Drug Pushers

by Sean Philpott, Director of the Center for Bioethics and Clinical Leadership

Like many academics — and contrary to the image of college professors as lazy scholars that take sabbaticals every other year and have their summers off — I about have four or five full-time jobs. I direct a graduate program in bioethics, teach six courses (including two summer courses), and supervise four students each year as they complete their Masters projects.

I also oversee an international training program, write and review federal grants, publish scholarly papers, record commentaries like this, edit a professional journal, and chair several institutional, professional and government committees. My colleagues do the same.

One of these colleagues, a professor at a prestigious university in Australia, just lost one of his five jobs. The Royal Australasian College of Physicians disbanded its ethics committee last week, which he chaired. It was disbanded just days after producing a report that criticized Australian doctors ties to drug companies. Release of the report was also quashed, leading many to speculate that the pharmaceutical industry strong-armed the College of Physicians to prevent a public denunciation of its drug marketing practices.

Drug companies spend over $10 billion a year to influence physicians and patients using a variety of techniques. They hire physicians as spokesmen and advisors, pay clinicians to recruit patients for clinical trials, sponsor professional conferences and training programs at luxury resorts, and send a bevy of attractive salespeople bearing drug samples and gourmet sandwiches to doctors offices.

Over 95% of American physicians have some sort of relationship with drug and medical device companies, ranging from paid consulting gigs to receiving food in the workplace. While taking a slice of pizza or a free coffee mug might not seem like a big deal, it is an incredibly effective marketing tool.

Of dozens of studies looking at physician prescribing habits, every one found that doctors are more likely to prescribe heavily promoted drugs to their patients even when there were cheaper and more effective treatments available. A gift as small as a ballpoint pen was found to affect treatment decisions.

Because of this, many medical schools, hospitals and clinics now prohibit their staff from taking gifts or accepting meals from drug company representatives. Most medical societies have also developed strict guidelines designed to reduce pharmaceutical industry influence on clinical practice. Finally, as part of the Affordable Care Act (or Obamacare), Congress passed the Physician Payment Sunshine Act.

The Sunshine Act requires drug companies and medical device manufacturers to report any payments — be they consulting fees, gifts, or sponsorship of training programs — they make to doctors and teaching hospitals. These records will be publicly available starting in 2014, allowing you to check how much money your physician received from Pfizer before you fill that prescription for Lipitor.

This sounds like a great idea in practice, but it probably won’t make a damn bit of difference. Money and gifts aren’t the only way that the pharmaceutical industry influences treatment decisions.

Consider, for example, free drug samples. These samples are excluded from the reporting requirements of the Sunshine Act, and doctors and patients love them. Free drug samples let doctors and patients see if a particular course of treatment is effective at little to no cost, and can be used to provide care to poor patients that lack prescription coverage.

But pharmaceutical companies don’t provide free samples of low cost generic drugs, only the latest and greatest (and most expensive) new treatments. Once these samples run out, a patient is unlikely to request and a doctor unlikely to recommend cheaper alternatives. In the long run, patients end up paying more with the free samples than they would if they’d be prescribed a lower cost but equally effective drug.

This isn’t to say that your doctor is in the pocket of the drug companies, even if she consults for Eli Lilly and has a closet full of Pfizer-branded swag. But her prescribing practices may be influenced in subtle ways that she is unaware of.

This also isn’t to demonize the pharmaceutical industry. Drug companies produce valuable lifesaving medicines. But these companies are beholden to corporate shareholders. It makes sense that they want to maximize profits while easing patient suffering. The easiest way to do that is to convince you that you need the latest and greatest drug, even if cheaper alternatives exist.

There’s nothing inherently wrong with this, even though it contributes to the escalating cost of medical care in the US. It is that very profit that provides the incentive for these companies to develop the dozens of miracle drugs that have come on the market over the last thirty years.

So how can you be sure that the drug your doctor just prescribed is the right one for you, both in terms of cost and effectiveness? The answer is quite simple: stop being so naive. Stop asking for the latest and greatest drug simply because you saw a commercial for it while watching the evening news: newer doesn’t always mean better. And stop assuming that the drug your doctor recommends is the best choice: inquire about alternatives, including low-cost generics, and ask why they are or are not right for you.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on October 24, 2013. It is also available on the WAMC website. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

My Last Lesson with Dad

by Theresa Spranger, Bioethics Program Alumna (MSBioethics 2012)

My dad was an amazing man.  He was joyful, kind, and caring to everyone he met.  On October 14th he left us to be with his savior in Heaven.  Dad did not have an easy life, in his last five years he suffered with Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig’s Disease).  He lost the use of his legs entirely, riding around in a motorized wheelchair.  He also had weakening of the muscles in his torso and diaphragm.

