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Democratic Party platform for 2016 repudiates a major provision of Obamacare – but no one has said this out loud. In particular, the Democratic Party has now officially called for abolition of the “Cadillac tax,” the Obamacare levy designed to control health care costs by taxing expensive employer health plans. Tucked away on page 35 of the Democratic platform is this enigmatic sentence: We will repeal the excise tax on high-cost health insurance and find revenue to offset it because we need to contain the long-term growth of health care costs."

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Lawrence Jacobs and Theda Skocpol, authors of the newly-published third edition of Health Care Reform and American Politics: What Everyone Needs to Know, provide insight into the legal challenges that the Affordable Care Act faced, including the Supreme Court ruling in 2015.

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A recent meme circulating on the internet mocked a US government programme (ObamaCare) saying that its introduction cost $360 million when there were only 317 million people in the entire country. It then posed the rhetorical question: "Why not just give everyone a million dollars instead?"

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Medicare recently announced that it will pay for end-of-life counseling as a legitimate medical service. This announcement provoked little controversy. Several groups, including the National Right to Life Committee, expressed concern that such counseling could coerce elderly individuals to terminate medical treatment they want. However, Medicare’s statement was largely treated as uncontroversial—indeed, almost routine in nature.

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The national headlines following the 2014 Midterm elections trumpeted the Republican success in seizing the majority in the US Senate and expanding its strength in the US House to record numbers since 1929. These wins were striking but hardly surprising given the tsunami of polls. The big news that continues to elude commentators are the Republican wins in gubernatorial elections – wins that may well have more impact on everyday lives than the Washington battle that pits a Republican Congress against President Barack Obama’s veto pen. Republicans not only pulled out wins in hotly contested battles in Florida, Kansas, Maine, and Wisconsin, but they also invaded Democratic strongholds by prevailing in Illinois, Maryland, and Massachusetts.

Will the GOP gubernatorial wins sweep in a revolution that, among other things, wipes out Obamacare’s centerpiece – the state’s decision to expand Medicaid? Many commentators are predicting just that – repeal or blockage of health reform. They often point to the fiery partisanship in Washington.

The talking heads are wrong. The raw partisanship in Washington cools in the hands of governors facing the nitty-gritty job of running their states – searching for revenues to design budgets and addressing the pressure from doctors and hospitals and advocates for the vulnerable.

Partisanship has been a tractor beam on many states. Democratic states have moved faster and further towards expanding Medicaid than their Republican counterparts, providing some credence to the recent reports that new Republican governors will hinder reform. What is striking, however, is that partisanship – and particularly steadfast GOP opposition to reform — has often been moderated or overridden by the real-world circumstances facing governors. What could possibly convince a politically skilled GOP governor to take on their party on such a high profile issue?

Carrots. The decision to adopt the expansion of Medicaid rests with states. The federal government has served up an enticing financial package: 100% of the costs for the first three years of the program and 90% afterward.

Hospitals that serve the uninsured and poor are facing dramatic reductions in federal government funding, leaving many to worry about dire financial crises. Medicaid expansion is a lifeline for these providers. It also may help state budgets by picking up the cost of caring for the uninsured, what is known as “uncompensated” or charity care.

Here is one of the most striking patterns in our era of partisan polarization: states with Republican governors in Arizona, Ohio, Michigan, Iowa, New Mexico, Pennsylvania, New Jersey, and others embraced Medicaid reform. In Arizona for example, conservative firebrand Governor Jan Brewer forced Medicaid reform through the state legislature as an imperative to create jobs, save hospitals, and ensure coverage for Arizona residents. Governor John Kasich passed it by going rogue on his Republican legislature by circumventing them altogether and risking a constitutional crisis.

The Republican recent romp has elected a new crop of pragmatic governors. Maryland Governor-Elect Larry Hogan and Illinois Governor-Elect Bruce Rauner seem poised to find a path forward to implementing reform. Florida’s Scott has supported Medicaid expansion in the past and may find more support in the GOP legislature now that the election is over. Some Republican governors favor reform in a modified form so they can publicly frame it as a “conservative model” that fits their states.

A new normal is arriving. The uncompromising push to repeal Obamacare is being replaced with a pragmatism geared to solving real problems. The irony of the GOP gubernatorial success in 2014 is that it may mark the turning point from vitriolic partisanship to real-world problem solving.

Headline image credit: Election vote. CC0 via Pixabay.

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A graphic novel has become Exhibit A in the latest Obamacare controversy.

