11 October 21
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Hari Sreenivasan: It's been 50 years since Jackson Browne's first hit, "Doctor My Eyes," a song in which the world's troubles caused the singer's tear ducts to run dry. Fifteen albums, eight Grammy nominations, countless benefit performances, and a slew of humanitarian awards later, Browne has just issued his first new recording in seven years.
Special Correspondent Tom Casciato visited Browne in Los Angeles to discuss his new work, and the themes and subjects he often returns to on his songwriting journey.
Tom Casciato: It's no surprise to learn from Jackson Browne that his new album begins with his telling listeners he's on a quest.
Jackson Browne (singing):
I'm still looking for something
I'm out here under the streetlight
Still looking for something in the night
Jackson Browne: The songs are about personal experience and about a search.
Tom Casciato: Searching is one of several themes he has pursued throughout more than half a century as a singer songwriter. Though in one of his biggest hits, "Running On Empty," he professed to be uncertain what he was looking for.
Jackson Browne (singing):
I'm don't even know what I'm hoping to find
Tom Casciato: Many decades ago you sang, "I don't know what I'm hoping to find." And then you start off this record saying, "I'm still looking for something." So there is a relationship between Jackson of several decades ago and Jackson of today.
Jackson Browne: I think so. I think it's the same. I think in that in that respect, I'm still I'm more than ever trying to do what I was trying to do then, and differentiate between the world I'm imagining and the world I'm in.
Tom Casciato: His themes range widely. On his early albums for example he wrote a series of songs seeking meaning in the passing of friends.
Jackson Browne [singing]:
I don't know what happens when people die
I can't seem to grasp it as hard as I try
Jackson Browne: I mean, there was a review at one point, I think it might have been my third or fourth record and the reviewer started the review by saying, "Has there ever been a Jackson Browne record where somebody doesn't die?"
Tom Casciato: His new album is called "Downhill From Everywhere," and it's filled with fresh takes on familiar subjects.
Jackson Browne (singing):
But I will no longer need to tell them apart.
Tom Casciato: The man who once sang "Doctor My Eyes" now sings about his "Cleveland Heart."
Jackson Browne (singing):
… my Cleveland heart
Tom Casciato: Inspired by an actual Ohio plant that makes artificial hearts, the singer imagines replacing his own vulnerable heart with one of those that can withstand the worst.
Jackson Browne (singing):
They never break,
They don't even beat
And they don't ache
Tom Casciato: You know, you write in the first person a lot. And your songs, I think, lead one to believe you are the "I" in the songs.
Jackson Browne: Sometimes I sing "you" and it's still "I." You know, it depends on if I'm talking to myself, I suppose, or about myself, whether it's a "you" or an "I." But I think, I think that's, I think that's true. The songs are about personal experience and about a search that is not just my own search. You have to interrogate yourself to get to the end of the song,
Tom Casciato: Browne has long put his lyrics where his beliefs are, singing on behalf of a myriad of causes from Native American rights to Haitian earthquake relief. And he's also an avowed patriot.
Jackson Browne (singing):
I have prayed for America
I was made for America
Tom Casciato: He is, as well, a sharp critic of his country. In the 80s for example he notably opposed US intervention in Central America.
Jackson Browne (singing):
There are lives in the balance
There are people under fire
Tom Casciato: He's also a longtime advocate for clean oceans and against plastic pollution. The new album's title song asks that we consider our seas.
Jackson Browne (sings):
Do you think of the ocean as yours?
Because you need the ocean to breathe
Jackson Browne: Plastic is now completely clogging our waterways and filling up the ocean and and also invading our bodies, newborn babies are born with the chemicals that are plastic in their systems; it's in the placenta, it's in the blood. So that's what I'm talking about changing, in time to do something,
Tom Casciato: In your writing, time is a theme. I don't know you well enough to say it's a preoccupation of yours, but you seem to have figured out very young that this game is rigged and you only get so much time.
Tom Casciato: Indeed, time fuels a sense of urgency in a '70s song called "The Fuse."
Jackson Browne (singing):
Through every dead and living thing
Time runs like a fuse
And the fuse is burning
Tom Casciato: In the title song from a 2008 album, he sings "time may heal all wounds" but also "time will steal you blind."
Jackson Browne (singing):
Time the conqueror
Tom Casciato: And then in your song "Black and White," you're literally finishing the song and the record saying "time is running out, time is running out."
Jackson Browne (singing):
Time is running out
Time is running out
Jackson Browne: Maybe you could call it a preoccupation, I guess. I guess you could. It comes up a lot.
Tom Casciato: Time collides with another favorite Browne theme, justice, on a song echoing America's current moment of protest and the activist group Color of Change. It's called "Until Justice Is Real."
Jackson Browne (singing):
What is the color, the color of change?
What is the reason these times are so strange?
Tom Casciato: And I just want to quote one of your lyrics. "Time like a river, time like a train, time like a fuse, burning shorter every day." What do you, in your lifetime — what do you think you're going to see in terms of the kind of justice you've been singing about these last decades, and desiring?
Jackson Browne: Many of us believed that we were on a track going forward, that civil rights have have improved. But nothing could be more obvious than that is really not actually the case. We're still, we're still settling the Civil War. We're still we're still talking to people who believe in white supremacy. They want to go backwards and — see, I don't know quite how to say this. All the while I was thinking that we were getting somewhere, people were being ground up in the wheels of our society and police were killing Black motorists. There were injustices that went on and on and on and on. And that's what I'm saying. We don't have the time for these to go on and be swept aside. That's what the song is talking about.
Tom Casciato: Is justice going to win this race?
Jackson Browne: We could have a society in which justice is real. Yeah. We have an opportunity to solve some of the problems that have beset our society and our country since its inception. The clock really is ticking and we really have to, you know, we have to join together to do that.
