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FOCUS: America May Be Nearing the End of the Roe Era |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=27142"><span class="small">Garrett Epps, The Atlantic</span></a>
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Thursday, 13 February 2020 13:25 |
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Epps writes: "Next month, the Supreme Court will hear a high-stakes abortion case, June Medical Services v. Russo. I would summarize the question presented as Now that Justice Kennedy is gone at last, do his old precedents still apply?"
Supreme Court. (photo: Yuri Gripas/Reuters)
America May Be Nearing the End of the Roe Era
By Garrett Epps, The Atlantic
13 February 20
June Medical Services v. Russo presents the Supreme Court with the power to green-light extremely restrictive abortion laws.
 ext month, the Supreme Court will hear a high-stakes abortion case, June Medical Services v. Russo. I would summarize the question presented as Now that Justice Kennedy is gone at last, do his old precedents still apply?
June Medical Services presents the identical issue as a 2016 case, Whole Woman’s Health v. Hellerstedt. In Hellerstedt, the Court struck down a Texas statute that—supposedly in the name of health—would have closed half of the clinics in Texas that offer abortion services. The Fifth Circuit, dominated by conservative judges, had held that states that say abortion-related laws provide health benefits need not show that they actually do provide them. Thus, the law’s requirement that abortion providers have admitting privileges at nearby hospitals could go into effect, even though this was basically irrelevant to patient safety. Similarly, the state could require abortion facilities to qualify as ambulatory surgical centers, even though the multimillion-dollar cost of attaining that status results in no additional safety for a woman getting an abortion there.
In a 5–3 decision written by Justice Stephen Breyer, the court majority said that Roe and its successor, Planned Parenthood v. Casey, “require that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The facts as found in the district court showed that “there was no significant health-related problem that the new law helped to cure,” so the law was invalid.
Breyer was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor—and Anthony Kennedy. (Because Justice Antonin Scalia had died that winter, only eight justices were serving on the Court at the time.) Hellerstedt was the first Supreme Court decision in nearly a generation that struck me as real case law, providing a rule that lower courts could apply, rather than incoherent ad hoc rationalization. The rule it announced, if properly applied, would protect the right to choose abortion from most of the “health” statutes that red-state legislatures have passed since 2010.
But the game changed: Republicans had already blocked the nomination of Merrick Garland. Then Donald Trump took office and gave that seat to Neil Gorsuch. Kennedy resigned, and Brett Kavanaugh, who seems skeptical of abortion rights, was confirmed to the court in a right-wing coup de main. Louisiana, meanwhile, had enacted a statute that was in all respects identical to the Texas law invalidated in Hellerstedt. A district court heard detailed evidence of its effects on the availability of abortion and applied Hellerstedt to strike it down.
Not so fast, said the Fifth Circuit. This case is totally, completely, unquestionably, definitely, and in every way different from the one in Texas. Why? Well, because in this case the doctors supposedly hadn’t really tried to get admitting privileges (the district court heard evidence that they had) and so the law was a-okay. (Besides, look at a map—Louisiana is a whole different shape than Texas.) The barely concealed subtext was: Kennedy’s gone, we own the courts now, and all that silly “precedent” is void.
The point of this outright defiance, of course, was to require the Supreme Court to take up the case and thus allow the justices who had voted to uphold the earlier Texas law (Clarence Thomas, Samuel Alito, and Chief Justice John Roberts) to join the new appointees, Gorsuch and Kavanaugh, to reverse or neuter Hellerstedt, and maybe even Roe and Casey.
But some of these justices (especially Roberts) may not be cynical enough to reverse a four-year-old precedent solely because of two new appointments.
Louisiana has thus chosen to present the Court with a new argument—a sort of off-ramp that would allow the majority to dodge the Hellerstedt precedent and give the green light to abortion-restricting laws across red America. Louisiana is mounting an attack on doctors’ “standing to sue.” All the Court has to do is say that doctors who provide abortions to pregnant women can no longer go to court to challenge regulations that would put them out of business.