Clear, simple, understandable, useful – those are just a few of the words that recurred in reviews of Health Care Reform: What It Is, Why It’s Necessary, How It Works, a 2012 graphic novel by Xeric-winner Nathan Schreiber and MIT’s Jonathan Gruber.

The irony of these descriptions is no doubt evident to anyone who has been following political news over the past weeks — years after Gruber won praise for his adeptness in making the proposed health law easy to grasp, Gruber has become the center of a political storm due to his recent off-the-cuff claim that the language of Affordable Care Act was deliberately misleading and designed to take advantage of Americans’ “stupidity.”

The dust-up has given new life to the Gruber and Schreiber graphic novel, which thanks to the vagaries of Amazon pricing algorithms appears to become an expensive collectible in hardcover. Conservative sites are finding the book funny in unintended ways, although no one has yet to explain the replacement of its originally announced artist, Dean Motter. It’s natural to assume that there may have been issues of scheduling or style, but perhaps there just wasn’t a place for health care in Terminal City.

By Richard H. Weisberg

The recent Hobby Lobby decision, which ruled that corporations with certain religious beliefs were no longer required to provide insurance that covers contraception for their female employees — as mandated by Obamacare — hinged on a curious piece of legislation from 1993. In a law that was unanimously passed by Congress and signed by President Clinton, the Religious Freedom Restoration Act (RFRA) stated that “Government shall not substantially burden a person’s exercise of religion.” The intention of RFRA was to offer an opportunity for religious people to challenge ordinary laws, state or federal, that had some adverse impact on their faith. The RFRA was a direct response to a case three years earlier, when the Supreme Court decided that laws that applied to everybody were acceptable even if they burdened a religious community. RFRA was Congress’ scream of protest to the Supreme Court’s jurisprudence.

By passing the RFRA in 1993, Congress was trying to steal the Supreme Court’s thunder. It was not fixing physical infrastructures; it was fixing a fellow branch of government. It was not over-ruling what it considered to be a faulty judicial reading of its own statutes; it was changing an interpretation of the Constitution itself. But isn’t the Court, for better or worse, the ultimate authority on the First Amendment? Didn’t the principle of separation of powers prevent the legislative branch from amending, by mere majority vote within its own chambers, the Constitution as understood by the justices at any given time?

Ruth Bader Ginsburg, US Supreme Court Justice. Collection of the Supreme Court of the United States. Photographer: Steve Petteway. Public Domain via Wikimedia Commons.

Indeed, the Supreme Court went on to strike down RFRA in 1997, but only in part. It ruled that the states were not covered by RFRA’s change, but that the federal government was. This provided the opening for the Hobby Lobby decision, where several for-profit closely held corporations sought to defeat a federal regulation about contraception that applied generally to businesses, but offended their own belief systems.

Most discussion of Hobby Lobby, including even Justice Ginsburg’s dissent, has flexibly adapted to the idea that RFRA is constitutional, despite its extraordinary usurpation of judicial power. Her dissent correctly points out that her colleagues in the majority go even further than Congress in permitting religious belief to trump democratically passed legislation. Yes: the majority went much too far in holding that a corporation can “believe” anything or that free exercise rights are violated even when the central beliefs or practices of the religious are not directly implicated; but far worse was its acceptance, without discussion, of Congress’s power grab under RFRA. And the dissents doubled down on that departure from firm and fine traditions we call separation of powers.

Two examples of flexibility, however otherwise opposed, do not add up to the uncompromising defense of our Constitution needed at all times and perhaps especially now. The Supreme Court needed intransigently to re-assert its own power as a separate branch of government. Hobby Lobby’s attempt to veto part of Obamacare that offended its “corporate faith” would and should have been shut down immediately. Our Constitutional system of checks and balances required a clear statement. The Court, on both sides of Hobby Lobby, gave us the ambiguities that muddy the waters when compromise replaces principle.

Richard H. Weisberg, professor of Constitutional Law at Cardozo Law School, is the author of In Praise of Intransigence: The Perils of Flexibility.

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By George F. DeMartino

In a recent editorial in the New York Times Harvard economist N. Gregory Mankiw acknowledged that economists have:

“only a basic understanding of how most policies work. The economy is complex, and economic science is still a primitive body of knowledge. Because unintended consequences are the norm, what seems like a utility maximizing policy can often backfire.”