Jackson Browne (singing):
Time like a river
Time like a train
Time like a fuse
Burning shorter every day.
Sophie Zhang, right, the whistleblower who came forward in April. Last week Frances Haugen, left, testified before Congress. (image: Rex/Shutterstock/Guardian UK)
This April, Sophie Zhang told the world about her employer’s failure to combat deception and abuse. Her advice? No screenshots, lawyer up – and trust yourself
Leaving my electronics was a safeguard against possible tracking by my then employer, Facebook. The dress was an additional layer of alibi: I theorized that if anyone from work saw me and could contradict my first alibi, they might conclude that my unusual behavior was evidence of nothing more than an affair.
That first, anxious meeting was the beginning of a lengthy process that would culminate in my decision – 18 months later and after I had been fired by Facebook – to step forward and blow the whistle on Facebook’s failure to combat deception and abuse by powerful politicians around the world.
This month, another Facebook whistleblower, Frances Haugen, has come forward. After providing the Wall Street Journal and US government with thousands of internal documents showing Facebook’s internal research into its own harms, Haugen testified to Congress. Her testimony and revelations have captured the imaginations of the public, the press and Capitol Hill and raised hopes that regulators might finally act to rein in Facebook’s immense power.
During her testimony, Haugen encouraged “more tech employees to come forward through legitimate channels … to make sure that the public has the information they need”. But whistleblowing is never straightforward. When I was deciding whether to speak out, I struggled to find guidance on the best way to go about it. If you’re in that position now, here’s my best advice on how to navigate the complicated path to becoming a whistleblower.
Decide what you’re willing to risk
Whistleblowing is not for everyone; I knew Facebook employees on H1-B visas who considered speaking, but could not risk being fired and deported. Speaking out internally or anonymously to the press will risk your current job. Speaking out publicly will risk your future career. Providing documentation will risk lawsuits and legal action. These risks can be minimized, but not eliminated.
Decide whether you’re going to go public
The first question you have to ask yourself is whether your aim is to change the minds of employees and leadership, or to pressure them via public opinion? Employees will be more sympathetic to the company than the general public; an internal post denouncing the chief executive as intentionally undermining democracy might alienate your co-workers, but can move the window of discussion. Before I went public, I used Facebook’s internal message board, Workplace, to try to effect change. It was only when this failed that I decided to go to the press.
If you do make an internal post, remember that leaks are inevitable, and consider how your words can be misunderstood. When I wrote my departure memo, I naively thought it would not leak, and wrote for an audience of insiders. One of the consequences of this was that a stray comment about “actors” (referring to people who take certain actions) resulted in incorrect reports in the Indian press that Bollywood stars were interfering with elections.
Exhaust your internal options
Don’t let the company claim that they were ignorant of the situation and issues you’re speaking out about, or allege that you had failed to speak to the right people. Even if you expect complaints to be ignored, consider making them nevertheless – in writing – so you can point to them later.
Decide what you’re going to say
Speaking out about an area of personal expertise gives you credibility and insight, but narrows your scope to areas that may not arouse as much public interest. Speaking out about topics beyond your normal work will require you to conduct research and seek out internal documents you wouldn’t normally look at – creating a digital trail that could expose you – but could make your story more compelling. Be careful that what you say is correct and you aren’t making assumptions based on any personal bias or opinions; would-be “whistleblowers” have come forward with unconvincing revelations based on preconceptions.
Expect to face company criticism regardless of what you speak on – Facebook dismissed Haugen for speaking about issues beyond her scope, and attempted the same for myself even though I spoke only about topics I personally worked on.
Whatever you speak about, consider what your end goal is and whether your revelations will accomplish that. Risking your career to help a tech reporter live-tweet a company meeting may not be the risk/reward ratio you had in mind.
No screenshots, no work devices
Never contact outside parties (such as reporters or lawyers) via work devices; only do so via end-to-end encrypted systems like Signal on your personal devices. To securely copy work documents, use a personal device to take photos of the screen; do not take screenshots. If you’re accessing many documents, ensure that you have a plausible alibi. If leaking while employed, ensure that you’re only sharing documents that many employees have recently accessed. And if you intend to go public, insulate yourself beforehand by removing personal information online with a service like DeleteMe.
Save up for a year without pay
If you intend to go public with documentation, ensure that you’re able to survive off savings for at least a year. Most would-be-whistleblowers I’ve spoken to are concerned that they won’t be able to find another job. I worried about this too, but I’ve actually received many recruiting attempts – an experience also reported by others. Nevertheless, talking to the press, civil society and government officials is time consuming and will probably prevent you from working for some time. You will likely also incur additional expenses on lawyers and PR advice. Some whistleblowers choose to solicit donations, but this might undermine your credibility.
Lawyer up
If you intend to go public with documentation and details, speak with a lawyer first. Organizations such as Whistleblower Aid and the Signals Network can help connect you with someone. By speaking out, you face the risk of lawsuits for breach of contract, or even prosecution in the United States for theft of trade secrets. These risks are unlikely, but the possibility exists nevertheless.
Make contact with an outsider
Most tech reporters have a Signal address in their Twitter profile. I’ve heard many employees concerned that reporters will not protect anonymity – I personally have few concerns in that regard, although I would advise working with an established news outlet.
When you do speak with a reporter, you should be clear up front about whether you’re speaking on the record (you can be quoted by name), unattributed (you can be quoted but not by name), or off the record (none of this can be published). If you intend to speak with the government, your lawyer should be able to help.
