Pain (21 page)

In December, the Eighth Circuit announced its decision in the
Polaski
case, ruling that HHS had wrongly terminated her benefits. The majority (taking the recent pain legislation into careful consideration) saw the debate as part of a troubling conflict between the courts and the Reagan administration: “in 1984 alone, we reversed or remanded to the Secretary because of inadequate consideration of pain in at least thirteen cases, while affirming the Secretary's analysis of pain or other subjective complaints in none.” The court victory affirmed the legitimacy of Polaski's subjective pain. “It is hard to envision a more urgent situation,” wrote the court. “Claimants who lose or are denied benefits face foreclosure proceedings on their homes, suffer utility cutoffs and find it difficult to purchase food. They go without medication and doctors' care; they lose their medical insurance. They become increasingly anxious, depressed, despairing—all of which aggravates their medical conditions.”
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With this ruling, the purge era that spanned Reagan's first term appeared to have ended. The settlements and court decisions meant that nearly three hundred thousand people (60 percent of the people previously removed from the Social Security disability rolls) would have their benefits restored. Yet the administration's appeal kept the issue in court years longer. It would take a Supreme Court ruling in 1987 before the Polaski story was complete and HHS was compelled to reopen a final group of eight thousand cases it had refused to hear. By the end of the Reagan era, the courts were forced to wade deep into the politics and governance of pain. The intense dispute between those who would impose a conservative pain standard over a liberal one had been tamed. As one 1987 study noted, “the Polaski standard” along with the congressional compromise had together “better defined the criteria for evaluating pain and thus to have decreased the disagreement between SSA and the federal courts.”
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The administration's other legacy in the jurisprudence of pain was to appoint to the courts judges sympathetic to its own ideology. By the 1990s, as one administrative law judge noted, the courts had gradually swung to see things through a more conservative lens—preaching the gospel of law and economics, seeking more uniformity, and upholding objective evidence as a standard for judging pain and disability. But they still differed widely on how to “apply the requirement of objective evidence (or what they do to get around it).” Skirmishes continued as Congress
continued to fight with the White House and the courts on this topic; through the 1980s and early 1990s the jurisprudence of pain continued to be an ideological battle zone. The legal literature on pain, legal judgment, justice, and disability continued to grow. Writing in 1992 in the
California Western Law Review
, Margaret Rodgers noted that consensus on the pain standard remained uncertain: “the pain standards articulated in [other cases such as] Bunnell, Luna, and other decisions are, by themselves, insufficient to correct the unfairness which currently exists within the disability determination process.”
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By the end of the Reagan era, the conservative plan to remake government and society had forced the courts to wade deep into the politics of pain. Whether you were a lawyer, a politician, a physician, a pain complainant, or an engaged citizen, your position on the pain question was a good index of your deeper political commitments and passions. No consensus had emerged on the war between liberal and conservative pain standards—only an orchestrated, fragile compromise. One scholar described the era's court rulings, legislative proceedings, administration rules, commission reports, and class-action suits as producing a “decisional quagmire.” Indeed, the statutory pain standard produced by Congress in 1984 only threw the controversy back into the courts and back to HHS—where judicial and administrative interpretations continued to reflect the troubling welfare politics of the era.
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As a result of the Reagan-era battles, the courts now were compelled to referee the debate between conservative and liberal views on pain and to seize a measure of power in the pain disability debates.

