West of the Rotunda

When one of my old trucks start to fail, I always have to decide, is it worth fixing? Sometimes it is; sometimes it just ought to be junked. I tend to be a fixer, but I have junked one. The rust won. It was the right thing to do.

We are about there with the ACA. President-elect Biden campaigned on fixing it, not buying a brand-new model (Medicare for all). Trump campaigned on everybody having the kind of insurance and treatment he got for his Covid infection. Oops, he never said that. Actually, there has been little proposed on health care from the National Republican Party, except: “Repeal Obamacare!”

Tuesday, November 10^th, the Supreme Court will hear arguments about junking the ACA. Some states and the Federal Government want it declared unconstitutional. Some states are defending it.

The arguments are long and complicated, and the path to this situation has been tortuous. The ACA passed congress without a single Republican vote. It was upheld by SCOTUS as constitutional (5-4) at the first lawsuit in 2012. The individual mandate was called a “tax”, thus within congresses power to levy. Then, after Trump got elected and the Republicans had control of the Senate and the House they tried to pass a replacement, but couldn’t. Instead they zeroed out the individual mandate “tax”. This gave room for states to sue that the law was now unconstitutional. Since the Trump administration supports the repeal it couldn’t get done in congress, they have joined the states in the lawsuit. The Federal Government is asking the court to repeal a law it couldn’t do through legislation. Isn’t this the kind of thing “originalists” don’t want from court decisions?

I’m on the fence with this one. It’s like both the transmission and engine are bad, but I can’t afford a brand new one.

The ACA tried to work within our current health care insurance model. It tried to make companies offer comparable plans, establish a floor for minimum coverage, not exclude people for preexisting conditions, get young people enrolled on their parents plans and a thousand other things. But each of these market manipulations required attention. If the individual marketplaces (exchanges) weren’t working right, they needed tweaking. If the costs of policies rose to be unaffordable, the supports to the insurance providers needed to increase. And for over ten years now there has been no attention to maintenance. No point putting in a new engine if you don’t plan to change the oil.

All these complicated rules, and more: the plan as originally passed was supposed to be cost neutral. But since it’s passage, most of the tax increases (medical device, Cadillac plans) that helped pay for the savings have been repealed.

If we had a functioning congress, one where both parties accepted that this is a problem to solve, not use for political gain, there might be hope. I thought when Romney got the Republican nomination he would change the conversation, since the model for the ACA is based on the program he got passed in Massachusetts when he was governor. But no, he couldn’t talk about healthcare either. Have we poisoned this issue?

So now we will have a Supreme Court with three justices nominated by this administration deciding whether to keep the engine, replace the transmission, or in fact tow it to the junkyard. Heck, they could just wash and wax and call it good. Who knows? It’s just amazing to me, that as an engaged electorate, we have let this happen.

Most who look at this pending case agree that if the whole law is found unconstitutional, the effect will be very broad and profound. The health insurance market will be scrambling, people will lose health insurance, and the disruption will be explosive. Maybe then we will be able to talk about a solution. But we need to fix it or junk it.

Back in May, when Idaho had come out of the shutdown and there was an all-mail-in primary election, I pointed out how counting Covid deaths was tough. I suggested instead we track “excess deaths”, that is the number of people who are dying above what is expected.

Back when I wrote that Idaho only had 16 reported Covid deaths. Now we are above 500. But the Idaho Department of Health and Welfare reports that for the period January through September 2020 our state has had 861 “excess deaths”. That is, lots more Idahoans are dying than expected. It is about a 9% increase above the baseline.

But if you have time to look at the graph on the CDC website for Idaho excess deaths, you will see that almost all that excess occurred after July. And a graph, from the New York Times shows a very steady increase in cases. We are now posting weekly highs, week after week. Maybe we are catching up.

Idaho’s health care providers and hospitals are feeling it. Kootenai Medical Center in Coeur d’Alene is at 99% capacity, cancelling elective surgeries because their ICU is maxed out. Southeastern Idaho is also seeing rising cases and hospitalizations.

