Archive for the ‘Law’ Category

The Earth Is Moving Under Medicare And The Price Of Drugs ― But Slowly.

Friday, November 4th, 2022

Prologue

This is a story, 16 years in the making, of government-enabled corporate greed. It’s complicated and somewhat dense. It has to be to go on that long. It’s a story of how one industry, the Pharmaceutical industry, has done Olympian good while achieving Titanic profit, which has been surgically excised, Midas-like, from the hides of American taxpayers who never felt the touch. The story ends with a different way, a better way, but a way we common folk won’t likely see.

The story

Medicare Part D, a prescription drug benefit plan for Medicare beneficiaries, became law on 1 January 2006 under the George W. Bush administration and a Republican controlled Congress. The legislation was enacted with no funding provisions whatsoever. Since then, Washington politicians have been arguing over whether this government program should be allowed to negotiate with pharmaceutical companies the prices it pays for drugs its members need. Medicare beneficiaries, all 64 million of them, and the public at large, have overwhelmingly supported such a move. Over the years, pharmaceutical companies have spent a king’s ransom donating to politicians to secure―should we say “buy?”―their votes in opposition.

What’s been the result?

  • A study published recently in the Journal of the American Medical Association concluded more than a quarter (27.2%) of Medicare spending is now for prescription drugs;
  • That would be $180 billion, as reported by the Medicare Payment Advisory Commission for 2020;
  • According to the Kaiser Family Foundation, the total we in the US spent on prescription drugs in 2017 was $333 billion; and,
  • The Rand Corporation studied and compared US prices to 32 other OECD countries (The Organization for Economic Cooperation and Development – the most developed nations) and reported our prices are “nearly twice those of other countries after adjusting U.S. prices downward to account for rebates and other discounts paid by drug companies.”

And now, the gravy train may be slowing.

In August 2022, Congress finally passed―without a single Republican vote―and President Biden signed, the Inflation Reduction Act, which, among other things, allows Medicare to move forward with drug price negotiations―sort of. Right about now, you may be asking what prevented Medicare from doing that all along since 2006 as a normal part of its drug-purchasing process?

As the Kaiser Family Foundation explains:

Under the Medicare Part D program, which covers retail prescription drugs, Medicare contracts with private plan sponsors to provide a prescription drug benefit. The law that established the Part D benefit included a provision known as the “noninterference” clause, which stipulates that the HHS Secretary “may not interfere with the negotiations between drug manufacturers and pharmacies and PDP [prescription drug plan] sponsors, and may not require a particular formulary or institute a price structure for the reimbursement of covered part D drugs.”

In other words, although Medicare is buying drugs for its members, all 64 million of them, it has not been allowed to even hint that a lower price might be more fair and appropriate for the government to pay. That is the very definition of a “sweet deal” for drug manufacturers.

Giving the negotiation contrarians the benefit of a doubt they more than likely don’t deserve, their argument in opposition hangs on the slim thread that negotiations will lower the income of drug manufacturers, and that will, in turn, reduce the amount of money the companies invest in research and development to discover new life-saving drugs. My own opinion is that this argument is chock full of what makes the grass grow green and tall. And, by the way, the Congressional Budget Office agrees with me, although their analysists said it with a bit more eloquence.

And what does the aforementioned Inflation Reduction Act do, anyway?

It does a number of things, one of which is to lay down new rules for price negotiations. These are its major health care provisions, leaving out, for the moment, the negotiation issue. It will:

  • Require drug companies to pay rebates to Medicare if prices rise faster than inflation for drugs used by Medicare beneficiaries, beginning in 2023;
  • Cap out-of-pocket spending for Medicare Part D enrollees and make other Part D benefit design changes, beginning in 2024;
  • Limit monthly cost sharing for insulin to $35 for people with Medicare, beginning in 2023. This might be the most far reaching and important item in the entire legislation.
  • Eliminate cost sharing for adult vaccines covered under Medicare Part D and improve access to adult vaccines in Medicaid and CHIP, beginning in 2023;
  • Expand eligibility for full benefits under the Medicare Part D Low-Income Subsidy Program, beginning in 2024; and,
  • Further delay implementation of the Trump Administration’s drug rebate rule, beginning in 2027.

Notice the years in which these provisions take effect. In most cases, it’s 2023.

The negotiation provision of the Inflation Reduction Act:

  • Requires the federal government to negotiate prices for some drugs covered under Medicare Part D and Part B* with the highest total spending, beginning in 2026. Note the year.

This provision targets the most expensive drugs. Here’s how.

Under the new Drug Price Negotiation Program, Medicare will negotiate the price of 10 Part D drugs for 2026, another 15 for 2027, another 15 for 2028, and another 20 for 2029 and later years. The drugs to be chosen for negotiation will be selected from among the 50 drugs with the highest total Medicare spending. The number of drugs with negotiable prices  will accumulate over time.

So, beginning four years from now, the law goes after the most expensive Medicare drugs.

There are debatable reasons for delaying implementation until 2026, all dealing with operational processes. The period of negotiation between the Secretary of Health and Human Services and manufacturers of the selected drugs will occur between 1 October 2023 and 1 August 2024, and the negotiated “maximum fair prices” will be published no later than 1 September 2024 and will go into effect 1 January 2026.

This seems to me a rather long and drawn out negotiation process, but it is, after all, a political compromise.

The better way

And now for the better way.

There is another government health care organization that has never had a prohibition with respect to negotiating drug prices. It is the Department of Veterans Affairs. The VA.

In January, 2021, the Government Accountability Office released a study that concluded:

“the Department of Veterans Affairs (VA) paid, on average, 54 percent less per unit for a sample of 399 brand-name and generic prescription drugs in 2017 as did Medicare Part D, even after accounting for applicable rebates and price concessions in the Part D program.”

This means what the VA pays is in line with those other 32 OECD countries.

Moreover, the GAO found that 233 of the 399 drugs in the sample were at least 50% cheaper in the VA than in Medicare, and 106 drugs were at least 75% cheaper. Only 43 drugs were cheaper in Medicare than in the VA.

