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In my case, it’s simply pragmatic. When I started my practice over thirty years ago, I called all the insurance companies, told them that I planned to do a traditional Psychiatric practice of psychotherapy and medication treatment, and asked how it worked. They told me they would not refer to me for psychotherapy, as they could refer to other clinicians for less. The amount they would reimburse me for a medication follow up was approximately one third to one half the going rate for the time I planned to spend with each patient. So I asked them why anyone would contract with them, and they all said they had no idea.So I started a fee for service practice in 1985, and am still doing that. I provide a detailed receipt for all my patients who request one for them to file for their insurance reimbursement.Now, after several decades of practice, I can confidently state that I made the right decision for me. I work directly for each patient. The patient and I make the medical decisions, independent of the insurance companies.I do my best to work with the patients’ insurance companies regarding choices of medications, prior authorizations and the like. Because I receive payment in full for the appointments, my patients expect my full attention and expertise every minute of every appointment, and I strive to meet their expectations.Because my patients pay my full fee, they are well motivated to work diligently and see results.In my practice, it’s been a win-win all around. My patients tell me that I practice medicine the way it should be practiced. I spend a lot of time with each patient, provide the best care I know how, stay up to date, and enjoy my practice.

Let’s analyze it, and let’s try to avoid sensationalism. I’m going to leave out the lower court proceedings and the facts of the underlying crime, and cut to the analysis of the Eighth Amendment issues. To make a certain area of my bias clear, I’m a death penalty opponent and politically on the liberal side of the spectrum. I believe I have sufficiently guarded against my prejudices in my analysis. (If not, the redoubtable Anthony Zarrella will let me know, I’m sure!)Majority opinion:History and analysis of Eighth Amendment precedents:Gorsuch’s opinion starts with a discussion of the history of the Eighth Amendment and capital punishment. (Section II A of the opinion.) He notes that capital punishment is expressly contemplated by the Fifth Amendment to the Constitution. He notes that the states are free to decide whether or not to impose the death penalty. He points out that the First Congress, which proposed both the Fifth and Eighth Amendments, made a number of crimes punishable by death.Gorsuch then discusses the meaning of the Eighth Amendment and what was considered to be “cruel and unusual” punishment at its adoption. He notes that the concept includedsuch “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.” Ibid. Methods of execution like these readily qualified as “cruel and unusual” …Gorsuch cites to contemporaneous evidence of such intent:Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447–448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, . . . maiming, mutilating and scourging to death”).Gorsuch next calls attention to other Supreme Court decisions that authorized firing squads, electrocutions, and hangings. He notes that hanging, in particular, did not ensure quick or painless death. Gorsuch thus reaches the conclusion that this historytells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.Gorsuch then turns to prior cases that set standards for determining when a state’s method of execution crosses the line. He cites two prior cases, Glossip and Baze, which I won’t discuss in any depth here. He concludes these cases set the following standard:that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.In this connection, Gorsuch also notes:In reaching this conclusion, Baze and Glossip recognized that the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions.” Baze, 553 U. S., at 47. To the contrary, the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions.” Id., at 51–52, and nn. 2–3. The Eighth Amendment does not come into play unless the risk of pain associated with the State’s method is “substantial when compared to a known and available alternative.” Glossip, 576 U. S., at ___ (slip op., at 13); see Baze, 553 U. S., at 61.In section II B, Gorsuch deals with an argument by the appellant that he should not be required to make a showing of a “feasible and readily implemented alternative method” of execution; the appellant argued that some methods are so cruel that the showing of an alternative shouldn’t be necessary. Gorsuch rejects this argument for two reasons: first, it’s contrary to the prior authority; and second, he finds that the Eighth Amendment “has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification.”Gorsuch then turns to rebutting certain points made in Breyer’s dissent; I’ll get to that later.Application of the Glossip-Baze standard:In Section III A, Gorsuch turns to whether appellant met the burden to show “a feasible and readily implemented alternative method of execution the State refused to adopt without a legitimate reason, even though it would significantly reduce a substantial risk of severe pain”. Gorsuch first notes that appellant initially refused to identify any alternative to the lethal injection procedure, but ultimately identified nitrogen hypoxia. Gorsuch rejected this as a suitable alternative because this procedure is being investigated and is not “readily implemented.” Second, Gorsuch finds that nitrogen hypoxia has never been used and that there is a legitimate state reason not to venture into unknown theoretical territory.In Section III B, the issue of significant reduction of severe pain is analyzed. Appellant argued several risks that might be present by lethal injection that would be eliminated by nitrogen hypoxia. Gorsuch finds that these contentions “rest on speculation unsupported, if not affirmatively contradicted, by the evidence in this case.” There is a lengthy discussion about how quickly he would be rendered unconscious by the two methods; I’m going to oversimplify this to summarize that Gorsuch found that the appellant insufficiently supported his contentions. Therefore, Gorsuch concludes that the “significant reduction of severe pain” standard had not been met.Section IV is essentially a policy statement decrying the delay in the imposition of the sentence. These are not Eighth Amendment issues and I’m not going to discuss them in detail.I’m also skipping the concurring opinions of Thomas and Kavanaugh, which I don’t think get at the main issues. Kavanaugh’s concurrence is rather interesting in its statement that all the Justices agree that “the alternative method of execution need not be authorized under current state law.” But that’s for another day.Principal dissent by Breyer:Breyer’s first point is that he believes that appellant has offered sufficient evidence