Mike Magee

Session IV of The “Constitution and Health Care in America” is titled “Obamacare, The Pandemic & Beyond.” As we’ve seen in Sessions I, II, and III, our current issues and controversies around health care in America are not current at all. They are long standing and involve a range of complex disagreements, some of which have little to do with health services and more to do with power, prestige, profit and prejudice.

I promised last week that we would begin this final session with the 1999 landmark case of Jesse Gelsinger, an unfortunate 17 year old boy from the Philadelphia area who lost his life in part as the result of weaknesses in our medical research enforcement of “informed consent” laws. I will discuss that case in a few moments.

But we’ll begin this final session by once again leaning heavily on case law. It is tempting to believe that the current battles over vaccine mandates are exploring new legal ground. But the reality is that this issue, the government’s right to submit its citizens to a vaccine in the service of public health or face a penalty was resolved over a century ago in Jacobson v. Massachusetts, 197 U.S. 11 (1905).

That case arose in Cambridge, Massachusetts. In 1905, Massachusetts was one of 11 states that required compulsory vaccinations. The Rev. Henning Jacobson, a Swedish Lutheran minister, challenged the city of Cambridge, MA, which had passed a local law requiring citizens to undergo smallpox vaccination or pay a $5 fine. Jacobson and his son claimed they had previously had bad reactions to the vaccine and refused to pay the fine believing the government was denying them their due process XIV Amendment rights.

The story of Smallpox in America was by now nearly three centuries old. The first record of the deadly scourge in North America appeared in current day Canada where entire Native American tribes were wiped out in 1625 and the disease was labeled the “Indian Scourge.” Eight years later, in 1633, records show that 20 settlers from the Mayflower succumbed to the infection. Governor John Winthorp noted that Native Americans seemed to be preferentially targeted stating “the Lord hathe cleared our title to what we possess.”

In 1706, Cotton Mather, a Boston minister, observed a scar on the arm of a African slave named Onesimus and inquired how he got it. He relayed that in parts of Africa, people of the tribe were intentionally scraped with the pus from people infected with the pox, then developed a mild case, but most survived and were then safe from re-infection. In the English medical journals, Mather read about the process called variolation.

The UK’s Lady Mary Montague, who accompanied her statesman husband to Constantonople in 1718, had her 2-year old son variolated to smallpox, and then became a popular advocate for the process when she returned home. In that same year, there were 844 deaths from the disease in Boston. One who did not die was Cotton Mather’s son who had been variolated by the famous British trained Boston physician Zabdiel Boylston.

Mather was attacked by anti-vaxers. When he read a note attached to a rock thrown through his window, it read, “COTTON MATHER, You Dog, Dam you. I’ll inoculate you with this, with a Pox to you.” While Mather’s son survived variolation, which carried a 3% mortality, Benjamin Franklin’s son, who had not be variolated at the request of his father, joined the 14% of unvaccinated who died of the disease.

Two years after his son’s death, sounding very much like modern day sufferers of Covid, lying unvaccinated in ICU beds, he wrote, “In 1736 I lost one of my Sons, a fine Boy of 4 Years old, taken by the Small Pox in the common way. I long regretted that I had not given it to him by Inoculation, which I mention for the Sake of Parents, who omit that Operation on the Supposition that they should never forgive themselves if a Child died under it; my Example showing that the Regret may be the same either way, and that therefore the safer should be chosen.”

George Washington mandated all troops in the Continental Army be inoculated after an outbreak in 1777. In the future, Presidents Andrew Jackson and Abraham Lincoln would both contract the disease and survive.

The American physician Edward Jenner, in 1796, noted that milkmaids working on his farm and suffering bouts of cowpox seemed to be immune from smallpox. He convinced his milk maid, Sarah Nelmes, to allow her cowpox sore to be to used to scratch an 8-year old farm hand, James Phipps. He became mildly ill but recovered. Later he inoculated him with a smallpox discharge and it had no effect on the boy, thus demonstrating cross-immunity.

