US courts are practicing medicine without a license — for a fix, look to the Fed

No matter where you stand on the political spectrum or how you feel about medically induced abortion, you probably should be concerned about the recent Texas court ruling on the abortion drug mifepristone.

Although the media have largely framed this ruling as part of the abortion rights debate, the fundamental issue is really about the ability of the Food and Drug Administration (FDA) to use evidence-based data to guide its approval of medicines and devices without undue political interference.

You might ask, why is a court in Texas able to block the FDA approval of a medicine even though it has no medical background?

The answer lies in the fact that the FDA is an agency (overseen by the Department of Health and Human Services, a Cabinet-level position) within the federal government, so its decisions are considered federal government policies, which in turn can be challenged by the states through the federal courts. This means that every medication and therapy that the FDA approves can potentially be challenged through the courts — including not only abortion pills but also vaccines and countless other therapies that save people’s lives.

This latent threat might go further than just the evidence-based decisions of the FDA. Because the Centers for Disease Control and Prevention (CDC) and National Institutes of Health (NIH) are also federal agencies, their decisions might also be challenged in federal courts.

So, what is the solution?

Interestingly, the answer may lie in a very unexpected source: the Federal Reserve.

The Federal Reserve, also called the Fed, was created in the early part of the 20^th century when it was recognized that a United States central bank needed to be independent of the banks that it oversees (not to mention the federal government). It was understood that if this central bank were based within the Treasury Department, it would likely be unduly influenced by the executive branch, since the secretary of the Treasury is part of the president’s Cabinet.

As it turned out, Congress bestowed on the Fed a significant amount of independence from the federal government: It is insulated not only from political influence but from undue special interest lobbying as well. This feature of the Fed was not always popular, but there have been rare challenges. The few times that there have been challenges, they have been unsuccessful, further solidifying the perception of the Fed’s independence.

In my book, “Building a Unified American Health Care System: A Blueprint for Comprehensive Reform,” I discuss how the creation, by Congress, of an independent Fed-like “National Medical Board” (NMB) that oversees the entire U.S. health care system might insulate its agencies from these types of political and lobbying pressures. Just as the Fed is led by economists, the NMB would be led by doctors, public health experts and health care economists.

Instead of having the agencies that oversee drugs and devices (FDA), public health (CDC) and medical research (NIH) be a part of the federal government, they would instead be administered by this new independent board of health care professionals. The independence of the NMB would allow for evidence-based decisions in all aspects of the health care system, insulated from political and financial pressures.

The creation of an NMB, especially when it comes to its structure and its independence from the federal government, would be facilitated by the precedence set by the Federal Reserve Act of 1913 that first created the Fed. Like the Fed, the chair of the NMB would be appointed by the president and confirmed by Congress. However, unlike the Fed, the remaining members of the NMB would be picked by its chair based on their qualifications to run the U.S. health care system. It would be funded through annual appropriations from Congress, and Congress would maintain fiscal accountability over the NMB by requiring a report prior to each annual appropriation.

The advantages of having a neutral NMB go far beyond its independence. As the Fed unified the anarchic banking and financial system of the early 20th century, the NMB would allow the unification of the various components of America’s chaotic health care system under one oversight body, including medical data collection, health information infrastructure, medical research and even health insurance. If constructed correctly, it could transform our dysfunctional health care system to meet the ideal full potential it has always had, by allowing health care providers, health care agencies and even health insurance to exist in a system based on science and insulated from the whimsey of the court.

Gilead Lancaster, MD, is a hospital-based cardiologist and associate clinical professor of medicine at the Yale University School of Medicine. He is the author of the newly published book “Building a Unified American Health Care System: A Blueprint for Comprehensive Reform” Johns Hopkins University Press, 2023. Follow him on Twitter @GileadLancaster.