This move involves what the late Ella Fitzgerald might have called “the dipsy doodle” —when words suddenly mean their opposite. Louisiana (joined now by the Trump administration) argues that the physician-plaintiffs in June Medical Services would not really be injured by a law that would put them out of business. The injury, if any, would be to pregnant women, Louisiana and the Solicitor General argue. Thus the doctors are trying to exert “third-party standing” (disfavored in federal litigation) by asserting their patients’ rights rather than their own. And the facts, Louisiana claims, are even worse than that: Abortion providers are not kindly doctors at all—they are mercenary exploiters of pregnant women, and they ought to be viewed as women’s enemies.
“Abortion providers and their patients have an obvious conflict in the inevitable tradeoff between cost and safety,” the state argued in its brief: “Women have an interest in ensuring their own health and safety when they choose to obtain an abortion … But plaintiffs’ interest is to reduce compliance costs and government oversight while providing as many abortions as possible.”
Trump’s solicitor general, Noel Francisco, charged in an amicus brief that “the law creates compliance costs without any personal benefits for abortion providers,” giving them “every incentive to see the law invalidated.” Women, meanwhile, “may see [the law’s] benefits as quite significant.” This means that doctors shouldn’t be allowed to speak for patients. If the Court agrees, the case goes away, and suing to block similar laws becomes much harder—without creating the negative publicity of overturning Hellerstedt.
There are a few problems with this argument. First and most important, the established law of “standing” requires only that a plaintiff him- or herself have a “particularized injury” that is “traceable” to the defendants’ actions and “redressable” by a federal court order. As Stephen Vladeck of the University of Texas and Leah Litman of the University of Michigan pointed out on SCOTUSblog last week, the plaintiffs in June Medical Services have injury to spare: Under the Louisiana law, if they continue to provide abortions without admitting privileges, they could be fined up to $4,000 per violation and imprisoned for up to two years, and lose their medical licenses.
No sane person would question that criminalizing previously legal professional conduct creates an “individualized injury” to the professionals. That’s not “third-party standing.” It’s just good old regular standing, and it ought not to be in question.
The second problem is that it asks the Court to decide the case before hearing it. The question is whether the law advances women’s health; the state is asking the Court to assume that it does. That is, to put it politely, intellectually dubious.
The third problem is that it is asking the Court to create a new morality element of standing for abortion providers and only abortion providers. Here, the doctors are engaged in a practice of medicine that is, under the past half century of Supreme Court precedent, wholly legal. But, the state and the Trump administration now argue, abortion providers should not have standing anymore, because, well, we all know that they are really bad, immoral people who kill babies and fool women to allow them to kill more babies, and they do it for filthy lucre, and they no more belong before the Court than pedophiles or sexual predators. Louisiana and the federal government want not just to win the case but to mark the other side with a permanent scarlet A.
The Court respectfully hears cases from tobacco death merchants, corrupt public officials, and corporate human-rights offenders—as it should. There is no special “we don’t like your kind” doctrine of standing, and there shouldn’t be.
For all these reasons, third-party standing offers only illusory refuge from the grim truth that the Fifth Circuit has raised a judicial middle finger to the Court. If the five conservative justices let the lower court manipulate them this time, other conservative lower-court majorities will be back again and again, the appellate tail wagging the meek Supreme Court dog.
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RSN: When CNN Introduces Bernie-Bashers Only as "Former," CNN Is Lying to You |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=14693"><span class="small">Jeff Cohen, Reader Supported News</span></a>
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Thursday, 13 February 2020 12:10 |
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Cohen writes: "It's a 'gentleman's' agreement between
elite media and their establishment guests - a courtesy major news
outlets bestow upon former officials who get to pontificate and
editorialize about today's events with no worry they'll be identified by
their jobs TODAY."
Sen. Bernie Sanders. (photo: Getty)
When CNN Introduces Bernie-Bashers Only as "Former," CNN
Is Lying to You
By Jeff Cohen, Reader Supported News
13 February 20
 NN and CBS do it. NPR and PBS do it. They all do it.
