Mike Magee
This is Session III of the “The ‘Right’ to Health Care in America and the U.S. Constitution.” The title of Session III is “The Public Square.” As I emphasized in our first two sessions, the debate over health care broke into the public sphere long ago. It was disguised often as a means to an end – as we will see in our final two sessions with strategies to maintain gender inequality, or subjugate populations using eugenic theory, or promote religious paternalism and grow birth rates, or suggest that we were slipping into dangerous socialistic territory.
Health care has been burdened with “carriers” since the very beginning, used as a weapon in the battle for the maintenance of states rights and legalized inequality and prejudice. But in the modern era, fueled by social media, globalization, high-speed travel, and low cost activism, transparency and distrust in the integrity of information has risen and challenged each other in tandem.
It is appropriate then to begin this week’s session with a simple question. “What is health?” As we saw in Session II, in 1948 Eleanor Roosevelt defined health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” She also made clear at the time that each of us, as responsible citizens, bore a level of personal responsibility for our own health. By virtue of the choices we make, and the behaviors we exhibit, we raise or lower the chances of being “healthy.”
This is because many of the determinants of health reside at home – our nutrition, sanitation, the quality of our air and soil and water, opportunities for education and exercise, are all, to varying degrees depending on our circumstances, centered in the home. Obviously, inequality abounds, and is compounded by location, resources, prejudice and inequities. Our access to providers, institutions of care, modern medicines and technology, and health education are highly variable, and made worse in America by the lack of a national health plan or strategy to manage emergencies like Covid-19.
One of the first global leaders to identify and describe the two faces of health was a woman physician from Norway. She was born on April 20, 1939 in Oslo, the daughter of a physician and politician. She received her Medical Degree from the University of Oslo and went on to earn a Masters in Public Health at Harvard. She served three separate terms as Norway’s Prime Minister, never having fewer than 8 women in her 18-member cabinet. Her name is Gro Brundtland.
In 1983, she served as chair of the UN World Commission on Environment and Development, and introduced the term “sustainable development” at the first Earth Summit. She resigned her post as Norway’s Prime Minister in 1996, and two years later was confirmed as director general of the World Health Organization (WHO).
In one of her first WHO directives in 1998, she took on the definition of health which she defined as “part goodness and part fairness.” She went on to explain – “Goodness in the sense that our professionals are well trained and qualified; our institutions well outfitted and safe; our processes engineered to perfection; our teamwork a reflection of training and excellent communication.”
“Fairness in the sense that these skills and capabilities are fairly and equitably distributed to the broadest population possible.”
Two years earlier, Catholic Cardinal Joseph Bernardin of Chicago addressed the Annual Meeting of the American Medical Association, and mined the same territory when he said, “There are four words in the English language that have common English roots. They are heal, health, whole, and holy. To heal in the modern world, you must provide health. But to provide health, you must keep the individual, the family, the community and society whole. And if you can do all that, that is a holy thing.”
As the Earth and its inhabitants entered the new millennium, it was clear that the delivery of health care – whether local, national or global – was a complex human endeavor. Even if you declared it a “universal right” as the UN and the WHO did, you would still need responsive programs, trained professionals, equal access, continuity of care, funding, compassion, understanding, and partnership. And even these would not be enough without forward planning, anticipation, scientific discovery and reliable funding.
When the Covid-19 pandemic hit, it rapidly revealed the cost of lack of planning, investment and capacity. Specifically, the complex supply chain, including materials, human capital, and science failed. More alarming than these however was the damage and confusion that flowed directly from flawed leadership at the top. What Trump revealed was that trust, truth, and integrity were critical elements when it came to health delivery.
Weaknesses in this regard have been with us since the birth of this nation. But they have never quite been called out with such penetrating clarity as they were by Rev. Martin Luther King Jr., when he addressed the crowd at the Poor People’s Campaign on March 25, 1966, and said, “Of all the forms of inequality, injustice in health care is the most shocking and inhumane.” At the time, President Lyndon Baines Johnson was struggling to make real his “Great Society.” The three-prong program included implementation of The Civil Rights Act, The War on Poverty, and Medicare. The final initiative came loaded with historic baggage.
As we have seen, health delivery in the United States has been historically encumbered. To illustrate the point, let’s look at two cases. Case #1 is the AMA and “Socialized Medicine”, and Case #2 is the Deep South and hospital ward segregation.
When the American Medical Association decided to go “all in” in the 1950’s to oppose implementation of a national health care system, they had a secret weapon – a B-movie actor named Ronald Reagan.
The AMA had been fighting the threat of government intervention in health care for some time. In 1936, they managed to join arms with conservative corporate leaders, and a Supreme Court packed with aging traditionalists, and trim back FDR’s New Deal ambitions. In the end, the popular President voluntarily catapulted his national health plan to save his signature legislation, the Social Security Act.
When he returned to his plan in 1944 as part of his “Second Bill of Rights,” declaring the “Necessitous men are not free men”, the AMA was on high alert. Would they have succeeded again had FDR lived? We’ll never know. What we do know is that the AMA locked arms with the Pharmaceutical Manufacturers Association (PMA) and branded FDR’s successor, President Harry Truman as a “supporter of socialized medicine” so effectively that Truman was forced to trim his own sails when it came to health care.
