We Have a Right to Privacy...Right?

Well, they did it.  We had a warning they were going to do it, from the leaked opinion in May, but it still was a blow to well over half the country when the Supreme Court struck down Roe v. Wade in its ruling on Dobbs v. Jackson Women’s Health Organization. It didn’t rule that abortion was unconstitutional – as Justice Kavanaugh wrote. “On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice” – but, rather, left it to the “voters,” i.e., the states, to decide.  And, boy, the “pro-life” states have been deciding and are ready to do a lot more deciding. 

Hyacinth Empinado/STAT

There has been lots of outrage, many protests, and calls for the Senate to pass a federal law explicitly granting a right to abortion (although that would require changing the filibuster rules).  Aside from the fact that the Democrats probably don’t have the votes to do that, even if they did, as soon as the Republicans retook Congress and the White House, they’d just repeal it and perhaps pass a law outlawing abortion everywhere.  So it goes.

There are going to be many fights about abortion in Congress and in the states, but I think it’s time for a new strategy.  It’s time to amend the Constitution. 

No, we’ll never get an amendment explicitly granting the right to an abortion – but we might get enough consensus on an amendment explicitly assuring the right to privacy.

Many people are surprised to learn that the Constitution does not include a right to privacy.  It has many rights that Supreme Court has ruled “imply” certain rights to privacy.  It did so in 1965’s Griswold, which for the first time gave married couples the legal right to use birth control.  It similarly did so in 1971’s Eisenstadt (contraception for unmarried couples) and in 2003’s Lawrence (gay sex), as well as, of course, in Roe (1973).  The current Court, though, found the Roe decision had been wrongly decided. 

The Court’s majority opinion, and Justice Kavanaugh’s concurring opinion, took pains to clarify that no other precedents were at stake with this ruling, but the dissenting opinions raised the alarm, and Justice Thomas’s concurring opinion sort of exposed the conservatives’ plan by noting: “In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell [same sex marriage].”

So, after fifty years of believing they has a right to an abortion, America women suddenly are finding out that, well, it depends on where they live.  Some states are not allowing abortions even in the case of rape or incest, perhaps not even if the woman’s life is at stake.  Some states want to restrict women from traveling to other states to get abortions, or to get abortion medications through the mail.

Strange times.

We’re finding that what happens between a woman and her doctor isn’t private; we’re finding that what procedures she may have or what prescriptions she may get isn’t private.  These are matters for the state; HIPAA is not going to protect you.  We’re being reminded that HIPAA only goes so far, and, in our digital age, that isn’t very far.  Women who might have been using, say, a period tracker now have to worry who else can access their data, and what they can do with it.    

But, of course, I say “women” and I’m talking about pregnancy/abortion, but in 2022 all of us should be wondering who might be accessing our health information, for what purposes.  Our digital footprints and fingerprints are everywhere, and third parties are very interested in them, be they for law enforcement purposes or for more mercenary reasons. 

Hospitals recently got caught selling patients’ health information to Facebook, and you’d think both would know better.  Then again, Facebook is still targeting ads to patient groups on its platform, despite having promised several years ago to do better about that.  If you think there are some responsible parties watching out for our health data, I’d like to know who they are. 

It’s not just health data, of course.  We’re already concerned about data privacy generally, especially when it comes to Big Tech (whomever they might be).  A 2021 KPMG survey found that 86% of respondents had a growing concern about their data privacy, and 78% expressed fears about the data being collected.  Congress is supposedly working on the issue (long after the EU passed GDPR), with the American Data Privacy & Protection Act passing a House subcommittee earlier this week, but that’s a long way from actual passage. 

Congress is not going to be our savior.  Some states are trying, such as California, but that’s only going to go so far.  If we want to assure our privacy, and the benefits that accrue from privacy, we’re going to need to go further – much further.  We’re going to need to amend the Constitution. 

Now, I’m not naïve.  In the hyper-partisan country we live in, getting three-fourths of the states to agree on anything seems like an uphill climb.  Just ask proponents of the Equal Right Amendment, which never passed.  The last Amendment that passed (the 27^th) took 202 years, and all it tried to do was delay Congressional salary increases until after the next federal election. 