What are the operational differences between the two organizations?

For one thing, the programs pay for drugs differently. Medicare reimburses the Part D plan sponsors to pay pharmacies through the middlemen―Pharmacy benefit Managers, but the VA buys drugs directly from manufacturers. It cuts out the middlemen. The VA can get lower prices because it can:

  • Negotiate as a single health system with a unified list of covered drugs; and,
  • Use discounts defined by law that Medicare doesn’t have.

As in everything political, it all comes down to economics. The VA, with only nine million health care beneficiaries, as opposed to Medicare’s 64 million, could fly under the political radar and avoid congressional restraint. It was able to keep the congressional camel’s nose and, more to the point, its sticky fingers out of its tent.

Medicare is so big, it could never do that.

And here we are.

______________________

*Medicare will also negotiate in a similar manner the prices of Part B drugs. These are drugs administered in physicians’ offices or hospital outpatient departments.

Cavalier Greed And Cruelty In Minnesota

Wednesday, September 21st, 2022

Yesterday, Federal authorities charged 47 people in Minnesota with conspiracy and other counts in what prosecutors said is, to date, the largest fraud scheme of the COVID-19 pandemic, a scheme that stole at least $250 million from a federal program that provides meals to low-income children.

According to the Justice Department, “The 47 defendants are charged across six separate indictments and three criminal informations with charges of conspiracy, wire fraud, money laundering, and bribery.”

Government prosecutors allege the defendants created companies that claimed to be offering food to tens of thousands of children across Minnesota — nearly all of whom did not exist, — then sought reimbursement for those meals through the U.S. Department of Agriculture’s food nutrition programs. Because the need was so great, some standards were waived and oversight was often minimal. The USDA allowed for-profit restaurants to participate, and allowed food to be distributed outside educational programs. The charging documents say the defendants exploited such changes “to enrich themselves.”

A non-profit called Feeding Our Future was central to the scheme.

The Federal Child Nutrition Program is used to feed low income children in daycare and afterschool organizations. It spends $4 billion a year to feed needy children across the country. Feeding Our Future received hundreds of millions of dollars from the program from 2019 through 2021.

Here’s how it worked.

The government alleges Feeding Our Future, a sponsor in the Federal Child Nutrition Program, established sponsorship contracts with nearly 200 federal child nutrition program sites throughout the state, knowing that the sites intended to submit fraudulent claims. The sites would submit the claims to Feeding Our Future, which would then submit them to the Minnesota Department of Education, which has historically administered the programs, primarily through school programs. With schools closed for the pandemic the rules of the nutrition programs were changed to allow for all of the new entrant providers and the relaxed rules.

Feeding Our Future became a sort of Third Party Administrator for the sham sites and collected 15% of the charges as its fee. It went from receiving and disbursing approximately $3.4 million in federal funds in 2019 to nearly $200 million in 2021.

According to the indictments, “The sites fraudulently claimed to be serving meals to thousands of children a day within just days or weeks of being formed and despite having few, if any, staff and little to no experience serving this volume of meals.”

The massive fraud was allegedly headed up by Aimee Bock, Feeding Our Future’s founder and executive director. The indictments also allege she and some of her employees received additional kickbacks, which were often disguised as “consulting fees” paid to shell companies Bock created.

Andy Luger, the U.S. Attorney for Minnesota, said the fraudsters billed the government for more than 125 million fake meals. He displayed one Form For Reimbursement that claimed a site served exactly 2,500 meals each day Monday through Friday — with no children ever getting sick or otherwise missing a meal.

Luger said, “These children were simply invented.”

Earlier this year, the U.S. Department of Justice made prosecuting pandemic-related fraud a priority. The department has already taken enforcement actions related to more than $8 billion in suspected pandemic fraud, including bringing charges in more than 1,000 criminal cases involving losses in excess of $1.1 billion.

In this case, one of the indictments offered a beyond-brazen example of the fraud. It described a small storefront restaurant in Willmar, in west-central Minnesota, that typically served only a few dozen people a day. Two defendants offered the owner $40,000 a month to use his restaurant, then billed the government for some 1.6 million meals through 11 months of 2021. They listed the names of around 2,000 children — nearly half of the local school district’s total enrollment — and only 33 names matched actual students. And where did the defendants get the names of the children they said the program fed? From a website that randomly provides the names of mythical children. That’s where.

As usual in these kinds of fraud schemes the defendants used the stolen money to buy homes, exotic cars, vacation junkets and expensive clothes and jewelry.

And what did Minnesota’s low income children get? They got hunger.

 

 

 

Paid Sick Leave: Public Policy That Makes Ethical And Economic Sense

Tuesday, August 23rd, 2022

Do Right To Carry Laws Make Us Safer?

Monday, August 15th, 2022

America is awash in guns.

According to a 2018 report by the Small Arms Survey, a Geneva-based organization, Americans in that year had in their possession 393.3 million weapons, which is 16% more than the country’s population of about 330 million people. And since that year, especially beginning in 2020, we  have been on a gun buying spree. The National Instant Criminal Background Check System, which the FBI collects and is widely used as a proxy for firearms purchases, jumped 40% in 2020 from 2019 to 39.7 million background checks. The frenzy only cooled slightly to 38.9 million checks in 2021.

With all those guns, it is only natural that people want to be able to take them with them when they leave their homes. Enter Right To Carry laws, RTCs.

In January of 2023, Alabama will become the 25th state that won’t require permits to carry a gun in public. In recent years, more and more states have enacted similar legislation. Indiana, Georgia and Ohio, did so this year. The change in Indiana made headlines as it happened just two weeks before a deadly mass shooting at a mall in an Indianapolis suburb, where a gunman killed three and wounded two more before being shot dead by a bystander who also carried a gun.

The rationale for RTC laws is always the same: They will keep us safer, because people will be able to defend themselves and their families from bad people with guns, a la the Indianapolis situation. But is that even remotely true?

