Saturday, August 31, 2019

The Other Opioid Crisis

You've no doubt heard all about the opioid crisis.  The one involving hundreds of thousands of victims of opioid overdoses, many of which have occurred in parts of the nation where job losses from globalization are as epidemic as the deaths themselves are.  The deaths that have driven thousands of lawsuits through the legal system, lawsuits that are, just now, starting to reach the endgame stage.  In one, in Oklahoma, filed by the state against Johnson & Johnson, regarded as the toughest litigant among drug companies, the result was a $572 million verdict in favor of Oklahoma's damages claims.

Despite the fact that the legal theories in these suits are all over the place when it comes to liability theories, and that each one, based on the facts, is wafer-thin at best, they are nevertheless supported by popular opinion.  The fact that the state of Oklahoma, no one's idea of a liberal paradise, would file a suit like this is a strong testament to that.  For once, big business lost big (although not as big as it could have lost) in a very red state.  And the loss is already having a ripple effect on the other pending suits.  Just this past week, Purdue Pharma, the makers of OxyContin, offered to fund a settlement pool of up to $12 billion and surrender ownership of OxyContin, in exchange for filing for bankruptcy.

This is precisely the sort of innovation-destroying, consumer-frustrating, blame-everyone-but-the-addicts-screwing-things-up litigation that the lawsuit-abuse folks on the conservative side of our great political divide love to complain about.  Here, however, they seem to be curiously silent.

I feel fairly certain that there's a connection between that fact and the fact that a significant number of opioid-related deaths are from Trump country.  Putting the matter bluntly, these are the deaths of white people from former factory and farming communities.  They see themselves differently from the way they see the drug-related deaths of African-Americans in poverty-ridden inner-city neighborhoods.  Those deaths have nothing to do with centuries of racism, and the poverty and despair that stems from it.  No, that's just because "those people" are "animals," in contrast to the hard-working white folks of the heartland.  If they chose to abuse prescription drugs rather than addressing their misery in a more constructive way (i.e., relocating, going back to school, voting for someone other than self-enriching Republicans), well, Trump voters are privileged folk.  Their privilege is as deep as the color of their skin, And, of course, just like their Fearless Leader, there's no arguing with them about it.

But there is, of course, another side to all of this.  In fact, there's a whole other opioid crisis that I'll wager you haven't heard about.  It's very real.  It's created an enormous amount of suffering.  And it's suffering that my wife and I take very, very personally.

It's this crisis.  The one in which people who, for entirely legitimate, medical, non-economic-distress-related reasons, need access to serious pain medication.  And can't get it, because of health care professionals more worried about protecting themselves from specious lawsuits than they are about fulfilling their professional and ethical obligations to the public.

And why do my wife and I take it so personally?

First, a word of full disclosure.  My wife and I are both lawyers; in fact, we are both partners in our own law firm.  Neither of us is a tort lawyer, so we have no interest or stake in the personal injury-medical malpractice mill.  There are no charges of hypocrisy, therefore, that can be fairly lobbed at either of us for what I am about to say.

And both of us have experienced personally the opioid backlash in medical treatment.

In my case, it was a consequence of a referral to an endodontist for a root canal.  After the procedure, I assumed he was going to give me a limited prescription for hydrocodone, or something similar.  You know what I got instead?  An offer for free Tylenol.  Tylenol.  An over-the-counter pain reliever that is fine for the occasional tension headache, but is less than worthless for the level of post-procedure pain that a root canal procedures.  Not only did the pain that the endodontist refuse to treat or even acknowledge keep me awake for nearly an entire week, but, at one point, it made me bite down on one of my rear molars so hard that I literally fractured it in half.  And had to go to yet another endodontist to have the fragments of that molar removed.  I've still got the empty space in the back of my mouth to remind me about it.

But that's nothing compared to what my poor wife has had to go through over the past four-plus weeks.  She had knee-replacement surgery at the very beginning of this month.  I remembered how my late father was give a morphine pump to use after his hip-replacement surgeries, so I had some idea of the pain level involved with a joint-replacement procedure.  I couldn't imagine that this wouldn't be treated the same way.

Well, guess what, folks?  It wasn't.  She was give a less-than-full-strength prescription medication--a very, very limited supply--and, you guess it, folks, Tylenol.  She's been home for the past few weeks, doing all of her physical therapy, recovering well ahead of schedule, getting back to work and serving her clients, because that's the type of person she is.  But she's been doing it without any real pain medication, and consequently with little or no sleep, for the past, I repeat, four weeks plus.  That's partly a tribute to her pain threshold, which I am always in awe of.  But it's also a tribute to her doctor's refusal to her doctor's refusal to prescribe any serious pain medication.  Even after she asked him to do so, he gave her a prescription of 10 pills at a dosage of 5 milligams.

