31 October 21
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Democrats campaigned on the popular reform to Medicare price negotiations in 2006, 2018, and 2020 but bankrolled those campaigns with pharma cash.
Many of the candidates he recruited around the country refused to condemn anything but Bush’s handling of the war and were far to the right of the typical House Democrat. Pelosi had put him off, later telling Molly Ball, Pelosi’s biographer, that she hadn’t wanted to put a message out too soon in the campaign and see it drowned out.
In late July, the party finally released its vision, calling it “A New Direction for America” and putting forward six policy ideas under the cringeworthy slogan “Six For ’06.”
Among those six incremental reforms was a promise that Democrats would allow Medicare to negotiate lower drug policies with pharmaceutical companies and use the savings to expand Medicare benefits. In November 2006, they won the House back for the first time since 1994.
Now, 15 years later, Democrats are staring at an opportunity to actually make good on that promise. Despite reports that the provision has been stripped from the final package — it was not included in the House bill released Thursday afternoon — Democrats in Congress say the fight isn’t over. “The negotiations are still going on,” said Sen. Catherine Cortez-Masto, D-Nev., Thursday evening. “It’s the number one issue I hear about in Nevada. And rightly so, we have to reduce drug costs. Negotiation is a key part of it.”
On Thursday afternoon, House progressives again beat back an effort by House Speaker Nancy Pelosi and the White House to split the bipartisan infrastructure bill from the broader Build Back Better Act moving through Congress under the majority-only rules of reconciliation. The progressive caucus and their allies in the Senate say they’ll use the leverage they’ve preserved to fight to get some form of drug-pricing legislation back into the bill over the weekend. Pelosi, too, is pushing to reinsert something. At a press conference Thursday, she said that there were elements she still hoped to see survive, and as the architect of the political strategy of centering drug prices in Democratic elections, her credibility is on the line. The battle represents the collision of two elements of Democratic politics that are fundamentally in conflict: what they tell voters in order to get elected, and where they get the money to broadcast that message to voters.
Since 2006, they have told voters that, given the opportunity, they’ll take on the power of Big Pharma and force the industry to lower drug prices, so that Americans are no longer paying vastly more than people in any other country on Earth. At the same time, they have been substantially bankrolled by the very industry they have promised to take on. Fulfilling their promise to voters requires butting up against the financial interests of a powerful wing of the party. But breaking their promise threatens their ability to ever again promise action on an issue that is a driving concern for voters.
Just one week after receiving the speaker’s gavel in January 2007, following the Democratic sweep the previous year, Pelosi made good on her end of the promise, leading House Democrats in passing the drug negotiation bill — which promptly died thanks to an inability to surmount a filibuster in the Senate.
Had it passed the Senate, there’s no reason to think Bush would have signed it into law, but the bill’s fortune’s changed when Barack Obama was sworn in as president in January 2009 with a filibuster-proof majority in the Senate by July of that year. But his White House quickly moved to cut a deal with Big Pharma instead, promising not to push for drug price negotiations in exchange for the industry agreeing not to oppose reform and to cut $80 billion in costs over 10 years. Pelosi vowed that she wasn’t bound by the deal, but no drug price negotiations were signed into law.
In 2018, as Medicare for All surge in popularity, the Democratic Congressional Campaign Committee, spying a shot to finally regain the House, warned candidates not to run on single-payer or any big sweeping reform, urging them instead to focus on lowering drug pricing, citing internal data that it polled better.
The memo to candidates said that the top-testing recommendation was to allow the government to negotiate lower drug prices. Democrats that cycle and in 2020 made lowering drug prices their central campaign issue on television ads. One of the Democrats who flipped a Senate seat in 2018, promising lower drug prices, was Kyrsten Sinema.
The 2020 elections put Democrats in the strongest position in a decade to finally enact their policy agenda. While holding slight majorities in the House and Senate, they could pass long-promised drug pricing reform using the budget reconciliation process that allows them to avoid a filibuster from Republicans.
Upon entering the White House, President Joe Biden made empowering Medicare to negotiate down prices a central part of his American Families Plan. Democrats crafting a reconciliation deal to implement that plan eyed the cost-saving measure as a way to pay for expanded Medicare coverage, achieving two wins in one.
But the plan was opposed by pharma-backed Democrats, especially Sen. Bob Menendez of New Jersey, whose state hosts more pharmaceutical companies than any other state in the country. In a sign of the internal party dispute to come, Menendez offered his own drug cost reform proposal earlier this year that would cap seniors’ out-of-pocket expenses while preserving the industry’s massive profits and denying Medicare beneficiaries the more affordable prices that customers in other countries pay.
In the House, the drug pricing measure was defeated in the Energy and Commerce Committee, thanks to the defections of three Democrats: Reps. Scott Peters of Ohio, Kurt Schrader of Connecticut, and Kathleen Rice of New York. Peters and Schrader are known to be bankrolled by and loyal to Big Pharma, and Rice is Peters’s closest ally in the House. It was her first year on the powerful committee: She had battled Rep. Alexandria Ocasio-Cortez, D-N.Y., for the seat, and the party’s steering committee had given it to Rice in a landslide.
