We saw Obama and Clinton neo-liberals promote GREEN ENERGY in their posing progressive to advance global corporate needs -----global technology needed battery technology to build global technology infrastructure---and the fracking industry wanted to frack the heck out of America and export natural gas----all of which kills GREEN AND IS THE OPPOSITE OF GREEN TECHNOLOGY. So, the entire premise of Clinton/Obama Wall Street global corporate neo-liberals that any of this was done as GREEN was based on sending hundreds of billions of dollars to build INFRASTRUCTURE THAT KILLS GREEN. That is progressive posing by global pols. They did that as well with the Affordable Care Act when they sold this idea that TELEMEDICINE was about helping the poor and seniors access health care when the goal was sending hundreds of billions of dollars in Federal funds building these global health tourism and marketing global health systems to the world's rich. The only way telemedicine will be used for American citizens falling into the lower tiered health plans of Bronze and Medicaid ----AND REMEMBER UPPER-MIDDLE CLASS YOU ARE COMING THERE SOON!------ is to eliminate our citizens ability to ever see a real professional doctor who is now too busy servicing the rich of the world to maximize profits and wealth of a few global health systems and executives.
WHEN A CANDIDATE PROMOTES TELEMEDICINE AS BALTIMORE CANDIDATES FOR MAYOR OF BALTIMORE TIED TO A VERY NEO-CONSERAVATIVE JOHNS HOPKINS AND BALTIMORE DEVELOPMENT DO----THEY KNOW THIS IS VERY, VERY, VERY BAD HEALTH POLICY FOR SOON TO BE 90% OF AMERICANS.
Below you hear what the global corporations are telling us telemedicine will do posing progressive.....keep in mind---some telemedicine is fine---it does help. That was the social progressive democratic policy -----with global corporate Wall Street pols it will be a GHETTOIZING of our access to ordinary health care.
What is Telemedicine?
Formally defined, telemedicine is the use of medical information exchanged from one site to another via electronic communications to improve a patient’s clinical health status. Telemedicine includes a growing variety of applications and services using two-way video, email, smart phones, wireless tools and other forms of telecommunications technology.
Starting out over 40 years ago with demonstrations of hospitals extending care to patients in remote areas, the use of telemedicine has spread rapidly and is now becoming integrated into the ongoing operations of hospitals, specialty departments, home health agencies, private physician offices as well as consumer’s homes and workplaces.
Telemedicine is not a separate medical specialty. Products and services related to telemedicine are often part of a larger investment by healthcare institutions in either information technology or the delivery of clinical care. Even in the reimbursement fee structure, there is usually no distinction made between services provided on site and those provided through telemedicine and often no separate coding required for billing of remote services. ATA has historically considered telemedicine and telehealth to be interchangeable terms, encompassing a wide definition of remote healthcare. Patient consultations via video conferencing, transmission of still images, e-health including patient portals, remote monitoring of vital signs, continuing medical education, consumer-focused wireless applications and nursing call centers, among other applications, are all considered part of telemedicine and telehealth.
While the term telehealth is sometimes used to refer to a broader definition of remote healthcare that does not always involve clinical services, ATA uses the terms in the same way one would refer to medicine or health in the common vernacular. Telemedicine is closely allied with the term health information technology (HIT). However, HIT more commonly refers to electronic medical records and related information systems while telemedicine refers to the actual delivery of remote clinical services using technology.
When Maryland was allowed an exemption from Medicare laws and protections ---which was never legal-----it pooled Medicare and Medicaid funds and allowed hospitals to use them to maximize profits and not worry about providing the level of care required by Federal Medicare and Medicaid that citizens across the nation were receiving. We all know that is why Baltimore has the worst in the nation health outcomes and communities with lifespans 20-30 years shorter than affluent. It is this Maryland policy that is enfolded in Affordable Care Act-----and we already see the same exclusion and maximizing profits structures occurring. One of the top statements made in Baltimore from citizens regarding health care justice is this------low-income citizens feel health care is simply FILLING OUT QUESTIONNAIRES and they are right----that is the bulk of what public health has been in Baltimore for decades and it occurs because a very, very neo-conservative Johns Hopkins was allowed complete control of our Baltimore Public Health Department and controls much of that Federal funding for decades---and guess what? They are a profit-driven corporate health university who uses questionnaires as research data. So, the bulk of what would have been health care access moved to being a profit-maximizing funding of health research data.
Now, I am no rocket scientist-----but when I see telemedicine and how it is structured------I see lots of health data collection with patients unable to access actual health care. THAT IS WHAT VALUE-ADDED AND EVIDENCED BASED MEANS TO GLOBAL CORPORATIONS USING TELEMEDICINE ON US CITIZENS LOSING ACCESS TO ORDINARY CARE. All that health data will be sold to global health corporations and you can bet-----the data will have nothing to do with promoting public health outcomes.