The U.S. government assumed quality control of manufactured vaccines as part of The Biologics Control Act of 1902. Dr. Benjamin Waterhouse was the first doctor in Boston to purchase a supply of vaccine material.  He approached the Board of Health and suggested an outreach program. Nineteen volunteers were recruited and vaccinated. A supporter of profit-infused health care, Waterhouse refused to provide vaccine material to other doctors initially without a cut of their profits.  

Justice John Marshall Harlin, a favorite of current Chief Justice John Roberts, penned the 7 to 2 majority opinion in 1905’s Jacobson v. Massachusetts. Its impact was epic. In deciding against Rev. Jacobson, Harlan wrote, “In every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand … liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.”

A slam dunk? Not so fast.

During this period of American history, as we emerged victorious from WWI, we found ourselves inundated by the Flu Epidemic of 1918. Papers and periodicals reflected the fears of citizens about the “enemy without” and the “enemy within.”

The “enemy without” included newcomers labeled as undesirable, and multiplying at an alarming rate as a result of America’s open door immigration policies. Many in power felt Americans were letting in “the wrong kind of people,” namely Italians, Eastern Europeans, and Asians. To address their concerns, Congress passed H.R. 7995, The Immigration Act of 1924. This set quotas on every nation, purposefully based on the 1890 Census. By choosing that year, they were able to enhance entrance of white Anglo Saxons from the United Kingdom and Scandanavia, and greatly scale back the numer of arriving Italians and Eastern Europeans. As for Asians, they were nearly completely banned under different statututes, except for citizens of the Phillipines (since they were a U.S. Territory, and the Japanese, who voluntarily blocked emigration to the U.S.

Fear of outsiders should in no way be construed as satisfaction with the quality of all Americans in the 1920s. In fact, bias and prejudice against a great swath of Americans – the “enemy within” – were widespread and endorsed within a pseudoscientific movement known as Eugenics. This practice or advocacy for  “controlled selective breeding of human populations (as by sterilization) to improve the population’s genetic composition” was popularized by a British Social Scientist, Francis Galton, a cousin of Charles Darwin, in 1883. It would burn itself out sixty years later, but not before becoming the backbone of Nazi era legislation that legitimized the genocide of nearly 6 million Jews.

But before Hitler seized power, Eugenics was alive and well in the U.S., with most of the major well known universities establishing Eugenic Departments on campus. The word “eugenic” is derived from the Greek roots for “good” and “origin.” What were “undesirable traits” at the time? They included pauperism, mental disability of any type, dwarfism, promiscuity, and criminality.

Embedded in the legal literature of the day, were three legal terms or labels applied to those with diminishing levels of intelligence and personal worth that eventually took on casual use. But in the 1920’s they had meaning in American courts. They were (from best to worse) Moron, Imbecile, and Idiot. The first label might under the best circumstances be tolerated, but the most severely lacking (as in imbeciles and idiots) were not tolerable for a society with high expectations.

What to do then with these inferior human beings? How does “civilized society” keep them from multiplying and undermining the quality of human stock?  If identified and labeled, they might then be isolated and segregated in Institutes for Imbeciles and the Criminally Insane. But with 5 to 10% of the population thus affected, this was beyond the affordability of taxpayers. And so, the solution that emerged, especially for women, was early identification and court ordered involuntary sterilization. But was that legal?

As New York Times journalist, Adam Cohen, writes in his account of the period in his book, Imbeciles,  “…in many ways, I believe you can learn more about an institution and more about an ideal like justice if you look at where it’s gone wrong rather than where it’s gone right.” In this, Cohen was referencing the landmark case, Buck v. Bell, which we’ll discuss in a moment, along with Justice Oliver Wendall Holmes, a Boston Brahmin who wrote the notorious majority opinion in the case.

Until 1927, the legality of enforced sterilization had not been tested in courts. But emboldened by the 1905 decision, Jacobson v. Cambridge, which set a precedent that governments could mandate certain public health interventions if they served the health of the community as a whole, states like Virginia decided to aggressively attack the “enemy within.”

In 1910, they opened The Virginia State Colony for Epileptics and the Feebleminded in Lynchburg, VA.  Two years later, Dr. Albert Priddy, the first Superintendent and a great enthusiast of Eugenics, began lobbying the state’s General Assembly for legislation that would give him a free hand when it came to sterilization.

