Corrected: Echoes of a shameful legacy.
July 15, 2022
Well, for the second time in two weeks, I am issuing a corrected version of the newsletter due to a factual error. I am attributing that fact to Covid. That’s my story and I am sticking to it. The audio version is included with the first newsletter (mistakes and all).
State GOP legislators and prosecutors are attempting to extend the reach of their anti-abortion legislation across state lines. These anti-choice “fugitive laws” echo a shameful chapter in US history. As I noted earlier this week, Texas legislators are threatening to charge law-firm partners across the US with felonies if their firms pay travel expenses for Texas employees seeking abortions outside of Texas. And a Republican Senator from Oklahoma just blocked a bill in the US Senate that would protect the freedom to travel across state lines to seek an abortion. See The Hill, GOP senator blocks bill to protect interstate travel for abortion.
The efforts of states to criminalize the out-of-state conduct of their citizens and citizens of other states harkens back to one of the darkest chapters in our nation’s history. In 1850, Congress passed the Fugitive Slave Act that allowed owners of enslaved persons to pursue so-called “fugitive slaves” across state lines. To enforce that shameful mandate, the Fugitive Slave Act included the following national enforcement mechanisms:
Imposed a $1,000 fine on officials anywhere in the US who failed to enforce an arrest warrant against a person escaping from slavery;
Imposed a $1,000 fine on anyone in the US who provided food or shelter to a person escaping from slavery;
Authorized a “bonus” to officers anywhere in the US who captured a person escaping from slavery;
Granted a $10 “bonus” to specially authorized “commissioners” who ruled that a captured person was a “fugitive from slavery.” (The commissioners received only $5 if they ruled that the captured person was not a “fugitive from slavery.”)
The Fugitive Slave Act of 1850 is not a perfect analog to the GOP efforts to enforce extraterritorial reach over women’s reproductive choices, but it is directionally the same. Anyone who helped a person escape from slavery was subject to a fine, like the partners in law firms threatened with a felony if they pay travel expenses to employees seeking an abortion out of state. The “bonuses” to officers and commissioners for capturing and convicting persons escaping slavery are similar to the “bounty” provisions of SB-8 in Texas that grant a $10,000 reward for informing the state that a woman had an abortion.
The most abhorrent aspect of the extra-territorial reach of anti-abortion laws is that they treat women as property of their home state, controlling their conduct anywhere in the US—similar to the extra-territorial reach of the Fugitive Slave Act. No similar laws apply to male citizens for conduct outside their home state. The Supreme Court has created chaos by abolishing federal protection for abortion. Like the Dred Scott decision, Dobbs tears at the fabric of our union.
In a similar vein are the efforts of states to resist the authority of the federal government to mandate life-saving abortions in emergency rooms of hospitals receiving federal reimbursement for services. See NYTimes, Texas Sues Biden Administration Over Access to Emergency Medical Abortions. The former confederate states are again attempting to assert their independence from federal supremacy—a dangerous proposition with a shameful legacy. The suit will undoubtedly end up before the US Supreme Court, but not before a stop in the arch-conservative Fifth Circuit Court of Appeals.
That said, a reader (Bruce C.) reminded everyone in the Comments section yesterday of the following:
All women need to know their rights to emergency medical care, including abortion procedures, take precedence in emergency life-threatening situations over any state laws or regulations to the contrary. When state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted. Please read this release from HHS: HHS Announces Guidance to Clarify that Emergency Medical Care Includes Abortion Services.
The cruel overreach of the anti-choice fugitive laws will lead to a backlash that will ultimately reverse Dobbs and restore women’s rights to autonomy and control over reproductive choices. But only if we mobilize around this issue as never before.
Secret Service erased all text messages from January 5th and 6th after receiving a request from January 6th Committee.
In a world teeming with conspiracy theories, we must guard against the contagion of seeing conspiracies in innocent coincidences. But the revelation that the Secret Service deleted all text messages sent on January 5th and 6th AFTER the January 6th Committee requested those messages raises a strong inference of misconduct by the Secret Service. See CNN, Secret Service erased text messages from January 5 and 6, 2021 -- after oversight officials asked for them, watchdog says.