Dad never lost his love of life, on October 6th he was organizing a Tootsie Roll drive at church, my mom and I close behind to take orders from him and tie aprons on his fellow Knight’s of Columbus volunteers.  He never let the disease get to him or bring him down.  He is and will remain an inspiration to me.

Dad and I had a special relationship.  I am adventurous in certain aspects of my life, but having severe vision issues since birth, some of the more mundane of life’s adventures have proven challenging for me.  These were things like learning to: ride a bike, drive a car, water ski, etc.   I would flatly refuse to learn, saying such skills were not necessary to life and dad, sagely disagreeing with me, would come up with a creative way to help me over the hurdle.

I learned to ride a bike in the grassy field behind our house, so I didn’t need to worry about falling,   Day after day, out we would go, Dad so patient and calm until his timid little girl could brave the sidewalk like all of her friends.  The point here is that my father pushed me; he never let me rest on, “I just can’t do it Dad.”  He wanted me to be what he knew I could, not stop at my presumed limits.

On October 9th, Dad’s lungs failed him.  He couldn’t catch his breath, even with his Bi-pap machine and as EMS took him to the ambulance his heart stopped beating.  They performed CPR and used their paddles, but the notes say that Dad was without oxygen for 19 minutes that afternoon.

Our family had known for a while that we needed to have the “vent talk.”  By this I mean, we knew that the road we were on would likely lead to Dad being placed on a ventilator to assist with his breathing full time.  People with ALS often have to decide if they want to live life on a vent or if when the disease has progressed to their lungs they will refuse the vent, likely leading to an earlier death.  Dad never wanted to talk about this, so we never did.

When an acute incident happens however, there is no talking.  By the time we saw Dad in the emergency room, he was vented and that was that.  No decision available, no discussion necessary.  Mom and I were left to wonder, “What now?  Will he be able to come off the vent or will this be his new life?”  At the time we didn’t know that he had been without oxygen for 19 minutes.

Here is the funny thing I have learned about hospitals…they don’t tell you everything.  We knew Dad’s condition was critical, we knew to sleep next to the phone for a call that night, but it was several days later when we found out how long he had been gone before they got his heart beating again.  It very likely wouldn’t have changed anything, but I always think more information is better than less.

Up to ICU we went a few hours later, tubes everywhere, monitors beeping and flashing, and a straight shooting nurse practitioner who asked us what the hospital should do if Dad’s heart stopped again.  Still no one told us how long he had been without oxygen or that Dad’s heart had actually stopped twice already, not just once as we all believed.  And so began family conference number one, ending with the decision to make Dad a Do Not Resuscitate (DNR).

They had Dad on what they called a “Hypothermia Protocol.”  A few mistaken descriptions from clinicians and almost two days later we discovered that this meant they cooled his core body temperature to 92 degrees and left him there for 24 hours, and then they slowly warmed him back to a normal body temperature.

Every clinician had their own idea of when we should see progress.  Many told us to not give up hope and keep watching Dad, but none volunteered a time frame.  Neurology was kind and thorough, but volunteered very little information.

By Saturday, this daughter wanted answers.  I cornered a neurologist and asked what I thought was a simple and common question.  “How long until you would no longer expect to see improvement?  When do we need to start talking about the difficult decision of removing Dad from the vent?”  Like pulling teeth I got an answer of 72 hours after rewarming.

As we kept vigil for 12 to 15 hours a day, Dad’s condition declined.  He opened his eyes only a few times and they were unfocused, He ran a fever, which kept creeping higher.  His blood pressure became unstable.

“His pressure is low, I am going to do such and such to raise it.” We would hear.  Then, “his pressure is too high, I need to up his sedation.”  All the while we were instructed to watch for signs that he is waking up, and a hope that we could assess his ability to function.

By Sunday, we reached our limit.  We had found out more about the EMS report and were continuing to hear a variety of stories from doctors, never giving a real prognosis, and offering very little information.

