Category Archives: Public Policy and Governance

The Court

The newly engineered Supreme Court will soon decide two abortion-rights cases: Texas’ empowerment of “pro-life” vigilantes, and a more threatening case from Mississippi that was argued this week.

When I describe today’s Court as “engineered,” I am referring to the brazenly unethical behavior of Mitch McConnell, who ensured the appointment of far-right Associate Justice Amy Coney Barrett. Barrett, of course, joined five other conservative Justices, and probably guaranteed that Roe will be overturned or eviscerated.

What then?

According to the Guttmacher Institute,  extrapolating from 2014 statistics, one in four (24%) American women has had an abortion by age 45, despite the considerable barriers to the procedure that have been erected in some half of U.S. states. Fifty-nine percent of them were obtained by patients who had previously had at least one child, and 51% had been using a contraceptive method in the month they became pregnant.

As the country fractures and the Supreme Court drifts farther from any observable understanding of the environment within which it issues its decisions, I’m reminded of a column by Linda Greenhouse, in which she considered the legacy and evolution of Sandra Day O’Connor, the first woman to sit on the country’s highest court. Among other things, Greenhouse noted the deep friendship between O’Connor and Justice Stephen Breyer.

From the outside, it seemed an unlikely pairing, two people from opposing political parties with such different backgrounds, public personas and career paths. But they shared a deep concern about the practical effect of the court’s decisions.

When it comes to reproductive rights, those “practical effects” are likely to be dire. A recent study published in the Annals of Internal Medicine found that–in addition to financial and emotional problems–women who had been denied abortions experienced long-term health problems.

There’s a good deal of research that shows, in the short term, having an abortion is much safer than childbirth, but there isn’t much research over the long-term,” says study co-author Lauren Ralph, an assistant professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco. “Our study demonstrates that having an abortion is not detrimental to women’s health, but being denied access to a wanted one likely is.”

According to the study, women who were denied abortions “consistently” faced worse health outcomes than those who weren’t. “The findings were consistent with a raft of other studies highlighting some of the most serious consequences women face when government restricts women’s access to abortion.

It isn’t only women who face adverse consequences from that denial.

The discourse around abortion tends to focus on women and generally fails to consider how being denied an abortion affects the children a pregnant woman already has and those she may have in the future. The research is clear: Restricting access to abortion doesn’t just harm women — it harms their children as well…Our study shows that denying a woman a wanted abortion has a negative impact on her life and the lives of her children.

A University of Colorado study found that banning abortion nationwide would lead to a 21% increase in the number of pregnancy-related deaths overall and a 33% increase among Black women.

None of these consequences bother the zealots who are “pro fetal life.” (They certainly aren’t “pro” the life and health of women–or concerned about the wellbeing of children once they’re born.) They are willing to ignore two undeniable facts: (1) as the American College of Obstetricians and Gynecologists insists, access to abortion is an important part of women’s health care; and (2) outlawing the procedure will not end abortions. It will simply end medically safe abortions for women who cannot afford to travel to states where the procedure is legal.

Beyond those “practical effects” is the undeniable message that is sent when government intrudes on intimate moral decisions properly left to individual citizens. As Michelle Goldberg recently wrote,

As the feminist Ellen Willis once put it, the central question in the abortion debate is not whether a fetus is a person, but whether a woman is. People, in our society, generally do not have their bodies appropriated by the state.

I realize that none of the documented practical effects of gutting Roe v. Wade will persuade the minority of Americans who think they have the right to impose their religious (or misogynist) beliefs on the clear majority that doesn’t share them, or the politicians who continue to use the issue to motivate their voters (while not-infrequently pressuring their mistresses to abort accidental pregnancies).

I do wonder, however: what will a “victory” for pro-fetal-life activists mean politically? How many of the substantial number of women who have had abortions–and the partners and family members who helped them make that decision– will respond by becoming the new “single-issue” voters?

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Vigilante “Justice”

America seems to be experiencing a troubling upswing in what we might call vigilante “justice.” It isn’t limited to cases like the murder of Ahmaud Arbery or the cowboy fantasies of Kyle Rittenhouse–in Texas, the state legislature, unhappy with constraints imposed by the rule of law, turned over state authority to vigilantes willing to ignore legal process in pursuit of their notions of righteousness (and money).

As one scholar of America’s history of “vigilante justice” has written,

Through U.S. history, the distinctions between vigilantism and lawful arrest and punishment have always been murky. Frequently, vigilantism has been used not in opposition to police efforts, but rather with their active encouragement. Indeed, in some recent protests that still seems to be the case.

