Category Archives: science

Failure to Communicate

What we’ve got here is failure to communicate. Some men you just can’t reach. So you get what we had here last week, which is the way he wants it. Well, he gets it.

If you don’t recognize those famous lines, they are from the movie, Cool Hand Luke. A young Paul Newman plays Luke, a prisoner on a chain gang. Luke is unable to submit to the authorities that now control his life, even if the inevitable, foreseeable outcome is his death.

The setting is simple enough: the Captain (the warden) warns Luke:

You gonna get used to wearing them chains after a while, Luke. Don’t you never stop listening to them clinking, ’cause they gonna remind you what I been saying for your own good.

Never one to pass up a chance to resist authority, Luke responds with,

I wish you’d stop being so good to me, Cap’n.

After a moment’s pause, this retort unleashes Captain’s fury – “Don’t you ever talk that way to me,” then lashing Luke with a baton, knocking him into a ditch. Captain then delivers the iconic lines: “What we’ve got here is failure to communicate. Some men you just can’t reach.”

That, it appears, is where this country is with the anti-vaxxer, anti-mask crowd. They have chosen – yes, chosen, because belief is a choice, not a biological imperative – chosen to believe false prophets whose statements are resulting in thousands more avoidable COVID deaths. Arguing with these people about the science, the data, the facts is just like trying to tell Cool Hand Luke that he needs to shape up and make his life easier on himself and those around him. Luke can’t hear it and neither can the anti-vaxxers.

It is, therefore, time to change tactics. Beating the anti-vaxxers, while tempting, is not an acceptable solution. But thus far, with one or two notable exceptions, the government’s health authorities have proceeded by burying everyone in obscure and largely irrelevant information. If you don’t believe me, look at the CDC’s COVID Data Tracker website:  https://covid.cdc.gov/covid-data-tracker/#datatracker-home

This information is picked up by media and reported, more or less, in op-eds and other articles in the hope that the anti-vaxxers may read and be persuaded. There are other websites — CDC, New York Times and others – displaying vast quantities of COVID data, often in complex diagrams and charts that are difficult, if not impossible, for ordinary people to digest. The very complexity of the information makes many people leery of what the data says and, more importantly, often leads to inaccurate conclusions. Statistical skills in the general population are not a strong point.

The standard approach is not working, and it’s time for another approach. I recommend what I will call RealCOVID.

Here’s what I think should be done.

  1. COVID data should be reduced to its simplest essence, showing the most important information. At this time that is a comparison of deaths of vaccinated versus unvaccinated patients. Another useful analysis would be to add a simple presentation of the number of COVID infected survivors who continue to suffer adverse health effects and what the top ten or twelve such effects are. Keep it simple.
  2. The government should obtain, by whatever means necessary, prime-time space to display the latest death-data comparisons, as defined above, AND video from hospitals in which real doctors, real nurses, real EMTs briefly state what they have just experienced.
  3. Example: “I’m doctor LifeSaver and I work in the ICU. I just got off for the evening. I was attending to 12 COVID patients. Three, all unvaccinated, died during my shift. No vaccinated patients died. One of the other doctors and two nurses, all near physical and emotional collapse, had to leave the ICU early. That’s where we are.”
  4. The video should show, behind the doctor, a patient being intubated or perhaps even being prepped following death. In other words, show what is happening in the hospitals – give heft and bite to the statistics. Show the reality of COVID as it is happening. RealCOVID.
  5. The government, in cooperation with hospitals and clinics around the country, should have a daily COVID Report on prime-time cable and networks explaining what is happening and what is required to change the course of the pandemic.

I cite as an example the daily briefings that former Governor Cuomo conducted in New York during the peak of the pandemic in 2020. Those reports were seen all over the country. Whatever you may now think of Cuomo as a leader or whatever, the fact is that those briefings were authentic and, I believe, changed for the better the understanding and behavior of many, perhaps millions, of Americans. And they were a source of hope during the worst of the initial pandemic in New York, the then-epicenter.

These reports should not be presented by politicians nor by Dr. Fauci, but by in-the-trenches medical personnel who are qualified to speak in plain terms about the data and the proper defensive tools. We are blessed with many experts in epidemiology and other relevant fields of expertise regarding pandemics. Let’s use them.

No doubt many anti-vaxxers will remain unpersuaded. They have, for whatever reasons, become convinced beyond all reason that vaccines are evil and/or that government attempts to regulate behavior are an assault on freedom. We’re not likely to change their minds but instead of debating them, let’s just show them – every day, in every way. Maybe, just maybe, seeing the devastation will have an effect that complicated multi-page data/charts/diagrams will not.

What do we have to lose?

 

Good, Bad, Ugly and … Bad

My last post at, or as close as my reflexes allowed, the stroke of midnight, when last year became this year, was a record of brevity. Nevertheless, last year had some moments and I am sharing them now. Some are good, some are bad, some are ugly, and some are just plain bad. The narrative will help sort them out, but you will, as always, be the judge.

Looking ahead, and backward as well (2021 will not go away that easily), we have much to look forward to, even as many of us crave the justice that so far has failed to materialize regarding, among many other things, the attempt by Donald Trump to overturn the results of the 2020 election. Trump’s attempt was supported by, and likely planned by, many Republicans in Congress who remain in their positions, enjoying the extraordinary privileges and comforts accorded to nationally elected representatives of the people. The same is true of members of Trump’s Cabinet who, from some compelling indications, were complicit and indeed actively engaged in the coup attempt.

Those of us who retain our rational faculties even after the Trump presidency and a year of non-stop Republican-led terror and fantasizing are not going to be satisfied with letting bygones be. As the clock ticks down toward the 2022 mid-term elections, and many experts predict a traditional outcome in which the “out” party resumes control of Congress, the omens for the future of our democratic republic appear dark indeed. But it doesn’t have to be that way. We outnumber them – our future is in our own hands, not theirs, unless our indifference lets them have the victory they do not deserve.

With that in mind, and given the dual personality of this post, here are some of the planned topics you can look forward to in 2022:

Fahrenheit 2021 – the crypt has opened and the book-burners walk among us

Life Under Republican Rule – do you want leaders who believe in magic?

States – What Good Are They? – how states promote tribalism

Anti-Vaxxers Must Take No Medications – if they read the labels ….

Books, Truth and Elections – truth is not infinitely malleable

Voice Bots – how to remove the human element from humanity

The Fear Equation – what is everyone so afraid of?

Communicating with the Voter – ya think?

Cliches of the Day – substituting slogans for thought

… and others in a seemingly infinite list. Meanwhile, back at the launchpad, here are some things to ponder and, hopefully, enjoy in a perverse 2022 kind of way.