In the Senate, Sinema has refused publicly to support the provision and is said to oppose it in private. She again declined to comment when approached Wednesday by The Intercept in the Capitol. Sen. Angus King, I-Maine, told reporters this week he had not even heard from Sinema about her position but cannot understand her rumored opposition. “All it is is making Medicare consistent with the [Veterans Affairs Department] and Medicaid, which have had this … negotiated discount for many years,” he said.
Meanwhile, Sen. Bernie Sanders, I-Vt., admonished lawmakers unwilling to support reform, telling reporters earlier this month: “It’s beyond comprehension that there’s any member of the United States Congress who is not prepared to vote to make sure that we lower prescription drug costs.”
The pharmaceutical industry is “spending hundreds of millions of dollars trying to make sure that they continue to make outrageous profits to charge us, by far, the highest prices in the world for prescription drugs,” he said. “So this is not just an issue of the pharmaceutical industry. This is an issue of American democracy. And whether or not the United States Congress has the ability to stand up to incredibly powerful special interests like the pharmaceutical industry.”
Sanders’s observation is perhaps an understatement. The Pharmaceutical Research and Manufacturers of America, the omnipresent trade group and lobbying arm for drugmakers, spends over $500 million a year shaping policy and mobilizing the pharmaceutical industry to speak with one voice when it comes to any attempt to regulate drug prices.
The restriction on Medicare negotiating drug prices dates back to the creation of Medicare Part D in 2003, a Republican plan that Bush White House adviser Karl Rove believed would make seniors a permanent bloc of Republican voters. The legislation, opposed by Democrats, added prescription drugs as a benefit of Medicare, a major advance that has been important to improving the health of seniors — both personal and financial. The law was also a major gift to pharmaceutical companies and included a provision that would bar the Health and Human Services Department from negotiating lower prices.
The drug industry’s role was sharply highlighted on the campaign trail by Obama when he first ran for president. “First, we’ll take on the drug and insurance companies and hold them accountable for the prices they charge and the harm they cause,” said the Illinois senator on the trail while campaigning in Virginia. “And then we’ll tell the pharmaceutical companies, ‘Thanks but no thanks for overpriced drugs.’ Drugs that cost twice as much here as they do in Europe and Canada and Mexico. We’ll let Medicare negotiate for lower prices.”
Obama pointedly banned drug industry lobbyists from donating to his campaign and villainized them on the stump. But even at this seemingly high-water mark for reform, at every step of the way, the drug industry money continued to flow into the Democratic Party, with the explicit goal of buying influence and curbing any prospect for price-cutting policy becoming law.
Despite the ostensible ban on lobbyists’ money, non-registered drug industry representatives poured cash into the Obama campaign through individual contributions. Pfizer officials paid $1 million for skybox seats to watch Obama accept the Democratic nomination in Denver, at a party convention made possible by donations from AstraZeneca, Eli Lilly, Amgen, and Merck. The chief executives of the largest drugmakers mingled with Democratic National Committee officials at invitation-only events. The Center for American Project Action Fund, the think tank that was considered Obama’s administration-in-waiting, accepted $265,000 from PhRMA during the campaign.
The following year, during the desperate legislative battle to pass what became the Affordable Care Act, PhRMA lobbyists won the deal that kept Medicare drug price negotiation or any other similar price cap on lifesaving drugs out of the law. In exchange, Democrats were promised $150 million in ads designed to boost public support for health reform. The agreement minted the chief PhRMA lobbyist, former Rep. Billy Tauzin, a special $11 million payday for his role in shepherding it through Congress and the White House.
The Supreme Court’s Citizens United decision in 2010 radically reshaped the political landscape for pharmaceutical companies. Drug firms were already routinely ranked among the largest industry donors to candidates and political action committees. Pharmaceutical companies and their representatives donated regularly to lawmaker foundations, including the foundation run by former Sen. Orrin Hatch, R-Utah, and by current Majority Whip Jim Clyburn, D-S.C.; as well as the Congressional Black Caucus, the Congressional Hispanic Caucus Institute, and other nonprofits and think tanks associated with policymakers.
But the court decision opened a new financial sieve for drug firms to dominate elections. The largest drug lobby group — PhRMA — went from routine $1,000 checks for individual lawmakers to dumping seven-figure sums of largely undisclosed corporate cash into the coffers of dark-money groups and super PACs. American Action Network, a GOP campaign arm that can raise and spend unlimited amounts thanks to the court decision, took in $14.6 million from PhRMA.
In short order, pharmaceutical firms made sure that any close congressional election would rely heavily on funds tied, at least implicitly, to a demand that drug pricing regulations stay off the table.
The Democrats lost the House in 2010, while Republicans swept statehouses across the country and used their newfound power to gerrymander a durable majority. Even as Democrats won the popular vote for the House over the next decade, they remained locked out of power. The Obama administration, hobbled by its previous losses, did little to fight the pharmaceutical industry on any major cost-related issues.
But the salience of the problem began to make waves again in 2015 and 2016, as controversies around astronomical drug price increases absorbed headlines. Turing Pharmaceuticals, led by a young investor named Martin Shkreli, purchased the patent rights to a crucial parasitic infection pill called Daraprim, and hiked the price by 5,000 percent overnight. Valeant Pharmaceuticals, a darling of Wall Street, spent virtually nothing on research and development, and simply purchased patents and hiked prices on a range of drugs.