To find out, John J. Donohue, Samuel V. Cai, Matthew V. Bondy, and Philip J. Cook, writing in the National Bureau of Economic Research Paper Series, in June of this year published their study, More Guns, More Unintended Consequences: The Effects Of Right To Carry On Criminal Behavior And Policing In US Cities.

The conclusion of their heavily researched, 36 page paper? “The rate of firearm violent crimes rises by 29 percent due to RTC, with the largest increases shown in firearm robberies.”

Consider this chart, which compares the incidence of violent crime in major cities in the year before  passage of Right To Carry laws and the year after.

From the Report:

The statistically significant estimates that RTC laws increase overall firearm violent crime as well as the component crimes of firearm robbery and firearm aggravated assault by remarkably large amounts with an attendant finding of no sign of any benefit from RTC laws represent a remarkable indictment of permissive gun carrying laws. Perhaps the most noteworthy and novel result is the finding that RTC laws increase firearm robbery by a striking 32 percent.

This study shoots a great big hole through the idea that Right To Carry laws keep us safer. In fact, the reverse is true.

Another consequence of RTC laws is the effect they have on the capacity and ability of police to solve crimes. That is, they cause crime to go up so much that police turn into the Ed Sullivan Plate Spinner.

 

The increasing firearm violence that RTC laws perpetuate is facilitated by a massive 35 percent increase in gun theft (p = 0.06), with further crime stimulus flowing from diminished police effectiveness, as reflected in a 13 percent decline in violent crime clearance rates.

The study authors say RTC laws may generate a host of demands on police time and resources that reduces the amount of time they have to fight crime. Processing complaints about the increased gun thefts, accidental discharges and injuries, processing RTC permit applications, and taking time to check for permit validity by those carrying guns will all encumber police resources.

For example, if the police only have the ability to solve 40 out of 100 crimes, and if crime rises by 20 percent and they still can only solve 40 crimes, the clearance rate would fall from 40 percent to 33 percent (40 out of 120).

Nonetheless, it appears we are stuck with at least half the states falling in love with Right To Carry laws. We are also stuck with the horrid consequences.

Two Stories – Only One Of Them Good

Thursday, August 11th, 2022


Photo credit – The Economist, 2018

There are two major stories roiling America this week in August 2022. One concerns the major accomplishments of the Biden administration, and the other is the political cyclone that is anything having to do with Donald Trump.

By any basic measure, Joe Biden’s presidency is off to a rip-roaring start. Not even halfway through his term, Congress has passed the $1.9 trillion American Rescue Plan and devoted hundreds of billions of dollars to upgrading American infrastructure. It’s approved the first major piece of gun reform in decades and expanded health care benefits to millions of veterans. And once the House returns from its recess tomorrow, Congress will have authorized hundreds of billions of dollars in green energy and health care subsidies. While the first and last measures were enacted entirely along party lines, the others passed with large, bipartisan majorities.

And this week President Biden signed another bi-partisan major piece of legislation into law, the CHIPS and Science Act of 2022, boosting domestic semiconductor manufacturing, a stroke of the pen we desperately needed to compete globally with the Chinese. Following the signing, the Micron company announced a $40 billion investment in new chip-manufacturing facilities in the United States through the end of the decade, and Global Foundries and Qualcomm announced a $4 billion partnership to produce chips in the U.S. that would otherwise have gone overseas.

Also this week, we learned the price of gasoline has dropped below $4.00 per gallon and inflation has decreased from 9.1% to 8.5%.

I defy anyone to prove any administration in the last fifty years has done more in such short a time (I know, it feels like forever, but it’s only the first one and a half years of a four year term).

But while that story of accomplishment should be celebrated around the country, such is not the case. It’s the other story, the Trump crazyness, that continues to suck all the available oxygen out of everywhere. And it doesn’t help when Republican congressional legislators hypocritically put on the mantle of persecuted victimhood and defend their cult leader like Davy Crocket at the Alamo.

I won’t go into all the nausea-inducing idiocy delivered with intergalactic significance by those “patriots,” but I will point out that in a time crying out for calm, patience and legislative leadership, we are given nothing but disingenuous histrionics with all the honesty of a Potemkin Village.

Here is what we know: Donald Trump is being investigated by two agencies, the New York Attorney General and the Justice Department. We know the particulars of the first, but not the second. We know a federal judge authorized the FBI to execute a search warrant at Trump’s home at Mar-a-Lago (After firing James Comey, Trump appointed the current FBI Director Christopher Wray, a Republican). To do that, the FBI would have had to persuade the Judge it had probable cause that a crime had been committed. Second, we know the former President testified in New York on Wednesday of this week in the New York Attorney General’s long-running civil investigation into his business dealings. We know his testimony consisted entirely of his invoking his Fifth Amendment rights (we also know Trump has said in the past, “You see, the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”).*

That is all we know for sure. Everything else has been speculation and a hair-on-fire, Hellzapoppin horror show in which Republicans see the Four Horsemen of the Apocalypse galloping over the nearest hill to bring fire and destruction to them and their Dear Leader. They have also pledged massive vengeance if (they say “when”) they retake control of the House in November’s election.

While there is some excellent reporting happening, especially in long form, I blame the Washington media for much of this. Yes, it has to cover the swill that comes out of Trump’s mouth and the chaos that comes next, but it has given, and continues to give, every bombastic bloviator a national soapbox from which to spill their screed. There is a rampant and profound false equivalency going on, and, reporters covering this for the national and cable networks should know better. As someone I respect said, “They should be investigative reporters, not stenographers.”

Maybe at some point in the future Americans will stand back and take a hard look at all of this. Maybe they will come to appreciate the monumental legislation that’s come out of the Biden administration. Maybe they will realize the good it will do for our country and our neighbors. Maybe Republican leadership will instruct congressional members to stand down and let things play out. Maybe Joe Biden’s approval rating will rise. Maybe pigs will begin flying past my second floor window. Maybe…

We can be certain of one thing. The Trump drama will resolve eventually. The question is, will it right the ship of Democracy, or sink it?