Cloudy skies as seen from the roof:

In the Yikes Department, these cars were, according to reports, parked on leaves that had been deposited in the curb and a hot catalytic converter did its thing. I don’t know whether that’s really what happened, but Yikes.

On Christmas Day, we visited the National Mall to get some fresh air and see what was going on. Generally, it was a normal-looking day, as these photos show. Many visited the military memorials.

Some walked along the Reflecting Pool.

One person visited with himself. We’re pretty sure he enjoyed the experience.

A few days later we drove into the Virginia countryside to introduce my stepdaughter to the wonders of Hill High Orchard and pie place extraordinaire, about which I have previously written. The plan was to eat lunch outside at a restaurant in Bluemont, VA. When we arrived, however, we saw these “signs” hanging from a building on the property:

We returned to the car and went elsewhere. We will NEVER eat at a place owned by people who believe Trump won the election. Not now, NOT EVER.

Which brings us to Meme Time. Someone wise once said that a picture was worth a thousand words. I think that’s mostly true. These memes/photos were copied from tweets and Facebook posts. Where they originated, I have no idea but kudos to the people who created them. They speak volumes about the challenges we face. There is no doubt the country has made many mistakes. In that sense it is “normal.” But we also aspire to higher ideals, and it is those that we say “define America.” So, with a smile on our faces, let us confront our ghosts and move ahead as a people dedicated to the principles stated in the Declaration of Independence:

We hold these truths to be self-evident ….

 

 

An American Team No More

Americans once believed that when push came to shove, we would unite against common adversaries. A generalization, to be sure, but I believe it was accurate overall. It was true despite our ongoing differences about things like balanced budgets, the size and role of government and many others arising from America as the Melting Pot. Differences in the Pot were inevitable and, in some cases, resulted in sharp divisions. But, still, we believed that, faced with an outside adversary, Americans would come together as one nation to fight back.

World War II was a good example in “modern” times. Men and women went to war, more women worked in factories doing the necessary, and often dangerous, work that men had performed before going off to fight the Nazis and the Japanese. It was a terrible time. Many were grievously wounded, physically and mentally, and many died, leaving behind others ill-equipped to go it alone. People did without many luxuries. Ration stamps were used to allocate food, among other things. It was a a terrible time.

The idea of Americans united against outside adversaries found expression in movies involving alien invaders. Some of those movies showed the entire world coming together to fight the aliens. Faced with an outside threat, often with more advanced technologies, “we” prevailed with grit, ingenuity and a sense of common purpose. That was, of course, a fantasy but “we” always won in the end.

No more. We have a new common enemy that is attacking the entire world from within. This enemy is invisible and highly adaptable. We have seen its like before and always, always came together, solved the puzzle and prevailed. And yes, I know there were always outliers, but they were the exceptions. In 1918, the closest modern parallel to COVID-19,

It is estimated that about 500 million people or one-third of the world’s population became infected with this virus. The number of deaths was estimated to be at least 50 million worldwide with about 675,000 occurring in the United States. Mortality was high in people younger than 5 years old, 20-40 years old, and 65 years and older. The high mortality in healthy people, including those in the 20-40 year age group, was a unique feature of this pandemic. [https://bit.ly/3ql2V8v]

You likely know that the United States blew past that 675,000 death figure some time ago. As of two days ago, December 22, U.S. COVID deaths had reached 805,112 and climbing – almost 1,400 deaths on that one day and a 7-day moving average approaching 1,200 and rising.

The numbers are so large that our minds balk at acceptance and comprehension. But the numbers are real. The sickness and death are real. We are not even counting the cases of Long Covid, the condition in which the debilitating effects on the heart, lungs and brain (among others) last beyond the initial illness for … no one knows how long.

Our inability to comprehend is part, but only part, of the reason that so many – in the millions – people deny that COVID is real. Some are so deep in denial that, even when hospitalized in critical or worse condition, they continue to claim their disease is something else, that the doctors and nurses are lying to them when they say, “you have COVID.”

Whatever the roots and reasons that tens of millions refuse to get vaccinated, those people appear to be lost to the team – to Team America. The huge number of unvaccinated Americans – two years into the pandemic – are a breeding ground for the virus to mutate. And mutate it does. All viruses do. The anti-vaxxers are responsible for the prolongation of the pandemic and the personal and economic destruction that the virus has inflicted. Omicron has swept across the globe in weeks, displacing the Delta variant. There is no end in sight. And the next variant may not be as “mild” as Omicron.

The best we can hope for is that, slowly and at huge unnecessary cost, we will reach the point of so-called “herd immunity” when there are an insufficient number of vulnerable hosts that the virus cannot continue its deadly passage through the population. And, of course, medical science is delivering more effective treatments, the latest of which (in pill form) was just announced. Maybe we’ll reach the point where COVID is “just another flu.” Maybe.

Meanwhile, millions more will suffer. According to every credible source, COVID deaths in the United States are expected to exceed 1,000,000 in the near future. Eventually, maybe, we will win again. But it won’t be because of Team America, the coming together of citizens to fight and vanquish a common and deadly enemy. It seems we’re past that. Tens of millions of our fellow citizens are content to have others suffer and die under the name of mindless slogans. Freedom! My body, my choice! Nobody tells me what to put in my body! And on and on.

Instead of a united front against this deadly enemy, we have tens of millions reciting slogans to justify and explain why they are no longer members of the team. The price for their ignorant intransigence has been/will be very steep indeed.

This problem is, of course, only one manifestation of a mental state that afflicts our society. We can conclude that because there is a powerful identity among the anti-vaxxers and the evangelicals/Trumpists/Republicans. Their delusional state of mind regarding the pandemic is closely aligned with their willingness to believe many other unbelievable ideas. Chief among them is the idea that the January 6 assault/attempted coup was not Trump supporters but was engineered, rather like the pandemic, by a global elite of BLM, antifa, liberal/progressive Democrats and others of like mind, aided, if not led, by the federal government (you know, the Deep State lying in wait to destroy the country).

People who hold such beliefs do not comprehend the logical absurdity that those “elites” would have tried to stop the certification of President Biden’s victory (the candidate they favored) in order to continue the presidency of Donald Trump (the candidate they fervently opposed). If they can’t see that, they can’t see the point of joining with other Americans, and other peoples around the world, to stop the pandemic with the only tools that work. They are lost to our team, probably forever. Donald Trump didn’t create these people, but he surely inspired them.

Going forward, then, policy makers must understand the full extent to which our “team” has been broken, perhaps permanently. That means, among other things, that there is no longer anything like “politics as usual.” The aliens have arrived, and they are among us. If we’re not careful, they may kill us all.

What If There is No End to the Pandemic?