Mankiw infers from this grave epistemic problem an ethical duty among economists to apply the Hippocratic principle “first do no harm” when assessing policy. On this basis he assails both the Affordable Care Act and new initiative in the US Congress to raise the legislated minimum wage. Both “fail the do-no-harm test”: the Affordable Care Act will lead to the termination of some insurance policies that don’t meet the standards required under the law, while raising the minimum wage “would disrupt some deals that workers and employers have made voluntarily.” But of course, applying the Hippocratic principle consistently would also require Mankiw to assail rather than support those policies to which he has an ideological affinity. Like free trade (which he supports), for instance, the harms of which to US workers surely exceed those of Obamacare. As J.R. Hicks recognized seventy-five years ago, any policy intervention that affects relative prices—which is to say, all interventions —“benefits those on one side of the market, and damages those on the other.” Surely Mankiw knows all this. What is troubling, then, is not Mankiw’s worry about the potential harm of the economic policies he opposes. He is quite right to expose the harms he associates with one policy or another. The problem is the ineptness and obvious bias with which he introduces ethical concerns into policy debate.

Now, it’s good to see an economist of Mankiw’s stature recognize in public view that economic science and policy analysis are fraught with uncertainty, and that there are risks of unintended harm to those whom economists purport to serve. Indeed, all professional practice entails a potential for harm to those whom professionals seek to serve, and to third parties. This is true in clinical medicine and public health, of course, but also in social work, engineering, law, and many if not most other professions. Partly in recognition of this fact some professions have established bodies of professional ethics in hopes of promoting responsible behavior by their members—behavior that minimizes the avoidable harms and that helps them manage appropriately the unavoidable harms that arise in the context of their practice. The medical profession is exemplary in this regard. In medical ethics we find the term “iatrogenesis” (from the Greek, “doctor-originating”) or “iatrogenic harm” which refers to the adverse effects or complications associated with medical treatment. The concept of iatrogenic harm captures physician- or clinic-induced harms ranging from those that are associated with malpractice to the unpreventable consequences of well-intentioned and expertly delivered medical interventions.

Economists, on the other hand, generally do not give sufficient attention to the ways that their own practice induces harm. We even lack the language to discuss economist-induced harm. There is no parallel in economics to the concept of medical malpractice, of course; economists are not held legally liable for their mistakes, no matter how severe the effects. More broadly, there is no economic analogue to the concept of iatrogenesis. There should be. We need a concept, and a corresponding term, to name what is as-of-yet unnamed. Let us refer to the harm economists cause with the term ‘econogenic harm.’

Why do we economists fail to examine sufficiently economic harm and econogenic harm, and why do they make such basic ethical errors when they do? First, economists recognize that harm is a regular and, likely, ineradicable feature of economic practice, as Hicks understood. It needs to be said plainly: economists are in the harm business. Almost always we cause harm as we try to do good. Hence, the Hippocratic directive “first, do no harm,” if taken as an inviolable mandate or a decision rule, has no relevance in economics since it would imply that economists can do nothing at all. Moreover, for over a century the economics profession has remained stubbornly uninterested in ethical matters.

The allergy to ethics manifests in part as a mistaken presumption that one can easily bifurcate economics into its ‘positive’ and ‘normative’ components, and that the economist should privilege positive science over normative speculations. But by its nature harm does not permit such a bifurcation. This is because all questions pertaining to harm—such as ascertaining when harm has occurred, the severity of harm, who or what is responsible for the harm, and which forms of harm are morally indictable and which are morally benign—all of these involve normative judgments. For instance, is a relatively poor person harmed by an economic policy like financial deregulation that overwhelmingly benefits the wealthy and exacerbates economic inequality (even if it doesn’t reduce her own income)? She may very well think so, and at least some economists such as Joseph Stiglitz, Amartya Sen, Thomas Piketty and Jamie Galbraith would validate her view on the matter. But many economists, including Mankiw, are apt to argue that the policy has not harmed anyone in any real sense provided no one’s income has been reduced. Who’s right in this case? Answering that question requires normative decisions about whether severe inequality induces harm to the disadvantaged and, if so, whether that harm is ethically worrisome; and about who should have the authority to answer that question—those actually affected by the policy, or the economist?

Finally, economics has been particularly dismissive of the idea of professional ethics. This attitude isn’t just unfortunate, it’s dangerous. Academic economists tend to think that their ethical duties are obvious—such as not stealing the ideas of others, not fabricating research results, and the like. Many don’t generally trouble themselves with the fact that the simplified blackboard economics that they use to instruct students in economic principles, which often presumes ideal background conditions, informs the simplistic manner in which many policymakers think about economic policy; and the related fact that their work can be misinterpreted and misapplied, with damaging consequences for others. Moreover, the large majority of economists in the United States today work outside of academia where they engage in applied work that bears directly on policy formation, regulation, and other government interventions; affects the outcome of legal disputes; entails consulting to private actors; influences financial market developments; etc. In all these areas the well-meaning economist can do substantial harm while trying to do good.