Below you see all of the deregulation of our quality health care in the US that is posing progressive----we are doing this for quality access for the poor and seniors----when the only goal is to break up American laws to allow global health tourism and telemedicine overseas. There are reasons laws required a patient be present to the doctor---because mis-diagnosis will soar from the failure of this regulation to be enforced.
Proposed patient-centered telemedicine policy raises licensing questions
By Andis Robeznieks | March 20, 2014
The Federation of State Medical Boards will vote next month on a new telemedicine policy (PDF) that codifies that medical care takes place where a patient, not a provider, is located. It also states that whether a physician and patient have a virtual or a face-to-face encounter, there should be no differences in standards of care.
The proposal carries implications for where doctors practicing telemedicine need to be licensed. “The practice of medicine occurs where the patient is located at the time telemedicine technologies are used,” the proposed policy states. “Physicians who treat or prescribe through online service sites are practicing medicine, and must possess appropriate licensure in all jurisdictions where patients receive care.”
Lisa Robin, FSMB chief advocacy officer, said the telemedicine policy actually grew out of an effort to simplify the licensing process for physicians seeking licenses in multiple states (PDF).
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But the policy's stand on state license requirements may serve as a barrier, rather than as an aid to telehealth technology expansion, one expert contended.
Dr. Bart Demaerschalk, professor of neurology and director of telestroke and teleneurology at the Mayo Clinic in Phoenix, said he appreciated the proposed policy's directives to put patient welfare first, adhere to the highest standards of care, protect patients' privacy and securely store their information. But he lamented that the policy “may lack innovative thought” with its insistence that telemedicine doctors be licensed in every state where their patients are located.
While this is the Mayo Clinic's policy, he explained, it has been an administrative barrier to its program's growth. The clinic currently provides some 3,000 neurology consultations annually to 36 hospitals in 10 states.
The three biggest obstacles to telemedicine's expansion are administrative burdens and time required for state licensing and hospital credentialing; reimbursement; and the cost of technology, Demaerschalk said.
“The most stubborn of all has been the licensing,” he added.
Telemedicine barriers could add up to higher costs and poorer outcomes for patients, Demaerschalk said. A recent Mayo Clinic study appearing in the American Journal of Managed Care found that, compared to a patient in a rural community hospital, patients in a telestroke network incurred costs that were $1,436 lower.
Demaerschalk suggests the development of a national or multi-state license for telemedicine, or reversing the decision that the medicine is practiced in the patient's physical location.
According to the National Conference of State Legislatures, 43 states and the District of Columbia provide some form of Medicaid reimbursement for primary-care telehealth services, while 19 states and the District of Columbia now require private insurance plans to reimburse providers for telehealth primary-care services. Arizona will join this list in January 2015.
The proposed policy, which will be voted on during the FSMB's annual meeting April 24-25 in Denver, will serve as a model for other state boards to follow and as a guidepost for state legislators and regulators to develop their own telemedicine policies.
Joshua Ewing, an NCSL health policy specialist, said telemedicine is generating significant activity in state capitols.
“Many states are turning to telehealth as a way to address workforce challenges—particularly in rural and underserved areas,” Ewing said. “I think many states also feel that telehealth is here, and here to stay. Therefore, they want to make sure they are in front of the issue with proper regulations that ensure patients receive safe, high-quality healthcare that is comparable to that which they would receive in a normal face-to-face interaction with a doctor.”
Wall Street of course has a marketing campaign for global telemedicine corporations that includes making our US doctors FEARFUL OF LOSING POWER AND CONTROL---OF BEING PUSHED OUT-----when in fact these doctors----like our professional teachers being pushed out and replaced by lower and lower quality of education in our public schools-----are shouting for the American people to WAKE UP!
Telemedicine was developed overseas by global health corporations like Johns Hopkins. So, much of what they are calling NEW STARTUPS AND A GROWING INDUSTRY are simply overseas corporations grabbing hold of all of Affordable Care Act's deregulation, consolidation, and ending of US public health and quality care----allowing predatory, profit-driven global corporate health systems to rule.
As they sell to the American people that this is a new industry and all of the kinks will work out------remember---these are now small businesses growing under our US Rule of Law, US Constitutional rights ----these are already-formed global corporations ready to operate in the US as they will and do overseas and our US doctors KNOW THIS
AS DO OUR CONGRESSIONAL, STATE, AND LOCAL POLS PASSING ALL OF THESE DEREGULATORY LAWS TO ALLOW THIS MESS.
'The tension between professionalism and commercialism isn’t new or limited to medicine. Misgivings by medical personnel about “Dr. Google” and smartphone telemedicine parallel misgivings by attorneys about do-it-yourself wills and divorces, and by CPAs about at-home tax return software. In each domain, professionals lament the erosion of quality, and their inability to provide it, while business disruptors revel in expanded markets'
I can just see those young SMART PHONE USERS thinking all this is great not having a clue as to the goals or what that will look like. Just paying all those smart phone rate fees will be more than actually going to the doctor's office for goodness sakeThis is attracting the affluent citizens who are educated enough to know they too hear customer service call centers wait line music for too long.