It’s your decision – trust yourself
In the end, whistleblowing is an intensely personal decision that very few will ever consider. It’s easy to criticize from the outside, but many feel differently when they face those risks themselves. Every time I advise others, I remind them that I can provide advice but the ultimate decision is their own. I am glad that I chose to come forward, and that Frances did as well, but no one is obligated to torch their career in pursuit of justice.
Elizabeth Reese. (photo: Stanford University/High County News)
Elizabeth Reese, Stanford Law School’s first Native American professor, discusses the intentional marginalization of tribal legal structures.
This conversation has been edited for length and clarity.
Felicity Barringer: Why does your work focus on the way the legal systems of the 574 federally recognized tribes have been ignored?
Elizabeth Reese: I’m from Nambé Pueblo, a small Indian reservation just north of Santa Fe, New Mexico. When I’m home, most of my conduct is governed by the Nambé Pueblo tribal government. Everything from where and how I dump my trash to my right to own a firearm or not is decided—not by the State of New Mexico or the United States federal government—but by my tribal government.
When I enrolled in law school I was told that there are only two types of law in the United States that come from the two kinds of governments we have in our federal system: federal law and state law. Imagine how bizarre this was for me! I’m a citizen of a nation that’s older than almost any other on the continent. I’ve navigated tribal law my entire life, voted regularly in elections, complained about when they changed the speed limit, etc. Then, I show up to law school and everyone acted like the entire legal regime I grew up with doesn’t exist. It was maddening!
Not only was the feeling of invisibility and erasure confusing and insulting, I felt like I was the only one who knew that what was being presented to us was an incomplete picture of the legal system in the United States. As educators we ought to tell the truth, to give our students the full picture of American law. We should find it problematic that we uncritically ignored 574 governments that collectively govern as much land as California.
FB: What price does the country pay for decades of marginalizing the way tribal laws and tribal systems of government have evolved?
ER: I think we all pay a huge price. That comes both from the damage of how we have marginalized tribes and from what we have missed out on by doing so.
A difficult truth I struggled with in my recent article The Other American Law: how — even whether — to raise that tribal law was not marginalized by accident. Part of the colonial project involved making pre-existing government regimes look less worthy than the those that sought to displace them. Tribal governments and their laws were dismissed and delegitimized by the United States and other colonial powers as a part of their work asserting their own superior claims to govern the same territory.
It’s an ugly truth. But it’s one that deeply colors how we see tribal governments and their laws. When most Americans imagine a pre-colonial “tribal government” we think small, familial and primitive. We imagine a “less evolved” version of Western societies that has nothing novel to offer us because our own ancestors have been there and done that already. What we did was equate differences with deficiencies and forget a fundamental truth that we’ve all been human for just as long, simply making different choices. A lot of knowledge was lost or destroyed as colonial powers steamrolled over what they dismissed or were willfully blind to.
And a lot of opportunities to learn from one another never happened as tribal legal ideas or solutions didn’t trickle to an open-minded ear within the United States as they perhaps could have. Tribes, in turn, became incredibly distrustful of outsiders, and justifiably so.
Contemporary tribal governments have certainly changed a great deal since pre-colonial times — so has the United States. So, it is particularly tragic that the United States and tribes often fail to see each other clearly when they’ve both grown and changed so much in a uniquely intertwined way. They share a history now, and have reacted to that history or begun to reflect each other in interesting ways.
FB: Can you explain the difference between tribal law and what legal scholars call “Indian law?”
ER: Yes! This is a key distinction. “Tribal law” is a kind of law that is passed by a tribal government and that applies on their land and to — in varying degrees — the persons on that land. Within the category of “tribal law” are many different tribes’ laws: Navajo Nation law, Cherokee Nation law, Sault Tribe of Chippewa Indians law, etc. Just as, within the category of “state law,” there is California law, Michigan law, etc.
By contrast, “Indian law” is an academic field that includes both “tribal law” and all other law that has to do with Indians, most importantly, the body of federal laws that determine how much power and what kinds of powers tribal governments have. We call that body of federal law, “Federal Indian law.”
Unfortunately, at most U.S. law schools, if they have a class on “Indian law” at all, they provide either just a “Federal Indian law” class or it called “Indian law” that is almost entirely devoted to Federal Indian law. Tribal law, the law actually made by Indians, is ignored in favor of a focus on U.S. federal court decisions and congressional statutes that are, at best, the result of staunch Indian advocacy from the wings or, at worst, the decisions justifying colonialism itself.
Part of my work is a call to pay more attention to what I think of as the real Indian law.
FB: How is the work of tribal legal systems treated in federal, state and local courts? Do any court decisions treat tribal laws with the kind of attention given to state and local laws? Do non-tribal courts address issues that tribal laws raise?
ER: Tribal law is treated quite terribly, if it’s given the time of day in state or federal courts. This is particularly disheartening when state and federal courts have such a developed system for when, how, and why to defer to one another.
There’s an entire law school class that deals in large part with state law making an appearance in federal courts in particularly tricky instances. When that happens, federal courts will often wait to let a state court weigh in or defer to their decisions on a question.
By contrast, vital questions of tribal law — such as what is essential to the political integrity, health or welfare of the tribe to function as a self-governing entity — are decided by federal courts on their own, without pausing to ask if they are the most qualified court.
State and federal courts ought to be asking when deference to tribal courts is necessary, but many often treat an issue of tribal law — say whether a tribal law regulating reservation hunting is an important or necessary part of their self-governing powers — as if it is a fact of a case that a private party proved or didn’t using evidence they can submit to the court. This is a question about what is important to tribe’s legal and political system — who they are and what is at the heart of their government. We would never think of a question like “is free speech important to the United States’ political structure” as something private parties would litigate over and resolve by submitting evidence, let alone as something a judge from outside the United States would be qualified to decide for the United States without its participation. Any answer that foreign judge gave would seem, well, ridiculous — because it would be. If anyone can answer that question, it’s the United States itself.