Of course, it could just be a blip, a bump, a bit of a bother, not really something to get too worried about. Maybe an extra thousand deaths in a year is something the rest of us can live with. At least we are getting back to having sports.

We are all tired of this pandemic, aren’t we?

I don’t think it’s tired of us yet.

Our Governor and Republican legislators are very proud of our economic growth, one of the most rapid in the nation. They should be, it’s impressive.  We have lower unemployment (3^rd lowest) and high GDP growth. It helps Idaho’s population is booming also, unless you like the solitude.

So, what would be acceptable in exchange for your beloved economic numbers? Ten percent excess deaths? Twenty percent? After all, it’s just us old people dying from the infections.

But healthy growth, healthy communities show some discipline. What Governor Little hears is Idahoans want more freedom. How long are you going to expect me to wear this stupid mask?

We had an early shutdown in Idaho when numbers were quite low. Did the social isolation help our communities not get infected, or were we just ahead of the curve and now we are catching up? We can’t turn the clock back and conduct that experiment, but the curve we are seeing right now calls for some action. And the unpopularity of that action will be directly related to the amount of courage it takes to do it.

Governor Little knows his Idaho, and he hears from and listens to all sorts. He knows the numbers and watches the curves, reads the reports. But he also knows there’s a small but vocal wing of his Idaho Republican Party that don’t like him, don’t like his moderate and sensible ways. They’d dump him for an Ammon Bundy type in a minute.

But my experience with Brad Little says he’s got the discipline and the courage to help lead us through this. It’s going to be rough, these coming months.

I learned about diving through the surf on the Southern California beaches. You have to time it right or the wave pushes you down and you tumble in the sand. If you come up too early, while it’s still cresting you get pulled over, back into the washing machine. After a few spins, it’s hard to know your way up. But it’s fun to get out past the waves.

We’re catching a wave now. Let’s hope we get out beyond.

As a former elected representative, I spent a lot of time trying to figure out just what the masses I was supposed to represent were thinking. I’ll admit, a lot of the time I thought their thinking didn’t make a lot of sense, but I still thought it was my duty to understand their thinking. If you think of representative government as a contest of opposing or varied ideas, and the election winner takes the trophy (“Elections have consequences” Barack Obama 2009), then understanding the thinking of those you represent is wasted time; just vote for those who elected you, not the people you represent. I just didn’t see the job that way. Maybe that’s why I didn’t last long.

So, I am currently struggling to understand just what Americans, but more Idahoans, my neighbors want from health care. Help me out.

A recent poll showed most people don’t want the Affordable Care Act’s protections of “preexisting conditions” repealed. That means, if you have a preexisting (expensive) health condition, health insurance companies can’t refuse to sell you insurance or increase your rates based on their assessment of your future risk to their bottom line. Even 66% of Republicans (91% of Democrats) thought the preexisting condition protection should be maintained.

But if asked more broadly, “should the ACA be repealed”, 76% of Republicans said YES! REPEAL!

So please, tell me: what are you thinking?

This is of course made more critical in the coming election, but also the Supreme Court appointment shooting through the Senate like goose droppings. The hope from Trump, and I guess, from Republicans, is that the nominee can sit for and vote on the case that will be heard a week after the election brought by Republican state attorneys general and supported by our Presidents Department of Justice. The suit asks to declare the ACA unconstitutional, even though they have zeroed out the individual mandate penalty in their “Billionaires Benefits Tax Bill”.

Some Republicans  want to distance themselves from the possibility that the preexisting conditions limitations might disappear. They argue that through “severability” SCOTUS can wipe out some of the ACA, but not the other parts that we like. I find it fascinating that these elected representatives want appointed-for-life judges, not accountable to the voters, to be making these decisions. It’s like they’re afraid to have the discussion. Is that possible?

So, I want to ask you, my Republican neighbors, to answer some questions: just what should healthcare look like in this country? Can you please give me a clue?

