A "Sense" of God

Rabbi Jonathan Sacks enumerates the familiar arguments for the advantages of religion (The Moral Animal, NY Times, Dec 24).  Sam Harris in his "The Moral Landscape" dates the evolutionary origins of religious practices back  some 95,000 years, when evidence of human burials were first discovered.  Harris continues to argue that there may very well be a genetic (Darwinian) advantage to "religion" or forms of "superstition".  Harris would, then, agree with Sacks - there are definite advantages to such beliefs.  

However, the apparent need for religion, the apparent need for the belief in a supernatural deity has nothing to do with the the reality of an actual existence of someone called God.  The concept of God, a concept most people demand in order to explain the "unanswerable" questions of life - questions such as compassion co-existing with human evil, or natural disasters of overwhelming proportion - can remain only as a concept, not more.  It is a quantum leap to equate a concept with a reality.

Sacks explains the evolution of religion thusly: "an idea that society can do without it flies in the face of history and now, evolutionary biology."  He then concludes by indicating that "It certainly shows that the free societies of the West must never lose their sense of God."

He, correctly, chose the phrase "sense of God," and not the phrase "existence of God."

Should Threats of Destruction Be Ignored?

"Palestine is ours from the river to the sea and from the south to the north. There will be no concession on an inch of the land," he told the crowds, saying he wanted the Palestinians to have all the territory that makes up modern-day Israel.

"We will never recogniזe the legitimacy of the Israeli occupation and therefore there is no legitimacy for Israel, no matter how long it will take," he said.
Hamas said 500,000 attended the four-hour rally, held under a leaden winter sky.

These are the words of Khaled Meshal, the leader of Hamas, at a rally celebrating Hamas's 25th anniversary on Dec. 6, 2012.*

It is difficult, if not impossible, to understand how anyone can read such words, and then remember the similar spoken words of the Iranian president,  and continue to heap criticism on the threatened country, Israel.

Just imagine the outcry if Palestine were described in equivalent words by Israeli leaders!

*Haaretz (a leading Israeli newspaper) Dec. 8, 2012

Nurse Practitioners, The New York Times, and The Blog

 License nurse practitioners and other similarly trained medical personnel (e.g. physician-assistants) to practice medicine - independently and without supervision by a physician.

There are 158,348 licensed nurse-practitioners in the United States (American College of Nurse Practitioners, 2008). Just imagine the increase in the availability of medical practitioners if even 50% of them would open family practices, supplementing the present number of family practitioners (95,075 in 2009, according to the American Association of Family Practitioners). Nurse practitioners (see Blog July 16, 2008) are perfectly capable of handling the vast majority of medical issues (I would guesstimate some 95%) for which patients visit physicians.

The above is excerpted from The Blog entry "Medical Care - Payment and Practice (May 30, 2011).

In today's New York Times (December 16) the lead editorial is entitled "When the Doctor Is Not Needed" with the sub-heading "Well-trained health care workers can do some jobs as well or better, and for much less money." The editorial, part of a series examining ways to decrease the cost of medical care, spotlights pharmacists, retail clinics, trusted community aides, self-care at home, and, of course nurse practitioners, who are now licensed to essentially "practice medicine" in 18 states the the District of Columbia - without a doctor's involvement.  It goes on to cite a report from the Institute of Medicine calling for the "removal of legal barriers that hinder nurse practitioners from providing medical care...."

So, keep reading The Blog, and stay ahead of the game!

Germany and Israel - It's Time For Attitude Alteration

"A Palestinian shoots a rocket, and Israel answers with a fighter jet.  Both sides kill civilians.  It doesn't matter which side kids are on."

This view, a view apparently supported by many others, was expressed by Jonathan Logan, a 23 year old German whose previous pro-Israel attitude has recently shifted.

There are at least a couple of reasons to be disturbed by this attitude.  First, and foremost, is the drawing of equivalency of guilt for casualties inflicted on Israelis with those inflicted on the Palestinians.  Somehow the need to remind the world of the long history of this seemingly un-ending conflict, appears to be un-ending itself!  Without going into the history, can equality of blame really exist when one side deliberately fires on civilians in the absence of direct provocation, while the other, in response, targets only military and terrorist sites.  Yes innocents are injured and killed.  But equivalence of blame - hardly!

When the death of an innocent occurs,  cause makes a great difference.  The accidental death of a child is not equivalent to the murder of a child.  Yes, two children are dead - but the manner of their death DOES matter!  There is not equivalence of guilt!

Next disturbing point - the Germany-Israel bond.  Nina Müller, a German mother was quoted in the NY Times as saying that it was "still not possible for Germany to be more critical toward Israel.  "Because of its (Holocaust - my word) history, Germany is always cautious and diplomatic," she said  "You can't allow yourself to be very critical in another situation you might see differently."

Good old German Holocaust guilt!

I'm certainly not advocating that Germany join the countries in Europe that have condemned the recent Israeli decision to expand housing in contested areas of East Jerusalem.  But I do feel that Germans should no longer feel hostage to Holocaust history in their outlook towards Israel.  It is not the Holocaust that should be the basis for a positive position on Israel, but its feeling of concern for a small country, formed as a result of a UN resolution, and recognized by almost all nations - a country that believes in democracy, human rights, women's rights, minority rights, and freedom of religion and speech - a country whose outstanding medical care is freely available to all its neighbors, friends and enemies alike - a country that contributes to the advancement of science and art at the highest levels - a country that just wishes to co-exist with its immediate neighbors as well as its larger neighborhood called "the world."

Just imagine what the Middle East would be like if back on day 1 in 1948, Israel was recognized and welcomed by its Arab neighbors, and the West Bank and Gaza became a Palestinian state.  Does anyone truly believe that Israel would not have accepted the Palestinian state?  Does anyone truly believe that Israel would have attacked the Palestinian state in an attempt to re-establish its so-called biblical borders?

So why the conflict?  It certainly didn't begin with Israeli attacks in an attempt to "drive the Arabs into the desert."  It began with Arab-led attacks, in an attempt to "drive the Israelis into the sea." The situation we have today is not more than the result of ongoing Israeli resistance to those Arab aims.  Somehow it seems very difficult for many people to grasp this very simple issue.

Gay Rights and Conversion Therapy

Gay rights - sure.  Freedom of speech - absolutely.

Gay rights, as valid as they are, cannot trump free speech.  Those opposed to gay rights have the freedom to argue publicly against them, just as do individuals who are opposed to integration, or against Muslims, or against Jews, or against Christians - as long as they do not create a major public disturbance or contribute to violence.  Free speech has no limits except those deemed liable to result in riotous behavior.

A federal judge in California correctly ruled that a recent state ban on "conversion therapy" for citizens under age 18 was unconstitutional.  "Conversion therapy" is a form of mental health therapy which purports to assist gay individuals who wish to alter their sexual orientation.

Though one can argue the age factor, the principle of allowing "conversion therapy" should be upheld.  It is not for legislatures or judges to decide the validity or non-validity of a medical "therapy" in which participants are willingly engaged.  Arguments that it "may cause harm" are also invalid.  Many medical therapies "may cause harm," but are not subject to legislative oversight.

It is the the responsibility of the medical profession to properly advise on the validity or non-validity of a form of medical therapy - and it is the right of an individual to either take this advice, or not, once he is made fully aware of the risks and benefits - as is the case for ALL medical therapies!

However, medical insurance plans, including Medicaid and Medicare, have the right and responsibility to either include coverage for various therapies or not.  If such plans, after carefully considering proper scientific studies, conclude that there is no benefit to "conversion therapy," or that the risks far outweigh any advantage, they retain the responsibility to deny coverage for such treatment.  

"Affairs" of the Powerful

Big news - General David Petraeus was discovered to have had an affair.  There is nothing new under the sun - only the times and situations have changed.  The affairs of powerful men are common throughout history.  However the cybertrails of today make their discovery so very much easier.  What's more,  today's news media no longer protect the powerful by not disclosing their private affairs, as they once felt obligated to do, but are compelled to do the opposite; to headline these "sordid stories."  After all sex sells and makes for great show business.  And, after all, doesn't news = show business in 2012! Petraeus is only the most recent in a long line of successful and powerful males whose sexual drives overcome what, to most people, appear to be reasonable and logical behavior.