Telemedicine: Why professional concern shouldn’t be dismissed
Steven Reidbord, MD | Physician | July 5, 2015
The current state of telemedicine — that is, teleconferencing with a physician over one’s smartphone — worries many critics because it assumes patients can be evaluated without a physical exam. The critics are right that those with a financial interest in “disrupting” health care typically minimize the trade-offs. Convenience and lower cost are trumpeted, while risks of misdiagnosis and mismanagement are waved off. The concerns of practicing physicians are dismissed as self-serving and illegitimate. A common-sense standard of quality supplants an expert standard. Repudiation of expertise, or perhaps a rebellion against it, lies just under the surface. Startup culture celebrates and sometimes handsomely rewards brash big thinkers who don’t let a few practical matters, like the fact that diagnosis isn’t always a slam dunk, impede progress. Steven Jobs wasn’t the only one with a reality distortion field.
The tension between professionalism and commercialism isn’t new or limited to medicine. Misgivings by medical personnel about “Dr. Google” and smartphone telemedicine parallel misgivings by attorneys about do-it-yourself wills and divorces, and by CPAs about at-home tax return software. In each domain, professionals lament the erosion of quality, and their inability to provide it, while business disruptors revel in expanded markets.
Also well established is the near-inevitable trade-off between providing a high quality product or service, versus providing it widely to the masses. Although the marketplace accommodates fine dining and fast food, the fiduciary role of doctors, attorneys, accountants, and banks separates these fields from the restaurant business. Banking is a prime example: No amount of convenience or access make up for uncertainty about the safety of one’s money. And while profit, or making a living, motivates professionals as much as it does the businesspeople who aim to unseat them, only the former maintain longstanding traditions and ethical codes to put their patients or clients before profit. The stale charge that heel-dragging professionals are financially self-serving applies far more to the gung-ho disruptors themselves. Medical care has always been about high quality and availability. Forsaking the former for the latter is simply cutting corners.
Smartphone telemedicine does not currently allow physical examination. There are a range of scenarios (“use cases”) where this makes little difference, and many others where it matters greatly. But technology is a moving target. It’s a safe bet that remote examination technology will improve, gradually putting this concern to rest. Criticism of telemedicine is not about what it someday may become — “Star Trek” style holodecks with virtual physicians? — but about today’s enthusiasts getting ahead of themselves. That is, selling science fiction, not science. This creates a peculiar dynamic: Innovators speak in vague but urgent tones of our shiny future and the need for traditionalists to step aside for progress, while critics walk a tightrope between condoning exploration and improvement, and at the same time keeping everyone safe. This resembles nothing so much as parental oversight over a teenager. Like good parents, professionals must step aside to allow entrepreneurs to try new things, learn from their mistakes, and yes, ultimately make the world better than they found it. But we can’t be negligent either. Some cool new toys are risky, some daring adventures bring unanticipated danger. It’s no coincidence that the language of “disruption” sounds adolescent, and that pushback from the disruptors sounds like a teenager complaining that his or her parents are old-fashioned, uncool, and self-interested.
There’s a direct parallel in my specialty. For over 35 years, advocates of a neurobiological approach to psychiatry have oversold what we actually know. From now-discredited “chemical imbalances” to current talk of circuitopathies, neurobiology enthusiasts dismiss humility (and occasionally honesty) as old-fashioned, uncool, and self-interested. This began with an Oedipal victory over Papa Freud in the 1970s, was codified into DSM-III in 1980, celebrated as the Decade of the Brain in the 1990s, and has shaped the NIMH and psychiatric research ever since. Neurobiology has become the dominant paradigm, a matter of faith. But aside from a limited range of scenarios (“use cases”) involving addiction and bonafide brain injury, it’s vaporware so far. We psychiatrists are told to think neurobiologically, and to educate our patients using the language of brain circuitry — even though it’s often an educated guess, and even though it doesn’t actually change our treatment.
Surely time is on the side of the innovators. It’s a safe bet we’ll learn much more about the brain, gradually discovering the causes of at least some disorders we currently call psychiatric. Thoughtful criticism of neurobiological psychiatry is not about what it someday may become. It’s about today’s advocates getting ahead of themselves, selling wishes and half-truths as established science. Neurobiology disruptors speak in vague but urgent tones of our imminent bright future and a need for the older generation to step aside for progress. Meanwhile, critics play the parental role, walking a tightrope between encouraging exploration and improvement, while keeping everyone safe with care for the brain and the mind.
It’s not easy parenting an adolescent. Sophomoric self-righteousness, know-it-all smugness, and knee-jerk rebellion can be irritating as hell. Suddenly, adults are idiots and “just don’t understand.” The young person veers toward obvious trouble, but they have to learn for themselves. It’s nerve-wracking to balance freedom and reasonable risk; to refrain, except in extreme circumstances, from wagging a parental finger and chiding, “you have a LOT to learn!” And all these challenges grow in complexity when the “adolescents” are actually adults, sometimes even colleagues, and when professional expertise confers no legal or cultural authority, and is even viewed with suspicion. If professional concern is dismissed as the bloviation of myopic dinosaurs, we nonetheless hope our colleagues, business counterparts, and larger society grow up fast enough to see past the seduction of disruption and rebellion. We all need to weigh the real trade-offs we face.