 

*It is not the first time that Mr. Trump has taken the fifth in a civil case. During his divorce proceedings against Ivana Trump in 1990, he invoked his right against self-incrimination close to 100 times according to Wayne Barrett’s book “Trump: The Greatest Show on Earth.” Most of the questions he was avoiding concerned his infidelity. In Mr. Barrett’s words, “mostly in response to questions about ‘other women.’”

From Watergate To Tonight’s Public Hearing: A Stark Contrast

Thursday, June 9th, 2022

On 17 June 1972, in what White House Press Secretary Ron Ziegler would later call, “a third-rate burglary,” five men, all former CIA operatives, broke into the Watergate Hotel headquarters of the Democratic National Committee to steal information relating to the upcoming presidential election.

Four months later, in a blockbuster story for the Washington Post on 10 October, Bob Woodward and Carl Bernstein reported,

“The Watergate bugging incident stemmed from a massive campaign of political spying and sabotage conducted on behalf of President Nixon’s re-election and directed by officials of the White House, as a basic strategy of the Nixon re-election effort.”

Five months after that, in early March, 1973, the US Senate, by a vote of 77 – 0, voted to convene the Select Committee on Presidential Campaign Activities. Four Democrats and three Republicans comprised the Committee, which was chaired by Senator Sam Ervin (D-NC) with Senator Howard Baker (R-TN) as his Vice Chair. The Committee began its public hearings on 17 May, 13 months after the break-in. They would go on every day for two weeks, and were carried live on all television networks. During his opening statement, Howard Baker said the job of the Committee was to answer the question, “What did the President know, and when did he know it?”

Watergate would prove the undoing of President Richard Nixon, who just one year earlier had won re-election in a massive landslide. Forty people would be indicted. Seven individuals associated with carrying out the actual burglary and five presidential advisors were convicted of various crimes, although the conviction of one of the advisors, Robert Mardian, was overturned on appeal.

Watergate produced heroes.

  1. First, there were the 77 patriotic senators who voted unanimously to form the Select Committee, many knowing their votes would come back to hurt them in future elections.
  2. Then there were Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus who, in what later came to be known as the Saturday Night Massacre, resigned rather than carry out Nixon’s venal order to fire Special Prosecutor Archibald Cox. Solicitor General Robert Bork, subsequently nominated to the Supreme Court by Ronald Reagan, did agree to carry out the order to get rid of Cox and wanted to resign immediately after, but was persuaded by Richardson and Ruckelshaus to stay for the good of the Justice Department.
  3. Senators Ervin and Baker and the other members of the Select Committee did their duty, all the while aware of the risks to their careers and the personal safety of themselves and their families.
  4. Following Watergate, investigators and journalists, layer by layer, unveiled the enormous corruption that was the Nixon presidency. Congress did what Congress should. The American people had an overwhelmingly favorable opinion of how the Senate, the House of Representatives, federal investigators and journalists did their jobs.

So, which was worse? The corruption riddled Nixon presidency with its utter disregard for the truth, the law, and basic morality, or the Trump presidency, with:

  1. Its four-year litany of lies;
  2. Its parade of misinformation about the Covid pandemic;
  3. Its asking  a state election official to “find” nearly 80,000 votes in order to “win” the state of Georgia;
  4. Its withholding of congressionally approved funding for Ukraine in an attempt to extort cooperation from its President as it sought to undermine the campaign of Joe Biden by targeting his son;
  5. Its presidential genuflection to Vladimir Putin;
  6. Its throwing log after log on the inferno that is white nationalism;
  7. And, biggest of all, its January 6th attack on the United States, which Donald Trump and his minions organized and directed and during which he stood idly by, smiling, as he watched it unfold on television while his troops tried to find Vice President Pence, screaming, “Hang Mike Pence.”

Following the Insurrection, we discovered there are some heroes, but very few, on the Republican side of the aisle.

First, the ten Representatives who voted in favor of the United States House Select Committee on the January 6 Attack, most of whom have announced they will not run for re-election; they’ve been driven from office by the Cult of Trump.

Second, Representatives Liz Cheney, of Wyoming, and Adam Kinzinger, of Illinois, the only two Republicans who defied party leadership to serve on the Select Committee. Kinzinger will not run for re-election, and Cheney has been stripped of her leadership role in the Party.

That’s it, folks. There aren’t any others. No Elliot Richardsons here

Tonight, eight days away from the third-rate burglary’s 50th anniversary, public hearings conducted by the Select Committee will begin. They bear about as much similarity to the Watergate Hearings as my tennis game does to that of Raphael Nadal’s. But they will be tremendously important. Those Americans who care to watch will witness the evil Genie emerge from his bottle. Even though, unlike the Watergate investigation, many officials have refused Committee subpoenas to testify, much will be revealed. What will happen afterwards is anybody’s guess. The Republicans seem to be playing a waiting game until after the midterm elections. If, as expected, they take control of the House, they will then be able to disband the Select Committee and act like the Insurrection never happened.

But who will tune in tonight? All the major networks, cable and otherwise, will broadcast the Hearing live, as they happen. All except one. That would be Fox, which will have its usual “all star lineup” of Carlson, Hannity and Ingraham commenting contemporaneously as tonight’s Hearing progresses. Wonderful.

One cannot help wondering if tonight’s Hearing will be a mostly preaching-to-the-choir exercise. If it’s true that nearly 70% of Republicans continue to believe the Biden presidency illegitimate and the 2020 election “stolen” from Donald Trump (apparently, some people really will believe anything), tonight’s event might well be nothing more than a lonely voice crying out in an empty desert.

There is one other thing that separates Watergate from the present Committee’s work. No one refused to testify, defying a subpoena, in the Watergate investigation. Chairman Ervin said loud and clear if anyone did that he would have them arrested. They all came to the Committee like lambs to the slaughter. In the present investigation, people, important witnesses, have blithely considered their subpoenas mere recommendations they can justifiably ignore.

What I have been forced to conclude is that January 6th, and what has happened since, are not the main event. They are symptoms of a disease that is cracking our democracy at its core. Unless the present Committee examines the disease, as well as its symptoms, they’ll miss their one chance to show America the deepening fissure.

