A Call to Watchfulness

This year marks 5 years since Terri Schindler Schiavo’s life was ended by dehydration and starvation. Her death came after a relentless legal battle to save her life waged by her parents, Robert and Mary Schindler. They simply wanted care for their disabled daughter until she died a natural death. Terri’s husband, Michael Schiavo, would not allow that to happen.

After years of legal battling, Michael Schiavo’s request was granted and Terri’s feeding tube was removed, resulting in her premature and forced death.

LLDF was both humbled and honored at the privilege of assisting the Schindlers in their struggle to save their daughter. The lesson learned from Terri’s death is that should you become incapacitated by illness or disability, the person who is your decision-maker could mean the difference between life and death.

This decision-maker may very well become the federal government with the passage of the Patient Protection and Affordable Care Act (PPACA), (1) commonly referred to as Obamacare. As you will read below, the inclusion of the word “care” in the title may be one of the biggest misnomers in the Act. There are a number of risks to the safety of patients raised by the wording of PPACA—risks that will fall with greatest force on those who are elderly, disabled, or chronically ill.

Risk number one: inadequate medical care for Medicare patients, those 65 and over.

Lack of sustainability has been a problem for Medicare for a number of years, especially as the population ages and there are fewer working-age people to bear the cost of increasing medical care. (2) (Consider the impact that the abortion of at least 44 million unborn children—future taxpayers—has had on this phenomenon.) Despite the obvious sustainability issues Medicare faces, one of the first impacts PPACA will have is to put Medicare at an increased risk of lack of sustainable funding.

The Chief Actuary of the Centers for Medicare and Medicaid Services estimates that not only will Medicare benefits be cut under PPACA, but national spending on health care will go up by an estimated $311 billion over the next 10 years. (3) Cuts in Medicare spending, simultaneous to overall increased health care spending, spells less care for patients, and eventually the demise of the entire program. (4)

Risk number two: the rationing of healthcare.

An outgrowth of the lack of sustainable funding is the rationing of care. PPACA creates a new federal organization named the Independent Payment Advisory Board, and gives it the duty to make recommendations to slow the growth of national health expenditures, including private insurance health expenditures. (5) The Secretary of Health and Human Services and other federal agencies, can then implement these recommendations administratively, or Congress or State governments can implement them legislatively.

The Secretary of Health and Human Services is also empowered to impose “quality” and “efficiency” measures on health care providers. (6) It has been predicted that this will amount to doctors, hospitals, and other health care providers being told by Washington what medical care is considered to meet “quality” and “efficiency” standards. (7) It has been the experience of LLDF attorneys involved with forced death cases that the words “quality” and “efficiency” are euphemisms for rationing healthcare. Thus, although implementation of PPACA remains to occur over the next few years, predictions of what to expect from the institution of such things as “quality and efficiency” guidelines are far from comforting.

Risk number three: loss of patient control over health care decisions.

The potential rationing of care isn’t the only risk created by PPACA; a loss of patient control over such basic decisions as whether to purchase comprehensive health insurance may also be implicated. One of the primary features of PPACA are health insurance exchanges, state markets designed to allow comparison shopping among insurance plans. The exchanges will control what benefits will be offered by plans participating in the exchange. (8) This control will extend to insurance plans offered outside the exchange. For instance, under section 1003 of PPACA, exchanges can effectively limit the value of the insurance policies that exchange users are allowed to purchase. If an insurer participating in the exchange raises a premium, even for a plan offered outside the exchange, the insurer may be removed from the exchange. This means that insurers are going to be deterred from offering comprehensive plans—which in turn will limit the consumers’ ability to choose comprehensive plans.

It is feared that this will begin a pattern leading to loss of individual decision making rights to such an extent as to lead to panels of “experts” deciding whether or not life-sustaining healthcare will be provided to patients. (9) Time will tell whether or not PPACA will lead to what some call “death panels,” but the Independent Payment Advisory Board (discussed above) could certainly be a step in that direction as indicated by PPACA’s focus on reducing costs and improving efficiency.

Risk number four: lack of protection for the conscience rights of health care professionals.

