The New England Journal of Medicine has come out in high dudgeon over the vocal opposition of gun-rights activists to Obama’s surgeon general nominee, Dr. Vivek Hallegere Murthy. Howard Portnoy highlighted earlier this month Dr. Murthy’s belief that doctors should interrogate patients on whether they have guns in the home. As Howard pointed out, the provisions of Obamacare mean that the results of such questioning would be entered into the universal health-care database to which government officials would have access. The NRA naturally objects.
The editorial at NEJM thunders:
This is the first time that the NRA has flexed its political muscle over the appointment of a surgeon general. The NRA has taken this action even though the surgeon general has no authority over firearm regulation and even though Murthy made it clear in his testimony before the Senate HELP Committee that if he is confirmed, his principal focus will be on the important national problem of obesity prevention, not firearm policy. Still, 10 Senate Democrats are apparently prepared to vote against Murthy’s confirmation because of his personal views on firearms — a demonstration of just how much political power our legislators have ceded to the NRA.
The critical question is this: Should a special-interest organization like the NRA have veto power over the appointment of the nation’s top doctor? The very idea is unacceptable. …
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By obstructing the President’s nomination of Vivek Murthy as surgeon general, the NRA is taking its single-issue political blackmail to a new level.
How dare the NRA intrude this political gun-rights activism into a public health nomination? “Blackmail!” says NEJM.
Murthy’s “personal” views
But, of course, there’s more to the story. For one thing, the NEJM editorial misrepresents Murthy’s views as mere “personal views on firearms,” neglecting to mention Murthy’s own political anti-gun activism, on the explicit premise that “guns are a public health issue.”
Murthy doesn’t just crusade on his own. As Howard noted, he founded Doctors for America: originally Doctors for Obama, which was created to support the Obama campaign for 2008. Doctors for America was the organization behind the infamous Obamacare photo op with the white lab coats. Doctors for America (DFA) has its own “gun violence” webpage and has sent letters and petitions to the federal government urging action on gun restriction measures.
Here’s a passage from a Tampa Tribune op-ed by DFA members from January 2013 (linked at the DFA website; emphasis added):
By advocating for and passing seat belt laws to decrease automobile fatalities, enforcing stricter legal limits to decrease alcohol-related deaths and creating marketing restrictions for tobacco products, we have successfully used policy to save human lives in the past, and we can now do so again by urging our lawmakers to enact meaningful gun control laws in the United States.
We want doctors to be able to ask, document and counsel patients on gun safety in their homes. This alone is not enough. We want to see a ban on assault weapons and an aggressive buy-back program for military-style weapons that are currently in circulation. We want universal background checks for any gun purchase, along with mandatory waiting periods of 48 hours and limits on the purchase of ammunition. We want a reinstatement of funding for research on firearm safety so there is a clear understanding of the impact that these interventions can have on this public health crisis.
Note: doctors can already ask patients about gun safety in the home, and document it for themselves and counsel patients if they want to. Patients may or may not answer. They may or may not stick around for a physician who engages in such interrogations.
What these doctors want is compulsion for the patients. They want patient responses documented, and government oversight of whatever patients say or refuse to say.
The NEJM authors’ advocacy history
But that’s just one aspect of the story. Here’s the other. The authors of the “blackmail!” editorial for NEJM are themselves engaged in politically mixing public health and gun policy, up one side and down the other.
Before discussing that, it’s worth pointing out that the three authors who are physicians – Gregory Curfman, Stephen Morrissey, and Jeffrey Drazen – all donated to Democratic candidates between 2004 and 2012. Two of them donated to Obama in 2008; Drazen donated $2,300 to him that year, and Curfman donated $250. In 2012, Curfman donated $500 to Obama. (All figures from OpenSecrets.org)
Curfman also signed a DFA “open letter” to Congress, which advocated for allocating money requested by Obama in 2009 to reform American health care. (This was prior to the tortured, single-party passage of the Affordable Care Act in March 2010.)
But Curfman, Morrissey, and Drazen have a more specific connection with political advocacy for guns as a public health issue. In 2008, they published one of the most cited articles ever written on that topic, in the New England Journal of Medicine. The hook for their article? The Supreme Court’s March 2008 hearing, and pending decision, on District of Columbia v. Heller. Their article was pure political exhortation on the need for “gun control.” In July 2008, the three doctors followed up with a second article in NEJM decrying SCOTUS’s decision on Heller, which upheld gun rights (see here for the full text).
Curfman, Morrissey, and Drazen took the perspective that “gun violence” constitutes a public health epidemic, and that constitutional interpretations of gun rights are questionable and essentially partisan. They referred in their April 2008 piece to a longer article by Garen J. Wintemute in the same issue of NEJM, “Guns, Fear, the Constitution, and the Public’s Health.” Wintemute wrote, among other things, the following:
Gun violence is often an unintended consequence of gun ownership. Americans have purchased millions of guns, predominantly handguns, believing that having a gun at home makes them safer. In fact, handgun purchasers substantially increase their risk of a violent death. This increase begins the moment the gun is acquired — suicide is the leading cause of death among handgun owners in the first year after purchase — and lasts for years.
The risks associated with household exposure to guns apply not only to the people who buy them; epidemiologically, there can be said to be “passive” gun owners who are analogous to passive smokers. Living in a home where there are guns increases the risk of homicide by 40 to 170% and the risk of suicide by 90 to 460%. Young people who commit suicide with a gun usually use a weapon kept at home, and among women in shelters for victims of domestic violence, two thirds of those who come from homes with guns have had those guns used against them.
Wintemute clearly intended to urge a particular resolution to the Heller case:
[O]n March 18, 2008, the Supreme Court heard oral arguments in the case of District of Columbia v. Heller.