Before police departments existed, arrests were made under traditional common law, which depended on private participation in legally organized posses and serving as deputies. Institutions like slave patrols required that non-slave owners were willing to use, or at least permit, violence to maintain white supremacy…

Even the spate of “stand your ground” laws passed in the last 15 years borders on vigilantism, giving private citizens lots of freedom about how to use force to protect themselves.

The linked article makes the point that vigilantism has often “abetted the worst instincts in the politics of crime in the U.S.,” reducing notions of justice to whatever the people want it to be at any given time, rather than the rule of law. That, of course, allows the majority to disadvantage marginalized minorities with impunity, and gives police permission to act violently.

If there’s any doubt that today’s vigilantes act to protect White Supremacy, legislation offered by Congressional looney Marjorie Taylor Greene to award the Congressional Medal of Honor to Rittenhouse should resolve the issue.

In a recent essay, Charles Blow considered the effects of the Rittenhouse verdict on the growing vigilantism of today’s Right wing. As he notes,

One can argue about the particulars of the case, about the strength of the defense and the ham-handedness of the prosecution, about the outrageously unorthodox manner of the judge and the infantilizing of the defendant. But perhaps the most problematic aspect of this case was that it represented yet another data point in the long history of some parts of the right valorizing white vigilantes who use violence against people of color and their white allies…

The idea of taking the law into one’s own hands not only to protect order, but also to protect the order, is central to the maintenance of white power and its structures.

As we now know, the jury saw the Arbery racists for what they were, thanks to an effective prosecution, but the system only worked because a video existed and was seen.

As Blow notes, the vigilante impulse can render justice or terror, depending on its use and one’s perspective, but it has been a longtime, central feature of the American experience–as has the practice of making heroes of vigilantes, as today’s Right is doing.

One could argue that the entire Jan. 6 insurrection was one enormous act of vigilantism.

You could also argue that our rapidly expanding gun laws — from stand your ground laws to laws that allow open or concealed carry — encourage and protect vigilantes.

It goes without saying how ominous this all is for the country. Or, to turn the argument around, how intransigent the country is on this issue of empowering white men to become vigilantes themselves.

Black vigilantes are not celebrated, but feared, condemned and constrained by the law.

Blow reminds readers that when Black Panthers showed up at the California Statehouse with guns, their vigilantism led to huge backlash, including legislation tightening gun laws and prohibiting open carry in the state. As he says–and as we all know–“Whether vigilantes are viewed as radical or righteous is often a condition of the skin they’re in.”

I worry along with Blow that the verdict in the Rittenhouse case will encourage other vigilantes, especially among those on the Right who don’t want to see streets filled with people demanding redress from official misconduct. There are undoubtedly other Rittenhouses out there — angry and immature young men who will take exactly the wrong message from the way in which the Right is celebrating the acquittal of a murderer.

Vigilantism differs dramatically from civil disobedience, where individuals violate a law in order to make a point, and willingly accept the consequences. They are expressly upholding the rule of law, and underlining its importance.

The pursuit of justice cannot include the arming, empowering and/or rewarding of White Supremicist vigilantes– or any other kind, for that matter.

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Research & Development

Let’s talk about drug prices.

Years ago, I was persuaded by arguments from friends who worked at Eli Lilly, Indianapolis’ own “big Pharma” company, who explained the considerable expense entailed by the development of new drugs–including losses incurred when, after the expenditure of millions of dollars, efforts to produce a new medication failed–the drug ended up being shelved. If the government imposed caps on what could be charged for the medications that did emerge, there would be little incentive to spend the zillions necessary, and we would all suffer.

That seemed reasonable, because I didn’t understand how the production of these medications actually worked, and what profits were actually incentivizing.

What initially triggered my deeper investigation was the overwhelming amount of advertising by big Pharma. (Take the purple pill!!) Companies were spending enormous amounts to “incentivize” patients to demand prescriptions from their doctors. (I don’t know about other doctors, but mine absolutely hated these ads, which required him to explain to his patients why pill X or elixir Y was inappropriate for them.)

My preliminary research (granted, a few years ago) revealed that big Pharma was spending more on advertising than on research and development.

Then there was the data showing how much those companies spent on lobbying…

Then there were the reports showing that efforts to produce new medications seldom if ever addressed so-called “orphan” maladies–that is, severe illnesses from which relatively few people suffer–since the markets weren’t attractive. They did spend generously, however, to produce slightly different versions of already-successful products.

But the most revelatory information came when I joined academia and kibitzed with colleagues on the medical faculty. Until then, I hadn’t realized how much pharmaceutical research and development is funded by government. Taxpayers pay, and drug companies profit.

A recent report from Inequality.org highlighted an example from the recent COVID pandemic.

Moderna, the world’s hottest new Big Pharma giant, now has four of its top players sitting on the annual Forbes list of America’s 400 richest. In early 2020, Moderna had none.