Petraeus follows in the well-worn footsteps of Generals MacArthur, Eisenhower, Patton and Pershing to mention a few.  I am sure there are many more.  Presidents Clinton, Kennedy, L.B. Johnson, F.D. Roosevelt, Harding, and Jefferson must also be included in a list of "affair-participants."  And let's not forget Newt Gingrich, Anthony Weiner and Arnold Schwarzenegger, just to mention a few recent names.

So why do they do it?  Why take such risks?  How do men become so blind to risk where a sexually attractive woman is concerned?  Why put your career on the line?  Professor Michael Baker of  Eastern Carolina University has written that "the risk of losing one's career or reputation is nothing compared with the evolutionary drive to reproduce."  He maintains that such behavior actually shows something he termed "mating intelligence."

In the past, the affairs of powerful and successful men had no effect whatsoever on their careers.  The effects are only recent.  And where are those "guilty men" are today - Clinton goes on and his influence seems to be unending, Gingrich became a presidential candidate, Weiner is considering re-establishing a political future and Schwarzenegger is back in the show-biz world.   Kennedy, Johnson, and all the rest have lost no luster - and any criticism leveled at their careers is unrelated to their sexual exploits.

Monogamy is not for everyone, it seems.  Sexual affairs occur even when extraordinary risks are involved.  Frank Farley, the past president of the American Psychological Association has said : "The human race has had thousands of years of problems with monogamy.  The problems have not been resolved."

The Risks of Medical Screening Tests

The following information was abstracted from an article in the most recent edition of The New England Journal of Medicine, one of the most respected medical journals in the world.  It is an article discussing cancer screening campaigns.

The article describes how various medical organizations use the art of persuasion to call the public's attention to the "value" of cancer screening techniques, e.g. mammograms, colonoscopy, etc.  These campaigns are designed to "make people feel vulnerable and then offer them hope, by often framing statistics "to provoke alarm," and then "exaggerating the benefit (and ignoring or minimizing the harms.)"

Example:  "If you're a woman over 35, be sure to schedule a mammogram.  Unless you're still not convinced of its importance.  In which case you may need more than your breasts examined......."  This was a persuasive technique used by the American Cancer Society, but since abandoned.  However, Memorial Sloan-Kettering Cancer Center recently ran an ad in the New York Times that read "The early warning signs of colon cancer:  You feel great.  You have a healthy appetite.  You're only 50."  Scary, no?  Well, the article points out, the vast majority of the readers of this ad who have the "non-symptoms" described are actually totally well and will not have, nor soon develop, colon cancer.  Such an individual's risk of dying from colon cancer is 0.2%!  No complications of the procedure, such as colon perforation or secondary bleeding are described.

The Journal goes on to point out that research has shown that screening can clearly cause harm.  Anxiety, as well as additional complications from the continued unnecessary evaluation of false positive findings are some of the drawbacks, not to mention "over diagnosed cancers" - those never destined to cause symptoms or death.

The National Cancer Institute is developing an improved guide for patients, so that they may better evaluate the risks v. the benefits of particular screening techniques.

Statistics are very important in decision making, especially where your health is concerned.  Realize that almost no screening test is without some inherent risk and can be quite costly.  Be sure the test has been found to be truly beneficial before proceeding.

Gay Marriage - A "Yes" Vote

Frank Bruni discusses gay marriage in his op-ed column in today's New York Times.  The column elucidates, for the 'nth' time at least, how homosexuality is not an acquired choice.  Gays were not raised by gay parents.  (As a matter of fact, I would venture to say that the vast majority of children raised by gay parents are not gay!) I have no memory of my parents influencing me towards a heterosexual life - I just remember becoming fascinated and excited by the female sex in about the sixth grade.   Gays were not created by gay teachers, nor by plays, books, TV shows, etc. having gay themes.

There  are no logical arguments against gay marriage; the only "arguments" are the emotional ones - arguments, which by definition, have no basis in fact.

As a matter of fact, considering how poorly heterosexual marriages have fared over recent years, not only in brevity and individual frequency, but in resultant child abuse, alcoholism, absent parents and more, gay marriage could certainly do no worse (and maybe do better - who knows?)

Gay rights to normal interpersonal relationships and unions are not contestable.  To define marriage as a  legal right restricted to "a man and a woman" is clearly wrong.  That is not to argue that religious institutions cannot define whom they would consider "married" or "marriageable."  But when it comes to such institutions extending  federal and local benefits and other such legal rights to those in their employ, they must be obligated to comply with the law.  An employer who has a religious objection to gay marriage cannot use this as a rationale to refuse employment to a legally married gay.  If he feels strongly that hiring such an individual would be a "sin against God" (or whatever), he must either employ the individual ( commit the sin, in this case) or take steps to give up his business so that no further such sin would need consideration.

But there are some limits.  Criticism by gays has been levelled against those who believe that original birth certificates should not be altered.  They have insisted, to the best of my knowledge, that original birth certificates carry only the names of the legal gay parents.  I sincerely believe that "original" birth certificates are legal documents that must list the mother (always known)* and the father (if known)*  This does not mean that I do not approve of "altered", or secondary (my term) birth certificates that indicate the legal parents, adoptive or otherwise.  The "original" may be sealed, if a court so insists - but must be available somewhere.  An adopted child, or the child of same-sex parents, has the right, and should have access to this "original" document.

Gay marriage should be a legal right.  How one may feel about its morality is an individual decision, as is the morality of pre-marital sex, or protected sex, or even no sex at all.  I doubt that many would care to render these latter sexual practices (or non-practice) as illegal!

The proper recording and maintenance of a document of birth, however, should not be interfered with.

*In the cases of surrogacy, the state will legislate "motherhood" as either the birth mother, or the genetic mother.  In cases of an unknown sperm-donor father, it should be so designated -  his name to be on record at the sperm bank where donated.

Should the Government Mandate Physician-Patient Conversations?

Five states have recently passed legislation requiring 'clinics' to inform women with dense breast tissue on mammography that the mammograms may miss tumors and that such dense tissue may increase the risk of beast cancer.  This has caused a conflict between patients who believe in 'the right to know' and physicians who maintain that the significance of breast density is uncertain, and providing such information can only lead to potential needless panic and further unnecessary screening and breast biopsy.

There is no question that it is the duty of a physician to provide the patient, or her representative, with all the information at hand about a problem such as this.  The physician, or other medical provider, should offer all available information and present it in a manner that is easily understood.  Information should include a discussion of the risks, and risks should be presented with clarity, using actual percentages.  At the end of the visit, it should be very evident that the patient, or her representative understands the situation.

Now, should a government mandate that such information be provided?  Dr. Otis Brawley, the chief medical officer and executive vice president of the American Cancer Society opined the following:  "I object to legislation that says doctors should have a conversation with their patients that I believe they should have with their patients."  Read this carefully - it is well said - and so true.

It is a disservice when physicians, or other providers, do not furnish their patients, or patient-advocates with the proper information to help them make informed decisions about their health.  But government mandated conversations are out of line.  Patients who feel they have been inappropriately treated or informed can always resort to existing legal redress.

The important 'take-home' message for a patient is to be certain (and not afraid) to ask the right questions and request detailed answers and information.  It is always a good idea to have someone accompany you - four ears are better than two.

Choreography and The State of New York

"Court Upholds The Taxation Of Lap Dances" is the headline of an article in today's New York Times   (page A19) describing the ruling by the New York State Court of Appeals (4-3) that lap dancing fails to meet the definition of a "choreographed performance", and, hence, is not exempt from state taxes as are ballet companies, among other performing groups.

Judge Robert S. Smith, in a dissenting opinion, said it is not proper to define a "choreographic performance" as "highbrow dancing" only and that "lap dancing" is a "dance routine" that is, indeed, entitled to similar tax exemptions.

"I would be appalled," said the judge, "if the state were to exact from Hustler (Magazine) a tax that The New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently 'cultural and artistic.'  That sort of discrimination on the basis of content would surely be unconstitutional."

So what do you think.

The defendants plan to appeal the ruling to the Supreme Court.  

Too Much Information - Obama v Romney

Today's New York Times (page A13) has a large section devoted to text and photos under the heading "Squaring Off With Body Language" - a detailed analysis and comparison of the gestures of our two presidential candidates.