But the factors that created a need for expanded health services only grew. Between 1950 and 1963, the numbers of Americans over 65 had grown from 12 million (8.1 percent of the population) to 17.5 million (9.4 percent of the population). The cost of hospital care in the early 1960s was accelerating at a 7 percent annual clip. Insurance premiums were on the rise, with insurance brokers struggling to bring on new enrollees. The number of covered individuals had stalled at about 50 percent, and the coverage was anything but comprehensive. As veterans of WW II and their parents aged, and as the burden of chronic diseases from cigarettes, alcoholism, environmental degradation, and unsafe practices only expanded, Democrats united to push health care legislation forward.
The AMA, PMA, and Republican leadership saw this slow moving train inching closer day by day, and settled on a strategy. Fear of Communism and Nuclear War were potent forces in 1950 politics, especially as the 1960 Presidential election approached. Their greatest concern was the youthful and telegenic future president, John F. Kennedy, who was remarkably capable as a communicator on the ever-expanding medium of broadcast television.
The challenge for the AMA was not the messaging. That had been tested and retested over the decades, and had proven to be politically effective. But to be successful they needed a messenger. But how did Ronald Reagan transform himself from failing movie actor who had married his second wife, Nancy Davis on March 2, 1952, to successful national politician, and who introduced him to the AMA?
The “trusted spokesperson” recruited in 1961 had already made the transition to corporate spokesman, and was the son-in-law of an archconservative physician and Chicago-based AMA bigwig named Loyal Davis, his second wife, Nancy’s father.
Ronald Reagan, had gained some policy experience as president of the Screen Actors Guild, but his true education in these matters came from Lemuel Boulware, who had served as Roosevelt’s operations vice chairman of the War Productions Board, then moved on to one of the military’s largest suppliers, General Electric.
Boulware had a philosophy of “going over the heads” of union leaders. Instead of confrontation, he employed comprehensive, ongoing communications and economic education directed not only at workers at all levels in his organization but also at their spouses and families.
Boulware had fostered newsletters, symposia, book clubs, and courses that included a heavy dose of basic conservative economics, but they also touched on entrepreneurship, management philosophy, investment, retirement, health, and family education. Sprinkled in reliably were messages reinforcing that high taxes and government regulation, meddlesome bureaucracy and outside agitation against free market practices, were just not the American way.
The new medium of television was becoming a factor in American life, and another of Boulware’s bright ideas was to launch a new TV show called General Electric Theater. He turned to Ronald Reagan to host the weekly dramatic series and appear in some of the episodes, as well as to be a goodwill ambassador for the company.
Over the next eight years, Reagan visited and addressed more than 250,000 GE employees and customers at 139 different GE sites. He read and absorbed the unique Boulware reading list, debated the various views of leading conservative economic thinkers, and observed the workings of senior management in one of the largest and most successful corporations in the world. He also consulted with hundreds of GE lobbyists and public relations professionals, and met most of the important political figures of the day.
In 1961, the AMA began to plan a “military style” assault on proposed governmental health insurance, the first aspect of which, titled Operation Hometown, enlisted local medical societies and their physician members to write letters, but also to distribute a range of other print materials, study guides, and high school debate toolkits, throughout their communities to address the grave threat of socialized medicine. Major radio, television, and print advertising would augment and energize these efforts.
The second arm of the campaign, which the AMA called Operation Coffee Cup, involved using the Woman’s Auxiliary and its network to orchestrate thousands of home-based gatherings, or “coffee klatches,” as they were called, to advance goals revealed only after the participants had been gathered. As for the question “How do we get them there?” the hook was self-evident: A package for each participant included a 78 rpm vinyl record whose cover featured the glamorous movie star, with the name Ronald Reagan in bold, capital red letters, followed in black script by “speaks out against SOCIALIZED MEDICINE.”
The record was an 11-minute condensed version of the pro-business, pro-American, anti-communist speech Reagan had been giving for GE employees for almost a decade, only now with a special focus on how Medicare would be the death knell for American civilization.
On the record, in his most reassuring tones, Reagan said, “The doctor begins to lose freedom. . . First you decide that the doctor can have so many patients. They are equally divided among the various doctors by the government. But then doctors aren’t equally divided geographically. So a doctor decides he wants to practice in one town, and the government has to say to him, you can’t live in that town. They already have enough doctors. You have to go someplace else. And from here it’s only a short step to dictating where he (your son) will go.”
It is fair to ask at this point, what exactly was the AMA afraid of? Certainly financial self-interest sits at the top of the list. The organization was quite sure that a federally funded national plan would by necessity set prices for hospitals and doctors, and that these payments would substantially erode their current incomes. But to be fair, they also had other real concerns. These included parochial politics (most doctors leaned Republican and conservative), fear of intrusion into patient-physician relationships and decision making, fear of health care rationing as a cost-control mechanism, and under-funding of future scientific discovery and innovation.