Moderna’s Forbes 400 billionaire quartet owes its current good fortune completely to the company’s Covid-19 vaccine. And who made that vaccine possible? U.S. taxpayers. Moderna’s Covid vaccine, as Public Citizen research director Zain Rivzi puts it, “would not exist without the massive contribution of the federal government at every step of the way.”

The Biden administration’s chief science officer for the Covid response, David Kessler, calculates that the federal tax dollars handed to Moderna for vaccine development, testing, and initial manufacture total about $10 billion. And that figure doesn’t include the brainpower of the scientists at the U.S. National Institutes of Health who spent four years actively collaborating with Moderna’s researchers.

Moderna has now filed for a patent on the key vaccine breakthrough these scientists helped produce. The company’s patent application makes no mention of the NIH scientists, a snub that could, notes a Wired analysis, have “major ramifications.”

What are those ramifications? Well, evidently, if a patent gives federal scientists the credit they deserve, the government can license the technology for Moderna’s vaccine to developing countries where vaccination rates remain low.

But if Moderna gets its way — gets approval for a crucial patent that denies credit to federal NIH scientists — the company’s billionaires would have “sole control” over the Covid vaccine technology that U.S. scientists and tax dollars did so much to create. That control would enable Moderna to continue placing profits ahead of people. Way ahead of people.

Over the course of this year’s first six months alone, Michael Hiltzik of the Los Angeles Times points out, Moderna “pocketed $4 billion in profits on $5.9 billion in revenue, almost entirely from its Covid vaccine, its only product.”

Meanwhile, according to the Mayo Clinic, the most commonly used forms of insulin cost 10 times more in the United States than in any other developed country. Other medications Americans rely upon to survive are also disproportionately expensive here.

According to the Commonwealth Fund

Drug spending in the United States is at an all-time high and still rising. Studies have repeatedly shown that the U.S. pays far more for the same prescription drugs than other high- and middle-income countries. Patients in the U.S. are more likely to report that they can’t afford their medications; half of all of adults with lower incomes go without care because of cost.

Commonwealth also debunks that argument that once seemed reasonable, opining that it “is an overreaction to say that any efforts to address drug pricing will stifle innovation,” since–among other things–the pharmaceutical industry has the largest profit margins of any sector among publicly traded companies.

And since U.S. taxpayers will continue to bear a substantial portion of R & D costs.

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Policy, Politics And Reality

Paul Krugman condenses our current democratic dysfunction into one pithy paragraph.

In principle, voters should judge politicians by their actions; they should support politicians who pursue policies that help them, oppose politicians whose policies would hurt them. To do this, however, voters should have a reasonably good idea of what policy is doing.

Krugman is focused on economic policy, but his evaluation of what voters know–very little–is equally true of other policy domains. As he says, In a sensible world–i.e., one that worked as envisioned– voters would have both “a reasonably accurate picture of what’s happening” and a basic understanding of what aspects of our lives are actually under politicians’ control.

As he points out, in the world we inhabit, neither of these things is true. (This observation echoes a popular meme making the Facebook rounds, to the effect that it’s easy to believe in conspiracies when you have no idea how things really work.)

Krugman uses the current gloom over the economy as an example.

Start with the state of the economy. You might be tempted to assume that in a world in which getting and spending occupies a large part of everyone’s life, people would have a pretty good sense of how the economy is doing, even if they aren’t familiar with national income accounting. In reality, however, economic perceptions are largely shaped by media coverage — and, increasingly, by partisanship.

Indeed, the role of partisan skew has gotten so large recently that the Michigan Survey of Consumers, probably the most influential gauge of economic perceptions, highlighted it in its most recent data release; you might say that the Michigan Survey has warned us not to trust the Michigan Survey.

He has appended a chart illustrating the wide differences in consumer sentiment among self-identified Democrats and Republicans since 2019. The chart shows–among other things- that today’s Republicans  have a more negative assessment of economic conditions than they did in March 2009, when the country was in the depths of the financial crisis, a time when unemployment was at 8.7 percent and the economy was losing 800,000 jobs a month.

Other data confirms Krugman’s point that people’s views on the economy reflect what partisan media and their own political preferences are telling them; they show “a huge divergence between what people say about the state of the economy, which is quite negative on average, and what they say about their own personal finances.”

Then there’s the grousing about Biden and the increase in gas prices, despite the fact that the rise is global and Presidents have virtually no control over them.

So we’re living in a nation with many voters who seem to have both a distorted view of the state of the economy and false beliefs about what aspects of the economy politicians can affect. How is democracy supposed to function well under these conditions?…

The fact remains that public perceptions have become extremely disconnected from reality — economics is just one example. It’s a real conundrum. And if you’re waiting for me to propose solutions, well, not today.