It’s a “gentleman’s” agreement between elite media and their establishment guests – a courtesy major news outlets bestow upon former officials who get to pontificate and editorialize about today’s events with no worry they’ll be identified by their jobs TODAY.
On Wednesday night, CNN’s Don Lemon hosted ubiquitous Bernie Sanders-basher Jim Messina – solo, without an opposing view – to slam Sanders and his Medicare for All proposal.
Messina was introduced and repeatedly identified by only his former positions: “Former Obama Campaign Manager” and “Former Deputy Chief of Staff, Obama Administration.”
As is typical, viewers weren’t told what Messina’s current job is – perhaps far more relevant information than his positions years ago.
Messina is now a corporate consultant. He is CEO of The Messina Group, whose website boasts corporate clients such as Amazon’s pharmaceutical subsidiary PillPack, Google, Uber, Delta – and the slogan: “Unlocking Industries So Businesses Can Win.”
If properly introduced, it would have been no surprise to CNN viewers that a corporate consultant would malign Sanders, the most popular anti-corporate politician in recent US history.
Host Lemon also neglected to inform viewers that since leaving Team Obama, Messina has been paid handsomely to elect conservative politicians across the globe, including Tory Prime Ministers David Cameron and Theresa May in Britain, and Prime Minister Mariano Rajoy in Spain. Messina’s company website features an image of Cameron next to the banner: “Campaigning for candidates we believe in.”
In U.S. corporate media, such misidentification is a hoary tradition, and a dishonest one. More relevant to news consumers in judging the quality of information from a former government official would be the current employment and entanglements of that ex-official.
In the months after the Chinese government massacred students in Tiananmen Square in 1989, no voice in U.S. media was more prominent or ubiquitous in apologizing for China than Henry Kissinger, usually identified only as “former Secretary of State.” Consumers of news were almost never told that Kissinger at the time was a consultant to corporations doing business in China – and the head of China Ventures, a company engaged in joint ventures with China’s state bank.
When healthcare reform was being hotly debated in 1993-1994, NPR presented point-counterpoint face-offs between a former GOP congressman and a former Democratic congressman, both of whom were quick to deride the proposal in Congress for a single-payer system of government-provided health insurance. NPR didn’t tell its listeners that both of its “formers” were current lobbyists or consultants for private healthcare corporations.
A lot of the corruption in Washington – the kind Sanders and Elizabeth Warren criticize – stems from former officials, whether Democrat or Republican, leaving government to work as consultants or lobbyists for greedy private interests. Mainstream news outlets work hard to look away from this corruption, and one way they do so is by dutifully identifying their “experts” only as formers.
Anita Dunn will always be the “former Obama White House Communications Director” – and in that job, she assisted first lady Michelle Obama’s anti-obesity campaign. After leaving the White House, Dunn became a consultant for food companies seeking to block restrictions on sugary food ads targeted toward children. She also consulted for TransCanada in its push for the controversial Keystone XL pipeline. Today, Dunn is a senior adviser on Joe Biden’s presidential campaign.
A warning to news consumers: When CNN or NPR or PBS introduces a guest only as a “former” official, you are being lied to more often than not.
Jeff Cohen was an
associate professor of journalism at Ithaca College and founder of the
media watch group FAIR. In 2011, he co-founded the
online activism group RootsAction.org. He is the
author of Cable
News Confidential: My Misadventures in Corporate Media.
Reader Supported News is the Publication of Origin for
this work. Permission to republish is freely granted with credit and a
link back to Reader Supported News.
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Trump and Barr Are Out of Control |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=52420"><span class="small">Bob Bauer, The New York Times</span></a>
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Thursday, 13 February 2020 09:33 |
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Bauer writes: "The resignation of a Justice Department prosecutor over the sentencing of Roger Stone is a major event."
Roger Stone arriving at a court in Washington last November. (photo: Yara Nardi/Reuters)
Trump and Barr Are Out of Control
By Bob Bauer, The New York Times
13 February 20
The prosecutor who quit over the Roger Stone sentencing is sending a powerful message about political weaponization.
 he resignation of a Justice Department prosecutor over the sentencing of Roger Stone is a major event. The prosecutor, Jonathan Kravis, apparently concluded that he could not, in good conscience, remain in his post if the department leadership appeared to buckle under White House pressure to abandon a sentencing recommendation in the case of Mr. Stone, the associate of President Trump who was convicted of obstructing a congressional inquiry into Russian meddling in the 2016 election.