We are all naturally inclined to think about important events as having relatively clear beginnings and ends. Especially when the subject is troublesome, our innate desire for clarity and safety often leads to unrealistic expectations. This is likely part of our psychological conditioning throughout life.

Summer, like the other seasons, starts and ends. Bad weather can be terrible, but it comes and then ends. We get comfort from knowing that it will.

We also know that illnesses “recycle.” We know we can catch colds and the flu. So, most normal people bundle up against the elements, take cold medicines (mostly to relieve symptoms until the body’s systems kill the cold virus), get flu shots. Other illnesses are different. Cancer, emphysema, kidney failure and many others do not just go away after a simple medical intervention. No one is immune to them.

We also know that the weather is changing, driven by climate change. Storms in many places are more frequent and more severe. A few people, some never heard from again, decide to “hunker down” and “ride out” such storms. Most run when told to evacuate and live to run another day. We don’t want the bad weather to return but we know that it will. We want it to go as soon as possible. Many people thus drive their cars immediately after a bad snowstorm, apparently just because they think they can. I suspect it’s their way of reassuring themselves that the bad news ends.

This phenomenon is present in the response to COVID. We desperately want it to “end” and to have life return to “normal.” For most of us, the year 2020 will be the worst in our lives, one we desperately don’t want to repeat. Unfortunately, the evidence indicates that may be an illusion when it comes to the COVID pandemic.

It is now reported, https://n.pr/3c0G5fF, that the COVID virus is present in the nation’s vast and widely dispersed white-tailed deer population (estimated 30 million in US alone, equivalent to about 10 percent of the US human population). The story is getting relatively little attention in mainstream media, compared, for example, to the “gripping” story of NFL quarterback Aaron Rodgers’ lying about his vaccination, then contracting COVID, then being forced to sit out a game that his team lost – oh, yes, the story was extensively reported. Even Forbes covered it. An entranced nation awaits Rodgers’ return.

Meanwhile, back in the world where human lives and the national/global economy is under threat, and as reported by NPR:

A recent survey of white-tailed deer in the Northeast and Midwest found that 40% of them had antibodies against SARS-CoV-2. Now veterinarians at The Pennsylvania State University have found active SARS-CoV-2 infections in at least 30% of deer tested across Iowa during 2020. The study, published online last week, suggests that white-tailed deer could become what’s known as a reservoir for SARS-CoV-2. That is, the animals could carry the virus indefinitely and spread it back to humans periodically….

During April to December of last year, about 30% of the deer that they tested were positive for SARS-CoV-2 by a PCR test. And then during the winter surge in Iowa, from Nov. 23, 2020 to Jan. 10, about 80% of the deer that they tested were infected. At the peak of the surge … the prevalence of the virus in deer was effectively about 50 to 100 times the prevalence in Iowa residents at the time.

The COVID variants in the deer matched those in humans.

The deer species in question is native to North American, Central America and the northern part of South America. Their capacity to move into and thrive in new habitats is well known.

The NPR article notes that the important questions raised include whether COVID can be transmitted from the deer back to humans or to other animal categories such as livestock. And, of course, the presence of COVID virus in such a large population creates the conditions for further mutations, as has been found in the Netherlands and Poland.

The article does not mention what seems an equally or more important question. Deer are apparently not sickened and do not die from COVID-19 infection. WHY NOT? That issue surely ranks as a critical subject to study. Is there something unique about the deer immune systems that mutes the devastating effects the virus has had on millions of humans? If so, that understanding could be the source of new vaccines to combat what seems like the inevitable persistence of COVID-19 for the foreseeable and perhaps indefinite future.  No matter how much we may wish it were otherwise.

 

Draining the Swamp

Everyone by now has heard this phrase popularized most recently by Donald Trump when running for president. This post is not about Trump, however. It’s about that swamp. The “swamp” that so many Americans, out of ignorance, love to hate.

You likely wouldn’t recognize the denizens of the swamp if you passed them on the street. With very few exceptions, they’re not Hollywood material and don’t appear in movies or television. But if you’re alive and reading this, it’s likely due to their work, the work that goes largely unrecognized outside the government itself.

Unknown most likely to most of the country, the extraordinary work of federal employees is recognized annually by the Partnership for Public Service with the presentation of the Samuel J. Heyman Service to America Medals. Mr. Heyman was the founder of the Partnership. In keeping with America’s attachment to award presentations, the “Sammies” are delivered in a black-tie award dinner every year in Washington (virtually during pandemics), much like the Oscars – with award announcements by notable presenters, acceptance speeches and all the rest. But, thankfully, there are no musical numbers or unpleasant comedians running the show.

No, the Sammy awards are serious business, although the dinner, rightly so, can be something of an extravaganza. https://servicetoamericamedals.org/about/ For the most part, it’s an inside-the-Beltway thing, but it shouldn’t be. The contributions these people make to the country and the world deserve national public recognition far more than the “award” shows watched by millions and scorned annually by many. The Sammies are cut from different cloth and it’s a shame that they are not recognized for the ways these people contribute to the progress of our lives.

I was moved to produce this post by the 2021 award for Federal Employee of the Year, shared by two swamp workers to whom you likely owe your life and that of your loved ones, at least if you are vaccinated. The awards went to Kizzmekia S. Corbett, Ph.D. And Barney S. Graham, M.D., Ph.D. As explained in more detail in the video at https://bit.ly/3Dekht8, they essentially created the COVID-19 vaccine that has, literally, saved millions of lives around the world.

For the full list of current and past winners/finalists, see https://bit.ly/3FgoDAm. Pay particular attention to the Finalists.  Their contributions to public life are beyond exceptional in fields so rich with talent and desire to serve that they were recognized but did not “win.” The real winners, of course, are the American public and in many cases people and ecosystems around the world.

So, the next time you hear someone put down those “federal bureaucrats,” remember the Sammies and the people who earned them. You owe them much more than clichéd derogatory labels.

Dear Mayor Bowser

I am inspired to publish this now because I received your News message of October 15 entitled Accelerating Roadway Safety Projects. You stated a planned “acceleration of roadway safety improvements across DC,” driven by a wave of “traffic violence.” One of the primary solutions was the reduction of the default speed limit to 20 mph, although you recognized that speed is not the only problem – it’s also “distracted driving or a refusal to share the road.” Indeed.

One of the major “solutions” proposed is your request to DDOT “to move forward with a campaign to accelerate the construction of roadway safety improvement projects that will better protect pedestrians. This includes the installation of speed humps, stop signs, and right turn hardening measures. Starting this week, and continuing annually, DDOT will target 100 intersections that are within the District’s high-crash, high-injury corridors.”