Here we see state assemblies passing all this deregulation health policy as hard as they can-----southern Republican states like Florida and Maryland are doing it fastest. Note that Florida has a governor connected to a global health corporation that will super-size profits with all these laws and who was involved in huge health industry frauds of Medicare and Medcaid-----see the pattern? Nurses become doctors------doctors become a figure on a computer screen----and lot's of critical health care being done by lower and lower and lower standards with no oversight and accountability.
I support the broadening of Nurse Practitioners' roll in medicine as I do bringing in categories like midwifery-----but that is completely different than totally deregulating health care to naked capitalism as is occurring today.
Lawmakers closer to approving telemedicine, more powers for nurses
By Jim Saunders/News Service of Florida Thu, Apr 24, 2014 @ 7:54 pm | updated Thu, Apr 24, 2014 @ 8:02 pm
The Florida House appears poised Friday to pass a massive health-care bill that would ensure three disputed trauma centers remain open and give long-sought powers to nurse practitioners.
The bill (HB 7113) also deals with a series of other controversial issues, such as expanding the use of telemedicine, allowing pharmacists to supervise additional technicians and stripping the Miami-Dade County Commission of power to approve labor contracts at the massive Jackson Health System.
For months, attention has focused on a fight about whether trauma centers at Blake Medical Center in Manatee County, Regional Medical Center Bayonet Point in Pasco County and Ocala Regional Medical Center in Marion County should be allowed to stay open. Those trauma centers have been challenged by other hospitals, which argue the Florida Department of Health improperly allowed the facilities to open.
But while the House measure would allow those trauma centers to keep their doors open, it became apparent during an initial debate Thursday that much of the controversy about the bill centers on issues such as telemedicine and allowing nurse practitioners to provide care without the supervision of physicians.
Nurse practitioners, technically known as advanced registered nurse practitioners, have more education and training than other nurses. They have long argued they can provide primary care without physician supervision — an argument that has drawn heavy opposition from physician groups such as the Florida Medical Association.
The bill would grant those expanded powers, with House Republican leaders saying the move would help with a shortage of primary-care doctors in the state. Critics argue that nurse practitioners do not have as much training as physicians and question whether the change could jeopardize patient safety.
But Rep. Cary Pigman, an Avon Park Republican who has helped spearhead the proposal, said studies have shown giving nurse practitioners more authority would be safe. Also, he said the treatment they provide would be relatively limited.
“It does not include brain surgery,’’ said Pigman, who is a physician. “It does not include taking your gall bladder out.”
Doctor groups also are raising objections about part of the bill that would seek to boost the use of telemedicine, which involves health providers using the Internet and other telecommunications to remotely treat patients.
While all sides say they want to expand telemedicine, critics of the House proposal are concerned that out-of-state doctors would be able to use it to treat Florida patients without being licensed here.
Rep. Janet Cruz, D-Tampa, said lawmakers are about to “open the floodgates” to people practicing medicine in Florida without state licenses. But Rep. Travis Cummings, R-Orange Park, said the bill includes safeguards, such as a registration process that, in part, would require out-of-state physicians to have active licenses in other states.
It remains unclear whether the House and Senate will come to agreement on the issues in the bill. The Senate has a series of bills addressing the issues and takes significantly different positions than the House on telemedicine and nurse practitioners.
But House members Thursday continued adding issues to the bill, which is known in Tallahassee as a legislative “train.”
For example, the House approved a controversial amendment that would increase the number of technicians that pharmacists can supervise. That is the subject of another bill that has drawn heavy debate.
Meanwhile, the House voted to keep part of the bill that has opened a debate about the powers of the Miami-Dade County Commission. The bill would take away the power of the commission to approve labor contracts for employees of the massive Jackson hospital system, boosting the authority of the appointed Public Health Trust of Miami-Dade County.
As he introduced the bill Thursday, sponsor Jason Brodeur, R-Sanford, joked about its scope.
“This bill has just a handful of items in it,’’ he said.
There is Catherine Pugh-----the deregulation of anything they tell me to pol from Baltimore. All of Baltimore pols have for decades built these policies for Johns Hopkins because Hopkins is the one writing all of these very, very, very neo-conservative global profit-driven health policies. BALTIMORE CITY POLS ARE FRONT AND CENTER ON PUSHING THESE BAD GLOBAL CORPORATE WEALTH AND PROFIT HEALTH POLICIES AND THEY DO IT WHILE RUNNING AS DEMOCRATS! There is the O'Malley machine---------the force behind Maryland's Democratic committee capture to Wall Street global corporate neo-liberalism and neo-conservativism. These are all Republican policy stances folks---so don't vote Republican-----GET GLOBAL CORPORATE WALL STREET POLS OUT OF OUR PEOPLE'S DEMOCRATIC PARTY!