I have spent a short time reading the National Republican Platform, and a little longer reading the Idaho one. In short, the National platform says, “whatever Trump says”. But the state one is a bit more specific, even if it’s on page 10, after Article 12 (Economy) and before article 14 (American Family). Maybe 13 is health care’s lucky number for Idaho Republicans.

I encourage you to read this platform that 80% of Idaho legislators endorse. It could explain why we aren’t talking about this problem. It pretty much says, health care should be affordable, government shouldn’t regulate things, and people should be responsible for their own health.

So, I think Idaho Republicans are telling me the next time I’m in a hurry and fall off a ladder and end up a quadriplegic, I should have been more responsible. I agree, I shouldn’t have been in a hurry, I contributed to my injury, but I now must sell my house if I want to keep alive? What if I’d been T-boned by a drunk driver? No mercy there either I guess.

This is a tough discussion. We should be having it with our elected representatives.

If the Idaho Republican solution to our health care dilemma is to go back to the 19^th century, I can’t support it. But I’d sure appreciate a discussion.

Last night, as the wind blew out of the west and showers threatened I heard some loud booms, then smaller ones off to the southwest. Had the civil unrest started? Were the local religious fanatics attacking city hall with bombs and bullets, formalizing their protest on the mask mandate? Had the local militia finally gotten organized enough to mount an attack on the old Federal Building (now owned by the local hospital)? Nope, it was just a “homecoming” celebration at the University, fireworks and all.

You might sense that I feel conflict amongst our citizens. You might feel it too. There is pressure mounting as the presidential election approaches. But a little perspective might be in order. The times, pandemic and all, ain’t so bad.

Just think how this young country got off the ground in 1800. The framers had thrown this thing called the electoral college into our Constitution but they hadn’t thought out the wrinkles. The scheme back then was that state electors would vote for 2 candidates; the one with the most votes became President, runner up got Vice President. The 1800 election resulted in an electoral college tie between Jefferson and Burr. The House of Representatives did their Constitutional duty and decided for Jefferson, though Burr never forgave Hamilton when he threw Federalist support to Jefferson in the House. Three years later, Burr shot Hamilton, and now we can all see the musical on the internets.

Congress then amended the Constitution and “ironed out” the electoral voting. It remains “ironed out”.

Only 24 years later (1824) the House got to decide another Presidential race when four candidates (all in the same party) split the ticket. It took a month of back room deals, but Adams prevailed. Jackson was so pissed he resigned his Senate seat and vowed to come back in 4 years. And he did. No one was shot.

But the 1860 election did lead to shots fired. Sumpter, Bull Run, Gettysburg, remember? Even our president got shot and killed. Those were high conflict times.

But the shenanigans of 1876 take the cake. They make our current Presidents claims of coming voter fraud, refusal to admit defeat should he in fact lose, and calls to militants to “watch out” at the polls sound like bluff. The 1876 election was a donnybrook between Republicans and Democrats, though the labels were almost as tribal then as now. Democrats dominated the South, and a few Northern states. The Democrat (Tilden) won the popular vote, but couldn’t muster enough electoral votes, because, for some reason, four states were slow counting and then Oregon disqualified an elector. Then, back room deal of all time, a “Commission” struck a deal to give the Presidency to Hayes, the Republican for the guarantee of removal of all Federal Troops from the Southern states. It was the end of reconstruction. Jim Crow came home to roost. It was another 90 years before civil rights would be brought to the South. When it was, the Democrats lost that electoral vote block.

I’ll skip Bush v Gore, Truman and Dewey, but the point is: I’m not sure anybody’s way of life is threatened today like it was when slaves were the wealth of the Southern plantation owners. Maybe todays rich see Bernie’s socialist tendencies as a threat. Maybe todays wealthy venture capitalists could rouse up the white crackers to take up arms to protect their wealth. Maybe they would have the success the 1860 plantation owners did, who got southern poor men to fight and die defending their right to own slaves, their wealth. Maybe that’s why Democrats nominated Biden. Who knows.

But those first cannon shots fired at Fort Sumpter in Charleston harbor back in 1860 were touched off by cadets from a local college, The Citadel. You might see why civil unrest came to my mind. But it was just homecoming, with no football game.