Before going further, I suggest that solving the “traffic violence” problem is not achievable by placing obstacles in the path of already frustrated drivers. Speed humps may slow a car temporarily but if they lead to rapid acceleration after driving over one, the purpose seems defeated. Similarly, stop signs work if drivers stop and look before proceeding. If not, they can create more of a hazard as people in a hurry run through them. This happens every day all over the city.

While it may appear otherwise initially, rest assured that I am on your side. You have a difficult job for reasons too well known to reiterate here. Take what I offer as a good faith effort to help. As background, I moved to the District in December 2020, following three years in New York City. Before that, I lived in Northern Virginia (Falls Church, Reston, Alexandria) beginning in 1967, so I am no stranger to this area.

It is useful to begin with consideration of some general principles. The government is essentially a joint effort, funded with community money, to establish some rules within which a civilized society can function safely and fairly. This includes rules designed to establish order in what would otherwise be a chaotic, every-person-for-himself madhouse with high risks for everyone. Without such rules, the situation would resemble the Tragedy of the Commons in which each person would act in a manner designed to benefit him alone even though the result is destruction of the common good and losses for everyone. Today, DC roads resemble the Tragedy of the Commons because gross and serious violations of the laws, rules-of-the-road and common sense are rampant.

To be clear, I am not referring to “law and order” in the Republican/Tea Party/right-wing sense of the term, nor do I want to live in a “police state.”  The goal is a regime that, with reasonable compliance, benefits everyone – drivers, bicyclists, pedestrians. Everyone enjoys the benefits of more order, smoother traffic flow, less stress and more safety. There is an irreducible minimum of order that must be maintained to prevent chaos and avoidable harms.  DC appears to be well beyond that threshold.

For context, most days I drive two roundtrips from the West End (Washington Circle area) to the east end of town (10th & K), using L Street and returning west on I Street. When the traffic is unusually slow on I Street, I often move up to K Street for the return leg. Total roundtrip distance is exactly 4.1 miles. What occurs around me almost every day borders on unbelievable but it’s all true. A very select example includes:

Just this morning, we were confronted by a car traveling the wrong way on a one-way street (11th Street NW). The driver just kept coming, veering away at the last minute and turning the corner behind us. He was either completely oblivious or determined to place himself and us at risk to avoid turning around and driving in the proper direction.

Later, as I sat waiting for the light to change at Pennsylvania and 25th Street NW, two people, at least in their 30s, walked across Pennsylvania in reliance on the “walk” sign that was clearly lit. A car headed east on Pennsylvania ran the red lights facing west, passing between the pedestrians. Apparently, neither of them was aware of the danger – each had his nose buried in a cell phone and never looked up as the car raced between them.

A white Range Rover on K Street going west abruptly moved into the right lane in front of me with no signal, then a few blocks later, drove through a red light, turned left in front of the cars in the left lane and continued down the cross street, thereby also illegally crossing the service road on the other side.

A red truck in Washington Circle stopped at a red light, then drove thru it.

A driver ran three red lights in rapid succession in Dupont Circle.

It is routine to encounter drivers on M Street in Georgetown going 40 mph and more with impunity.

Illegal parking during rush hours is rampant. By taking up what would be traffic lanes, these parkers restrict the driving space for cars, leading to congestion, anxiety and angry, reckless driving behavior. Many sections of L Street are down to one lane in many places due to rush hour parking on sections already narrowed by construction sites. Many days a week the van in the photo below is illegally parked during evening rush in front of 1100 L Street NW:

Speaking of narrowed streets, the decision to block the left lane of the L Street/20th Street corner with pylons while allowing parking along the right side has reduced L Street at that intersection to one lane.

The result is that many drivers are surprised to find the left lane blocked and struggle at the last moment to enter the traffic flow in the one remaining lane of traffic. Conflict!

Worse yet, the complexity of the pylon arrangement misleads many drivers who then make a left turn from the remaining traffic lane, crossing the bike lane and the actual left turn lane, defeating the purpose of the pylon arrangement to provide additional protection to bicyclists.

The apparent absence of law enforcement in the city has led to other dangerous practices:

Pedestrians routinely slow-walking through intersections with nose buried in can’t-wait-to-be- read cell phone messages

Scooters/motorcyclists/bicyclists lane-splitting among cars in traffic lanes, zigzagging among the cars to get ahead

Scooters suddenly flying off the sidewalk at intersections to enter traffic

Red-light violations everywhere – by cars, trucks and bicyclists – often without even showing down

Left turns on K Street across multiple traffic lanes to enter the service road going the opposite way, in effect a risky U-turn, causing much sudden lane shifting

Turning from the wrong lane, usually with no signal – failure to use turn signals is rampant everywhere

The city’s installation of bus-only lanes, sometimes changing every block or two, has created additional parking space for trucks and cars alike. Buses for which the lanes were intended are forced to veer into car traffic lanes to get back. There is no apparent enforcement.

The most egregious and often-repeated violations of good driving practices are (1) failing to use the turn signal to indicate lane-changes/turns on the streets and in the roundabouts, and (2) turning from the center lane in either direction across the actual turning lane. These happen every day on my short roundtrip.

Then there is the matter of noise. As noted, I have lived in New York City and am no stranger to the realities of compacted urban living. There is, however, a difference between the unavoidable sounds of a city, cars and buses, aircraft overhead, etc. and the entirely preventable racket made by people who get some bizarre satisfaction from drawing attention to themselves by making unnecessary noise. These include motorcycles with punched-out mufflers, or no real mufflers at all, and cars with mufflers designed to make huge bursts of sound during acceleration and braking. These cars often display spoilers on the trunk and are in the style of “muscle cars.” The drivers who race the engines in traffic, do high-rpm “jack rabbit” starts and engine-assisted stops are trying to draw attention and they do, along with a large dose of irritation at the unnecessary noise they produce. Their behavior screams “look at me, look at me!” It is irritating and distracting.

The city has, apparently, determined to address these issues by trying to force traffic to slow down, as noted in the Mayor’s news message above. Reducing speed limits may seem an easy and appropriate defense, but speed limits that are too low likely cause more problems than they solve. Take a drive on the 40 mph GW Parkway, for example. Anyone trying to comply with that speed limit on the four-lane divided road will find other drivers speeding around them, frequently showing anger, impatience and dangerous driving. Average actual speeds in those areas are vastly higher whenever traffic volume permits and often even when it doesn’t.

It seems most drivers most of the time assess the risk of getting a ticket or being involved in or causing an accident as vastly lower than the costs of being a few minutes later at their destination. There is little question that this happens on DC streets every day all day everywhere. My casual but repeated observation of DC driving behavior suggests a widespread belief among drivers that there simply are no meaningful constraints on their behavior – no laws, no rules, no risk of being caught while endangering others.