'SB 496, introduced by Senator Catherine Pugh (D-40,) requires the state-wide coverage of certain telemedicine provided services under the state Medicaid program'.
I am going to out Joshua Harris as promoting TELEMEDICINE in his campaign for Mayor of Baltimore. He does that because he is an Obama Wall Street neo-liberal candidate running now as a GREEN PARTY----come on Joshua----a nice young man needing to come over to the social Democratic side of politics!
Maryland Governor Signs 4 Telemedicine Bills Into Law
On May 2nd, Maryland Governor Martin O’Malley signed into law 4 telemedicine bills.
- SB 496, introduced by Senator Catherine Pugh (D-40,) requires the state-wide coverage of certain telemedicine provided services under the state Medicaid program. The services allowed for reimbursement under this new law are cardiovascular and stroke treatment, emergent care. Telemedicine-provided services are also reimbursable when an appropriate specialist is not available;
- SB 776 establishes a taskforce on the use of telehealth in Maryland;
- HB 934 requires the Commission on Maryland Cybersecurity Innovation & Excellence to study how telemedicine can be used to reduce health care disparities and address primary care and specialty care provider shortages across the continuum of care; and
- SB 798 gives hospitals the authority to rely upon the credentialing and privileging decisions of a physician made by the distant-site hospital or telemedicine entity.
I like to use Republican think tank policy discussion because if you look farthest-right in these interpretations a social Democrat knows how to fight against injustice in these violations of Federal and US Constitutional rights. Obama and Clinton neo-liberals joined Republicans in installing through the Affordable Care Act these Republican policies of ending our public health structure, deregulating, consolidating into global health system MONOPOLIES----- our once best-in-the-world health care just as they did our best-in-the-world public education and higher education system.
As I always shout----all of this is illegal-----it is unconstitutional------and they are completely ignoring our US Constitution and Federal laws to advance this because----global pols do not recognize these sovereign legal structures----they work for a global corporate tribunal. Those sovereign structures are still there----they are the law of the land-----and a Mayor of Baltimore CAN ENFORCE THESE FEDERAL LAWS AND US CONSTITUTIONAL RIGHTS IN THE CITY OF BALTIMORE AND PRESS FOR THE SAME ACROSS MARYLAND.
So, reversing all these global policies will be EASY PEASY-----we disconnect all global corporations from our Baltimore City Hall agencies---in this case our Baltimore City Public Health agency----and enforce simple Rule of Law to reverse this attack on our rights as citizens. Using EXPANDED AND IMPROVED MEDICARE FOR ALL----we can adapt a telemedicine protocol into our public health system that originally was social democratic and did abide by our strong Federal healthcare guidelines and regulations. If someone is too sick or frail with age-----telemedicine meets the US Constitutional right to equal access. This only exists of citizens have CHOICE-----THEY CHOOSE TELEMEDICINE but have access to the same care everyone else does. Global pols and Republicans are taking away CHOICE with every one of these Republican REFORM policies pushed during Obama's terms by a Clinton/Obama neo-liberal Congress.
' A state's legislature could not deny to any citizen within its jurisdiction any privilege or immunity (however defined). Once a law was validly passed, the state or its agents could not arbitrarily enforce it against any person within the state's jurisdiction without violating the Equal Protection Clause'.
Republican think tanks will of course never mention the Civil Rights Amendments of the 1970s and how they strengthened Equal Protection for everyone. You can see even Republicans see these global corporate laws as illegal interpretations of our US Constitution and Federal laws.
No State shall...deny to any person within its jurisdiction the equal protection of the laws.
Amendment XIV, Section 1Teacher's Companion Lesson (PDF)
The Equal Protection Clause is one of the most litigated and significant provisions in contemporary constitutional law. The meaning of the clause is bound up with the entire drama of the Civil War and Reconstruction and, in particular, with slavery and emancipation. Thus the Equal Protection Clause can be understood only as an organic part of the Fourteenth Amendment and in the broader context of all the Reconstruction amendments.
Considered textually, the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause of the Fourteenth Amendment can be read to form a coherent triad. A state's legislature could not deny to any citizen within its jurisdiction any privilege or immunity (however defined). Once a law was validly passed, the state or its agents could not arbitrarily enforce it against any person within the state's jurisdiction without violating the Equal Protection Clause. Finally, every person accused of violating a law would enjoy the full panoply of procedural rights before the courts of the state. However, early Court involvement, such as in the Slaughter-House Cases (1873), as well as the ambiguity of much of the congressional debates, has led to debate and disagreement as to the original understanding of the three clauses.
Debate on the original understanding of the Equal Protection Clause became intense in modern times after the Supreme Court ordered briefing and reargument on the question in Brown v. Board of Education (1954), the school desegregation case. Scholarly debate on the original intention of the Equal Protection Clause and, more broadly, on Section 1 of the Fourteenth Amendment, continues to the present day. Controversy centers on two primary questions. The first is how far, or in relationship to what rights, did the framers intend the command of equality to apply? In other words, equal as to what? The second is what does it mean to treat persons equally? In other words, what is equal treatment? Although these two questions have been answered by the Court since Brown, the original intention of the framers remains subject to ongoing dispute.