In the end, the AMA failed to prevent the passage of Medicare following JFK’s assassination. As for Reagan, he took his GE speech and delivered it, on behalf of the 1964 Presidential candidate Barry Goldwater, on October 27, 1964. Goldwater, of course lost big, garnering just 39% of the popular vote and 52 electoral votes. But Reagan had successfully launched his political career and 16 years later would assume the Presidency itself. As for the AMA that had actively supported Goldwater, they had “egg on their face”, and all but capitulated to LBJ as he made Medicare “a martyr’s cause” following the death of Kennedy. This three prong political avalanche included LBJ’s “War on Poverty”, the 1964 Civil Rights Act and Medicare.
Which brings us to case two – the desegregation of Southern hospitals all-Black patient wards. Arguably Lyndon Baines Johnson was one of the most skillful politicians to ever serve as President of the United States. He brought to the job, years of state and federal legislative experience, and a physically intimidating personal style defined by his acquiescing opponents as “The Full Lyndon.” Leaning in, cojoling, threatening, enticing – he would almost always have his way.
In 1965, new AMA President John Appel, M.D. learned this first hand on a visit to the Oval Office. LBJ started out with his promise of Medicare non-interference in the practice of medicine. He then asked for the AMA’s help in treating injured Vietnamese children, and of course Appel pledged their support. Quickly pivoting, he called in the press, and they immediately asked Appel if they AMA would support Medicare. Before he could answer, LBJ interrupted saying, “These men are going to get doctors to go to Vietnam where they might get killed. . . . Medicare is the law of the land. Of course they’ll support the law of the land. Tell him, you tell him,” he said, pointing directly at the AMA leader. Appel had no choice but to confirm their support, stating modestly, “We are, after all, law abiding citizens.”
Medicare was signed into law on July 30, 1965 in Harry Truman’s hometown. However, as Johnson flew back to Washington, he knew that the success of Medicare was by no means assured. He had given President Truman the first Medicare card, but now, 19 million other potential recipients needed to be enrolled. The administration had only 11 months before the program would go live, and the scope of the communications and public education challenge was unprecedented, with doctors threatening to boycott the program, and Southern states threatening to resist it.
In the 1960s, hospitals throughout the South still maintained segregated restrooms and segregated floors and wards designed to separate black and white populations. The passage of the Civil Rights Act in July 1964 had sent a clear warning: Title VI of the bill stated, “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, denied benefits of, or be subject to discrimination under any program receiving federal assistance.”
After formal review, the Justice Department informed the Senate that the new hospital insurance program would indeed be subject to the requirements of Title VI. As a result, all hospitals, in order to qualify for federal Medicare certification, would have to prove that they were no longer segregating patients. Johnson took no chances, deploying 1,000 federal inspectors across the country to ensure that the letter of the law was being implemented. Even with this, 10 months after Medicare had been signed into law, and a month or two before the launch date, half the hospitals inspected in 12 Southern states were still noncompliant.
Johnson called a special cabinet meeting and leaned on Vice President Hubert Humphrey to head south and communicate directly with every mayor in the noncompliant Southern cities and simply, one way or another, get the job done.
By May 23, 1966, all hospitals were compliant except in Alabama, Louisiana, Mississippi, and South Carolina. By July, they were clearly heading in the right direction, though 320 hospitals had not yet completed the conversions. Though some would still lag behind on the day Medicare went live on July 1, 1966, all would soon comply.
Clearly, progress in health care meant dismantling all the historic “riders” it had gathered along the way. Other countries had found an easier path. For example, in 1965, Canada enacted its own “Medicare”. In contrast, it was federally funded but managed and budgeted by each province, and it covered all Canadian citizens, not just those over 65. The UN as well continued to work diligently, producing in 1966 the “International Covenant on Economic, Social, and Cultural Rights (CESCR). Article 12 in the document reads, “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” 174 nations ratified the document. One did not – the United States. Why not?
To answer that question, let’s turn to the academics for answers.
Professor Jefferson Cowie, noted historian from Vanderbuilt University states, “Regional politics is still defined by a resistance to federal authority. If the federal government can run any aspect of regional culture or politics, the logic goes, then they can run it all. This has been a concern on just about everything since Reconstruction, including lynch law, fair employment practices, the Brown Decision, busing, prayer in schools, and abortion. This issue runs deep…This is the remnants of the Lost Cause still blowing in the political winds.”
Professor and Dean Rachel Rebouche at Temple Law School echoes the same theme with a slightly different tone. She says, “Abortion, along with sex control, gender identities, and patriarchy are a set of very strong themes that developed alongside private schools, with their ability to shape views of religion, sex, culture, and race. . . Where I see synergies are conservative politics aligning with ideas about sex, sexuality, religion, family.”
Finally, there is Dartmouth’s Professor of Religion, Randall Balmer, who wrote, “The reality in the 1970s was that the surging rights movement— rights for African Americans, women’s rights, reproductive rights, gay rights, rights for criminal defendants and for the mentally ill — had set the stage for what would become an explosive conservative reaction, a reaction that by the 1980 elections put Ronald Reagan in the White House for eight years.”
Religion as a “rider” encumbering health care had been a dominant American theme since the end of the 19th century. Witness this snippet from a Catholic priest’s sermon in 1910: “The house of the guilty couple is a haunted house…It is haunted by the spirits of children that might have been, but were not allowed to be. These spirits will stand before the guilty couple on the dreadful day of Judgment.”
