The Corner

End-of-Life Decisions and the Bureaucracy

When I learned today that the federal bureaucracy had promulgated a rule compensating physicians for the time they spend counseling patients on end-of-life health-care decisions, I wasn’t surprised. A similar provision was dropped from the Obamacare bill, but anyone who understands the profoundly bureaucratic nature of contemporary government knew that that was not necessarily the end of it. The 2,700-page law is destined — if it is not rolled way back or repealed — to generate over 100,000 pages of enabling regulations. In such a milieu, that which can’t be obtained legislatively, can often be gotten through the bureaucratic back door. In fact, as I’ve noted elsewhere, one commission created by the law, the Medicare Independent Payment Advisory Board, can even enact laws over the president’s veto.

The new regulation is not alarming in and of itself. In fact, we should all have these discussions with our doctors and loved ones, and we should all prepare advance medical directives. (I recommend a durable power of attorney for health care that appoints a trusted person to be your surrogate decisionmaker.) So long as the discussions are purely voluntary and not coercive, all is well.

The original policy became controversial out of the reasonable fear that in the drive to cut costs, the “counseling” could become “pressure” to refuse care. The assisted-suicide advocacy group Compassion and Choices, for example, bragged that it helped author the legislative provision — which would also have permitted outside experts to be delegated the counseling task. I am convinced that Compassion and Choices hopes to become the Planned Parenthood of death, and being paid by the government to counsel on end-of-life decisions would be a big step in that direction.

Then there was a political struggle to ensure that the funded counseling was “voluntary,” which was not clear in the original legislation but is explicit in the new regulation. This may sound like a far-fetched concern, but medical coercion and persuasion regarding death decisions is not unknown in health care. For example, responding to studies showing that genetic counselors often push the abortion option for women whose unborn children test positive for genetic anomalies such as Down syndrome or dwarfism, the late senator Ted Kennedy and former senator Sam Brownback passed a bill, signed into law by Pres. George W. Bush, requiring neutrality in counseling.

The end-of-life-counseling provisions in the original bill first became controversial because they were mistakenly thought to be mandatory, sparking Sarah Palin’s political thunder-stroke accusation of “death panels,” a charge Obamacare has still not shaken. The counseling requirement would not have established death panels per se, although, as Palin later noted, the many cost/benefit boards in Obamacare could be used as vehicles for health-care rationing — which if authorized to deny life-sustaining or -extending treatment to save money, could indeed qualify as death panels. But that is a subject for another day.

— Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a legal consultant for the Patients Rights Council. 

Wesley J. Smith — Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism.

Most Popular

Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More