The Freedom Bulletin

William Anderson at LewRockwell.com has a great article about a brave freedom fighter that the world lost on Christmas Eve. Siobhan Reynolds was an advocate against overzealous federal prosecution of doctors who prescribe pain medication, and its horrible effects on people who suffer from pain. Her husband died after the only doctor who would prescribe him the medication he needed was forced out of business (and thrown in jail) by federal prosecutors. As a result, she founded the Pain Relief Network, with the mission of educating people about pain medication and advocating for those suffering from chronic pain and doctors who treat them. As a reward for her advocacy and courageous exercise of her free speech rights, she became the subject of a grand jury investigation for obstruction of justice, forcing her organization to close.

“Reynolds had a husband, Sean, who had a serious health problem, a congenital connective tissue disorder that left him with debilitating pain in his joints. Like so many others in the USA who suffer from severe chronic pain, he was unable to receive adequate medical relief because the U.S. Drug Enforcement Agency, not doctors, determine what is a ‘legitimate medical purpose’ for prescribing of opioids for pain. However, Siobhan’s husband finally found a physician, Dr. William Hurwitz, a doctor in Northern Virginia, who was willing to write prescriptions for higher doses of pain-killers.

The higher doses worked, and for the first time in years, Siobhan’s husband was able to function at a much more normal level, but such satisfactory results were anathema to the nation’s drug warriors, and especially to U.S. Attorney Paul McNulty, the Religious Right federal prosecutor who might have publicly proclaimed his Christian beliefs, but did not carry them to his line of work…

Dr. Hurwitz, his life and medical practice shattered, his family destroyed, and his future in prison, was not the only victim of McNulty’s viciousness. (While in prison, Dr. Hurwitz developed an eye disorder, and because of the lack of decent medical care provided for federal inmates, he became blind in one eye.) Patients suffering from chronic pain – people who at best McNulty considered to be ‘collateral damage’ – found themselves in a desperate situation. The Hurwitz prosecution not only kept him from writing prescriptions, but other doctors did not want to experience the same fate and refused to adequately treat certain patients for pain.”

Anderson’s article is a must read – he makes excellent points about patients’ rights, prosecutorial and judicial misconduct, the doctrine of mens rea, statutory vagueness, and more. Read it at his blog or at LewRockwell.com.

The headline for this article in LewRockwell.com’s archives reads, “The War on Drugs Is the War for Pain.” What a perfect description of how wrong and misguided the federal government’s policy on prescription pain medications is. It is bad enough that we have the Durham-Humphrey Amendment, which takes away each person’s right to decide for themselves which medications to take, and only allows them to take medications that a doctor approves of. Now, doctors don’t even have the right to prescribe the medications that they think are appropriate. They are browbeaten, by the threat of federal prosecution, into disrespecting their patients’ wishes and depriving them of the pain medications that they need to function. It is unacceptable that, when companies are willing to produce effective pain medications and people are willing to buy them, people are not allowed to gain adequate relief for their pain. What could be a more unworthy cause to fight for, and what could more defeat the purpose of life, than to subject innocent people to needless pain?

If one thing is for sure, it’s that medical costs have gone up recently. A new study showed that health insurance prices rose, on average, 9% in the past year. The Affordable Care Act may very well share the blame for this, and so might the fact that doctors perform too many medical procedures (surprisingly, doctors themselves admit to this).

But logic indicates that the main cause of how much something costs is…well…the price the seller chooses to charge. You wouldn’t think the New York Times would have to do an article on this obvious fact, but they did.

The reason why doctors and hospitals charge so much for their services is simple: because they can do so without losing customers. If you have cancer, for example, you might need chemotherapy to live, and if you have a broken bone, you need to get a cast. People don’t have the option of going without these things if they decide they cost too much money. In economic terms, the demand for health services is inelastic. Governmental policies have exacerbated this problem – for example, the Durham-Humphrey Amendment by requiring people to visit a doctor and get a prescription before being allowed to buy medication, and the individual mandate by actually requiring people by law to buy health insurance.

The only solution to this problem, in my opinion, is price ceilings. This idea has been floated around a little bit, including in California where a bill called AB 52 would limit health insurance price increases, by Massachusetts Governor Deval Patrick, who created a similar policy, and more recently, State Rep. Ron Mariano, who more sensibly focused on the prices of health services themselves, proposing a bill that would limit prices paid to the costliest hospitals. This bill is definitely a step in the right direction.