The angry legal and political battles of 1984, spilling over into the late 1980s, provoked an adjustment in the conservative pain standard—that is, in how the political Right strategically spoke about and used government to manage the pain of others. In the midst of the debate over Reagan's failures of compassion and heading into his re-election, the politics of pain took another turn when the White House began to seize on a new pain discourse to mobilize its avid moralistic followers. The new issue was “fetal pain.” The concept was nod to the Moral Majority wing of the
party and an important 1980s movement, in which fetal personhood became the rejoinder to the feminist abortion rights advocates. As historian Sara Dubow skillfully noted, the cry of fetal personhood set up a new politics of whose pain mattered. Calling attention to fetal pain bracketed off the experiences of women carrying the fetus, aiming to indict liberalism from yet another angle—criticizing feminism from inside the womb. Where some on the right decried learned helplessness, others claimed to defend innocence and true helplessness. As the senior editor of the
National Review
insisted in a new journal called
Human Life Review
in 1984, “The pain of the aborted fetus is ineligible for the liberal's selective but purposeful ‘compassion.'” The antiabortion film
The Silent Scream
, purporting to depict a fetus in pain during an abortion, was produced the same year.
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With this powerful gesture toward a new kind of pain worthy of relief, the outlines of a new moralistic politics (aimed at another liberal “-ism,” feminism) would begin to unfold within the conservative movement.

Addressing a March for Life rally on the fifteenth anniversary of the
Roe v. Wade
Supreme Court case that legalized abortion, Reagan embraced the fetus as the new iconic modal sufferer. Speaking to a gathering of the Religious Right, he said, “We're told about a woman's right to control her own body. But doesn't the unborn child have a higher right, and that is to life, liberty and the pursuit of happiness?” The question, of course, was not merely rhetorical but a political reframing of the question of whose happiness matters more—mother or fetus? Whose pain should take precedence in public policy? Reagan championed the fetus's pain as a pain only the righteous knew, noting “if every member of Congress could see that film [
The Silent Scream]
, they would move quickly to end the tragedy of abortion.” The president reminded the crowd that “a few years ago, I spoke about the pain that we now know an unborn fetus experiences in the course of an abortion. At the time there was an outcry of enraged criticism and angry denials.” In his final year in office, the president insisted that physicians had since proven him right, quoting a letter signed by twenty-four doctors that stated that fetal pain was “firmly established.” It was as if the liberal politics of compassion toward disability and pain had been co-opted by the Religious Right. In the same way that the Left had used pain to establish the rights of disabled in the 1960s, the
Right now hoped to use the claim of “medically validated” pain to establish new and sweeping personhood and citizenship claims.
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A keen political observer could see how the Republican pain platform was shifting in the late 1980s and early 1990s. In Reagan's second term Secretary Heckler sought to turn the question of pain management in new directions—emphasizing how innovation and private-public partnerships were tackling the problem. This was an effort to reclaim the disability and pain debate and to turn it into a Republican-friendly issue. One step was to marry the cause of disability to Republican themes like innovation—neutralizing the Democrats' claim that they alone spoke for people in pain. In December 1985, for example, Reagan welcomed to the White House “an exciting new partnership between the Government and the private sector … the National Initiative on Technology and the Disabled.” Among the “devices of liberation” the partnership would promote, he said, was a device called Comp-U-Talk for people incapable of speech. Reagan also described a new way of battling pain: “an implantable device called the human tissue stimulator which shows great promise for controlling chronic pain, like that associated with arthritis, rheumatism, and cancer.” The political combat with liberals had been grueling in Reagan's first term; the administration now turned away from the harsh rhetoric, toward co-optation and reframing (creating a rhetoric of pain and relief Republicans could endorse)—a significant theme in the second half of Reagan's presidency.
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Like the liberal pain standard before it, the conservative pain standard was not static but evolving—adapting to the charge that Republicans did not care about disability or the vulnerable and finding new ways of demonstrating its own brand of compassion. (Singing from this political playbook written in the late 1980s, George H. W. Bush and his son George W. Bush would both call themselves “compassionate conservatives.”) The strategy was a result of the times—a response to a party buffeted by bad press, lawsuits, and political criticism, by the rise of the Religious Right, and also by the advent of new health challenges like AIDS, which, as C. Everett Koop noted, challenged conservatives as well. The new disease “became associated with drug abuse, with sexual promiscuity, and with IV drug paraphernalia, and a huge number of the conservatives in this country said ‘they deserve what they got, just ignore
them and let them die.' Well, you can't be a doctor and do that; you can't be the Surgeon General and do that.”
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The relentless rise of chronic pain had continued, and the emergence of new health challenges tested conservatism in fresh ways. In response to such developments, tough-minded conservative talk about pain as merely “learned helplessness” rang particularly hollow.