Two gestures that really deserve major attention:  Both termed "The Pointer."

Obama- "This may be Mr. Obama's most frequent gesture.  He holds his hand in a fist with his thumb overlapping the first joint of the forefinger as if he were operating a remote control."

Romney - "This gesture is similar to Mr. Obama's.....except that Mr. Romney holds his thumb to the palm side of his forefinger......"

BE SURE TO OBSERVE THESE "TELLS" CAREFULLY AS YOU WATCH TONIGHT'S DEBATE!!

Was Jesus Married?

The New York Times, as well as many other media, recently reported the discovery of a purported fragment of Coptic text written on papyrus which is said to contain words indicating that Jesus had a wife.  The scholar who presented the data, Dr. Karen L. King, is the current Hollis Professor of Divinity at Harvard, the oldest endowed chair in the United States.  Dr. King is obviously no slouch!

The report of her finding went on to indicate the doubts that Dr. King had about the text's provenance and the steps she was taking to document its veracity.  She is awaiting analysis of the papyrus itself as well as determinants of the age of the ink that was used.  The fragment is tiny and incomplete.  Dr. King is, then, very aware of the science required to support the authenticity of the fragment and admits that until all the evidence is in, uncertainty must prevail.

But today the New York Times reports that the Vatican newspaper, L'Osservatore Romano, in an editorial, "dismissed the papyrus as an 'inept forgery'........'In any case, a fake.'"

The Vatican has undertaken a rush to judgment - not interested in awaiting evidence that Dr. King may present in the future - evidence that may either support or deny her finding.

Therein lies the vast abyss between the science of great scholars and the rushed, prejudicial conclusions of others.

Facts V. Rigid Views

Cass Sunstein in his New York Times Op-Ed article (September 18) argues that "hearing both sides of an argument doesn't soften those with rigid views."  The piece echoes surprise at that conclusion.  I am not at all surprised. 

In a room of rational thinkers, incontrovertible facts are undeniable.   If it is, in fact, incontrovertibly true that homosexuality is a result of a genetic difference among individuals, one cannot rationally argue otherwise.  This, of course, does not guarantee that the homophobic of the world will change its point of view - after all the opposition is most likely secondary to a a very deep-seated emotional, religious or "ethical" issue.  They would argue that many forms of behavior may have a genetic origin, but that does not make them acceptable to society.  For example, if child molesters were all found to have a gene that carries responsibility for this behavior, most of us would still view it as an aberration deserving some form of separation from society.  

If you believe that a fertilized egg contains the DNA that identifies it as a human being at the moment of conception, there is no argument, not matter how fact-filled, that will change your mind.  Once a product of conception is classified as a human being, equal in rights to a post-natal human being, then no incontrovertible facts, such as those representing rape, incest, maternal poverty, or the presence of significant pre-birth physical abnormalities, etc., will change your mind.  It is a deep-seated emotional,  religious or "ethical" view that cannot be altered with so-called "facts," as incontrovertible as they may be.  

One cannot argue with incontrovertible facts.  But certain such facts exist on another level. When I aver that 2+2=4, anyone arguing otherwise is irrational.  If one believes otherwise, stop trying to convince him of the facts - he exists in some other time and space and needs help.  When I aver that the Holocaust is a historical certainty, arguing otherwise is irrational.  If one believes otherwise, stop trying to convince him of the facts  - he exists in some other time and space and needs help. There are no emotional, religious, or "ethical" issues that may be regarded as acceptable given the veracity of these facts.

Incontrovertible facts must be accepted.  By definition, they cannot be denied.  They may not lead individuals to change their minds about deep-seated religious or "moral" feelings.  In divisive matters such as same-sex marriage, abortion, this can be understood.  

Individuals, on the other hand, that are in denial about the absolute evidence provided by mathematics or history, are delusional.

Advertising Credentials --But Not Results!

Here's an advertisement appearing in todays N.Y. Times Science Section (Aug 28, p. D2):

        Vascular and Endovascular Neurosurgery at NSPC

Featuring Renowned Experts

Dr. X

Dr. X is a Massachusetts General Hospital trained neurosurgeon who specializes in Cerebrovascular and Endovascular Neurosurgery.  He is one of about 100 neurosurgeons nationally trained in both endovascular and microneurosurgical techniques and the first endovascular neurosurgeon on Long Island. Dr. X treats aneurysms, AVMs, carotid stenosis, and strokes.  He has authored recent leading articles on cerebral aneurysms and stroke in The New England Journal of Medicine and Lancet Neurology.

Very impressive credentials indeed!

But what have we learned about Dr. X's results?  Nothing.   Before scheduling procedures with Dr. X, who, on paper, seems very accomplished, be sure to ask about his surgical volume and his results.  It's one thing to learn a technique, to research a technique, to author articles about a new technique - but quite another to actually be a truly proficient practitioner of the technique.

The Academy of Pediatrics "Re-evaluates" Circumcision

POLICY STATEMENT
Systematic evaluation of English-language peer-reviewed literature from 1995 through 2010 indicates that preventive health benefits of elective circumcision of male newborns outweigh the risks of the procedure. Benefits include significant reductions in the risk of urinary tract infection in the first year of life and, subsequently, in the risk of heterosexual acquisition of HIV and the transmission of other sexually transmitted infections.

The procedure is well tolerated when performed by trained professionals under sterile conditions with appropriate pain management. Complications are infrequent; most are minor, and severe complications are rare. Male circumcision performed during the newborn period has considerably lower complication rates than when performed later in life.

Although health benefits are not great enough to recommend routine circumcision for all male newborns, the benefits of circumcision are sufficient to justify access to this procedure for families choosing it and to warrant third-party payment for circumcision of male newborns. It is important that clinicians routinely inform parents of the health benefits and risks of male newborn circumcision in an unbiased and accurate manner.
Parents ultimately should decide whether circumcision is in the best interests of their male child.

Today's (August 27, 2012) New York Times includes the article "Benefits of Circumcision Are Said to Outweigh Risks" (Roni Caryn Rabin, page A3).  Above is the actual policy statement released by the American Academy of Pediatrics.

Let me begin with some "full disclosure."  I am Jewish, I am circumcised, my stepson and grandsons have undergone ritual circumcisions as have all male members of my family.  I, however, have had some ethical questions about this procedure - a procedure that is carried out on male infants only for ritual or "cosmetic" reasons.  I wonder how many of us who approve of ritual circumcisions would support the procedure if there were no religious issue.  How many physicians would consent to performing a circumcision if the reason were purely for "cosmetic" reasons?  How many of us would support infant circumcision under such circumstances?

If we support ritual circumcision for males, then it is incongruous not to support ritual female circumcision  Yet we regard this procedure as a form of genital mutilation.  Why?  Because it is generally carried out under non-sterile conditions in backward areas of developing societies, and performed without the girl's consent. Would we change our minds and support some innocuous form of female circumcision, carried out under sterile conditions, if such a procedure were implemented?

It is also extremely important that the Academy's statement be analyzed very carefully before using health as a "reason" or "excuse" for male circumcision.  Note the highlighted paragraph above.  Though the benefits outweigh the risks, they are "not great enough to recommend routine circumcision....."

Now let's discuss some statistics.  Let us assume that there are 500 infant males who are circumcised by the same person using the same technique; then compare them with 500 perfectly matched infant males who are not circumcised.  In the first group 1 boy develops a complication.  In the second group none develop complications, but 3 go on to eventually develop AIDS.  So, in fact, three times as many non-circumcised boys v. circumcised boys went on to have issues.  But.....we are still talking about an extremely low number of problems, whether circumcised or not circumcised.  Remember - of the first group of 500, 499 did well, and of the second 500, 497 did well!  In such a statistical situation, the health benefits are minimal.  And remember that AIDS is a preventable disease - and that  AIDS "prevented by male circumcision" is only the heterosexually transmitted (mostly African) form and not the homosexually (mostly American) transmitted form!

From an entirely "neutral" point of view - a person completely unaware of ritual tradition would most likely regard circumcision as a rather barbaric procedure - the painful removal of the male foreskin for no clear indication.  If a parent, for no reason other than "I want him/her to have it," insisted that a small permanent tattoo be inserted in the skin of her infant, I doubt that many of us would support her wish.

