November 9, 2012
Worth Reading This Week
- Sam Bagenstos, Federalism by Waiver after the Health Care Case, SSRN
- Thomas Lambert, Why the Affordable Care Act, as Construed by the U.S. Supreme Court, Will Fail, SSRN/Regulation
- Brietta Clark, Medicaid Access, Rate Setting and Payment Suits: How the Obama Administration is Undermining Its Own Health Reform Goals, SSRN/Howard LJ
- Peter Neumann and James Chambers, Medicare's Enduring Struggle to Define “Reasonable and Necessary” Care, NEJM
- Barak Richman, Concentration in Health Care Markets: Chronic Problems and Better Solutions, SSRN/American Enterprise Institute
November 7, 2012
Aftermath: it's the demographics
Many things happened last night: the President was re-elected, "Obamacare" survived, physician-assisted suicide was defeated in Massachusetts, recreational use of marijuana (with accompanying taxes and blood concentration levels for driving) was approved in Washington and Colorado but not in Oregon, medical marijuana passed in Massachusetts but not in Arkansas (although the defeat was not overwhelming), same sex marriage prevailed at the ballot box in three states (Maine, Maryland, and Washington) with a fourth (Minnesota) defeating a constitutional amendment to ban it, and TEN women (one openly lesbian) were elected to the US Senate. In Massachusetts, Elizabeth Warren defeated Scott Brown, the Senatorial straw that almost broke the back of health reform. In my own state of Utah, red and Romney as they come, Jim Matheson (a 5-term incumbent "blue dog" Democrat running for Congress in the state's new 4th District after his district had been carved up by the state legislature) survived a challenge from an African-American Republican woman, Mia Love, who had been given an evening speaking slot at the Republican Convention and attracted lots of conservative funding as a result. And Salt Lake County again has a Democrat as mayor, this time Ben McAdams, a Mormon who is an outspoken opponent of discrimination on the basis of sexual orientation.
Although much will be written and said about what did and what did not happen in the election, demographic shifts should stand out in the analyses. The exit polling demographic picture assembled by the AP shows stunning differences by age, race and ethnicity, income, education, and even sex. Some of the pre-election polling results underestimated these differences because the polls were conducted using land-line rather than cellular phones. In some areas (Utah's 4th District may be one), the demographic shifts defied deliberate attempts to gerrymander districts to ensure safe seats. President Obama's acceptance speech welcomed these shifts, and I hope that the post-election developments will as well.
November 6, 2012
Iron Dust and Dual-Use Research of Concern - "Rogue" Experiments and the Law
Several weeks ago, the New York Times reported that a California businessman loaded a fishing boat with 100 tons of iron dust and dumped it into the Pacific Ocean off of western Canada, in a rogue ecological experiment purportedly designed to stimulate the recovery of a local salmon fishery for the native Haida people. The experiment was privately funded by a native Canadian group, and sparked outrage in the scientific community because of the possible ill effects this dumping could have on the environment and the lack of government or international scientific oversight for the experiment.
Although this experiment has no direct relationship to health-care law, the problem of privately funded experiments that could have endanger as well as benefit the public health (known as "dual-use research of concern") exists in spades in the health-care world. Last winter, there was controversy about two experiments that were done on bird flu virus, which ultimately transformed the virus into one that was more easily transmissible between mammals through the air than the "wild" bird flu virus. When the two teams of scientists that performed these experiments sought to publish their studies in scientific journals, controversy ensued when the Natioanl Science Advisory Board for Biosecurity (NSABB) initially recommended that the research be redacted before publication, to ensure that a bioterrorist or unscrupulous hostile government could not duplicate the experiments and produce a potent and deadly biological weapon. The brouhaha died away after the NSABB reversed itself, and the studies were published in full, so far without incident.
But what if the research was truly a road map for a bioterrorist, and had not been publicly funded? What if somebody like the native Canadian group in the iron dust experiment decided to privately fund a "rogue" scientist to produce a dangerous pathogen, who then sought to publish the research? Would the government or the international scientific community have any ability to stop the publication? The closest we have come to this problem was in the case of United States v. The Progressive, Inc., where an amateur physicist cobbled together a "how to" manual on building a hydrogen bomb from publicly available sources. He gave the article to The Progressive magazine, whose editor decided that dealing with the government prior to publication would be better than dealing with the consequences afterwards, and notified the Department of Energy of the article prior to publication. What ensued was a courtroom drama, with the government seeking a prior restraint against the magazine, and the magazine receiving a megaton (pun intended) of publicity and a likely trip to the United States Supreme Court. However, it all became moot when another author disclosed similar data in a letter published in numerous newspapers, and the legal issue was never resolved.
My current research focuses on the problem of dual-use research of concern in the public health arena, the dangers of privatizing such research, and the inadequacy of our current legal tools to deal with such a situation. The iron dust ecological experiment may be an unfortunate harbinger of things to come in the public health arena, should we continue down the path of cutting government spending on research and farming out important scientific work to private and commercial interests.
Cross-Posted on Healthy Interests