In the early part of the century, women were expected by their pastors to comply, no questions asked and consequences be damned. Thus we have the words of Msgr. John A. Ryan in 1919 who said “A wife may not consent (to a condom using husband’s advances) even under duress, but is obliged to offer the same resistance that a virgin would offer to rape.”
What were the motives of these religious leaders? Well, at least for the Monsignor, they were clear. After viewing that U.S. birth rates at the onset of the Great Depression had dropped below replacement rates, he publically stated “The trend of our Catholic population is toward extinction.”
At around the same time, many of the congregations were liberalizing their approach to contraception, especially within marriages. These included Universalist General Convention, The American Unitarian Convention, The Methodist Episcopal Church, and The Central Conference of American Rabbis.
One denomination that did not was the Roman Catholic Church. Their Pontiff, Pope Pius XI, who had assumed power in 1922 and was also named the first Sovereign of Vatican City, released the Papal Encyclical, Casti Cannubii (Chaste Wedlock) in 1930. A complex pronouncement with a stamp of “infallibility”, it challenged the entire Eugenics movement where others remained mute. But it also doubled down on contraception. Pope Pius XI declared that contraception was inherently evil and any spouse practicing any act of contraception “violates the law of God and nature” and was “stained by a great and mortal flaw.”
After 1940, the Catholic Church owned contraception. They carefully tracked the science and reviewed with some alarm research that was now carefully pinpointing a woman’s menstrual cycle including days of fertility, and variations in estrogen and progesterone hormone levels. They could see a medical treatment to avoid pregnancy just around the corner, and engaged their community in coming up with a “natural” alternative.
The solution they settled on was a highly unreliable method of avoidance they termed “The Rhythm Method.” It involved daily temperatures to identify days in the monthly cycle when you were fertile, and avoidance of intercourse on those days. In support of knowledge and message distribution, they employed the voluntary aid of Catholic hospitals and Catholic doctors who would be guest speakers once a week at gatherings organized by local pastors.
The marketing manual to support the program was called “The Basic Cana Manual” named after the New Testament wedding feast where Jesus performed his first miracle, changing water to wine. The modern day magic was left up to Catholic doctors whose miracle involved convincing healthy young couples that this deeply flawed approach to family planning was a good idea.
Many Catholic doctors complied, and on page 94 of the manual were instructed, “The doctor’s role on the Pre-Cana team is to add his authority, personal and professional, to the teachings of the Church. Speaking with warmth and concern, and yet with a degree of clinical detachment, he can properly take up some areas that priests or layman can avoid. Secondly, his prestige, though often over-rated, can be used to advantage… Finally the doctor can authoritatively counteract many of the popular pseudo-scientific ideas about sex that are gaining currency.”
In retrospect, this attempt to control women’s health and reproductive decisions was doomed by two factors. First, the rhythm method was historically unreliable. Secondly, Margaret Sanger was still alive and tuned into reproductive science. As important, her lifelong friend and heir to the International Harvester fortune, Katherine Dexter McCormick, was more than willing to fund the effort to produce an effective oral contraceptive.
Its’ emergence, the research and associated controversy, is a story for another day. Suffice it to say that the FDA’s approval of the first ever contraceptive pill, Enovid, on June 23, 1960, changed everything except one – opposition to reliable and effective contraception, and soon to come legalized abortion. These remained the province of only one religion – Roman Catholicism. That is until 1973.
That was the year that a relatively unknown aide to a Colorado Congressman approached uber-conservative businessman, Joe Coors, a Denver based beer mogul, with the idea of launching an activist think tank to support their treasured “traditional American values.” His name was Paul Weyrich, and the organization became the Heritage Foundation. An avowed Evangelical Christian activist, Weyrich’s priority number one for the new organization was to identify and promote an issue that would galvanize support and ignite national activism for the right political candidates running for local, state, and national office.
An obvious early candidate, one might think, was the recently decided case of Roe v. Wade that legalized abortion under certain circumstances nationwide. More on that decision in a moment. But the reality was that, at the time of its passage, the reaction was muted. In fact, the powerful Southern Baptist Convention, and the Christian Medical Society, both powerhouses for evangelicals in the Deep South, initially refused to oppose Roe v. Wade, and re-endorsed that decision in 1974 and 1976 as a reasoned compromise that left decision making in the hands of women and their doctors on the local level. The Southern Baptist Convention’s views on abortion were part of its long-standing support for the separation of church and state, and Baptist medical communities largely opposed the idea of churches and their pastors wading into delicate health care issues.
So over the next five years, Weyrich tested a range of other issues – from golden oldies like Comstock’s “dirty books”, to opposition to gay rights led by high-profile beauty queen Anita Bryant, to the rather vague threat of galloping socialism. But nothing quite took hold. What was galling to Weyrich was that the real galvanizing issue – preservation of a segregated southern schools – could no longer to be shouted from the rooftops.
The seminal case winding its way up to the Supreme Court, would eventually be decided in 1983. It was Bob Jones University v. United States 461 U.S. 574. The university’s namesake and founder had been an early-20th-century evangelist with such Bible-pounding zeal that he was said to have at least once shattered a pulpit. What really engaged his fervor, though, was the trend of children raised in the church going off to college and losing their faith. So in 1927, shortly after the Scopes “Monkey” Trial, in which William Jennings Bryan defended the “literal truth” of the Bible against Clarence Darrow’s defense of Darwin and science, Jones founded the institution of higher learning that bears his name.
