“Death Panels”: Hyperbole? Yes. A Lie? I Don’t Think So

For better or worse much of the debate over health care health insurance reform has concerned “death panels,” which opponents of the president’s reform proposals think notorious and supporters think non-existent. Sarah Palin’s attack on these alleged “death panels” on Facebook ratcheted up the debate, and her criticism has brought renewed attention to Dr. Ezekiel Emanuel, an influential health care advisor to President Obama and also brother of Rahm Emanuel, the president’s chief of staff.

In a recent entry on Facebook Palin pointed an accusing finger at Dr. Emanuel, quoting a few passages that bother her from some of his academic writing:

Dr. Emanuel has written that some medical services should not be guaranteed to those “who are irreversibly prevented from being or becoming participating citizens…. An obvious example is not guaranteeing health services to patients with dementia.” Dr. Emanuel has also advocated basing medical decisions on a system which “produces a priority curve on which individuals aged between roughly 15 and 40 years get the most chance, whereas the youngest and oldest people get chances that are attenuated.”

President Obama can try to gloss over the effects of government authorized end-of-life consultations, but the views of one of his top health care advisors are clear enough. It’s all just more evidence that the Democratic legislative proposals will lead to health care rationing…. [Citations omitted]

Palin is not alone in pointing to Dr. Emanuel as a leading source of the anti-geezer rationing and service denial that critics see in the president’s proposals. Writing in the New York Post in an article titled “Deadly Doctors,” health care expert and former New York Lt. Gov. Betsy McCaughey, noting that Dr. Emanuel “believes that ‘communitarianism’ should guide decisions on who gets care,” pointed to the same quote used by Palin and others:

He says medical care should be reserved for the non-disabled, not given to those “who are irreversibly prevented from being or becoming participating citizens . . . An obvious example is not guaranteeing health services to patients with dementia” (Hastings Center Report, Nov.-Dec. ’96).

Now, after having been singled out as virtually Dr. Death, the evil genius responsible for the Death Panels, Dr. Emanuel has decided to fight back. In interviews with the Washington Post and Chicago Sun Times, he fires back at his critics, but a close examination of his more controversial writings suggests that many of his cartridges are blanks.

The Sun Times article yesterday, by Washington Bureau Chief and columnist Lynn Sweet, was in fact a sweet puff piece: Ezekiel Emanuel, Rahm’s brother, fights death panel health care smears. “Ezekiel Emanuel,” it began,

is a noted oncologist, bioethicist, older brother of White House chief of staff Rahm Emanuel, an Obama administration health policy adviser — and the target of smears by Sarah Palin and other critics of Democratic health care legislation. He’s now fighting back….

Emanuel is no “Dr. Death,” though he has published a lot on end-of-life issues. He is an opponent of legalizing euthanasia and physician-assisted suicide.

In recent weeks, Emanuel has been accused — falsely — of advocating those so-called death panels you may have been hearing about in the swelling coverage of raucous town hall meetings and debate over President Obama’s health care overhaul measures pending in Congress.

And what did the good doctor say?

“I think it is pretty absurd and surreal, really. It’s completely twisting my writing, and I venture to say that most of the people who are commenting probably have not read them in detail, since certainly death panels are very far from anything I’ve ever advocated. I’ve been an opponent of euthanasia, and I have dedicated 25 years of my career to improving care for patients who are facing the last months and weeks of their life,” Emanuel said.

“As far as rationing goes, it’s nothing I’ve ever advocated for the health system as a whole, and I’ve talked about rationing only in the context of situations where you have limited items, like limited livers or limited vaccine, and not for overall health care.”

….

Emanuel said articles in medical journals he wrote did not, contrary to Palin’s suggestion, suggest that treatment be withheld from children like her Down syndrome baby, Trig, and that the use of selective quotes created a distorted picture.

In his interview with the Washington Post’s Ezra Klein, to appear tomorrow (Aug. 16), Dr. Emanuel once again accused his critics of misreading his articles, quoting him out of context, etc.

So how did all this get started?

You’re asking me? I’m just the victim here. All I know is the New York Post ran a article attacking me. I think lots of people decided it might be an easy way to kill health-care reform.

The New York Post quoted a 1996 article you wrote saying that some people believe health-care resources shouldn’t go to those “who are irreversibly prevented from being or becoming participating citizens.” What was your point?

I was examining two different, abstract philosophical positions to see what they might offer in the context of redoing the health-care system and trying to reduce resource consumption in health care. It’s as abstractly philosophical as you can get on a practical question. I qualified it in 27 different ways, saying it wasn’t my view.

Now I’m certainly no bioethicist, and maybe my reading skills are as poor as Dr. Emanuel asserts, but I have read closely what seem to be the two most salient articles, and I think in these interviews the doctor is blowing smoke.

First, let’s look at “Where Civic Republicanism and Deliberative Democracy Meet,” The Hastings Center Report, Vol. 26, No. 6 (Nov. – Dec. 1996), which is online here. It is true that this article is heavily philosophical and that it presents and evaluates a number of methods of allocating health care resources, but it’s premise is that the United States “has repeatedly failed to enact universal health coverage” because of an ethical defect:

the reason the United States has failed to enact universal health coverage is not primarily political or economic; the real reason is ethical — it is a failure to provide a philosophically defensible and practical mechanism to distinguish basic from discretionary health care services.