to preclude summary judgment against appellant on the issue of whether he would be subjected to impermissible suffering. This gets into a legal issue regarding standards of proof at this stage of the proceedings. Breyer is not saying that the appellant will necessarily win on the issue; he’s only saying that appellant showed enough that the claim shouldn’t be dismissed. (Gorsuch claims that Breyer misanalyzed the issue, and that the evidence only showed that lethal injection might take longer to cause death but not that it would cause additional pain.)Breyer next disputes that there is any need to show the availability of an alternative means. His argument is that this element only should apply when a method of execution is challenged as categorically invalid. But appellant’s challenge is only about the use of lethal injection as to him individually based on his unique health situation. This, Breyer claims, makes a difference. Appellant isn’t trying to make a back-door challenge to capital punishment in general; appellant only is seeking a different means for the execution. I think the following quote capsulizes Breyer’s overarching point:But the majority’s decision permits a State to execute a prisoner who suffers from a medical condition that would render his execution no less painful. Bucklew has provided evidence of a serious risk that his execution will be excruciating and grotesque. The majority holds that the State may execute him anyway.Finally, Breyer notes that appellant did identify an alternate method, and disagrees with the majority’s reasons for finding it insufficient. Again quoting what I think is his main point:Presented with evidence such as Bucklew’s, I believe a State should take at least minimal steps to determine the feasibility of the proposed alternative. The responsible state official in this case, however, acknowledged that he “did not conduct research concerning the feasibility of lethal gas as a method of execution in Missouri.” Id., at 713; see also Record in No. 14–800 (WD Mo.), Doc. 182–6, p. 16 (different official acknowledging that, “to be candid, no, I did not go out and try to find answers to those questions”).With regard to the delay issue noted by Gorsuch, I think Breyer’s response is clear from the following:Today’s majority appears to believe that because “[t]he Constitution allows capital punishment,” ante, at 8, the Constitution must allow capital punishment to occur quickly. … It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.There are other issues Breyer addresses, such as points in the Thomas concurrence, but I don’t think they merit discussion here.Analysis:I hope that people can see that the issue is considerably more complex than “evil conservatives promote torture, good liberals don’t.” Rather than turn this into a simplistic contest, I’ll make a few observations:First, I think the case shows the real limits of originalism. The issues involved in the present case arise in the context of diagnostic and technological capabilities that weren’t known and couldn’t be anticipated. There was no “original intent” about lethal injection vs. nitrogen hypoxia. It’s perfectly fine for a legal analysis to try to draw inferences as to the proper application of principles underlying the original intent, but it’s simply not true that one can resolve issues by a “plain meaning” of original text. There is more than one reasonable analysis to be made, because there are multiple policies involved.Second, however much one might disagree with the majority analysis, it is simply not fair to portray it as authorizing wholesale torture. The majority opinion is pretty clear that there are long-standing limits. One can conclude that the majority is incorrect without drawing the conclusion that the Inquisition is nigh.Third, I think that a large part of the case comes down to whether one views the issue on review to be in the nature of a general challenge to a method of capital punishment or a very individualized application of the law. The different orientations can point to different outcomes.Fourth, note how much of the opinion centers around what is the relevant standard and are there policy reasons that the standard should not apply to this case. These tend to be technical issues. The Court isn’t just making it up as it goes along. It’s considering original text, contextual material, and prior authority.Finally, I’ll abandon neutral voice. I am against the death penalty and agree with Breyer. I think that this case illustrates problematic issues that necessarily arise from the insistence on a capital punishment system. I have other reasons for my opposition to the death penalty, but in my view the fact that we are devoting judicial resources to fine-tune constitutionally permissible means to execute people is absurd. So for those who care which “side” I’m on, I’m with Breyer: I think that appellant had made a sufficient showing of a risk of constitutionally impermissible suffering in his case to merit further hearing and an investigation of the alternative method.

I can't help but beat the same drum as Joshua Engel. The human body is very resilient and exceedingly complex, which make it extremely difficult to make conclusions and, more importantly, practical recommendations with hard numbers. An estimated 350-500 kcal per day reduction, for example, is normally recommended for individuals trying to lose weight whether through diet, exercise, or both combined. Some will lose more weight than others depending on metabolism, physical activity, diet adherence, and many other factors. Concomitantly though, individuals who have lost weight -- either maintaining their weight lost or having recently lost weight -- will also lower their metabolism or Resting Energy Expenditure (REE),[1] making it more difficult to lose weight while maintaining the same energy deficit. In other words, the same reduction in calories over time will no longer result in the same amount of weight lost and the "350-500" kcal deficit reduction recommendation becomes moot because of adaptive thermogenesis. The takeaway: Our bodies are great at adapting or compensating, which unarguably make evidence-based recommendations have a lot of wiggle room.The distilled principles of healthy eating are still the same as they were 50 years ago. According to Michael Pollan, author of "The Omnivore's Dilemma" and "In Defense of Food", we should "eat food. not too much. mostly plants." which sums up everything quite elegantly. Marion Nestle, another food writer and nutrition professor/researcher, suggests: 1) eating less 2) eating more fruits and vegetables 3) moving more and 4) laying off the junk food. There is a lot of overlap between Pollan's and Nestle's message, but for good reason - they're backed by large bodies of evidence.That said, here are some rules of thumb:1. unless there's a large body of evidence, take everything with a grain of salt2. what Joshua Engel saidRefs:Long-term persistence of adaptive thermogenesis in subjects who have maintained a reduced body weight