The interaction that proved to be the final straw was a pulmonologist who cavalierly said that we would have to meet with neurology and then decide about whether or not we wanted to continue on the vent.  Our stunned reaction to his callous presentation of that information caused his fellow physician to very condescendingly say: “A neurologist, that’s a brain doctor.”  A brain doctor?  No it isn’t.  Neurology is complex specialty dealing not only with the brain, but with the nervous system, muscles and movement.  My father had ALS, a neurological condition, we are very familiar with the specialty of neurology and “brain doctor” isn’t the half of it.

My mom, sister, and I decided it was time to regain some control.  We were stressed, overwhelmed, tired, and confused.  We were feeling pushed around, taken advantage of, and out of control.  We are not ignorant people; we knew what it meant to make my father a DNR.  It meant that if his heart stopped again, the hospital staff would allow him to die and not try to intervene.  We knew that we were hurdling ever closer to making the decision to remove him from life support and allow him to die.  We knew that the constant sedation medication would make it incredibly hard to know if Dad would even be able to wake up.

We felt helpless and out of control.  Dad’s nurse came to find us in the waiting room; she handled it well as we less-than-eloquently explained how we were frustrated with the lack of information and were downright insulted by the pulmonologist calling a neurologist a “brain doctor.”  The nurse was kind and calm, she said that we did have options, and explained them to us.  We didn’t want to prolong Dad’s suffering unnecessarily and decided that if we saw no improvement by the next afternoon we would remove the life support.

On the morning of October 14th, Dad’s fever had risen, his blood pressure was more unstable, the vent settings had been raised, and he was completely non-responsive.  Mercifully, his declining condition helped to validate our decision to remove him from life support.

My family is devoutly Catholic, and we were blessed to have a priest-friend say Mass in Dad’s room during his final hours.  It was beautiful and grace-filled, a precious balm for the road ahead.  When everyone had made their peace and said goodbye we signed the paperwork and stood behind the curtain as they unhooked the ventilator and gave Dad medications to keep him comfortable.  When allowed, we returned and softly prayed him to his Maker.

As a unit, my family is calm, intelligent, rational, and faithful.  We like to have all of the necessary information to make a decision and do not shy away from difficult ones.  Once made, we do not second guess ourselves, or require handholding or constant validation.  We know the consequences of our actions and decisions and bear them in their entirety.

When Dad passed away there was not a dry eye in the room, including clinicians.  The very kind woman from hospice even told my sister that Dad’s death was the most peaceful, prayerful, loving death she had ever witnessed.

Dad lived his whole life with integrity and honor and as a family, we were determined that his death would be the same.

We are not the norm, the clinicians at this hospital were woefully unprepared for an educated and secure family.  Most were visibly shocked that we understood Dad’s condition so well.  I am at peace with how my father died and I don’t think I would have made different decisions if given more information upfront.  However, I am still disappointed that all of the necessary information was not volunteered by the clinical staff throughout Dad’s hospital stay.

So, how does this tie into my tales of bike riding?  Prior to this week, I was a bioethicist who would only scratch the surface of an end of life debate.  I don’t like to think too deeply into the issues, because they are difficult to face.  Dad however, knew better for me, his final act in this world was one that pushed me deeper in my career and helped me transition from grass to sidewalk in my discussion of end of life issues.  It is important to talk about these things and not just play it safe.

Dad’s last week led me to some important questions.  It hasn’t led me to all of the answers, but that is why bioethics is a career of open debate and discussion.

  1. How much information should be given to the families about the condition of their loved one?  And when should this information be presented?
  2. Should families be presented with all options at the beginning of the hospital visit, to maintain a feeling of control in such a stressful situation?
  3. When is a clinician focusing on the positive aspects of the care too much?  Should we train our physicians to stay away from avenues of “false hope?”
  4. Dad had a 5% chance of regaining consciousness after the Hypothermia Protocol.  Among this 5% there are varying levels of ability, so it was not a guarantee that if he woke up he would be able to do or understand all of the things he could before his cardiac arrest.  Is it worth it to put the families through the 6 days of pure hell we experienced, for a 5% chance of survival?
  5. With every little fluctuation of blood pressure, heart rate, etc. Dad was given treatment.  This is meant to keep the person stable and prevent an acute incident and death.  Thereby, pushing families (often unprepared to make such decisions) into a position of choosing to take their loved one off of life support.  Is this fair to the families?  Should we work so desperately to keep such very ill people alive, when their bodies are failing and they seem to be trying to die?
  6. It is my opinion in these situations that the most important thing a hospital staff can do is adequately read the family.  Some people will need more explanation of events, some less.  Some will want all available information; some can only handle the necessary pieces of the puzzle.  Some will be prepared to make difficult decisions without internal strife, and some will need mediation.  How can we adequately assess a family’s needs and treat them with the utmost dignity and respect?


