The Objective Standard just published my blog post, “What Congress Should Do Rather than Sue.” I write, “Congress has the power to repeal ObamaCare and to begin rolling back government controls of health care. For example, Congress could not only repeal the rights-violating mandates that force individuals to purchase insurance and employers to provide it; Congress could also put an end to the use of the tax code to punish people for purchasing insurance directly.” In his post on the subject, Erick Erickson offers a great quote by Madison explaining how and why Congress controls the purse; it begins, “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government.”
Sierra Leone’s president declared a state of emergency in his west African country, banning all public meetings and mobilizing troops to quarantine the homes of Ebola victims, as the World Health Organization reports that the death toll from the latest outbreak of the virus has jumped to 729,” USA Today reports. But how dangerous is the disease even for those in the most-affected areas? According to the Telegraph, the recent outbreak has led to “1200 suspected cases so far across Guinea, Liberia, and Sierra Leone.” Sierra Leone has a population of some six million people (Colorado has around 5.3 million, by comparison). No doubt if hundreds of people died of a viral infection in Colorado, people would be freaking out. The outbreak leads to two important questions: What should governments do about this and other outbreaks, and what should individuals do? Prudence counsels that families keep on hand at least a short-term store of emergency supplies (including water and food), just in case. Meanwhile, those who want to learn more about the ebola virus may see WHO’s fact sheet.
You may recall the Supreme Court ruled ObamaCare constitutional on the basis that it’s a tax—see Dave Kopel’s discussion of that ruling. But now the D.C Circuit Court has ruled that, although ObamaCare is a tax for purposes of its Constitutionality, it is not a revenue-generating tax for purposes of the Origination Clause. Article I, Section 7 of the Constitution states, “All Bills for raising Revenue shall originate in the House of Representatives”; ObamaCare originated in the Senate. So not only is ObamaCare a “Seinfeld tax on nothing,” as Kopel says, it’s a tax that’s not really a tax. The courts in these matters are completely failing to uphold the letter and spirit of the Constitution. See Heritage’s report, Timothy Sandefur’s blog post on the recent ruling (Sandefur pursued the case), and Sandefur’s video about the same.
Last month I wrote an op-ed and a follow-up blog post critical of a proposal to expand Colorado’s prescription drug monitoring program. I pointed out (among other things) that the program was promoted and financed largely by federal law enforcement; that law enforcement agents can access the information in the database (by warrant) for purposes of pursuing criminal investigations; that the program does little to curb drug abuse, in part because drug abusers easily can switch to different drugs, and in part because some drug abusers steal their drugs (or, I’ll add here, buy them on the black market); and that the proposal seeks to force doctors (and other prescribers) to register with the database.
My main point was that it is not the government’s proper role to save drug addicts from their own dangerous behavior—particularly given the government’s actions in this area inevitably make it harder for some people to obtain the drugs they desperately need to manage their excruciating pain.
On March 31, someone who identified himself only as “John” replied to my web page:
Ari, hello. My name is John and I am a retail pharmacist. I rely heavily on our prescription monitoring program here in Nevada. As pharmacists, we use it to make sure people are not filling multiple controlled substance prescriptions at different pharmacies, using multiple doctors for controlled substances, and that they are not misusing or abusing controlled substances. This tool has prevented abuse and diversion in our state and is a very useful tool. Also, to stress an important point, a good pharmacist understands true pain (cancer) and always strives to take compassionate care of the patient.
Following is my open reply:
As a pharmacist, you are undoubtedly a smart fellow; you must realize, therefore, that you have not actually responded to any of the observations or arguments I make in my op-ed and related post.
I have no doubt that the monitoring programs set up by the governments of various states prevent some drug addicts from obtaining certain drugs from certain sources. (Whether it substantially prevents drug addicts from abusing drugs, on the other hand, is extremely doubtful.) My primary philosophical objection is that it is not the government’s proper role to address or prevent the problem of drug abuse; rather, it is to protect people’s rights, including the rights of consenting adults to contract freely. Although a full defense of that position lies outside the scope of this short letter, I will note here that there are other—and much better—ways to help drug addicts with their problems.