It is very important that those supporting ritual circumcision realize that the only clear reason is traditional.  One cannot rationalize one's choice by importing "health" in this decision process.  This argument (especially in a country like the United States) fails completely.

Nurse Practitioners as Diagnosticians

The New York Times Magazine of August 19, 2012 includes a problem in medial diagnosis - "The Telltale Heart".  The medical issue at hand concerned a 31-year-old woman with an interesting and esoteric diagnostic dilemma, which after appropriate evaluation turned out to be an unusual complication of Lyme Disease.  But that is not the only compelling fact here.  This case was first posted on August 9, 2012 an the first person to correctly identify the medical problem was a cardiologist from Vermont, who, according to the Times, "credited two nurse practitioners in his office with helping him solve the case."

In my Blog entitled "Medical Care - Payment and Practice (May 30, 2011) I opined as follows:

License nurse practitioners and other similarly trained medical personnel (e.g. physician-assistants) to practice medicine - independently and without supervision by a physician.
There are 158,348 licensed nurse-practitioners in the United States (American College of Nurse Practitioners, 2008). Just imagine the increase in the availability of medical practitioners if even 50% of them would open family practices, supplementing the present number of family practitioners (95,075 in 2009, according to the American Association of Family Practitioners). Nurse practitioners (see Blog July 16, 2008) are perfectly capable of handling the vast majority of medical issues (I would guesstimate some 95%) for which patients visit physicians.

And so we have further evidence of the knowledge and diagnostic capability of non-physician medical personnel.

Applying "The Cheesecake Factory" to Medical Care

The colloquy as to how to resolve issues regarding medical care in the United States continues.   A recent article by the talented writer Dr. Atul Gawande in the most recent issue of The New Yorker tries to draw a comparison between how well the Cheesecake Factory manages its bottom line with how poorly medical care is managed in comparison.  He is absolutely right!  But why is he right?

Doctors, for better or for worse, are not like the franchise-holders of the Cheesecake Factory.  They are not required to follow a particular "reproducible, appealing, and affordable" recipe.  Not only are we not required to,  we also have no commitment, financially or otherwise, to do so.  But, in certain respects, maybe we should.

All reputable specialty organizations (e.g. American College of Cardiology, American Society of Gastroenterology, American Cancer Society) issue guidelines based on a thorough analysis of data from multiple studies pertaining to the clinical problem at hand. These studies are all listed for the practitioner to review should he so wish.  Guidelines are then published for the management of issues such as, i.e. when to prescribe cholesterol-lowering drugs, when to order mammograms, who should get a stress test, etc.  These publications further provide the practicing physician with an evaluation of the "level of certainty" for each of the proposed recommended guidelines, based on these extensive reviews.

Of course no physician is required to follow these recommendations.  But maybe he should.  We physicians, like everyone else, are prisoners of our experience.  We anecdotally remember our successes and failures and often, inappropriately, rely on this thoroughly unscientific data.  I, for example, clearly remember recommending open-heart surgery for a patient who did not survive the procedure, and allowing future diagnostic decisions to be influenced by this exceedingly rare outcome.

I strongly believe that these guidelines should be followed - they are shown to be "reproducible, appealing, and affordable recipes (as per the Cheesecake Factory.)"  Medicare, and insurance companies are using, and will (and should) continue to use these expert guidelines in decisions regarding coverage.  Physicians recommending steps and procedures outside the published guidelines will have to persuade the payers to cover them, and will be asked to provide thorough data to support their views.

If a physician recommends a procedure or diagnostic test not considered indicated by published guidelines, he should, of course be permitted to do so.  But an insurance carrier or Medicare (in other words, we the public) should not be obligated to cover the cost.  The patient, should he wish to proceed, must also assume full financial responsibility.   (Perhaps there could be a separate insurance market for such instances!)

Following guidelines a la Cheesecake Factory can make sense and can help bring down the upward- spiraling medical expenditures.

The Truth Shall Make You Lose Elections

"You know, it's hard to know just how well it will turn out. There are a few things that were disconcerting, the stories about the private security firm not having enough people, supposed strike of the immigration and customs officials, that obviously is not something which is encouraging. Because there are three parts that makes Games successful.  Number one, of course, are the athletes. That's what overwhelmingly the Games are about. Number two are the volunteers. And they'll have great volunteers here. But number three are the people of the country. Do they come together and celebrate the Olympic moment? And that's something which we only find out once the Games actually begin.”

 "And as I come here and I look out over this city and consider the accomplishments of the people of this nation, I recognize the power of at least culture and a few other things."


So said Mitt Romney on his visits to London and Jerusalem.  Boy, did he make headlines.  But the statements made front page news not because what he said was essentially correct, but because it was essentially politically incorrect.


Both statements, if not completely factual, are, at least, replete with reality.  Lets get real - the Brits were worried about strikes of customs officials and there were stories about insufficient security possibilities.  Threatened labor issues  deliberately timed to the Olympic Games are hardly a manifestation of "people coming together.....to celebrate the Olympic moment."   By the way, have you noted the empty seats that now have to be re-sold to be filled.


There certainly is a cultural difference between Arab states (including the Palestinian Authority) and Israel.  Is there really a dispute here?  If economic success is the issue under discussion, Israel wins in "straight sets. "  A culture  dedicated to freedom, cultural exchange, governmental openness and debate, and success in research and development for its population and the world is one that will (and has) resulted in economic success.  Can one really say that the economic "culture" of Arab states is dedicated to  similar outcomes?  Has any Arab state reached the economic success and international reputation in science and industry that Israel has?  


Yes, Gov. Romney seems to know how to be direct.  He has to learn to be more indirect - in other words, more politically correct."  That's the way to win elections!

"Best Doctors In New York" - Are They Really "The Best?"

New York Magazine, Castle-Connolly, U.S. News and World Report - all, and I'm sure many more, increase readership by creating lists of "The Best Hospitals" and "The Best Doctors."

As a physician let me caution you about relying solely on such information.  Though U.S. News and World Report gathers rather good statistical data on which to base its hospital rankings, this is not at all true for lists of "Best Doctors."  No real evaluations go into these lists - these "Doctor" lists rely almost exclusively on surveying physicians themselves and asking the respondents to recommend physicians they personally would favor.  So, "I'll be happy to recommend you, if you recommend me" is one way to claw your way onto these directories - directories which lead to increased referrals and plaques for the office (if you purchase them!)

As I read these lists I see many physicians with whom I am rather familiar - and I also note others who are missing!  There are quite a few "missing," very highly regarded practitioners of their specialty, whose absence astounds me!  And, of course, quite a few of the "best" hardly qualify for such acclamation.  I have had personal acquaintance with some of these "featured" physicians who, in my opinion, are mediocre at best.

If you are searching for "the best"physician,  rest assured there is no "one best."  But there are many who are excellent, many who are just OK, and those who are adequate, if not worse - and everything in between.  Lists include them and exclude them - no matter what the level.

So what to do?  A problem, for sure.  Your best chance to find "one of the best doctors" is by researching the highly-regarded academic medical centers in your area or in an area within reasonable geographic proximity.  In searching for the "right" physician, check to see how active and successful the center is in his/her specialty and if the facility has an approved training program within the specialty.  Find a physician on that faculty and review his/her training.  Physicians' (including surgeons) most critical education is acquired during the residency and post-residency (fellowship) years.  A residency in a highly-regarded university teaching program is usually the most competitive, graduating well qualified practitioners.  Ideally, the physician or surgeon should have completed his training at least five years prior to your consultation.

When consulting a physician in a non-surgical specialty, it often helps to see if he is affiliated with a well regarded institution whose faculty includes skilled surgeons in his specialty.  Patients may require surgical consultations and/or surgical procedures.  If this is the case, finding a major medical center where both referring physician and surgeon have privileges can be very advantageous.

What you have here is my opinion - I have no statistical data to support these recommendations.  But there is data that show that morbidity (complications) rates and mortality rates are lowest at centers with high volume in a particular specialty - and these centers are almost universally those described above.

Full disclosure - I have been on lists of "Best Doctors" and have also been excluded from some.

Cologne and the Prohibition of Circumcision

There has been a recent court ruling in Cologne, Germany prohibiting circumcision in its jurisdiction.  The  court ruled that the procedure violated a child's fundamental right to be protected from bodily harm.  This, as expected, has caused an uproar among the Jewish and Muslim populations in Germany, and some have even considered this judicial decision to carry anti-Semitic and anti-Muslim overtones, and to have caused doubts, in general, about religious tolerance in Germany.