Studies in the Netherlands support the idea that higher speeds, both generally and in relation to other cars, produce more crashes with greater damage to drivers and others affected. https://www.littlerock.gov/media/2484/the-relation-between-speed-and-crashes.pdf [the Institute for Road Safety Research] But US studies suggest that may not be the whole story and that “posted limits are not the cause of auto accidents – reckless driving is.” https://www.hg.org/legal-articles/the-effects-that-speed-limits-have-on-auto-accidents-30226

The last cited article states that

A method known as the “85th percentile” is used by traffic engineers to establish speed limits. This tactic operates under the assumption that most drivers will travel at a speed that is reasonable, sensible and comfortable to them on any given roadway, regardless of the posted limit. Speed limits are set at a number that separates the bottom 85% from the top 15%. For example, if the speeds of 100 vehicles are measured and 85 vehicles are traveling at 37 mph or less, the speed limit for the road could be set at 35 mph. [emphasis added]

A California study,

showed that higher speed limits set in 1995 and 1996 did not increase the rate of fatal or injury traffic crashes. In fact, actual travel speeds on roads with increased speed limits barely changed. People were already traveling faster than previous speed limits, and once speed limits were altered they generally did not speed faster than their comfort zone…. Although findings across the country are conflicting, they have shown that drivers are by-and-large practical and cautious. In essence, posted limits are not the cause of auto accidents – reckless driving is. [emphasis added]

At the risk of exposing my confirmation bias, those US observations are consistent with my day-to-day experience in DC. Lowering speed limits to levels that most drivers will find unreasonably constraining and putting speed bumps and stop signs in more places, will not change that. Such policies simply make more people into scofflaws, but they won’t likely change outcomes much if at all.

What then to do?

First, identify some of the main drivers of the problem and put resources against them. These would certainly include illegal parking in rush hour and in places where such parking materially increases congestion and conflict. The return on investment to DC from a well-managed team of “meter monitors would likely be very high.

Second, hire, train and deploy small teams to monitor driver behavior on problematic streets and intersections. Take videos of excessively dangerous practices and have another team member stop the car and issue tickets. This is not much more complicated than fielding teams of police to use radar and then flag down speeders. Observation of vehicles in the “circles” alone would likely more than pay for the costs of the teams.

Third, use the email addresses of DC-licensed drivers to remind them of certain rules-of-the-road. Explain in stark terms that certain behaviors will no longer be tolerated and that if stopped after being notified, the consequences will be serious.

I do not suggest these steps will solve all the problems. Even a 25 percent reduction in aberrant driving would be a worthy achievement and city revenues would increase significantly.

As for noise, the solutions are similar. There is no reason that the city should put up with people who deliberately make noise just to attract attention. Horn honking by automobiles (and frequently by impatient bus drivers) should be outlawed unless essential in an emergency. You get what you tolerate. DC has a Noise Ordinance.

Section 20-2700 of the DC Municipal Regulations states,

It is the declared public policy of the District that every person is entitled to ambient noise levels that are not detrimental to life to life, health, and enjoyment of his or her property. It is hereby declared that excessive or unnecessary noises within the District are a menace to the welfare and prosperity of the residents and businesses of the District. It is the declared public policy of the District to reduce the ambient noise level in the District to promote public health, safety, welfare, and the peace and quiet of the inhabitants of the District, and to facilitate the enjoyment of the natural attraction of the District.

This regulation reflects a serious quality-of-life problem in the city. Enforce it.

The cars in question usually are Mustangs or sports cars/muscle cars that look like them, often fitted with a rear spoiler. The noise they emit is usually coincident with moving at high speed through crowded streets in places like Georgetown’s M Street and less-crowded (at least now) thoroughfares like Pennsylvania Avenue. Even casual observation by enforcement would readily identify locations where deliberate noise violations, and often related dangerous driving, occur daily. This past Sunday I observed a motorcyclist riding twice through the same Georgetown neighborhood gunning his unmuffled engine for no purpose other than making noise.

In addition to the obvious benefits to safety and good order, active enforcement of traffic safety and noise control would also benefit the city’s finances. The cost of a reasonably trained force of meter monitors, traffic monitoring teams (all of whom do not have to be police officers) focused on serious violations and repeated noise ordinance violations would contribute significant revenue to fund the city’s other obligations. Everyone wins.

 

 

 

More Than the Heart Can Bear

Early last evening we visited the Washington Monument grounds to see the acres and acres of white flags that have been placed there by artist Suzanne Brennan Firstenberg to memorialize the more than 670,000 Americans who have died from COVID-19. The display of flags is called America Remember. It has received little attention from media.

Stunning in scale, the flags cut into you, especially, I suspect if, like us, you have lost a loved one to the virus. Some who visited have penned notes on the flags, expressing their grief.

The setting is surreal, watched over by the Washington Monument. It can be seen from the White House. It is overwhelming. You have to see it, to walk among the endless row upon row of white symbols of death, of loss, of pointless tragedy. For those who can’t do so in person, I hope these photographs will suffice at least for now. There are no words.

 

 

Religious Exemption – What Religious Exemption?

I keep hearing about people claiming they have a religious objection to (1) wearing a mask and/or (2) getting a COVID vaccination. I have asked the Twitterverse to identify the religion that contains such prohibitions in its doctrine, so far without response.

To be clear, I am not writing this to belittle anyone’s religious faith. I write to raise the highly relevant question in the pandemic of what exactly qualifies as a valid “religious exemption” to masking and/or vaccination.

My thesis is that (1) the sudden discovery during the pandemic of one’s “religious doctrine” is just too convenient and is not a valid claim; (2) to make a valid religious exemption claim, at least two things must be demonstrated: (a) an established discoverable documented statement of clear doctrine opposing the use of masks/vaccinations to prevent/limit disease on the basis of an identified moral/ethical code, and (2) evidence that the claimant has in actual fact practiced the doctrines of the asserted religious for an extended period prior to the pandemic.

Point (1) should not be that hard. Established religions that have such doctrines can be expected to have produced writings/speeches/published practice directives that make these assertions and tie them to some “higher power” ethical controlling principles. I am not aware that such religions exist. Christian Science may be one, though I am not clear that it actually rejects vaccination conceptually. But I am not an expert on religions and there may be others. Waiting.

Point (2) may be much harder for many people. I do not accept that a person may make a valid religious exemption claim if they suddenly discover that their “religion” has some doctrine that may be used as an exemption support, and they then decide to assert it when the reality is that they never followed the doctrine before.

I am astonished and perplexed to learn that the Equal Opportunity Employment Commission has adopted as policy in its Compliance Manual on Religious Discrimination the “principle” that in practice means a religious exemption is in most cases whatever the person says it is, regardless of past practice of adherence or any other considerations. I am not going to elaborate on my judgment of that – if you’re interested, you can find the details here: https://bit.ly/3yUWlIh I do believe it is conceptually and otherwise preposterous.