Three of his colleagues quit the Stone case but remain with the department: Mr. Kravis left altogether. Even though the president for years has derided federal law enforcement officials, accusing them variously of conflicts of interest and criminality and weakness in not pursuing prosecution of his political opposition, Mr. Kravis’s is the first resignation in the face of these assaults.
Dramatically forceful responses to Mr. Trump’s assaults on rule-of-law norms have been all too rare. A resignation can set off an alarm bell for an institution whose failings an official might be unable to bring to light in no other way, or as effectively. It upholds rule of law norms in the very act of signaling that they are failing. It makes its point with power and transparency, and stands a chance of rallying support from those who remain in place and compelling other institutions like the press and Congress to take close notice.
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The Corndogs and Down Vests Are Over. The Democratic Primary Has Entered the Hot Zone. |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=11104"><span class="small">Charles Pierce, Esquire</span></a>
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Wednesday, 12 February 2020 14:01 |
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Pierce writes: "It's getting real coming out of New Hampshire, as Bernie Sanders faces a stern test from Pete Buttigieg and Amy Klobuchar, Elizabeth Warren's campaign is muddled, and Joe Biden's is sinking fast."
Sen. Bernie Sanders. (photo: Drew Angerer/Getty)
The Corndogs and Down Vests Are Over. The Democratic Primary Has Entered the Hot Zone.
By Charles Pierce, Esquire
12 February 20
It's getting real coming out of New Hampshire, as Bernie Sanders faces a stern test from Pete Buttigieg and Amy Klobuchar, Elizabeth Warren's campaign is muddled, and Joe Biden's is sinking fast.
hings come at you fast.
Not five minutes after Bernie Sanders had finished his victory speech Tuesday night, and not 10 minutes after Sanders had bum-rushed Pete Buttigieg off the networks in mid-platitude, the essential Jon Ralston dropped this little item from Nevada onto the electric Twitter machine. From the Nevada Independent:
Vermont Sen. Bernie Sanders would “end Culinary Healthcare” if elected president, according to a new one-pager the politically powerful Culinary Union is posting back of house on the Las Vegas Strip.
The new flyer, a copy of which was obtained by The Nevada Independent, compares the positions on health care, “good jobs” and immigration of six Democratic presidential hopefuls who have come to the union’s headquarters over the last two months to court its members. But the primary difference outlined in the document, which is being distributed in both English and Spanish, is in the candidates’ positions on health care, taking particular aim at the Vermont senator over his Medicare-for-all policy, which would establish a single-payer, government run health insurance system.
The flyer says Sanders, if elected president, would “end Culinary Healthcare,” “require ‘Medicare For All,’” and “lower drug prices.” The language it uses to describe the position of Massachusetts Sen. Elizabeth Warren, who also supports Medicare for all after a transition period, is much gentler: “‘Medicare for All,’” “replace Culinary Healthcare after 3-year transition or at end of collective bargaining agreements,” and “lower drug prices.”
This is a huge and diverse union and it does not play games.
The union, considered an organizing behemoth in the Silver State, has been known to tip the scales in elections in the past. Though the 60,000-member union has not yet decided whether it will endorse in the Democratic presidential primary, the flyer appears to be part of a coordinated campaign ahead of Nevada’s Feb. 22 Democratic presidential primary and shows the union will not be sitting idly by, with or without an endorsement. A spokeswoman for the Culinary Union said the flyer is also going out to members Tuesday night via text and email.
Shit starts getting real right now.
The New Hampshire results were a triumph for the Comfy Shoes—Don't Scare The Horses faction within the field of candidates. Yes, Joe Biden, that faction's presumed avatar, is sinking without a trace. And, yes, Bernie Sanders won the primary, but just barely, and over Pete Buttigieg, who treated us to the following marshmallow waffle in his post-election speech.