No, we’re never going to get three-fourths of states to ratify an amendment granting a right to an abortion.  But we might get enough states to ratify an amendment that codifies our rights to privacy more generally, and, if worded artfully, the right to an abortion should be a consequence.  “Pro-life” advocates are not known to be people who are usually willing to compromise, but neither are they people who typically are comfortable with either the government nor Big Tech “spying” on them. 

A right to privacy might be one thing we could all agree on; maybe not all, but perhaps at least three-fourths of us. 

Pro-choice advocates, and I count myself as one, should still be making our voices heard – going to protests, letting our local, state and federal elected officials know our feelings, advocating to strike down laws restricting access to abortions and/or proposing ones that help assure it, and, most importantly, truly voting as though our rights are at stake, because they are.  Those are all necessary actions, but not sufficient.

Anti-abortion advocates have been playing the long game, and Dobbs is its latest success.  The attack on our rights will continue to fit the conservative, evangelical Christian worldview that now drives the Republican party.  The only way to assure them is a Constitutional Amendment.

An Upside-Down Future for Healthcare

I find myself thinking about the future a lot, in part because I’ve somehow accumulated so much past, and in part because thinking about the present usually depresses me.  I’m not so sure the future is going to be better, but I still have hopes that it can be better. 

Two articles recently provided some good insights into how to think about the future: Kevin Kelly’s How to Future and an except from Jane McGonigal’s new book Imaginable: How to See the Future Coming and Feel Ready for Anything―Even Things That Seem Impossible Today that was published in Fast Company.

I’ll briefly summarize each and then try to apply them to healthcare.

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Mr. Kelly – a founding Executive Editor of Wired (and now “Senior Maverick” there), editor/ publisher of Cool Tools – posits that futurists need to look at the past, present, and future.  “They look carefully at the past because most of what will happen tomorrow is already happening today,” he notes.  “The past is the bulk of our lives, and it will be the bulk in the future.”  

As for the present:

It is often said that most futurists are really predicting the present. It turns out that the present is very hard to see…So a good futurist spends a lot of time trying to decipher the present and to try to see it through the mask of present-day biases…I sometimes think of “seeing the present” as trying on alien eyes; looking at the world as if I were an alien from another plane.

As for the future, he says, “I find it helpful to unleash the imagination and trying to believe in impossible things…there is an art to believing in impossible things well. It’s more like being open to possibilities, to listening to what is possible.” 

Mr. Kelly suggests trying to picture the “history” of an imagined future, the steps required to get to X in year YYYY, so that we can understand “What kinds of technology and laws and social expectations needed to be in place year by year in order to arrive at that state.” However, he warns: “Most important, the main job is to think about the consequences of X arriving. What would we do if X was true? How do we manage it? How do we regulated it? How does it change us as humans?”

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Dr. McGonigal – a game designer, Director at The Institute for the Future, and co-founder of health app/game SuperBetter – shares five tips for imagining the future:

Take a Ten Year Trip to the Future: “Ten years because that is enough time for society, and your own life, to become dramatically different. It’s enough time for new technologies to scale up and achieve global impact. It’s enough time for social movements to achieve historic victories. It’s enough time for big new ideas to take root, gain traction, and change the world.”

Be Ridiculous – At First: “Any useful statement about the future should at first seem ridiculous…We need to prepare our collective imagination for “unimaginable” possibilities…If something feels unimaginable, that’s the tip-off that it is an essential future to start thinking about.”

Look for Clues: “To find future clues, you need to develop a way of observing the world in which you spot weird stuff that others overlook.  You must constantly home in on things you haven’t previously encountered, things that make you say, “Huh…strange,” and “I wonder why that’s happening.”

Turn the World Upside-Down: “If your imagination feels stuck in the present, then rewrite the facts of today. Make a list of up to a hundred things that are true today, then flip them upside-down…Turning the world upside-down can help clarify what changes you want in society and your own life.”

Build Urgent Optimism: “Urgent optimism is a highly motivating, resilient mindset made up of three key psychological strengths: mental flexibility, realistic hope, and future power.’

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In healthcare, the past is, for better and for worse, always with us.  For example, the central role of hospitals and doctors is certainly over a century old, that of pharmaceutical companies almost that old; the pervasive presence of employer-provided health insurance goes back to the 1940’s and that of Medicare/Medicaid to the 1960’s.  None of them seems likely to go anywhere anytime soon.

