This is a rush transcript from "Special Report," June 5, 2013. This copy may not be in its final form and may be updated.
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BRET BAIER, ANCHOR: 10-year-old Sarah Murnaghan reacting to the news that a federal judge intervened today with a temporary order forcing Health and Human Services Secretary Kathleen Sebelius to wave waive the age restriction policy on lung transplants, which so far she has refused to do. Sarah is dying of cystic fibrosis, needs a lung transplant, and she could not be on the adult donor list. Now, at least for the time being she can be. We are back with the panel. Judge, what about this case?
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Well, I think the federal judge in Pennsylvania and Philadelphia did exactly the right thing. I think the family's lawyers did exactly the right thing. They did not ask for a disruption of the entire system. They asked for a suspension of the application of the rule with respect to this child.
I mean, what judge having the authority to cause the secretary of Health and Human Services to make it easier for this child to live wouldn't exercise that authority? Clearly, Mrs. Sebelius has the discretion to exempt her from this rule of 12. The rule of 12 says you can't get on line for the lung transplants no matter how desperate your situation is if you are under age 12.
The secretary of Health and Human Services has the authority under the law to exercise her discretion to grant the exemption. She declined to do so. A judge stepped in and did it for her. As a result this child may live a normal life instead of die a horrible one in the next two weeks.
BAIER: Well, we should point out there are other adults on the lung donor list in Pennsylvania.
BAIER: And depending on her severity of the case --
NAPOLITANO: Let's not misunderstand this. He didn't order Health and Human Services to provide her with a lung. Health and Human Services doesn't do that. He ordered Health and Human Services to let her get on line.
BAIER: Sebelius, her point in her testimony on the Hill, A.B., is that this is set up by the transplant committee, which is not bureaucrats, and this has been established since 2005. That's what she says.
A.B. STODDARD, ASSOCIATE EDITOR, THE HILL: Well, she also said that there were other children at the very same hospital that were as sick. But as I understand it, this patient is at the very top of the pediatric list. So if the rules were waived and she were allowed to be in the adult pool it would depend on medical necessity. It seems a little arbitrary to have that limitation when she sits atop the list of the pediatric patients awaiting transplant.
So again, I'm not an expert on what the laws are and what Sebelius is and is not in control of. But if she has the authority to waive those rules for someone who is at the very of the limit of the pediatric list and has the medical necessity, it's probably something she is going to end up doing.
BAIER: Dr. Krauthammer, this is, I guess for people who weighed in on e-mails and Twitter and everything else, they look at this case and say is this what ObamaCare is going to be in some way, shape, or form? Is there going to be some kind of trigger where somebody is deciding whether my grandmother is on or off?
CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: The fact is somebody always decides. And right now the decision is based, I would assume, on science. There is a reason why they made the rule. I don't know what it is. But I'm so dismayed in America. The first resort is to make everything a legal question. The legal stuff here is irrelevant. What's relevant here is the medical ethics. If she gets a lung, somebody else is not going to get a lung. Let's say it's an 18-year-old. Is the reason for the rule that she has much less of a chance of having a successful transplant than the 18-year-old who will deprived of it, let's say he would have an 80 percent chance and she has a 20. It would be immoral to give it to her and not to him.
BAIER: Sure, younger people under 12 could never be even in contention.
KRAUTHAMMER: Right. I'm assuming and I'm asking and nobody is saying, was the reason for the rule because if you give an adult lung to a child it's unlikely to take, so you are wasting as it is a lung.
NAPOLITANO: Is this the proper role of government? That's the question that people are asking.
KRAUTHAMMER: Right now, it's not a government decision. It's a medical statistical one, and nobody has answered the question. And I would say I love this girl and if I were her parent I would be doing what the parent is, but what about the girl or boy who is number two on that pediatric list. Why would you exclude her?
BAIER: It's an interesting debate. That he was why we have it here. That's it for this panel, but stay tuned to see how one airport is attempting to boost passenger satisfaction.
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