I will also note here that my criticisms of government-run drug prescription drug monitoring programs (run largely at the behest of federal law enforcement agents) do not constitute reasons to prohibit doctors and pharmacists from independently sharing certain information about potentially dangerous situations. And of course nothing in my position implies that reckless doctors should be free from civil and even (if circumstances warrant) criminal liability.
As a pharmacist, your ability to “take compassionate care of the patient” is inherently limited. After all, you are not legally authorized to diagnose any disease or to write drug prescriptions. Thus, there is no case in which you can actually expand the delivery of pain medications to the patients who desperately need them. Your actions can have one and only one effect in this regard: to block or delay such delivery.
Of course, your actions might also have the effect of subjecting the doctors and other medical professionals, who are legally authorized to write drug prescriptions, to the actions of federal and state law enforcement agents. Those agents, in turn, have the power in some cases to arrest doctors and to help other government agents prosecute doctors or strip them of their ability to practice medicine.
As a pharmacist, John, you are not in any danger of having your power stripped to write drug prescriptions (as you have no such power) or of being prosecuted for writing drug prescriptions (as you do not write any). You are, however, quite capable of assisting federal and state drug enforcement agents create a climate of fear and intimidation among those who do write drug prescriptions, such that, on balance, those who prescribe drugs tend to err on the side of legal precaution and not help people coping with excruciating pain obtain the drugs they desperately need. Such a result is possible—and I think likely—even assuming (as I’m sure is the case) that most uses of the monitoring program do not involve law enforcement. And the more the program is expanded, the more substantial will be its effects in this regard.
In using the monitoring program, you act primarily on guesswork and speculation. Consider the activities that you regard as inherently suspicious: people “filling multiple controlled substance prescriptions at different pharmacies” and “using multiple doctors for controlled substances.”
Again, I do not doubt that such behavior describes some drug addicts. But I also do not doubt that such behavior also describes some people coping with excruciating pain due to cancer or other serious diseases.
Consider that cancer patients and others coping with serious illnesses typically see multiple doctors in multiple locations to manage their diseases. They also typically use different types of pain medications concurrently to cope with their diseases. Moreover, cancer patients often end up leaving their jobs, moving to a different location, and switching their insurance companies—developments that can result in them seeing more doctors in more locations. Add to this the fact that people suffering from a variety of diseases often require supplemental surgeries—surgeries that initially cause enormous pain and that involve yet more medical facilities. For all these reasons, people coping with such diseases very often get multiple drug prescriptions, written by multiple doctors, filled at multiple pharmacies—the very behaviors that you claim to “make sure” to treat as suspicious.
As a pharmacist, John, you typically lack access to the pertinent information about such patients, and when you lack such information you cannot possibly “take compassionate care” of them. With respect to such patients, your actions can have one and only one result: to make it harder for them to obtain the pain medications they so desperately need.
I will thus repeat here what I wrote at the outset: “the answer is not for the government to monitor and harass people who suffer from devastating pain—and make it harder for them to manage their pain—in a misguided attempt to save drug abusers from themselves.”
Sincerely, Ari Armstrong
Image: Wikimedia Commons
Yesterday the Greeley Tribune published my article, “Prescription Drug Monitoring Punishes the Responsible for the Sake of the Irresponsible,” written for the Independence Institute. That article begins:
Prescription drug abuse is a serious problem, sometimes a fatal one. But the answer is not for the government to monitor and harass people who suffer from devastating pain — and make it harder for them to manage their pain — in a misguided attempt to save drug abusers from themselves. Unfortunately, that is precisely the effect of House Bill 1283, sponsored by Rep. Beth McCann of Denver.
Here I thought I’d take the opportunity to offer more details about the program and my research of it.
Health Information Designs
One interesting fact about the Colorado database that tracks (some) prescription drug use is that it is operated by a limited-liability corporation, Health Information Designs (HID).
