virtually no cost, in light of the lower costs and medical complications associated with abortions as opposed to childbirth – then the whole dispute might simply evaporate.