I fell off a ladder the other day. Stupid, I know, but I need to relearn things now and then. You see, I was in a hurry to get done, pulling a stubborn nail from a ten-foot top plate. I didn’t have a good angle, so I was leaning on a ladder. Me, the crow bar and the nailed brace hit the concrete. The crow bar bounced; I didn’t.

As I’ve aged the aphorisms of John Wooden, renown basketball coach for UCLA, have stuck with me. There’s one I say to myself, not often enough these days: Always be quick, but never hurry. I’m afraid our country is in a hurry right now.

For sure, our President and Senate Republicans are hurrying to fill a vacant Supreme Court seat; can’t blame them. But that hurried Rose Garden announcement might have had some consequences, maybe worse than my little ladder event for some. Time will tell.

And the hurry of the Senate to confirm Judge Coney Barrett might have more consequences. Not just for future SCOTUS decisions, but more, for how we all see this government that is supposed to represent us. We’ll have to find the answer to that in the coming decades.

We are quickly finding out some answers to how this new virus acts, though there’s still lots to learn. More important, we’re also learning quickly how our bodies react to a SARS Corona Virus-2 infection.

When our bodies identify a viral threat there are many immunologic possibilities. Part of the original fear (back in the winter) for this never-been-seen-before virus was trying to understand just how our bodies would react. We got to watch lots of people get sick, some die, more survive and we have learned quite a bit. It really has been quick.

For some people with severe infections, the immune response can be almost as damaging to the body tissues as the virus. Now, when people are hospitalized and have a severe enough infection the use of steroids is tried. Steroids suppress the immune response, with moderate results. But it seems our President received steroids, despite the characterization of his as a mild case.

We have developed a range of antiviral drugs in the last 20 years. Gilead developed remdisivir initially to treat Hepatitis C, then we got this pandemic. The FDA approved remdisivir for treatment of severe Covid disease, though the evidence of its efficacy is early. Our President is now on a 5-day course. The cost for you, if you have private insurance would be about $3000. For folks with government insurance it runs $2000. I’m surprised this hasn’t helped Gilead stock. I hope it helps our President.

The human immune response to COVID infections has not yielded a lot of surprises. People with severe infections seem to mount strong immune responses, but then the antibody levels drop off fairly quickly. And it seems there have been multiple reports of reinfection. But it does seem our immune system does remember corona viruses, though not well. Many common colds are corona viruses, and we seem to get them often enough.

Learning how the human body reacts to infections takes time and study. So, making an effective vaccine, one that stimulates the immune system enough to trigger an adequate immune response but not make the patient sick is going to be a lot of work, and a delicate balance. Best not hurry.

The biggest problem might be promoting the confidence in the public that a vaccine could even work. Right now we’re at about 50-50. Hurrying along public confidence might be harder than herding cats. I know, I’m an Idaho Democrat.

Idaho is one of 37 states with a Blaine Amendment in our state Constitution. It’s named after the James Blaine, Speaker of the US House of Representatives in the 1870’s. He tried to get congress to pass an amendment to the US Constitution, but came up short in the Senate. Not to be deterred, he went around to states and convinced most to put the language in their constitutions. Idaho obliged.

The purpose of the amendment is to prohibit any public money to be used to support “sectarian” (religious) schools. Back in the 1870’s, when Speaker Blaine had this mission, the funding of public education was more dismal than it is now in Idaho, though the virtues of education were widely extolled. The problem for many was both cultural and political. The US was ballooning with a mass of immigrants. These newcomers were often Catholic and preferred a Catholic education. The Catholic Church was well organized and able to establish schools that served their parishes. They argued, as many schools do today, that since they were doing this good work, they should be supported, as public schools were. Speaker Blaine, and many of his Republican colleagues saw this as crossing a line, not clear enough in the Establishment Clause of the US Constitution.