That disconnect from reality is an absolutely foreseeable consequence of our national inability to know who and what we can trust.

The constant drumbeat about “fake news,” the willingness of far too many elected officials to lie through their teeth–not to mention their unwillingness to call a lie a lie–aided and abetted by media outlets engaged in propaganda rather than news, are all bad enough.But they would be far less effective if the population at large was minimally knowledgable–if people knew the basic facts about America’s legal framework, the rudiments of economic theory and the difference between science and religion.

When people who are ignorant of  those basics are constantly told that the “legacy” news media is peddling falsehoods, that “others” are to be feared and their voices discounted, that the United States was founded as a “Christian Nation,” that scientific “theories” are  nothing more than wild-ass guesses, and much more–they are far more susceptible to conspiracy theories and disinformation. Some of those theories are so far out–space lasers, pedophiles in charge of the federal government and similar lunacies–that most relatively sane people will reject them, but others–the President is in charge of prices at the gas pump, or the economy is not as robust as it looks–are far more likely to take hold.

When we no longer have Walter Cronkite (or reasonable clones) to trust, all bets are off.

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Living In Wacko World

There is much that I don’t understand about the Americans who continue to support Donald Trump and the Big Lie. There’s even more I don’t understand about today’s GOP, which looks absolutely nothing like the political party to which I devoted some 35 years.

Here’s a smattering of what I don’t get:

  • How do these people explain away the hysterical refusal of the Trump mob to testify to Congress or hand over documents? If they have nothing to hide, why would they act this way? From my lawyering days, I still remember the concern of criminal defense lawyers that a client’s failure to testify would be taken by a jury as evidence that the client had something to hide; in fact, there was a standard (and undoubtedly ineffective) jury instruction to the effect that the jury should refrain from making that obvious assumption.
  • How do they justify the rage and recriminations focused on the few members of the GOP who voted to repair the nation’s decaying infrastructure–especially when Trump tried and failed for four years to have his own “Infrastructure week”? Don’t they drive on our crumbling roads and worry about our failing bridges? How do they explain to themselves and others the GOP insistence that defeating anything  President Biden wants is more important than actually getting things that obviously need to be done, done?
  • What in the world prompts Republicans to threaten “reprisals” for the indictment of Steve Bannon? Bannon was indicted for contempt of Congress. There is no quarrel with the accuracy of the charge: he publicly refused to testify to the committee investigating the January 6th insurrection, and just as publicly refused to provide documents Congress identified. If individuals can ignore Congressional subpoenas, if they can thumb their noses at lawful investigations, we are really in Wild West territory. Yet members of the GOP are warning that Democrats’ efforts to force Bannon to comply “paves the way for them to do the same if they take back the House in 2022.”  According to the Washington Post report linked above, “most high-profile GOP leaders have quickly turned Bannon’s indictment into the latest litmus test for loyalty to the former president.”

This is evidently where we are: if the rule of law gets in the way of partisan loyalties, well, the rule of law must go.

What must also go in this world-view is the First Amendment of the  U.S. Constitution.

Last week, Trump’s disgraced former national security advisor, former General Michael Flynn, spoke at a “Reawaken America” conference in San Antonio, Texas. (According to multiple reports, the conference was intended to reinforce the Big Lie that the 2020 election was stolen, and to support the argument that vaccine requirements infringe Americans’ liberties.) Flynn told the audience: “If we are going to have one nation under God, which we must, we have to have one religion. One nation under God, and one religion under God.”

The former national security adviser also characterized the investigation into the riot as “the insurrection crucifixion” and likened House Speaker Nancy Pelosi to Pontius Pilate. “This is a crucifixion of our First Amendment freedom to speak, freedom to peacefully assemble. It’s unbelievable,” Flynn said.

Flynn’s speech was one of the more explicit endorsements of what the Rightwing political fringe has clearly wanted–and what respect for the rule of law has impeded–a “Christian” nation. (Actually, a nation ruled by White Christian males.)

This is hardly the first time Flynn gets attention for his statements that seem to go against some of the basic tenets of American democracy. In May, Flynn said at a QAnon conference that a military coup like the one that took place in Myanmar “should happen” in the United States. Flynn was Trump’s national security adviser for less than a month and resigned after it was revealed he lied about conversations with the Russian ambassador to the United States. Flynn twice pleaded guilty to lying to the FBI and Trump pardoned him.

What I don’t get–what I cannot wrap my head around–is how non-mentally-ill Americans (even those who get their “news” from Fox) can look at these and so many other examples of the GOP assault on logic, democracy, reality and the rule of law and tell themselves that they are the behaviors of “true Americans.”

If gerrymandering delivers Congress to the GOP next year, we are going to be living in a very different country than the one in which most of us grew up.

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