He popularized the term “feebleminded” as in mentally challenged, uneducated and in his eyes undesirable. He directly challenged the “dissemination of defective protoplasm.” When challenged, he doubled down, assuring legislators that there was “no psychic trauma is inflicted by eugenic sterilization.”

Priddy was a campaigner like Anthony Comstock, targeting “antisocial

morons”, “shiftless persons,” “charity cases”, and prostitutes. His mantra was to “improving humanity and society through genetics” and save taxpayer money in the process.

But his activism attracted a lawsuit in 1917, and after that he was a bit more circumspect. He began to lobby the State Legislature for a law that would give him a free hand. He found a friend and ally in prominent academic Eugenics Professor Harry Laughlin’s who advocated a model sterilization act. Teaming up with prominent state attorney, Virginia State Senator Aubrey Strode, they drafted a new law authorizing “involuntary sterilization of the feeble-minded.” The General Assembly gave it a green light in 1924. But Priddy wanted a court decision to back him up. He went looking for a test case and found a Colony resident who fit the bill– Carrie Buck, an unwed teenage mother.

Carrie grew up with two strikes against her. She was the bright child of an unwed mother Emma Bucks. Emma had been labeled as  “promiscuous” which came front loaded with a secondary term “feebleminded.” She had separated from her husband soon after Carrie was born, and unable to support the child, placed her in foster care at age 4. That earned her an admission to the Lynchburg Virginia Colony for Epileptics and the Feebleminded, and sent her child Carrie into the foster home of Alice and John Dobbs. This then was strike two, because in this home the 16-year old nephew of the Dobbs raped Carrie, resulting in the birth of a child named Vivian on March 28, 1924. Rather than expose the close relative’s transgression, the family and the town pointed the finger at Carrie.

Carrie was admitted to the Colony where her mother resided, and her child remained behind to be raised in the Dobbs home. This then became the ideal case for the Eugenics impassioned Dr. Priddy and his legal enabler, Aubrey Strode. Despite the fact that neither Emma Buck, Carrie or Vivian showed any signs of mental deficiency, the state saw in their lineage proof of three generations of “feeblemindedness’ which needed to be brought to an end.

Dr. Priddy decided that Carrie should be sterilized, and a recent state law declared his action legal. But to be certain he was protected, he decided to make this a test case, employing the aid of Aubrey Strode, and together they provided outside (but friendly) counsel to Carrie Buck as well.

Her lawyer set up the case by claiming that sterilization would deny Carrie Due Process under the XIV Amendment. The counter charges, written up by Eugenics professor, Harry Laughlin, read in part that there was evidence of “social and economic inadequacy; has record during life of immorality, prostitution, and untruthfulness; has never been self-sustaining; has had one illegitimate child, now about 6 months old and supposed to be a mental defective…”

By April of 1927, the case had arrived at the Supreme Court. In the meantime, Albert Priddy had died, and the new Superintendent of the Lynchburg Colony, Dr. John Hendren Bell, carried on. The Supreme Court saw no witnesses but merely reviewed the transcripts from the lower courts. They quickly offered an 8 to 1 majority opinion written by highly respected Supreme Court Justice Oliver Wendell Holmes.

The Justice wrapped his vulgar decision in patriotism with these words, “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in   order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . . Three generations of imbeciles are enough.”

In October of 1927, Carrie Buck was sterilized. No longer a breeding threat to society, she was paroled from the Colony a few months later. Her daughter Vivian remained under the care of the Dobbs until 1932, when at age 8 she developed an intestinal infection and died. Records show she was an above average student in school until her death.

Carrie worked as a domestic with a number of families to support herself. She was married, widowed, and married a second time to Charles Detamore, her husband of 25 years. She died on January 28, 1983 at age 76, and near the end of her life expressed regret that she had be unable with her husband to have children. She said simply, “They done me wrong. They done us all wrong.” She was buried in Charlettesville, VA, in a grave next to her daughter, Vivian.