Why does this matter? This summer the US Supreme Court told Montana that their Blaine Amendment was unconstitutionally discriminating against an organization and individuals based on their religion. It was a 5-4 decision, but I suspect if it had been delayed until 2021, it would have been 6-3.

Back in 2016 the Idaho Legislature took a run at this, proposing a Constitutional Amendment that would have redefined the Blaine Amendment. But it died in the House without much debate. Now, it seems, the US Supreme Court has cleared the way.

There have been multiple attempts in the Idaho legislature to promote “school choice”. One way to support such choice is to give tax credits for school tuition. Others promote a voucher system, giving parents a credit to be spent at a school of their choice. Such plans have always had to reconcile their vision with the Idaho Constitution (Article 9, Section 5) which prohibits any public funds to sectarian schools. This made it very difficult, since some of the best private schools are affiliated with churches. Can you imagine giving a tax credit to one set of parents of a private school student who attended a nonreligious school, but not to another whose students went a Catholic, or Mormon or even Hindu school? Thanks to SCOTUS, the barn door is now open. Believe it or not, it wasn’t an executive order.

How will this change Idaho education?

There are those that argue market pressures (choice) will have a strong positive effect on education. I hear the mantra frequently repeated that competition makes us all stronger. Somehow, when I hear these arguments, I think the unspoken desire is for education to be cheaper, not better. No doubt market forces effect price.  

Opponents worry that a voucher system will lead to private or religious schools skimming the good students. Public schools will be left with the struggling students; society will be further stratified and funding will flow away.

I think we will be finding out about these predictions pretty soon.

You have heard me argue for disruption in our health care system. This Supreme Court decision in essence repealing the Blaine Amendment in 37 states will be a great disruptor to the system of public education. Change is coming.

But there has been no repeal of Article 9 Section 1 of the Idaho Constitution:

The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.

With the passing of Justice Ginsberg it looks like President Trump will have the fortune to appoint three Supreme Court justices in his first term. Such power might be just what his evangelical supporters hoped for when they excused his unsaintly behavior and voted for him. The hope to make abortion no longer a Constitutional protection, as the Roe v Wade decision did some 47 years ago, might be realized, and I can believe some folks are drooling.

One thing for sure, when abortion is criminalized like it was in many states back before Roe v Wade, it will be much harder to count. And if you care about something, you should count it.

Before abortion was “legalized” by the 1973 SCOTUS decision, there were few accurate numbers. In colonial times and after the revolution, most states modeled their laws after British common law. This prohibited abortions after “quickening”, or the first movements are felt by the mother, approximately 15-20 weeks gestation. Abortifacients were widely available. One estimate suggests 20-25% of pregnancies in the mid 19^th century ended in abortion, but this is just a “best guess”. Nobody was counting.

It is interesting that the medical profession led the charge to criminalize abortion in the 19^th century and into the 20^th. By 1900, all states outlawed abortion. A cynic could say there were financial incentives, since most states that eventually did allow abortions required a physician to be the provider (as Idaho did in 2000).

Idaho held abortion to be a felony before 1973. In 1950 legislature passed a law that made any woman seeking or obtaining an abortion a criminal, as well as any person “abetting”.

But we sure keep good records of abortion now. Federal and state law require the collection and collation of such data. Idaho’s numbers can be looked at on the Vital Statistics website. I’d encourage you to look at the numbers. But maybe numbers don’t matter to you.

Idaho abortion rate has been steadily declining for the last 20 years or so. We have one of the lowest rates in the nation. Don’t think that’s because we aren’t counting them all. Idaho counts abortions performed on our residents in other states too. With only a couple clinics in Idaho, about a third are performed beyond our borders.

So, Idaho has many restrictions on access to and the rules around abortion, all sending a very clear message. But since it is still legal in this state, we can still count it.

I don’t think most abortion opponents want to count something they find morally, ethically, spiritually abhorrent. I can understand that feeling. But we count crimes, we count prisoners, we count deaths, we count child abuse. I doubt we will be able to count illegal abortions.

Counting helps us to manage our expensive, tragic societal problems. I’m an advocate for counting what’s important.