Let's assume, for this discussion, that there are no religious or ethnic traditions which call for circumcision, and that circumcision is a procedure with which the general public is not familiar.  You read about a mother who, because of instructions received in a dream, went ahead and circumcised her week old baby boy.  Another mother, having a similar epiphany, circumcised her baby girl.  A third mother, also hearing voices, pierced her baby's nasal septum in order to insert a ring.  And yet one more mother, following an inspirational commandment, permanently tatooed a large star on her infant's buttocks.  All the mothers were competent to perform these procedures and did a perfect job in each case.  No infant suffered complications, and none are expected in the future.

What would your reaction be?  Does a mother have the parental right to have these purely elective procedures carried out on her infant?     Should these procedures be construed as "bodily harm," or are they non-harmful, (though painful) and therefore acceptable.  Is it also not possible that when the infant reaches maturity, resentment at having been subjected to the procedure may develop?  Should the parent be required to seek counseling and wait 24-48 hours before being permitted to proceed (as is the case with elective abortion in some states.)

However, when we consider religious or ethnic tradition as the rationale for these "alterations" to an infant's body, the procedures may take on a wholly different appearance.  What may have been considered unacceptable now achieves acceptability.  After all, they are basically "harmless."  What sounds like a crazy, if not an actually cruel, procedure becomes justifiable under those circumstances.  So we continue the tradition.  ......But should we?

A Child Died - Could A Computer Have Helped

I am a physician. A physician's job is to obtain information from a patient using various techniques, then to input the accumulated data into his brain, and finally arrive at a diagnosis via mental algorithmic analysis. But we physicians are human! We err. We err as a consequence of these human variables.


I feel quite certain that a medically sophisticated Watson (Dr. Watson, I presume) will outscore the diagnostic acumen of the physician in the near future, and will become the physician's most valued "partner." Dr. Watson will "outdiagnose" all of us. Not only outdiagnose - but "outmanage" as well, because the management of a medical problem is also an algorithmic conclusion. We physicians won't accept Watson, at first. Like so many advances in medical management, we will have to be dragged to it "kicking and screaming," but eventually accepting it in the end.


The above is taken from a Feb. 17, 2011 Blog entry discussing the value of computer-aided diagnosis (Watson) in medicine.

An Infection, Unnoticed, Turns Unstoppable (Jim Dwyer, New York Times July 12, p. A15) describes the shocking story of Rory Staunton, a 12 year old boy who was not properly diagnosed, and who consequently went on to die of an overwhelming bacterial infection, causing complete failure of his bodily organs (liver, kidney, etc.) to function.

I think that many physicians may have initially missed Rory's diagnosis.  We physicians are taught to think of the most obvious answer to a diagnostic problem, and tend to relegate the outside possibility of the the very infrequent, or improbable  diagnosis to the "back of the brain."  But, we are to be faulted if we do not critically consider all of the "differential diagnoses" and take reasonable steps to eliminate the rare ones.  But we err.  We are human.  Though I am unaware of all the details of Rory's case (I wasn't in the ER), it certainly raises a serious question of diagnostic error and associated medical mismanagement.

Could 'Watson' have assisted in preventing this unfortunate outcome?  A properly programmed computer would have alerted the physicians and demanded accountability for the abnormalities detected in Rory's blood tests relative to the signs and symptoms which he presented.

Future use of these electronic assistants may not totally eliminate this human tragedy, but should certainly help in avoiding them.

You, Your Health, and the Government

How far should the arm of government extend where individual health is concerned.  There is the argument that government has a vested interest in the health and welfare of its citizenry.  That is a fact.  After all, there is money involved - your health and the maintenance of your health affects government expenditure as well as that of the private insurance sector - and more.

But The Blog is asking you to put the cost factor aside for the moment, and consider only the concept itself.

Does a government have the ethical right to regulate the health of its citizens?  Is it the function of government to monitor how we eat, what we eat, whether or not we get proper physical exams, whether or not we get appropriate blood tests, whether or not we smoke, use drugs, or drink alcohol, exercise, etc.

A government has the right and the responsibility to protect its citizenry from the behavior of those whose habits may interfere with the health of others -  but not when it affects only an individual's own health and well-being.  If smoking, drugs, etc. negatively affect the health and welfare of the non-user, then these forms of behavior should be appropriately restricted or banned.  What one eats, when one goes for a physical examination, whether one exercises, what blood tests one obtains, how one wishes to be treated or not treated for a disorder, is not in a government's realm of responsibility!  Even the wearing of seat belts or safety helmets goes against the concept of individual rights - the only one who is affected is the non-wearer - no one else.

This is not to argue that the government, or any private corporation should not invoke methods to encourage individual health and well-being.  The government can demand that seat-belts be available in all cars.  An insurance company can vary premiums depending on whether seat belts were properly applied or whether clients are smokers.  A government and an insurance company can encourage healthy life-styles by tax deductions, credits, and premium adjustments.

So consider what a government should be permitted to actively restrict or ban.  Forgetting the cost factor, shouldn't you, and you alone be responsible for your own well-being.  You may not, however, while participating in unhealthy behavior, negatively affect the health and welfare of those around you.  It is to this latter function that governments should confine their regulations.

But what to do when considering the issue of cost?   How big a factor should this be in a government's application of regulations regarding individual health maintenance?

"Carrots" and "Sticks" in Behavior Alteration

OK, so Mayor Bloomberg and his activist Health Commissioner have decided to improve the health of New Yorkers by prohibiting certain establishments from selling sugar-containing soft drinks of a certain size.  Good luck!  Not only do such methods almost never work, this particular prohibition really infringes on individual rights.  Shouldn't a person be permitted to engage in behavior that, though potentially self-injurious, is not harmful to others?

Look at how well we all did with our drug and cigarette laws.  Tobacco smoking continues,  as does illegal drug use, and with all the years of knowledge of  its negative health effects, it remains the largest cause of potentially preventable disease in the United States.  Yes, the number of adult smokers in the U.S. has decreased since 2005;  from 20.9% all the way down to 19.3%! (CDC statistics)

Despite all the advertising about the horrors of cancer, heart disease, COPD, obesity, diabetes, drug addiction, and more, we go on with this behavior.  As long as these desirable agents exist, we will continue to use them.  If we make their possession, or sale illegal, we will find a way around the law and purchase them illegally.

Why do we do this  Why do we participate in what is known to be "bad for one's health?"  Easy - because we are human beings - and that is how human beings behave.  Humans take chances that they feel are reasonable - and hope they come out ahead!

But Dr. Balaji Prabhakar, a Stanford University professor of computer science thinks he may have found a better way to alter human behavior - a method that is distinctly human and very persuasive.  A "carrot" approach rather than a "stick" approach.  Humans are risk-takers and love to gamble.  Actions in the face of bad behavior are, in fact, forms of gambling.  When participating in these bad habits, we are gambling that they will not impact us adversely - and its a good bet, because despite these poor habits, most of us will not be affected in a major way for most of our lives, if not forever.  Dr. Prabhakar considers the "carrot" approach rather than the "stick" approach as far more advantageous in the transformation of behavior.

In today's Science Section, The New York Times reports how he has incentivized drivers ("carrots") to alter their commuting habits when going to work.  Participants are entered into a lottery with the chance to win extra pay when they shift their driving times to off-peak hours, thereby alleviating congestion.  The program has reportedly been very effective.  He has also proposed a program akin to frequent-flyer miles (or maybe even actual frequent-flyer miles) as a possible incentive.

Animal trainers know that using "carrots" rather than "sticks" is what works best.  "Sticks" are apparently not very effective in altering human behavior either, but give a man a "carrot" and you  actually may be able to change him.   

Recognition of Gov. Scott Walker's "Re-election" in Wisconsin

"The Message From Wisconsin" reads the headline of the lead editorial in todays New York Times.   As you probably know, the people of the State of Wisconsin had petitioned successfully for the recall-election of a duly elected sitting governor for reasons unrelated to any malfeasance in office, but because of his purported "anti-union" stand in attempting to balance Wisconsin's budget - in effect keeping a promise he had made in his campaign.