Americans have a very immature view of death.  We don’t like to think about it, talk about it, or deal with it.  We often try to deny that it happens at all.  This is ridiculous; each and every one of us will one day make our journey out of this world, denying the fact will not make it easier when the day comes.

After going through this journey with Dad, I think that the medical community can and should take steps to aid in American’s understanding and acceptance of death as a part of life.  Modern medicine is full of amazing advances, but it seems to me that we should also be more honest about its limitations.

I miss my dad, his cheerful spirit, his warm embrace, and his unfailing ability to guide me to the “high road” in life.  As I turn 30 today, without him on my birthday for the first time in my life, I pray that his death won’t be in vain.  I pray that our story will spark others to deepen their understanding of end of life issues and that the medical community can come up with creative solutions to make this difficult time even slightly easier for patients.

[This blog entry was originally posted in a slightly edited form on Ms. Spranger’s blog on September 17, 2013. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Safety Shutdown

by Sean Philpott, Director of the Center for Bioethics and Clinical Leadership

Unless a miracle happens, by the time this commentary airs on Northeast Public Radio the US federal government will enter its tenth day of shutdown. Nearly 800,000 workers will remain furloughed, important social service and educational programs will remain unfunded, national parks and monuments will remain closed, and the National Zoo’s panda cam will remain offline.

Some already have been directly affected by the shutdown — the furloughed workers, the disadvantaged children whose Head Start programs were forced to close due to a lack of funds, the grieving widows of fallen soldiers whose death benefits were delayed, and the desperate cancer patients whose enrollment in NIH-run clinical trials has been postponed. For most of us, however, the impact of the shutdown has been fairly minimal. Our mail is still being delivered, our courts of law are still open and our prisons are still full, our police and firemen remain on duty, and our social security checks continue to arrive.

For the average American then, all is currently okay in the land of the free and the home of the brave. And it will stay that way, so long as you don’t eat anything, drink anything, take any new medications, or fly anywhere. Unbeknownst to many, the very safety of the public is at risk during the shutdown.Consider the issue of food safety. Locally produced meat, poultry and seafood should remain safe, no matter the length of the shutdown. The United States Department of Agriculture (USDA) continues to inspect domestic meat and poultry plants. The National Oceanic and Atmospheric Administration’s (NOAA) domestic seafood inspection program is also up and running.

But the US Food and Drug Administration (FDA), which is responsible for monitoring the remaining 80% of domestic food production, as well as ensuring the safety of all food imports (including meat and seafood), has been largely shuttered. Given that 10% of the beef, 20% of the vegetables, 50% of the fruit and 90% of the seafood eaten by Americans comes from overseas, that’s a lot of uninspected food. So be sure to wash your fruits and vegetables carefully in the coming weeks.

Moreover, if an outbreak of food-borne illness should happen, the government response is likely to be tepid. When such outbreaks occur — particularly those that cross state lines, such as the current outbreak of Salmonella that has sickened over 300 people in 18 states — the FDA, USDA and the US Centers for Disease Control and Prevention (CDC) work with local and state health agencies to trace the source of the contamination and stop any further cases of illness. For the most part, that’s no longer happening.

In fact, the government shutdown poses a myriad of threats to the health and safety of all Americans. Not only is the CDC no longer actively investigating outbreaks of foodborne illness, it has also suspended its flu surveillance and vaccination program. The emergence of a new strain of influenza — such as the H1N1 strain that caused a global pandemic in 2009 — could go largely unnoticed until it is too late to prevent its deadly spread.

Similarly, not only have food inspections stopped at the FDA, so have drug approval and safety inspections. New drugs to treat deadly diseases like hepatitis C may be delayed, and unsafe drugs that pose a danger to US consumers may remain on the market. Thousands of Federal Aviation Administration (FAA) employees have also been furloughed, including air safety inspectors. As a result, in the past week safety inspections of planes and pilots have largely ceased. Most of the staff of the federal Occupational Safety and Health Administration (OSHA) have also been sent home. They are no longer conducting workplace safety inspections, except in cases where there is “a high risk of death or serious physical harm”.