States attempted to push back but were crushed by the tidal wave of pharmaceutical money. In 2016, a California ballot measure attempted to tie the price of Medicaid drugs to the rates paid by the Department of Veterans Affairs — a workaround to lower prescription via collective bargaining. The drug industry plowed into the state, financing the most expensive ballot campaign in history at that point (only to be surpassed by Uber’s Proposition 22 in 2020 over driver classification) to pressure voters into opposing the law. Groups typically aligned with Democrats — such as the NAACP, San Francisco’s historic LGBT Democratic clubs, and longtime Latino civil rights organizations — accepted consulting fees and grants from drug companies that year, and endorsed the drug industry-backed campaign to defeat the ballot measure. Drug industry-backed ads featured an array of Democratic organizations they had funded as they persuaded voters to oppose the measure — which went down in defeat.
PhRMA, according to OpenSecrets, has given $14.6 million to the American Action Network over the last five years, a dark money group that transferred $26.4 million to the Congressional Leadership Fund, the super PAC associated with House Republican leadership during the 2020 elections. PhRMA also financed groups for Democrats, including the major super PACs tied to party leadership and Center Forward, a dark-money group that supports moderate Democrats.
Democrats had promised to enact reform for so long, Sanders said, and had so much public support that failing to deliver would raise the question of what the purpose of electing them was. “And this is an issue of not just lowering prescription drugs. It’s whether or not democracy can work. And if democracy cannot work, if we cannot take on the pharmaceutical industry, why do you go out to ask people to vote?” Sanders asked. “Why do you ask them to participate in the political process, if we don’t have the power to take on a powerful special interest?”
Senator Bernie Sanders (I-VT) speaks to reporters after a meeting with White House officials at the U.S. Capitol in Washington, U.S., October 27, 2021. (photo: Elizabeth Frantz/Reuters)
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Will Pass Biden Agenda This Week
President Joe Biden was dealt a setback on Thursday as the House abandoned plans for a vote on an infrastructure bill before his departure to Europe for an international summit with other world leaders, with progressive Democrats seeking more time to consider his call for a separate $1.75 trillion plan to address climate measures, preschool and other social initiatives. read more
A proposal that would allow the U.S. government's Medicare health plan for seniors to negotiate prescription drug prices to make them cheaper was not included in the social spending bill. read more
"I spent all of yesterday on the telephone... We are continuing that effort (to include the prescription drug price provision in the bill)", Sanders told CNN in an interview on Sunday.
"It is outrageous that we continue to pay the highest prices in the world for prescription drugs," added Sanders, who has championed that cause for years.
Biden had sought to unite his fellow Democrats behind the climate and social spending plan with personal appeals on Thursday, and had pressed for a Thursday vote on the $1 trillion infrastructure bill, another main plank of his domestic agenda.
He hoped a framework on the larger measure would convince progressive House Democrats to support the infrastructure bill, but their insistence that the two move together led House leaders to abandon a planned vote.
The plan also did not include paid family leave or a tax on billionaires with some constituencies angered by the absence of key Biden administration pledges from the bill. read more
The absence of paid family leave, Democrats noted, left the United States as the only rich country and one of the few nations in the world that does not pay women during maternity leave.
Anita Hill. (photo: KK Ottesen/AP)
October marks 30 years since you testified before the Senate Judiciary Committee in the Thomas hearings. Since then, there have been a lot of changes. How do you measure progress on issues of gender violence at this inflection point?
There has been some progress in terms of better representation on the Senate Judiciary Committee, and throughout the Senate, so that when these kinds of issues come up in the political forum there is a more diverse body of knowledge that goes into how they should be considered. We can also measure progress in terms of changes from the #MeToo revelations and the acknowledgement that sexual harassment in the workplace is a serious problem eating away at our institutions. And we can look at the fact that there are [legal] cases being heard now — even though there have been accusations for decades — and I point specifically to the R. Kelly case. And the Epstein case. The Weinstein case.Those are big moments, transformational moments.
But even with the awareness, and even if there has been change, the numbers are still exorbitantly high; the problems persist. And then, once again, we had the Senate Judiciary hearing [for U.S. Supreme Court nominee Brett M. Kavanaugh] with Christine Blasey Ford, showing that there was much that had not changed with the process.
Did you expect a different outcome, or different level of engagement with the issue?
I was hopeful. Though I didn’t have any indication that it would change to a clear and independent process. In fact, the president asked, or demanded, and Senate Judiciary Committee Chair Charles Grassley agreed, that there would be a limited investigation to the two principal parties. Which turned it into this he-said-she-said moment. That could have been avoided. If you bring in all of the witnesses and build context to the events that are being claimed, then you can avoid pitting one person against the other. That’s the real tragedy. And it’s not just a tragedy for Christine Blasey Ford, which it is. It is a tragedy because now, we’ve got two instances where the process doesn’t work. We have to have rules in place, and acknowledge the reality of the problem, and the fact that judges could be abusers.
