See You In Court

Kathy Swendiman is a legislative attorney at the Congressional Research Service of the Library of Congress. The views expressed herein are those of the author and are not presented as those of the Congressional Research Service or the Library of Congress. Kathy is also my Mom, and has edited this blog for the past five years. She is wonderful :).

The Affordable Care Act, also known as "ACA" or "Obamacare," is so divisive it recently provoked a federal government shutdown. It is also the subject of over 100 lawsuits. I will leave the policy debates to my son and his wonky friends, but it might be useful to look at why this statute, in particular, is the subject of so much litigation.

While the Supreme Court’s 2012 decision in NFIB v. Sebelius upheld most of ACA, closing the 30 or so cases that had been filed up to that point, there are now more than 70 ongoing legal challenges involving that statute.

Why so much litigation? To quote a famous poet, let me count the ways...

First of all, health care represents one-sixth of the domestic economy. Reform efforts in this sector are going to create winners and losers. Affected groups will naturally seek to protect their gains and reduce losses, often through litigation.

Health care reform necessarily implicates issues of ethical, moral or religious concern for many persons. Should there be a right to health care? If so, how much? And who will pay for it? Is it ethical for the government to pay for medical care for some, but not all? Who decides? Indeed, forty years after Roe v. Wade, our country still remains deeply divided on the issue of abortion; many have moral concerns about the appropriateness of modern reproductive health technologies.

To the extent the provisions of ACA allow federal agencies to decide what medical care can or must be covered by insurance plans, significant conflict will ensue. How much money is involved may be less important than the government's role in making controversial health care decisions. Such has certainly been the case for the Administration’s decision to require contraception coverage in most health insurance plans.

The law continues to be unpopular with a significant portion of the public, and ideological objections and congressional repeal efforts continue unabated.

The Affordable Care Act is also vulnerable to legal challenges due to the complex, unusual circumstances surrounding its passage, which precluded last-minute efforts to amend the unwieldy bill. Every major statute, including Social Security and Medicare, was amended after initial passage, often including both significant structural changes and routine "technical amendments." However, opposing political party majorities in the House and Senate, and the lack of bipartisan support for the original bill have contributed to a conspicuous absence of post-enactment legislative fixes.

It has fallen to the Obama administration to make numerous tweaks and adjustments as it has implemented ACA. Many agency regulations, and some unusually broad exercises of executive discretion -- such as the President’s most recent declaration that insurance companies can allow customers to keep their insurance plans even if they do not meet the law’s requirements -- have ended up in court.

Do I think there will be another High Court showdown for this statute? Possibly. The Affordable Care Act may have survived a first strike, but NFIB v. Sebelius hardly ended the contentious debate over the statute. Some argue that the Supreme Court’s ruling was only the end of the beginning.

So far, this seems to be the case.

Forward

There is something different about a dead body. I usually relish the opportunity to cut -- as a budding surgeon, it is often a chance to cure, to heal, to save. Disturbing a lifeless body, though, even in the name of Science, evokes an uneasiness, a violation of the human form. I feel comfortable operating on the living; the dead is Someone else's realm.

This "violation" is not wrong, though I do wonder if it is right. Just as the hopeless coding patient enters a gray-zone -- not dead, but not quite alive either -- just as the medical team shocks, compresses, and forces air into her lungs, I wonder if we as clinicians too often cross this line. We push past the cancer and the fatigued heart, denying humanity's limits without pause or reflection. We push past the wishes of the patient and their family. For Science and Medicine, we move in one direction: forward.

In an autopsy, we disregard death entirely. Laying in front of me now was (is?) a person. Over the next hour or so, she will become unrecognizable, literal pieces of her former self. Her heart, brain, gut, lungs will all be weighed, measured, sliced, and cut into pieces to be examined grossly and under the microscope. The skin over her face will be peeled back; only her legs and arms will be left intact. A human being in jars of formaldehyde. What is left is splayed on a cold, metallic table. The soul already gone.

She happens to be a 280 lbs., 31-year-old female, approximately 5'6'' with no external deformities or obvious causes of death. Without pause, the cutting begins. There is no moment to consider her as who she is and was, nor a "timeout" as typical in the operating room. Unlike in surgery, there is room for error. She is already dead. We waltz across the line... forward.

I flash back to my first clinical experience with death. A woman similar to the lady in front of me, found on the floor of her bedroom by her 10-year-old son. The firefighters had already begun CPR when the paramedics and I arrived. Though I was a new EMT, I knew she was gone. We tried to sustain her life all the way to the trauma bay at the local hospital, to no avail. I watched quietly as the attending physician directed each of the residents to practice intubating her. When they were through with her, she was pronounced dead.

The woman in front of me overdosed on pain-killers, fully depressing her respiratory drive to the point of asphyxiation. Apparently this is a relatively common cause of death in the medical examiner (ME) domain. I watched. In less than an hour, the ME and nurses fully dissected the body. A kitchen knife was used to cut a "Y" shaped incision across her chest. The heart, lungs, and gut were removed, washed, examined, weighed, cut, palpated, placed in formaldehyde, and sent off to the pathology lab. The liver was chopped like a piece of meat. The heart was excised in sections to evaluate the patency of coronary and major vessels. Even the tongue and oral cavity were removed to look for obvious signs of choking and bruising.

In a typical medical case, one pauses to listen to the patient's story -- their history. The vast majority of diagnoses can be made from the history alone. I wonder what she would have told me. Was she depressed or angry? Who had hurt her? Was this her first and only attempt? Had no one heard her call for help? Did she have children? A partner? Who found her? I hope it was not a child.

This autopsy, however, is not a typical medical case. We investigate without the opportunity to ask questions. Forward. The ME splays open a dead body to discover the cause of death. In some cases, the diagnosis is simple and straightforward. In others, there is no answer. Either way, Science dissects the human form until it is unrecognizable, pronouncing final judgment -- Medicine's final word.

But this is training. No pause, no time for reflection. Patients await, and I must keep pace.

"Talk To Me"

(this is a piece that I've submitted for publication; I will post a link here if it is published, or the full version if it is declined)