Pharmaceuticals in America: The Life and Death of a Patent Medicine King (1833 – 1960)

The Life and Death of a Patent Medicine King – Dr. Morse’s Indian Root Pills

There are those that believe the heyday of the Patent Medicine Men was over by 1930.  Still others believe that many of the leopards simply changed their spots. It is true that some of the original “cure-alls” live on today in various consumer products like Dr. Meyer’s

Original Brand of Pond's Cold Cream

Compound Extract of Tomato (now Catchup), Ponds Extracts (now Ponds Cold Cream,) Horehound Drops, Coca-Cola, Hires Root Beer, Dr. Pepper, 7-Up (originally called Lithiated Bib-Soda,) Listerine (at various times marketed as a floor cleaner, surgical antiseptic, cure for gonorrhea, and then successfully as cure for Halitosis(bad breath), and the Common Cold,) Halls Catarrh Cure (later Hall’s cough drops,) and many many others.  Further many of the companies, abandoned their “patent medicines” in favor of the new class of “ethical” pharmaceuticals that arose after the pure food and drug act of 1906. Even more damaging than the laws enacted by congress, were a series of articles in Colliers Weekly by Samuel Hopkins Adams that awoke America to the problems of these often deadly, always worthless concoctions that America was imbibing.

Many of the original members of the Proprietary Association, the rulers of the patent medicine kingdom, have disappeared from the pages of history.  That is not to say they do not still exist.  In fact, many of the major “Big Pharma” companies got their start in the heyday of Patent Medicines. If they did not produce patent medicines themselves – and few failed to capitalize on this lucrative trade from the mid 1800s through the 1930s – they provided raw materials to the purveyors of these noxious nostrums who made up a large portion of their incomes back in the day. It is no wonder that most of the major pharmaceutical manufacturers have purged their history of any mention of this era or these products.  The information is still there if you want to find it but it takes some serious digging.  Some great source for those so inclined, are the old periodicals available for free on Google Books.

Today, we fail to understand the lasting impact that this period and these manufacturers have had on our national psyche and our health care system today.  We have both many laws and numerous business practices that got their start either to help foster the sales of patent medicines or to curtail the influence of the Proprietary Association.  My book, “The History and Evolution of Health Care in America” among other things, explores in some detail the rise of this industry and its deleterious legacy on our current health care system.  Along the way I came upon an interesting story of the W.H. Comstock company, manufacturer of Dr. Morse’s Indian Root Pills.  In many ways this was the quintessential patent medicine manufacturer of the period.  The rest of this article will tell you a bit of the fascinating story of the W.H. Comstock company.

In northern New York there is the small, sleepy riverside town of Morristown.  Organized in 1871, few visitors even today to this picturesque location on the banks of the St. Lawrence River would suspect that it was home for over a century to one of the most famous and infamous purveyors of patent medicines of the late 19th and 20th centuries:  the W.H. Comstock factory, better known as the manufacturer of Dr. Morse’s Indian Root Pills.

Morristown was a quiet backwater before the Comstock brothers relocated their operations the 280 miles from New York City in 1867.  They moved, in part, to jettison some of their notoriety for a series of lawsuits between the family members in the business and many others in New York City.  Conversely, the village was a sleepy rural town whose main focus was dairy farming.  Lacking a powerful water flow at this part of the St. Lawrence it did not become a big haven for mills.  It did, however, at one point or another, develop a grist, carding and saw mill.  It was the arrival of the Comstock operation that spurred a significant period of growth in the town.

William. H Comstock (circa 1910)

What attracted the Comstock brothers was its isolation, its proximity to Canada, and similarly access to land immediately across the river.  It was also the perfect location for shipping. At the time of the relocation of the W.H. Comstock factory, the railroad was just beginning operations in the area, making travel back and forth to New York simple and convenient.  Comstock not only developed a factory in Morristown but developed a similar operation directly across the river in the Canadian town of Brockville.  It was this dual production and distribution system that helped the Comstock’s become one of the dominant players in the patent medicine game.

Like many in others in the same game, the Comstock’s were hard men in a hard business.  Founded by Edwin Comstock in 1833, along with numerous other brothers and sons their business evolved as a result of a number of questionable and contentious events in its early history.