Twenty years on, he bequeathed to Bob Jones Jr., his son, the Greenville, South Carolina school, which, until 1971, would continue to exclude black students from the non-profit. When at last it relented under federal pressure, it still required that black students be married to attend the school. After 1975, it opened the door to single blacks as well, but still prohibited interracial marriage and dating. This relative “enlightenment” was still not enough for the IRS, which on January 19, 1976, rescinded the university’s tax-exempt status for failure to comply with federal civil rights regulations
In the hands of Paul Weyrich, this dispute over taxes and compliance with laws banning racial and gender discrimination would ultimately become not only a David-versus-Goliath battle, but a direct attack on Christian teachings. The Supreme Court ultimately ruled against Bob Jones and its racial policies on May 24, 1983. By then, lily-white “Christian academies” had proliferated throughout the former Confederacy, all of which now felt threatened. Their health curricula were already infused with bans on contraceptive information and abstinence-only values education.
All this was of little value in 1976. A decision on the case was still six years away. Into the mix came two Christian media rock stars, the best of the bunch exploring a new rapidly growing brand of Christian conservatism – televangilism. Pat Robertson and Jerrry Falwell not only knew how to attract virtual parishioners, but also had mastered the fine points of direct mail fund raising. For Weyrich, he saw something else – votes.
Together the three began to strategize how best to build this voting block that they termed “The Moral Majority.” They claimed credit for electing fellow evangelical, Jimmy Carter, in 1976. But he proved a liberal disappoint, even refusing to pray with Billy Graham in the Oval Office. So within a year of Carter’s election, the threesome went in search for a galvanizing issue and a candidate for 1980.
The issue they returned to was abortion and its primary supporter Planned Parenthood. With some urging from political strategists, the Southern Baptist Convention made peace with the fact that this would require joining the other team (Catholics) and embracing an issue their competitor had owned for decades (women’s reproductive autonomy).
But the political opportunity was undeniable. As Dartmouth religion professor Randall Balmer noted, “Opposition to abortion became a convenient diversion — a godsend, really — to distract from what actually motivated the Moral Majority’s political activism: the defense of racial segregation in evangelical institutions.”
They had the issue. And when Bush Sr. refused to address the Evangelical National Affairs Briefing in the summer of 1980, and another candidate happily stepped forward and proclaimed from the podium “I know you can’t endorse me…but I want you to know I endorse you”, they had their candidate. His name was Ronald Reagan and he would serve their interests for the next eight years.
But that did not include a successful resolution for Bob Jones University. It lost its non-profit status after the Supreme Court affirmed that the IRS did indeed have the right to revoke this privilege based on violation of the Civil Rights Act of 1964. Three decades later, the university finally reversed its ban on inter-racial dating and in 2017 had its non-profit status reinstated.
As for Roe v. Wade and the women it serves, its status remains in jeopardy. In 1971, Texas was one of 46 states with highly restrictive abortion laws. Most prohibited all abortion except to save the life of a pregnant woman. Throughout most of the 1800s, abortion was legal in the United States until “quickening”, the moment when first movements of the fetus are felt by the mother. In the 1820s, some states raised concerns primarily about the use of harmful drugs and potions to induce abortion. The American Medical Association weighed in soon after its creation in 1846, opposing abortion which they felt was being promoted by competing homeopathic physicians and midwives. In 1869, the Catholic Church outlawed all abortions, and the Comstock laws added bans on contraceptive sales after 1873. By 1880, abortion was illegal across most of the growing nation.
Griswold v. Connecticut, in overturning the final Comstock law, opened a new era of activism when it came to women’s health autonomy. In 1970, Hawaii became the first state to legalize abortion for its state residents, and New York quickly followed, making it legal for any resident of any state. Alaska and Washington soon followed.
In 1969, Norma McCorvey, an impoverished Texas woman who had previously given birth twice to children she then put up for adoption, realized she was pregnant for a third time. Abortion was illegal in Texas except to save the life of the mother. When she sought an illegal abortion in the state, she was referred to two Texas attorneys, Linda Coffee and Sarah Weddington, who were abortion advocates in search of a client with standing to challenge the state’s law. Norma agreed to participate and was given the pseudonym “Jane Roe.”
Henry Wade was the district attorney of Dallas County where McCorvey lived. He was still somewhat known nationally as the attorney who had prosecuted Jack Ruby for the killing of Lee Harvey Oswald. When this case was brought forward in 1970, he was listed as the defendant. In June, 1970, the Texas district court ruled the state’s abortion law to be illegal because it violated a constitutional right to privacy citing Griswold v. Connecticut. At stake, they said were decisional autonomy and physical consequences.
The case worked its way up to the Supreme Court through various appeals. In the meantime, McGorvey gave birth, once again placing the child up for adoption. Still, she was granted “standing” by the court, which eventually ruled in favor of the plaintiff on January 22, 1973 in a 7-2 decision written by Justice Harry Blackmun citing privacy as a right protected by XIV Amendment Due Process.
The decision concluded:
1. A lengthy historical review of medical and legal views regarding abortion confirms that modern prohibitions on abortion were of relatively recent vintage.