We have an example from Letitia James in the [Gov. Andrew] Cuomo case, where, even though she was the same party as Cuomo, she called for an independent investigation. I read the report. It was very clear what she did, who she talked to — people on both sides of the issue — how she weighed the evidence, what her conclusion was, and then there was an outcome. And ultimately a sense of accountability. And after that happened, rather than this long public discussion about who was right or who was wrong or whether this was all political, the conversation tamped down to the facts. That’s what we want. And that’s where we want our government to lead us. That’s hard work. And it takes time. But I think we’ve got to demand that our leadership make those commitments to get started on it. And accountability has to come from the top.
Joe Biden was head of the Senate Judiciary Committee that grilled you back in ’91 – and he has since apologized to you for the treatment of you at the time. You’ve said that his apology ought also to acknowledge the harm done more broadly. What should that apology — and real amends — look like?
First of all, there should just be an acknowledgement that what the committee did was a reflection of our how our government values the significance of the experience of sexual harassment or assault. And that really leaves a lot of victims and survivors and their families with the sense that the government really doesn’t care. So public trust in our system, in our ability or our willingness to do something about this problem, has been completely diminished. I think that’s one of the things that a leader of a country can correct. But it has to be directly, and it has to be more than just saying that you are committed to change.
Because even as enormous as [the issue] is, some people refuse to see it. And that’s why we need our leader, arguably the most powerful person in the world, to acknowledge it. Whether it’s Joe Biden as president or whoever is the next president. We need our leaders and our institutions to acknowledge it. Invest in it. Call and engage victims and survivors and their families in the solutions. Do the work. Like, to me, one easy thing is the Violence Against Women Act. In 2000, it was basically gutted in terms of the role that the federal government plays in protecting women. It needs to be restored. It needs to be reaffirmed. It’s been languishing in committee. And again, what we have is a sense that our government doesn’t care.
You’ve said that you never set out to be a crusader— you were a law professor when called to testify. And even after realizing you were going to need to be a voice to help educate people about sexual harassment, you thought you’d give it two yearsand then go back to teaching contract law. Obviously, that didn’t happen.
[Laughs.] It sounds silly, doesn’t it? To think that I was naive enough to think that two years would do something. You know, I’m not the kind of leader that people might envision in terms of rallying people to march. But I made a commitment to do what I can. And I had mentors. One was Lillian Lewis, the wife of Congressman [John] Lewis, who told me about her own activism in Atlanta and how important it was for there to be an African American woman — and a woman with my skills as a lawyer and as a teacher — in this issue of sexual harassment at the time, to have that voice as one of the voices heard.
And then there were thousands of letters. Letters that helped me grow my ideas about what I needed to be talking about. That, yes, I needed to talk about sexual harassment, but the issue was bigger than sexual harassment. The issue, really, covers a whole spectrum of behaviors that are impacting the lives of so many people. And doing harm, reputational and economic harm, to our nation.
Did any of those letters, those stories stick with you particularly?
One of the most compelling was a man who described himself as an incest survivor who connected his experience of telling his parents that he was being abused and their disbelief of him with what he thought when he watched the Senate Judiciary Committee. There was a woman in Kansas City in a line for a book signing, and she came up to me, and she said, “I left my husband because of you.” I said, “What?” She said, “I was in an abusive marriage. And I knew I needed to get out. And when I watched your testimony, I knew then that I was going to do it.”
I was speaking in front of a group of high school students at a [vocational] tech school in California. This was about 10 years ago. And this high school student came up to the mike and asked me, “How does it feel to know that you’ve changed the world?” I mean, I don’t even know that I thought I had changed the world. But I also knew that there were people who were counting on me to do it. He was counting on me. There’s a whole generation of people out there who are still wanting the world to be changed.
So those are my stories of inspiration. They and so many others stay with me because they’re the human experience of this. The woman in Kansas City successfully got out of her abuse. But so many people don’t.
How have you changed since you were thrust into the spotlight 30 years ago?
I’ve always felt that I’m a private person; authentically, that’s who I am. But what I have learned is that there are moments where it’s very important for me to be a public person. Having the right people around helps sustain you. I had a wonderful family that supported me. I had colleagues who supported me. And I don’t take any of those things for granted. But even with all of that, I had to grow. I left law school teaching, not because I had given up on the law but because I knew that in order to be effective, I needed to expand my knowledge base. Which is why I teach in a policy school right now. I knew I had to go and I had to change. And I knew it meant relocating to a different state and a different school, where I felt that I could be heard and there would be no attempts to silence me.
In many ways, I think our journey, as a country, as a society, really tracks my own journey in the sense that we, as a society, have to grow. We have to raise our voices in places that we never thought we would be before, which is what I’m doing.
Last month a McDonald's in Oregon sparked headlines after it put out a banner urging 14- and 15-year-olds to apply. (photo: Bloomberg/Getty Images)
There is something very, very wrong with a system that would rather recruit more kids instead of paying better wages and providing more benefits to adults
Back in the good old days American children didn’t sit around playing video games, making TikToks, and bingeing Netflix. They worked long hours in factories and sweatshops; they knew the value of hard graft. They didn’t take sick days either, they just died of diphtheria. It was a simpler time.