The Comstock family came from a medical background and many of them were, or had worn the moniker of, physicians in their history.  More interestingly and likely very telling, is that the Comstock family home was in Connecticut only a few miles of the first American patent medicine, Lee’s “Bilious Pills.”  “Bilious Pills” both from Lee and many other imitators found such public and rapid success it certainly also had a profound impact on Edwin’s decision to venture forth in the same line of business.

Clearly, Edwin was not a novice when he established his business in 1833 in New York City.   As then early years progressed he would bring his brother Luscious into the business and also other brothers; Albert Lee, John Carlton, and George Wells.  He later introduced his son William Henry who ultimately succeeded him and who was the Comstock who brought the factory to Morristown.  Like many of the patent medicines of the day none of the Comstock’s products were patented but instead relied on the new trademark laws for protection.  Also like many others, they had numerous unscrupulous counterfeiters – the fakers were often members of their own family.

A great book for those who would like to learn more about the tortured history of the Comstock family along with the development of the patent medicine business might be obtained in the History of the Comstock Patent Medicine Business and Dr. Morse’s Indian Root Pills by Robert B. Shaw. (The book was published in 1916, and still available from Google Books.)

Comstock sold many more products other than the signature Root Pills. In 1854, Comstock & Company – then controlled by Lucius Comstock, listed nearly forty of its own preparations for sale, namely:

  1. Oldridge’s Balm of Columbia
  2. George’s Honduras Sarsaparilla
  3. East India Hair Dye, colors the hair and not the skin
  4. Acoustic Oil, for deafness
  5. Vermifuge
  6. Bartholomew’s Expectorant Syrup
  7. Carlton’s Specific Cure for Ringbone, Spavin and Wind-galls
  8. Dr. Sphon’s Head Ache Remedy
  9. Dr. Connol’s Gonorrhea Mixture
  10. Mother’s Relief
  11. Nipple Salve
  12. Roach and Bed Bug Bane
  13. Spread Plasters
  14. Judson’s Cherry and Lungwort
  15. Azor’s Turkish Balm, for the Toilet and Hair
  16. Carlton’s Condition Powder, for Horses and Cattle
  17. Connel’s Pain Extractor
  18. Western Indian Panaceas
  19. Hunter’s Pulmonary Balsam
  20. Linn’s Pills and Bitters
  21. Oil of Tannin, for Leather
  22. Nerve & Bone Liniment (Hewe’s)
  23. Nerve & Bone Liniment (Comstock’s)
  24. Indian Vegetable Elixir
  25. Hay’s Liniment for Piles
  26. Tooth Ache Drops
  27. Kline Tooth Drops
  28. Carlton’s Nerve and Bone Liniment, for Horses
  29. Condition Powders, for Horses
  30. Pain Killer
  31. Lin’s Spread Plasters
  32. Carlton’s Liniment for the Piles, warranted to cure
  33. Dr. Mc Nair’s Acoustic Oil, for Deafness
  34. Dr. Larzetti’s Acoustic Oil, for Deafness
  35. Salt Rheum Cure
  36. Azor’s Turkish Wine
  37. Dr. Larzetti’s Juno Cordial, or Procreative Elixir
  38. British Heave Powders

Because of its diverse inventory, Comstock became one of the major patent medicine companies during this period.  The manufacturer was also one of the pioneers of the Almanac as a sales tool. As Comstock began to develop its product line, the patent-medicine era was entering its golden years.  Robert Shaw states in his book, “Improved transportation, wider circulation of newspapers and periodicals, and cheaper and better bottles all enabled the manufacturers of the proprietary remedies to expand distribution—the enactment and enforcement of federal drug laws was still more than a generation in the future. So patent medicines flourished; in hundreds of cities and villages over the land enterprising self-proclaimed druggists devised a livelihood for themselves by mixing some powders into pills or bottling some secret elixir–normally containing a high alcoholic content or some other habit-forming element–created some kind of a legend about this concoction, and sold the nostrum as the infallible cure for a wide variety of human (and animal) ailments. And many conservative old ladies, each one of them a pillar of the church and an uncompromising foe of liquor, cherished their favorite remedies to provide comfort during the long winter evenings. But of these myriads of patent-medicine manufacturers, only a scant few achieved the size, the recognition, and wide distribution of Dr. Morse’s Indian Root Pills and the other leading Comstock remedies.”

Comstock took the lead as one of the main pioneers of the almanac -a sales brochure phenomenon of the day.  Almanacs were so popular and so mass produced that it was not uncommon for a person to walk into any drugstore and pick up three or four of them.  Some of these publications grew rapidly from just a few pages to over 64 pages by the mid 1800’s.