FB: Why does Congress have no Native members who represent their tribes, rather than jurisdictions in their home state? The 2020 census shows an unprecedented 10-year increase in the combined population of Native Americans and Native Alaskans: 9.7 million, up from 5.2 million a decade ago. Now these groups account for 2.9% of the national population. Could a Native voting bloc be developed across existing jurisdictional lines?
ER: Good question! Why aren’t there at least 574 Congressmen representing each of the Indian tribes just like there are at least three representing each of the 50 states? I think the answer lies in the same colonial ugliness we discussed above, but not entirely. Remember that tribal governments were powerful allies and enemies throughout the history of the burgeoning United States.
It wasn’t a foregone conclusion at all that these governments would be swept aside instead of reorganized into one of the states as many other government entities ultimately were. Some tribes even received promises regarding representation within the United States’ political system that are now being finally honored. The Cherokee Nation, for example, bargained for a delegate in Congress in several of their treaties. Just in 2019 Kim Teehee was selected to serve as their first delegate, and they are waiting on Congress to officially seat her. She will, however, not be a voting member.
But even if the United States seats the Cherokee delegate they promised, one of the most amazing things happening with Indian representation right now is how tribes have managed to structure themselves and their services around tribal citizenship status rather than geography. Tribal citizens now live across the country, not just on their reservations or even ancestral home bases. Unlike the other U.S. jurisdictions, most tribal citizens do not lose the right to politically participate or receive certain services because they relocated.
Tribes are very creative, unique political entities; they are transcending a lot of the current physical boundaries we currently use to delineate political rights and government powers.
FB: How have Indian nations included expatriates in their electorates? Your article discusses an Indian tribes solution to expatriate voting in comparison to the U.S. approach to a voting population that includes 3 million people who live abroad, either serving in the military or choosing to live in another country.
ER: This question follows nicely from my prior discussion. In troubleshooting how to encourage political participation from citizens that don’t live on the reservation anymore, one tribe, the Citizen Potawatomi Nation of Oklahoma, decided to restructure their legislature so that their representatives would be composed of districts based on where they lived now, not where they last lived within the tribe’s territory.
That meant districts for far flung parts of the world, but that created community for the Citizen Potawatomi of New England, the Plains, or the Deep South. And it worked! Tribal political participation went up! Interestingly, the population of millions of American expats also vote at a much lower rate than we’d expect. The United States could try what the Potawatomi did and give expats their own political district of some sort; one that represented the unique interests of the predominately military and highly educated expat population.
FB: The state of Oklahoma recently petitioned the Supreme Court to narrow its 2020 McGirt decision, which effectively declared much of eastern Oklahoma to be Indian territory subject to tribal laws. Why is this such a big issue for the state? Will the McGirt decision prompt the legal world to pay more attention to tribal law?
ER: There was a lot of fear and misunderstanding about the McGirt decision. The bottom line: very little, if anything, would likely change for non-Indian Oklahomans since tribal law does not apply to non-Indian owned land or non-Indian persons’ conduct, even within the boundaries of a reservation, except in very rare circumstances.
The idea, however, that even if tribes were in complete control that would be somehow an automatic disaster is something we ought to push back against. Tribal governments are governments just like any other. They can be effective, and they can be flawed. But tribal governments should not be feared because they are unknown.
This decision does bring the possibility of tribal rule out of the shadows and, hopefully, in a way that normalizes it to Oklahomans rather than sensationalizing it. As more and more Oklahomans who are also tribal citizens opt into tribal courts and other services I think the visibility and acceptance of the tribes will only increase.
When I gave a talk about tribal law last year, I included PowerPoint slides with photos of tribal police cars, tribal court judges, tribal legislative chambers, tribal building permits, tribal census documents, tribal tax offices, tribal water facilities, etc. A colleague remarked afterwards that even though I’d talked to him many times about tribal law, it was entirely different seeing those images. It made clear to him in an instant how very real tribal governments are and how — just as I had said many times — they are just governments. As more Oklahomans see tribes for themselves, I have no doubt they will have the same reaction.
FB: What steps should be taken to normalize the inclusion of tribal law and tribal governmental systems in the legal landscape of courts in the United States?
ER: A huge step we can all take is to be more aware of the language that we all use to describe not just tribal governments, but Native people generally. We are a racial and demographic group, sure, but that has little real meaning. My ancestors were Indigenous people in New Spain, in Mexico, and now we are Native Americans—but the whole time were the people of Nambe Pueblo people. Recognizing Native are people not a monolith, but citizens of hundreds of distinct political entities within the United States in how we discuss them would go a long way to normalizing their recognition more broadly as such.
There is a lot of unintentional erasure that happens because we often don’t use the right words to discuss Native people or their governments. A tip that I recommend is asking yourself if you substituted in more familiar group’s name in sentence, would it still make sense? If I want to use “Native American” or “American Indian,” I need to remember that I’m using a continent-wide term with as little real meaning for people’s identity or political groupings as other continent-wide terms like “Asian” or “European.”
Say you want to know about Native American religion and start off thinking you want to ask: “What is Native American religion?” If you instead swap in a more familiar group’s word and ask, “What is European religion?” the error is immediately apparent. There is no single European religion, just as there is no Native religion. So, you’d know to rephrase into something like “How many religions are there in Europe?” or “What is the most popular religion in Europe?”
Demonstrators rally in support of abortion rights at the Texas State Capitol in Austin, Texas, October 2. (photo: Montinique Monroe/Getty Images)
A week of uncertainty didn’t end up changing much for SB 8.