The article attempts to cure that ethical defect by laying out just such “a philosophically defensible and practical mechanism to distinguish basic from discretionary health care services.” After evaluating and dismissing several approaches to separating basic from discretionary health services, Emanuel presents his own “communitarian” or “civic republicanism” solution, which is worth quoting at slightly greater length than his other critics have done:

This civic republican or deliberative democratic conception of the good provides both procedural and substantive insights for developing a just allocation of health care resources. Procedurally, it suggests the need for public forums to deliberate about which health services should be considered basic and should be socially guaranteed. Substantively, it suggests services that promote the continuation of the polity — those that ensure healthy future generations, ensure development of practical reasoning skills, and ensure full and active participation by citizens in public deliberations — are to be socially guaranteed as basic. Conversely, services provided to individuals who are irreversibly prevented from being or becoming participating citizens are not basic and should not be guaranteed. An obvious example is not guaranteeing health services to patients with dementia. A less obvious example Is is guaranteeing neuropsychological services to ensure children with learning disabilities can read and learn to reason.

How anyone can read this article with this conclusion and believe Emanuel when he says now that it “wasn’t my view” that limiting health services to those who are not and cannot become “participating citizens,” who do not “promote the continuation of the polity,” is beyond me. Does he really think that his critics are unwilling or unable to read?

A much more recent article, “Principles For Allocation Of Scarce Medical Interventions,” The Lancet, 31 January 2009, presents this same view in much more detail. Once again, various approaches to allocating scarce medical resources are evaluated —

We evaluate eight simple allocation principles that can be classified into four categories: treating people equally, favouring the worst-off, maximising total benefits, and promoting and rewarding social usefulness

— and once again, all are rejected.

First-come, first-served is flawed in practice because it unwittingly allows irrelevant considerations, such as wealth, to affect allocation decisions, whereas a lottery is insufficient but not flawed. Similarly, sickest-first allocation is inherently flawed, whereas the youngest-first principle, though insufficient, recognises the important value of priority to the worst-off. Both utilitarian principles — maximising lives saved and prognosis — are relevant but insufficient, and usefulness and reciprocity are relevant where irreplaceable individuals make serious sacrifices, such as those during public health emergencies.

Because these approaches, and others I didn’t mention, don’t work, Emanuel et. al. come up with their own: “the complete lives system.” This system, they note, “prioritises younger people,” although it “supports modifying the youngest-first principle by prioritising adolescents and young adults over infants.” Why?

Adolescents have received substantial education and parental care, investments that will be wasted without a complete life. Infants, by contrast, have not yet received these investments. Similarly, adolescence brings with it a developed personality capable of forming and valuing long-term plans whose fulfilment requires a complete life.

This focus on “investments” gets to be a bit dicey for liberals like Emanuel, but not to worry; they account for it.

Importantly, the prioritisation of adolescents and young adults considers the social and personal investment that people are morally entitled to have received at a particular age, rather than accepting the results of an unjust status quo. Consequently, poor adolescents should be treated the same as wealthy ones, even though they may have received less investment owing to social injustice.

They don’t tell us how to choose between a poor older adolescent adult in whom little has been invested and a younger adolescent or adult in whom much has been invested.

They also consider prognosis, since doing so “forestalls the concern that disproportionately large amounts of resources will be directed to young people with poor prognoses.” Old people with poor prognoses don’t even figure in the equation (Bye Bye, Grandma). However, “[s]aving the most lives is also included in this system,” you’ll be glad to hear, “because enabling more people to live complete lives is better than enabling fewer.” These guys aren’t bioethicists for nothing.

Finally,

the complete lives system produces a priority curve on which individuals aged between roughly 15 and 40 years get the most substantial chance, whereas the youngest and oldest people get chances that are attenuated..

Don’t you just love that attenuated? “Sorry, Grandma, we’re not rationing your care. All we’re doing is attenuating your chances relative to someone younger.”

To those of us who aren’t sophisticated bioethicists, this “priority curve” may seem like age discrimination, but not to worry. Emanuel and friends assure us it is not. Listen to their reason:

Age-based allocation is ageism. Unlike allocation by sex or race, allocation by age is not invidious discrimination; every person lives through different life stages rather than being a single age. Even if 25-year-olds receive priority over 65-year-olds, everyone who is 65 years now was previously 25 years. Treating 65-year-olds differently because of stereotypes or falsehoods would be ageist; treating them differently because they have already had more life-years is not.

So, ageism is not ageist. Got that? [D]enying services to old people because they are old — excuse me, “because they have had more life years” — is not age discrimination? Your future health care (and you grandmother’s), as InstaPundit would say, is in good hands.