Neither my wife nor I are addicts.  We fully understand the risks of addiction with certain types of medication.  We have always, in the past, when we were able to get prescription medication, used it in a responsible way, as prescribed, without asking for more than we needed.  We want to be able to continue to do so, and there clearly are thousands of Americans who are in exactly the same position we have been.  I am writing this on behalf of all of them, as well as for my wife and me.  I am pleading with the medical profession, and the companies that insure them, to not try to solve one opioid crisis by creating another--and, in the process, created a black market for opioids that will do nothing but exacerbate the initial crisis.

The mandate to do no harm works in more directions that one.  Opioids should not be overprescribed.  But they shouldn't be underprescribed, either.

Friday, August 23, 2019

The Rule Of Guns Has Replaced The Rule Of Law

And so we can now add El Paso and Dayton to the list of American cities, towns and communities that have been the victims of the NRA and the deranged individuals that it enables.

It was a tremendously, tragically long list prior to the addition of those two cities, one that included the names not just of places, but people.  People who did nothing to deserve being victims of random slaughter.  People whose dreams will never be fulfilled.  People whose potential, personal and vocational, will never benefit their families, their neighbors, or their country.  People whose absence, instead, leaves holes in the lives of all who were touched in any way by them, and the worst holes of all:  in the hearts of their families and friends.

As someone who believes both in the right to own and use firearms for legitimate, lawful purposes, and who has no less believed in common-sense gun regulations to prevent their illegitimate, unlawful purposes, I have despaired for decades about our ability as a society to move beyond "thoughts and prayers" and to enact legislation at a national level to ensure that Americans spend less time mourning the loss of innocent life, and more time living their lives outside of the shadow of random gun violence.

In particular, I have despaired over our national inability to recognize that the lion's share of gun rights advocacy does not stem from respect for the Second Amendment, but from a sick, deep-seated need to maintain the aristocracy of race that was baked into the foundation of the Republic at its inception.  I have written in the past about the slave patrols, but it is a point that cannot be underemphasized, especially in today's deeply divided political climate.  Here is an op-ed piece from the New York Times that discusses this disgusting piece of history in some detail.

I have to admit, however that, to a degree, that despair has been mitigated by recent sightings in the media of gun sanity.

I mean, it's one thing when Paul Krugman adds two plus two, and comes up with the connection between mass shootings and white nationalism.  He's been doing it for a while.  Or to see a network like CNN do the same thing.  CNN makes at least some effort, unlike Fox, to truly be fair and balanced.

But, in the wake of El Paso and Dayton, Krugman and CNN have found some unlikely company.

Take Joe Walsh, for example, who was part of the Tea Party wave that ended Nancy Pelosi's first reign as Speaker of the House of Representatives.  Back then, the Tea Party defined right-wing extremism in national politics; it almost looks tame compared to the forces that D***** T**** has unleashed.  Still, Walsh was and is no one's idea of a bleeding-heart liberal.

Except, perhaps now, on this issue.

And he's not alone.

He's been joined by David French of the National Review, the magazine that was founded by William F. Buckley, Jr. to redefine modern conservatism, and did so successfully.  French's new-found place on the side of the angels is evident not only in the pages of NR, but also on Twitter.

They've been joined, in turn, by S.E. Cupp, a CNN and Twitter personality who leans right on most issues, but can't at this point be said to do so on this one.

For crying out loud, they've been joined by Rupert Murdoch, the main press agent for the Reagan Revolution and everything that has followed in its wake.  I never thought I'd live to see the day when his New York Post would carry a cover editorial advocating the banning of assault weapons sales to the public.  But here we are.

And the scope of the gun violence problem in this county is not just reflected in the conservative voices finally calling for sensible gun regulations.  It's reflected in the pervasive fear we all now have that, every time we go out in public, we are a potential target.  All it takes now is a vehicle backfire in Times Square to make everyone feel the need to run for cover.  And not everyone feels safe venturing out to Times Square in the first place; people of color, in particular, are fearful of even the most seemingly harmless of pursuits, like going to the movies.  Or even the holiest of pursuits, like going to church.

How did we get here?

Well, as my earlier reference to slave patrols should tell you, we've always been here.

America began its existence as a frontier society, one that depended on a combination of violence and cheap labor for its economic growth.  In such a society, owning a gun is no more unusual than owning a horse--perhaps even less so.  And slavery provides the cheapest possible labor, short of automation, the human mind can devise.

