The Broccoli Possibility

The United States Supreme Court, the highest c...
The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

Who knew that broccoli, cell phones, burial insurance, electric cars, blue eyes, exercise, epidemics, wife beating, and hunting licenses were all related to the Affordable Care Act (ACA)? According to our nine Supreme Court Justices—well—according to eight of the nine justices (Justice Thomas as usual said nothing on the topic)—they are related. It’s not every day that the typical US citizen can listen in on Supreme Court hearings. I wasn’t there in person, but yesterday I read through the 130 pages of typed transcript of Day 2 of the hearings on the constitutionality of President Obama’s health care overhaul law. It made for surprisingly fascinating reading. Although at the end of it I am dismayed at the types of things the Justices’ said.

For example, Justice Scalia, the most talkative Justice in the transcripts—was responsible for Justice Breyer later dubbed “the broccoli possibility.” This is Scalia’s slippery slope argument, where he asked the Justice Department’s Verrilli what would keep the federal government from requiring all US citizens to buy and eat broccoli if the ACA individual mandate for health care coverage is instituted. Since Justice Scalia looks a whole lot like Danny DeVito and is vocal in his abhorrence of broccoli (and exercise), this analogy was not surprising. It is surprising how many more times it was invoked throughout the day’s proceedings—at least eight more times by various justices and by Verrilli, who at one point stated (I imagine in a fairly frustrated voice), “Broccoli is not the means of payment for anything else,”—thus trying to end the analogy of broccoli to health insurance.

There was a brief but very disturbing interchange between Justice Scalia and Solicitor General Donald Verrilli. Mr. Verrilli was talking about the US social norm of providing health care to people regardless of their ability to pay—as backing for the US federal laws requiring hospital emergency departments to treat patients regardless of health insurance status or other payment sources. Justice Scalia interjected, “Well don’t obligate yourself. Why, you know?” Mr. Verrilli attempted to reply that it was a deeply held social value of most Americans, that’s why, but Justice Scalia cut him off. Is health care in the US a right or a privilege? It would seem that Justice Scalia believes it is a privilege.

It is fascinating to remember that when the individual mandate for health insurance was first being debated in Congress three years ago, conservative Republicans (including current Presidential candidate Mitt Romney) were its staunchest proponents —touting it as the responsible thing to do and as a way to stop the freeloading bums from getting health care at the expense of everyone else. (see “Academic Built Case for Mandate in Health Care Law” by Catherine Rampell, NYT 3-29-12). Now that the individual mandate is part of the ACA approved by Congress and signed into law by President Obama—and because it is a Presidential election year—conservative Republicans are complaining loudly about how the individual mandate is unconstitutional. And 26 states (most all conservative states with Republican governors) have challenged the constitutionality of the ACA and convinced a conservative-majority Supreme Court to decide on the issue. This seems to me to be the biggest broccoli possibility of all—to have the US Supreme Court potentially dismantling a much needed if imperfect health care reform.

Of cheese, erectile dysfunction, and health reform

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And jewelry.

Those were the main take-away messages of yesterday’s nurse practitioner conference at the Washington State Convention Center. There was a lot of mention of the role of nutrition in health, and of individual responsibility for health in some of the sessions I attended—and in the booths at the vendor section. I saw very few obese attendants at this conference—are nurse practitioners skinner on average than their RN counterparts, and if so, why?

The Washington State Dairy Association had free cheese sticks and food pyramids or food Great Walls of China, or whatever architectural wonders they are using now to rank food groups. At a session on health care reform, the speaker spent a lot of time talking about the nutritional content of ‘fast foods’—the winner of the junk-food hall of fame seems to be Baskin Robbins’ Oreo Milkshake at a gazillion calories. As if that is the cause of the dismal health outcomes in our country.

This was at a workshop session by Louise Kaplan, a nurse practitioner who has her doctorate in health policy. She is past president of the Washington State Nurses Association, founder of the first Washington State Nurse Lobby Day in 1984 (in serious need of reform itself–see previous blog post The Nurse Lobby Day That Wasn’t–Feb 15th, 2011), and currently is a Senior Policy Fellow at the American Nurses Association. Besides the information on the Oreo Milkshake, she said we didn’t have health care reform, we had health insurance reform. This statement got applause from the audience, but not from me. This is a profound statement? This is news to anyone? And health insurance in the US is not a significant part of our health care system?

After her talk I asked her if the ANA was looking at reform of the health professions regulatory system in the US. She asked me what I see as the problem with this system—what is in need of reform. I told her in 20 words or less—including that it is not effective in protecting the health of the public, that it drives up health care costs and worsens health inequities. She replied that it was up to each individual state to regulate health professions, and that the ANA would have nothing to say about that—only what the IOM Future of Nursing Report recommended in terms of a consensus on scope of practice for nurses and nurse practitioners. Her response did not surprise me, but I was disappointed in the stock reply.

I loved the vendor area because it was so informative about the role of nurse practitioners in our health care system. Somehow it felt like reading People Magazine—as Paul Farmer says, it is a cultural touchstone. There were many of the major drug company’s represented, including Lilly’s erectile dysfunction “weekend pill” that seemed popular among the ladies. The Washington State Nursing Quality Care Commission had a booth that included a 10-question survey on knowledge of the role/responsibilities of the Commission. There were many booths for local educational programs for nurses, as well as Seattle-area employment agencies/hospitals—and farther afield employment opportunities—the US Navy, the Federal Prisons, Alaska Native American clinics.

But what astounded me was that the most popular booth in the vendor area was a jewelry store. Not fine jewelry, not jewelry for a cause—like for healthcare in Haiti—just glitzy, glittery costume jewelry. Really? There are some things about nursing I am convinced I will never understand.