Some US politicians, it would seem, are trying their best to return the country to a golden era of loose labour laws. The Wisconsin senate recently approved a bill that expands the working day for minors, allowing 14- and 15-year-olds to work until 11 pm on non-school nights. Must be fun being a child in Wisconsin! Not only do adults want to take away your free time, they also want to take away your free food. Over the summer school board members in the Waukesha school district made headlines after they voted to leave a federal free meals program because they worried it made it easy for families to “become spoiled” or develop an “addiction” to the service. Imagine if kids became addicted to the government ensuring they didn’t starve, eh? They might not be so keen to work for peanuts until 11 at night. Then you might have to start paying adults a living wage and the whole system would fall apart!
As I’m sure you are aware, the United States – along with much of the world – is facing a dramatic labour shortage amid what has been termed the Great Resignation. Earlier this month the US Bureau of Labor Statistics reported that an unprecedented 2.9% of the workforce, about 4.3 million people, quit their jobs in August. Republicans have been doing their best to starve people back into the low-paid jobs that keep the economy running by cutting off pandemic unemployment benefits, but that hasn’t immediately solved the issue. So some bright sparks have been turning to child labour instead. Over the summer New Jersey passed legislation temporarily increasing the number of hours that kids aged 16-18 are able to work. Meanwhile, fast-food chains across the US have ramped up their efforts to recruit kids. Last month a McDonald’s in Oregon sparked headlines after it put out a banner urging 14- and 15-year-olds to apply.
There’s obviously nothing wrong with teenagers getting summer jobs. But there is something very, very wrong with a system that would rather recruit more kids into the workforce instead of paying better wages and providing more benefits to adults. There’s something very wrong with a system where billionaires have seen their net worth balloon during the worst public health crisis in recent memory – and politicians seemingly have no desire to make them pay their fair share in taxes. There’s something very wrong with a system where minimum wage isn’t enough to afford a two-bedroom rental anywhere in the US. And, increasingly, people aren’t putting up with all this any more. They’re not swallowing the lie that if they just buckle down and work hard, they can achieve the American dream. They’re not quietly getting on with it, they’re organising: the past year has seen a wave of labour uprisings across America. Meanwhile, socialism (once an incredibly dirty word in the US) has been gaining popularity among young Americans. And that last bit should surprise no one. If politicians are trying to bring back child labour to plug labour shortages then I think it’s pretty clear that capitalism isn’t working.
Kellogg’s to give staff in the UK fertility, menopause and miscarriage leave
The company has said it is aiming to help staff feel “psychologically safe” at work. Not sure if that ethos extends to its employees in the US: 1,400 Kellogg’s workers recently went on strike to protest against poor working conditions.
Women are better investors than men
Women’s investment returns were 0.4% higher than men’s, according to Fidelity’s 2021 Women and Investing Study. While that’s not a huge difference, it’s just the latest study to show that women tend to be better with money than men. Women tend to hold their investments for longer and are less prone to panic selling.
Men are increasingly worried about their biological clocks
Sirin Kale profiles the men who are afraid they’ve left it too late to have kids.
US tech investor Joe Lonsdale thinks men who take paternity leave are losers
The multimillionaire venture capitalist tweeted that men with important jobs shouldn’t be taking extended time off to spend with their newborns. “In the old days men had babies and worked harder to provide for their future – that’s the correct masculine response,” he tweeted. The father-of-three has refused to apologize for his comments. Real men don’t apologize, doubling down on looking like an idiot is the correct masculine response!
Sexual misconduct complaint filed against Andrew Cuomo
The former New York governor continues his dramatic fall from grace. Still, things aren’t too bad for him: at least he has that $5.1m payout from his book on leadership to fall back on.
Polish parliament debates bill banning LGBTQ pride parades
Poland has become an increasingly hostile place for LGBTQ people in recent years.
US issues its first passport with ‘X’ gender designation
X-citing news for non-binary people!
Study finds California condors can have ‘virgin births’
Researchers believe it is the first case of asexual reproduction in any avian species where the female had access to a mate.
The week in phonecall-archy
Like every sensible millennial, I do not pick up my phone to unknown numbers under any circumstance. Nor, it seems, does a hiker who got lost in Colorado recently and repeatedly ignored phone calls from a search and rescue team because he didn’t recognize the number. I appreciate the dedication to avoiding spammers, but that was a very bad call.
US Supreme Court associate justices Amy Coney Barrett, left, and Brett Kavanaugh arrive at the inauguration of President-elect Joe Biden at the US Capitol on January 20, 2021, in Washington. (photo: Drew Angerer/Getty Images)
Maine’s vaccine mandate for health care workers survives a challenge from religious conservatives.
Yet, while this order, which is also accompanied by a one-paragraph concurring opinion by Justice Amy Coney Barrett and a longer dissent by Justice Neil Gorsuch, is quite brief, it is significant because it suggests that there may be some limit to the conservative majority’s solicitude for religious conservatives.
Earlier in the pandemic, the Court handed down a pair of decisions that revolutionized its approach to religious liberty cases and granted churches and other houses of worship broad exemptions from public health orders intended to control the spread of Covid-19. The Court’s Friday evening decision in Does v. Mills, by contrast, appears to have been decided on the narrowest possible grounds. Though it is a loss for the religious right, it is not an especially significant one.