The actions of the Secret Service on January 6th were already suspect—as demonstrated by the fact that Mike Pence did not trust the Secret Service enough to get in a car driven by a Secret Service agent. Pence claimed he wanted to avoid the optics of the Vice President fleeing the Capitol, but others said that Pence (and his advisors) believed the Secret Service would “fly Pence to Alaska.” See HuffPo, Pence Rebuffed Secret Service Plan To Leave Capitol, Fearing A Halt To Electoral Vote Duty. In other words, Pence worried that the Secret Service was part of the plot to stop the electoral count.
The Secret Service claims that the messages were “lost as a result of a “device-replacement program.” That claim is laughable and insulting. Texts do not reside only “on devices,” they reside on computer servers that are regularly backed up. If the Secret Service is incapable of backing up its servers daily, everyone in the Secret Service should be fired. Everyone.
Imagine if you walked into an Apple store and said, “I want to buy a new MacBook,” and the salesperson said, “Sure, but that means that we will wipe out all of your emails, pictures, texts, and documents.” Any reasonably informed consumer would say, “But those files all exist in iCloud; why are you saying they erased simply because I am getting a new device?” The answer, of course, is that getting a new device has nothing to do with erasing documents backed up to computer servers.
Someone in the Secret Service is lying about the existence of the text messages or has deliberately erased multiple copies of the texts—an extraordinarily difficult task. Not to worry; copies will be found. As with all information, there is always more than a single copy of the texts. Computer servers are backed up daily on a rotating basis using different backup tapes. If someone really “erased the texts,” they erased multiple copies of the texts on multiple backup tapes.
I do not want to be a conspiracy theorist, but a reasonable supposition is that the Secret Service is concealing the illegal conduct of some of its agents on January 6th. Don’t believe me? Consider this: Washington Post: Secret Service officer placed under investigation after accusing lawmakers of treason on social media. Per the Post, the suspended Secret Service Officer posted the following on social media on January 6th and 7th:
“Here's to the Peaceful Transition of Power" with President Donald Trump shaking hands with himself in the Oval Office. A day after the siege on the US Capitol, a comment was posted using the officer's name that criticized attempts to remove Trump from office and accused lawmakers who accepted the electoral college vote of “committing treason on live tv.” He wrote, “Good morning patriots! Yesterday started out beautiful and as usual Antifa soured the mood and attacked police and an Air Force veteran was murdered. It's OFFENSE time finally!!”
If the DOJ hasn’t already opened a criminal investigation of this obvious effort to obstruct justice (and possibly cover up the agency’s assistance in the coup), everyone at the DOJ Main Justice should be fired, too. Everyone. The Secret Service felt comfortable erasing the texts because they believed the DOJ would do nothing. That belief is rooted in reality. Let’s hope Merrick Garland addresses the American people on Friday to announce an investigation.
I hope my views on this topic are spectacularly, embarrassingly wrong. The thought that the Secret Service participated in a plot to keep Trump in power is frightening. But we need to know the truth.
Manchin kills any chance of reconciliation bill.
Read this: WaPo, Manchin says he won’t support new climate spending, tax hikes on wealthy. We can’t blame Joe Biden for inaction unless we give him a majority in the Senate—which he currently does not have.
As we head into the weekend, I expect a spate of doomsday articles copycatting the NYTimes front-page treatment of its most recent polling about the midterms with Sienna College. I won’t go into detail because I think the poll is essentially an excuse for journalists to write about their pet theories on the current state of politics.
Anyone who fails to see that this moment is unlike any in the last hundred years must look up from their smartphone and spreadsheets to engage in a few moments of reflection. The January 6th hearings are extraordinary. The ruling in Dobbs is extraordinary. The confluence of the “concealed carry” ruling in Bruen with mass killings in Buffalo, Uvalde, and Highland Park is extraordinary. The dissolution of the separation of church and state in Bremerton is extraordinary. The effort of GOP legislators to turn women into fugitives is extraordinary.
Any journalist who ignores those facts to write a story that views the midterms through the lens of gas prices and Joe Biden’s favorability ratings is incurious, lazy, and in the wrong profession. We are living in a moment like no other in the last century. Journalists ignore that truth at their peril.