The only Americans who remain safe during this government shutdown are the politicians themselves, most of who are comfortably ensconced in gerrymandered districts that ensure continued re-election despite universal disgust with their partisan hijinks. The rest of us are at risk, whether we know it or not. And it seems that is little that we can do to combat the continued political posturing that prevents our Congressmen from working together to address our nation’s pressing needs … at least, that is, until the 2014 midterm elections.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on October 10, 2013. It is also available on the WAMC website. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Criminalizing Bone Marrow Donation

by Michelle Meyer, Bioethics Program Faculty

On October 2, in the midst of the government shutdown—either HHS somehow managed to convince itself that the rule was “necessary for the protection of life” or, more likely, it had already been scheduled for printing—HHS quietly published a Notice of Proposed Rulemaking. The proposed rule would effectively moot the recent Ninth Circuit case of Flynn v. Holder by criminalizing the compensation of bone marrow donors, even when the life-saving stem cells are extracted through a newer, minimal risk procedure. In this post, I’ll explain the medicine, the Ninth Circuit’s decision, and what HHS proposes to do in response. In my next post, I’ll have some reaction to HHS’s policy arguments, about which I’m skeptical, and perhaps a few thoughts about where plaintiffs might go from here.

Section 301 of the National Organ Transplant Act (NOTA) of 1984 criminalizes the transfer of “human organs” for “valuable consideration.” Reimbursement of reasonable out-of-pocket expenses associated with travel and lost wages are okay—as are, since the 2008 amendment of NOTA, paired living donor chains—but any other “valuable consideration” that might incentivize sources of organs is not. Under NOTA, as amended,

‘human organ’ means the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof, including that derived from a fetus) specified by the Secretary of Health and Human Services by regulation

(emphases added). HHS has since added to this list “intestine, including the esophagus, stomach, small and/or large intestine, or any portion of the gastrointestinal tract.”

So-called “bone marrow transplants”—in reality, infusions of hematopoietic (blood) stem cells (HSCs)—are often life-saving procedures for those with, for example, leukemia or aplastic anemia. (See these sobering statistics compiled by the Institute for Justice, which represented the plaintiffs in Flynn.) When NOTA was passed, the only way to obtain HSCs was through bone marrow aspiration using a long needle thick enough to suck liquid marrow directly from the donor’s pelvic bone. HSCs are then harvested from the marrow. The procedure is done under general anesthesia and so the donor is subject to the usual risks of anesthesia. Although the donor can return to usual activities in two to seven days, discomfort may linger for up to two weeks.During the past twenty years or so, however, a new method of obtaining HSCs has emerged—apheresis—that avoids the need to invade the bone for marrow. (Kim Krawiec had a helpful post a while back with short videos that explain the differences between the two methods.) Today, something like two-thirds of HSC donation occurs through apheresis (traditional aspiration is medically indicated in some cases). Using this method, the donor receives five daily injections of a drug that accelerates blood stem cell production and coaxes the stem cells to move from the bone marrow into the bloodstream, where they are called peripheral blood stem cells (PBSCs). On the fifth day, the donor sits in a recliner for up to eight hours while blood is drawn from one of her arms, recycled through an apheresis machine that harvests the stem cells, and returns the remaining blood to the donor in her other arm. Possible side effects of the drug in the five-day run-up to the procedure include headaches and bone or muscle aches. After harvesting, the donor can return to her normal routine in one or two days, and complications are, according to the 9th Circuit, “exceedingly rare.”

Still, insufficient numbers of willing, compatible donors (there are just four blood types but millions of marrow cell types) exist. Those in need of transplants who have diverse genetic backgrounds, such as African Americans and those of multiple races/ethnicities, are especially difficult to match.

In Flynn v. Holder, a group of plaintiffs challenged the ban on compensating bone marrow donors. Plaintiffs included parents of children with leukemia and aplastic anemia; a parent of mixed-race children; and MoreMarrowDonor.org, a California nonprofit that wanted to test a pilot program in which it would offer bone marrow providers $3,000 awards in the form of scholarships, housing allowances, or gifts to a charity of their choice. They pressed two arguments before the Ninth Circuit—one based on the Equal Protection Clause, and one based on statutory interpretation. (A third argument, that the ban violates substantive due process, was rejected by the district court by fairly dubious analogy to Abigail Alliance, and plaintiffs did not raise it on appeal.)