Stories published in the almanacs of the discovery of these nostrums, and also on the wrappers of the elixirs themselves, provided great reading and were the story-board commercial of their day.    Mr. Shaw relates in his book some examples of such inventive pitches,

Before 1900 the detailed story of the discovery of Dr. Morse’s pills was abridged to a brief summary, and during the 1920s this tale was abandoned altogether, until the end the principal ingredients were identified as natural herbs and roots used as a remedy by the Indians. In more recent years, the character and purpose of Dr. Morse’s pills also changed substantially. As recently as 1918, years after the passage of the Federal Food and Drug Act of 1906, they were still being recommended as a cure for:

  • Biliousness
  • Dyspepsia
  • Constipation
  • Sick Headache
  • Scrofula
  • Kidney Disease
  • Liver Complaint
  • Jaundice
  • Piles
  • Dysentery
  • Colds
  • Boils
  • Malarial Fever
  • Flatulency
  • Foul Breath
  • Eczema
  • Gravel
  • Worms
  • Female Complaints
  • Rheumatism
  • Neuralgia
  • La Grippe
  • Palpitation
  • Nervousness

Further, two entire pages in the almanac were devoted to explaining how, on the authority of “the celebrated Prof. La Roche of Paris,” appendicitis could be cured by the pills without a patient having to resort to the surgeon’s knife.

In another segment from the book, Mr. Shaw relays information mainly directed to the female health problems of the day.

THE GREAT FEMALE MEDICINE the almanac read:

The functional irregularities peculiar to the weaker sex, are invariably corrected without pain or inconvenience by the use of Judson’s Mountain Herb Pills. They are the safest and surest medicine for all the diseases incidental to females of all ages, and more especially so in this climate.

Ladies who wish to enjoy health should always have these Pills. No one who ever uses them once will ever allow herself to be without them. They remove all obstructions, purify the blood and give to the skin that beautiful, clear and healthful look so greatly admired in a beautiful and healthy woman. At certain periods these Pills are an indispensable companion. From one to four should be taken each day, until relief is obtained. A few doses occasionally, will keep the system healthy, and the blood so pure, that diseases cannot enter the body.

Watch any television show, listen to any radio broadcast or read any periodical or newspaper and one of the most prevalent areas of medicinal support will point to the area of sexual dysfunction.  Viagra and Cialis are boldly marketed for the treatment of men’s lack of “libido” or rigor in performance.   Only slightly more discreetly advertised are products for women related to dryness, libido enhancements or other more prurient pursuits.  While we think these issues are a modern connivance they are not. Again Mr. Shaw’s excellent history provides valuable insight to back up this assertion.  It reads:

Over on the Canadian side of the river, where another plant approximately the same size as the Morristown facilities was in operation, the Comstock Company had assimilated the Dr. Howard Medicine Co. Dr. Howard’s leading remedies were his Seven Spices for all Digestive Disorders and the Blood Builder for Brain and Body. The latter, in the form of pills, was prescribed as a positive cure for a wide array of ailments, but like many other patent medicines of the era, it was hinted that it had a particularly beneficial effect upon sexual vitality.

Over on the Canadian side of the river, where another plant approximately the same size as the Morristown facilities was in operation, the Comstock Company had assimilated the Dr. Howard Medicine Co. Dr. Howard’s leading remedies were his Seven Spices for all Digestive Disorders and the Blood Builder for Brain and Body. The latter, in the form of pills, was prescribed as a positive cure for a wide array of ailments, but like many other patent medicines of the era, it was hinted that it had a particularly beneficial effect upon sexual vitality.

They have an especial action (through the blood) upon the SEXUAL ORGANS of both Men and Women. It is a well-recognized fact that upon the healthy activity of the sexual apparatus depend the mental and physical well-being of every person come to adult years. It is that which gives the rosy blush to the cheek, and the soft light to the eye of the maiden. The elastic step, the ringing laugh, and the strong right arm of the youth, own the same mainspring. How soon do irregularities rob the face of color, the eye of brightness!