Colorado’s Department of Regulatory Agencies (DORA) links users directly to HID for information about the Electronic Prescription Drug Monitoring Program (PDMP). Interestingly (or perhaps disturbingly), HID originally went into business producing “data mining software” for prescription drugs.
So let us clarify what’s going on here. The Colorado government encourages doctors and pharmacies to enter patients’ personal medical information into a central database, run by a for-profit corporation, and this information is available to a wide range of medical professionals—whether or not patients wish their records to be so distributed—and to law enforcement agents who obtain a warrant to see the records.
One thing McCann wants to do is force all prescribing doctors and pharmacies to register with the database. McCann’s bill would not force prescribing doctors and pharmacies to actually use the register, but does anyone seriously doubt that’s the Drug Enforcement Administration’s eventual aim? The goal here is for Big Brother to be able to monitor every individual’s use of prescription drugs, every doctor’s prescriptions, and every pharmacy’s drug sales. And, of course, the government wants to subject violators of the (ambiguous) prescription laws to penalties, including the penalty of getting locked in a metal cage.
The Funding for the PDMP
Tellingly, the Colorado PDMP, launched in 2005, got its primary funding from the U.S. Department of Justice—of which the DEA is an agency.
The legislator’s fiscal note for 2005 House Bill 1130 states the following:
The bill is assessed at having a conditional fiscal impact of $547,156 . . . in its first year of implementation and $271,484 . . . in its second year of implementation. . . . During the current fiscal year, the Department of Regulatory Agencies has received a $50,000 U.S. Department of Justice grant in support of the Harold Rogers Prescription Drug Monitoring Program. . . . Additionally, the federal government will make a $350,000 grant available to implement the program once statutorily authorized.
I do not have complete funding details about the program. However, it is apparent that the program is driven primarily by federal law enforcement.
I relied on several news reports in conducting my research. 9News published a story about McCann’s current bill. Eli Stokol’s pathetic excuse for journalism on this matter essentially uncritically relates McCann’s talking points, without bothering to raise a single critical question. Hopefully in the future Stokol will take his role as a journalist more seriously and set a higher bar for himself than legislative lapdog.
As I point out in my op-ed, drug abusers who have a harder time getting one type of drug often switch to another type. My claim is supported by a recent news story from the Washington Post (republished by the Denver Post).
[T]he U.S. government’s decade-long crackdown on abuse of prescription drugs has run an unsettling risk: that arresting doctors and shuttering “pill mills” would inadvertently fuel a new epidemic of heroin use. . . . [A]t the same time that some pain medications have become less available on the street and pricier, many users have switched to cheaper heroin, since prescription pills and heroin are in the same class of drugs and provide a comparable euphoric high.
It should go without saying—but, in today’s political climate not even the most obvious facts may go without saying—that substituting street heroin addictions and deaths for prescription drug addictions and deaths is no great victory.
I cut the following line from my op-ed due to space restraints, but it’s an interesting detail: “In testifying in favor of McCann’s bill, Robert Valuck from the University of Colorado offered the example of a woman who robbed a pharmacy at gunpoint—but the expanded registry would promote rather than deter thefts of prescription drugs.” Valuck’s claim is included in 9News’s video, not in Stokol’s written account.
The Magnitude of Prescription Drug Deaths
In my op-ed, I claim that McCann apparently overstated the magnitude of deaths related to prescription drugs. Specifically, she said, ““More people actually die from prescription drug overdose than from traffic accidents.”
I have an email out to McCann asking for her sources, so perhaps she’ll send me something I have not yet considered. However, based on the sources I’ve been able to find so far, McCann’s claim seems not to have support.
This past October, an outfit called Trust for America’s Health published a report, “Prescription Drug Abuse: Strategies to Stop the Epidemic.” (Likening a volitional behavior—drug abuse—to an infectious disease is epistemologically and morally offensive, but I’ll leave that topic for another day.)