Looking back, it almost seems as if Watergate happened on a different planet. How far we have fallen.

 

Mississippi: America’s Third World Country

Wednesday, May 11th, 2022

Although I have been there only once, I can’t help thinking about Mississippi.

Mississippi has recently been in the news, of course, because its 2018 Gestational Age Act will be upheld in the same Supreme Court decision overruling Roe v. Wade, which we discovered from Justice Samuel Alito’s leaked first draft opinion for the majority.

This is not Mississippi’s first foray into restricting abortion. In 2007, the state passed its version of an abortion Trigger Law, which “bans all abortions unless necessary to save the life of the pregnant woman or if the pregnancy was caused by rape and charges have been filed with law enforcement,” and which takes effect immediately following the state attorney general certifying the Supreme Court has overturned Roe v. Wade. The Trigger law had 19 male legislative sponsors and zero female sponsors. Regardless, Mississippi has been ready for this for 15 years.

But has it been ready for what comes next?

Matthew Walther, editor of The Lamp, a Roman Catholic literary journal, and a person who will never be accused of favoring abortion, sees predictable and unpleasant consequences after Roe is no longer the law of the land. In his 10 May 2022 guest essay for the New York Times, “Overturning Roe will disrupt a lot more than abortion. I can live with that,” Mr. Walthern acknowledges what very few anti-abortionists want to admit.

Research over the years has suggested that an America without abortion would mean more single mothers and more births to teenage mothers, increased strain on Medicaid and other welfare programs, higher crime rates, a less dynamic and flexible work force, an uptick in carbon emissions, lower student test scores and goodness knows what else.

But Mr. Walther, despite envisioning a gloomy horizon, “can live with that.” I cannot restrain myself from pointing out that Mr. Walther is of the male persuasion and, consequently, faces little likelihood of ever having to “live with” personal pregnancy.

Nonetheless, he makes a good argument, which brings us back to Mississippi.

A few points worth considering:

  • Poverty: According to the Department of Agriculture, 20.29% of Mississippi’s adults and 27.6% of its children live below the poverty line. This is the highest poverty rate in America where the national average is 11.4%.
  • Income: The median family income in Mississippi is $45,081. This is the lowest in the nation. According to the National Census Bureau, the national average in 2019 was $65,712.
  • Education: Only Texas, at 84%, ranks lower than Mississippi, at 85%, for the percentage of high school graduates. The national average is 89.6%. Only West Virginia, at 21%, ranks lower than Mississippi’s 22% for the percentage of college graduates. The national average is 31.28%.
  • Life Expectancy: At 74.4 years, Mississippi has the lowest life expectancy rate in the nation. Of note, the life expectancy rate for Mississippi’s men is 71.2 years.
  • Fetal Mortality: Mississippi’s fetal mortality rate, the number of deaths at 24 or more weeks of gestation per 1,000 live births, is 6.6. This is the highest in the nation. The national average is 3.68. If that isn’t enough, fetal deaths have lately doubled among unvaccinated pregnant women who suffer COVID-19 infections, State Health Officer Dr. Thomas Dobbs said during a Mississippi State Department of Health press conference in September, 2021.
  • Infant Mortality: The Infant Mortality Rate is the number of infant deaths per 1,000 live births. At 8.27, Mississippi’s is the highest in the nation, far exceeding Louisiana’s rate of 7.53, which is the second highest.
  • Maternal Mortality: According to the Centers for Disease Control and Prevention (CDC), Mississippi’s maternal mortality rate is 20.8, again, the highest in the country, where the national average is 17.4, which is the highest among all members of the Organization for Economic Co-operation and Development (OECD). A maternal death is defined by the World Health Organization as, “the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and the site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management, but not from accidental or incidental causes.”
  • Maternity Leave: Mississippi has no guaranteed Maternity or Sick Leave in its state laws.
  • Smoking: According to the CDC, 20.4% of Mississippians smoke. This is the fourth highest in the nation.
  • Autopsies: Something you probably have never have considered until now: Autopsy backlogs. According to the National Association of Medical Examiners (NAME), 90% of all autopsies should be completed within 60 days of death. The NAME has never accredited Mississippi, which has the highest backlog in the nation. The Mississippi State Medical Examiner’s Office was waiting for about 1,300 reports from as far back as 2011, records sent to the Associated Press in early April show. Around 800 of those involve homicides – meaning criminal cases are incomplete.
  • Abortion: According to the Mississippi Department of Public Health, the state has about 3,500 abortions annually. This represents 4.3 abortions per 1,000 women of reproductive age.
  • Finally: Mississippi ranks highest in the nation for Percent of Births to Unmarried Mothers, Cesarean Delivery Rate, Preterm Birth Rate, and Low Birthweight Rate.

Reading the above, one might be forgiven for thinking  there is a significant population in Mississippi who are actual victims of the state’s inability, or outright refusal, to carry out its first responsibility: to provide for the security and safety of its citizens.

Thinking about this, I have to ask: Given how well it’s doing now, how in the world is Mississippi going to cope with 3,500 new births per year? On CNN this past Sunday, Jake Tapper interviewed the state’s Republican Governor, Tate Reeves. That interview offered a glimpse of what is likely coming, a catastrophe becoming worse than it already is, which is considerable.

Tapper: Mississippi, as you know, has the highest rate of infant mortality in the United States. You have the highest rate of child poverty in the United States. Your state has no guaranteed maternity leave that’s paid. The legislature in Mississippi just rejected extending post-partum Medicaid coverage. Your foster care system is also the subject of a long-running federal lawsuit over its failure to protect children from abuse. You say you want to do more to support mothers and children, but you’ve been in state government since 2004. Based on the track record of the state of Mississippi, why should anyone believe you?

Reeves: I believe in my heart that I was elected, not to try to hide our problems, but to try to fix our problems. We are focusing every day on fixing the challenges that are before us.

Good luck, Governor. You and all those “unborn” children who are about to be “saved” are going to need a lot of it. And so are the Mississippi women who are about to become the state’s newest victims.