But that such muddled thinking is part of government policy, at least in one domain, it is small wonder that people are using religious exemption claims to cover their political or merely ignorant resistance to public health measures that have been shown to limit COVID infection spread. The resisters – the anti-makers and anti-vaxxers – are not only dying at much higher rates than the vaccinated, but they are facilitating the “evolution” of the virus into more virulent strains, such as the Delta Variant that is ravaging the country now. Breakthrough infections, with sometimes deadly outcomes, are increasing also. This is virtually certain to result from vast numbers of unvaccinated people walking among us.

My limited understanding of religion is that any legitimate one has an ethical/moral foundation of principles to live by. Whether it’s one deity or many, a set of principles to live by is the central idea. If so, I can’t help wondering what foundation of ethical/moral principles the people who suddenly found religion think they are asserting. Their new “religion” has the effect of exposing themselves and, worse, others to a deadly disease. What principle of ethics/morality justifies that? How do they square their supposed adherence to a set of ethical/moral principles while basically lying about their “sincerely held religious beliefs?”

The Road Not Taken

Kudos to President Biden for taking the hard but right path to restoring the physical and economic health of the country. Shame on those who continue to harp on the ignorant and irrationally resistant themes of “my rights” at the expense of the health and welfare of others. ENOUGH!

We’re at the fork in the road. Nothing short of a full-on frontal attack on the virus is going to get us out of this mess. The great American poet Robert Frost captured the idea in his famous poem, The Road Not Taken:

Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;

Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same,

And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I –
I took the one less traveled by,
And that has made all the difference.

Biden has taken the road that many politicians would eschew – the one that will, and has, inevitably create another furor. Rather than the “safe path,” Biden has shown the courage of a leader by doing the right thing rather than the safe or easy route. You can hide from destiny only so long, as this great story reminds us:

A merchant in Baghdad sent his servant to the market.
The servant returned, trembling and frightened. The
servant told the merchant, “I was jostled in the market,
turned around, and saw Death.

“Death made a threatening gesture, and I fled in terror.
May I please borrow your horse? I can leave Baghdad
and ride to Samarra, where Death will not find me.”

The master lent his horse to the servant, who rode away,
to Samarra.

Later the merchant went to the market, and saw Death in
the crowd. “Why did you threaten my servant?” He asked.

Death replied, “I did not threaten your servant. It was
merely that I was surprised to see him here in Baghdad,
for I have an appointment with him tonight in Samarra. 

The choice we face now, that we must face, is between aggressively striking at the virus with all the tools at our disposal or continuing to beg the irrational and uninformed to do the right thing. The former has a chance to stop the pandemic, to take advantage of the astonishing opportunity that the rapid deployment of vaccines has provided. The latter approach has virtually certain terrible consequences: more illness, more death, more permanently damaged bodies.

The reality is that the vaccines are safe and effective. The reality is that the rapid spread of the Delta variant has again overwhelmed the nation’s medical capabilities. COVID infections that are mainly in unvaccinated individuals are denying needed medical services for people with other medical conditions.

I have read some of the insane rantings of primarily right-wing and libertarian “authorities” who claim to have inside knowledge that the virus was released deliberately by agents of the federal government who are cashing in on the vaccines. These people claim that the vaccines contain various poisons, microchips and who knows what else.

It seems that one can always find someone who claims to have the inside track on awful secrets and conspiracies that are constantly being plotted against the rest of humanity. These sometimes include people with “medical credentials,” but often they are former workers in the pharmaceutical industry who are certain that they have inside information to expose the crimes being perpetrated in the name of … whatever. They readily accept the plausibility of conspiracies involving many thousands of people around the globe, no one willing to spill the beans, all in the name of “follow the money” or some other cliché that substitutes for actual thought.

We see this same theme played out in science fiction movies and what I call “caper movies” in which bad guys pull off, at least temporarily, extraordinary schemes to steal, blow up, capture huge sums of money, power over the world, etc. Movies like Air Force One, Die Hard and so many others. I have struggled through a few episodes of a TV series called Eureka that is loaded with utterly implausible, preposterous concepts and science-like doublespeak and gibberish. Some people apparently take such stories to be true. It’s an easy shift from one phantasmagorical storyline to another. Harry Potter is real, flying broomsticks and all.

Reality is more mundane. Two kinds of sickness pervade the country. One is the COVID-19 virus. We’ve learned a lot about it and about how to prevent its worst manifestations. Vaccines, masks, social distancing – that’s pretty much the essence. Study after study confirms the validity of these measures, if, at least, they are applied broadly and consistently.

But it’s damned inconvenient and mighty annoying. COVID has shuttered many businesses, interfered with our fun and instilled a deep-seated fear in many people that they and their loved ones, including children for whom they are responsible, are being exposed to an invisible, highly transmissible and deadly disease. More than 648,000 dead from a disease that our former president assured us would “soon disappear like magic.” Damned annoying.

The other sickness is the resistance to the solution. We know what to do but for many Americans, the disease isn’t the real enemy. The real enemy is the government. Many people appear to believe the government unleashed the virus. Why would the government do that? Did the government want to destroy the economy? Weaken our national defenses? Reduce the population? End civilization? Apparently, many believe so.

Logic and reason have little to do with this mindset. It’s analogous to those who argue that the January 6 insurrection was actually the work of the winners of the election who wanted to stop the certification of their win so that the loser, whom they hate, would be installed as the winner. That make sense to you? If so, take two giant steps to the right.

Along comes the new president who starts an unprecedented and initially successful campaign to deliver life-saving and pandemic-ending medicine into tens of millions of citizens without any meaningful adverse consequences and at no cost. And yes, yes, I understand we can’t prove that ten years from now there won’t be some inexplicable adverse outcome for somebody. There is no scientific or medical reason to suspect that could or would happen, but we can’t predict the future with 100% certainty, so ….

But, you know, in the long run we’re all dead anyway. In the meantime, we can return to “normal life.” All we have to do is get vaccinated and comply with a few annoying but otherwise trivial practices a while longer with a few minimal restrictions on our behavior.

But, no, this is apparently asking too much for millions of Americans. They have their “rights” to protect, regardless of the consequences. “Freedom” is their watchword. Don’t tell me what to do even if it’s for my own good. Sounds like a teenager who thinks he knows everything already and is invulnerable. Or the guy with the boat who insists on going out in the hurricane because he can “handle anything.”

Many of these people end up in the ICU, begging for the vaccine, only to be told by doctors, “it’s too late for you. You should have taken the vaccine earlier. It can’t help you now. Nothing can help you now.”

