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!