Yet, we have no professional economic ethicists, or any texts, journals, newsletters, curriculum, regular conferences, or other forums that explore systematically what it means to be an ethical economist, or what it means for economics to be an ethical profession. Unfortunately, the absence of professional economic ethics deprives us of a tradition of careful inquiry into the nature of and responsibility for econogenic harm.

This can’t be the proper attitude of a responsible profession that is committed to enhancing the welfare and freedoms of others. Instead, the prevalence and severity of econogenic harm carries an ethical burden for the economics profession to attend more carefully to the nature and distribution of the harms that its practice causes.

George F. DeMartino is the author of The Economist’s Oath: On the Need for and Content of Professional Economic Ethics. He is Professor of Economics at the Josef Korbel School of International Studies at the University of Denver. He writes widely on ethics and economics, as well as labor issues and political economy theory. The arguments that appear here are developed much more fully in  “‘Econogenic Harm’: On the Nature of and Responsibility for the Harm Economists Do as they Try to Do Good,” to appear in George DeMartino and Deirdre McCloskey, eds., The Oxford University Press Handbook on Professional Economic Ethics (forthcoming).

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Image credit: “Fall Hurricane Money Finance Currency Crisis” by Public Domain Pictures. Public domain via pixabay.

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By Rochelle Caplan, MD

Surely the time has finally come to put our heads together and focus on three seldom connected variables regarding mass murders in the United States: the lack of comprehensive psychiatric care for individuals with mental illness, poor public recognition of the red flags that an individual might harm others, and easy access to firearms.

How should we address the first problem? The fiscal problems this country has faced during the past decade, combined with skewed budget priorities, have lead to a significant reduction in public health care, in particular for mental illness. Insurance companies have limited the time providers have for mental health assessments, the duration and frequency of treatment, and the types of intervention they cover. These cutbacks have forced psychiatrists to do abbreviated and superficial psychiatric evaluations and to prescribe medications as stopgap treatment in lieu of more effective evidence-based therapies. Furthermore, the number of individuals without mental health coverage who also face unemployment, homelessness, or insufficient money to feed and clothe their families — all significant mental health stressors — is steadily rising.

How then can mental health professionals conduct the comprehensive, time consuming evaluations needed to determine if an individual might be dangerous towards others? Self-report questionnaires, another quick method professionals use to conduct psychiatric evaluations, are clearly not the answer. Few people with homicidal or suicidal thoughts acknowledge these “socially unacceptable” intentions or plans on paper. Expert clinical acumen is needed to carefully and sensitively help patients talk about these “taboo” topics and their triggers. A five-to-ten minute psychiatric appointment clearly doesn’t do the job!

The lack of comprehensive mental health care is most sorely evident for such conditions as schizophrenia, as well as psychosis associated with substance abuse, depression, bipolar disorder, neurological disorders, or medical illnesses. In these conditions individuals can be plagued by and act in response to hallucinations that include voices commanding them to kill or visions that incite their aggressive response. Delusions (rigid, pervasive, and unreasonable thoughts) that people threaten them can also cause an aggressive response. Mass murderers might act out their hallucinations and delusions, as in the attempted assassination of congresswoman Gabrielle Gifford and murder of five bystanders, and in the Columbine, Batman, and Virginia Tech massacres.

Lack of time often precludes pediatric professionals from seeing children without their parents and detecting early warning signs of homicidal or suicidal plans. Similarly, physicians might have time to talk to adolescents but not to their parents. As a result, they might miss hearing about red flags of possible aggression by the youth and/or his peers.

The Affordable Care Act (Obamacare) will provide health insurance for more people, but what about quality mental health care? Few mentally ill patients are able to fight for their sorely needed unmet mental health care needs. Due to the stigma of mental illness and the related financial and heavy emotional burden, their families seldom have the power and resources needed to lobby elected officials or use the Internet and other media to publicize their plight.

How can we recognize the red flags of a potential mass murderer? In addition to well-trained mental health professionals with expertise, clinical acumen, and sufficient time with their patients, there is a need to educate the public about severe mental illness. Parents, family members, teachers, community groups, and religious leaders all need instruction to recognize possible early signs of mental illness. This knowledge will help them understand the plight and suffering of individuals with severe mental illness. And, most importantly, this awareness can lead to early referral, treatment, and prevention of violence due to mental illness.