That report does not state that prescription drugs are responsible for more deaths than are traffic accidents. Instead, the report claims that “[p]rescription painkillers are responsible for more than 16,000 deaths” per year. The number of motor vehicle deaths exceed 30,000 each year.
Regarding traffic fatalities, the report makes a different claim: “Drug poisoning deaths—the majority of which are related to prescription drugs—surpassed traffic-related crashes as the leading cause of injury death in the United States in 2009.”
My guess is that McCann misstated this report’s (or a derivative report’s) findings.
(I also saw that Dr. Joseph Mercola makes a broad statement about prescription drug deaths surpassing auto deaths, but, if you trace back his links, you find that the statistic pertains only to Ohio. I have not traced the claim beyond a 2011 New York Times story.)
The best statistics I’ve found about the problem of prescription drug abuse are provided by the Centers for Disease Control, which report, “In 2008, drug overdoses in the United States caused 36,450 deaths. OPR [opioid pain relievers] were involved in 14,800 deaths (73.8%) of the 20,044 prescription drug overdose deaths.” (In many cases a death involves the mixing of various types of drugs.)
Of course, as the CDC also report, most people who intentionally kill themselves by overdosing on drugs use prescription drugs for the purpose. But the monitoring program will not pick up one-time drug purchases among suicidal people, nor will it prevent suicidal people from substituting one method of suicide for another.
I have known people who have died from terminal cancer. I know people now dealing with the agonizing pain caused by late-stage cancer and other diseases. The simple fact is that more people with serious injuries and diseases will suffer more pain because of the government’s crackdown on prescription drugs—all to save irresponsible drug abusers from their own poor choices. That policy is morally wrong.
Image of Beth McCann: Wikimedia Commons
In a July 31 talk hosted by Liberty On the Rocks, Dr. Paul Hsieh made the case against medical licensing. The event was held on what would have been Milton Friedman’s 100th birthday, and Hsieh drew on Friedman’s work on licensing. (Hsieh noted that he does not agree with all of Friedman’s other positions.)
Hsieh argued that, far from guaranteeing the competency of doctors, medical licenses tend to lull patients into a false sense of security.
Moreover, Hsieh argued, licenses put doctors under the thumb of politicians, who in some cases have already tried to use threats of license revocation to force doctors to behave in ways that politicians deem best.
Watch the entire, 20-minute talk:
Constitutional scholar Dave Kopel discussed the ObamaCare SCOTUS ruling July 9 at Liberty On the Rocks, Flatirons. He argued that, despite the court’s troubling ruling on the taxing power, in other ways the ruling provides important Constitutional protections of our liberties.
Kopel spoke for about an hour to a crowd of around fifty people; I extracted a series of ten videos encompassing most of his remarks.
Kopel began by discussing the commerce clause, noting that the ruling offers a relatively restrained reading of that clause more consistent with original understanding:
Next Kopel addressed the meaning of the “necessary and proper” clause, noting that the court’s ruling moved interpretation of that clause closer to original understanding:
What about Medicaid spending? Kopel points out that the Court’s ruling has profound implications for states’ ability to manage their own budgets.
Of course, the Court dramatically expanded the Congressional taxing authority, and that part of the ruling is the most problematic. Kopel discusses ObamaCare’s “Seinfeld tax on nothing.”
Did Justice Roberts make a “switch in time” because of political pressure? Kopel discusses the possibility:
What is the state of legal academia? Kopel argues that it was bad but that it is getting much better.
Is the Tenth Amendment meaningless? Hardly, argues Kopel.
Ultimately, the Constitution lives in the hearts and minds of the American people. “It is up to the American people to maintain our political system of constitutional liberty,” Kopel argues.
Judicial review is proper, Kopel argues, but not sufficient to maintain liberty.
Finally, Kopel discusses other possible legal challenges to ObamaCare.
At yesterday’s rally (see my previous post), I interviewed several participants. Here’s what they had to say:
Today around two hundred Coloradans rallied at the state capitol in Denver to protest ObamaCare and the Supreme Court decision upholding the individual mandate under the Congressional taxing authority.