What Dr. Emanuel says he said is so opposite from what he actually said that I might have begun to question my own ability to read, except that Sarah Palin and Betsy McCaughey (whom Emanuelites will dismiss as mindless partisans) are not the only ones to read him as I do. The Atlantic’s Marc Ambinder, who likes Emanuel’s “communitarian vision,” quotes with approval the now-well known quote about denying health care services to those whose dementia prevents them from participating appropriately in our society, and adds:

Emanuel is setting up a contrast: our health care system today treats everyone equally — as if they ought to have equal access to every possible procedure or treatment. To most of us, the status quo seems intuitively right. Everyone is equal — equal under God — Emanuel doesn’t say this, but he might as well — and therefore it would be evil to make distinctions. What Emanuel is arguing, here, is that this liberalism substitutes one goal — equality — for another — a healthy society — and that substitution may be responsible for the limited choices that policy-makers confront.

Mickey Kaus also reads Emanuel the same way, although unlike Ambinder, whom he quotes, he concludes:

Well, if you put it that way … I’m for equality! For a health care system that “treats everyone equally,” even if it’s expensive. Against a system that would deny “services … to individuals” who won’t ever achieve “full and active participation .. in public deliberations.”

Now none of this means Dr. Emanuel supports “death panels,” but it pretty clearly does mean that his denials in the current interviews about what he’s said should be taken with more than a grain of salt. It is also true, as the invaluable Mickey Kaus has also pointed out, that too much of the “death panel” conversation has concentrated on the end of life consultations rather than on the proposed IMAC panel, the government-appointed but “independent,” i.e., not responsible to Congress, board that would tell hospitals and doctors about what services are basic, etc. Thus when President Obama repeats, as he now seems to do almost endlessly and did again yesterday in his radio address, that only “[t]hose who would stand in the way of reform” are worried about “bureaucrats getting between you and your doctor,” he may be correct in the most limited, spatial way. The bureaucrat to worry about will not be standing between patient and doctor; he will be hovering over the hospital, the doctor, and the patient telling them all what the government will pay for and what it won’t.

Finally (really), because this is a blog about discrimination, I need to relate Dr. Emanuel’s health care “communitarianism,” i.e., his subordination of individual rights to the needs of the community, to the “communitarianism” that is at the root of much racial preference theory. Mickey Kaus noted, in the first of his posts linked above, that civic republican communitarianism is a version of modern liberalism popularized (to a degree) by the Harvard philosopher Michael Sandel. As some of you with long memories may recall, we have encountered Sandel and his theory here a couple of times, way back in 2003, in discussing how preferentialists have abandoned individual rights in favor of group rights (discriminating against individual whites and Asians isn’t discrimination because whites and Asians as a group suffer no undue hardship).

One particularly obnoxious example occurred in Montgomery County, Maryland, in 1995, when the request by parents of two Asian-American kindergartners who wanted the girls to enroll in a French immersion program at another school was denied. School officials told the parents, as I quoted from a Washington Post article, that “their departure from Takoma Park would further deplete the number of Asian students there.”

One of the parents told the board that there were no more Asians in the school where her daughter wanted to transfer than there were where she was enrolled and thus that allowing her to transfer would not have any negative impact on diversity. Paul L. Vance, the Superintendent, replied to the board … “that nothing in the school system’s policy permits ‘robbing Peter to pay Paul’ by hurting the diversity of one school to help it at another.”

What is even more striking than this offensive policy is the defense of it by “diversity” advocates. For example, one of the arguments made by Gary Orfield, at that time Director of the Harvard Project on School Desegregation (now at UCLA), who had written a report critical of Montgomery County for backsliding in its diversity efforts, was that no one has a right to go to the school of his choice. This argument, I noted in the post just linked,

echoes a common refrain from liberal apologists of diversity. Here, for example, is the eminent “communitarian” Harvard philosopher, Michael Sandel, making essentially the same point.

Here lies the far-reaching assumption underlying the diversity argument for affirmative action: admission is not an honor bestowed to reward superior virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Provided the criteria of admission are reasonably related to a worthy social purpose, and provided applicants are admitted accordingly, no one has a right to complain.

The moral force of the diversity argument is that it detaches admissions from individual claims and connects them to considerations of the common good. (“Picking Winners,” THE NEW REPUBLIC, December 1, 1997, p. 17)

“Both Orfield and Sandel, I concluded,

confuse not having a right to attend the school of one’s choice (which is true) with not having a right not to be excluded based on race (which is not true). What a sad and bedraggled thing liberalism has become.

Dr. Emanuel’s ridiculous argument that discriminating against people because of how old they are, “because they have had more life years,” is not age discrimination and his support for “attenuated” health services for the old and others unable to participate in society to the degree deemed necessary by IMAC or some other board does nothing to make it less sad and less bedraggled. And his futile attempts in these recent interviews to deny that he said what he said suggest that in this administration even the resident ethicists are not above dissembling and misrepresentation.

UPDATE [16 August]

Tom Maguire documents the zig of Obama’s own contribution to the rational belief in “death panels” (“or cost oriented trade-offs for end-of-life care”) and then his zag away from his earlier position, with each zig and zag dutifully followed in lockstep by the New York Times.