On Friday, the Fifth Circuit Court of Appeals issued an administrative stay on a previous ruling halting SB 8, which effectively bans abortion after about six weeks of pregnancy, in response to a request by the state of Texas for a temporary stay. That stay blocks a Wednesday injunction by a federal district court in Texas, which briefly halted the law on the grounds that it violated the constitutional right to abortion access.
That temporary stay is just the latest development in a September lawsuit filed by the Biden Justice Department against the state of Texas, which argues that SB 8 is unconstitutional.
The suit has resulted in a whiplash-inducing back-and-forth by the courts this week, with the status of reproductive health care in Texas hanging in the balance. For now, Friday’s stay has blocked the district court injunction — but it’s still undecided whether it will remain in place in the long term.
According to Friday’s court order, the Biden Justice Department has until Tuesday to respond to Texas’s emergency motion to stay the district court’s injunction. The Fifth Circuit panel could then decide to extend the stay.
As Vox’s Anna North explained last month, SB 8 has dramatically affected the lives of pregnant people in Texas since it was enacted on September 1, forcing them to carry unwanted pregnancies or leave the state to receive care while potentially incurring significant costs for travel, lodging, and child care, in addition to lost wages from missed work.
Already, according to a PBS NewsHour report, at least 300 Texans seeking abortions have sought care in Oklahoma, putting a strain not only on them but on the resources of the Oklahoma providers and patients, too.
On Wednesday, US District Court Judge Robert Pitman’s pointed, 113-page ruling temporarily brought a halt to SB 8, granting a two-day reprieve to patients seeking abortions and facilities performing them.
Pitman’s decision, which describes SB 8 as an “unprecedented and transparent statutory scheme,” offered a clear-cut defense of abortion rights, and for a brief period following Wednesday’s injunction, some abortion providers resumed performing abortions past the six-week mark — albeit with a sense of trepidation, according to the Texas Tribune.
Texas abortion opponents wasted no time in requesting a stay to the Pitman ruling. Texas Attorney General Ken Paxton filed the state’s request Friday as part of its appeal of the ruling, on the grounds that the DOJ can’t sue the state in this case, since SB 8 depends on citizens — not law enforcement officials — to carry it out.
The Fifth Circuit panel that granted the administrative stay includes conservative, anti-abortion Judge James Ho, a Trump appointee who has previously called abortion “a moral tragedy.”
SB 8 is deliberately difficult for courts to engage with
As lawsuits against SB 8 go forward, the law’s unique enforcement mechanism continues to complicate those challenges.
Specifically, the measure is designed so that state officials don’t enforce the law — citizens do, by bringing civil suits against those they accuse of “aiding or abetting” the obtaining of an abortion after medical professionals detect cardiac activity in the embryo. This makes it incredibly complicated to mount a judicial challenge to the law.
As Vox’s Ian Millhiser explains, that’s not by accident:
The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.
Ordinarily, if abortion rights advocates wanted to challenge the constitutionality of a law, they would bring a case against an officer of the state enforcing the law.
But since no state officer is allowed to enforce SB 8, opponents of the law can’t, for example, sue a police officer or a state health authority. Instead, according to Millhiser, challenges to SB 8 will come from abortion providers, who will “be able to argue in court that they should not be required to pay this bounty because it is unconstitutional.”
Specifically, under SB 8, abortion providers and anyone who assists a patient in obtaining abortion care are now potentially liable for a minimum of $10,000 in damages — which, as Millhiser points out, could range far higher if the bounty is decided by “a judge with particularly strong anti-abortion views.”
And the law could have a long-term chilling effect on abortion access in Texas too, even if the injunction is once again allowed to take effect pending appeal. The statute of limitations for bringing such a civil suit under SB 8 extends for four years, and many providers chose not to offer later-term care during the brief period this week that SB 8 wasn’t in effect out of fear that they could be sued retroactively.
The success of Texas’s law in blocking abortion access has also inspired at least one copycat bill: In Florida, Republican state Rep. Webster Barnaby has introduced anti-abortion legislation using a similar framework to SB 8 that would make the proposed law difficult to challenge in court.
The Fifth Circuit is likely to side with Texas
The Fifth Circuit’s decision to grant an administrative stay of Pitman’s injunction is only temporary, but it could be a sign of what’s to come as the court considers Texas’s appeal.
As the New York Times reported on Friday, some legal experts believe that this temporary order is just a prelude to a full stay, allowing SB 8 to remain in effect, and that the conservative Fifth Circuit is likely to side with Texas.
Texas’s appeal itself hinges on three arguments: That the Justice Department doesn’t have the right to sue the state of Texas, due to the way SB 8 is written and enforced; that the government’s suit won’t succeed on the merits of the case; and that the federal district court violated precedent by blocking the state of Texas itself from enforcing the law, when according to the text of the law, the state doesn’t enforce it — private citizens do.
Texas has asked for an expedited review of the appeal, and depending on the outcome, the case could end with the Fifth Circuit’s decision. Specifically, the New York Times writes, “there is no guarantee that the Justice Department’s civil suit against Texas will make its way to the Supreme Court” if the Fifth Circuit sides with Texas. Instead, it’s possible that the Court’s conservative majority would decline to hear the appeal, allowing the Fifth Circuit’s decision to stand.
The DOJ lawsuit isn’t the only avenue currently open to test SB 8’s constitutionality, however. Two lawsuits are also pending against Dr. Alan Braid, who admitted in a Washington Post op-ed last month that he had provided abortion care after Texas’s legal timeframe. Anti-abortion groups aren’t among the plaintiffs, but two disbarred lawyers, neither of whom are Texas residents, have filed suit against Braid. One of the plaintiffs, Felipe Gomez, isn’t seeking damages, according to the San Antonio-area ABC affiliate KSAT — instead, Gomez’s suit calls for SB 8 to be declared unconstitutional.