Everyone knows this. The blood becomes impoverished, the victim PALE. This pallor of the skin is often the outward mark of the trouble within. But to the sufferer there arise a host of symptoms, chiefest among which are loss of physical and nervous energy. Then Dr. Howard’s BLOOD BUILDER steps into the breach and holds the fort. The impoverished Blood is enriched. The shattered nervous forces are restored. Vigor returns. Youth is recalled. Decay routed. The bloom of health again mantles the faded cheek. Improvement follows a few days’ use of the pills; while permanent benefit and cure can only reasonably be expected when sufficient have been taken to enrich the Blood.

Before the Blood Builder pills were taken, all their users were advised to have their bowels thoroughly cleansed by a laxative medicine and, happily, the company also made an excellent preparation for this purpose–Dr. Howard’s Golden Grains. While the good doctor was modern enough–the circular quoted from was printed in the 1890s–to recognize the importance of the healthy activity of the sexual apparatus, such a suggestion should not be carried too far–so we find that the pills were also unrivaled for building up systems shattered by debauchery, excesses, self-abuse or disease. Along with the pills themselves was recommended a somewhat hardy regimen, including fresh air, adequate sleep, avoidance of lascivious thoughts, and bathing the private parts and buttocks twice daily in ice-cold water.

Certainly during the early days of the “Victorian” era these findings did not soften the ardor of the general populace who took to these remedies nor did the nature of these times force subtlety in the description of the cures available.  Today, the main findings we see pushed down our throats, very often literally, are cures for sexual dysfunction, “female problems,” constipation, the common cold or flu, mental stimulation, and my favorite compensating for loss of energy.  If one looks at the advertising for Comstock’s products one will see a historical mirror illustrating the sale of exactly the maladies and remedies for them, sometimes by the use of blunt and bold copy.  Most of the messages were communicated via the almanacs, product wrappers and newspapers. It would not be unlikely for all concerned about the evolution of health care to not wonder how much longer the patent medicine men would have held sway if radio and television had also been mediums to reach the gullible public. But then again, who is to say these purveyors of the quack and addictive have disappeared?

In a final section from the book, Mr. Shaw cites two other main points of interest during this period in which Comstock stands out as a solid illustrative member of the illustrious patent medicine industry; the use of testimonials in advertising its products and the lack of hard money in communities (important later relative to understanding the issues physicians faced in their practice in rural communities).  The use of testimonials was critical in the sale of these nostrums.  The experience of the everyday user was what rung most true to consumers, again just like today.  A great deal of newspaper ink was devoted to the publication of the merits of this nostrum or that elixir.  On rare occasions they showed up as advertisements.  More often than not, they also appeared as articles and letters to an editor.  Mr. Shaw summarizes these issues as follows.

Testimonials submitted voluntarily by happy users of the pills were always widely featured in the almanacs, newspaper adver-tisements, and handbills. Although the easy concoction of the stories about Dr. Morse and Dr. Cunard might suggest that there would have been no hesitation in fabricating these testimonials, it is probable that they were genuine; at least, many have survived in the letters scattered over the floor of the Indian Root Pill factory. In some cases one might feel that the testimonials were lacking in entire good faith, for many of them were submitted by dealers desiring lenient credit or other favors. Witness, for example, the enclosed letter from B. Mollohan of Mt. Pleasant, Webster County, West Va., on April 16, 1879.

Mollohan’s complaint about the shortage of money and the long delay in collecting many accounts reflected a condition that prevailed throughout the nineteenth century. Money was scarce, and the economy of many rural communities was still based largely on the barter system, so that it was very difficult for farmers to generate cash for store goods. Consequently, country storekeepers had to be generous in extending credit, and, in turn, manufacturers and jobbers had to be lenient in enforcing collection.

Contrary to popular perception, and in spite of many government regulations and actions taken by numerous associations to curtail the business of patent medicines, the W.H Comstock enterprise continued to thrive long after World War II.  The company reached its heyday shortly after World War I, but continued to sell many of its nostrums to retailers and distributors until March 31, 1960, when the last shipment of one-dozen boxes of pills was made to Gilman Brothers of Boston and two-dozen boxes to McKesson & Robbins of Mobile, Alabama on April 11 of that year. And with this final consignment – the factory closed its doors, concluding 93 years of continuous operation in the riverside village of Morristown.