Maine requires nearly all health care workers to be vaccinated against Covid-19. It argues that this requirement is necessary because those workers are unusually likely to interact with patients who are vulnerable to the disease, and because the state’s health care system could potentially be disabled if too many health care workers are infected. The state does exempt a very narrow slice of health care workers, however: those who risk adverse health consequences if they are vaccinated, such as people with serious allergies to the vaccine.
The plaintiffs argued that religious objectors must be exempted from this requirement because the state also provided an exemption to people who could suffer health consequences if they are vaccinated — an argument that is, at least, plausible under the Court’s recent religion decisions. They were supported in an amicus brief by the Becket Fund for Religious Liberty, arguably the nation’s most sophisticated law firm representing religious right causes.
In a dissent joined by Justices Clarence Thomas and Samuel Alito, Gorsuch essentially agrees with the plaintiffs, making the case for granting a religious exemption to the state’s vaccine mandate. Quoting Tandon v. Newsom (2021), one of the Court’s two recent decisions granting places of worship an exemption from certain public health rules, Gorsuch claims that a law is constitutionally suspect “if it treats ‘any comparable secular activity more favorably than religious exercise.’”
Thus, under Gorsuch’s approach, the state must exempt religious objectors because it has a single exemption — again, for people who could suffer serious health consequences if they receive the vaccine.
Had Gorsuch’s approach prevailed, it’s likely that religious objectors would be exempted from nearly any law. Speed limits, for example, typically exempt police, ambulances, and other emergency vehicles responding to an emergency. Even laws banning homicide typically contain exemptions for self-defense. (Although, in fairness, Gorsuch concedes that a religious exemption is inappropriate when the “challenged law serves a compelling interest and represents the least restrictive means for doing so.” So Gorsuch probably would not allow religiously motivated murder.)
In any event, Gorsuch’s view did not prevail — though it is far from clear that it will not receive five votes in a future case. Though Justice Barrett joined a majority of the Court in allowing Maine’s vaccine mandate to take effect, her opinion (which is joined by Justice Brett Kavanaugh) clarifies that she did so on exceedingly narrow grounds.
Essentially, Barrett argues that the Supreme Court has discretion to decide which cases it wants to hear. And her opinion suggests that she would exercise her discretion to not hear this particular case.
That’s consistent with an approach she laid out in a 2017 essay, where she argued that Supreme Court justices who encounter an argument that they think is legally valid but that would lead to disastrous results should exercise their discretion not to hear a case raising that argument.
For now, at least, the bottom line is that Maine’s vaccine mandate is in effect. Public-facing health care workers will need to receive the Covid-19 vaccine unless they have a medical excuse.
Again, it’s not a huge loss for the religious right. But the decision in Does suggests that there is, at least, some limit to the Court’s willingness to carve out legal exemptions for religious conservatives.
Supporters of the Umma Party, Sudan's largest political party, chant slogans during a protest against a military coup, on October 29, in the city of Omdurman. (photo: Ebrahim Hamid/AFP/Getty Images)
A takeover by military leaders is threatening the country’s democratic transition. But protests are erupting in response.
The country’s democratic project began just two years ago, after Sudan’s longtime dictator Omar al-Bashir was ousted amid mass protests in 2019. Civil society and protest leaders and the military ultimately reached a power-sharing arrangement that put both in charge of the country with the commitment of transitioning to full civilian rule, which would lead to a new constitution and elections in 2023.
Monday’s coup has upended that entire endeavor, fracturing what was already a tenuous arrangement between the military and civilian factions and jeopardizing any gains made. Lt. Gen. Abdel Fattah al-Burhan, Sudan’s top general, orchestrated the power grab, detaining the civilian prime minister Abdalla Hamdok and other civilian leaders, and firing ambassadors who resisted the takeover.
But the coup also reignited resistance, as protesters returned to the streets in cities and towns across Sudan to denounce the military takeover. The Sudanese military shut down the internet, making it difficult to fully understand the scope of the resistance — and the security forces’ response to it — especially outside major cities like Khartoum. At least 170 people have been injured, and at least seven people killed in Monday’s protests, according to data compiled by the UN Office for the Coordination of Humanitarian Affairs (OCHA). Some pro-democracy leaders have reportedly been detained.
All of this makes for a very volatile, and unpredictable, situation. Despite international and regional pressure on the Sudanese military to restore the transitional government, experts said it is difficult to see a way forward under the same framework. “The trust has been broken,” said Michael Woldemariam, director of the African Studies Center at Boston University. “The military has really bared its teeth here — and the more that we see violence deployed by the security forces, the more difficult it’s going to be to go back to this old arrangement.”
That offers a bleak outlook for Sudan’s democratic experiment. But Sudan’s civil society, which helped bring about the revolution that ousted al-Bashir in 2019, remains well-organized and strong. Civil society groups are calling for large-scale protests on October 30 in the latest act of defiance against the coup. From the beginning, protesters did not trust the military to usher in democracy, and they’ve continued to distrust the armed forces and push for civilian control, even before the takeover this week.
The coup proved the pro-democracy camp right, which is strengthening their demand for a civilian-led government. How they can achieve that is uncertain, but the ongoing protests are a sign the military cannot fully undo the democratic project Sudan started.
“What’s being spread around now is that ‘we’ve done this before, and we can do it again,” said Sarah O. Nugdalla, a Sudanese researcher currently based in Washington, DC. “That is the spirit right now. It’s again ‘we have nothing to lose.’”