2. The word “person” as used in the Due Process Clause (14th Amendment) did not include the unborn, and therefore the unborn lacked federal constitutional protection.
3. The “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action includes a right of personal privacy broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
4. The State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and … becomes ‘compelling.’
Expanding on this fourth point, Justice Blackmun presented a ruling tied to trimesters of the 9-month pregnancy.
First Trimester: The abortion decision must be left to the woman and the medical judgment of the pregnant woman’s attending physician;
Second Trimester: The State, in promoting its interest in the health of the mother, may regulate the abortion procedure in ways that are reasonably related to maternal health;
Third Trimester: The State may regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Another far less well known landmark Supreme Court case was also decided in 1973. The case was Frontiero v. Richardson, No.71-1694.(1973). The case was brought by Air Force lieutenant Sharon Frontiero against U.S. Attorney General Elliott Richardson. She joined the Air Force as a nurse in 1968 and was stationed at Maxwell Air Force Base in Montgomery, Alabama. One year later, she married a Huntingdon College student, Joseph Frontiero. At the time, dependent wives were automatically provided medical and dental insurance benefits. However, husbands had to meet certain financial need requirments to qualify as “defendant” on their enlisted military wives.
The Frontiero’s sued, claiming discrimination under the 5th Amendment’s Due Process Clause. They were represented by Joseph J. Levin Jr. of the Southern Poverty Law Center, who was assisted by future Supreme Court Justice, then attorney for the ACLU, Ruth Bader Ginsberg. In an 8 to 1 decision written by Justice William Brennan, the court declared that gender related discrimination in benefit eligibility violated the “due process” clause of the 14th Amendment. The victory proved to be partial. Specifically, only a minority of four Justices were willing to grant gender the same standing as race as an “inherently suspect legal classification and therefore subject to a strict scrutiny state.” Part of the issue at the time was that the controversial Equal Rights Amendment was in circulation seeking formal state ratification, and some the Justices feared entering into that political arena.
As for Roe v. Wade, challenges over the next half-century have been highly politicized and constant. In general, the court’s have upheld the remedy as laid out in 1973, while giving states the leeway to add 2nd trimester requirements like one or two day delays, ultrasounds, and discussion of alternatives to the procedure. Anti-abortion activists have camped out at sites, exposed patients to public scrutiny, and at times threatened and occasionally harmed providers.
Advancing technology and discovery has confirmed fetal heart beats at approximately six weeks of gestation. Greatly enhanced intra-uterine images of the growing fetus, expanded intra-uterine fetal surgery, and sophisticated Neonatal Intensive Care Units that miraculously save younger and younger newborns, all have colored perceptions of abortion in a new light. At the same time, safe and effective abortifacient medications like Plan B have been developed, and in many states made available without parental consent.
Along the way, Republican legislatures supported by Republican governors have continued to explore inherent weaknesses in the law that would allow them to enact anti-abortion legislation that would withstand Constitutional challenge. The latest attempt occurred in Texas in 2021. The prior law had prohibited surgical abortions after 20 weeks of gestation, and medicinal abortions after 10 weeks. Sonograms were required 24 hours before an abortion. And provision of information outlining risks, alternatives, and adoption assistance had to be provided.
The new Texas law, signed by Governor Greg Abbott, already reversed and then reinstated by two different District Court judges, outlaws all abortions after detection of a fetal heart beat (approximately 6 weeks); eliminates exceptions for rape and incest; empowers private citizens to make charges as potential plaintiffs and receive a $10,000 vigilante’s reward for supplanting the role normally played by the attorney general. Gov. Abbott offers no apology, stating, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion.”
Into the role of defendant has stepped Dr. Alain Braid, a San Antonio OB-GYN with nearly 50 years experience who is willingly challenging the new law by continuing to offer state residents abortion services.
At the same time, a Supreme Court, now dominated by conservative leaning judges following the death of Justice Ruth Bader Ginsburg, will soon hear a case from Mississippi. Since 1973, the Court has heard challenges from Alabama, Arkansas, Georgia, Kentucky, Louisiana, Montana, Missouri, Ohio, Oklahoma, South Carolina, Utah and Tennessee – all of which have been declared unconstitutional violations of Roe v. Wade.
The Mississippi challenge focuses on the 1st trimester ban on pre-viability abortion, and the 5th U.S. Court of Appeals negative ruling against the defendants based on their law creating a ban on abortions before the 15th week of gestation. Of interest, the case arrived on the Supreme Court Docket in the Fall of 2020, but was “declined to discuss” 17 times until after the recent death of Justice Ginsburg and her replacement by Justice Amy Coney Barrett. Request for “pre-viability bans” have been rejected a dozen times in the past three years.
By now it must be obvious that it is easy to get lost in the weeds when it comes to Constitutional law. For a moment then, it is useful to acknowledge that whether it is Anthony Comstock, Paul Weyrich, Greg Abbott or others, the denial of access to information, services and health treatments amounts to a loss independence, autonomy and self-determination. And as we’ll see in the next case, intrusion into the realm of health can be as severe a disrupter at the end of life as it is at the moment of life’s conception.