The Court is considering whether the statutes “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other guns for private use in their homes.” It will first need to decide whether such rights exist. …
No one predicts that a constitutionally protected right to use guns for private purposes, once it’s been determined to exist, will remain confined to guns kept at home. Pro-gun organizations have worked effectively at the state level to expand the right to use guns in public, and all but three states generally prohibit local regulation. If people have broadly applicable gun rights under the Constitution, all laws limiting those rights — and criminal convictions based on those laws — will be subject to judicial review. Policymakers will avoid setting other limitations, knowing that court challenges will follow.
Wintemute makes these latter assertions as if they’re a bad thing.
Notably, he builds his case on an argument that guns make people less safe, not more, with suicide-by-gun being one of his case-makers. Wintemute and NEJM have an interesting history on that subject. Wintemute published an article on it in NEJM in 1999 – an article to which researcher Miguel A. Faria, Jr. (MD) took exception, because it was tendentious and ignored facts. Faria wrote a letter to NEJM in which he documented the facts that countered Wintemute’s conclusions on guns and suicide. Faria was originally informed that his letter would be printed in an upcoming issue as a response to the Wintemute article. But NEJM eventually decided not to publish Faria’s letter. The editor who communicated these decisions to Faria was Gregory Curfman.
NEJM has been a perch from which medical practitioners have been able to write politically on guns as a public health issue, with as many specific policy implications as they care to suggest. Dr. Faria’s experience suggests that alternative views may not get a fair hearing at NEJM. That’s all well and good for NEJM, which is a private enterprise. But it certainly exposes the journal and its authors as posers, when it comes to keeping single-issue politics out of public health policy. They just don’t like the NRA’s stance on gun rights; they’re perfectly happy to explicitly oppose gun rights while calling it a public health issue.
Public health policy trumping liberty
There’s one other very interesting thing to look at in this saga. That’s the transformation, in the last decade, of what we might call the mainstream academic view on public health policy and liberty, or civil rights. This transformation is reflected in a thoughtful review from 2009 of Lawrence O. Gostin’s Public Health Law: Power, Duty, Restraint. The first edition of Public Health Law, published in 2000, was considered a seminal work on the topic. Elizabeth Weeks Leonard, then an associate professor at the University of Kansas School of Law, reviewed the second edition (2008) for the Houston Journal of Health and Law Policy (2009 Vol. 9, pp. 181-20).
In laying out the transformation, Leonard first notes the post-9/11, post-Katrina trend of advocacy on public health policy (she footnotes the “gun violence” reference with one of the NEJM articles by Drazen, Morrissey, and Curfman; see link for footnote references):
Advocates and policymakers regularly invoke principles of, if not the term, public health, when advocating for programs to address obesity, gun violence, and second-hand smoke. The tragic, catastrophic events and new threats to global health and security laid bare not only the unique role of public health to help during crises but also the crippling shortcomings of our existing public health legal infrastructure.
In light of this trend, she compares the second edition to the first, looking at the differences in approach to civil libertarianism. She finds the differences to be significant. Leonard outlines the perspective of the first edition here (all emphases added):
The new world order of public health propels Gostin’s second edition but also forces him to reevaluate some of his basic operating premises, namely “the dominant liberal position that individual freedom is by far the preferred value to guide ethical and legal analysis in matters of physical and mental health.” That position animated the structure and content of the first edition. He opened the first edition, in Part One, Chapter 2, by grounding public health law in the United States Constitution. He identified specific individual rights protected by the Constitution, which necessarily and appropriately limit the government’s public health powers. The first edition advocated, according to one commentator, “a carefully constrained and narrowly delineated interventionist role for government.., when intervention may conflict with the civil liberties of distinct persons.” To illustrate his overarching theme, Gostin discussed the canonical public health law Supreme Court case of Jacobson v. Massachusetts, which upheld a City of Cambridge mandatory smallpox vaccination ordinance. For Gostin, the real significance of Jacobson was not so much the Court’s approval of the mandatory vaccination law but its establishment of a “floor of constitutional protection” and four specific limits on public health powers.
The second edition of Gostin’s tome has a fundamentally different perspective:
In the second edition, Gostin moves off of individual rights as the central organizing principle and predominant theme of his book – and of public health law. Part One, Conceptual Foundations [where the tension between regulation and liberty is discussed], is abbreviated to two chapters. Part Two more broadly identifies various sources of public health law, including the United States Constitution as just one source. Other specifically identified sources include administrative law, or “direct regulation” of public health by government agencies. In the first edition, discussion of administrative law did not appear until deep in Chapter 9 on economic regulation, which marginalized the exceedingly important, central public health role of federal (think Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), Environmental Protection Agency (EPA), Health and Human Services (HHS), Federal Emergency Management Agency (FEMA) to name a few) and state public health agencies and authorities.
The most significant, and much needed, addition to the second edition is an entire Chapter 7 in Part Two on Global Health Law. The first edition barely mentioned public health laws outside of the United States…
These are only brief excerpts from a 20-page scholarly review, which makes it clear that public health policy not only intersects with just about every constitutional right we have, but that in the last 10-15 years, there’s been a meaningful and anti-libertarian shift in perspective among public health policy advocates and professionals.
It’s nothing but special pleading, for one community of professionals – like the NEJM authors – to pretend that public health policy should be apolitical or non-partisan. All public policy is inherently political and partisan. It’s about government making us do things or prohibiting things. The NEJM authors have their own list of things they want government to make us do, in the name of public health.
They may be comfortable with the public health profession having already dealt away the American view of individual rights and constitutional protections. But millions of Americans aren’t. In today’s overregulated environment, every appointment of a public official is political – and every constitutional right is at risk. “Public health” is one of the highest-vulnerability areas for this menace to our rights. In opposing Dr. Murthy’s gun politics, the NRA is just doing its job.