Plaintiffs’ first argument was that NOTA, as applied to MoreMarrowDonor.org’s pilot program, violates the Equal Protection Clause by distinguishing, without rational basis, blood, sperm, and eggs (which do not come within NOTA’s definition of “human organ,” and donors of which may be compensated) and HSCs (donors of which may not be compensated under HHS’s interpretation of NOTA, regardless of the method of procurement). Plaintiffs argued that HSC donors—like blood and gamete donors, but unlike solid organ donors—are exposed to little risk and quickly regenerate what they have donated.

As applied to HSCs donated through aspiration, the court held that NOTA’s compensation ban might have any number of rational (if imperfect) bases and, therefore, does not violate the Equal Protection Clause. However, the court avoided the constitutional question as applied to HSCs donated through apheresis, holding that “the statute contains no prohibition.” According to the court, Congress could not have intended for NOTA’s reference to “bone marrow” to encompass the harvesting of HSCs through apheresis (that is, PBSCs), because that procedure did not exist in 1984.

As for what the statute implies about apheresis-derived PBSCs, the question came down to whether PBSCs should (as the government argued) be considered “bone marrow” or a “subpart thereof,” both of which are covered by NOTA’s ban, or (as plaintiffs argued) “blood,” which is not. The court sided with plaintiffs, finding among other defects in the government’s argument that it “proved too much”; after all, if HSCs are “part of” bone marrow because they are formed there, then so are the white and red blood cells that the government concedes fall outside of NOTA’s scope. In short, the court found,

All that differentiates the blood drawn in peripheral blood stem cell apheresis from the blood drawn from a compensated blood donor, other than the filtration process, is the medicine given to donors in the days before the blood draw to increase hematopoietic stem cell secretion.

In its petition for rehearing (here’s Kim again), the government raised a fairly weak new argument (Kim again) based on the fact that Congress—in an entirely different Title of the U.S. Code, pertaining to entirely different issues—defined “bone marrow” to include PBSCs. The court rejected the government’s petition for rehearing but did amend its opinion to reflect its rejection of the state’s new argument. The court concluded:

We construe “bone marrow” to mean the soft, fatty substance in bone cavities, as opposed to blood, which means the red liquid that flows through the blood vessels. The statute does not prohibit compensation for donations of blood and the substances in it, which include peripheral blood stem cells. The Secretary of Health and Human Services has not exercised regulatory authority to define blood or peripheral blood stem cells as organs. We therefore need not decide whether prohibiting compensation for such donations would be unconstitutional.

In its notice of proposed rulemaking this week, of course, HHS seeks to use just this regulatory authority. (Comments, by the way, are due by December 2, 2013.) The agency proposes to “explicitly incorporate hematopoietic stem cells (HSCs) within peripheral blood in the definition of ‘’bone marrow,’ so that the prohibition on transfers of human organs for valuable consideration applies to HSCs regardless of whether they were recovered directly from bone marrow (by aspiration) or from peripheral blood (by apheresis).”

As I said, in my next post, I’ll talk about the policy arguments for underlying HHS’s use of its regulatory authority. They include the usual suspects—commodification, coercion of PBSC vendors, exploitation of the sick, and concerns about compensation crowding out altruism and incentivizing vendors to conceal infectious diseases.

[This blog posting originally appeared on Bill of Health. The contents of this blog are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

My L.A. Times Op-Ed: In Defense of the Evidence-Based Nudge

by Michelle Meyer, Bioethics Program Faculty

The op-ed, which appeared a couple of days ago, is online here. It’s co-authored with Christopher Chabris (who happens to be my husband). Here—where I’m writing only for myself—I thought I’d say a bit about what motivated us and elaborate on a few points whose force may have been blunted by the process of condensing our thougts into our allottted 1,000 words.

The news hook for the article was an August memo leaked to Fox News in which the Obama administration announced that it is looking to hire behavioral scientists to help shape policy. Notwithstanding that the explicit model for this initiative is the U.K.’s “Behavioral Insights Team,” formed in 2010 by Conservative Prime Minister David Cameron, in the U.S., some on the right went completely off the rails about the Obama announcement.

