Sunday, July 1, 2012

Supreme Court Upholds Obamacare: There's Order in the Court

President Obama enjoyed a towering victory days ago that I feel leaves the GOP reeling, although they are spinning the Supreme Court’s validation of Obamacare as a great gust of wind at their backs. While I would not have expected a different response from them, I fear that there is a developing wind that may blow them away in November. I offer this analysis as a tepid Romney supporter who will be voting more against Obama than I will be voting to support Romney.

The phrase Obamacare is peppered throughout this blog. I was recently chastised by an unabashed whale-saving tree hugger that I should abandon this derisive term which detracts from my otherwise unvarnished objectivity. On the evening that the Supreme Court's decision was announced, I was watching CNN and its pontificating pundits. Various panelists were spewing forth verbal pabulum telling us benighted listeners what we were supposed to think. John King, the moderator, and many members of the spin squad all used the term Obamacare freely and repeatedly. If CNN, the apotheosis of journalistic excellence, permits this term to be aired, then surely the Whistleblower is entitled to a free pass on this. For those who seek validation of why CNN is the ‘most trusted name in news’, simply zap this link for amusement. Because I am unfailingly fair and balanced, I disclose that Fox News was also eating crow.

We now know that Obamacare is constitutional which offers no support for the merits of the Affordable Care Act. While there are elements of the plan that I do support, I am deeply skeptical that the plan will control costs and increase medical quality. My fear is that medical costs will continue to escalate and that medical quality will suffer as physicians and hospitals compete in the Pay for Performance Follies where medical documentation and check mark medicine, not medical quality, is rewarded. Is the price for increased access to medical care for the uninsured medical mediocrity for all?

Here are just a few aspects of medical practice that won’t be counted but really counts.

  • Can the physician take an accurate medical history?
  • Can the physician skillfully examine patients? I’m a gastroenterologist. I’m supposed to know how to palpate the liver and perform other diagnostic tasks with my hands, eyes and ears. These skills will never be assessed by the government or insurance companies. Does that  that they don’t matter?
  • Does the physician know when a diagnostic test is not needed? (Tell me how you would test for this?)
  • Does a physician know when an incidental ‘abnormality’ on a CAT scan can be ignored?
  • Does a physician know how to deliver bad news to patients?
  • Does a physician know when watchful waiting is the right prescription?
  • Does the physician know how to manage medical issues on the phone at night when he does not know the patient? Which of them should be sent to the emergency room?  Why not send them all just to be safe? 
  • Does the physician know when to consult a specialist? Is sending every patient with chest pain to a cardiologist good medicine even if patients and specialists encourage this practice.
  • Is this physician compassionate?
A majority of Americans oppose Obamacare in whole or in part. This opposition has developed even before the plan’s bitter medicine has been swallowed. Can the administration continue to spin this by suggesting that the public doesn't yet grasp the plan?  Are we really that dumb?
Chief Justice John Roberts has pulverized the liberal argument that the Court is an arm of the Republican Party, as was bitterly alleged in Bush v Gore in 2000. While public support of the Court has been gradually ebbing, I have not personally believed that the justices pass their decisions through a political prism. Of course, they have different judicial philosophies, which is quite different from acting as a political partisan. Not only did the Chief Justice validate Obamacare, but he did so by joining the Court’s 4 liberal members to do so. I would have never predicted this and I doubt that many readers what have either. Chief Justice Roberts has the long view, and sees the Affordable Care Act as a speed bump. His overriding priority is to protect and defend the integrity of his institution. I feel that he deserves praise and respect for his decision, even though I was hoping for a different outcome. Had he joined with the Court’s conservative members and overturned Obamacare, he would have been lambasted by the political left. Why aren’t they praising him now? Wouldn’t such a response from them be' fair and balanced'?

Fairness means applying the same standard in all circumstances.  Reminds me of the the iconic four word phrase carved into the facade of the Supreme Court.  Equal Justice Under Law.


  1. Yesterday, I had to document why I'm not performing a Pap smear on my 104 year-old female patient admitted with acute myocardial infarction. According to Maryland Law SB59, all female patients >18yo must be offered this exam; if not performed, it must be documented why on a special form that is included in every chart (along with 800 other forms that must be signed). You say "medical documentation and check mark medicine, not medical quality, is rewarded." That's an understatement. It has become utter insanity. But that's what happens when non-scientists (ie lawyers and businessmen) or, as I like to call them, "non-rational thinkers," are the architects of medical policy.

  2. Didn't realize how enlightened Maryland is. This is a stellar example of 'pay for performance' when we are rewarded for practicing (and documenting) quality medicine. Pass the zofran please!

  3. The political left is not "fair and balanced" because you claim their response to a favorable ruling is not comparable to what you imagine their response would be to an event that will never happen?


  4. To the above anonymous commenter, do you really feel that if Justice Roberts had sided with the 4 dissenters and overturned Obamacare that the left wouldn't have been outraged and accused the court of acting political? I certainly do. Justice Roberts has now permanently disarmed this argument.

  5. What is really awesome about the Maryland law is that PAP smears are now not even recommended until age 21 according to American College of OB/GYNs and can be tapered off after age 60 for most women. So the law requires you to prove why you have not done that which is nor recommended.