The numbers mattered in an interesting experiment done in Colorado in the past few years.

Colorado had a pretty high unplanned teen pregnancy rate. In 2008 an anonymous donor gave a chunk of change to the state to provide long acting, reversible contraceptives to teen women at no cost. Over the subsequent five years teen pregnancy rates dropped by 40%. And abortions dropped by 64%.

With a reversal of Roe v Wade abortion opponents might just get what they want. Then, it will be back to each state to decide.

A Pew poll from 2014 showed that 45% of Idahoans thought abortion should be legal in most cases; 49% thought it should be illegal in most cases. That’s a narrow margin.

There can be no doubt the direction the Idaho legislature would go. They even passed a law in 2020, saying, immediately upon a Supreme Court reversal of Roe v Wade, abortion becomes illegal in Idaho. They are drooling. And if the cards fall right, they might get what they want. Then we’ll stop counting.

With no Republican Platform and four more years of “the Disrupter in Chief” looking likely, we better start embracing disruption.

I have argued the health care industry in this country could use it. We have a huge, wasteful medical industrial complex that isn’t serving our “health”. It serves our 401k’s maybe, but we are not getting the health care we pay for. But we keep buying it.

The Affordable Care Act was not an attempt at disruption, despite what the Freedom Foundation claims. It tightened some insurance industry regulations, it mandated universal coverage through a tax penalty and it tried to make individual coverage affordable. But it was essentially based on the current health insurance system. Democrats howled that the “government option” wasn’t included. Obama tried to buy Republican votes. He didn’t want too much disruption. Maybe that’s really what the Republicans want, major disruption.

Maybe when our President is reelected and his Supreme Court nominees get to hear the Republican lawsuit to overturn the law, they will find it “unconstitutional”. Then we can go back to the good old days when 40 million were uninsured. No doubt it will be many more now, with the higher costs and higher unemployment. Losing health insurance coverage, through loss of a job or unaffordability, or through SCOTUS decision in the middle of a pandemic will be a disrupter. Maybe that’s what America wants, disruption.

This wave of Covid-caused unemployment has given us a few months to see what disruption feels like. A survey back in June when unemployment was at 13% found about a fifth of the people who had lost their jobs were now without health insurance coverage. Even more telling, the majority who had lost their jobs did not have health insurance coverage through that now-gone employment. Like always, disruption hits the poor hardest.

It was amazing that the vast majority (74%), Republicans (65%) and Democrats (80%) thought the government should make health coverage available and affordable for them if they lost employment-based coverage.

You get disruption when you tear down a system. Heck, even minor tweaks can get peoples shorts twisted. Remember the outrage, the Tea Party fervor, the Fox News tirades about the Affordable Care Act? They made it sound like this middle of the road proposal was as threatening to our freedom as fascism. Where was Antifa then?

Even if you have a plan to replace what you tear down, the change can be painful. But the “repeal and replace” bumper sticker is fading on the Trumpwagen; no replacement in the Republican Platform. Actually, there was nothing in the Republican Platform at this year’s crowning, ahem, convention except “we want whatever He wants”.

So, we are experiencing pandemic disruption and it’s affecting people’s attitudes toward healthcare. If Trump and Republicans get what they say they really want, that is the repeal of the Band Aid Affordable Care Act, we might find ourselves in just the state of chaos we need.

Then, since Congress can’t act, can’t govern, can’t deliberate, we might get the miracle “Executive Order”. Halleluiah.

And that will mean the end of our representative democracy. We might just be proving we are incapable of governing ourselves. I hope not. I fear so.

Many times, when talking with patients about their healthcare decisions, I sensed their confusion, their frustration with the uncertainty of a choice their health was placing before them. Often, they would ask me to decide for them. “What should I do, doc?” It’s very tempting. Indeed, I have seen many doctors decide for patients what they thought “was best”.

But experience has taught me, people always do better when they have ownership of the decisions they have to live with. And that’s what our representative government system is supposed to promote, shared ownership of decisions for the common good. Let’s not give up on it.