Tamaki Caldwell, 53, waits to talk to her physicians at Carolina Blood and Cancer Care in Lancaster, S.C., where she is receiving treatment for advanced ovarian cancer. (photo: Travis Dove/WP)
Doctors say people in low-income communities are showing up with advanced cancers because of pandemic-caused delays in diagnosis and treatment
It’s a rare bright moment for Caldwell, 53, who knows she is in the fight of her life, one made significantly more arduous by the coronavirus pandemic. She started having abdominal pain last year — “it was like grab and release, grab and release” — but she didn’t see a doctor for months because of concerns about the pandemic and because she was taking care of her grandmother, who had covid-19, the disease caused by the virus.
Now, after six months of chemotherapy, Caldwell feels “like somebody whopped me,” she said during a visit to Patel’s clinic in late summer. “But I did what I had to do.”
Covid and cancer are a menacing mix — for everyone, but especially for people of color from low-income communities. African Americans and Hispanics are about twice as likely as White people to die of covid, according to the Centers for Disease Control and Prevention. Black cancer patients are at particularly high risk for complications and hospitalizations. Even before the pandemic, Black people had lower survival rates for many cancers compared with White people. Now, with the pandemic grinding on, many doctors fear those inequalities will worsen.
“Covid put cancer and health-care disparities on steroids,” Patel said as he walked through his clinic, offering patients words of encouragement. “I have never seen this many people presenting at Stage 3 and 4.” Even for people like Caldwell, who responded to the treatment, he said, “Stage 4 cancer is like sitting on a volcano” because it frequently recurs.
Last year, as the pandemic unfolded, millions of cancer screening and diagnostic tests were canceled and thousands of surgical procedures postponed, in part to protect patients. Researchers say the pause, and subsequent delayed diagnoses and treatments, will probably result in an increase in cancer deaths over the next several years — but they don’t know the extent.
Jennifer S. Haas, a cancer prevention expert and primary care doctor at Massachusetts General Hospital in Boston, said she and her colleagues have seen an unusually high number of advanced stomach cancers and esophageal malignancies over the past several months.
“People have been trying to ignore symptoms for a year because they didn’t want to come in,” Haas said.
Covid and cancer share risk factors that disproportionately affect people of color: higher rates of underlying conditions such as diabetes or hypertension; a lack of health insurance or access to a primary-care physician; and jobs that can cause health problems.
“If you work in an environment without air purification or filtration, that’s a problem,” Haas said.
Many of those most acutely affected are women, whose family responsibilities and financial stress can make it difficult to focus on their own health, doctors say.
“They have sacrificed themselves to deal with the needs of the family: Are my children getting schooling, how do I take care of the older adults in my life, how do I manage everything?” said Debra Patt, a breast cancer specialist in Austin and an executive vice president of Texas Oncology.
Long after the pandemic subsides, she worries, some patients will be struggling with advanced cancer.
“The effects of this will go on for years,” Patt said.
One of her patients, Christina Cook, a 44-year-old African American woman who lives in San Marcos, Tex., discovered a small lump in her right breast just as the pandemic unfolded last year.
“It felt like a baby rock,” Cook said. “But I had bigger things to worry about.”
As stores closed, Cook was busy looking for food, toilet paper and feminine hygiene products for her two daughters. She soon lost her job shuttling people from an apartment complex to Texas State University. Her younger daughter, a high school senior, was so miserable about the disruption to school and graduation festivities that Cook bought a cat to cheer her up.
By last December, the peach-size mass in Cook’s breast was extremely painful. When Cook, who was uninsured, sought care at a hospital, staffers said their ultrasound machine was broken, she said. At the urging of her older daughter, she went to a Planned Parenthood clinic, where staffers quickly arranged for a mammogram, got her enrolled in Medicaid and helped her find Patt, who has been treating her for triple-negative breast cancer, an aggressive form of the disease more prevalent among Black women.
Cook is responding to treatment and plans to have a mastectomy in December.
“But I’m terrified that I cut it too close, that I neglected myself too long and could have easily taken myself out,” Cook said.
Crystal Whetstone, 37, one of Patel’s patients, said she found a dime-size lump in her right breast in spring 2020 but was too nervous about the coronavirus and too busy with two jobs — one in sales, the other running a dance studio called Diamond Divas — to get it checked. In addition, she was taking care of her 13-year-old son, who was struggling with remote school, and she was having trouble enrolling in Medicaid.
By the time she was diagnosed with breast cancer earlier this year, “I had a big cluster of cancer,” said Whetstone, who wore a red T-shirt emblazoned with Mickey Mouse. Now, she requires more intensive treatment than if she had been diagnosed at an earlier stage.
Recently, she and her son were diagnosed with covid-19.
“I was stuck in bed for two weeks,” said Whetstone, who is still debating whether to get vaccinated.
Patel, a 60-year-old native of western India, said patients with delayed diagnoses represent collateral damage from the pandemic. In addition to their lowered chances of survival, the cost of their treatment is much higher, often reaching hundreds of thousands of dollars, he said.
The pandemic has dealt setbacks to cancer prevention efforts among people of color but also has compelled doctors to think of new ways to reach these communities.
Sophie M. Balzora, a gastroenterologist at NYU Langone Health in New York, worries that the pause in colorectal cancer screening in early 2020 has hurt progress against the disease in Black Americans, the racial group most likely to be diagnosed with the illness and to die of it.
Federally qualified health centers, which provide care to many low-income Americans, routinely hand out fecal immunochemical tests, called FIT and administered at home, to detect blood in the stool, which can be an early sign of colorectal cancer. If the test is positive, a patient is advised to get a colonoscopy. During the pandemic, distribution of the tests was temporarily suspended, as were follow-up colonoscopies at many facilities.