Prompt recognition and early treatment of these symptoms are essential because firearms are so easily obtained in the United States. To get a driver’s license, individuals complete a Driver’s Ed course, pass a knowledge test, take driving lessons, drive a car with an adult for a fixed period, and then take a driving test. The underlying assumption is that irresponsible driving can physically harm others, the driver, and property. For this reason, individuals with epilepsy who experienced a seizure within the past year are barred from driving. Shouldn’t the same principles apply to guns? Yet, individuals can obtain guns without prior psychiatric evaluations, and there are no laws and regulations to safeguard these weapons in homes to prevent children and individuals with severe mental illness from gaining access to them. Reports on accidents caused by children and suicide by adolescents with their parents’ guns are common. According to a Center for Disease Control study, 1.6 million homes have loaded and unlocked firearms (Okoro et al., 2005).

As a child psychiatrist and parent, I regard the Newtown horrific mass murder of elementary age children as a final wake up call so that we will never again ask, “How many more children have to die?” Nothing can justify this preventable tragedy to the parents and families of their murdered beloved ones. The time has come to halt the unrelentless chipping away of our mental health care services and quality of care for mental illness, to educate the community about severe mental illness, and to implement strict controls on access to firearms.

Rochelle Caplan, M.D. is UCLA Professor Emeritus of Psychiatry and past Director the UCLA Pediatric Neuropsychiatry Program. She is co-author of “How many more questions?” : Techniques for Clinical interviews of Young Medically Ill Children (Oxford University Press) and author of Manual for Parents of Children with Epilepsy (Epilepsy Foundation). She studies thinking and behavior in pediatric neurobehavioral disorders (schizophrenia, epilepsy, attention-deficit hyperactivity disorder, high functioning autism) and related brain structure and function; unmet mental health need in pediatric epilepsy; and pediatric non-epileptic seizures.

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The law is based on reasoned analysis, devoid of ideological biases or unconscious influences. Judges frame their decisions as straightforward applications of an established set of legal doctrines, principles, and mandates to a given set of facts. Or so we think.

As the Supreme Court debates President Barack Obama’s landmark health care law — sometimes dubbed ObamaCare — it’s important to remember that unreasoned, impartial law is largely an illusion. As far back as 1881, Oliver Wendell Holmes, Jr. wrote that “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

We sat down with Director of the Project on Law and Mind Sciences at Harvard Law School (PLMS) and editor of Ideology, Psychology, and Law, Professor Jon Hanson, to discuss the interaction of psychology and the law, and how they form ideologies by which we all must live.

What sparked your interest in the study of mind sciences and the law?

My interest has evolved through several stages. Although I studied economics in college, I did so with special interest in health care policy, where the life-and-death decisions have little in common with the consumption choices imagined in neoclassical economics. Purchasing an appendectomy through insurance has little in common with buying a fruit at the market.

After college, I spent a year studying the provision of neonatal intensive care in Britain’s National Health Service, attending weekly rounds with neonatologists at London hospitals, meeting with pediatricians in rural English hospitals, interviewing nurses who were providing daily care for the infants, some of whom were not viable, and speaking with parents about the profound challenges they were confronting. Those experiences strengthened my doubts regarding the real-world relevance of basic economic models for certain types of decisions.

In law school, I studied law and economics, but tended to focus on informational problems and externalities that had been given short shrift by some legal economists at the time. After attending a talk by, and then meeting with, the late Amos Tversky, I became an early fan of the nascent behavioral economics movement.

It wasn’t, however, until I spent a couple of years immersed in cigarette-industry documents in the early and mid 1990s that I felt the need to make a clean break from the law’s implied psychological models and to turn the mind sciences for a more realistic alternative.

What was it about the cigarette documents that had that effect?

Well, they made clear that the tobacco industry articulated two views of their consumers – an inaccurate public portrayal, and a more accurate private view.

The first, which the industry conveyed to their consumers and to lawmakers, was of smokers who are independent, rational, and deliberate. Smokers smoke cigarettes because they choose to, because smoking makes them happier, even considering the risks. The industry thus gave consumers a flattering view of themselves as autonomous, liberated actors while assuring would-be regulators that there was no need to be concerned about the harmful consequences of smoking. Smokers were, after all, just getting what they wanted.

The second view of the consumer, which was evident in the industry’s internal documents, was of consumers as irrational, malleable, and manipulable. The industry’s confidential marketing strategy documents, for instance, made clear that the manufacturers theorized and experimented to discover how to target, persuade, lure, and chemically hook young consumers to take up and maintain the smoking habit. That internal understanding of consumers had no