The scope of equal protection today is as broad as governmental action under the State Action doctrine. Thus in modern constitutional law, the command to treat persons equally extends to all actions by the government.
Most commentators agree, however, that the intended scope of the Equal Protection Clause was narrower. The framers were focused primarily on the status of the freed slaves, and thus the command of equal protection was debated primarily in racial terms. Congress had enacted the Civil Rights Act of 1866 largely in response to perceived southern oppression of the freed slaves, particularly in the form of "Black Codes" enacted in the former Confederate states. John A. Bingham, the primary author of Section 1 of the Fourteenth Amendment, did not believe that Congress had the authority to enact the Civil Rights Act of 1866, and he therefore intended to provide congressional authority for that enactment by constitutional amendment. When Bingham's version of Section 1 emerged from committee for consideration by the full Congress, it was received primarily as a means of legitimizing the 1866 Civil Rights Act. Thus, at a minimum, the framers intended that the command of equal protection apply to the rights protected by the Civil Rights Act of 1866, which provided for the "same right":
To make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property...and shall be subject to like punishment, pains and penalties, and to none other....The methodology of the first section of the Civil Rights Act was to define national citizenship and to declare that all citizens, "of every race and color" should have the same benefit of the listed rights "as is enjoyed by white citizens." The language of Section 1 of the Fourteenth Amendment, by contrast, can be read to distinguish between citizenship rights protected by the Privileges or Immunities Clause and personhood rights protected by the Due Process and Equal Protection Clauses. Once the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, however, the Equal Protection Clause became the primary bulwark supporting the constitutionality of the Civil Rights Act and providing for the enforcement of its listed rights.
The framers' jurisprudence tended to lump together rights flowing from citizenship and personhood under the rubric of "civil rights," and to speak of them in religious or natural law and natural rights terms. In Section 1 of the Fourteenth Amendment, the framers attempted to create a legal bridge between their understanding of the Declaration of Independence, with its grand declarations of equality and rights endowed by a Creator God, and constitutional jurisprudence. However, the framers also prized federalism—although not in the absolutist sense of the Southern secessionists. Antislavery activists themselves had at times relied on state authority to resist federal policies protective of slavery and so shared that era's common mistrust of centralized authority. The Fourteenth Amendment's compromise between federal enforcement of civil rights and the maintenance of significant state authority was to amend the Constitution to provide clear warrant for the Civil Rights Act, but at the same time to provide additional federal protection for those fundamental rights flowing from citizenship and personhood.
The rhetoric of the time distinguished civil equality from two other kinds of possible equality: political and social. The framers of the Fourteenth Amendment chose not to include political rights (such as the right to vote, which the Fifteenth Amendment would later address) and social rights within the protections of the Fourteenth Amendment. The Fourteenth Amendment, including its then more prominent sections regarding representation and the political exclusion of certain former Confederates, was part of the Republican Party's Reconstruction program during the critical 1866 election. The program was popular because of its perceived moderation by Northern opinion of the time, which was generally negative or ambivalent in regard to political and social equality for African-Americans. After achieving political success in the 1866 election, Republicans became bolder, enacting the Fifteenth Amendment, explicitly protecting the right to vote. However, the very passage of the Fifteenth Amendment indicates that voting rights were not protected by the Fourteenth Amendment.
The question of whether Brown v. Board of Education, invalidating segregated public education, was consonant with the framers' original intent has been much debated. Some scholars view the provision and integration of education as local, social, or political in nature, and hence as beyond the original scope of the Fourteenth Amendment. Others would point to post-1866 Republican efforts to desegregate schools as evidence that Brown is a plausible interpretation of the framers' intent. Antislavery rhetoric had been critical of Southern laws that outlawed basic education for slaves, and thus provision of education for the freed slaves would have been important to the framers. Arguably, then, education was neither a political nor social right, but rather was related to a person's right to the pursuit of happiness, or was a right equipping citizens for their civic responsibilities. In any event, by the time segregation swept the South, it was part of the Jim Crow program to reduce blacks to a status not unlike that imposed by the "Black Codes," which the Fourteenth Amendment was clearly intended to efface.
Brown posed the question of whether a doctrine of "separate but equal" was compatible with the Equal Protection Clause, as had been established by Plessy v. Ferguson (1896). The records of the Thirty-ninth Congress, which proposed the Fourteenth Amendment, provide little guidance on this question. The other parts of the Fourteenth Amendment received far more discussion within the Congress than did Section 1. Once John A. Bingham's version of the Fourteenth Amendment emerged from committee, it was treated primarily as providing constitutional authority for the Civil Rights Act of 1866, and it received relatively little comment. Nonetheless, in light of the concerns for the freed slaves that animated the framers of the Fourteenth Amendment, it is reasonable to believe that the framers would generally have presumed "equal treatment" to mean the same, rather than segregated, treatment. The framers would likely have accorded the system of racial oppression found in the Jim Crow laws the same hostility they had demonstrated toward the "Black Codes" of their own time, despite any legal differences between these methodologies of oppression.
