Plea Bargaining Away January 6th

 

So Buffalo Man, aka QAnon Shaman, has met reality in the form of a jail and now he realizes there are grown up consequences to his role playing game which involved invading the People's House on January 6. 

We see this sort of thing all the time in hospitals, and I'm told it's true on battlefields, where the big, tough guys with all the swagger are suddenly faced with the reality of actual pain or life threatening circumstance and suddenly are weeping and crying for their mothers.

All that is easy to understand.

What is difficult to understand is why the prosecutors play along.

If I understand the idea of a plea bargain is to free up the court, i.e. the judges, and the prosecutors from all the effort, trouble, expense of a trial.

But in this case, is a trial, a public proceeding with witnesses and testimony and judges and juries not exactly what is required here? 

What are these prosecutors being paid for, if not to protect society?

As the  trial of the killer of George Floyd demonstrated, there is something therapeutic about the right kind of trial for the right kind of criminal. 

"Show trials" have got a bad name: The idea is the verdict is preordained. But the show is the point. Public opprobrium is the idea.

You may say, "But what if the jury lets him off?"

Well, that is a chance you take. But with the right venue, the likelihood this guy will walk is low.

The Nuremberg Trials were about this. 

Did they plea bargain with Herman Goering or any other Nazi at the trials of those men who brought mayhem and atrocities to Europe?

I want to see Buffalo Man on TV while witnesses testify to what they saw him do.

Lot of work, sure, but nothing compared to the work policeman and soldiers put in every day. Those white collared prosecutors can earn their pay and bring these miscreants to trial the way they are supposed to do.

Texas Anti Abortion Law: The South Secedes from the Union, Once Again

 

So, Texas has outlawed abortion and Mississippi will soon follow, as will, likely the entire Confederacy. 

Great cries have gone up from pro choice folks saying that a minority of White males have thrust this outcome down the throats of American women and the Right has triumphed through trickery,  through Mitch McConnell's corrupt bargain with the Evangelicals to buttress the Right flank with reliable anti abortion Supreme Court justices while they rammed through this unpopular legislation through state legislatures.

Mad Dog does not see it that way.

Defining abortion as any termination after a "heartbeat" is audible is the right of the people's representatives. Electing a President who promised to create a Supreme Court which would agree that termination of pregnancy after 6 weeks is is an expression of popular will. 

It is, in a word, democracy.

Drawing a line between what we call "infanticide" and abortion has always been a matter of popular will, much as some would say it's a matter of theology to be dictated by priests or a matter of law, to be dictated by courts.

The fact is, drawing that line is exactly what Justice Blackmun did in his famous 1973 decision, which most people have never bothered to read.

Mad Dog had read it, though. Mad Dog was astonished to see Justice Blackmun progress from a history of attitudes toward abortion toward a scheme for drawing the line at fetal viability--i.e., the point at which the fetus/baby can exist outside the womb, just as Mad Dog had done in 1969, when he wrote his senior thesis in college.

At Mad Dog's college, you had to write a senior thesis before you graduated, and Mad Dog, having majored in an interdepartmental major was allowed to write his thesis outside of a single department, e.g. Biology. So he chose an ethics professor from the Department of Religious Studies as his thesis adviser and chose "The ethics of abortion."

This professor was an ordained Episcopalian priest and Mad Dog met with him at least once a week to discuss his thinking about what constitutes abortion and what constitutes infanticide.

Mad Dog began with the proposition that until the baby is delivered and draws his first breath, it's abortion to interfere.  The Catholic Church, in its early days had said as much.

"Then, you have no problem with holding a scalpel in the birth canal, as the baby is hurtling down to be delivered, to see the light of day, and meeting that onrushing skull with a lethal blade?" the professor asked, blandly.

"Well, no, " Mad Dog, age 21, had replied. "That seems more like murder."

"Ah," the professor said, smiling faintly. "Then you have a problem."

Ultimately, Mad Dog looked through what others had said and what others said was the distinction between abortion and infanticide is all about line drawing and the line had been drawn all over the place by different people and different groups at different times.

Mad Dog liked the idea of drawing it at "viability" but as his professor noted, viability is a slippery margin: As medical science progressed, and as pediatric intensive care units improved, younger and younger babies could be delivered and rescued and survived. So in 1969 a baby born at 26 weeks had a chance, barely, but by 2020  who knew where that line would be? Right now, 22 weeks is likely not a viable time for most but a few can rarely survive.

Likely, today, it's closer to 24 weeks.

Blackmun drew the line around the end of the 2nd trimester, 27 weeks.