As America expanded westward, and its economic growth began to depend less on the land and become more mercantile in nature, dependent on innovation and trade, guns and slaves became less and less a part of life in some parts of the nation.  If anything, they were viewed as obstacles to growth, as antiquated aspects of a more primitive, less peaceful society.  In other parts of the country, however, addiction to the potential of exploiting land for crops and natural resources took hold.  And, despite a Civil War that allegedly decided whether Americans were meant to be a free people, and not one defined by the master-and-slave relationship, that addiction never ended.

Why?  Who can really say?  I'm not writing here to provide a definitive answer, one that has eluded better historians than me.  But there seems one possibility that is blindingly obvious.

America was initially settled by Europeans who came from countries that had aristocracies, segments of the population that had their own legal and economic rights given to them at birth.  These rights were denied to those who were not aristocrats, or, at the very least, were restricted in their application to others.  Our Constitution, of course, was written to exclude the European idea of an aristocracy from the nation it helped to create.  Indeed, those who come to our shores from other counties are, as part of the naturalization process, required to renounce any aristocratic connections in order to become a citizen.

But that doesn't mean that all Americans don't aspire to an aristocratic lifestyle, even if it is one without formal titles.  And slavery, I contend, is the key to the development of the aristocratic mindset among many white Americans, especially white males.  After all the antebellum South had all of the formal characteristics of the old European aristocracies.  Legal and economic rights--indeed, personhood itself--were vested in the hands of a privileged few solely on the basis of hereditary characteristics, skin color in this case.  Those without privileges, those who were in fact viewed as property, took all of the risks and made all of the sacrifices, and those with privileges reaped all of the rewards.  All that was missing to link the American aristocracy of slavery to its European counterparts were courtesy titles.  And even variations of those made their way into the system.

And, on a fundamental level, that's what today's "economic discontent" is really all about.  It's not the unvarnished cry for social and financial justice that many in and out of the media try to pretend that it is.  If it were, they would leave behind the red states that have been bankrupted by decades of failed Republican policies, end their dependency on social programs largely funded by tax dollars from blue states, and start a new life based on a willingness to take whatever work might be available.  They would line up to do the work they claim immigrants are "taking" from them.  They would, in short, do what the best Americans--native-born and otherwise--have done for centuries before them.

But they won't do it.  In fact, they don't truly begrudge the work being done by people of color, instead of themselves.  They don't even mind receiving government aid, even as they decry creeping socialism.  They won't face the fact that they've voted for decades for a party that systematically exploits them.  What they really want is to be in charge.  Because, as white people, they see it as their birthright.  And lacking, in many cases, much in the way of formal education, they have no ability to grasp the complexity of the world around them, or the skills needed to survive in it.  Their entire view of life is, by modern standards, incredibly primitive.  Which is why it is not surprising that, as was the case with Mao Tse-tung, they see all power as coming out of the barrel of a gun.

You can find a more detailed analysis of the link between gun violence and white nationalism here; in fact, I have no objection to your taking a break from reading this post to read it (so long as you come back here afterwards, of course).  You can also see, here and here, how incredibly primitive the thinking of white nationalists is, especially when it comes to guns.  How in the world can anyone, with the most pro-gun political party in history in full charge of the federal and most of the state governments, legitimately feel that their Second Amendment rights need to be "double-checked" by a random display of firepower in an otherwise peaceful setting?  This is not the action of someone with confidence in civil authority.  This is the action of someone who believes it's everyone for themselves, because they're convinced that all that matters is G-d being on the side of white men.

This is the scenario that serial killers with semi-automatic rifles with bump stocks and high-capacity magazines take advantage of.  We have been told by gun-rights advocates, over and over again, that all we need to stop a bad guy with a gun is a good guy with a gun.  But how are we supposed to tell?  The man in the Wal-Mart described in the linked articles above could have been either; fortunately, someone intervened before he had a chance to identify himself through casualties.  This is madness.  The only answer to the madness is the one that gun advocates believe in, but don't dare say out loud:  "You can tell they're good guys; they all have white skin."  Does that sound prejudiced to you?  Shouldn't it?  Do you doubt that the Wal-Mart incident would have been as peaceful if the man with the piece had been black?

Then consider this.

The wave of gun violence that has dominated our national conversation and filled all of us with fear began after the election of the first African-American President in our history.  It began slowly, largely with single-victim attacks, and almost all of them involving young men of color.  Florida even passed a law modifying the common-law definition of self-defense, allowing people to "stand their ground" anywhere based on an entirely subjective view of personal danger.  In practice, the law has become a hunting license to kill young men of color with impunity.

And then, with a minority of the popular vote, D***** T**** became President, with a Republican Congress and most of the states under Republican control.  And the gun violence exploded to epidemic levels.