The primary intent of the Equal Protection Clause was to require states to provide the same treatment for whites and freed slaves in regard to the class of personhood and citizenship rights enumerated in the Civil Rights Act of 1866. The clause is not limited to racial classifications, in large part because the framers were also concerned about white Union loyalists, who also suffered discriminatory treatment in the South. In addition, this general language reflected antislavery Republican jurisprudence, which drew links between the Declaration of Independence, natural law and natural rights, and constitutional jurisprudence. From an originalist constitutional perspective, application of the Equal Protection Clause to rights or issues beyond the scope of the 1866 Civil Rights Act can rest upon the broader principle enacted by the framers—their jurisprudence of equality linking the Declaration of Independence to the Constitution.
The Supreme Court's acceptance of white supremacist segregation in the period from 1896 to 1954 would not have pleased the framers. Even if the framers had viewed public accommodations and education as local or social rights not directly protected by the Equal Protection Clause, their sense of racial justice would have opposed the systematic, legally enforced racial caste system that emerged in the 1890s. In fact in the so-called Ku Klux Klan Acts (1871), Congress did attempt to thwart the violent racism that was the harbinger of Jim Crow.
Although the Equal Protection Clause may not have been intended to command integration, it also was not intended to countenance legally enforced segregation. In addition, the ultimate failure of the legal system to protect African-Americans against terrorist acts that enforced white supremacy was precisely the kind of failure that the Equal Protection Clause was designed to prevent. The framers undoubtedly would have recognized that government and private institutions had coalesced to enforce a racial caste system that oppressed African-Americans in a manner inconsistent with the fundamental principle of civil equality. As Justice John M. Harlan famously declared in his dissent in Plessy v. Ferguson, "In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here."
Generations of experience with segregation demonstrated that a partial permission of governmental racial classifications was an ineffective means of protecting the core principles and rights enacted in Section 1 of the Fourteenth Amendment. From this perspective, the Supreme Court's expansion of the Equal Protection Clause to all governmental action, without regard to distinctions among civil, political, and social rights, as well as the Supreme Court's overturning of "separate but equal" jurisprudence, was a realistic application of the core principles of the Equal Protection Clause. Governments that systematically demeaned and excluded African-Americans proved unable and unwilling to protect even the limited equality directly protected by the Equal Protection Clause.
Although its history demonstrates a primary concern with the protection of the freed slaves and African-Americans, the language of the Equal Protection Clause is general. The framers were also concerned with the protection of white Union loyalists in the South, and they thus clearly understood that the clause would not be limited to the protections of the freed slaves. The general language of the Fourteenth Amendment reflects the framers' commitment to constitutionalizing their natural-law understanding that all human beings are created equal as to their fundamental rights of life, liberty, and property. Thus it was inevitable that the question should arise as to how the clause would be applied to nonracial classifications.
All laws classify, and thus there are countless classifications in American law. All laws make distinctions, but not all laws violate equal protection. A law that limited driving to those sixteen years of age and older would not violate equal protection even though it treated fifteen-year-olds differently from sixteen-year-olds. Close judicial review of all classifications to ensure "equal protection of the laws" is a practical impossibility. Therefore the Supreme Court has had to find doctrinal means of managing the task of judicial review under the Equal Protection Clause. Although the clause protects all persons, the Court, as a practical matter, cannot give close scrutiny to all classifications that governmental action may create among persons.
During the era of "separate but equal" jurisprudence, the primary application of the clause to race was severely, although not entirely, eliminated. At the same time the Court had found the clause applicable to little else beyond race. The clause was not sufficient to stop the internment of Japanese-Americans during World War II, despite the Court precedents making the clause applicable to the protection of all races, and not to African-Americans only. With the clause generally ineffective as to racial matters and applicable to little else, the Equal Protection Clause became, in Justice Oliver Wendall Holmes's words, the "usual last resort of constitutional arguments...." Buck v. Bell (1927).
After the Court resurrected the Equal Protection Clause in regard to racial classifications, it subsequently developed a two-tiered system of review. All classifications based on race were subjected to "strict judicial review," and they were thus subjected to a means-end test: the classification must be narrowly tailored to effectuate a compelling governmental interest. The Court determined which governmental interests (ends) were significant enough to be "compelling." As a practical matter, in many cases the government could at least claim to be implementing an end or purpose deemed compelling under the Court's precedents. Therefore the heart of strict scrutiny often rests in the means test.