The present of our healthcare system is, as Mr. Kelly warns, is harder to see.  It has proved dangerously fragile in this pandemic.  It never has offered equal care, or even equal access to care, to everyone.  And, most scary of all, in 2022 it turns out that we still don’t know if most medical treatments work, much less cause harm. 

It’s not a “system” in any meaningful way, and I’m honestly hard pressed to think of for whom it works well; even the people getting ridiculously compensated by it complain.  “Alien eyes” looking at it might not even recognize it as health care, especially considering we keep paying more and more yet are increasingly in worse health.

So we need to think of ridiculous futures, filled with impossible things.  We need to turn healthcare upside-down, as Dr. McGonigal might say.  Ten years isn’t going to be enough; we need to be thinking about 2050, or 2100. 

In my upside-down healthcare world, we don’t have doctors and hospitals.  Care is done at home, supported by assistive/supportive technology and overseen by artificial intelligence.  Health is monitored in real-time and any necessary adjustments are made almost as quickly, such as through the nanobots swimming within us or in the medications/devices we 3D print at home.  Care decisions and treatments are based on evidence, collected and analyzed on an ongoing basis, not on intuition, tradition, or personal preferences.  Technology has lowered costs so much that insurance is not necessary.

We acknowledge that health starts with how we live – what we eat, where we live, what we breathe, how much income we have, how we earn our living, to name a few.  We need massive savings in healthcare to invest in those. 

Where are all the healthcare workers in this future?  I don’t know, but healthcare isn’t supposed to be a jobs program.  It’s supposed to be about maintaining/improving our health.

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Sound ridiculous?  Good; that’s how we know we’re trying hard enough. 

I’m going to keep looking for clues to that future, be they improvements in AI, turd robots, or RNA computers – “weird stuff that others overlook,” as Dr. McGonigal says.  I want to be open to the possibilities that healthcare can become, not limited by our expectations about what it is now.

We need more urgent optimism about fixing healthcare.

What's Up, Docs?

Here’s how I’ll know when we’re serious about reforming the U.S. healthcare system: we’ll no longer have both M.D.s and D.O.s.

Now, I’m not saying that this change alone will bring about a new and better healthcare system; I’m just saying that until such change, our healthcare system will remain too rooted in the past, not focused enough on the science, and – most importantly – not really about patients’ best interests.

Let me make it clear from the outset that I have no dog in this hunt.  I’ve had physicians who have been M.D.s and others who have been D.O.s, and I have no indication that there have been any differences in the care due to those training differences.  That’s sort of the point: if there are no meaningful differences, why have both? 

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Chances are, your physician is an M.D.; M.D.s make up around 85% of all U.S. physicians.  You don’t see many D.O.s on television shows either; it wasn’t Marcus Welby, D.O. for example.  Gregory House was an M.D., as is Meredith Grey.  However, the number and percentage of D.O.s is increasing; 25% of U.S. medical students are in osteopathic medical schools. 

The distinction between allopathic medicine (M.D.s) and osteopathic medicine (D.O.s) has long historical roots.  The first osteopathic medical school was founded in 1892, by Dr. Andrew Taylor Still, as an effort to reform the highly variable medical education of the time.  The medical establishment was not thrilled with the new movement, but it took until 1910 for the Flexner Report to similarly try to reform allopathic medical education (and, by the way, to recommend elimination of osteopathic medical schools). 

For decades, D.O.s were a small and disadvantaged minority.  It wasn’t until 1969 that D.O.s could join the AM.A.  It wasn’t until 1973 that D.O.s were eligible for licensure in all 50 states and the District of Columbia.  It wasn’t until 2014 that allopathic and osteopathic medicine agreed to a single accreditation system for graduate medical education.  Today, the general consensus is that training is “virtually identical,” and even the distinction of an “osteopathic hospital” has, for the most part, been lost.   There are, though, still some 38 osteopathic medical schools.   

Advocates of osteopathic medicine sometimes assert that it is more holistic and more “hands-on,” but it is getting harder and harder to argue such distinctions. 