 

 

 

 

The Leak

Tuesday, May 3rd, 2022

At 8:30pm Monday night, Politico reporters Josh Gerstein and Alexander Ward dropped the biggest journalistic bombshell of a year filled with journalistic bombshells when they published a leaked first draft of the Supreme Court’s decision to overrule and strike down the 49-year-old Roe v. Wade decision, which made abortion constitutional, and therefore legal, in all 50 states, Puerto Rico and the District of Columbia. This ruling, which, according to experts, should be made official in a month or two, also affirms Mississippi’s ban on abortions after the 15th week. Today, the Supreme Court said the leaked draft is authentic, and Chief Justice John Roberts, calling it an egregious breach of trust and confidentiality, said an investigation would begin immediately to discover how it happened and who is responsible.

It is important to note this is a “First Draft.” There may be more. However, a vote has been taken, and we know the results. Between now and the official ruling, votes can change, but probably won’t.

Supreme Court leaks have happened before. In an ironic twist, the night before Roe v. Wade was announced in January of 1973, a Supreme Court clerk leaked the decision to the Washington Post.

Thinking about the decision and the leak, I would like to offer a few points for your consideration.

First, I can see no sense to this leak, which I think disgraceful and a betrayal of trust. The reason I see no sense to it is because it achieves nothing that would not have been achieved when the ruling is made public in its final form in a month or two. At that time there would still be ample opportunity for it to play out vis-à-vis mid-term politics. So, why now? Who gains what?

Second, right now we have no idea if this was politically motivated. If it was politically motivated, we do not know the motivation behind the person who leaked it. It could have been anyone with access to Court documents. Imagine a clerk leaves the decision lying around, or forgets to turn off a computer, whereupon somebody else decides to cause a little mayhem. The point is anything is possible in our current vacuum of ignorance.

Third, Justice Samuel Alito wrote this first draft of the decision. In Alito’s confirmation hearings he was asked about his previous writings regarding Roe, writings in which he wrote Roe was unconstitutional. He wrote that the Constitution says nothing about abortion and that abortion decisions should be left to the various states. He responded to those confirmation questions by saying he would “put aside” the things he argued when a mere lawyer and “think about legal issues the way a judge thinks about legal issues.” The interesting thing here is the decision he has now authored is a mirror reflection of what he wrote when a “mere lawyer.” He writes now that Roe was “egregiously wrong” from the beginning; that the Constitution says nothing about abortion; and that the matter should be left to the “elected representatives” in the various states. Makes one wonder.

I would note that the Constitution also says nothing about baseball, but on November 9, 1953, the Supreme Court upheld a prior, controversial decision that allowed major league baseball to operate outside of the Sherman Antitrust Act. Maybe Justice Alito would like to overturn that decision, too?

Fourth, this is NOT akin to the Pentagon Papers, as some are arguing. The only thing this has in common with the Pentagon Papers, which documented governmental lying about the Vietnam War, is the method by which we learned of it: a leak. We would never have learned of the Pentagon Papers but for the leak. Without the present leak, we would have learned of this decision in the near term – which we still will. This decision, regardless of whatever you think of it, and I condemn it in the highest possible terms, has nothing to do with governmental lying with respect to national security.

Fifth, At least one Supreme Court Justice, Brett Kavanaugh, lied during his confirmation hearing. When asked about Roe, he responded it was “settled as a precedent,” because “it has been reaffirmed many times over the past 45 years.” Apparently, he did not believe that, or he would not have voted to overturn Roe now. He certainly could have voted to allow Mississippi’s abortion ban after 15-weeks to stand without overturning “settled law.” We may be forgiven for wondering if Justice Kavanaugh lied about a few other things during his confirmation hearing.

A note about “settled law.” Settled law is settled until it isn’t, as in this case. I point out that the Dred Scott decision was once “settled law.”

Sixth, in a tangential development, reporters asked Senator Susan Collins, (R-Maine), her reaction to the leaked decision. You may recall, just prior to Kavanaugh’s confirmation hearing she emerged from a meeting with him and said he’d assured her that Roe is “settled law.” She gave him her vote. Today she was asked about that and said:

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office. Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”

Seventh, Chief Justice Roberts also responded to questions about Roe during his confirmation hearing. When asked if Roe was settled law, he replied, “It is settled as a precedent of the Court, yes.” Roberts did not vote to overturn Roe in this draft decision.

Eighth, this seems one more reason to think we are now living in two countries, one Red, one Blue. Eventually, if we’re lucky, very lucky, we will find common ground when we once again begin electing leaders who aspire to embrace the values, the good ones, upon which America came to be. I don’t know about you, but that time cannot come soon enough for me, if it ever does.

My question is: What happens to this country if it doesn’t?

As Thin As The Skin On A Grape – End Of Week Thoughts On The Teaching Of Slavery In America

Friday, April 29th, 2022

A few years ago, before the horror of the pandemic sent us all scurrying to our respective bolt holes, I toured Boston’s historic Trinity Church that sits smack in the middle of high-brow Copley Square. Massachusetts born and bred, and I’d never visited this historic church that in 1885 the American Architectural Association judged the most important building in America. It still ranks among the AIA’s current top ten list.

In late 18th and 19th century Boston, Trinity was the church of the Brahmin elite. Its pews are all labeled with the names and descriptions of the historic families who occupied them. Some very famous names.

About halfway down the center aisle is the pew that once belonged to the family of Isaac Royall, Jr. (1719–1781). Royall was one of the founders of Harvard Law School, and Harvard adopted his family’s a slave owner and slave trader, and in 2016, 200 years after the founding of the law school, Harvard disassociated the crest from the school, because of the family’s business in the slave trade. Better late than never.


The Isaac Royall House and slave quarters in Medford, Massachusetts.

In 2014, Trinity’s History Committee (Yes, there is one) published the remarkable Trinity Church Boston: Facing the Reality of our Past, which lays out in excruciating detail the sordid history of its membership’s past connection with slavery.