The Virginia law that allowed for the involuntary sterilization of Carrie Buck remained in place until 1974. During the 45 years it was in place, 7,500 Virginia citizens were subjected to involuntary sterilization, some believing they were having other procedures such as appendectomies. Other states, which based on the Buck v. Bell decision, passed their own enabling statutes, followed a similar path. It is estimated that over 60,000 Americans were forcibly sterilized during this period in our history.

Some 50 years after the decision, the Virginia State Legislature would describe their prior actions as “an embodiment of bigotry against the disabled and an example of using faulty science in support of public policy.” But in 1927, the Jacobson v. Cambridge decision provided judicial cover for Buck v. Bell

Twenty five years after the state of Virginia apologized for Buck v. Bell, another American, this one with a documented genetic disorder, suffered the ultimate fate at the hands of America’s health care system. The unknowing Philadelphia teenager’s name was 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.

The Institute focused on adjusting the genes of children born with a hereditary disease called ornithine transcarbamylase deficiency (OTD), which prevents the normal removal of ammonia in the body. Wilson’s experimental technique involved genetic engineering, splicing therapeutic genes into supposedly harmless viruses that, once injected into the body, could carry their payload to defective cells and repair the genetic errors.

Dr. Wilson was attempting to determine the maximum dose of genetically modified material that could be safely injected into affected youngsters. He had enlisted 18 participants, including a teenager named Jesse Gelsinger who had a version of the genetic disease in which some of his liver cells carried the genetic abnormality but other cells were entirely normal. Those who have the full-blown disorder die in early childhood. But with his mosaic, Jesse most of the time felt well, as long as he continued to take 32 pills a day.

Jesse and his parents heard about the experiments in nearby Philadelphia and were anxious to help those less fortunate who had the full-blown disease. When he arrived at the clinic on September 13, 1999, to begin the study, his blood ammonia levels were above normal, which in and of itself should have blocked his participation. Nonetheless, Wilson’s team infused Jessie’s bloodstream with 38 trillion colonies of a virus carrying genes engineered to reprogram his cells. Eight hours later, Jesse’s fever hit 104.5 degrees. Two days later he was brain-dead.

The patent for the technique of genetic modification being studied was owned by a company called Genovo, cofounded by the abovementioned James M. Wilson, the Institute director. Wilson owned a 30 percent stake valued at over $30 million, and the University of Pennsylvania, which under the rules of the National Institutes of Health, was responsible for ethical oversight of the research protocol design and execution, was a hidden investor. The informed consent Jesse had signed made no mention of Wilson’s financial conflict of interest, or the university’s, or the fact that some of the prior 17 participants had suffered significant liver inflammation, or that three laboratory monkeys had died from massive inflammatory immune responses to injections of the very same agent.

Jesse’s parents sued the University of Pennsylvania which settled. The university also paid a fine to the Federal Government of $514,000 and restricted Dr. Wilson’s research for 5 years. A subsequent audit of gene research programs by the FDA and NIH revealed that 691 gene research subjects had died in the prior seven years, and only 39 deaths were promptly recorded as required.

What the Jesse Gelsinger case reveals is that scientific careers, in a manner similar to the political careers of the likes of Jeb Bush, Bill Frist, or Greg Abbott, often “ride” on the backs of innocent patients “health” with disastrous consequences. In reverse, addressing our nation’s outlier status in managing the nation’s approach to health services, is a threat to the careers of these individuals and roughly 20% of our nation’s population currently is employed within our profit-seeking Medical-Industrial Complex

A state’s right to legislate compulsory public health measures, specifically vaccine mandates, does not require them to do so. In fact, as we have seen in Texas and Florida among others, they may decide to do just the opposite – declare life saving mandates (for masks or vaccines) to be unlawful. At least 14 states have passed laws barring employer and school vaccine mandates and imposing penalties in Republican controlled states already. 

So state powers are clearly a double-edged sword when it comes to health care.

Questions anyone?

Does the Federal government have the power to come to the rescue?

NO. Judgments thus far refer specifically to states rights. These include the 1922 decision, Zucht v. King, where the decision supported a local public school district’s right to require vaccination for admission to school. In this decision, Judge Louis Brandeis wrote, “a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.”