Credit: AOA

It is interesting to note that U.S. trained D.O.s have full practice rights in 45 other countries, and restricted rights in several others, but in most other countries, osteopaths are not physicians.  They can get Bachelors, Masters, or Ph.D.s in osteopathy, but these are considered non-medical degrees.  Osteopaths in those countries focus more on physical manipulation techniques that were part of the original osteopathic training (and which, in theory, D.O.s still are taught).

The U.S. is the outlier in considering D.O.s physicians. 

Again, I’m not saying the U.S. has it wrong.  I’m not saying D.O.s are not fully equivalent to M.D.s.  What I’m saying is: who does it serve to have both M.D.s and D.O.s? 

It’s hard for patients to find good physicians.  We usually rely on proximity, who is in our network, maybe some word of mouth from friends and family.  If we’re diligent, we might look at where a physician we are considering went to medical school, did their residency, had their fellowship, and got their board-certification in.  But it’s one thing to try to evaluate the importance of going to, say, Harvard Medical school versus a Caribbean medical school, but how is a patient to evaluate osteopathic versus allopathic training and licensure? 

When you’re picking a lawyer, you might care about what law school he/she went to, but at least you don’t have to think about what kind of law school it was.  That’s not true with physicians.  That doesn’t make sense, and it doesn’t help patients get the right physician and/or the best care.

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I started thinking about this issue a few years ago, when I was thinking about how we should train “A.I. physicians” (be they fully independent ones, or a additional resources for human physicians).  We’d want to give them the best data, the latest research, and the most up-to-date training.  So, would that be allopathic or osteopathic? 

If we can’t answer that question, and I don’t think we currently can, then we should be very cautious about training A.I. in medical care at all.  If we don’t understand what the biases, shortcomings, or advantages that come with each type of training, we’re imposing needless human handicaps on future A.I. capabilities.  

As I wrote in my earlier piece:

…if we don’t want our AIs to be either “M.D.” or “D.O.,” but rather a combination of the best of both, then why don’t we want the same of our human doctors? Why do we still have both? 

House, MD versus AI, What?

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Separation of D.O.s and M.D.s is a historical artifact.  The separation predates what we even think of modern medicine; prior to the Flexner Report, medical education was neither rigorous nor consistent.  Both allopathic and osteopathic medical education have changed greatly over the years, and, not coincidently, have grown more similar.  But, still, the separation remains. 

We still have those distinct medical schools, each with its own oversight organization (AACOM and AAMC).  We still have separate licensing (COMPLEX and USMLE), each overseen by its own board (NBOME and NBME).    We still have separate professional organizations (AOA and AMA).  This is no way to run a railroad, as the saying goes – much less a healthcare system.

As I often lament, it’s 2022.  We’re almost a quarter of the way through the 21^st century.  We need to figure out the best way to educate, train, license, and oversee physicians.  Maintaining a split that dates from the 19^th century is not just foolish, but downright dangerous. 

The question we should always be asking is: what is best for patients?  Not “how have we always done it?”

So, no, until I see a concerted effort to take the best from the osteopathic and allopathic schools in order to develop a 21^st approach to what a physician should be, I’m not going to take any purported healthcare reform seriously. 

Hey, Old Guys!

OK, how many of you had on your women-in-power bingo cards that, in 2022, Sheryl Sandberg would be out at Facebook but Queen Elizabeth II would still be Queen?  It’s the Queen’s Platinum Jubilee, marking seventy years on the throne.  She’s getting a lot of love for that tenure, but it makes me think, geez, some people just don’t know when to step away.

Perhaps what sparked my cynicism about the Queen was an op-ed by Yuval Levin, Why Are We Still Governed by Baby Boomers and the Remarkably Old?  Dr. Levin is, of course, referring to the U.S., and he’s spot-on about our governance problem.  But I think the problem goes further: we have too many old people running our companies and major institutions as well. 

Whether it is, say, healthcare, education, or the military, we’re so busy protecting the past that we’re not really getting ready for the future.

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Some of our oldest Senators

To Dr. Levine’s point, the President, Speaker Pelosi, Senate Minority Leader Mitch McConnell, and our most recent former President are all members of the Silent Generation, as are the House Majority Leader and Majority Whip.  Senate Majority leader Chuck Schumer at least is a Baby Boomer.  According to the Congressional Research Service, the average age of House Members is 58.4 years, of Senators is 64.3; both numbers are trending up.

