‘Death Panels’ Come Back to Life
The FDA’s restrictions on the drug Avastin are the beginning of a long slide toward health-care rationing.
THE WALL STREET JOURNAL
Thursday, 30 December 2010
Earlier this month, the Food and Drug Administration banned doctors from prescribing Avastin, a potent but costly drug, to patients with advanced-stage breast cancer. According to the FDA, the drug doesn’t offer “a sufficient benefit in slowing disease progression to outweigh the significant risk to patients.” Yet in some clinical trials Avastin has halted the spread of patients’ cancer for months, providing respite to women and their families wracked by physical and psychological pain.
Ponder the FDA’s justification—there wasn’t “sufficient” benefit in relation to Avastin’s risks. Sufficient according to whom? For your wife, mother or daughter with terminal breast cancer, how much is an additional month of good-quality life worth? And what costs should be weighed? Like all drugs, Avastin has side effects including bleeding and high blood pressure. But isn’t the real cost to these women a swifter, less dignified death? The FDA made a crude cost calculation; as everyone in Washington knows, it wouldn’t have banned Avastin if the drug cost only $1,000 a year, instead of $90,000.
The Avastin story is emblematic of the government’s broader agenda to ration care based on cost and politics. Once ObamaCare comes into full force, such rationing will be pervasive. When the government sees insufficient benefit, all but the wealthiest and most politically connected will have to go without.
Think it can’t happen here? Think again. The 2009 stimulus bill spent $1.1 billion to research “comparative effectiveness.” That’s the same approach used by Britain’s National Health Service to ration care, weighing cost against factors such as the ever-elusive concept of quality of life. And in an interview that year, President Obama confessed that “the tougher issue . . . is what do you do around things like end-of-life care.” Pushed to articulate a solution, he replied, “It is very difficult to imagine the country making those decisions just through the normal political channels.” He asserted that we needed “some independent group” to “give [us] some guidance.”
He got that wish. ObamaCare created a commission—the Independent Payment Advisory Board—tasked with limiting spending on Medicare. Its recommendations will be binding, unless Congress can come up with equivalent cost-savings of its own. For the first time, an unelected group will be empowered to limit health spending for the vulnerable elderly.
ObamaCare proponents derided fears of “death panels” as a product of tea partiers’ fevered imagination, and they lamented when Congress removed the provision that would have provided for end-of-life counseling that might coax the elderly away from life-sustaining but expensive treatments. Not to fear: The administration has resurrected that provision through regulations, and Medicare will now pay for such counseling as part of elderly “wellness assessments.” Yes, the “death panels” charge is somewhat crude, but combine cost-based rationing with end-of-life counseling and, well, here we are.
There’s an enormous difference between government-imposed rationing and treatment decisions in the private sector. When insurance companies deny coverage—for example, on grounds that treatment is “experimental” or not “medically necessary”—they do so based on contract language agreed to in advance by subscribers. If you don’t like what a particular insurer offers, you’re free to shop around. Moreover, you and your doctor have extensive rights to appeal the insurer’s denial, and wealthy patients can pay for the care out of their own pockets.
But when the government denies approval of a medication, there will often be no appeal and no escape. For example, while doctors can still prescribe Avastin for other kinds of cancer—allowing them to prescribe it “off-label” to breast-cancer patients—this is merely fortuitous, something that’s not the case with many other drugs. The next time the FDA bans a drug because its benefits are not “sufficient,” patients may not be so lucky. FDA disapproval will be the equivalent of the emperor’s thumbs-down.
This whole scheme doesn’t stand up to legal scrutiny. Government-imposed cost-benefit rationing raises serious constitutional concerns. Individual bodily autonomy is one of the oldest recognized rights. Its constitutional significance is reflected in Supreme Court decisions acknowledging the rights to refuse unwanted treatment and to access treatments such as contraception and abortion. Freedom to make medical decisions is central to the autonomy and dignity encapsulated by the majestic word “liberty” in the Constitution’s due process clauses.
This isn’t to say that government can never interfere with bodily autonomy. State governments can, for example, force citizens to submit to certain treatments (like vaccinations) because of their unique “police power” to protect citizens’ health and safety. And the federal government can ban trade in snake oil treatments through its power to regulate commerce.
But even when Congress uses its enumerated powers, it cannot do so in ways that violate individual rights. It cannot, for example, decide to pay for the health care only of a certain racial group, or only of citizens who agree not to criticize the government. Such laws would violate equal protection and freedom of speech. Congress’s spending power is limited by other important constitutional provisions. One of those is the right to bodily autonomy.