Read Tim Hoover’s article over at the Denver Post—then check back here for the most important information (which Hoover ignored). I refer to the talks by Dr. Jill Vecchio (shown in the photo) and constitutional scholar Rob Natelson, the video of which is embedded below.
Vecchio explained that ObamaCare forces doctors to violate the Hippocratic Oath:
Natelson, one of the leading experts on the original meaning of the Constitution, argued that the Supreme Court’s ruling constitutes sophistry:
Below are a few additional images from the rally; see my Picasa album for more. (You’ll notice that I posted the photos as Creative Commons.)
Bob Beauprez meets Vecchio:
Bill Faulkner and Jason Letman:
Felix Diawuoh, an immigrant from Ghana:
Jeff Crank, Colorado director for Americans for Prosperity (the group hosting the rally):
Yes, I’m disappointed by today’s ObamaCare ruling by the Supreme Court. (You can find my further remarks over at The Objective Standard blog.) I am not terribly surprised by the ruling; John Roberts was merely following today’s common conservative legal theory to the effect that the Supreme Court should do whatever backflips are necessary to jam congressional legislation into the framework of the Constitution. (I’ll have more to say about this later.)
Here, I wanted to first point out that this is hardly the end of the fight, and second thank those Coloradans who have played such an important part in the fight to establish liberty in healthy care.
This is not the time for defeatism, for disillusionment, for pessimism, or for sulking. This is the time to stoke one’s motivation and help rally the lovers of liberty to the cause of freedom in medicine.
I think the Supreme Court erred in its judgment today. But the Supreme Court defines the limits of Congressional action, not its ideal state. Just because the Court allows it, doesn’t mean Congress must enact it.
Now the battle must move to the cultural arena—where it has always been fought at the most fundamental level. In a way, today’s ruling brings a certain clarity to the issue, for who can deny that we face a basic choice between liberty in medicine and government-controlled medicine? Either the individual is in control of his own life, his own health, his own choices, his own body, or the government is.
The fight to bring about liberty and free markets in medicine is just beginning.
And the side of liberty already has tremendous momentum, thanks in large part to the work of scholars and activists here in Colorado. I want to take this opportunity to thank some of them and link to some of their work.
Dave Kopel and Rob Natelson
Legal scholars Kopel (shown in the photo) and Natelson did tremendous work explaining the limits of the “necessary and proper clause.” Notably, the Supreme Court ruled that ObamaCare is not permissible under that clause (but rather under Congress’s taxing authority).
Kopel has also written extensively about the implications of ObamaCare, as in an article for the Volokh Conspiracy.
Earlier this year I interviewed Kopel about the mandate.
Radiologist Paul Hsieh cofounded Freedom and Individual Rights in Medicine. He coauthored an article chronicling the history of government intervention in medicine, and he continually writes blog posts and articles on health policy.
Hsieh wrote an article for today’s PJ Media in which he argues:
Ultimately, the political fight against ObamaCare must be part of a broader fight for limited government that respects our freedoms. The proper function of government is to protect individual rights, such as our rights to free speech, property, and contract. Only those who initiate physical force or fraud can violate our rights. A properly limited government protects us from criminals who steal, murder, etc., as well as from foreign aggressors. But it should otherwise leave honest people alone to live peacefully, not deprive us of our freedoms in the name of “universal health care.”
Vecchio, another medical doctor, has delivered numerous talks on health policy. She recorded a multi-part video commentary on ObamaCare.
Gorman, an economist with the Independence Institute, has written about health policy for many years. I have benefited enormously from her detailed and technical understanding of health laws and their implications.
Schwartz writes for the Institute’s Patient Power Now blog. He keeps abreast of the latest news related to health care, and he shares this news with the wider community.
Thanks to the amazing work of these scholars, doctors, and activists—and many other Coloradans who have made the case for liberty in medicine—much of the public is aware of the dangers posed by ObamaCare and open to serious discussions about replacing today’s government-controlled health care with a free market.
That is the cause for which we must continue to fight.