As Dr. Levin points out, “Our politics has been largely in the hands of people born in the 1940s or early ’50s for a generation.” 

But the private sector, you might object knowingly!  OK, about that: Statista tracked average age at hire of CEOs from 2005 to 2018, and the average age of CEOs rose from 45.9 to 54.1 during that period (making them solidly Baby Boomers).   Fortune confirms that the average age of Fortune 500 CEOs is 57; again, Baby Boomer territory. 

Sure, there’s a Jon Ossoff (35) in the Senate and a Mark Zuckerberg (38) running a Fortune 500 company, but let’s not pretend that power is not still concentrated in the hands of Baby Boomers and the remarkably old, as Dr. Levin charges. 

The Senate and corporate boardrooms are alike in another unfortunate way: they’re still the provenance of white men.  Twenty-four Senators are women (compared to about 29% of House members), but only 3 African-Americans are in the Senate.  Less than 10% of Fortune 500 companies had a female CEO, but there are only 6 African-American Fortune 500 company CEOs.  Not 6%, mind you – just actually only 6 people.

And, of course, members of Congress are much richer than most Americans; according to OpenSecrets, “The median net worth of members of Congress who filed disclosures last year is just over $1 million.”  Many count their wealth in the tens, if not hundreds, of millions.  In the private sector, of course, CEOs are paid 351 times the average worker, and CEO pay has increased 1322% since 1978, both according to the Economic Policy Institute.

If you’re not a Baby Boomer or some other “remarkably old” person, and certainly if you’re not a white male, and you think that either our political leaders or our corporate leaders understand, much less are acting in, your interests, well, think again.

Dr. Levin argues: “It’s often said that Americans now lack a unifying narrative. But maybe we actually have such a narrative, only it’s organized around the life arc of the older baby boomers, and it just isn’t serving us well anymore.”

Baby Boomers and our elders are focused on preserving their wealth (including Social Security, pensions, 401k/IRA) and health insurance (especially Medicare).  Social justice, climate change, voting rights, gun control – these are the things many of us say we’re for, but they’re not necessarily the things we’re voting for, not if that’s going to risk what we have. 

When leaders, be they political or corporate, have been in power for 10 or 20 years (much less 70!), if they don’t have clear, already capable successors at the ready, that’s a failure of leadership.  That’s a culture of “me;” that’s a culture of “now.”  Those leaders are not leading towards the future; they’re protecting the past.  Dr. Levin nails it again: “And our politics is implicitly directed toward recapturing some part of the magic of the mid-20th-century America of boomer youth.”

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To be leading towards the future, we have to be willing to not only build upon the past, but sometimes to tear down what the past has built.  The Democrats revere the New Deal and the Great Society programs, but we need to recognize that both were deeply flawed and brought, at best, uneven results. 

No one designing a social retirement program in 2022 would structure it like Social Security; no one designing a health insurance program for seniors now would come up with anything that looked like Medicare; no one would who actually cared about disadvantaged people would ever purposely design something like Medicaid. 

Yet here we are.  We’re stuck with these cultural institutions; talk about MedicareForAll or Baby Bonds or even capping prescription drug prices might as well be talking about things in the Metaverse. 

Alexandra Ocasio-Cortez.  Credit: Getty Images

I’m not ready for a Senate with Jon Ossoff, Josh Hawley, Tom Cotton, and Krysten Sinema (the four youngest Senators), not a House ruled by AOC and Madison Cawthorn (the two youngest Representatives).  He may be really remarkably old, but I’d still trust Warren Buffet over Mark Zuckerberg.  We should want younger and somewhat more reckless, but there are limits.

Dr. Levine proposes more “middle-aged leadership,” but he admits:

Yet they have not broken through as defining cultural figures and political forces. They have not made this moment their own, or found a way to loosen the grip of the postwar generation on the nation’s political imagination.

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What people love about the British monarchy is that it stands for the history and traditions of England.  The cost of that, though, is that it is also bound by them.  The test of a true leader, be they a monarch, a President, a Senator, or a CEO, is that they know when it is time for new traditions and for forging a new path in history – and when it is time to step aside for new leaders to achieve those. 

But, as Dr. Levine laments, “We plainly lack grounded, levelheaded, future-oriented leaders.”  Where are they?  And who needs to step aside for them?