Thus far, we have touched on seven legal cases and statues in our exploration of “rights” and health care in America. Here is number eight – The Terri Schiavo – Right to Die case.
Theresa Marie Schindler was born in a Philadelphia suburb on December 3, 1963. She and her bother Richard and sister Suzanne attended local schools. Terri struggled with weight and had an eating disorder. By the time she attended Bucks County Community College, she had lost 100 pounds, and met fellow student Michael Schiavo in 1982. They were married two years later, and moved to Florida in 1986, in part to be closer to Terri’s parents. Her husband Michael was a restaurant manager and Terri worked for an insurance company.
Terri apparently continued to struggle with her eating disorder, a condition left undiscovered when she sought evaluation for infertility. On February 25, 1990, she collapsed in the lobby of their apartment in St. Petersburg, Florida. Her husband discovered her face down and unconscious, and called 911. She was resuscitated and intubated by paramedics.
On admission to the local hospital, Humana Northside, she was determined to have had a cardiac arrest brought on by a cardiac arrhythmia caused by hypokalemia with a blood potassium of 2.0 mEq’L (normal 3.5 – 5.0 mEq/L).
Her condition stabilized, but her mental status never improved. She had no “Living Will” or Advanced Directive. Michael received a court order making him legal guardian and director of future medical decisions related to his wife on June 18, 1990. After thorough examinations and diagnostic studies directed by specialists, two physicians independently declared her in a “permanent vegetative state.” A gastric feeding tube was surgically placed to provide regular nutritional feedings.
During the initial year or two after Terri’s arrest, her parents and husband maintained cordial relationships. They initially supported intense rehabilitation. Nine months after the injury, Michael accompanied his wife to the University of California in San Francisco, for three months of experimental nerve stimulation treatments. She showed no improvement, and when they returned, Michael admitted her to a Rehabilitation Center in Bradenton, Florida, and subsequently to a Skilled Care facility.
In 1992, Michael Schiavo sued Terri’s gynecologist for missing a diagnosis of bulimia, claiming this error contributed to her cardiac arrest. He ultimately received $2.0 million in damages to cover injuries and cost of permanent care. There was disagreement at that time between Terri’s husband and her parents over legal guardianship and access to the funds. The parents wanted him to sign over legal guardianship and encouraged him to “go on with his life.” They also suggested some distribution of the court award to assist in the care of their daughter. Michael refused.
When she developed a urinary tract infection in mid-1993, he signed a Do Not Resussitate (DNR) order on her behalf.
By 1998, relations between Michael and his in-laws had further deteriorated. He refused their appeals to divorce their daughter and relinquish control. In May, 1998, Michael filed a petition to remove the feeding tube, providing some evidence that his wife would not have wanted to continue to live this way. The Court appointed a secondary legal guardian who agreed that Terri was in a “permanent vegetative state”, but that Michael, as inheritor of the remains of the legal settlement should his wife die, also had a conflict of interest. The legal advocate also noted that the parents were conflicted as well, and recommended not removing the tube.
The case went to Court and a decision to remove the tube was upheld in Florida Second District Court of Appeal in February 2000. After multiple legal maneuvers, the tube was finally removed on April 24, 2001. The Schindlers charged Michael Schiavo with perjury, and a judge ordered the tube reinserted 2 days later. The Schindlers claimed new treatments were now available, which triggered more experts, more testing, and more court dates. Finally, on September 17, 2003, a frustrated presiding Judge George Greer declared the actions of the Schindlers “an attempt to re-litigate the entire case”, and ordered the feeding tube to be removed for a second time, which it was on October 15, 2003.
By now, the case had entered the public reign, with the Schindlers joined by their son, Bobby, engaging anti-abortion Operation Rescue /Right to Life extremist Randall Terry in their campaign. The Republican Party offered their support as well. Still none would have predicted that the Florida legislature in emergency session would grant then Gov. Jeb Bush (filled with Presidential aspirations), the authority to intervene in the case. Citing the new “Terri’s Law”, Bush assumed authority for Terri’s medical decisions and ordered the feeding tube reinserted for a third time which it was. In the meantime the ACLU lined up with Terri’s husband. On May 5, 2004, “Terri’s Law” was declared unconstitutional.
Before a permanent solution was reached, the United States Congress held hearings on the case, and then President George W. Bush brokered a compromise transferring the case to Federal Courts. The Federal Court agreed with prior State Court Appeals. Terri Schiavo’s feeding tube was removed a final time on March 24, 2005. She died at a Pinellas Park hospice on March 31,2005.
The Republican party suffered two political casualties by injecting itself into the case. The first was the career of Senator Mel Martinez (R-FL). He was damaged irreparably when his top aide, Brian Darling’s memo in the middle of the controversy went public. Commenting on the case, it read, “This is an important moral issue, and the pro-life base will be excited…This is a great political issue, because Senator Nelson of Florida has already refused to become a co-sponsor and this is a tough issue for Democrats.”
A second casualty was the future political career of doctor turned politician, Senator Bill Frist, who had Presidential aspirations but couldn’t resist weighing in as a physician. Breaking an unspoken code of ethics for the profession, without every seeing the patient, he challenged the decision to remove Terri’s feeding tube, proclaiming on broadcast television, “I question it based on a review of the video footage which I spent an hour or so looking at last night in my office.”