To be clear, I am not saying we are guaranteed to win in 2022 and 2024. We are not. But let’s at least acknowledge that the American people are not unidimensional cogs whose political thinking starts and ends with “Gas prices high, vote for Republican.” Please give us a little more credit than that.
So, as always, I urge you to focus on the task at hand and avoid excessive worry about headlines crafted to maximize clicks. Your work is real; headlines are information for consideration, nothing more, nothing less. Stay strong, get some rest over the weekend, and show up Monday morning ready for duty!
Talk to you on Monday.
P.S. Long story short, I had a rebound infection of COVID. I am hopeful I will finally test negative this weekend (after 19 days of testing positive!). I am generally feeling better except for the occasional overwhelming urge to take a nap mid-sentence. Through isolation, diligent masking, and the extraordinary care provided by my wife, we were able to contain the infection to the two members of my family originally infected. Be careful out there!
Thank you for calling out journalists who go for the easy, sloppy, story on gas prices, inflation, and polls. Shame on them for missing one of the most important moments in modern history- the reoccurrence of Fascist thought and action to suppress democracy and free will, civil rights, and the law. The “‘secret service” has become just that; service to an unjust tyrant that hates losing and is willing to bring down an entire democracy and country to satisfy his ego. Sound familiar? Germany 1931. Thank God Pence had the insight to resist getting in the car. I have much more respect for him now than ever before. Bravo to the embarrassed former Trump groupies who testified that it was an armed rebellion to deny the peaceful transfer of power. WAKE UP print media. You are missing THE STORY!
I am beyond angry that Texas AG Paxton has filed a suit against the Biden administration for it's enforcement reminder about the EMTALA. I wrote about the EMTALA in yesterday’s comments to that day’s Newsletter edition. Robert has referred to those comments in today’s Newsletter. They were written before Texas filed suit to block HHS enforcement of EMTALA provisions requiring emergency medical care including if necessary abortions in life-threatening medical crises.
I have written letters to my federal Congressional Representatives and Senators, President Biden, HHS Secretary Xavier Becerra, and also as a letter to the editor of our local paper. All of those communications point out that the recent HHS enforcement reminder on the EMTALA reflects no new rules, changes, or enforcement mechanisms to legislation originally passed in 1986 and enforced as federal law since then. It is also entirely consistent with present Texas anti-abortion restrictions that also provide exceptions for medical emergencies for patients who may require abortion care when their life is at risk without that care.
I have requested of Biden and Secretary Becerra that HHS conduct EMTALA compliance audits of medical facilities and hospitals to ensure they have written guidelines and training programs for affected emergency treatment staff in place. Both of those are EMTALA requirements. If those are found deficient, appropriate enforcement actions should be taken.
The following is the text of my letter to the editor of our local paper. I urge others to write similar letters to their own local papers and also communicate the need for HHS EMTALA compliance audits to appropriate legislators, the White House, and Secretary Becerra. No woman should be denied essential medical care in a life-threatening emergency. The idea of withholding such care is in my view beyond cruel and becomes medical terrorism.
My letter to the editor:
Providing Medical Care in Life-threatening Emergencies Is Not a Crime
Regardless of anyone's view on the issue of abortion, it should be understood that even Texas SB8 anti-abortion legislation provides exceptions for cases in which an abortion would save the pregnant patient’s life or prevent “substantial impairment of major bodily function."
Providing essential medical care in cases of a life-threatening emergency is what the Emergency Medical Treatment and Labor Act (EMTALA) passed by Congress in 1986 mandates. The recent enforcement reminder sent by HHS to medical facilities introduced no new rules or enforcement mechanisms, it was a reminder of the provisions in existing federal law passed and in place since 1986.
The lawsuit filed this week by Texas AG, Paxton, against the Biden administration is ill-advised and demonstrates the cruelty toward women's healthcare rights by the current Abbott administration. Gubernatorial and Attorney General political campaigns promoting the denial of emergency and essential medical care to women in life-threatening medical emergencies seem to be a poor campaign strategy. Most women are unlikely to find such a campaign plank other than cruel.
EMTALA is not abortion on demand. It is the provision of essential medical care in emergency life-threatening situations narrowly defined in the EMTALA law. It is also entirely consistent with the provisions of Texas present abortion restrictions in SB8.