This is the powerful majority we’re gathering together—it is a coalition of addition and not subtraction. A movement reaching into church basements and barbershops, into universities and union halls, carrying the same values everywhere we go...We’re not going to defeat the most divisive president in modern history by tearing down anyone who doesn’t agree with us 100 percent of the time. We also know that we can’t defeat such disruptive president by relying on the same Washington framework and mindset...This election isn't just historic, it's urgent. And tonight, we look forward knowing this is our one shot not just to end the era of Donald Trump, but to launch the era that must come next.
I am inspired by this ... to take a nap. However, it sounds wonderful, especially in the studied Obama cadences that have become increasingly obvious every time Buttigieg takes to a microphone.
Compare that to the night's other big winner, Amy Klobuchar, whose third-place finish is, in fact, being wildly overpraised by the punditariat. Klobuchar's entire surge was propelled by her willingness to take a bite out of Buttigieg in last Friday's debate, which was the key to what is now relentlessly termed her "strong performance" in that debate. That little bit of vinegar put a tart edge on her otherwise soft-focus, "you've got a home with me" pitch down the New Hampshire homestretch. I will grant you that a fifth in your backyard and a third in New Hampshire does not constitute the juggernaut we're hearing about on television, but Klobuchar's combination of tough-love snark and carefully cultivated folksiness, like a grandma's sampler onto which is stitched, "Get Your Fcking Act Together, People!" genuinely sold her to the late-deciding duck-boots up here.
Which brings us to Senator Professor Warren who, God love her, began her speech with the following:
Results are still coming in from across the state, but right now it is clear that Senator Sanders and Mayor Buttigieg had strong nights. And I also want to congratulate my friend and colleague Amy Klobuchar for showing just how wrong the pundits can be when they count a woman out.
SPW gave her speech early, when it already was clear that the night wasn't going her way. But she wasn't getting the hell out of Dodge, the way Biden did. She stuck around for more than an hour until the now-famous selfie line finally was cleared. But beginning her speech the way she did is both a tribute to her innate decency and a window into why her campaign seems stuck in the mud. I don't know who is advising her, but this strategy of refusing to take the fight to the opposition right in front of her is not working.
She is not running against either Donald Trump or the malefactors of great wealth at the moment. She's running against Sanders and Buttigieg and Klobuchar and Biden. And whoever it was who suggested leaking a staff memo in which were made all the criticisms of her immediate rivals that SPW should have been making on the stump and on the debate stage all along deserves a gold medal for passive-aggressive campaigning, as well as a corresponding decrease in pay. Who "stays in the fight" by memo? That bungled tactic managed in one swoop to undermine her reputation for straight talk and her attempt to cast herself the "unity candidate."
Warren still has plenty of time to right things. She has money and a campaign infrastructure that's been in place for months. And she's still a strong candidate. But, as much as she may not like it, she's running in a Democratic primary against other Democrats, and her campaign should start behaving accordingly. In her election night speech, Klobuchar began by saying, "Hello, America. I'm Amy Klobuchar, and I will beat Donald Trump." And she wrapped things up with a conclusion that humbly suggested what an underdog she is against her powerful opponents.
I don’t have that big bank account. (Hi, Joe!) I do not have the big-name of some of the other people in this race. (Hi, Bernie and Liz!) I am not a newcomer with no political record. (What up, Pete?) What I did is get things done.
Her speech made a CNN panel positively giddy. Meanwhile, over on MSNBC, Brian Williams looked at SPW’s endless selfie line and called it, “lonely.” I try not to think too hard about how certain minds work.
The point is that we have left the corndogs and down vests behind now. The campaign is moving into the hot zone with stunning speed. You adapt, or your campaign is bleached bones in the desert, somewhere south of Elko.
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eighing the relative racism of different candidates in the hopes of arriving at the choice as to who will do the least damage is nothing new to black voters. In fact, it’s a big reason why Mike Bloomberg and his bottomless coffers have been attracting black folks concerned first and foremost with ousting Donald Trump, who became president by appealing to white resentment. 