In many ways W.H. Comstock is a true representative of the rise and decline of patent medicine manufacturers of the early 20th century.  I use the term decline as opposed to death.  It will be left up to the reader to determine if the patent medicine era has died or if the leopard has simply changed its spots. Later in this section, and in the others that follow, the reader will note that most of the companies are still with us, they have just changed their tactics or abandoned the “medicine” market for what is now referred to as “ethical pharmaceuticals” and/or the consumer product category.  Perhaps as a reader, you may come to the conclusion that “ethical” is a very flexible word when it comes to the acceptance and approval of pharmaceuticals.

After all, it took the FDA almost 100 years (1964) to finally get Warner – Lambert, the maker of Listerine – first formulated in 1879 – to finally stop improperly claiming in its advertizing that it was a cure for the common cold.

Please make a comment below if you like this brief history.  If so, I will be happy to include a few more in the next weeks as we prepare for the release of my new book!

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Afforable Care Act and Disease State Programs: What is the future?

As the Patient Protection and Affordable Care Act (ACA) continues the trek down the long tortuous hallway to become implemented law, a misquoted line, from Hunter S. Thompson, comes to mind. (I am using one of the misquotes)

“Hollywood, a long tortured hallway where thieves and pimps run free and good men die like dogs, for no good reason. There is also a bad side” – mis-quote of Hunter Thompson

We have all become complacent as to the unintended consequence of government deeds.  In researching my book, “The History and Evolution of Health Care in America: The Untold Backstory of Where We’ve Been, Where We Are, And Why Health Care Needs More Reform,” In a small way, I have become some kind of dubious expert on the historical record of the unintended consequences of the actions taken by our government, and many others, related to healthcare in America.  For some time now, I have been concerned that there may be very significant unintended consequences of the Affordable Care Act, particularly relating to special disease state programs offered by both states, and the federal government like; HIV/AIDS, hepatitis, heart disease, COPD, diabetes, etc.

ADAP as an Example

(While mandated rebates sounds like a great thing for consumers – it is not.  Federally mandated rebates are one of the drivers increasing the cost of medications to all of us and a major cause of the lack of transparency in drug pricing. I discuss this extensively in my upcoming book.)

An example of the kind of program I am referring to in California, would be the AIDS Drug Assistance Program (ADAP).  The California AIDS Drugs Assistance Program is a prescription drug coverage program funded, in part, by Title II of the Ryan White CARE Act created in 1990 by the US Congress and reauthorized in 1996, 2000, 2006 and 2009.

The ADAP program, provides medication purchase assistance to people suffering with AIDS, based on specific eligibility criteria.  The program sets limits on income, viral load, CD4 count, etc.  Depending on the criteria, eligible participants receive assistance ranging from; payment of insurance co-pay – up to and including full coverage of the medications proscribed, as long as the drugs are covered under the state’s extensive ADAP medication formulary (the approved list of medications).

You may be eligible for California ADAP services if:

  • You are a resident of the State of California
  • You are at least 18 years of age
  • You have a HIV/AIDS diagnosis (Requires Physician’s Letter and recent CD4 Count and Viral Load)
  • ADAP will only process prescriptions written by a licensed California physician/prescriber
  • You have limited or no prescription drug benefit from another source
  • You have a Federal Adjusted Gross Income of not more than $50,000.

ADAP is not all that California provides under the Ryan White Care Act to Californians suffering from AIDS, but it makes up the largest of the Office of AIDS’ (OA) expenditures – roughly $434 million of $1.3 trillion in total budget.  Of the $434 million number about 30%, approximately $126 million, comes from the California State General Fund, approximately 23%, $100 million, comes from the Ryan White Care Act funds, and 48%, $210 million, comes from mandated rebates from drug manufacturers

The Ryan White Care Act ¹

The Ryan White Care Act is the United States largest federally funded program for people living with HIV/AIDS. The act sought funding to improve availability of care for low-income, uninsured and under-insured victims of AIDS and their families.

Unlike Medicare or Medicaid, Ryan White programs are “payer of last resort”, which fund treatment when no other resources are available. As AIDS has spread, the funding of the program has increased. In 1991, the first year funds were appropriated, around US$220 million were spent; by the early 2000s, this number had almost increased 10-fold. The Ryan White Care Act was reauthorized in 1996, 2000 and 2006. The program provides some level of care for around 500,000 people a year and, in 2004, provided funds to 2,567 organizations. The Ryan White programs also fund local and State primary medical care providers, support services, healthcare provider training programs, and provide technical assistance to such organizations.