The recall was successfully rebuffed - Gov. Scott Walker remains the governor of Wisconsin.  Why?  Two reasons, says the Times in this editorial - 1)Democrats nominated "the wrong candidate," and 2)Contributions in "excess of $45.6 million" to Gov. Walker's campaign.

Nowhere in the editorial is it even remotely suggested that perhaps the majority of the people of Wisconsin actually agreed with Gov. Walker's policies, or that the concept of recalling a sitting governor, in office only two years, fulfilling his campaign promises and with no evidence of wrongdoing, is just counter to the way democracy works.

That is not to imply that the causative factors cited by the Times are not to be taken into account.  But to totally ignore other reasonable possibilities is not fair.

It should be clear that Gov. Walker's efforts to restrict or eliminate collective bargaining did not affect private unions at all.  It applied only to unions in the public sector.  It was not intended to eliminate unions, but to only eliminate collective bargaining rights regarding wages and benefits.  Many states and localities do not permit public employees to bargain or strike.  As President Franklin Roosevelt said:

 "All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters."

Courts have held that public employees hold a "property interest" in their jobs giving them an advantage in that they have a constitutional protection against any arbitrary and unjust actions beyond that of employees in the private sector.  The argument continues that public employees cannot bargain or strike against the "public," namely themselves.  Government is not business - it represents taxpayers, not shareholders.  The public can sell shares of a company with which they disagree but cannot "sell shares" in a government organization.  The government provides certain necessary welfare and safety services (e.g. police, fire, army, navy, etc.) which, if a strike were to occur, could not be replaced by "outside workers."

Sure, money and personality affect all elections, but perspective and fairness are important.  Gov. Walker is still Gov. Walker.  He deserves the recognition that his "re-election" may very well be the result of support for his policies, and not that of complementary factors.

Sam Harris and Free Will

The philosopher, neuroscientist and renowned atheist Sam Harris has recently expounded his philosophy of "free will," or to put it more clearly, the lack thereof.   In his latest book "Free Will" he states his viewpoint that the "belief in free will has given us both the religious conception of 'sin' and our commitment to retributive justice."  Harris maintains that it is the total biological makeup of the brain and mind, not a metaphysical cause that is responsible for actions.  He cites evidence that advanced brain imaging and recording have shown predicted activity before an individual is even aware of an action which he is about to perform.

He gives the following example to ponder:

1.  A 25-year-old man, raised by wonderful parents and never abused, intentionally shot and killed a young woman he had never met "just for the fun of it."
2.  A 25-yeard-old man with an absolutely identical background performed exactly the same act for exactly the same reason, but an MRI shows a brain tumor in the region considered responsible for behavior and emotion control.

Both acts are controlled by the brain, but, though the outcome was the same, the outrage we feel is mitigated by the tumor in case No. 2.  Even though the action in case No. 1 is in all likelihood also secondary to some brain malfunction, we have a different moral reaction towards it.  It is also quite possible that the tumor in case No. 2 was not the primary etiology for man's actions, but was merely a "bystander," and the malfunction is, in fact, identical to that in case No. 1.  And, finally, before technology gave us MRI's and PET scans, the tumor may have easily gone undiscovered and the Case No. 2 perpetrator considered in a manner identical to that of Case No. 1.

Cerebral malfunction can be considered as a cause of the "conscious intention" in both cases, with the causative disorder in Case No. 1 yet to be fully explained. But, recognizing that a future physical etiology may be discovered to explain the actions of Case No. 1, should not our compassion be extended equally to both of the individuals?  Shouldn't the "psychopath" be considered in the same light as the brain tumor victim?

This is not intended to argue that  individuals may not be a danger to society and may require separation from the general public, free will or no free will! As sympathetic as we may be towards the man with the brain tumor, if he were incurable and untreatable, incarceration would still be required.

Incarceration, or separation from society, is quite different from punishment.  One cannot punish an individual whose "physical disorder" was responsible for his negative actions.  We need to separate the  "treatable" by punishment from those "untreatable" by punishment.  Like any other known physical disorder - some are treatable and curable, and some are not.

"Free will" and "morality" may be terms presently needed to describe behavior on a metaphysical basis, though what may be the true "physical" explanations are yet to be neurologically mapped and determined.

False Advertising - a New Low!!

"FTC V. POM You be the judge" is the headline in an advertisement on page A13 in today's New York Times.  The ad goes on to "inform" the consumer that an "FTC judge agreed that POM Wonderful 100% Pomegranate Juice and POMx do provide significant health benefits.  Here is what the judge said in his own words."

The ad goes on to quote out-of-context statements contained in the decision of the administrative judge in a suit brought by the Federal Trade Commission accusing the POM Wonderful Co. of false and misleading advertising vis-a-vis its claims to significantly affect matters such as prostate health and erectile dysfunction.

The ad quotes the judge's ruling:

"Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer." (page 282.)

Here is the quote in context from page 282 of the decision:

As discussed above, the expert testimony regarding the studies relied upon by Respondents is conflicting. The greater weight of the persuasive expert testimony demonstrates the following: The basic research, the Pantuck Study, and the Carducci Study, relied on by Respondents, support the conclusion that pomegranate juice has a beneficial effect on prostate health. F. 1142. Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer. F. 1142. However, the greater weight of the persuasive expert testimony shows that the evidence relied upon by Respondents is not adequate to substantiate claims that the POM Products treat, prevent, or reduce the risk of prostate cancer or that they are clinically proven to do so. F. 1143. Indeed, the authors of the Pantuck Study and the Carducci Study each testified that their study did not conclude that POM Juice treats, prevents, or reduces the risk of prostate cancer. F. 1055, 1056, 1084, 1085. And, as Respondents’ expert conceded, no clinical studies, research and/or trials show definitively that the POM Products treat, prevent, or reduce the risk of prostate cancer. F. 1135-1138.

Having fully considered and weighed all the evidence and the conflicting expert testimony on Respondents’ basic research and clinical trials, the greater weight of the persuasive expert testimony demonstrates that there is insufficient competent and reliable scientific evidence to substantiate a claim that the POM Products treat, prevent, or reduce the risk of prostate cancer or that clinical studies, research, and/or trials prove that the POM products treat, prevent, or reduce the risk of prostate cancer. F. 1143. Accordingly, Complaint Counsel has met its burden of proving that Respondents’ substantiation was inadequate to make the implied prostate cancer claims found to have been made in this case, and that, therefore, such claims were false or misleading.

The ad concludes with the following cited "claim" from the judge's decision:

"Competent and reliable scientific evidence shows that pomegranate juice provides a beneft to promoting erectile health and erectile function." (page 188)

In fact, page 188 cites various studies that are being examined by the court, including the one above and the one I cite below, also on page 188.

There is insufficient competent and reliable scientific evidence to show that pomegranate juice treats erectile dysfunction in a clinical sense or has been clinically proven to do so. (Burnett Tr. 2285, 2300; Goldstein, Tr. 2611; CX1289 (Melman Expert Report at 0018). See also Burnett, Tr. 2261-64).

And here is part of the court's final conclusion:

The weight of the persuasive expert testimony demonstrates that there was insufficient competent and reliable scientific evidence to support the implied claims, made in advertisements disseminated by Respondents, that the POM Products treat, prevent or reduce the risk of heart disease, prostate cancer, or erectile dysfunction, or are clinically proven to do so. Therefore, such claims were false or misleading within the meaning of Section 12 of the FTC Act, and Complaint Counsel met its burden of proving the second element of a false advertising claim.

Once again - If it seems too easy to be true - best check it out!!

Amend Our Constitution

How should our Constitution be regarded.  Aside from its organizational function, was it primarily intended to serve as a set of principles or as a set of laws.  A set of principles is forever open to interpretation and re-interpretation.  A law establishes a "rule" which, if not adhered to, results in some form of sanction.  Granting a person the right to privacy is a principle, not a law.  It does not define privacy or private acts.  Barring the sale of alcoholic beverages is a law.   Non-adherence to this law results in punishment.

Principles may be regarded differently by different people.  Since justices of the Supreme Court are people, it follows that they, too, will have a variance in opinions.  It is expected and understood.  Judgements are easier if there is legal clarity.  Basing opinions on undefined general principles will always be open to criticism.  Constitutional clarity can be achieved with constitutional amending.