“It is going to be a huge mountain to climb to get back to where we were” in narrowing disparities, Balzora said. “People will be diagnosed at a later stage and the later your stage, the worse your likelihood of survival.”
Kavita Patel, a health policy expert and primary-care physician who works at Mary’s Center clinic in Prince George’s County, Md., an area hit hard by the pandemic, said uninsured patients are facing major delays in getting colonoscopies and other tests. “I have written orders for mammograms eight months ago that have expired, and I have had to reorder,” she said.
Haas at Massachusetts General said the lesson from the pandemic is that “maybe we shouldn’t expect everyone to come to doctors’ offices,” knowing that it is easier for people who are affluent and insured. She said more at-home tests, including for the human papillomavirus, a major cause of cervical cancer, would increase screening. Hospitals, including hers, are hiring more community health nurses to reach people outside of the hospital and doctors’ offices, she said.
Other groups are urging people of color and other patients to resume cancer screening, including the Community Oncology Alliance, which represents cancer doctors, and the nonprofit group CancerCare. Kashyap Patel is the president of the community oncologists’ group.
When the pandemic hit last year, Patel, who is chief executive of Carolina Blood and Cancer Care Associates, scrambled to keep treating patients while keeping them and his staff safe. He closed the Lancaster clinic for several months and referred his patients to his second clinic, in Rock Hill, S.C.
Patel switched some patients from chemotherapy infusions to oral anti-cancer drugs to minimize the risks of in-person visits. Once coronavirus vaccines became available, he and his staff persuaded more than 150 patients and their relatives to receive the shots, including some skeptics who described the vaccine as “chemical warfare.” He added several hours to his clinics’ schedules to try to catch up with patients, while worrying about the stress on his staff.
And he is trying to expand services, hoping to receive funding for mobile lung-cancer screening next year.
The coronavirus remains a serious threat in Lancaster County, which is an hour south of Charlotte and dotted with tobacco and corn farms and mobile homes. The positive rate for coronavirus tests is about 12 percent, about double the national average, according to the CDC. Less than half of the population in that county has been fully vaccinated, the CDC says.
Still, Caldwell remains upbeat, praising Patel and her siblings for taking care of her. Looking back, she said, she “really had too much going on” to immediately react to the pain she now realizes was caused by cancer.
“Hopefully, I am getting over this,” she said. “I am going to beat this and get back to my regular life.”
A funeral procession of slain government school principal Supinder Kour in Srinagar on October 8., a day after suspected militants shot dead two school teachers in Indian-administered Kashmir. (photo: Tauseef Mustafa/AFP)
Fear and anxiety has crept into the minds of Kashmiris once again.
Since then, at least five Indian soldiers have died and 900 Kashmiris have been detained in a broad search operation to get to the bottom of the seven targeted killings, which a new and little-known group called the Resistance Front has claimed responsibility for.
Those detained are mostly from Srinagar city, where the killings happened, and include Muslim leaders, teachers, and people whom Indian security forces consider “anti-India” activists and “sympathisers” of Kashmiri separatist groups, according to local media reports. Broad search and detention operations are common in the region, which has had an armed resistance movement since 1989 along with active political separatist parties, all of whose leaders are either in detention or under house arrest since 2019.
On Sunday, the National Investigation Agency of India dispatched officers to 16 locations in Jammu and Kashmir for the broad search operations. Jammu-Kashmir Police said one alleged “terrorist” had been killed in a shootout on Monday. The day before, the police said four “terror associates” were arrested in Kashmir’s Bandipora district. All four have been accused of murder and conspiracy to murder Mohammed Shafi Lone, the president of a taxi association. Analysts say Indian security forces are often accused of using taxi drivers in the region as informants.
The Resistance Front emerged as an armed group in 2019 after the separatist politicians were detained, and following the Indian government’s revocation of a 1948 UN resolution that gave Jammu and Kashmir autonomy as the only Muslim-majority state in India. Since then, the Resistance Front, which calls itself “the indigenous resistance of Kashmir,” has carried out attacks in various parts of the region, according to the South Asia Intelligence Review.
This has prompted a massive crackdown by the government to go after what it considers to be “terrorists.”
Of the seven victims of the targeted killings, four belonged to Hindu or Sikh minorities in Kashmir while others were Kashmiri Muslims. A total of 28 civilians have been killed in suspected targeted attacks this year, of whom 21 were Muslims and seven were from Hindu and Sikh communities. The spate of attacks mark the first targeted killings of civilians and minorities by armed resistance groups in the region in decades.
On Oct. 7, the Resistance Front released a statement claiming that the murdered individuals were not targeted based on faith, but because they were Hindu nationalists or “government informants.”
“We want to convey our message to all, irrespective of any religion, [that] whosoever is in or residing in Jammu and Kashmir should not become a pawn of occupier dictates,” the group said. A spokesperson added that “non-combatants become combatants when they try to fix themselves in the socks of the occupiers’ designs.”
The deaths and subsequent detentions have raised fear of further government crackdowns and arrests among the region’s 12 million people. The region has been under frequent harsh curfews and internet blackouts, and has seen the detention of thousands of people in the last two years.
“That’s the nature of the conflict here,” a journalist in Jammu and Kashmir told VICE World News on condition of anonymity. “There’s so much uncertainty – first those innocent Kashmiri killings happened. And now, innocent Kashmiris will have to face the repercussions of those killings.”
“It’s so frustrating to be living in this constant fear that next could be anyone for any kind of action by anyone,” the journalist added.
“I am seriously traumatised,” another journalist based in Jammu and Kashmir told VICE World News. “I have been reporting since last week about these killings and feel we have a big responsibility to not let propaganda widen the gap between Muslims and minorities in Kashmir. There is obviously an atmosphere of fear.”