In fiscal year 2005, federal funding for the Ryan White Care Act was $2.1 billion. As of 2005, roughly one-third of this money went to the AIDS Drug Assistance Programs (ADAP) which provides drugs for 30 percent of HIV-infected patients. The primary activity of ADAP is providing FDA approved prescription medication.

 So,  why should we be concerned?

One of the major reasons for the enactment of The Ryan White Care Act, and the subsequent creation of ADAP programs in the first place, was the inability of those with this tragic disease to get adequate coverage from their insurers.  A diagnosis of HIV/AIDS became a red flag to insurers that either precluded coverage, if it was a pre-existing condition, or HIV/AIDS patients found their policies dropped for a myriad of other reasons mostly due to lifetime limits and trumped-up problems.  As a result, people with a diagnosis of HIV/AIDS could not get insurance.  The Ryan White Care Act and the various ADAP programs offered under this federal program through the 58 states and territories have done a wonderful job of helping treat, help to arrest the spread, and improve the quality of life of those with this horrible disease.  I think, this is undisputed.  The Ryan White Care Act and ADAP have been unqualified successes.  One of those rare occurrences within governmental programs.

President Obama’s 2012 HIV/AIDS budget requests $21.4 billion in funding for  Domestic HIV/AIDS activities. – Kaiser Family Foundation Report on HIV/AIDS Policy 

Having spent a good deal of time, for the past few years, in Washington, DC traveling the same long tortured hallway Hunter was claimed to have spoken about, I have developed a pretty good understanding of what is making things work there now-a-days.  The main issue on everyone’s lips, not just Republicans, is reducing spending.  The last re-authorization of Ryan White, in 2009, was a heated, and anger riddled, argument.  There were those then (including many leading democrats like Senator Kennedy) that did not want to reauthorize the existing legislation.  They were advocating creating new legislation that better dealt with the realities of the disease as it stood today.  But like most entitlements, the constituents, and their very vocal advocates, did not trust the government to bring them the program that they wanted.  While, they all agreed that the Ryan White Care Act was not great, they felt it was better than what they might get.  In the end, the political pressure drove the legislation to be reauthorized and extended four more years.  Determined to not see this, in their view, unwieldy and ineffective Act reauthorized one more time, Kennedy’s staff made sure that the 2009 re-authorization legislative language included a sunset provision that prohibited another re-authorization down the road.

 Well Things Have Changed – Haven’t They?

The biggest problem with AIDS today is that people no longer feel guilty nor afraid of the disease!
– Britt Weinstock, Senior Health Policy Advisor – Congressional Black Caucus

Well they have and have not.  Illustrated in the statement made by Britt Weinstock (one of the brightest and dedicated individuals I have met in Washington DC) in a meeting with me in 2007, the overall nature of the nations focus and funding for HIV/AIDS had changed.  It was then getting increasingly difficult to get attention in congress and squeeze out the necessary funding.  When the Ryan White Care Act was originally conceived the nature and treatment of HIV/AIDS was that of a terminal illness on the rise to a national epidemic.  Today it can be a treatable, if chronic, condition.  Then people diagnosed with AIDS had an expected lifetime of a few months to 8 years.  Today, with treatment, they can live mostly full and productive lives.  Like most other chronic diseases we face today, as the prognosis for HIV/AIDS has improved the lifetime cost of treatment has increased many fold.

As far as the Affordable Care Act goes, if this legislation continues to be enacted, it will prohibit insurers from barring HIV/AIDS patients from getting insurance to cover their needs – a seemingly good thing.  In fact, many states have already set up special funds for patients with pre-existing conditions and temporary high-risk insurance pools as an interim solution till the ACA takes full effect.  In the May revision of California Governor Brown’s 2011-12 Budget, the Office of AIDS are projecting saving some money by changing ADAP eligibility so that some of the covered patients shift into the states Pre-Existing Condition Insurance Plan (PCIP).  This program is a federally funded program and does not, at this point, receive any funding from the California State General Fund.  With cuts to Medicare, Medicaid, and Social Security now in open discussion, will such programs be deemed as necessary?  With Ms. Weinstock’s statement in mind will American citizens agree with the priority of additional funding?

As a result of the historical empathy and generosity of Californians, HIV/AIDS patients in California currently receive some of the best program benefits in the US today, and as a result, the public health crisis from HIV/AIDS has been contained and almost all patients in California have access to quality care and the required medications.  The question is – for how long?

