Propagandists on both sides of the debate have issued excited utterances that have clouded the analysis. Talk radio has been apoplectic about the peril that this bill poses to the symbolic "granny," while state-aligned media shills have said such an interpretation is absurd. Herewith is a lawyer's-eye view about what the actual language of the bill says, and what history and experience predict about its practical outcome.
Do they really want to croak granny? The answer is: yes, sometimes.
The focus of current public outrage is on Section 1233 of the Obama House bill, which technically adds one definition to the existing 63 pages of fine-print definitions in the Medicare portion of the Social Security Act. (42 U.S.C. 1395x) That added definition regards an "advance care planning consultation," which may be held between doctor and patient every five years, or more often in cases of chronic or life-threatening illnesses, to be paid for by Medicare.
So why all the howling about a definition? It sounds innocuous, and on the surface it is. However, in these advance-care planning consultations, we will be subjected to the incessant drumbeat of our duty to go quietly when it is our "time." The law actually says that the consultation consists of discussions about living wills, healthcare proxies, an explanation of "end-of-life services," and similar topics. The doctor must urge the victim to prepare documents that direct relatives and medical personnel how to handle serious illnesses when the patient cannot make decisions on his or her own: i.e. to "pull the plug," to attempt resuscitation, or what to do in other dire contingencies.
The big question is whether these consulations are mandated, and they are not. No one is required to participate. However, state-allied television will certainly encourage them relentlessly, as will the doctors who make the money doing them, since these consultations can become an easy new profit center with little effort expended on the part of the doctor.
The statist supporters of government healthcare have leapt into the controversy, excoriating the talk-show hosts, commentators, and others who have remarked with alarm on the alleged "kill granny" section of the bill. However, they betray a — if you will — fatal ignorance of statutory interpretation and history, in two respects. First, while this section does not contain language that directly mandates termination of the elderly, the idea is certainly to acclimate as many persons as possible to doing their duty and just dying quietly without using up our money. Once such a notion becomes part of the ethical fabric of our culture, the government will start saving billions each year on care of the old. Second, it ignores the other portions of the law that are designed to limit and ration care, and which will have the practical effect of killing granny anyway.
On the first matter, the bill is clear. It is now the stated policy of the government to force people to consider planning for the end of their lives in advance, and to endorse agreements that allow relatives and doctors to end life support when incapacitation occurs. In essence, we are asking granny herself to sign her death warrant in advance, should she become a "useless" drain on resources.
Humanist ethicists, from Thomas Malthus in the early 19th century to Paul Ehrlich and Peter Singer in the late 20th, have always favored a very small population, with a very big government to enforce their ideal. I note that none of these ethicists have ever volunteered to go first before suggesting that we or our grannies do so. Undoubtedly, they regard their services as indispensable to a much-diminished humankind after we do our duty.
While the imposition of this new ethos of death is justly alarming, the more present problem of medical rationing is likely to impact granny much more gravely and much sooner. The rationing of medical treatment for the elderly is marbled throughout the Obama bill in so many places that we will have to address this issue in more detail in a future installment. For example, cancer treatment, much of which is skewed toward an older demographic, will be limited ("adjusted" in Obama-speak, "rationed" in actual English), if it becomes too costly in a particular hospital. (Section 1145) Another example: services to be provided under many plans are quite limited, i.e. rationing. A more attenuated but relevant problem is that hospitals are actually prohibited from expanding, and are limited to their size as of the date of the enactment of the bill, unless a medical politburo, answerable to no one, gives the OK to expand. Thus, treatment options become further limited.
Dr. Ezekiel J. Emanuel, a key medical ethics adviser to the president, and brother of Obama's chief-of-staff Rahm Emanuel, has set forth in writing a deadly formula for allocating care. In a January 31, 2009 article in a prestigious British medical journal, The Lancet, he and two co-authors offer a theory they call, "the complete lives system," as a means to decide who gets care and who dies.
In a complex web of interlocking principles for allocating medical treatment, in an environment where rationing is assumed, Dr. Emanuel opines that teenagers should have priority over infants, because they have received more resources from society. Older people, however, are "objectively less valuable," so, yes, granny does have to die. Under this system, using utilitarian and amoral criteria like "distributive justice," young healthy people from ages 15-40 get priority, and the rest, including grandma, may not.
One can infer that this premise will undergird the implementation of the Obama healthcare regime, including the assumption of rationing of care. While the self-anointed messiah Obama brazenly proclaims throughout the land that his deadly healthcare bill will be good for society, the Hebrew prophet Isaiah rightly saw that such thinking reflects that "the dust of death" has settled over a culture.
The Obama bill reflects the ethos of amoral "utility" throughout. For example, in Section 1177, many plans will not be allowed to enroll "special needs" people. No explanation is given as to the rationale behind this cruel mandate.
Do the proponents of pragmatic elder-cide have grandparents? What do they want for themselves or their families when they are old and frail? Their cavalier attitude about your grandmother is borne of a certitude that their own grandmothers will not be hunted down and told to make way for the more productive, as they will all exempt themselves and their dear ones from this debacle that is to be imposed on everyone else. If members of Congress and their courtiers were made subject to this deadly debacle, cries for its implementation would cease almost immediately.
This is the second installment in our "ObamaCare Shocker" series examining provisions of the proposed Obama healthcare bill that deprive citizens of rights, or are of particular concern due to their likely intrusion on personal privacy or family autonomy. Gregory A. Hession, the author of the series, is an attorney in Massachusetts who specializes in family and constitutional law. Check back frequently for further parts of this series, where we will isolate and analyze the scaries parts of the 1,107-page Obama healthcare bill.