That was 1973.  

Had Mad Dog gone to law school after graduating college in 1969, he might have called Justice Blackmun up to congratulate him on joining him in a "great minds think alike" moment. But Mad Dog had not gone to law school. He had gone to medical school and 2 years before the Roe opinion abortion had become for Mad Dog not an intellectual exercise, but a very different sort of reality. By the time Blackmun wrote a recapitulation of Mad Dog's Roe opinion, Mad Dog had seen abortion in the real world. 

In 1971 Mad Dog was doing his first clinical rotation as a medical student on Obstetrics and he witnessed the "salting out" of a 22 week old fetus. This "fetus" or "kid" or "baby"  came out the vaginal canal after a catheter had been placed through the cervix into the womb and hypertonic saline (thus the name "salting out") had been infused until the uterus started contracting and the baby expelled. The obstetrician quickly captured this creature, this semi life form, and handed off to the circulating nurse who scampered out of the delivery room into an equipment room where she placed it on a stainless steel tray.  The nurse wasn't quite quick enough to elude the eye of the woman would would have been its mother, and glimpsing what the nurse held, she called out, "Oh, baby, I'm so sorry!"  

22 week fetus

Mad Dog looked at the conceptus, the best name he could think to call it. It was not breathing. It never drew a breath that Mad Dog could see. But it looked fully formed, like a tiny version of a baby about the size of a hand. It wasn't really alive, but it wasn't just formless tissue. "It's dying and it's barely been born," that Dylan line strikes a cord, although, it wasn't really dying if it's never actually ben alive. 

And Mad Dog thought to himself, "This feels wrong."

Mad Dog had seen a gynecologist scrape out the "products of conception" of an 8 week pregnancy and the doctor wiped his curette off on a cloth gauze pad and examined it after every few scrapes saying, "Yup, that's it." And Mad Dog could not see anything on that pad that looked remotely like a human being or like any defined structure. It looked like a few shreds of hamburger meat, not like anything living.

But that 22 week old conceptus resembled a human being. 

Mad Dog asked himself at the time, had he just witnessed a murder? Certainly the nurse and the woman from whom that entity had been removed seemed remorseful. But what was that thing? 

It was potential life, but not fully realized life. It did not breathe or move or look around with open eyes. But if there had been a law which said that any pregnancy that reached 22 weeks or even 20 weeks was protected, Mad Dog could have been persuaded.

So where are we now?

In Texas, it's 6 weeks.

Fetus 6 weeks

Even at 8 weeks, the conceptus looks more Martian than human.

But, right-to-life would argue, what does it matter what it looks like?

Fetus 8 weeks 

On the other hand, the same folks who say it doesn't matter what it looks like want to show mothers ultrasound images of their 6 week old fetuses, which, like clouds in the sky, look more like babies than the actual article does. The ultrasound is image + imagination, just like clouds.

8 weeks ultrasound

Looking like a dinosaur does not make a cloud a dinosaur.

Not a dinosaur

It's that old, "This is not a pipe" thing. The treachery of images.

If it has a "heart beat" the Texans argue, it's alive. The problem is: How do you define "heart beat"? There really is no true heart, as defined by the presence of fully mature heart cells until after 20 weeks. If it "beats" does that make it a heart? This heart beat argument is really just the audible version of "this is not a pipe."

Likely, the entire South and parts of the Mountain West will outlaw procedures to end pregnancy very early on--some states will say as soon as sperm meets egg. 

Women will then leave those states and seek their abortions in "free states" in the north or on the West Coast.

The question of whether there will be some 21st century version of the Fugitive Slave Act will ensue. What if a Texas woman terminates her pregnancy in New Mexico or California? What if a woman from Mississippi flies to New York City to terminate her pregnancy?

Will these women be arrested upon return to Texas or Mississippi?

If they chose not to return can someone in Texas sue that woman in Texas and demand she be extradited to face Texas justice in her home state?

Pro choice folks argue that this is all about a woman's reproductive rights.

They argue that a woman has a right to control what happens to her own body.

But the right-to-lifers argue that is true-- until there is another person's body at stake and just because that body happens to reside inside a woman does not give that woman the sole right to decide whether it lives or dies.

The captain and owner  of a steamship may have the right to sink his own ship. It's his property. But if there are people in the below decks hold, he cannot be allowed to use that ship as he sees fit, if he wants to sink it.