As was seen in the 2009 re-authorization of Ryan White, many politicians did not want to be on the wrong side of the HIV/AIDS or GLBT activist communities and as such even the lion of the senate yielded and agreed to their demands for re-authorization.  But the game has definitely changed!  Before the choice for politicians was either, I agree to fund these programs or, since there was no insurance or other option for HIV/AIDS patients – they would die.

Today, the question politicians have to answer from the general public is; “Why do we need these types of programs? We just passed ObamaCare and everyone now gets insurance, or subsidies to buy insurance!”  The question for HIV/AIDS and other special disease state patients is, will politicians, having many fiscal-crisis related issues now the focus before them – without the ability to just print money to pay for them as we have in the past – have the strength to stand up to the rest of the fiscally troubled middle-class and say…

“Well you see…  Ahhh…  Well…  the Affordable Care Act…  aaaa, really didn’t cover everyone they way we thought…  And you see…”

Or will they just not re-authorize Ryan White and other special disease state programs like it and push it all off to MediCare, Medicaid and the ACA or the states.

How long can politicians in Washington, DC and Sacramento, continue to fund these needed programs?  How long will the politicians have the courage to stand up and continue in light of the looming fiscal crisis and its impact on seniors, disabled, children and under-served middle class and lower class Americans?  The question to the politicians really will be,

“Why do we need these programs if we just passed ObamaCare and spent trillions on it?”

“Politicians could use the answer, “Well….  Ahhh…  You see – aaaaa…..  Well it’s like this, you see, the Affordable Care Act really didn’t protect everyone!”  Some politicians may see it as a safer action – a more re-electable action – to not reauthorize these programs because; unlike before, when the choice was either we authorize these programs or people die because they can’t get insurance; now, to the vast majority of Americans, it seems no longer necessary because we just spent trillions to ensure that everyone has health care –  didn’t we?  Can a politician stand there and tell Mr. and Mrs. Middle Class America that the health needs for this increasing but still minority population of Americans is greater than their own fiscal needs?  And more importantly will these middle class Americans have the willingness to accept it.  Do we truly think, that we can fund everything we want by just taxing the richest 1%, 5%, or 10% of Americans?  If you look at the numbers, despite the rhetoric, we probably can’t.

This is a tough one!  Regardless of how anyone feels about the ACA – and almost no one actually likes it on either side – just like most other government programs, it is designed for somewhat near the lower-middle of the bell curve.  The people on the extreme edges of the bell curve get either poor or no benefit from these programs.  This is a fiscal reality.  The cost of the benefits for the people in the covered range of the bell curve where the programs are offered, has to be born by all the rest of the population.  The fringes never really get completely covered, even though the center of the bell is not in the middle-point of these curves.  So, we will always likely need specialty programs if we are going to commit to have the government take care of the most fragile among us!

It remains to be seen if this will be the case.  As I said, I am very concerned at this point that the Givernment of the People, By the People, and For the People is still able to do this, unless we rethink what this commitment means and more importantly, how to accomplish it.  We need to fundamentally restructure healthcare and rework, from scratch, the supply chain.  Perhaps we need to look not just at the government, but beyond government as well, to our individual relationships with, and responsibilities to, each other if we hope to find some answers.

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¹ Wikipedia contributors. “Ryan White Care Act.” Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 19 May. 2011. Web. 8 Jul. 2011.

Health Care Mandate and the Commerce Clause (Part 4)

The patient protection and affordable care act purchase mandate –
A four-part series on the relation and effects of the Commerce
Clause to Health Care

By: Thomas W. Loker

The following is the last segment of a four-part series where author, Tom Loker, explores the impact of the Commerce Clause on Obama-Care.

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PART FOUR: A Time for a Fresh Look

In the last article, Sliding Down the Slope, we discussed how continuing court decisions and additional legislations have continued to push us further and further down the slope of federal oversight and control of increasingly larger parts of our daily lives. We also looked at how our historical interpretation of the commerce clause has muddied the water as to where the responsibility of the states to regulate our actions ends and responsibility federal government begins. Now, let’s look at this, from an everyday person’s perspective, as to what this may mean related to the current debate over the constitutionality of the PPACA mandate for all to purchase insurance.

 Who’s Right?