Why should anyone be surprised?  T**** came to office with a history of racism--and not just against African-Americans--as long as your arm, that continued right into his Presidency.  The civil rights violations by his family's real estate company.  The war against the Central Park Five, even after their exoneration through DNA evidence.  The anti-Semitic remark about wanting his money to be counted by men with "beanies."  The vicious mocking of a disabled reporter.  The references to Mexicans as criminals and Central Americans as animals.  Do I have to go on?

The point is this:  T**** has never hidden who he is when it comes to race.  He's practically beaten the rest of us over the head with it.  He has always worked overtime to market himself to his core audience.   He has basically told them to come out of the woodwork and from under the rocks, because, whether by rhetoric or pardons, he'll protect you.  And they have absolutely gotten the message, while the rest of us pay for that fact dearly.  Which is why no one, no matter the tenor of T****'s more recent remarks, should expect anything to change so long as he is President.

Or so long as Mitch McCONnell is the majority leader in the U.S. Senate.

Recent changes in polling data has led McCONnell to write an op-ed piece for the New York Times, warning Democrats not to completely do away with the filibuster should they take control of the Senate after the 2020 election.  If they do, they'll regret it in the long run, as they did when they ended filibusters for federal district and circuit court nominations the last time they controlled the chamber, then lost it to the Republicans, who promptly extended the new rule to all presidential nominations, including Supreme Court justices.

In the piece, which you can read here, if you haven't done so already, McCONnell attempts to make the case that the filibuster, although not a power explicitly granted by the text of the Constitution, is one that the Constitution's overall design actually encourages, in order to ensure than any legislation passed by Congress is supported as broadly as possible.  While it's true that the rule was designed to promote debate, and to prevent radical changes by slender majorities, the facts demonstrate that these goes have not exactly been at the forefront of McCONnell's leadership of the Senate.

Let's leave aside the fact that, if the framers of the Constitution wanted all legislation to be approved by a congressional supermajority, they could very easily have done so, as they did in fact with respect to treaties.  As the late President Gerald Ford once said, quoting the late Governor Al Smith of New York, let's look at the record.

McCONnell interpreted Democratic filibusters of some underqualified judicial nominations made by then-President George W. Bush as an excuse in the Obama era as a justification, at a moment of crisis not just in the United States but the world, to filibuster nearly every single initiative of Obama's that needed to move through through Congress, once the afterglow of the change in Administrations had faded.  Stop me if you've heard this one before, Mr. Majority Leader:
We have a new president with an approval rating in the 70 percent area. We do not take him on frontally. We find issues where we can win, and we begin to take him down, one issue at a time. We create an inventory of losses, so it’s Obama lost on this, Obama lost on that. And we wait for the time where the image has been damaged to the point where we can take him on.
These are not the words of someone who wants to move legislation supported by a broad majority, or even a simple one.  Those are the words of a man whose goal, in an era where the political and social culture of the country has turned against him, is to block as much legislation as he possibly can.  In short, they are Mitch McCONnell's words, at the beginning of the Obama Administration.  Take a look if you don't believe me.

Indeed, the only real reason McCONnell hasn't tried to eliminate the filibuster altogether is that he knows that the legislation that would get through a Republican Congress, especially with input from a President like T****, would ultimately wipe his party almost completely off the map once the American people learned how that legislation would affect them.  Far better to have Senate Democrats serve as a foil to disguise the ambitions such legislation would advance, while McCONnell and his cronies focus on what does the most to get them out of bed in the morning:  appointing right-wing judges to lifetime seats in the federal judiciary, so that those judges can, without opposition, wreck havoc on the future of this country--especially when it comes to sensible gun regulation.

This, unfortunately, is what we are facing.  A national culture of random violence that potentially menaces every single American.  A culture that is fueled by the ancient divisions that form part of the bedrock of our history.  And a political system that, for the moment, is frozen in paralysis by men who represent the minority view not only on gun legislation, but on almost every area of public policy.  Even worse, they may not even represent their own country.  T**** alone does not suffer from this problem; so does McCONnell.

If this feels too much like a lengthy rhetorical journey to despair, it needn't be.  It shouldn't be.  For the sake of all the lives that have been needlessly lost, and for the sake of the lives we may be able to proactively save by our actions, despair is a luxury we truly cannot afford.

I have written at this length, in this level of detail, in the hope of emphasizing the importance of being a part of next year's election in every possible way you can.  Lives are at stake.  Democracy is at stake.  America is at stake.

Don't believe that there's nothing you can do to take the target off of your back, and all of our backs.  You know what you need to do.  Do it.