Sudan’s transition was already pretty shaky before the coup
There were plenty of warnings that Sudan’s democratic transition was in danger. The transition process was always a bit unstable. “This entire time, it’s been a very uneasy marriage,” said Akshaya Kumar, director of crisis advocacy for Human Rights Watch.
The core of this uneasy marriage was a pact between the Transitional Military Council, led by al-Burhan, and the Forces of Freedom and Change, the coalition of civilian opposition groups, led by now-deposed Prime Minister Hamdok. The ultimate goal of the transitional government was to ease into a fully (and eventually democratically elected) civilian-led government, with the military exiting from ruling powers.
A 2020 peace deal also brought rebel groups into the transition — a vital part of the process, but one that added new factions with competing interests. All of these tensions had been rising in recent months, as pressure grew on the military to keep to its commitment to hand over its powers to the civilian-led government. It also came amid calls for more government accountability, especially over abuses by security forces, including those related to a 2019 massacre of peaceful protesters. The military likely felt that it needed to protect its interests — political ones and, just as importantly, economic ones that come from being entrenched in power for decades. “They just didn’t want to give that up,” Woldemariam said. “They felt like this is going to be their last shot to hold on.”
And military leaders may have assumed that the rest of the region wouldn’t really care at all about a coup, including Egypt, and Gulf states like Saudi Arabia and the United Arab Emirates. These countries have grown close with Sudan, and also aren’t exactly known for embracing democracy. The Sudanese military “perhaps had confidence — or an assumption — that the region would turn a blind eye to this,” said Joseph Tucker, senior expert for the Greater Horn of Africa at the US Institute of Peace (USIP). “I think that’s a key part of this, just we don’t know the particulars of what messaging, if any, the military got.”
The full unraveling began in September, after authorities thwarted a coup attempt allegedly staged by al-Bashir loyalists. That thrust the divisions into open view, with the military leaders accusing civilian politicians of creating the conditions for a coup by ignoring the needs of the people, specifically Sudan’s dire economic situation. Civilian leaders criticized the military for threatening the democratic transition. An alliance of rebel leaders and some civilian leaders joined with the military to call for the government to be dissolved. Protests broke out across Sudan in October, including one big pro-democracy, pro-civilian government-led protest in Khartoum last week.
And then, on Monday, the military stepped in for real. The military detained Hamdok and other civilian leaders. Al-Burhan declared a state of emergency and claimed he was dissolving the transitional government because the divisions within it were so intense that it risked possible civil war. “The experience during the past two years has proven that the participation of political forces in the transitional period is flawed and stirs up strife,” he said.
Al-Burhan said the military would instead appoint a technocratic government — read, the people they like — and they would plan for the elections in July 2023. He also, bizarrely, claimed that Hamdok was taken to al-Burhan’s home for his safety, though the prime minister has since returned to his own residence but under security.
This is obviously pretty standard coup stuff — claim that the government is in crisis, say that you’re still into democracy, you just want to get there on a totally different path than originally agreed to, and only if you can call the shots, oh, and we’re just going to shut the internet down in the process. But a big portion of the public seems unlikely to buy this self-serving justification. “I don’t think that holds water among the public that are out there protesting,” Tucker, of USIP, said.
Democracy in peril, or another revolution?
Sudan’s transition was imperfect, but it also was a remarkable achievement for a country that had seen military coup after military coup. The military interceded in al-Bashir’s ouster in 2019, but a revolution led by civil society actors and professionals and grassroots organizations ushered in the dictator’s downfall and this current transition.
These are still powerful forces in Sudan, and they are already mobilizing against the military takeover. Pro-democracy groups called on their supporters to protest, and the Communist Party directed workers to go on a mass strike, according to Al Jazeera. Nugdalla, who has been in contact with friends and activists on the ground in Sudan, said, at first, there was a sense of depletion. “My friend told me women in the streets were holding each other and crying just in disbelief that they were back in the same place, again, fighting for their democracy again, something that they had just done.”
After depletion, there was action. Activists connected on social media and email, and if the internet was out, they found ways around it — handing out papers in smaller neighborhoods or getting local mosques to announce civil disobedience actions. “They know what to do; now, they know what not to do,” Nugdalla said.
In Sudan, now that the democratization process has started, the military is unlikely to be able to undo all of the gains. It can, and did, usurp the transition process, but the transition itself was transformative, even if incomplete. It made peace with rebel groups, it expanded religious freedoms, it put al-Bashir on trial. “These are all changes that I don’t think a military transitional government can overcome,” said Alden Young, an assistant professor of African American studies at UCLA. “I think we’ve seen a broad democratization of where people come from to participate in civil protests and the depth of that participation.”
Sudan is also facing real crises, beyond one of governance. The country is in deep economic disarray. There is the Covid-19 pandemic and one of the world’s lowest vaccination rates, plus increasing tensions with Ethiopia, which is in the middle of its own catastrophe. The military bet that it could blame civilian leadership — “the politicians” — for failing to solve these problems and try to exploit disillusionment with the transition process. But so far, the backlash on the streets suggests a lot of the population is still putting the blame on the people doing the coups, and the military that’s been in power for decades. “What can be said is that the civilians have shown within the last few years that they are not willing to just accept things as they come,” said Christopher Tounsel, assistant professor of history and African studies at Pennsylvania State University.