The questions of which—and whose—pain mattered most and how to deal with people in pain continued to be socially and politically divisive. The appearance of baffling pain syndromes complicated matters further, raising anew worries of pain complainers as coddled hysterics. In the case of fibromyalgia and chronic fatigue syndrome (CFS), derisively termed the “yuppie flu” in the press, traditional laboratory evidence was conspicuously lacking. As one journalist noted in the late 1980s, “Whether patients have fallen into the grip of a new, worsening scourge or have merely succumbed to the latest health hysteria is confounding many medical researchers.” CFS exemplified one kind of pain, a subjective pain found primarily among middle-class, young, upwardly mobile professionals (yuppies) suddenly afflicted by unexplained aches of unverifiable origin. Like Polaski's pain, CFS sufferers' pain was difficult to objectively validate; their claims were regarded as highly suspicious, especially in determining disability benefits. Women claimants, as Dara Purvis has documented, received particularly tough scrutiny. As one administrative law judge commented in 1991, the problem with these new maladies was that they once again swung wide open the door for subjectivity to re-enter the discussion of pain and relief, with the attendant “potential for manipulation because outward manifestations of pain can easily be contrived by a calculating claimant.”
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The American pain problem, in short, would not subside—it would only evolve with the cultural politics of the times.

Amid the Right's transformations, people in chronic pain found themselves caught up in partisan battles, seeking care amid rising skepticism and facing unsteady judgments in the courts, Congress, and clinics. The Reagan era catalyzed two concerns simultaneously: on the one hand, of excessive indulgence and overtreatment, and, on the other hand, of endemic undertreatment driven by excessive skepticism about people in pain and rising barriers to relief. “It is an irony of our age,” noted the
Washington Post
, reporting in 1986 on the findings of the expert National
Institutes of Health panel led by John Bonica. There were “millions of Americans in hospitals—late-stage cancer patients, burn victims, accident victims—[who] suffer unnecessary, sometimes agonizing pain.” For them, doses of narcotic analgesic were too low, and physicians were stingy with relief.

Outside the clinic, in contrast, were “millions more unhospitalized—the numbers cannot be measured accurately—[who are] dangerously overdosing on painkillers often inappropriately prescribed for their chronic pain from headaches, backaches, pinched nerves and arthritis.” Fears of addiction to a growing range of painkilling drugs also shadowed relief at every turn, with opioid drugs administered carefully and patients watched closely for signs of dependence. Methadone continued to be a flash point of therapeutic controversy. Even the doctor's dilemma of relief—whether to treat or not to treat, weighing the unintended costs of relief, drawing the line between the deserving pain sufferers and those unworthy of relief, deciding on liberal relief versus conservative care—reflected the political calculations of the day.

By the late 1980s, both political parties courted pain: both said they defended people in true pain, and both claimed the high ground of compassion. The difference was whose pain (among all the sufferers) mattered and was more real, whose carried the greatest political valence, and whose should sit at center stage in social policy. Some pains were more righteous and warranted greater sympathy than others. In Reagan's worldview, the pain of the taxpayer was true pain; the pain of the disabled or the addict was suspect. The pain of the fetus outranked the alleged pain of the disabled housewife or injured worker as a basis for conservative social policy. The Republican argument did not, therefore, dismiss subjective pain outright but instead used the pain debate to define what Reagan saw as essential differences between conservative and liberal commitments and values. Speaking to religious broadcasters at the launch of his 1984 re-election bid, Reagan defended the unborn by citing their pain. Medicine was on his side, he claimed; for the president alleged that doctors also believed that “when the lives of the unborn are snuffed out, they often feel pain—pain that is long and agonizing.” Summarizing the ironies of this new turn in pain politics, one commentator noted, “The reactionary right prefers the selective approach … If only a
portion of his well-directed fervor against abortion were marshaled against the pain that children feel after they are born … he could claim to be authentically pro-life.”
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