Texas has taken the whole debate to the extreme: It deputizes every person living in Texas as informants and gives them legal standing--informers can be rewarded with $10,000 if they get wind of a woman who has sought out and accomplished an abortion and these informers can sue a man who gives that woman a ride to a clinic in New Mexico.  Texas has become a Statsi state and turned into East Germany, or Hitler's Germany, more like, with citizens giving up Anne Frank to the local Gestapo.

But that's the South. From Texas across Louisiana, Mississippi, Alabama and Florida, we expect as much. Missouri, Arkansas, South Carolina are locks to follow suit. There may be some debate in Tennessee, Kentucky and West Virginia, but they'll likely go that way.

North Carolina and Virginia might demur.

Oklahoma, Kansas, Utah are locks for outlawing abortion.

But this is, in the final analysis, the will of the people, of people speaking through their state legislatures to get what they want. 

We may not agree. We may not like it up here in New Hampshire, but that's their choice.

What we have to decide is whether or how much their preference for Donald Trump, Alex Jones, Jim Jordan, Mitch McConnell and Tucker Carlson matters to us.

 

Tone Deaf Antoinette

 

Shepard Fairy

I been cheated

Been mistreated

When will I be loved?

--Linda Ronstadt (among others)

"I think the nouveaux riches Obamas are seriously tone-deaf," said the authority on opulence, Andre Leon Talley. "We all love Beyonce. But people have so many things to worry about with Covid, voting rights, climate warming. People are afraid of being evicted from their homes. And the Obamas are in Marie-Antoinette, tacky, let-them-eat-cake mode. They need to remember their humble roots."

--Maureen Dowd, quoting Talley, appreciatively

Oh, Maureen, I know just what you mean!

I worked SO hard getting Barack Obama elected! 

I stood on a "visibility" line, holding an "Obama for President" sign in the middle of Hampton, one Route 1, across from "The Old Salt" restaurant. And that wasn't the worst of it: I was new in town, still trying to figure out how tough this campaign was going to get, and chatting with a blue haired doyen (dressed in Ann Taylor from head to toe), and she was telling me Republicans in New Hampshire were misguided, but not unreasonable, when a pick up truck drove by and a goateed guy leaned out of the window and shouted, "Nigger lover!"

And I thought things were tough down home in Maryland. 

But I soldiered on, going canvassing with my neighbor, locally known as "The Madonna" (named not after the singer, but the less famous mother of God.) We knocked on door after door, braving dogs and hornets' nests and Madonna of Hampton connected with each dubious home owner who bothered answering the door; she quickly established some connection, either through Winnacunnet High School or The Academy or  some book club or library committee, through children and children's friends, and then she got on to why they should vote for Obama, and damned if it didn't seem to work, at least for thirty seconds, until they returned to their televisions, which we could hear or see back in the living rooms, tuned to Fox News.

And I bought that Shepard Fairy poster of Obama and framed and hung it in my hallway upstairs outside the guest bathroom. 

Oh, how I suffered and worked for that man.

But was I invited to the big bash for his 60th birthday?

And me just down the road in New Hampshire and across the ocean from Martha's Vineyard?

Not a peep.

I wasn't even briefly invited, not to mention disinvited.

I didn't even make the first cut!

And that left me home, worrying about Covid and global warming and voting rights and worrying about other people who might face all sorts of travails.

But not a sniff from the Obama people. Not so much as an engraved invitation I might frame, not to mention a photo op with the former President. (He will always be my President.)

My neighbors and I briefly considered holding our own birthday party for Obama and for the Queen (both August 4th, which must mean something in the cosmic realm) and we would have a cake and play on youtube his victory speech in Grant Park that glorious night in November, 2008, when he won and he walked out on stage and said, "If anyone here ever doubted that in this country, the United States of America, anything is possible, then this night will be your answer." And there was Oprah sobbing, tears running down her cheeks, and damned if there weren't some on mine. 

Obadiah Youngblood

But nobody so much as sent a limo to pick me up to take me to the ferry on August 4. And me just down the road in New Hampshire.

And I read Michelle's book, "Becoming" so I know she didn't come from money. And Barack himself, well, he was so poor his mother had to move to Indonesia, so enough said. And for him to forget his roots and fail to remain forever impoverished is just close to unforgivable.

I mean, if you're going to get rich and throw parties, you got to do the Gatsby thing and invite everyone, all the poor folks, like Lincoln and Andrew Jackson did at the White House. Really, I'm sure the Proud Boys would have swallowed a little pride and caught a boat to the shindig.