Another potentially devastating impact of PPACA is its lack of conscience protections for health care professionals. While PPACA contains language mandating that plans offered through exchanges may not discriminate against providers who have conscientious objections to certain medical practices, these protections are offered only to health “plans,” which may leave the conscience of the individual health care professional without protection. (10) The potential for this result will no doubt lead to legal challenges that will take years to work their way through the courts, and the lack of conscience protections may lead some medical professionals to exit the field rather than compromise their convictions.

PPACA: Is the cure worse than the disease?

While the full impact of PPACA will remain unclear until it is implemented, one thing is clear: PPACA creates more questions than answers. And since the government did such an excellent job overseeing banks and mortgage companies perhaps we should just trust them to provide our healthcare?

As President Ronald Reagan so aptly put it, “In this present crisis, government is not the solution to our problem; government is the problem.”

With the government taking on the role of health care decision-maker in increasing ways, those who value life should be challenged to increased watchfulness lest the most vulnerable among us be subjected to premature, forced death.

[Part of the solution to restoring our culture to respect the sanctity of human life is seen in the daily operations of LLDF. The research for this article was completed by Rebekah Millard, one of our staff attorneys who works tirelessly for life at reduced wages. Congratulations, Rebekah! Your sacrifice on behalf of the weak and vulnerable among us does not go unnoticed. The same can be said of all of LLDF’s staff and volunteers, the majority of whom have been working with LLDF for many years. As for our reader, please know that we could not accomplish our mission without your support, for which we are very grateful.—Ed.]

1. Pub. L. No. 111-148, 124 Stat. 119 (March 23, 2010); note that the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (Mar. 30, 2010), impacts aspects of PPACA, but is beyond the scope of this discussion.

2. See discussion of PPACA’s neglect to fix existing Medicare issues, http:// docs4patientcare.org/_blog/Resources/ post/10_Disastrous_Consequences_of_ Obamacare,_The_Heritage_Foundation/ (Kathryn Nix, March 30, 2010); point number 7 discusses Medicare.

3. This problem has been expounded by the Chief Actuary for the Centers for Medicare and Medicaid Services, in a letter dated April 22, 2010, available at http://republicans. waysandmeans.house.gov/UploadedFiles/ OACT_Memorandum_on_Financial_ Impact_of_PPACA_as_Enacted.pdf. For a good overview of the report see, ht tp: / /republ icans.waysandmeans. house.gov/News/DocumentSingle. aspx?DocumentID=182448 (Committee On Ways & Means Republicans, Ranking Member, Dave Camp, April 23, 2010).

4. See letter from Chief Actuary for the Centers for Medicare and Medicaid Services, note 2, supra. This analysis has been among the more damaging given to PPACA; a summary of it is available at http://www.galen.org/component,8/ action,show_content/id,14/category_id,0/ blog_id,1399/type,33/ (the Galen Institute, April 23, 2010).

5. The Obama Health Care Rationing Law: The Commission That Will Develop Standards the Administration Will Impose to Limit Private Sector Medical Care (The Robert Powell Center for Medical Ethics) http:// http://www.nrlc.org/HealthCareRationing/ ObamaLaw032110.html; and see the Patient Protection and Affordable Care Act Sec. 10320(b).

6. The Patient Protection and Affordable Care Act, Sec. 10304, amending Sections 1890(b)(7) and 1890A of the Social Security Act, as added by sec. 3014.

7. See National Right to Life’s excellent article discussing impact on patient rights of then-proposed health care legislation, http://www.nrlc.org/ HealthCareRationing/SenateBill122309. html (The Robert Powell Center for Medical Ethics, 2009).

8. See id. at section entitled “Limiting Exchange Users’ Right to Use Their Own Money to Save Their Own Lives” discussing the impact of Sec. 1003 giving bureaucrats the ability to limit the cost, and thus what is offered, in insurance plans.

9. Arguments abound that PPACA imposes putative death panels where bureaucrats decide what care you get and when you are not worth “wasting” resources; see Wesley J. Smith, “Krugman Admits Rationing (Death Panels) From Obamacare” http://www.firstthings.com/ blogs/secondhandsmoke/2010/04/02/ krugman-admits-rationing-death-panelsfrom- obamacare/ (April 2, 2010).

10. Rob Stein, New health-care law raises concerns about respecting providers’ consciences, May 11, 2010, Washington Post, http://www.washingtonpost.com/ wp-dyn/content/article/2010/05/10/ AR2010051003235_pf.html.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.