As such an ardent advocate of liberty, it might appear strange to support government telling businesses how much money they can charge. Shouldn’t people be able to engage in any transactions they choose? But I look at excessive prices as akin not to consensual transactions but to extortion. People have a right to their own money, and doctors do not have a right to suck a person dry of all their money for performing a medical procedure that the person needs to live. Doctors, just like any other merchant, deserve compensation for the services they sell, but because their customers are not truly choosing to purchase those services, doctors should not be allowed to take so much money that people have no more money left to spend on anything else. It would be impossible for everyone to agree on a particular price at which a transaction becomes extortion. But people should certainly be discussing this question and working toward instituting a price ceiling on medical services, instead of continuing to let doctors and hospitals extort people.

There’s nothing wrong with the government setting maximum prices that sellers are allowed to charge for goods and services that have inelastic demand. The Boston Herald called Mariano’s idea “a move toward government price controls, plain and simple.” But I believe there is nothing wrong with that.

Google agreed today to pay $500 million to the federal government because it allowed Canadian pharmacies to use its advertising services. The problem, according to the government, is that the drugs from Canada sold on these websites are not subject to FDA approval and might even be available without a prescription.

But in a truly free society, this should not be a problem. Companies should not be able to deceive their customers by exaggerating the benefits or hiding the risks of their products. But this doesn’t mean that people should only be allowed to have the medications that the government has determined are safe. People have a right to buy medications from other countries if they want to, including those that are risky or unproven, and people certainly have a right to make their own decisions about what medications to put into their bodies, with or without a doctor’s input.

The investigation into Google is just another example of how the FDA – in particular the Durham-Humphrey Amendment, which made it illegal to obtain many medicines without a doctor’s permission – unjustly takes away people’s liberties.

Apparently, the Boston Globe opinion page is the place for people who think it’s perfectly OK for people to be forced to have their private parts either seen or touched in order to board an airplane. Well, to be fair, there were two good letters (1 and 2) to the editor today in support of people’s right to travel freely while keeping their private parts private.

But there was one from a lady who gives “a resounding hurray” for strip-search machines because the metal in her hip would set off the metal detectors, and the strip-search machine is “so much easier, faster, and less invasive” than the pat-down that she would otherwise get. What she doesn’t get, though, is that to have strip-search machines available as a secondary screening measure – for people who set off metal detectors – is one thing. That doesn’t mean that everyone should be forced to go through the virtual strip search instead of the metal detector.

Another letter goes as follows:

“I have voluntarily had my body cupped, patted, and otherwise invaded — by doctors — because I wanted to extend my life as long as possible. I see little difference between what occurs at medical establishments and what happens at airports, especially in this day and age. Both activities are attempting to extend life.”

Well, the letter writer makes a good point: invasive searches and invasive medical procedures both make people safer (in theory) at the expense of dignity, sexual innocence, privacy, and quality of life. I do not believe that this tradeoff is worth it.  I would rather maintain my dignity, sexual innocence, privacy, and quality of life and be exposed to more danger and possibly not live as long. But many people, including the letter writer, have the opposite preference. That’s OK; I wouldn’t stop them from acting on their preferences. But neither should they be able to stop me from acting on my preferences. The TSA’s policy of requiring people to have their private parts seen or touched to fly does exactly that. Doctors do exactly that when they pressure people into undergoing medical procedures or refuse to let people have the medications that they want. The legislators who passed the Durham-Humphrey Amendment in 1951 did exactly that by making it possible for doctors to do what I just described.

I oppose the TSA’s security measures and doctors’ paternalistic practices because they impose the preferences of those who want security and safety at all costs on everyone.

The Massachusetts Bureau of Health Care Safety and Quality recently approved a system that increases doctors’ ability to monitor people’s prescription history. Previously, the Department of Public Health monitored a database tracking prescriptions for only a few drugs, but doctors did not have the ability to view the database. Now, even more medications are included in the database, pharmacists are required to update it, and doctors have full access to it.

Needless to say, paternalistic and anti-liberty people fully support this attempt to fight “doctor shopping” – going to more than one doctor to get prescriptions for the same drug. But I see it as the government stamping out the last tiny, pathetic remnants of freedom that are left in the American medical system.