The solution is in our hands, if only our minds will allow us to see it. I despair of it, after engaging yet another person who on first encounter seemed reasonable and thoughtful, but then insisted “we are being lied to” and that the vaccines contain deadly poisons that make them magnetic. She argued with me that the vaccination program was unnecessary because “natural immunity” was superior protection to the vaccines and lasted longer. How she knows this: read on the internet.

I end where I began. History will record that Joe Biden acted justly and rightly in ordering mandatory vaccination programs, with, in most cases, very generous opt-outs for people with true medical conflicts and genuine religious objections (I don’t know what religion that is, but the exemptions are available).

I find some inspiration in these closing words from Ulysses by Alfred, Lord Tennyson:

Though much is taken, much abides; and though
We are not now that strength which in old days
Moved earth and heaven; that which we are, we are;
One equal temper of heroic hearts,
Made weak by time and fate, but strong in will
To strive, to seek, to find, and not to yield.

 

Texas, the Handmaid State

Texas, through its legislature, has now made unmistakably clear that women are not equal to men. It is no exaggeration to say that Texas has moved from being the Lone Star State to being the Handmaid State. The reference, for the small number of people who don’t know, is to The Handmaid’s Tale, the dystopian novel by Margaret Atwood in which women in a theocratic authoritarian society are forced into what amounts to sexual slavery for the benefit of the men who run the country.

The headlines about the adoption of SB 8 by Texas are still fresh and resonating around the country and the world. The U.S. Supreme Court has refused to enjoin the enforcement of the law while its constitutionality is considered on the merits. Thus, Texas, proud Texas, has become the leader in subordination of women. Through the back door in Texas, a Republican (53%)/male (73%)/aged (67% over 49/14% over 69)-dominated state legislature has introduced a version of Sharia Law to the United States.

There are, of course, significant reasons to believe that SB 8 is unconstitutional under both the Texas Constitution and the U.S. Constitution. Whether Texas likes it or not, the established federal constitutional principles of the Fourteenth Amendment “equal protection of the laws” and “due process” still apply to the states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The dissenting opinions in the Supreme Court’s astonishing back-handed approval of the Texas maneuver say as much. If the Court’s current view of the law stands, states will be encouraged to adopt similar laws on other subjects, insulating such laws from judicial review. That, as with the current case, is simply unsustainable and would undermine the separation of powers, among other things.

It’s important to understand that Texas thinks it’s been very clever in crafting this statute so that it will escape meaningful judicial review on the merits. It had the audacity to represent to the Supreme Court that it was entirely realistic to believe that the entire elaborate text of SB 8 would have been enacted but that no one would take up the opportunity to earn a quick $10,000 (the minimum statutory damages). In perhaps the most ridiculous legal position I have seen in years, the Texas Attorney General told the Supreme Court, “This Court cannot expunge the law itself. Rather, it can enjoin only enforcement of the law.” He argued since government officials “explicitly do not enforce the law,” the abortion providers “have not shown that they will be personally harmed by a bill that may never be enforced against them by anyone.”

Thus, Texas would have us believe that it passed a law giving private citizens standing to bring lawsuits against other citizens with a minimum payoff of $10,000 plus attorneys’ fees and costs, with zero risk of having to pay fees & costs for the defendant if the suit were judged frivolous, but no one will bother to file suit under the law. That’s a whopper even by Texas standard.

There are a multitude of serious substantive problems with SB 8. Here are just a few of the big ones:

    • The medical premise for the law is not scientifically accurate;
    • The essence of the statute is to confer “standing” on the entire civilian population of Texas to bring actions to sue physicians who perform abortions in conflict with the many non-medical details of the statutory scheme and to sue any person or entity that aids and abets the violation, with the assured award of not-less-than $10,000 in damages for each successful case brought, plus reimbursement of attorneys’ fees and costs incurred;
    • Plaintiffs may not be assessed attorney’s fee and costs even if the suit is thrown out because the statute is ruled unconstitutional, so the millions of potential plaintiffs incur no risk in bringing such suits;
    • Being an aider or abettor is determined without regard to the actor’s knowledge of the legality of the procedure;
    • Relying on some unspecified mind meld, the law authorizes suits against aiders/abettors who merely “intend” to assist forbidden abortions;
    • The clear intent of the legislation is to stack the legal deck against people who would help a woman with an abortion and thereby prevent abortions from being performed in Texas;
    • The statute in the words of Justice Sotomayor, “a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” dissenting from the Court’s decision to allow the Texas law to be effective Sept. 1 without appellate review;
    • The Supreme Court’s decision to allow SB 8 to become effective was based on a complete distortion of the holding in California v. Texas, a 2021 case addressing whether injunctive relief could be had against a statute whose key operative provision had been removed by Congress. The Court there said, “to find standing here to attack an unenforceable statutory provision would allow a federal court to issue what would amount to “an advisory opinion without the possibility of any judicial relief.” That is plainly not the case with the Texas statute which is not only enforceable but is drafted precisely to induce massive enforcement by citizen bounty-hunters. The fact that enforcement may occur at the hands of private persons inspired and enabled by a state law does not affect the impact of the law on its targets. Further, the cause of action created by the statute is fully effective and ready to be used, totally different than the tax provision removed from the law at issue in California v Texas.
    • Texas devoted much legislative language trying to (a) prevent federal court review of the statute and (b) control the nature and effect of the review. The very obvious goal was to have the law continue to apply to everyone who had not yet been sued, even if judicial review held the law facially unconstitutional in one case. Texas-sized hubris here, trying to tell the federal courts what they can and can’t do. Texas has decided to simply ignore the Supremacy Clause of the Constitution.

Justice Sotomayor’s eloquent dissent in Whole Woman’s Health v Austin Reeve Jackson, Judge, joined by Justices Breyer and Kagan, said everything that should have been needed to stop the law in its tracks:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

… the Court has re- warded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation

I am going to go out on a limb here and predict that after further briefing and argument, a majority on the Supreme Court will find its way back to reality and reason by rejecting the Texas law on multiple constitutional grounds . Meanwhile, the women of Texas will have to live with the white hoods of handmaidens under the thumb of their totalitarian masters.

*****

For those with the interest and fortitude to understand the details of this astounding act of legislative hubris, here is an unfortunately long explanation of exactly what SB 8 purports to do.

The key scientific idea on which the law is based is that the presence of a fetal heartbeat “has become a key medical predictor that an unborn child will reach live birth.” Texas tries to tie this idea to a further finding that “the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity.” Based on my limited review, those “findings” are of limited relevance, since there are other significant predictors of ultimate viability and nothing in the law specifically addresses the communication of this specific information to the pregnant woman considering an abortion.