The resistance from the Sudanese public doesn’t make the military coup any less troubling and threatening to Sudan’s democratic experiment. Few experts thought that the transitional process could be salvaged in its current form; many said Sudan’s best hopes, even with an active public, will be for progress down the road. “We’ve seen many times in Sudanese history where it’s never too late to pull things back from the brink or to negotiate a new dispensation that creates a broad enough coalition to move things forward,” Tucker said. “That’ll be very hard to do in the near term; I think we’re looking at a medium- to long-term situation unfolding here.”
That medium- to long-term situation still may be pretty tense for the region. Sudan was a bright spot in a region otherwise in distress: dictators in neighboring Chad, South Sudan, and Eritrea, and Ethiopia — once a success story — now engulfed in conflict. This coup could destabilize the region even more.
The international community is also trying to put pressure on Sudan. Its democratic transition helped it reestablish ties with the US and other Western allies, and this coup may undo all that. The US has said it is suspending $700 million in aid to Sudan. The “troika,” the team of the US, United Kingdom, and Norway that has traditionally engaged with Sudan, has condemned the coup, and has continued to recognize Prime Minister Hamdok. The African Union has suspended Sudan.
The US is trying to put some pressure on the Gulf states, like Saudi Arabia, to get them to use their influence to avert a deeper crisis. Whether such international pressure will work is an open question — especially since the US Special Envoy to the Horn of Africa met with Sudanese officials in early October to tell them to stick to the democratic transition or risk losing US support. (And then, yeah, they went ahead and did the coup a few weeks later.)
But for now, the Sudanese pro-democracy and civil society groups are mobilizing to preserve the democratic experiment they’ve started. Nugdalla said now there is no other option but to fight for full civilian rule. “People are tired, they’re angry, and they’re ready to die, unfortunately, if that’s what it takes,” she said.
Climate change activist Greta Thunberg was mobbed on Oct. 31 when she arrived in Glasgow to attend the COP26 climate change summit. (photo: twitter)
The Swedish teenager, who is something of a rock star for climate campaigners worldwide, is among thousands of activists descending on Glasgow for the 12-day U.N. Climate Change Conference, known as COP26, which kicked off Sunday. They are calling on world leaders to take bold action to prevent global temperatures from rising by more than 1.5 Celsius above preindustrial levels.
Speaking to the BBC’s Andrew Marr, in an interview aired Sunday, Thunberg said that the 1.5 Celsius goal was “possible in theory” but that “it’s up to us if we want that to happen.”
Thunberg arrived by train in Glasgow on Saturday night and was quickly surrounded by about a hundred people at the station. Several police officers escorted her away.
“Finally in Glasgow for the COP26! And thank you for the very warm welcome,” tweeted the 18-year-old, who included a picture of her giving a thumbs-up to the crowd. Scotland’s Sunday Mail newspaper called the scene “Greta Mania.”
Thunberg traveled to Glasgow from London, where she had taken part in a protest demanding that financial institutions stop funding fossil fuel extraction.
In the BBC interview, Thunberg said that sometimes anger was the right response in the face of governmental inaction on climate. She was asked about the protest tactics of climate campaigners in Britain, who in recent weeks have been blocking roads.
“To make clear, as long as no one gets hurt … I think sometimes you need to anger some people,” she said. “Like, for instance, the school strike movement would never have become so big if there wasn’t friction.” Thunberg was referring to the youth climate protest movement called Fridays for Future that she founded in 2018.
Thunberg is expected to take part in a demonstration on Friday organized by the Scottish arm of Fridays for Future. She is also scheduled to speak at a demonstration the following day.
In the BBC interview, Thunberg said she hadn’t “officially” been invited to speak at COP26.
“I think that many people might be scared that if they invite too many radical young people, then that might make them look bad,” she told Marr, using air quotes to emphasize the word “radical.”
She said the conference needed “more representation from the so-called Global South, from the most affected people and areas.
“It’s not fair, when, for example, one country sends lots and lots of delegates, and then another country is very underrepresented. That already creates an imbalance, and climate justice is at the very heart of this crisis.”
The COP26 Coalition, which represents youth strikers, trade unions, faith groups and others, has called the climate summit “the most exclusionary in history, with thousands blocked from making their voices heard.” The coalition said that people have been hindered from getting to Glasgow, citing a lack of access to coronavirus vaccines, travel restrictions, sky-high accommodation costs and other obstacles.
One American delegate shared on social media his exchange with a property owner who asked for an extra $2,000 after realizing that the rental period overlapped with the summit.
About 25,000 guests from nearly 200 countries are expected to attend the summit. Downing Street said it was one of the largest events Britain has hosted.
Leaders from more than 100 countries are expected in Glasgow for crunch talks on Monday and Tuesday, but there are notable absences, including the leaders of China and Russia. Earlier this month, Queen Elizabeth II appeared to express irritation at world leaders who wouldn’t commit to the summit.
Asked about the monarch’s remarks, Thunberg said most people would concur with the queen.
“Yeah, I think most people agree with that,” she said.
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