Alice & Martin Provensen

You know, I bet even Trump had a party at Mara Lago on August 4th, and you know he didn't let just anyone in, but then again, nobody expects him to allow the hoi polloi to cross his threshold, because he's from money, and when you're from money, you don't owe anything to anybody. But Obama owes everybody and he should not be allowed to have a good time and enjoy his money because that money doesn't belong to him; it belongs to everyone who ever helped him, which would include me for standing on Route 1 with that sign and listening to the blue haired lady.

Oh, Maureen, how you nailed it. You think they are your soul mates, your brothers in arms and then they get rich and forget all about you!

It's like that song: nobody needs you when you ain't got a penny, and all your friends you ain't got any.

So where is my invitation?

The Incompetent Coup

 

When Adolph Hitler got thrown in jail for his part in the beer hall putsch, shots had been fired and he walked the walk with his storm troopers, until he got whisked away and he hid in a friendly woman's house. He used his trial to denounce Communists and weaklings and he used his brief prison sentence to write Mein Kampf, reputedly the only book Donald Trump has ever (at least partially) actually read.

Read about Hitler's manipulations of the Reichstag, of the reigning leader, a monarchist called Hindenburg, his careful manipulations of the rules of the Weimar Republic and you see he was clever and sly and when he did his coup to seize control of the government, he had a plan and he had armed troops, the Freikorps, a true paramilitary organization.

During the run up to Hitler's seizure of total power, there were 500 assassinations of politicians who opposed him.

When South American, Africa and Asian governments fall to coups, power flows out of the barrels of guns. 

When General Mark Milley contemplated the possibility of a coup emanating from Donald Trump, he correctly observed Trump did not have the "guys with the guns."

Writing in the New York Times, Christopher Caldwell makes one good point: Trump's actions to incite a coup were at best an incompetent effort, and at worse simply the role playing game of a born loser and Caldwell makes several insipid assertions about the role of General Milley, which was, as it turns out, prescient and well intentioned.

Caldwell is scandalized because the General observed that no coup can succeed without guns and that in his role as chief of the Joint Chiefs and knowing the FBI and CIA would not support Trump with their guns, no coup could succeed. Isn't is terrible that General Milley saw his role as crucial to preserving the stability of the Republic?

"General Milley seems to have a grandiose conception of his place in government,"
 Mr. Caldwell says.

Actually, no. The general is simply stating the bare facts. 

Caldwell's main point is Trump was simply too pathetic, too incompetent to have been a real threat for a coup. He was more like those men who do role playing with foam rubber swords in the park. He is to be taken seriously but not literally. As Sidney Powell's lawyer said about her statements about the voting machine company changing Trump to Biden votes, "No one would think she meant that seriously."

But, of course, she did, very clearly, mean that seriously.

If not a coup, did Trump "incite" a riot?

The history of incitement has a very long and sorry history in the United States, the First Amendment notwithstanding, dating back at least to Oliver Wendell Holmes's famous remark limiting the protection of the First Amendment, which he said did not allow any citizen to cry "fire" in a crowded theater when there is no fire, because that speech can be seen as a "clear and present danger" to all those who panic and stampede.

There have been a series of cases which culminated in Bradenberg v Ohio, in which the rule was put forward that speech is  protected unless it can be shown to result in "imminent lawless action."  So you can shout from the stage, "We have to rid our community of these Black vermin! We have to fight for the purity of our white women!" and you are protected. 

But if you point to a Black man in the crowd and shout, "We have to string up that Nigger!" and if the crowd lynches the man, then you are responsible.

The actions of some members of the crowd alone cannot indict you: if 5 Dallas police officers are killed after a rally against police violence, if some stores are burned in Minnesota after protests over a police killing, the speakers who decried the police cannot be held responsible because they did not call for "imminent lawless action."

When Trump shouts his supporters have to "fight like hell," and march down to the Capitol to defend democracy and prevent the big steal and his supporters march down to the Capitol, and at least some of them erect a gallows, bludgeon police and kill some police, is that not the exhortation to imminent lawless action or, at the very least, shouting "fire" in a crowded theater?

It is true, Trump did not say, "Go kill the Capitol police and burn down the Capitol with the Congressmen in it!" 

But, I would submit, he said enough to qualify as provoking or at least facilitating imminent lawless action. 

There are legal questions about whether acting as President, Trump is protected in a way he would not be as a private citizen, but that's all niggling. 

To my mind, his defense, "I didn't mean it literally" is no different than Sidney Powell's defense. He was standing in front of a crowd, many of whom wore T shirts saying, "Civil War Now!" and worse. He had the Proud Boys, proud white nationalists who want to fight a race war in front of him. If he didn't know this crowd, like many crowds at his rallies could be expected to react in a Kristallnacht manner, he should have known.

