Time to end prescriptions for drugs

Should eight people dressed in black robes decide your personal medical options?

How about your boss?

If you answered "yes" to either of these questions, please report back to political prison camp guard tower duty or corporate brown nosing practice after your lunch break.

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The rest of us like to make our own personal decisions, especially when it comes to health care. And that's why this week's hearing at the Supreme Court on contraceptive funding should be especially offensive to people of all political and religious stripes in this country.

On Wednesday, the eight justices currently on the court heard arguments in Zubik v. Burwell, which addresses whether non-profit religious organizations can be compelled under Obamacare to pay for contraceptives in their employee health plans.

The challenge is mostly based on religious freedom and the potential financial burdens such employers would face if they refused to offer the contraceptive coverage. But if you're hoping for a clear resolution on this case, don't hold your breath.

Predictably, the eight justices seem to be split 4-4 based on the way legal experts interpret the questions the justices asked during Wednesday's hearing. So it looks like this issue is going to turn into a confusing, state-by-state patchwork law and a nasty national wedge issue for years to come.

That's a real shame because the only people who should be deciding the availability, cost, and need for any drug or treatment are the actual people via the free market. And when it comes to drugs, the closest thing to the free market is making them available over the counter everywhere.

In the case of contraceptives, the U.S. remains just about the only country in the world that doesn't make the birth control pill available over the counter and that restriction makes them a political football and more expensive to boot.

The government likes to control things and the more important those things are to you and me, the more it likes to control them. Even some of the lower court judges who have sided with the plaintiffs in this case, still want to empower the government in the end.

Take Eighth Circuit Appeals Court Judge Roger Wollman, who's brilliant idea for a compromise in this fight was to ask the government to make contraceptives available at "community health centers and public clinics."

Yeah, that's just what consumers who want or need a product want to do, line up at a community center and let everyone see them buying contraceptives. If only there were places all over the country and in just about every neighborhood where people could buy contraceptives and other drugs in relative privacy and convenience… oh wait, I think those places are called drug stores.

Sorry to take such a sarcastic and acerbic tone, but perhaps it's necessary to snap everyone out of the delusion that the government knows what best for us and our reproductive and everything other kind of our health. It's government control of prescription drugs that adds so much to their cost.

And the relative safety people get from added government regulation and control is patently overrated. Remember that when the Food, Drug, and Cosmetic Act of 1938 was signed into the law, the new agency known as the FDA was only supposed to use its new powers to enforce better labeling information on drugs, not essentially restrict supply and access by requiring doctor-approved prescriptions.

By keeping drugs prescription-only, drug makers can set their prices based on what insurance companies will pay, not the free market. And as you may have already guessed, insurance companies almost always pay more.

What are the realistic risks of making not just contraceptives, but all drugs, over the counter? I'll be the first to admit that we would see more abuse and possibly more accidental dangerous drug interactions. But if the FDA went back to its true mission of informing the public about dangers rather than deciding which drugs we can and can't buy, maybe some of the abuse and accidental use problems could be acceptably mitigated.

Meanwhile, alcohol and now marijuana is accessible without a doctor's note despite the well-known dangers of abuse associated with them. Why aren't we willing to take a smaller risk for substances that actually save lives?

When it comes to cost, the free market magic of over the counter status makes everyone happy. Drug companies usually drop prices because the increased volume of better consumer access makes up for the drop in sticker price. That saves those consumers not only money, but time as they no longer need to visit the doctor for prescriptions and refills.

The annual price of Claritin alone fell 66 percent the year it went over the counter in 2002. Most experts believe we'd see similar cost reductions even with vital heart medications if they made the shift too.

But the best savings of all may come from rescuing or resurrecting the crazy concept of personal responsibility. A big chunk of the American public ensconced in the abortion debate has come to accept the idea that a woman has the right to have control and responsibility over her body.

Shouldn't we all strive for that, even if contraception or abortion isn't involved. Yes, I'm willing to let my tax money be used for inspections and studies on drug and treatment safety, and to cover the costs of adequately informing the public about the findings of those inspections and studies.

And just about every responsible American isn't dumb enough to gamble their health on a potentially dangerous drug without asking their doctor about it first anyway. But the irony is that all those "government protections" meant to keep us safe create the exact opposite result for sick people who can't get a prescription or afford the cost for a unnecessarily restricted drug.

As it stands now, even if you're a highly educated and responsible individual, the FDA and the rest of the government reserves the right to deny you access to a drug that could save your life just in case you turn out to be an idiot.

So while Zubik v. Burwell is likely to end a 4-4 tie in this eight-justice Supreme Court, freedom, health, and personal responsibility are going to lose 8-0.

Commentary by Jake Novak, supervising producer of "Power Lunch." Follow him on Twitter @jakejakeny.

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