When it comes to that right, courts have held that laws cannot impose an “undue burden” on access to life-preserving treatment. And there’s no greater burden than blocking access to such medical treatments on the grounds that the average person, according to a government agency’s reckoning, won’t benefit sufficiently.
If the government wants to reduce health-care spending, it can impose higher beneficiary cost-sharing, means-testing or other limits on eligibility that would be perfectly constitutional. But it can’t restrict every American’s access to proven treatments. With regard to medical care, the government must weigh delicate considerations of cost, quality of life and other factors individually—not collectively—in order to preserve citizens’ rights and dignity.
If government can limit Americans’ choice of effective medical treatments, there’s no limit to its control over our bodies, and the right to bodily autonomy is an illusion. In the context of the new health law, the FDA’s Avastin decision is the tip of a looming iceberg of government rationing. It must be challenged.
Mr. Rivkin, an attorney in Washington, served in the Justice Department under President George H.W. Bush. Ms. Price Foley is professor of law at Florida International University College of Law and the author of “Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality” (Yale, 2006).
BERWICK SETS UP DEATH PANELS BY FIAT
By Jeffrey Lord on 12.28.10 @ 6:09AM
“If they would rather die they had better do it, and decrease the surplus population.” — Ebenezer Scrooge in Charles Dickens’ A Christmas Carol
Sarah Palin was right.
John Boehner — make that Speaker-elect of the House John Boehner — was right.
While Americans were busy celebrating with family and friends and presumably not paying attention to the news, the New York Times, in a story ironically dated Christmas Day — a holiday celebrating the birth of the Prince of Peace — reported the following:
Obama Returns to End-of-Life Plan That Caused Stir
WASHINGTON — When a proposal to encourage end-of-life planning touched off a political storm over “death panels,” Democrats dropped it from legislation to overhaul the health care system. But the Obama administration will achieve the same goal by regulation, starting Jan. 1.
In other words, the 2009 charge leveled by former Alaska Governor Sarah Palin and the then-House Minority Leader Boehner that Obama fully intended to set up what Palin termed government “death panels” — panels that Boehner said would set the government on the road to euthanasia — is no longer a charge.
It’s reality. By executive fiat — in this case a new Medicare rule issued by Obama Medicare chief Dr. Donald Berwick.
Palin, who made the charge on her Facebook page on August 7, 2009 during the health care debates, came under a fusillade of scornful and demeaning political attacks from political opponents after pointedly saying this about the prospect of death panels:
And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil.
Her famous sharp criticism was enough for the plan to be quickly dropped by Congress.
Now, with Americans absorbed in a festive holiday and ignoring Washington momentarily, the Obama administration has found a way to achieve its death panel goal anyway, as the Times now admits. Says the paper of the new Christmas death panel regulation that replaces medical science and voluntary private judgment with the inevitable pressure of politicized health care :
Congressional supporters of the new policy, though pleased, have kept quiet. They fear provoking another furor like the one in 2009 when Republicans seized on the idea of end-of-life counseling to argue that the Democrats’ bill would allow the government to cut off care for the critically ill.
Which is another way of saying something else:
Governor Palin has been vindicated. Speaker Boehner has been vindicated.
And Palin’s critics in particular now have more than holiday eggnog all over their faces. Obama’s Dr. Berwick has re-ignited one of the most hotly controversial issues of the entire health care debate just as a conservative ascendancy prepares to take power in the next Congress. With no less than Boehner himself taking the gavel from Nancy Pelosi as the new Speaker of the House.
What does this new rule say and do, exactly?
It inserts the federal government in end-of-life planning, precisely as Palin said was Obama’s intention. Not, as was true of its original legislative formulation, every five years. But annually. No one of any sense objects to an individual and doctor having end-of-life discussions about living wills and such whenever they wish. Only the Obama administration and its obsession for control wants the government to incentivize the issue so that doctors must raise it annually, a system that on its face pressures the most deeply vulnerable of Americans in the most Orwellian of terms to end their lives.
Control and pressure. Pressure and control. This is the only two-step philosophical/political dance liberals know. It is, as it were, primal. And the Berwick Medicare rule, constructed in secret and released on Christmas Day when it no one is looking, is a perfect example — if hardly the only example — of how the Obama Administration views its role. Control and pressure. Pressure… and control.
Versus the conservative concept (shorthand version) of liberty and freedom.
Says the Times of the Obama Administration’s justification for its secretive move to mandate death panels by regulatory fiat:
In this case, the administration said research had shown the value of end-of-life planning.
Research? What research could possibly justify a government-sponsored annual attempt to pressure a poor, disabled, or elderly American into believing that they would be better off dead because they’re costing society too much money?
