RFK Jr. and Dr. Oz Double Down on Raccoon Penis

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Many legal scholars and others interested in the law, including me, will undoubtedly be paying attention this morning to the oral argument in Trump v. Barbara, the SCOTUS birthright citizenship case. You can find my latest Verdict column on the case. In the column, I defend birthright citizenship as a matter of fundamental principle, not just as a matter of the Fourteenth Amendment's meaning. I'll almost certainly weigh in on the case again after the oral argument (probably on Friday), but at this point it feels like everything worth saying by way of preview has been said. Accordingly, I thought I'd start the day off with a less weighty, but more bizarre foray into the latest news.

A forthcoming book about HHS Secretary RFK Jr. makes use of previously unknown private diaries to reveal all sorts of interesting tidbits, such as this gem: "In his diary, [RFK Jr.] writes about cutting off the penis of a road-killed raccoon in 2001, while his 'kids waited patiently in the car,' so that he could examine it later." The story just linked provides no further details about what RFK Jr. discovered upon examining the deceased procyonid's phallus, but it does helpfully add that "Google says raccoon penile bones are also known as 'mountain man toothpicks.'" Clicking on the link provided therein reveals additional intriguing facts, including this from a website called World Wildlife Products on a page advertising the sale of a raccoon baculum (a word I learned means raccoon penis bone): in 2004 "Sarah Jessica Parker and Vanessa Williams were both seen wearing raccoon baculum earrings."

There the RFK Jr. raccoon penis trail (as it were) runs dry--or at least it did until Monday, when an intrepid reporter asked Dr. Mehmet Oz, the Administrator for the Centers for Medicare & Medicaid Services, whether he knew what his boss learned from his raccoon penis inspection a quarter of a century ago. Dr. Oz answered:

Raccoon penis has been used in Chinese medicine for millennia. Together with tiger bones, bear bile, pangolin scales, and rhino horn, ground up raccoon penis, even when taken in microdoses, holds considerable promise in treating everything from kidney disease to macular degeneration to erectile dysfunction.

Within hours, Wei Hui, the current president of the American Traditional Chinese Medicine Association (ATCMA), released a statement expressing disagreement:

Raccoon penis has not in fact been used in traditional Chinese medicine. Raccoons are not even native to China. (Raccoon dogs are, but they are unrelated.) Although Dr. Oz is correct about the other products, they have not been part of traditional Chinese medicine for decades. ATCMA members are at the forefront of protecting endangered species, and many are against all use of animal products.

There the matter seemed to have come to rest, except that yesterday morning HHS Secretary Kennedy posted a thread on X announcing a new initiative to "leverage alternative and traditional cures [that] do not rely on hopelessly conflicted big pharmaceutical companies and insurance companies." Among the "therapies" that RFK Jr. said would be "studied, promoted, and funded" was "raccoon baculum powder as a therapeutic in combination with a carnivore diet and ferments." The tweet did not say what this therapy would aim to treat. Later that day, and bypassing all required procedures, Dr. Oz announced on X that "effective immediately" Medicare Part D plans would be required to cover "raccoon baculum" if prescribed for "moderate macular degeneration" or "idiopathic erectile dysfunction."

Needless to say, Dr. Oz's statement is legally problematic, and not just procedurally or because there is no scientific evidence to support the use of raccoon baculum for any medical purpose. As Professor Lewis Grossman told the NY Times, "Medicare Part D can only cover FDA-approved drugs. Needless to say--and I can't believe I'm saying this out loud--raccoon baculum is not FDA-approved." Animal rights and animal protection groups are also opposed to the program. Animal Legal Defense Fund (ALDF) Executive Director Chris Green announced that his organization is "looking into litigation options to prevent this cruel and wholly unnecessary program."

Despite all of those issues, however, blocking Medicare coverage for raccoon baculum could be challenging. Swinging into action almost immediately, Professor Josh Blackman took to the Volokh Conspiracy to write "Rocky: Watch Out" (a title that appears to be a reference to the Beatles song Rocky Raccoon). There he argues that "neither raccoons nor animal rights organizations have standing to challenge" decisions regarding Medicare Part D coverage.

Professor Blackman does not discuss the possibility that a health insurance company that offers a Medicare Part D plan and does not wish to include raccoon baculum in its formulary would have standing. Perhaps he's right not to discuss that possibility: major insurers might be willing to absorb the cost of paying for raccoon baculum to avoid incurring the president's wrath with respect to other matters of greater financial importance. That seems especially likely if, as Dr. Oz suggests, microdoses are at stake.

I couldn't find any information on the Internet about what a regular dose of raccoon baculum would be as treatment for either macular degeneration or erectile dysfunction, but MAHA-inflected social influencer Vani Hari (the self-proclaimed "Food Babe") wrote on her blog that "you can literally derive at least 20,000 microdoses of medicine from a single raccoon penis." From my perspective, that's one raccoon too many to sacrifice for dubious benefit, but I do understand why health insurance companies would not choose raccoon penis as the hill to die on.

Meanwhile, in addition to the regulatory issues, there is a lurking Free Exercise question, at least according to a very short but punchy essay that Professors Stephanie Barclay and Richard Garnett posted late last night on SSRN. While "bracket[ing] the question whether raccoon baculum is an effective modality for any medical purpose," they argue that pursuant to "the most-favored nation rule of Tandon v. Newsom, Dr. Oz was obligated to approve it for medical uses condoned by traditional Chinese medicine--which is rooted in Taoism, a religion for First Amendment purposes--so long as the government allows any secular uses of raccoons, including as pets or for meat." Anticipating an objection along the lines articulated by the ATCMA, they add that "it doesn't matter whether raccoon baculum is part of actual traditional Chinese medicine; free exercise protects idiosyncratic as well as orthodox beliefs."

I would like to say that Professors Barclay and Garnett are mistaken, but their analysis strikes me as in line with recent free exercise precedents. If that proves to be true, then you'll have not only RFK Jr. and Dr. Oz but also the Supreme Court to thank, or more likely to blame, when your ophthalmologist or urologist prescribes raccoon penis.

-- Michael C. Dorf