Most of the wealthy people who built Boston owned slaves. Slavery entered the Massachusetts Bay Colony as early as 1638 when a ship the Puritan Governor John Winthrop had sent to the West Indies with Indian captives returned with Africans. In 1645, Winthrop’s brother-in-law, Emanuel Downing, told him “I don’t see how we can thrive until we get a stock of slaves sufficient to do all our business.” Thinking about that, Winthrop realized an opportunity—in Barbados, which had become so focused on producing sugar that it needed to import all other products. At the same time, New England farms were producing a surplus of food. Winthrop saw a fortuitous “fit” for his colony. Massachusetts trade with the British West Indies grew quickly.

Massachusetts got into the slave business in two ways: First, as Winthrop continued to do, by trading captured Native Americans for kidnapped Africans who were considered more desirable; and, second, by participating in the broader Atlantic slave trade.

And thus it began. Molasses to rum to slaves. Boston in the Triangle Trade.

On Tuesday, Harvard University announced it would commit $100 million to study and redress its ties to slavery, which, in addition to Isaac Royall, Jr., are considerable. The money will create an endowed “Legacy of Slavery Fund,” which will continue researching and memorializing its slavery history, working with descendants of Black and Native American people enslaved at Harvard, as well as their broader communities.

In announcing the initiative, Harvard published an unflinching report detailing what Harvard president Lawrence Bacow described as its “profoundly immoral” behavior. In a letter to the university community about the report, Bacow wrote, “I believe we bear a moral responsibility to do what we can to address the persistent corrosive effects of those historical practices on individuals, on Harvard, and on our society.”

Harvard now joins other universities—notably, Brown, Georgetown* and Princeton Theological Seminary—not only wrestling with their participation in the “peculiar institution” of slavery, but also trying to work out how to commit to making amends, both socially and financially.

Why bring up all this disgusting history?

Two reasons. First, people generally associate slavery in America with the South; many are not aware of the North’s disgraceful history of slave trading and ownership.** Most everyone knows George Washington and other southern Founding Fathers were slave owners. But Boston? That’s been swept under history’s rug. Time for that to stop.

This is not to say there were not Bostonians who were aggressively anti-slavery. There were, John Adams and John Hancock for example, but they were outgunned, and greed won out, as it so often does. Massachusetts did not outlaw slavery until 1781, and at its height, there were nearly 5,000 slaves in the Commonwealth.

Second, studying slavery, even just reading about it, is uncomfortable. It is a repugnant and distressful topic. The question is: Does that mean young people should not study it in school?

As far back as 1998, elementary, high school and college educators were having serious discussions online about how to teach this necessary history with sensitivity. In that year, Professor Patrick Manning of Northeastern University wrote, “I expect everyone to be uncomfortable when we talk about slavery and slave trade, but it is essential to experience the various sorts of discomfort brought by slavery and to learn from them.”

High school teacher Karen Needles wrote, “In my classroom, I actually made students lie on the floor in close proximity to the space allotted slaves on the slave ships.” Many teachers on this 1998 List Serve did that.

Educators from this period worked hard to instill in their students an understanding of and respect for the tragedy of slavery and the Middle Passage. Chris Lowe, a professor at Boston University wrote to his colleagues, “From our outreach director here at the African Studies Center at Boston University, Barbara Brown, who works primarily with K-12 teachers, I know that teaching the slave trade appears as a big problem to the teachers she works with. My strong impression is that the main issue may not be Eurocentrism so much as the emotional minefield involved, as the history in question has the potential to provoke feelings of anxiety and shame for students (and teachers) of all racial backgrounds that are hard to cope with, and consequent defensive reactions.”

These profound conversations happened 24 years ago and are not unique. Educators at all levels cared, and cared deeply. Today’s teachers care just as much.

Yet now, 24 years later, Republican Governors in red states have loudly proclaimed their sanctimonious intentions to protect young minds from being infected by such things as the 1619 Project, or Critical Race Theory. These Governors have been signing laws that make it difficult, even illegal, for teachers to probe deeply into matters of race and sex. Their laws specifically prohibit teachers from introducing any concept by which:

(vii)  an individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of the individual’s race or sex;***

Versions of these restrictive laws have been passed in Arizona, Florida, Idaho, Iowa, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Utah and Mississippi.

On page one of South Dakota’s summary of its new law it says the law aims to “protect students and employees at institutions of higher education from divisive concepts.” Keeping in mind that our nation’s history is rife with “divisive concepts,” there might not be much history taught in  South Dakota.

Slavery, the Triangle Trade and the Middle Passage might be the ultimate in “divisive concepts.” Nonetheless, once the kidnapped Africans arrived here, what happened to them? Assuming you agree that how they got here and what happened to them is historically important, how should this uncomfortable, but historically important, history be taught?

Consider Louisiana for a moment.

In 1712, there were only 10 Africans in all of Louisiana (there were a lot more in Boston). In this early period, European indentured servants, submitting to 36-month contracts, did most of the work clearing land and laboring on small-scale plantations. This would change dramatically after the first two ships carrying kidnapped Africans arrived in Louisiana in 1719 and in 1794 with Eli Whitney’s invention of the Cotton Gin.

By 1795, there were 19,926 enslaved Africans and 16,304 free people of color in Louisiana. The German Coast, where Whitney Plantation is located, was home to 2,797 enslaved workers. The United States outlawed the Atlantic slave trade in 1807, but that did not stop the domestic slave trade. Over the course of the nineteenth century, the population of enslaved Africans skyrocketed. Someone had to pick all the cotton, which made the south rich. Just before the Civil War in 1860, there were 331,726 enslaved people and 18,647 free people of color in Louisiana.

Should the children of Louisiana not be taught this? Should they not be taught the political and economic underpinnings by which slavery grew in their state? Should they not discuss and argue it in class, led by teachers, like the ones quoted above, who have the objectivity, training, honesty and dedication to open their minds to what lies beyond?