It is bad enough that people are required by law to have a doctor’s permission to have medications. To give doctors access to people’s prescription history, making it even harder to obtain medications, just violates people’s rights even more. As I recently explained, people have the right to control what happens to their own bodies. Doctors have no right to deny people medications that they want and are willing to pay for, and they have no right to know anything about our medical history unless we want to tell it to them.

Here’s a radical idea: Why not repeal the Durham-Humphrey Amendment and the paternalistic medical culture that goes with it? Why not have all medications available in stores and allow people (with or without a doctor’s advice) to decide for themselves what to purchase? Then we wouldn’t have to worry about “doctor shopping.” People would have no need to lie to doctors or beg for their permission for the medications that they want. We could independently and autonomously make our own decisions and would have the final say over what happens to our bodies.

People have the right to do anything, as long as it does not violate the rights of others. The fact that an action is risky or unhealthy does not change this. The new prescription monitoring system might improve people’s health, but more importantly, it decreases our liberty.

“Medical professionals must take to heart the edict that their responsibility is to the health of the patient, not the patient’s wishes.”

So proclaimed a recent Boston Globe editorial. This belief, which seems to be shared by the vast majority and was made law by the Durham-Humphrey Amendment, epitomizes what is wrong with the medical system.

Medical professionals have a moral obligation to respect their customers’ wishes, not to paternalistically take away their freedom in the name of their so-called best interest. People have the right to live their own lives however they wish, as long as they do not infringe upon the rights of anybody else. No freedom is more fundamental than the right to control what happens to your own body.

If someone wants a medicine or medical procedure, and they are willing to pay for it and absorb the costs of any side effects that might result, they have a right to have it. Doctors are highly trained so that they can perform medical procedures correctly and give people advice when asked, but they have no right to interfere with people’s medical decisions, and it is wrong that our laws and culture give them this power.

Only when people have the liberty to make medical decisions for themselves will America truly be free.

The recent court decisions about S.B. 1070, Arizona’s immigration law, and Proposition 8, the ballot initiative banning gay marriage in California, have something in common. They both involve people calling certain laws unconstitutional.

Last Wednesday, Federal Judge Susan Bolton ordered an injunction against some parts of Arizona’s immigration law in response to a lawsuit by the U.S. Department of Justice, which claims the law is unconstitutional because the federal government, not the states, should have the power to regulate immigration. This Wednesday, Federal Judge Vaughn Walker overturned Proposition 8, calling it unconstitutional.

I have a question for judges, lawyers, the Department of Justice, and America as a whole: if you’re going to be calling laws unconstitutional, aren’t there better laws to call unconstitutional than these?

I am opposed to one part of the Arizona law – the part that makes illegal “the failure to apply for or carry alien registration papers.” Simply existing, legally, in this country but without registration papers does not hurt anyone or violate anyone’s rights. But the rest of the law isn’t bad. Illegal immigration is a serious problem, and I applaud Arizona’s attempt to deal with it.

I don’t think that Proposition 8 violates anyone’s rights at all, because I don’t think that marriage is a right, per se. If the government cared about equality, they would stop granting government recognition to marriages entirely and leave this to individuals and private organizations. Rewarding people for committing to a relationship, whether gay or straight, sends the unfair, false message that couples are superior to single people.

Now for some laws that are really unconstitutional and severely violate people’s rights:

• The Durham-Humphrey Amendment: Nowhere in the Constitution is the government given the power to ban people from taking medications without a doctor’s permission. Has this law ever been challenged in court? Not to my knowledge.
• The TSA’s use of full-body scanners as a primary method of airport security screening: To perform highly invasive searches on millions of people who aren’t even suspected of any crimes blatantly violates the Fourth Amendment.
• The individual health insurance mandate: The power to regulate interstate commerce does not mean the power to force people to engage in commerce.

I understand that obviously, the particular judges who made the rulings in Arizona and California have never, to my knowledge, had the opportunity to address these other laws…so the individual judges are not being hypocritical. But it says something about America as a whole that the government calls two mostly good laws unconstitutional while at least three horribly anti-liberty laws are currently considered perfectly constitutional. Hopefully liberty’s brave friends at EPIC and in Virginia will change this.

Further reading:

Court Order about Arizona law (PDF)

Photo credits: Prop 8 rally by 1FlatWorld (CC ASA 2.0); immigration law protest by Fibonacci Blue (CC ASA 2.0)