Instead, absent a “medical emergency,” the statute bans abortions after the mere detection of a fetal heartbeat and nothing more. Adding to the pretextual nature of this, the statute conveniently fails to define “medical emergency,” thereby creating a condition in which both the physician and the pregnant woman can never be certain that later litigation will not reject the physician’s determination and expose the physician to an intolerable financial risk.

It’s important to understand that the statute does not directly expose the pregnant woman to lawsuits – the targets of the legislative scheme are the doctors, clinics and anyone else who,

Knowingly engages in conduct that aids and abets the performance or inducement of an [prohibited] abortion, including paying for or reimbursing the costs of an [prohibited] abortion through insurance or otherwise … regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter….

The sweep of this language encompasses every imaginable form of support for the abortion process and is plainly designed to intimidate medical personnel, insurance companies as well as friends and family of the pregnant woman.

But that’s not all. The statute authorizes civil damage suits against any person who “intends to engage” in forbidden aiding and abetting of a prohibited abortion. No, I’m not making this up. We are in the land of science fiction, popularized by the movie Minority Report in which a special police force is authorized to arrest murderers before they commit their crimes. In Texas’ case, the “offense” is civil, not criminal but the penalties are large enough to deal a death blow to the finances of many people (minimum statutory damages of $10,000 plus costs and attorneys’ fees).

The damage provisions apply to every forbidden abortion the defendant performed or aided/abetted. If multiple parties are sued for aiding and abetting a single abortion, it appears the plaintiff stands to collect the minimum damages against each one.

Under the special statute of limitations applied by Texas, the specter of being sued will hang over potential aiders/abettors for six years.

The drafters anticipated that there might be other defenses presented to courts in the civil cases and have preemptively eliminated them. Thus, the following are rejected as possible defenses: a good faith belief in the unconstitutional nature of the law, reliance on court decisions that are later overruled or reliance on federal court decisions that are “not binding” on the state court where suit is brought.

These provisions are designed to prevent judicial review by federal courts of the state’s statutory law as written and as applied. Texas has, apparently seceded from the U.S. Constitution, or at least thinks it has.

In a cynical twist, Texas added a provision that seems at first look to mitigate the intimidation created by the rest of the statute: it provided an “affirmative defense” for those sued under the statute if (1) the defendant conducts a “reasonable investigation” and (2) then “reasonably believes” that the abortion physician “had complied” or “would comply” or “will comply” with the statute. I say this is cynical because the Texas legislators may be presumed to understand that that whatever a “reasonable investigation” means, an aider/abettor trying to conduct such an investigation will almost certainly be stymied by the privacy provisions of HIPAA (the federal Health Insurance Portability and Accountability Act of 1996), not to mention the natural distaste any doctor will have to being embroiled in a lawsuit. The burden of proving an “affirmative defense” is on the person asserting it, so this looks like a Texas head-fake.

Not content to stack the deck against women, their physicians and their families and friends, Texas has added a provision barring absolutely the award of attorneys’ fees and costs against a defendant. This means that the most egregious unfounded lawsuits brought by damage-hunting lawyers and others can be brought with impunity. Which is, of course, exactly what Texas wants – a legal unchallengeable in terrorem regime that will force Texas women to take significant health risks and/or incur staggering expenses to get an abortion regardless of the reason or need. The statute also enables bounty-hunting plaintiffs to bring suits where they live against defendants who live across the state, with the proviso that venue can only be changed if the plaintiff agrees.

The statute also immunizes the state of Texas and its officers from any legal challenge to the statute and further provides that if a court finds the statute unconstitutional in its application to one person, the statute may still be enforced against everyone else. This is an obvious attempt to deprive the federal courts of jurisdiction to adjudicate the constitutionality of the statute as written and not just “as applied.” The courts of Texas may stand for such a violation of the separation of powers, but it is hard to imagine that the federal courts will accept it.

Perhaps the most extraordinary aspect of SB 8 is the provision that purports to instruct the courts in the nature and scope of their decisions and in the meaning of “unconstitutional:”

No court may decline to enforce the severability requirements … on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a statute, as the statute continues to contain the same words as before the court’s decision. A Judicial injunction or declaration of unconstitutionality: (1) is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a later court if that court has a different understanding of the requirements of the Texas Constitution or United States Constitution.

This is Texas-size hubris that banks on the willingness of the Supreme Court of the United States to permit a state to decide for itself the nature, scope and effect of the Court’s decisions as regards the U.S. Constitution. Maybe the current Court will buy that nonsense, but I will be surprised as it would seem to overturn the very foundations of the federal system and the separation of powers, among other things.

Texas gives prevailing parties in any constitutional or other challenge to the abortion law three years to file for award of attorneys’ fees and costs. This opportunity applies even if the plaintiff in such suit wins the case on grounds that the severability provisions are unconstitutional or preempted by federal law!

It appears that the desperation of the Texas legislators to insulate SB 8 from federal court review has led them to a strange and untenable place. The statute contains a confused and obtuse section that appears to say that even if a court finds the statute facially unconstitutional, the statute shall still be severed, and the “unconstitutional applications” shall remain enforceable. Further, in such case the statute “shall be interpreted as if containing language limited the statute’s application to the persons, group of persons, or circumstances for which the statute’s application will not violate the United States Constitution and Texas Constitution.

That seems like an overt invitation for the courts to rewrite the legislation to help the Texas legislature save it. There may be precedent for such an astonishing approach, but I am not aware of it. That is, I believe, precisely what courts don’t, and should not, undertake. If the legislature writes an unconstitutional statute, it is the responsibility of the legislature to rewrite the law to repair the damage, unless some form of severance is possible that satisfies the court that it is not in fact just rewriting the law.

The legislation forces the physician to try to talk the woman out of going through with an abortion. This occurs through a series of compulsory disclosures and medical advice that the law declares, ipso facto, to be medically accurate and sound without any specific knowledge of the health condition of the woman in question.

The law addresses the issue of rape/incest and developmental abnormalities by exempting the woman from being forced to hear an explanation of the sonogram images, but rape/incest/developmental abnormalities, and, for that matter, threats to the woman’s life, are not otherwise treated as relevant to the process by which the woman gives consent to the abortion.

Finally, note that the Texas Constitution includes the following:

Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

But it also includes this:

Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self‑operative. (Added Nov. 7, 1972.)

But also this:

Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage. (Added Nov. 8, 2005.)

But there’s also this:

ARTICLE II

THE POWERS OF GOVERNMENT

Sec. 1. SEPARATION OF POWERS OF GOVERNMENT AMONG THREEDEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

I predict the ACLU and other entities that are going to challenge SB 8 are going to have a field day with these contradictory provisions, some of which are inconsistent with existing Supreme Court precedent and, of course, the U.S. Constitution.