States nationwide generally require entering students to have proof of up to date vaccines to prevent 11 childhood diseases.

Can the federal government forcibly require or compel you to get vaccinated in the U.S.(with exceptions for religion and disability)? 


Isn’t that what they are doing with a mandate?

NO. A vaccine mandate means the government is “setting a condition on you returning to society or participating in a particular activity.”

If a state doesn’t mandate masks, distancing, or vaccines, and a business decides to, is that legal?

With appropriate exceptions for religion and disability, when the intent is to protect employees and customers, legal scholar, Professor James Hodge, director of the Center for Public Health Law and Policy at Arizona State University, believes YES, although this remains to be adjudicated.

If a business asks me if I’m vaccinated on entry, is that a HIPAA violation?

NO. HIPAA regulations restrict hospital and health care workers, not store clerks.

Doesn’t the First Amendment give me the right to reject vaccines?

NO. According to legal scholars: “Freedom to believe in a religion is absolute under the First Amendment. However, freedom to act in accordance with one’s religious beliefs ‘remains subject to regulation for the protection of society.’”

Didn’t the FDA “Emergency Use Authorization” require vaccine mandates?

NO. This authorized sale and distribution of the vaccine, but did not require anyone’s use of it.

Is President Biden doing all he can, within the powers of the Executive Branch, to protect Americans from the pandemic?

Legal expert, Georgetown Law professor Lawrence Gostin, says YES. “While states have near plenary power to protect the public’s health, the federal government’s powers are limited…(Biden) is acting fully lawfully pursuant to those powers.

1. The president “is using his executive power to order vaccinations for the federal workforce. (this includes members of the Military.)

2. He is using his spending power through Medicaid and Medicare to ensure vaccine mandates in health care settings.

3. And he is using the Occupational Health and Safety Act to mandate vaccinations in all businesses of 100 or more employees. All of these are comfortably within the president’s power.”

Biden could go farther and attempt, by providing financial rewards to states that mandate vaccines, or through the Commerce Claus to limit non-mandated states interstate travel, to extend compliance, but these would most certainly generate extended legal challenges. Federal Law under Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disability Act also require vaccine exemptions for religious and medical reasons be in place. (Nationally, less than 1% have claimed these exemptions.)

As for the states, it’s a messy affair. While Texas Governor Abbott grandstands, the federal District Court in Texas in Bridges et al v. Houston Methodist Hospital refused relief for any of the 117 employees suspended and threatened with termination if they refused to get vaccinated. The decision read: plaintiffs “can freely choose to accept or refuse a COVID-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else…Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.”

In another recent case, US Court of Appeals for the Seventh Circuit in Indiana, and the Supreme Court in an appeal, denied relief to eight Indiana University students barred from attendance because they refused to comply with mandated vaccination. Students had chosen not to apply to the university for medical and religious exemption, which if granted would permit attendance if they wore masks.

Over a century ago, the fight over vaccines was no less heated than it is today. A New York Times editorial at the time of the Jacobson 1904 decision, tagged the dispute as  “a conflict between intelligence and ignorance, civilization and barbarism”

On the “civilization” side, Nearly 60 top medical organizations released a joint statement on July 22nd in support of mandated vaccines for all health care and long-term care workers as a “logical fulfillment of the ethical commitment” to patients.

On the “barbarism” side, there is the case of Gabino Olvera. In 2007, he arrived at the Emergency Department of Hollywood Presbyterian Medical Center acutely ill. He had a history of mental illness, was paraplegic, and was acutely septic from a urinary tract infection. Rather than treat the patient, the hospital hired a van to take the patient to Skid Row in Los Angeles and drop him there wearing a soiled hospital gown, without his wheelchair, holding his catheter bag, and inching along the gutter with a black bag of belongings clinched in his teeth.

After the LA Times reported the event, the case went viral and the ACLU successfully sued the Medical Center and Empire Transportation Inc., the van company the hospital hired to dump him in the gutter. All parties settled quickly because the law is clear.