So, I would leave the coup talk out of it.

I'd simply say, the man cried fire in a crowded theater; if he did not shout "To arms! It's time to hang some Congressmen and the Vice President!" he still urged upon the crowd he had called together to commit imminent lawless action.

He should serve prison time for that. And long enough so that if he does write a Mein Kampf or manage to get on Twitter or some social media, he's so old by the time he gets out, he'll no longer be a danger. 

January 6th: Snowflake History or Pulling Back From the Brink?

 

Watching clips of the testimony of Capitol Police before the House Select Committee today, I could not get out of my mind a single number attached to the 20 year Weimar Republic, which emerged out of World War One as an interregnum between that war and the next:  Over that period there were roughly 500 assassinations, which is to say murders of politicians, public officials in Germany, mostly in Berlin and almost all of them murdered by right wingers, Nazis.

There were also innumerable beatings by Nazi street thugs we often tend to write off as sort of "boys will be boys" sort of stuff, but as Christopher Isherwood describes one beating, he noted the eye of the Jew attacked hung out of its socket,  drooping on his cheek and his skull was clearly fractured. 

The videos released recently show the thugs attacking the Capitol stabbing at police with flag poles, battering them with clubs, but nowhere evident are the attack rifles or other guns we have heard were carried by the attackers.  And we hear no gunfire.

Watching the losers parading through the Capitol, sitting in Nancy Pelosi's chair, there was almost a clownish atmosphere of the inmates in charge of the asylum and not quite sure what to do with the place. Oh, they smeared feces on the walls, which a certain type of mental defective will do--feces are often the calling card of that sort of derangement. 

It has been widely reported that of the 2300 sworn officers only about 800 were on duty that day despite the widely advertised intent of organizing a mob to overwhelm the Capitol. No National Guard lined up to protect the building. 

There was a time, some of us remember, when the National Guard did line up with rifles pointed and fired and shot down unarmed students at Kent State. And there were ample examples of Trumps troops festooned with T shirts saying, "The Civil War Starts Now!"  So you know there were provocateurs in that crowd, hoping to start something which would ignite a real conflagration. 

It doesn't take much imagination to think there were rifles under those jackets, men just hoping for a firing line from the government so they could finally use all those attack rifles and rocket launchers they had been cherishing and collecting for the great apocalypse they so desired.

                                                                

Some of the half wits floating before the cameras smiling and sending pictures home to their mothers were nothing more than men with the mental age of children playing a sort of "Role Playing Game" the same  guys who play with foam swords on weekends.

For others, more adult plans were no doubt afoot.

When the crowds in Idaho gathered before the Randy Weaver homestead at Ruby Ridge, to block the federal police, they shouted out slogans about the apocalypse and Weaver had attended meetings of Aryan Nation types who predicted an Armageddon conflict, a war between the races for control and supremacy over America. 

One Capitol Police officer testified today, repeating the words of his attackers: "This nigger here voted for Biden!" But on national TV and NPR the word "nigger" was bleeped out and reporters told us in stricken tones the attackers had used the "N word." 

As if the Republic would come crashing down if America heard the word "Nigger."

As if we are all just such delicate flowers, such snowflakes, that we could not tolerate hearing that word. 

Well, maybe we ought to hear that word in public. Maybe we need a raw image, a raw sound. After all, it was only when the video of that police knee on George Floyd's neck was shown that justice got done. 

Which makes me think again about Weimar and how Germans heard every day about murders by thugs and became inured to it; when you do the arithmetic  there must have been roughly two murders of public officials, those who believed in democracy as opposed to a strongman, every month during the Weimar years. 

Now, of course, we have suffered through random mass shootings/murders in America for at least 20 years, but there is no clear political aspect to this; the slaughter thus far is simply deranged men shooting or guns gone wild, depending on your thinking. 

Suppose, for a moment, some national guard unit had shown up, or that the Capitol police had been issued rifles and when that crowd of 3000 or so breached the barriers, the assembled government had fired and the men in the crowd brought out their attack rifles and hundreds of police, Guardsmen and civilians had been shot dead.  Would the election have been confirmed and would Joseph Biden have been inaugurated on time? 

Or would we have seen a Weimar Republic collapse like the one following the Reichstag fire? 

Perhaps it was best that cop had to suffer the "Nigger" slur but did not shoot anyone and perhaps the smartest tactic was allowing the crowd into the building, avoiding conflict, as some officers did, allowing the deplorables to smear feces and carry off souvenirs of their rampage. 