Means-end testing involves essentially two questions: (1) Does the governmental action work, meaning does the governmental action actually serve the claimed interest? (2) If it does work, is there an alternative and less "suspect" (i.e., nonracial) classification that would work approximately as well, making use of the racial classification unnecessary to achievement of this goal? Under strict scrutiny, means-end testing involves a kind of public policy "second-guessing" by the legislative branch. By contrast, nonsuspect classifications are presumptively constitutional, and they are therefore reviewed under the very lenient rational basis test, which asks whether the classification is rationally related to a legitimate government interest. Under rational basis review there is generally little second-guessing as to whether the law works, and the analysis of alternatives is irrelevant. The burden is on the complaining party to show that the only purpose of the legislation was invidiously discriminatory. Rational basis review has understandably developed into a virtual rubber stamp.
The group of classifications subject to strict scrutiny is very limited: race and its corollaries, such as national origin or ethnic group; and legal alienage, except where the classification is either (1) created by the federal government (which has plenary control over immigration) or (2) excludes aliens from political functions "intimately related to the process of democratic self-government," such as serving as police and probation officers or public school teachers. Alienage classifications operating within the two exceptions are generally reviewed under the lenient rational basis test.
Beginning in the 1970s the Court developed a third, intermediary standard of review for two classifications: sex and legitimacy (the distinction between marital and nonmarital children). The test for intermediary scrutiny asks whether the law is substantially related to an important government interest. As to gender, a number of decisions have emphasized that there must be "an exceedingly persuasive justification" for any sex classification. United States v. Virginia (1996). Although some interpret this language as implying a creep toward strict scrutiny for sex classifications, officially gender remains subject to intermediary scrutiny.
The Supreme Court has thus far refused to extend heightened scrutiny (strict or intermediary scrutiny) to any other classifications, even though some, such as age, disability, and sexual orientation, are frequently included in antidiscrimination legislation. The Supreme Court's tendency to occasionally invalidate laws employing sensitive classifications, purportedly under the rational basis test, as in City of Cleburne v. Cleburne Living Center, Inc. (1985) (mental retardation) and Romer v. Evans (1996) (sexual orientation), only underscores the Court's reluctance to officially expand the classifications subject to heightened scrutiny. In fact a majority of the Court thus far prefers to rest their protection of same-sex relationships on a substantive view of due process rather than equal protection. Lawrence v. Texas (2003).
The methodology by which the Court determines which classifications receive heightened scrutiny, beyond that of race, is unclear. Commentators have invoked the classification of "discrete and insular minorities" from the famous footnote four of United States v. Carolene Products Co. (1938), but the relevance of that footnote in modern times is hardly clear. Women, for example, are neither minorities nor insular. Justices and commentators have sometimes compared the historical discrimination experienced by African-Americans to that experienced by women, the mentally retarded, and those with a same-gender sexual orientation, but it is unclear whether there is a clear scale for measuring tragic histories. In addition, once a classification is made suspect, under current precedents the Court will protect members of the historically favored, as well as historically disfavored, group. For example, the equal protection cases protect "sex," not the female sex. Thus, the Court has invalidated a law that limited a nursing school to women, Mississippi University for Women v. Hogan (1982), and a law that allowed women, but not men, to buy alcohol at age 18. Craig v. Boren (1976). Given these difficulties, the Court thus far has not developed a single methodology for determining the critical question of which classifications receive heightened scrutiny, nor for choosing between strict and intermediary scrutiny.
The question of affirmative action has spawned much litigation. Under current precedents, all legislative racial classifications are evaluated under strict scrutiny, even if they purport to be positive affirmative action programs favoring racial minorities. Although the primary impetus behind the Fourteenth Amendment (and its Equal Protection Clause) was to protect African-Americans, the framers of the amendment phrased the protection in general terms, and the courts have applied it in that fashion. Thus today, even classifications favoring African-Americans are presumptively unconstitutional absent of sufficiently weighty reason. The courts have held that the protection of all races against discrimination effectuates the broader original purpose of the Equal Protection Clause, which constitutionalized the core concept of personal equality as described in the Declaration of Independence. Thus, the apparent tension between active efforts to promote the progress of racial minority groups and the promise of personal equality for each individual, regardless of race, have been resolved in favor of the latter.
The Supreme Court has recently upheld some forms of race-based affirmative action despite the application of strict scrutiny. Thus the Supreme Court has said that racially conscious acts by legislatures, courts, or other state actors will meet strict scrutiny if the racially conscious act rectifies, in a narrowly tailored fashion, a previous governmental violation of equal protection, or—more controversially—if it furthers the compelling interest of student body racial diversity in higher education by including race as a positive element in an applicant's profile. Grutter v. Bollinger (2003), Gratz v. Bollinger (2003). Given the close divisions on the Court it is possible that, as new Justices are appointed, the Court will revisit the issue of whether to apply a more lenient standard of review to affirmative action programs assisting racial minorities.
The Equal Protection Clause textually limits only state government, hence it is literally inapplicable to the federal government. However, since Bolling v. Sharpe (1954), the Court has developed the doctrine that the Due Process Clause of the Fifth Amendment has an equal protection component with equivalent requirements to the Equal Protection Clause of the Fourteenth Amendment. Equal Protection doctrine (if not literally the Equal Protection Clause) has thus become applicable to all governmental action, whether state, local, or federal.