During the early Reagan years, the kind of problem encounter by Mr. Olvera was commonplace. It was a product of government and private insurers attempting to control the costs of care delivery that were cutting into profitability. By 1986, complaints became so persistent that Congress passed the Emergency Medical Treatment and Active Labor Act of 1986. Known as EMTALA. The law forced Medicare participating hospitals to provide care to emergency patients even if they were unable to pay. This included stabilizing patients before managing an approved transfer to another institution, and performing appropriate screening necessary to make a diagnosis.

Despite the law, complaints continued to stream in. In one study from 1996 to 2000, there were confirmed EMTALA violations in 527 U.S. hospitals in 46 states. As prices of all things health care continued to rise, so did the number of uninsured, and the visits to Emergency Rooms around the country. By 2005, the number of visits over the prior decade had increased by 18% from 93 million to 110 million. The cost of all health care services per citizen per year was rising as well, and at an alarming rate. It was $356 per person in 1970, but had risen eight fold to $2,851 as President George H.W. Bush approached the end of his term as chief executive.

Uncompensated care levels were on the steep rise causing doctors, hospitals, the pharmaceutical industry and insurers to begin to consider ways to extend insurance coverage to some 80 million Americans who were either uninsured or underinsured. Driving the effort surprisingly was the Republican led conservative Think Tank, The Heritage Foundation, and their legislative leader, Newt Gingrich.

The challenge was “How do you provide coverage without expanding government run care?” The solution they proposed was to mandate individuals to have insurance or pay a penalty, and to provide a range of entrepreneurial private insurance oppositions reinforced by IRA like tax deductible, Health Savings Accounts.

When President Clinton assumed office, and put his wife Hillary Rodham Clinton, in charge of creating a complex government driven plan, Majority Leader Bob Dole declared it “Dead on Arrival’ – and it was. Though there were some incremental expansions of coverage for vulnerable populations, like the Childrens Health Insurance Plan (CHIP) guided thru the Senata by Senator Ted Kennedy, the first signs of significant innovation and progress came from Kennedy’s home state of Massachusetts.

Leading the charge was the state’s Mormon, uber-capitalist Republican Mitt Romney. With an eye toward a Presidential run, that would come six years later, he adopted the Heritage Foundation plan, complete with an “individual mandate”, and worked with the state’s democratic legislature to enact the law in 2006. The mandate was the greater of $695 per adult and $347.50 per child per year or 2.5% of household income annually.

When Barack Obama assumed the Presidency in 2008, the annual per capita health bill in the U.S. had reached a staggering $8000 per year, twice the amount of any comparator developed nation in the world. Coming in, President Obama knew health care would be his signature legislation, and that he’d pay a steep price for it.

From the outset, three things were clear. First, a second run of the famous “Harry and Louise” ads that collapsed the Clinton health care effort in 1992 had to be headed off. So Obama met with each of the four health sectors – the AMA, the American Hospital Association 9AHA), PhRMA, and the insurers – and made significant early concessions. No Medicare price negotiations or importation from Canada for PhRMA; lucrative Medicare Advantage plans for insurers; protected non-profit status and continued subsidies for hospitals for medical education and serving the underserved; and no changes in reimbursement for doctors.

Second, the template for what became the Affordable Care Act would be the Massachusetts universal health care initiaive, a product of a Republican think tank and a Republican governor. Third, Republican Majority Leader Mitch McConnell would do everything within his power to block and destroy the legislation since he had already pledged that his single objective as Leader was to assure that Obama would be a single term President-

On March 23, 2010, President Obama signed the Affordable Care Act into law initiating a decade long war with Republicans on two fronts. First, in Congress, Republicans voted to repeal the law more than 60 times, all unsuccessfully. The most dramatic attempt came on July 28, 2017 when John McCain teamed up with fellow Republicans Lisa Murkowski and Susan Collins, and managed to appear in the chamber near death from brain cancer to provide a camera ready “thumbs down to the Trump/McConnell effort.

Over this same decade, Republican-led states in parallel had attacked the law on Constitutional terms, chipping away at the statutes, without offering an alternative. Opponents termed the act “Obamacare” as if it were a pejorative label. The President turned that on his critics stating,  “I have no problem with people saying Obama cares. I do care.”