But that leaves us with the problem of the attackers looking more like simpletons out doing their Role Playing rather than serious threats to our democracy and social order.

The problem is that such a crowd always contains some Timothy McVeigh's, who will blow up a federal building given the chance, along with many boy/men who live in their parents' basements, who work as shelf stockers at warehouses and play with foam swords in the parks on weekends with their friends. 

And when we complain about that onslaught we get Republicans saying, oh, it wasn't so bad, just some rowdies letting off steam, a normal tourist group, or just a little more than that maybe, but certainly not Nazis on a rampage.

The challenge for the Democrats to to figure out which image will hurt the Trump crowd the most: The wacky, trailer trash Buffalo man with his horns shouting in the face of the police, a pathetic looney, but basically harmless, like a streaker exposing his own inadequacy. Buffalo man as the image is just not the same as that girl, arm outstretched kneeling by the body of a dead student at Kent State.  

What image could become as potent as that girl at Kent State?  To my mind, it was that image which brought Nixon down. He was connected to that dead student, who he had called a "bum." 

                                                   

To what image can Trump or Jim Jordan or McCarthy be connected? 

The question is: Is there any lowlife form low enough which would hurt the Republicans at this point?

It wasn't until the townspeople were marched out of their villages and forced to help bury the dead at the concentration camps that the German folk really had to face what their gentile hate had wrought. American Army commanders made sure the Germans, who had to be able to smell the camps from their cozy little towns, were made to rub their faces in the filth they had ignored and tacitly endorsed. 

Somehow, Democrats have to figure out how to do that with Republicans--preferably before the bodies stink and the air is filled with death. 

A Tale of Two Towns: For Profit Medicine & The Demise of Community Medicine

 

Recently, a spate of articles appeared in the USA Today remnant of the local seacoast New Hampshire papers telling of the shock at Rochester, New Hampshire, when the Frisbie Hospital there, recently bought by Hospital Corporation of America, (HCA) lost 14 of 15 primary care physicians, so all the patients who were cared for by these doctors lost their doctors, and these patients were not pleased. In fact there was much hue and cry.

Of course, Mad Dog read about this with a different set of lenses than the hapless reporter who was free lancing this story.

It took Mad Dog back to a time 7 years ago and to a town 30 miles down the road from Rochester: Portsmouth.

Portsmouth had, in the 1970's been a scruffy Navy/Air Force town, with a red light district and bar fights, but the Air Force base closed and the Navy yard across the river quieted and the town began to gentrify. A new young group of doctors arrived and it didn't take long for them to go to the city fathers, and the board of trustees which ran the hospital to say the town needed a real hospital, rather than the tumble down cottage hospital with vermin running through the basement tunnels. 

The Cottage Hospital 

Eventually, a deal was struck with Hospital Corporation of America--yes, that HCA--and a new hospital was built. HCA at the time ran scores of for profit hospitals across the country and was one of the largest employers of physicians in America.  Physicians were leaving private practice in droves, getting out of running their own businesses and seeking to become employees.

Inside the Hospital 

For some years, things seemed to be going well for the community: They had an attractive new hospital with no vermin in the basement; HCA hired lots of primary care doctors and specialists and attracted two spectacular cardiac surgeons--one from Columbia University and one from Mt. Sinai and with the surgeons in place, several groups of cardiologists joined the staff and you really could get a patient with chest pain from the Emergency Room to a catheterization table within an a hour, the gold standard met by very few hospitals.  

Pulmonary, infectious disease, neurology, endocrinology and oncology practices arrived and thrived. Patient no longer had to go to Boston 90 minutes away but could be treated locally and with a level of excellence rivaling Boston. 

New and Improved

But then something happened. The accountants noticed the outpatient practices were not bringing in a profit and in fact, in sum, were actually costing HCA more money than they brought in. When you added up the rental for office space, salaries for doctors and staff, the outpatient practices were not earning their keep.

Of course, the model for hospital associated practices across the country in not-for-profit systems did not expect the outpatient practices to turn a profit because the only source of income was collection of fees for services in the office, and that was no way to make money.

The practices, however, sent plenty of money "downstream" to the hospitals by referring patients to the emergency room, to the MRI and radiology departments, and for admission to the hospital. The outpatient practices "fed" the hospital practices.

Upgrade

One day, a meeting was called at the hospital and the HCA regional director, a 30 something man from Richmond, VA--call him "Ben"--arrived to speak with the doctors and the CEO of the hospital. 