That fear, the journalist said, is leading to more distrust among different ethnic groups in the region.
“The government of India has responded by detaining hundreds of Muslims and dozens of teachers in the valley after the killing of two teachers from minority communities. It seemed [civilians] don’t trust even Muslim journalists like me now.”
Danish Iqbal, a policy analyst from the region’s oldest political party Jammu and Kashmir National Conference, is also concerned. “It’s very disturbing what has happened,” he told VICE World News.
“At a time when we’ve been making so many efforts to restart life and businesses, such events can have huge implications. People are trying not to go back to the 1990s,” he said.
Wolf pups pictured in a 2019 file photo in the Northern Cascades. (photo: AP)
Following the killings, representatives from several Idaho groups in August sent a letter to U.S. Secretary of Agriculture Tom Vilsack asking that he “immediately suspend the killing of wolf pups on all public lands by the USDA’s federal agents.” The U.S. Department of Agriculture responded last week by saying the agency works to find “practical, humane, effective and environmentally safe solutions to wildlife problems or conflicts,” but lethal measures can be necessary.
Advocates said they are shocked and upset the Biden administration would support the killing of the pups, which they said came after complaints from a rancher.
“We are very concerned and believe that the Biden administration needs to step up and reinstate protection, because we know that Idaho, Montana and Wyoming are in an all-out frontal assault on wolves,” Dick Jordan, a former science teacher at Timberline High School and presidential science award recipient, told the Idaho Statesman.
“Something has to be done. It’s inhumane, it’s unethical and it’s not ecologically sound.”
In the original letter to the Biden administration — signed by representatives from a number of groups, including the International Wildlife Coexistence Network, Western Watersheds Project, Friends of Clearwater and the Center for Biological Diversity — the groups said they were “dismayed” to learn the USDA’s Idaho Wildlife Services federal agents were involved in the killing of the pups.
They said wolves were already “under attack” in Idaho following legislation passed earlier this year that expanded opportunities to kill the animals. The bill removes the 15-per-year limit on hunting and trapping wolves, and allows the Idaho Wolf Depredation Control Board to hire private contractors to kill wolves they believe are threats to livestock or wildlife.
“There is nothing biologically sound or socially acceptable about killing wolf pups on federal lands, especially when wolves are under significant eradication pressure,” the letter stated. “Wolf pups pose no threat to domestic livestock — in Idaho, or anywhere in the Western United States.”
In response, Jenny Lester Moffitt, the undersecretary for marketing and regulatory programs at the USDA, wrote a letter saying that Wildlife Services “prefers to use nonlethal methods.”
“However, in some situations — such as that in Idaho — it is necessary to use lethal control methods,” Moffitt said in the letter.
“While we understand your objections, it is important that our management professionals have access to all available tools to effectively respond to wildlife depredation. As such, we cannot stop using any legal, humane management options, including the lethal removal of juvenile wolves.”
The letter continued: “We assure you that WS personnel work carefully to remove only those animals necessary to protect livestock, other agricultural resources, natural resources, human health and safety, or property.”
The eight young wolves were killed in Boise and Idaho counties, according to the letter, and in consultation with Idaho Fish and Game.
“WS determined that removing juvenile wolves would encourage adult wolves to relocate, thereby reducing the total number of wolves requiring removal,” Moffitt said in the letter.
Jordan said he was “blown away” by the administration’s response.
“It seems like the issue has become so political,” he said, “and (Biden) is just not making the right decisions.”
Michel Liao, a junior at Timberline High, said it’s frustrating to see federal officials say they’re doing the best they can for wildlife when they’re “failing to see that wolves are so integral to our ecosystem.”
Timberline High — home of the Wolves — adopted the wolf pack in 2003 and had been tracking it since.
Liao is a member of the TREE Club at Timberline, an environmental club advocating to save the Timberline pack. The group has created “Save our T-Pack” pages on social media, where members have spoken out against the killing of the school’s pack members.
“They are justifying killing these wolf pups as a form of humane management even though these wolf pups pose no danger,” Liao told the Statesman. “It’s a very dangerous message for the federal government to support the killing of pups that can’t defend themselves.”
Suzanne Asha Stone, executive director of the International Wildlife Coexistence Network, brought up a number of nonlethal methods ranchers can use, such as making sure they have an adequate number of livestock guardian dogs and using certain kinds of lights that give the impression of human presence.
“It was incomprehensible that these pups had to die,” she told the Statesman. “These ranchers are guests on our public lands. … Wildlife deserves to be there just as much as they do, if not more so. It’s really tragic.”
Jordan said the first goal going forward is to get the federal government to reinstate federal protection for wolves. Authorities are reviewing the potential of relisting gray wolves in the West under the Endangered Species Act.
But the other important step is education, he said.
“People need to understand how important wolves are ecologically,” Jordan said.
There is a lot of misinformation about wolves, Liao said. He started learning about the animals in his environmental science class at school, where his teacher talked about the Timberline pack, he said.
“It was really surprising to me that these animals that have been portrayed as killers are just animals,” he said. “They’re just living, they’re not trying to kill things all the time, and so just to see that they’re actually pretty peaceful and playful animals … was eye-opening.”
Stone said it is also important to do more to understand what coexistence looks like. Using lethal methods should be a last resort, she said.
“This wasn’t a last resort. They went to it first and they did so preemptively, and I think that’s the part that just cannot be justified,” she said. “… They have to do more to change the paradigm in how we’re managing wildlife to incorporate these nonlethal approaches so that we can coexist with wildlife.”
Using lethal means undermines the health of ecosystems and has severe consequences, she said.
“So the more that we can work with nature, rather than against her, I think it will benefit all of us — wolves, livestock and people in the long run,” Stone said.
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