Terri Schiavo’s father, Robert, died of heart failure on August 31, 2009. . His mother Mary, and her brother Bobby and sister Suzanne, went on to establish Terri Schiavo Life & Hope Network. Their guest of honor at their First Annual Fundraising Gala in 2013 was Sarah Palin who once again asserted that Advanced Directives and Living Wills were constructs designed to support “Death Panels.”
The case spanned 15 years, and was rejected by the Supreme Court for a hearing four times. Hijacked by political opportunists and Right-to-Life activists, it rode the poor health and disability of one unfortunate woman literally into her grave with devastating consequences for all concerned.
A similar destination awaited an unknowing Philadelphia teenager named Jesse Gelsinger. He was a patient of uber-researcher, James M. Wilson, who received a PhD and an MD degree from the University of Michigan, then completed an internal medicine residency at Massachusetts General Hospital and a postdoctoral fellowship at MIT. By 1997, Dr. Wilson was one of the leading stars in the new gene-therapy movement, directing his own research institute at the University of Pennsylvania. Will discuss his case next week in Session IV – Obamacare, the Pandemic, and Beyond.
So as we come to the close of Session III, let’s list the number of riders we’ve highlighted as we’ve examined case law that has touched directly on health care rights. These include early anti-Federealists focused on preserving states rights; segregationists who, until 1868, were able to deny “Due Process” to a large segment of our population, and who were forced to desegregate hospital wards to receive Medicare dollars; misogynists like Anthony Comstock; local law makers as those in Connecticut who resisted altering state laws that had clearly aged out; conservative Christians like Paul Weyrich, Pat Robertson, and Jerry Falwell who created the “Moral Majority” by leveraging control over women’s reproductive health and autonomy; grieving parents attempting to hold on just a bit longer to a daughter in a chronic vegetative state, egged on by Presidential hopefuls; and next week we’ll meet a renowned medical scientists who put greed, career advancement and the opportunity for professional acclaim ahead of the welfare of his teenage patient.
The “right” to health, we have learned, is a culturally sensitive issue. That’s the issue acclaimed medical journalist, Atul Gawande, set out to explore in 2017 when, on assignment for The New Yorker magazine, he headed back to his hometown of Athens, Ohio, to catch up with high school friends and neighbors and gauge how they felt about health care reform. The range of views he recorded demonstrated that transforming health care for many meant transforming America’s basic culture – a reality that some applauded and others resisted.
Forces in favor stated:
Health care, as it is, is “a zero-sum proposition. It gives up on the more encompassing possibilities of shared belonging, mutual loyalty, and collective gains.”
“…basic rights include physical security, water, shelter, and health care. Meeting these basics is, he maintained, among government’s highest purposes and priorities.”
“…the goal should be security – knowing that, no matter how bad things get, health shouldn’t be what you worry about.”
Equally represented were those staunchly in favor of the status quo, including these:
“The notion of health care as a right struck her as another way of undermining work and responsibility…”
“Saying that something is a basic right starts to seem the equivalent of saying only, ‘It is very, very important.’”
“.. A right makes no distinction between the deserving and the undeserving…”
Was there room for compromise and agreement. Apparently enough to leave Dr. Gawande encouraged. As one former classmate suggested, “What we agree on, broadly, is that the rules should apply to everyone.” The challenge of course remains not only defining the rules on a national scale, but defining the terms as well – terms like “health.”
This requires not only common sense but a bit of academic heft as well. On September 2, 1998, Professor Jonathan Mann, the director of the FXB Center for Health and Human Rights was on a Swissair flight to Geneva to address the WHO. He never arrived. The plane caught fire and crashed over the Atlantic. This was particularly tragic for the WHO community and AIDS activists around the world because Dr. Mann was one of their heroes.
Oft quoted on the AIDS epidemic, he was quoted as saying, “One has to look at this as an epidemic among the deeply marginalized. Sometimes, whole societies are marginalized. It’s not just an infection—it’s an injustice.”
Echoing this sentiment two years after his death the 2000 United Nations CESCR General Comment document stated, “Health is a fundamental human right indispensible for the exercise of other human rights.” But why?
Professor Mann earlier laid out three reasons before his tragic death.
1. Political: “Health policies, programs, and practices have an affirmative impact on human rights, especially when state power is considered in the realm of public health.”
2. Discrimination: “Human rights violations have health impacts.”
3. Recipirocal: “Protection and promotion of human rights and health are linked fundamentally in a dynamic relationship.”
A layman might translate this to say, “Health care is neither a right, nor a privilege. It is a necessity.” But after over 250 years of rugged individualism, states rights, and back loaded agendas, incrementally changing something like health care seemed more realistic than wholesale reform.
In our final Session of this four-part program, we’ll visit Obamacare, and the trials and tribulations of incremental health care reform. Along the way, we’ll explore four other legal cases – Jacobson v. Massachusetts, 197 U.S. 11 (1905) which addressed mandated vaccines for Smallpox; the Immigration Act of 1924 which targeted immigrants as the “enemy without.”; Buck v. Bell, which shamefully supported forced sterilization as part of the Eugenics movement; and the 1997 Jesse Gelsinger Informed Consent Case.