Mad Dog arrived early and he sat down and listened to Ben instruct the local HCA manager--call him "Tony"--with a whiteboard he filled with Venn diagrams. Mad Dog did not understand it completely, but it had to do with the "markets" for medical care and it seemed to fit the clauses in the HCA contracts which told the doctors who had to sign them the patients "belonged" to HCA and if the doctors ever left the practices they could not continue to care for any patients they might have met when in the employ of HCA.

When the CEO of the hospital arrived, she said the meeting was to establish better communications between the practices and the hospital. People made nice noises about how much they  loved each other and the CEO said she had not been able to meet a budget in 3 years. Finally, Mad Dog commented that his practice had lost a doctor because when it came time to renew her contract HCA cut her salary and as an endocrinologist she was in a seller's market, so she simply got a job elsewhere, but that meant the hospital no longer got the $850,000 in lab billing which every endocrinologist sends the hospital's way.

August Macke

Well, the CEO said, she didn't want to hear about that. What the CEO was concerned about was that she cannot meet her own budget, not that people are leaving practices "across the street" (in the outpatient offices.)

"But listen to what you are saying," Mad Dog persisted. "You want to open lines of communication but you don't want to hear about our problems."

"The problem is," Ben the regional director interjected, "You guys are just not productive."

"What does that mean, exactly? Productive? How do you define 'productive?' We don't make enough money for HCA?"

"You don't see enough patients."

"So, let me understand. You are talking about bodies through the door?"

"Yes."

"So, if I see a patient for a thyroid nodule as a new patient, which takes an hour, and I do a thyroid ultrasound and see a nodule, which I then biopsy in the office, that's a $1,500 consult. In that same time, I could see 4 return patients for a grand total of four time $80 or $320 for that hour. So which is more productive for HCA?"

Ben seemed perplexed. "Let me think about that. I'll have to consider. "

Mad Dog considered Ben, the man from Richmond, the regional director who was schooling the young Portsmouth manager on Venn diagrams and health care markets who did not know this most basic thing about what he wanted from local medical practices: volume or income. 

A year later, as new contracts came up for renewal, doctors left Portsmouth. Cut salaries and doctors will leave.  Because HCA had insisted on "non compete" clauses in the contracts the doctors could not remain and simply open private practices in Portsmouth but they had to move at least 25 miles away. Portsmouth lost neurology, pulmonary, endocrinology, hematology/oncology among others.  And it lost multiple primary care practices It was called "the purge." 

Hearing about Rochester, all Mad Dog could think of was what happened at Portsmouth.

They are doing the same thing to Rochester they did to Portsmouth. 

At least, that's the way it looked from afar. 

Mad Dog did keep in touch with one of the few primary care doctors who remained at Portsmouth, who told him about "Tony," the manager who Ben had been schooling.

"Wow," the PCP had said  to Tony, "You've lost fourteen practices. You must be feeling the heat from Nashville. You hardly have any practices left to manage any more."

"Oh, no. I'm a hero down in Nashville," Tony told him. "I've cut down so much on overhead up here." 

"Well, if they eliminated all the practices, they could cut overhead to zero," I told the PCP.

"That might be their plan. They apparently think the real money is in level three hospital medicine. Out patient practices don't have enough procedures so they'd rather get rid of those. The next big thing is emergency care, trauma and ICU care. That and residency training programs."

"Residency programs?" Mad Dog asked. Residency training programs have been, for the most part, confined to university teaching hospitals where full time faculty taught interns and residents of the next generation how to care for patients based on the research and practices of a teaching faculty. 

But now, apparently, there is money from the government for teaching residents in the community hospitals, like Portsmouth, where there are patients but no faculty. At my residency training program, at a large university hospital we had 30 departments with chairmen, faculty and research projects. Faculty made rounds on all our patients, taught us at the bedside and at formal lectures.

At Portsmouth Regional Hospital, the faculty consists, far as Mad Dog can tell of a single physician whose academic credentials are, to put it generously, anemic.

"What kind of training can these residents get at this hospital?" Mad Dog asked the PCP.

"What kind of residents can these training programs get?" the PCP asked. "Mostly, they are graduates of foreign medical schools or American schools of osteopathy or places you never knew existed."

"So why would the corporation want anything to do with this?"

"There's money in it," the PCP said. "That's the game."

Hampton, New Hampshire Establishes The Catholic Church as the Town Church

 

Fans and readers of Mad Dog will by now know that the town of Hampton has, every year for the past several years, voted to establish the Catholic Church as the town church by way of voting to award a tithe to the Church from town accounts.