Our Constitution can be amended - very difficult, but possible.  There have been only 27 amendments since 1787 (225 years), and only 17 of them since the Bill of Rights, and only 12 since those immediately following the Civil War!  It has been 20 years since the most recent amendment, the 27th, was ratified.  None of the more recent amendments deal with anything substantial, unless you consider lowering the voting age to 18, or restricting the method of determining congressional salaries as such.

We often criticize the decisions of the Supreme Court in its constitutional rulings and accuse it of legislative rather than judicial activity - of being an "activist" Court.  But it is seen as an activist Court only when it has no legislation to direct it.  There is nothing in the Constitution about abortion or about gay marriage.  The Constitution gives absolutely no guidance on such "social" or "moral" issues.  To use this document as a basis for such social decision-making is truly a stretch - no matter what side of the issues one is on.

State courts have no problems in dealing with social issues.  Quite a number of states have passed amendments to their constitutions dealing with gay marriage and abortion.  Why should it be so difficult for our legislators to do the same for our federal Constitution.  So long as the Constitution does not include specific amendments addressing these social issues, resolutions and rulings may never be permanently achieved.  It is nonsensical for gay marriage to be acceptable in New York, but not in New Jersey.  It is just wrong for the federal advantages of marriage to not apply to legal same-sex marriage because it is not recognized by the federal government.

These controversies will continue to be argued on constitutional grounds though, in fact, such grounds are non-existant - and will remain so until appropriate amendments clarifying these important social matters are added.  If we have a "living Constitution," then it deserves to "live" in modern times.  It should be re-evaluated and amended on some recurrent basis.

Putting a Value on Human Life

The philosopher Peter Singer has cited the following syllogism:

It is wrong to kill an innocent human being.

A human fetus is an innocent human being.

Therefore it is wrong to kill a human fetus.

The conclusions of the pro-life movement in this country are based on the second portion of this argument; that  a fetus is an "innocent human being."

Singer and others do not disagree with the second premise, but with the first; that it is wrong to kill an innocent human being.  His disagreement with the conclusion, therefore, is based on the idea that it is not always wrong to kill an innocent human being.

Arguments that a fetus, at any stage of development, is not a human life will forever remain a challenge, especially as the ability of salvage a fetus of almost any age, will eventually reach reality.  If one  accepts the second premise in the above syllogism, then the only way to endorse abortion is to agree to the first premise, as does Singer.

The only way I can place a value on human life is to measure its value when related to another human life, or human lives.  It is acceptable, at least philosophically, to sacrifice the life of one innocent person  in order to save the lives of many - the old argument of who to toss out of a lifeboat, or whether or not to avoid running over a child, when avoiding the child would result in the destruction of a busload of innocent human beings.

The life of a fetus, at any stage of development, comes into question when its life can impact negatively on the life or health of its mother.  Singer bases such decisions on "preferences."  What is the preference of the mother compared to the preference of the fetus?  A "preference" he defines as something sought to "be obtained or avoided," and to have any preference at all requires the ability to suffer or feel satisfaction.  It falls to reason that a very immature fetus could not possibly express a preference, whereas a mother certainly could.  This, in Singer's philosophy, would deem the life of the mother more valuable than the life of the fetus, in the difficult situations where a choice must be made between the two.

This argument does not apply to questions of choice in multiple gestations.  What should be done if it is deemed necessary to destroy one (or more than one) fetus in order to assure the survival of the others?  Which fetus should be sacrificed if all are equally vulnerable?  How could this decision be made?  Should it be left to the physician to decide?

Talmudic scholars have assessed a mother's life as more valuable than that of her fetus.  Violence directed at a pregnant woman that results in the demise of her fetus does not carry a death penalty, but a monetary one.  The value of a fetus becomes equal of that of the mother only when one-half of the baby has been delivered.

When a decision as to who obtains a heart transplant has to be made between two individuals, both of whom have equal abilities to suffer or feel satisfaction, it is the one who is most medically needy.  If both are equally needy, it is the one who is first on the list.

Difficult decisions or choice will remain difficult decisions of choice - but there are clearly instances where they must be made.  Onerous, yes - but necessary, absolutely!

Is the Fetus, In Fact, a "Child?" Yes, Says Nebraska!

An editorial in todays New York Times provides a fascinating story concerning "the strange road" taken by the Legislature of the State of Nebraska.  The Legislature has deemed a fetus eligible for the State Children's Health Insurance Program!  And, even more unusual, is the fact that this bill is supported not only by Nebraska Right to Life and the Nebraska Catholic Conference, but by Planned Parenthood!

How did this strange partnership occur?  Turns out the Governor of Nebraska had vetoed a bill intended to provide free pre-natal care to undocumented immigrants.  The Governor considered the bill a violation of extant immigration laws and referred to the law as "misguided, misplaced and inappropriate."  The Legislature subsequently ruled that "unborn children do not have immigration status and therefore are not within the scope" of laws affecting "illegal" immigrants, and consequently have the same rights to medical care (pre-natal) as do "born" children (post-natal).  The program is expected to cost Nebraskans $2.5 million a year

Nebraska has, in effect, now officially declared a fetus eligible for medical insurance coverage, extending all the rights of "born" children to "unborn children."  This brings the status of abortion into question in Nebraska.  Nebraska's abortion laws allow abortions only "before viability or if woman is victim of abuse or neglect or if the M.D. has certification in writing that the continued pregnancy is a threat to woman's life, health."

Will a fetus "before viability" be entitled to medical coverage in Nebraska?  If so, the "non-viable" fetus clearly has a new legal status granting him certain rights,  raising the even larger issue as to whether an abortion on such a fetus could ever be considered.  If, on the other hand, the "before viability" fetus is not eligible for this medical entitlement, then may his "illegal" mother still be provided with free pre-natal care, or must she wait until her fetus attains viability?

The Supreme Court Justices - Are They "Hacks"?

President Obama comments on a case presently before the Supreme Court, feeling confident that the Court will do the right thing and duly confirm an act of Congress, not setting a precedent for unconstitutionality in such a situation.  Columnist Maureen Dowd has written that the Court "has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes."

Of course the President's comments are clearly incorrect.  As a matter of fact, the duty of the Court to establish constitutionality was set as precedent way back in 1803 when it ruled an act of Congress unconstitutional in Marbury v. Madison.

There is some truth in Maureen Dowd's assessment that the Court is "unbiased" and "run by hacks," though I would refrain from using such an obviously negative term.  It is, after all, composed of political appointees.  The President is a politician ("hack?") and has, in recent history, always appointed justices that he predicts will share his view of what is constitutional and what is not.  Occasionally there may be a surprise, e.g.  Eisenhower's appointment of Earl Warren, Kennedy's appointment of Byron White, Ford's appointment of John Paul Stevens, and George H.W. Bush's appointment of David Souter.

Our Constitution is open to interpretation.  Even in cases of unanimity, the justices have offered varying interpretations of the law in explaining their opinions.  Why should it be unusual to expect politically appointed justices to follow the principles that determined their appointment in the first place?  An article so vague as is the one describing the federal government's rights vis-a-vis commerce - the word "commerce" itself being undefined - would especially be open to such critical evaluation.

The Court's decisions are certainly open to criticism, but only after rendered.  It is not fair to inveigh against the Court based on what one expects an outcome to be, and without having read the opinions once submitted.  I have read the majority and minority positions on a number of cases.   Though I may disagree with a verdict of the Court, it is my committed belief that the justices arrive at decisions based on an intelligent, as well as a "reasonable and proper" reading of the Constitution - a reading which may, at times, result in the rejection of an otherwise good and well-meaning act of Congress.

The Constitutionality (Or Lack Thereof) of the Affordable Care Act

The Supreme Court must now decide whether individuals can be constitutionally mandated to purchase a basic form of health insurance.  I think there is little disagreement that such a plan would be important in providing health care coverage for most every American.   For insurance companies to offer  customers having major medical conditions a reasonable rate, a pool that includes the very healthy seems necessary to mitigate what would otherwise be a weighty financial burden.

The Court must now decide whether a good bill - a bill that potentially offers major benefits to almost everyone, should be deemed constitutional.  But the constitutionality of a legislative act should not depend on its worth or lack thereof.  Constitutionality should rest solely on proper reading and interpretation of the various articles, clauses, and amendments of which the Constitution is comprised, and the stare decisis factors involved.