“Repeal and Replace” became the rallying call of Republicans. They didn’t succeed. But numerous challenges to the constitutionality of the legislation continue to this day.

In 2012, 26 Republican led states Attorney Generals joined in a suit to challenge the individual mandate which worked its way up to the Supreme Court. This was a component of the Massachusetts law designed to insure that all citizens and organizations would participate and contribute to even risk-sharing essential for insurance viability. Romney had tried to remove the clause from the Massachusetts bill but his veto was overridden by the Massachusetts legislature. In the federal bill the mandate was the  “stick” to counterbalance the various “carrots” of premium subsidies.

The argument against the ACA mandate became the landmark case – National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The argument for repeal of the mandate was based on the fact that the administration had justified the mandate as constitutional based on the Article 1 Section 8 Commerce Clause or Necessary and Proper Clause. On June 28, 2012, Chief Justice Roberts disappointed fellow Republicans with a complex decision that split the difference.

As he stated in his closing: “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.  Such legislation is within Congress’s power to tax.”

Roberts did support Republicans on a separate issue. The ACA had mandated that all states expand eligibility to Medicaid and agreed to subsidize 90% of the added expense. Republican states challenged the right of the federal government to impose those changes.

The Court’s ruling stated, “As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.”

President Obama praised the decision, and House Speaker Nancy Pelosi remembered the lifelong campaign of Ted Kennedy, who had died of brain cancer 10 months earlier, stating that he could now “rest.” Despite Republican pledges to fight on, as the New York Times wrote that day this ruling “may secure Obama’s place in history.”

At the same time, the paper signaled a partial victory for conservatives and libertarians writing that, “The court’s ruling was the most significant federalism decision since the New Deal…that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want.”

By now, the Affordable Care Act had become a political weapon with which to bludgeon Democrats, and was a rallying cry for Donald Trump in his successful 2016 campaign for the Presidency. With the help of Senate Majority leader McConnell, Trump signed the Tax Cuts and Jobs Act of 2017 into law on December 22, 2017. Vice President Pence declared it a “Middle Class Miracle.” But buried in the legislation was an order to virtually eliminate the ACA individual mandate by reducing the penalty to $0.

Following a playbook laid out months earlier, Republican states filed to claim that the mandate was unseverable from the ACA itself, making it necessary to repeal the act itself now that the mandate was effectively gone. In their third attempt to destroy the bill, Republican Attorney Generals were rebuked, this time 5 to 2 with a special surprise – conservative Justice Brett Kavanaugh joining the majority.

As Roberts said from the bench, “Congress left the rest of the law intact when it lowered the penalty to zero. I think it’s hard for you to argue Congress intended the entire act to fall if the mandate was struck down if the same Congress that lowered the tax penalty to zero did not even try to repeal the rest of the act.”

Through his four erratic years as President, Trump had repeatedly promised repeal of the ACA. In the summer run-up to the 2020 election, he was still saying, “We’re going to be doing a health care plan very strongly.”…stating it was “all ready.” It never came and in November he went down in defeat.

Since Biden has assumed the Presidency, he’s been anything but tepid. He has gone farther and faster than both friends and critics had expected, reading correctly, as FDR did in 1934, that the public appetite for bold initiatives and progressive legislation had grown dramatically in the wake of Trump induced Covid devastation. What he did not count on was Republicans willingness to turn their backs on legislation that would help their states, in return for the endorsement of their future primaries and regular campaigns by the former President. Nor did he appreciate that the deliberate misinformation around the Covid pandemic, and issue as clear cut as receiving vaccines and wearing masks would fall victim to party politics and citizen led paranoia and government insurrection. At the moment the country remains “not well”, the pandemic still with us, the political clean-up continuing, and America still without a plan and a system to create a health America and healthy Americans.

Following his recent address to Congress, President Biden spent a good deal of time on the aisle in private conversation with Sen. Bernie Sanders. They’ve been talking a lot lately. His “Build Back Better” agenda wades into health care with both feet, linking the ACA and Medicare.