British research. Says the Times:
“Advance care planning improves end-of-life care and patient and family satisfaction and reduces stress, anxiety and depression in surviving relatives,” the administration said in the preamble to the Medicare regulation, quoting research published this year in the British Medical Journal.”
You read that right.
British research is being cited in the preamble of this Medicare death panel rule as a justification for the new rule — a stunning turn of events that will surely launch a firestorm over trying to remodel the American health care system after the hotly criticized British health care system. A system that makes no pretense of politically rationed health care.
Part of the furor launched over Palin’s remarks was the discovery by millions of frightened Americans that Obama health care bureaucrats admired the British health care system — where the government in fact rations health care on a political basis and decides who should live or die based on what is called the “QALY” — Quality-Adjusted Life Year. This has been discussed previously in this space — in fact just over a week before Governor Palin wrote her Facebook statement. It has also been discussed by health care consultant David Catron here where he explained how the QALY system worked.
In Catron’s words: “A year of perfect health, for example, is given a value of 1.0 while a year of sub-optimum health is rated between 0 and 1. If you are confined to a wheelchair, a year of your life might be valued at half that of your ambulatory neighbor. If you are blind or deaf, you also score low. All that remains is to assign a specific dollar value to the QALY and, voilà, your life has a price tag.”
Princeton’s controversial Dr. Peter Singer, a liberal and big believer in the British health care system, happily related the British politicization of medical decisions in a New York Times Magazine article during all of this, an instance in which “Britain’s National Institute for Health and Clinical Excellence gave a preliminary recommendation that the National Health Service should not offer Sutent for advanced kidney cancer.” Why? The government said it was too expensive and therefore simply denied the drug. This in turn led to a furious reaction even from stiff-upper-lip Brits with charges their government was “immoral” and willing to let patients die. Grudgingly, the drug was eventually approved. But not before one angry British woman, whose husband’s life was at stake, angrily asked: “What price is life?”
As this is written the Obama Food and Drug Administration is now taking Americans down this same path, rejecting the breast cancer drug Avastin with what many are citing as unbelievable science — but very believable political concerns that the drug is, in the bureaucrats’ view, too expensive. Thereby inserting the judgment of political bureaucrats for medical science — and the freedom of patients to order the drug. Here’s this from the Heartland Institute:
According to Sally Pipes, president of the Pacific Research Institute, the FDA’s decision is not based on the best outcome for patients but instead on the expense of Avastin, produced by Genentech, which can run as high as $90,000 per year for a single patient.
The FDA claims its decision had nothing to do with Avastin’s cost and was based solely on the drug’s medical effectiveness,” Pipes said. “This isn’t believable. Every year about 40,000 American women die from breast cancer. Avastin is the last hope for many not to meet that fate. While the drug is costly, it often provides immense benefits to patients.
Somewhere an American woman with breast cancer is surely saying the same thing as her British counterpart: “What price is life?”
Singer had an answer. Really. Said the famous Bioethics professor: “Life as a whole has no meaning. Life began, as the best available theories tell us, in a chance combination of gasses; it then evolved through random mutation and natural selection. All this just happened; it did not happen to any overall purpose.”
Thus, since life really has no overall purpose, the government should be in the business of using Medicare to pressure the poor, the disabled and the elderly that — nudge, nudge — isn’t it time to bid the planet hasta la vista?
WHICH BRINGS US TO DR. DONALD BERWICK himself, the Obama administration’s Medicare recess-appointed head of the Center for Medicare and Medicaid Services. Dr. Berwick personally issued the Christmas Death Panel Rule, confirming in spades why he received a recess appointment from Obama. It was clear to Senate Democrats that Berwick’s chances of surviving a Senate confirmation battle were iffy at best. Why? Precisely because Berwick was well on record as expressing his deep admiration — make that lust — for the British government run system, saying: “I am romantic about the National Health Service; I love it. … The NHS is one of the astounding human endeavors of modern times.”
So Obama waited until he could skip a Senate debate and vote entirely and just recess-appoint Berwick — who in turn is doing exactly what his record suggested he would do.
Sure enough, the philosophy used by the British is precisely what Berwick used to describe the new Berwick Rule. Reported the Times of Berwick:
“Using unwanted procedures in terminal illness is a form of assault,” Dr. Berwick has said. “In economic terms, it is waste. Several techniques, including advance directives and involvement of patients and families in decision-making, have been shown to reduce inappropriate care at the end of life, leading to both lower cost and more humane care.”
What do we have here?
• The death panels were written into the original version of ObamaCare.