The Affordable Care Act, at best, treads the thinnest of constitutional lines.  Never in U.S. history has a citizen been required to participate in a business - in this case the medical insurance business.  No one over 26 years of age can choose to opt out, no matter how rich, no matter how healthy - with rare exceptions.  Constitutionality primarily resides in interpretation of the "commerce clause" contained in
Article 1, Section 8, Clause 3, of the Constitution which empowers Congress and "to regulate commerce with foreign nations, and among several states, and with the Indian tribes." The term commerce as used in the Constitution means business or commercial exchanges in any and all of its forms between citizens of different states, including purely social communications between citizens of different states by telegraph, telephone, or radio, and the mere passage of persons from one state to another for either business or pleasure.

Interpretation has always been directed at parties actively involved in some form of commercial activity.  There has never been a legal compulsion for citizens to participate in a commercial activity should they choose not to do so.  Though the argument can be made that all citizens participate in the "business of health" - if not on an active basis, on a passive basis - by the mere virtue of being alive, the case is hardly dispositive.  To add to the interpretive complexity, citizens are not actually required to participate in the "business of health," but in the "business of insurance."

My feeling is that a federal requirement to buy health insurance, though advantageous to the general welfare on its face, does not pass constitutional muster.  Matters that the government feels are proper for the general health and welfare of its citizens, should be supported by the citizenry via a properly applied tax or tax credit.    The taxing power of the federal government remains unquestioned and without challenge.

It appears that the legislative process, finding itself unable to provide needed health care to the citizenry via a "Medicare for all" system, passed an act that compels purchase of a commercial product - an act that stretches the interpretation of the Constitutional commerce clause too far.

Health Care Rationing - What Is a Death Panel

Health care rationing is discussed by Professor Alan B. Cohen in a Letter-to-the-Editor in today's NY Times (March 21, 2012).  In his letter, Professor Cohen beclouds the true issue that "rationing" implies.  The term is understood to apply to the so-called "death panels," an unfortunate euphemism for limiting health care in certain situations.  Americans must come to understand the enormous percent of the medical dollar consumed during the last years of life (estimated at 33% in some studies), most often without significant life-extension, and the prodigious sum expended on those with terminal illnesses, often on procedures and pharmaceuticals that are at best of questionable value.  The health care dollar is best applied where it is clearly shown to be of significant benefit. We need "panels" to perform well-constructed "outcome studies" to properly evaluate how the shrinking health-care dollar is best applied, and to consider restricting re-imbursement to those applications.

Except for the unlikely discovery of some future inexpensive panacea, Americans must come to accept the fact that the existential advances in medical research and technology (also very expensive) - their intent being to eliminate disease and extend life - are associated with massive increases in cost.  This is the true "reality" that "life-panels" will need to address.

A Jewish State and its Anthem

Recent photos and videos of the swearing-in ceremony of the new Chief Justice of Israel depicted a respectful, but silent Supreme Court Justice Salim Joubran during the singing of the Israeli national anthem "Hatikvah ( Hope)."  Justice Joubran, a Christian Arab, born in Haifa, apparently feels constrained when asked to participate in a vocal rendering of the anthem.  An English translation of the anthem is as follows:

As long as deep in the heart,

The soul of a Jew yearns,

And forward to the East

To Zion, an eye looks

Our hope will not be lost,

The hope of two thousand years,

To be a free nation in our land,

The land of Zion and Jerusalem.

One can understand the Justice's reticence.  The anthem is most definitely a composition that is devoted to Israel as the hope and soul of the Jewish people.  Long before there was an Israel, this poetic expression representing millennia of Jewish yearning, composed by Naphthali Herz Imber in 1878, and adopted as an "anthem" by the Zionist convention of 1897, has, in all liklihood, been sung by most every Jew at one time or another.  Recordings of liberated survivors of the Bergen-Belsen concentration camp singing "Hatikvah" upon their release, have been reproduced and replayed during Jewish High Holy Day services.   I think it is fair to say that the anthem has almost become a part of the Jewish liturgy and is performed at many Jewish occasions around the world, independent of any Israeli association.

This has raised a controversy in Israel and in the rest of the Jewish world.  Is it acceptable for non-Jewish Israelis to stand silent during the singing of the nation's national anthem?  After all, 20% of Israelis would fall into this category.  Should the words of "Hatikvah," then, be altered to accommodate this significant non-Jewish population?

A resounding "yes" to "standing silent."  No one should be expected to intone words that do not express one's beliefs.   No citizenry of any state should be required to sing its anthem, or pledge allegiance to it.  Loyalty does not require public expression of loyalty.  A resounding "no" to altering the anthem's content.  Israel is The Jewish State! " Hatikvah" beautifully expresses that existential fact.  Provided that Israel exists as The Jewish State,  the non-Jewish citizenry must remain aware of and respect Israel's Jewish history and Jewish identity.

More Church-State Issues. Where Does It End?

Should an organization morally opposed to certain behavior accept funding from organizations that support such behavior?  Is it ethically proper for such an organization to employ individuals who support such behavior, thereby paying them a salary which could be used in its support?

Should a religious organization operating in the public sphere be permitted to operate without adhering to the regulations affecting that public sphere?  Should this organization employ taxpayers whose taxes will support the regulations to which the organization is opposed?

If contraception, or some other issue, is contrary to your moral and ethical code, then not only should you not provide services supporting these unacceptable actions to your employees, but you should be certain that any salary paid to your employees not be spent on such activities, either directly, or indirectly via donation to organizations supporting them.  Perhaps all employees should be asked to sign a statement indicating that they will refrain from expending salary on activities deemed immoral or unethical by the employer.

If you, as my employer, will not provide insurance to cover certain approved medical procedures due to  moral issues with the procedures, then how can it be morally correct for you to hire me and furnish me with a salary knowing that it will be used to participate in these "immoral actions?"  What you are really doing is "laundering" the financing of the procedures by paying me to buy it indirectly, rather than my obtaining it directly through an employer-supported insurance plan.

Now what?

The Constitution of the United States - Is It Time for a Change

Supreme Court Justice Ruth Bader Ginsburg was recently quoted as saying "I would not look to the U.S. Constitution if I were drafting a constitution in year 2012.  I might look at the constitution of South Africa.  That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary.  It really is, I think, a great piece of work that was done."

The complaints that have been raised about our venerable document is that it has become outdated and almost impossible to change.  As a result the concept of a "living Constitution" has been formulated, that is a Constitution that must undergo some type of Darwinian evolution - which evolution is the interpretation present-day courts assign to it.

Justice Antonin Scalia has commented that there can be no evolution without some agreement as to what the "guiding principle of the evolution" is to be.  In his opinion "as soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful.......which means that evolutionism is simply not a practicable constitutional philosophy."

Is a document completed in 1789, with the first 10 amendments (The Bill of Rights) added in 1791, to be the basis of our way of governing and our way of living in the 21st century?. Since that time (221 years) there have been only 17 additional amendments.  Isn't it true that what is constitutional and what is not constitutional remains so very vague today?  Does the 14th amendment which includes the phrase "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" truly have any real relationship (other than evolutionary) to a right to have an abortion?

Yes, the Founders created a system of laws, but not long after the Founders completed their work, successive lawmakers had no qualms about altering the document.  Amendments concerning abolishment of slavery, rights of citizenship and rights to vote were passed 1865-1870.  No further amendments were added for the next 43 years!  There were two amendments  appended since 1913 that could be considered to be concerned with citizen rights - the abolition of the poll tax, and women's suffrage.  The remainder deal with procedural issues, such as presidential terms,  presidential succession, prohibition, income tax, voting age reduced to 18, popular election of senators, et. al.

Could there not be room for a new, more up to date, Bill of Rights that would take into account the many factors that have influenced the world today, whether technical, scientific, evolutionary, and/or sociologic.  Thomas Jefferson believed that a country’s constitution should be rewritten every 19 years (the approximate span of a generation.) Instead, the U.S. Constitution, which Jefferson did not help to write (he was in Paris serving as U.S. minister to France when the Constitutional Convention was held in Philadelphia), has prevailed since 1789.  He felt "the dead should not rule the living."

Was he right?