He said, “The Affordable Care Act has been a lifeline for millions of Americans …And the money we save, which is billions of dollars, can go to strengthening the Affordable Care Act and expand Medicare benefits without costing taxpayers an additional penny. It is within our power to do it. Let’s do it now.

We’ve talked about it long enough, Democrats and Republicans. Let’s get it done this year. This is all about a simple premise: Health care should be a right, not a privilege in America.” As for Bernie, he keeps beating the drum (correctly) that the best way to afford care for all and create a healthy nation is through a nationally organized, locally executed, universal health care plan building on prior Medicare success.

So while conservative think tankers remain interested in engaging in semantic exercises, and hard core Trumpers still see a road to ACA repeal, even as Mitch himself has gone mute on the subject, America seems to be moving on.

What have we learned today?

  1. Nowhere in the Constitution is a “right” to health care or health care services literally expressed.
  • The Founding Fathers made it clear that the Constitution was a “living document” intended to evolve…that is why the steps necessary to amend it appear as the 5th item in our Articles of Confederation.
  • The Founding Fathers adequately empowered the federal government as “supreme law of the land” to manage challenges as they arose giving them taxing power, oversight of interstate commerce, and latitude to act where “necessary and proper.”
  • That said, rights not enumerated, or defensible as an extension or “penumbra” – are the province of each state and ultimately each citizen.
  • Major health care legislation must attract enough votes to pass in Congress, and be signed by the President; and must be able to withstand challenges to its Constitutionality.

With the limited time we have remaining, it’s useful to outline those areas we have not covered.

First of all, we have not covered the case law surrounding decision rights in health care. In the Fall, we will have the luxury of exploring Roe v. Wade, the end of life decisions in the Terri Schivo and Nancy Cruzan cases, and the Opioid epidemic litigation.

Secondly, we have skirted the complex legal issues surrounding health care data. Who owns it? Why was HIPPA passed? And how has Big Tech been accessing that information without your consent for profit?

And finally, when a nation of our complexity refuses to organize health services and health planning on a national scale, what happens during a disaster? Thanks to Covid -19, we know the answer to this one. My book, CODE BLUE, predicted it:

  1. Infection rates and mortality rates explode.
  2. Hospitals – unable to share supplies and manpower – are overwhelmed.
  3. Supply chains collapse.
  4. Communications and directives vary greatly from one geography to the next.
  5. Common public health measures to control the outbreak – like simple mask wearing and life-saving immunization – become highly politicized.

In short, by the end of this year, cases will reach 40 million and deaths will exceed 600,000.

So here we are, in the middle of this epic debate, one highlighted by President Biden just last week. A debate part practical, part esoteric, legal and nuanced.

But the reality that I’m fast approaching is that it really doesn’t matter. That’s because – whether a “right” or “privilege”, universal, accessible, affordable and effective health care in America is now a “necessity.”

Here are three reasons why:

1. Performance: By any measure available, our predatory and profit-driven approach is a 70-year old historic misstep that is roughly twice as expensive and half as effective as most of the 36 OCED comparator nations.

2. Economic: This highly inequitable and remarkably variable system now accounts for roughly 1/5 of our entire GDP, powered by a bureaucratic workforce with 16 workers for every physician, half of which have absolutely no clinical function. The resultant corporatized Medical Industrial Complex supports opaque pricing, legal kickbacks, and an integrated career ladder where medical scientists actively collude with CEOs from health insurance, hospital, pharmaceutical and research arenas.

3. Strategic: Our decentralized approach to care lacks any coordinated national strategic public health apparatus. There is no national plan. When stressed by the current Covid pandemic, it failed on a massive scale resulting in the needless deaths of hundreds of thousands of citizens, vast damage to our economy, and near collapse of our major hospitals nationwide.

In the process, it revealed an historic underfunding of public health, prevention, and the social determinants of health, preferring instead to rely on last minute, high science intervention come to the rescue. But silver bullets and silver linings do not a health system make.

The question we need to be asking ourselves – whether you align with health care as a “right” or “privilege” – is no longer a philosophical debate, but rather a practical question.

“What kind of system do we need to create to make America and all Americans healthy?”