• Governor Palin, speaking out in her famous Facebook post, pulled back the shroud surrounding this horrifying idea. Less noticed at the time — but undoubtedly a headline grabber now — Minority Leader Boehner agreed, citing alarm over government sponsored euthanasia. Said Boehner:
Section 1233 of the House-drafted legislation encourages health care providers to provide their Medicare patients with counseling on “the use of artificially administered nutrition and hydration” and other end of life treatments, and may place seniors in situations where they feel pressured to sign end of life directives they would not otherwise sign. This provision may start us down a treacherous path toward government-encouraged euthanasia if enacted into law.
Obama protested he had no intention of “pulling the plug on Grandma” — but the idea, embodied in Section 1233 of the House version of the bill, was pulled from the final bill in part because of Palin’s — and Boehner’s — focused attention.
• Obama installs Dr. Donald Berwick to head the Medicare program as a recess appointment because Berwick’s controversial enthusiastic embrace of the British health care system and its death panel procedures would have prevented his confirmation.
• On Christmas day 2010, the Times reports the death panel idea will become a Medicare rule on January 1, 2011 — that would be four days from today. How? By fiat. As a government Medicare “rule” or “regulation” as put forth by the government agency now run by Dr. Berwick. The rule is justified because Berwick believes the government must “reduce inappropriate care at the end of life” A Berwick spokesman says the government should be saying to elderly patients, vulnerable patients, disabled patients — patients like Sarah Palin’s famous Down’s syndrome son: “When the time comes, do you want us to use technology to try and delay your death?” Nudge.
• Elizabeth D. Wickham, executive director of LifeTree, a pro-life educational organization, says of the new rule: “The infamous Section 1233 is still alive and kicking. Patients will lose the ability to control treatments at the end of life.”
Oh yes. Did we mention no one was supposed to know about all of this?
Congressman Earl Blumenauer, the Oregon Democrat who wrote the original provision in the House version of ObamaCare that was unmasked by Sarah Palin, has put the word out to his allies. Says the Congressman’s office in an e-mail to his allies:
While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet. This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the “death panel” myth.
We would ask that you not broadcast this accomplishment out to any of your lists, even if they are “supporters” — e-mails can too easily be forwarded…Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response. The longer this goes unnoticed, the better our chances of keeping it.
No wonder Blumenauer wants to keep this quiet.
Did you catch that word “us” in the sentence from Dr. Berwick’s spokesperson?
Here’s the sentence again:
When the time comes, do you want us to use technology to try and delay your death?
The word “us” refers not to a doctor and his patient. It refers to the government..
When Obama health care adviser Dr. Ezekiel Emanuel was cited by longtime health care expert Betsy McCaughey as discussing the idea that patients with dementia should be denied treatment, Emanuel’s defenders (he is also the brother of ex-Obama White House chief of staff Rahm Emanuel) floated a Time magazine story saying Emanuel “only mentioned dementia in a discussion of theoretical approaches, not an endorsement of a particular policy.” Oblivious to the fact that that no less than the President himself expressed a version of the same sentiment (as has Berwick) when he went on national television to answer a woman’s observation that at over a hundred her mother was very vital with a lot of spirit, and shouldn’t that be taken into account in any government health care decision? Said Obama: “I don’t think that we can make judgments based on peoples’ spirit. That would be a pretty subjective decision to be making. I think we have to have rules….”
Government rules. Like the rule just issued by Dr. Berwick.
A rule that effectively is now going to bully individuals — doubtless many of them poor, disabled or elderly. Ironically creating a system where you will only escape Obama’s government sponsored Big Chill if you are, say, a rich liberal.
In effect the administration is trying to bully Congress by making an end-run with a regulation because Congress said no to Section 1233.
The Heritage Foundation has accurately noted yesterday that, quite aside from the substance here — the new Berwick death panel rule or the FCC’s new net neutrality rules and so on — the real issue is the Obama administration’s clear intent to govern by executive fiat now that it has lost control of the House and, effectively, the Senate as well. Government-by-Obama fiat will be the subject of a furious struggle in the new Congress.
Says Heritage by way of focusing on a return to government by elected officials rather than a central government of rule-making un-elected bureaucrats:
“There is also the Congressional Review Act, which allows Congress to review and overrule regulations issued by government agencies.”
Which is to say, the Berwick rule can be undone — if the Congress orders it undone.
This episode is a reminder that Governor Palin took a lot of heat for bringing attention to this issue. No one expects her critics — now proven wrong by Berwick — to give her any credit for being right. Or for that matter to the new Speaker Boehner.
But the fact remains that Palin has shown leadership here — one might call it presidential-style leadership — in persisting with an issue that is now coming back to bite the American people in the form of a new Medicare rule on death panels — reported of all days on Christmas day.
No wonder John Boehner will be Speaker of the House.
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at email@example.com.