Studying this stuff is going to make them, and their parents, uncomfortable. If it doesn’t, we have a bigger problem than ignorance. But teachers, staring at the penalties written into these vague, new laws, are now thinking twice about what and how they teach. This is a tragic development in education, and undervalues the curiosity and capacity for learning in today’s youth.

I wonder what those educators writing each other back in 1998 would think of all this? In a moment of prescience, Professor Lowe wrote, “There are probably political dimensions to this a la “culture wars” stupidities as well.”

If we Americans are too fearful to let our children learn our history, both the good and the horrific, then the moral and intellectual foundation of our future leaders will be as thin as the skin on a grape.

 

*In 2021, the Jesuit conference of priests announced their own $100 million commitment to be used for racial reconciliation and to benefit the descendants of 272 enslaved people sold in 1838 to pay off the debts of Georgetown University. And Brown University is examining its role, because Rhode Island’s involvement in slavery was ever greater than that of Massachusetts.

**In 2005, the New York Historical Society opened its fascinating “Slavery In New York” exhibit detailing New York’s deep involvement with slavery, just like Boston’s. I toured the exhibit and was positively stunned.

***All the new laws have a version of this sub-paragraph. It’s almost as if they were all written by the same person.

The Sunshine State Goes Darth Vader Dark

Saturday, April 23rd, 2022

In 1967, 55 years ago, the Walt Disney World Company proposed building a recreation-oriented development on 25,000 acres of property in Central Florida. The property sat in a remote area of Orange and Osceola Counties, so secluded that the nearest power and water lines were 10-15 miles away. Neither Orange nor Osceola County had the services or the resources needed to bring the project to life.

In that year, the Florida State legislature created a special taxing district for Disneycalled the Reedy Creek Improvement District (RCID)that would act with the same authority and responsibility as a county government.

Walt Disney World then moved ahead with its vision to turn 38.5 square miles of largely uninhabited pasture and swamp land, into a global destination resort that today hosts millions of visitors every year.

The Special Taxing District designation gave the Disney company significant tax benefits amounting to tens of millions of dollars every year. However, those special tax benefits came with special upkeep responsibilities.

The new legislation said Walt Disney World would be solely responsible for paying the cost of providing typical municipal services like power, water, roads, fire protection etc.

Local taxpayers, meaning residents of Orange and Osceola County, would not have to pay for building or maintaining those services.

That all changed yesterday when Governor Ron DeSantis signed legislation revoking Disney’s Special Taxing District designation. Now, Disney will be paying taxes it did not up to now have to pay. It will also be relieved of having to  provide the municipal maintenance services it has provided for the last 55 years for Orange and Osceola Counties, whose combined population is about 1.8 million. With Disney and its 80,000 Floridian employees no longer picking up the bill, the responsibility for all those municipal services, including Police and Fire, now falls to the counties. Property taxes (the way municipalities raise revenue in Florida) will  increase substantially.

Orange County Mayor Jerry Demings is worried. “My primary concern is about any particular cost shifts that are mandated by the state to local governments,” he said in an interview with Orlando’s News 6. He should be worried.

Digging deeper, Sarah Rumpf of Mediaite notes repealing Disney’s status means that Orange and Osceola Counties, in addition to municipal services, are now responsible for Disney’s $2 billion bond debt—a 20% to 25% tax hike costing $2,200 to $2,800 per family of four. And if that’s not enough, since Disney’s RCID pays more and has better employee benefits than the Florida government, county workers taking on the jobs currently performed by Disney will likely have to take pay and benefit cuts. Yikes!

In another little twist, since both counties voted for Joe Biden in the 2020 election, Machiavellian DeSantis has found a new and improved way to stick it to opponents.

The creation, passage, signing and enactment of this legislation happened in four days.

The question is Why? Why all this political steamrolling? The answer is because Governor DeSantis, who brooks less dissent than Caligula, is upset because Disney’s CEO Bob Chapek had the daring temerity to criticize what has come to be known as the Governor’s “Don’t Say Gay” bill. Chapek even went so far as to apologize to his 80,000 employees for not condemning the bill earlier and more strongly.

The bill, officially known as the Parental Rights in Education bill, would ban classroom discussion about sexual orientation or gender identity in kindergarten through third grade; lessons on those topics in other grades would be prohibited unless they are “age appropriate or developmentally appropriate,” a vague threshold, indeed. And parents would be allowed to sue over violations. It doesn’t take the Oracle of Delphi to see where this is headed.

The “Don’t Say Gay” bill is DeSantis throwing seasoned red meat to his right-wing carnivores in Florida. It is DeSantis showing his many followers exactly what he thinks of the LGBTQ+ population. It is discriminatory and downright bigoted. But in Florida, it resonates, and the Governor’s lapdog legislature is happy to walk three paces behind carrying the bags.

In the immortal words of that great American salesman and inventor Ron Pompeo, “But wait. There’s more!”

In response to the 2020 census, the Florida legislature was required to draw up new legislative maps. It did, and the gerrymandered result gave Florida Republicans a guarantee of two additional seats in the US Congress. However, this was not good enough for Governor DeSantis, who created his own maps, which guaranteed four additional seats. In DeSantis’s version, Republicans would be expected to win 20 of the state’s 28 congressional districts, a four seat increase from the 16 they hold now. The Republican-dominated Legislature, in happy subservience, approved the Governor’s maps, which he signed into law three days ago. In addition to giving the Republicans four more seats, the new maps eliminate two currently held by Black Democrats, one of whom is Val Demings, who is challenging Marco Rubio in next year’s senate election. In the game of Pool, we’d call this an Elegant Combination.

The map is expected to draw a near-immediate court challenge from Democratic-aligned groups that contend the proposal violates federal and state law because it dismantles and diminishes those two seats currently held by the Black Democrats. Recognizing Democrats would challenge in court the new maps, Republicans, planning ahead, even included in the final bill $1 million to pay for that fight. Trouble is, it’s not clear if that legal battle can be resolved before June, when candidates must qualify for the ballot.

If all this were real warfare instead of the political kind, we would say Governor DeSantis and his Republican army had just won a Battle of Annihilation.