However, going back to the issues the framers were attempting to protect against, is it consistent with the framers view that the expansion of liability, as it is promulgated under this act, should so far abrogate personal responsibility as to the outcome of bad choice and bad behavior? Merely arguing that there is some benefit to a consumer does not make the clause relevant. The original expansion argument under Filbern that any commerce can be derived to be interstate commerce no longer seems to be a reasonable inference. Intrastate commerce itself is not innately subject to federal jurisdiction. The principle motivation to protect the consumer is not, in-and-of-itself, sufficient justification to regulate intrastate commerce, nor does it immediately give rise to the notion that all commerce is interstate.

The issue of the application of the Commerce Clause related to PPACA is even more muddled in that one of the principled arguments against this legislation is that it does not open the state-centered administration of health insurance nor does it provide an open and competitive interstate market. Most, if not all states, specifically regulate insurance provided within their borders. The inability of consumers to purchase insurance plans across state lines itself should stave off the argument that this is in some way per se interstate commerce and subject to the clause. The historical Filbern argument is even more difficult to rationalize in the absence of a transportable open state policy mandate.

Intrastate Regulation and Fairness

A reach to enforce the mandate for purchase of insurance under the auspices of the Commerce Clause is a hard one, indeed, in that the benefits to consumers that could be argued in the justification to impinge individual freedoms and economic liberties for the greater good are lost when the purchase itself is confined within intrastate regulation. Effective argument can only be made based on interstate availability of insurance whereby the policies available across the state line are comparable in standard of fees and services provided and transportable from state to state after purchase. An item, good, or service that is purchased in, and only is consumable, within one state and is subject only to the regulations of the state where the service was purchased and consumed in no way logically rises to become interstate. Further, any argument that attempts to provide nexus for an interstate affect, as in the case of Filburn, should be deemed to interpretation in the same manner as was done in Lopez.

A Voice Speaks Out

Specifically in relation to the Commerce Clause; let us agree with Justice Kennedy and walk a slow and careful path. In every case possible, let us demur to the authority of the state and the preservation of individual rights and liberties.

Finally, most recently in hearings of the Judiciary Committee relating to the debate for the need of tort reform legislation pursuant to the PPACA debate, one congressman, who shall remain nameless, while arguing why Tort reform was not necessary for the federal government to consider, made the following argument: He stated that in his long history as a strong states’ rights advocate, he had never seen an instance where health care was provided in a clinical setting and where the clinic existed simultaneously in two states, or between the borders of two states. As such, the provision of care was always done within the border of one state and therefore could not be interstate. The congressman further stated that if the person received care in one state, while a resident of another state, and that the care was provided under the licensure, regulations and authority of the state where the service was provided, that this was still no more interstate commerce than any other commercial action as prosecuted within a state on a daily basis.

Clearly, the evolution of the argument of the Commerce Clause, as providing a basis for regulations governing protection to consumers, can from time to time provide a broad and expedient method to justify such federal powers; these powers are innately the proverbial slippery slope. The framers carefully crafted the Constitution to preserve individual liberties and freedoms above all others. To allow expansion of federal powers under the aegis of the Commerce Clause, which has happened over the past few hundred years, is one of the more dangerous areas of law we have today. As such, full and unfettered caution must ensue.

The Judge Steps Up

Justice Kennedy wrote,

“[T]he Court as an institution, and the legal system as a whole, have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call into question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.”

Let us agree with Justice Kennedy and walk a slow and careful path. In every case possible, let us demur to the authority of the state and the preservation of individual rights and liberties. I also suggest we only allow federal regulation when such regulation is meant to provide a mechanism by which it can normalize controls on behalf of consumers among states; where interstate commerce requires only federal control for solution or provision of benefit; or where it is necessary to regulate the actions among the states, not among or between the citizens of the states. Let us be mindful that the actions of the states themselves will not harm the public good or unfairly impost taxes, duties or levies between the states or with other nations or Indian tribes.

This treatise, outlied in these four articles, is just one lay person’s read of this issue. If we cannot explain it to every man and woman. Perhaps the reach is simply too far!

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Health Care in America: Where We’ve Been, Where We Are, and Why Health Care Needs More Reform!

Tom Loker has written a book that takes the reader on an intriguing journey as he/she walks along with Loker from the inception of this country to learn about the behind-the-scenes goings on with health conditions, health maladies, health remedies, and evolving health care reform. Beginning with the state of health when the Pilgrims first hit that “rock” to the current day when Congress locked horns, Loker stuns the reader with knowledge never Continue reading