Mad Dog has pointed out to anyone who will listen that this is establishment of a state religion, which is forbidden by the establishment clause of the First Amendment. Because the federal government cannot write checks to churches, by the Supremacy Clause (Article 6, Clause 2) no local government can do what the federal government is forbidden from doing.

But there is law and then there is practice: Until someone forces the town to comply with the Constitution, the town is free to violate whichever of the articles or amendment the town pleases to violate.

Mad Dog has contacted all the folks you might think would be interested: the American Civil Liberties Union (no response at all) and the organization Americans United for Separation of Church and state. 

The lawyer from AUSCS (aka AU) responded that if the church used the funds for strictly non religious purposes, there would be no problem. He was quite emphatic on this point, as settled law, and he is sure how the Supreme Court would rule.

Here is a representative email:

First, AU has not “failed to respond” to your requests.  I personally emailed you three months ago, explained the law, and told you that I would need to know more about what the funding was specifically being used for.  Without that information, it’s not really possible for us to determine whether this is a violation or not.  It might be!  It might not!  This answer isn’t going to change even if you email every single staff member and email address you can find on our website, as you seem determined to do.  Find some more specifics on the funding, and we will be happy to take a deeper look at it.

 

Second, you keep bringing up Justice Jackson’s dissenting opinion in Everson.  I’m going to assume that you aren’t a lawyer and explain something that may not be obvious: dissenting opinions have no precedential authority.  No court in this country is allowed to use Justice Jackson’s dissent as controlling authority, save the U.S. Supreme Court, which will not do so.  You may find Justice Jackson’s opinion to be well-reasoned, compelling, and utterly convincing, but until a majority of the U.S. Supreme Court overturns Everson’s majority opinion and adopts Jackson’s reasoning, it is not the law.  Whether or not you think Everson’s majority opinion is correct is irrelevant. 

Of course, the lawyer for AU is quite correct: Mad Dog is not a lawyer.

Justice Jackson's dissent likely has no "controlling authority." 

But let's look at the case this way: Precedents in cases brought to prevent towns from supporting churches with money have been concerned with a different set of circumstances, as in Everson. The Court has found that when a town makes funds available to students or children in a town, say for bus transport to school or for playground equipment repair, the town cannot deny use of town funds to church schools simply because they are connected to a church because the town has to provide services and repairs equally to all children in town regardless of their religious affiliation.

Fair enough, so Everson does not apply to the current Hampton case for 2 reasons: 1. Jackson in saying support of a church school is the same as support of the church which encompasses the school is a dissent not a majority opinion.  2. In the case of Everson a service provided (school buses) was supported for all students.

But in the case of Mad Dog v Hampton, the money is not for a service provided for all Hampton children, only for those who attend the church school.

Suppose, for example, the town of Hampton decided to buy a boat to rescue swimmers in trouble off the Hampton Beach shore. No problem there: a service for all the town's people funded by taxpayer funds.  But then, the Church of the Miraculous Medal/Sacred Heart School decides it wants to launch a rescue boat and it gets the money for the boat from the town of Hamtpon account. Now, the church uses its rescue boat to rescue drowning Catholics only, not drowning Protestant, Muslims or Jews. 

Would you have a problem with that? Well, the Church argues, our mission is to care for our flock, our Catholic flock, and we like our boat for that purpose.

Now the lawyer for the Americans for Separation of Church and State argues, well, if the money was used for non religious purposes, say painting the boat, or buying better oars or a walkie talkie for use with the lifeguards on shore, no problem. Only if the boat is used for sermons delivered from the boat as it patrols the beach would that be a problem the AU would be interested in involving itself in. 

And one last thing:  The fact that a truth is contained within a dissent does not make it less true. If,  in fact, distinguishing a church school (whose main purpose in life is to promulgate faith) from the Church itself, is like drawing a distinction between the jet engines and the jet. If the town pays for the jet engines for the papal jet, but not for the jet itself, would you still say we have no "controlling authority"?

To the Editor:

The Sacred Heart School community would like to extend a sincere thank you to the Hampton voters and Seabrook voters who supported our child benefit service (CBS) funds article. The yes vote from the Hampton voters on the warrant article guarantees Sacred Heart School’s continued support for the Hampton students. The no vote from Seabrook was close and we hope for success from the Seabrook voters in March 2020.

These funds are applied towards non-religious textbooks, school supplies, technology, testing materials and school nurse services and supplies for our SHS students that reside in Hampton.

We’d also like to express our gratitude to the budget committees and school boards of each town for recommending and supporting the CBS funding for the Sacred Heart School students from each respectful town.

A sincere thank you for your continued support.

Teresa Morin Bailey

Principal

Sacred Heart School