A typical reaction was from Fox News’s Monica Crowley, who described the initiative as “really frightening,” “insane,” “outrageous,” “unconstitutional,” “an Orwellian horror show”—and all of the aforementioned mostly because, so far as I can tell, she believes that nudges constitute a form of “psychological warfare” akin to “what our military does to our enemies.” There are certainly legitimate criticisms of nudges to be made by both the right and the left, but that they are a form of Communist mind control is not among them. (For starters, even if nudges did rely on something like subliminal messages, those messages have been shown to have no effect on consumer behavior, much to the chagrin of marketers.)

The impetus for our piece, then, was to disabuse the Crowleys of the world (or at least that portion of them who are open to persuasion on this matter) of that notion, and then to offer some affirmative reasons why conservatives and libertarians should embrace the nudge (its preservation of all options in the choice set; its ability to incentivize personal responsibility; its efficiency), especially relative to its often perfectly viable alternative: the shove. (To that end, the piece was originally intended for a periodical with a right-of-center audience but wound up in the L.A. Times, where some of it may admittedly amount to preaching to the choir.)

In making our case…

…we tried to avoid overselling nudges, as some others who have defended Obama’s nudge unit have done, including the administration itself. The memo recruiting behavioral scientists says, for instance, that its nudges are designed to “help people to achieve their goals.” But not everything that has been characterized (perhaps wrongly) as a “nudge” aims primarily at helping the nudgee act in her own best interests, as seen by the nudgee’s own—or even the nudger’s—lights. Our example, touted as a nudge by David Brooks, is an opt-out default rule for organ donation. I myself am in favor of organ donation opt-out defaults, but falsely characterizing such defaults as libertarian paternalism can only play into the right’s paranoia about nudges and thereby undermine the whole effort. Better simply to acknowledge that arranging the choice architecture in this way promotes the state’s values, while noting that elections have consequences, and in urging its citizens to act in ways the state deems good, nudges should be preferable to shoves.

Even where a nudge does aim to make it easier for nudgees to act in ways that reflect the nudgee’s own good, as she herself sees it, no nudge policy will in fact have that effect on everyone, since we all have different visions of the good and find ourselves in different circumstances. As I’ve argued elsewhere (in the context of risk-benefit analysis by IRBs), central planners (1) cannot possibly know every individual citizen’s preferences and, in any event, (2) cannot enact a single policy that caters to those preferences, since human beings happily tend to be rather diverse. So it’s disingenuous to pitch nudges as helping everyone achieve their goals; they can’t, and they don’t. But when a central planner has to make some decision—someone, whether it’s the government or your boss, has to set the default for retirement savings plans on behalf of many diverse people, not all of whom, it must be conceded, decline to save out of irrationality—nudges (1) preserve the idiosyncratic citizen’s ability to make a different choice and (2) sensibly set the default to what the government has good reason to believe will serve most people.

We also try to highlight some advantages of nudges that have been given short shrift. For instance, Crowley is apparently alarmed by the fact that the government will be “experimenting” on citizens. (For her, as for so many others, the word “experimentation” seems to conjure images of vivisection, Frankenstein’s monster, and the like.) In our piece, we argue, to the contrary, that regulation is most appropriate only if it has first been tested on citizens in randomized, controlled trials (RCTs). Regulations have costs, and we ought to have some evidence that they will yield benefits that justify those costs. This is true even of nudges: what for the individual citizen is a gentle nudge will often be a very big, very expensive shove for business.

But on this score, nudges are at a considerable advantage over other forms of regulation. One time-honored way of the government incentivizing citizens to do what they want, for instance, is to amend the tax code. Before implementing them across the nation, could the government test proposed changes to the tax code to ensure that they have the intended effects on behavior? Maybe. But dealing with multiple versions of the tax code would be administratively difficult and would likely raise several legal (e.g., equal protection) objections. Because nudges by definition neither mandate nor forbid any choice, nor do they significantly alter the economic incentives to choose among options, they can more easily, ethically, and legally be subject to randomized experiments to test their efficacy. The Obama administration suggests that its Nudge Unit will only implement empirically tested nudges. But, as we discuss, the costly Obamacare rule requiring chain restaurants to display calories counts was not tested in advance, and evidence for its efficacy in reducing caloric intake is inconclusive, at best.

Our take-away, then, is that nudges have the potential to serve ends that people across the ideological spectrum should embrace. At the same time, we critique the administration for a somewhat wavering fidelity to best practices in imposing new regulations. In short, we say that nudges are good, especially compared to the alternatives, but only if they’re done right.

[This blog posting originally appeared on The Faculty Lounge. The contents of this blog are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]