The aesthetic injury they experience
No precedent just spite
Did you miss this one from the other day? Man what a fun piece that was!
Three infamous anti-abortion activists on the Fifth Circuit Court of Appeals declined to fully uphold a lower court’s recent ruling that would have banned the use of the abortion drug mifepristone outright – a decision that was put on hold by the Supreme Court in April. They did rule however that changes made by the Food and Drug Administration beginning in 2016 about how easy it is to obtain went too far. They say now the drug can only be taken up to seven weeks of pregnancy instead of ten and that it must be prescribed in person by a physician instead of via tele-health appointments and that it can no longer be obtained through the mail.
(Read the ruling here).
Nothing is set to change as of yet practically speaking although it’s expected the anti-abortion activists on the Supreme Court will weigh in on the matter eventually. Wonder how that will go.
The ultra-conservative three judge panel heard the case brought by a group of anti-abortion medical professionals called the Alliance for Hippocratic Medicine.
One of the three judges – a real This Fucking Guy if ever there was one – named James Ho dissented in part saying that their ruling didn’t go far enough and that the FDA was wrong to approve mifepristone in the first place back in 2000.
Incidentally Ho was sworn in by Clarence Thomas in Harlan Crow’s library in 2018 as seen in this photo taken by Ted Cruz. No word on if it was in the part of the library where he keeps all his Hitler stuff.
He also disagreed with the contention by the Department of Justice (arguing here for the FDA) that the plaintiffs did not have standing to bring suit.
Standing is supposed to mean that you as a person or group bringing suit have an actual legal reason to prove that you are being harmed by the situation in question. Or is supposed to mean that anyway. Now it just means there is a right wing grievance a judge is mad enough about to hammer through regardless of established law. No precedent just spite.
Previously Justices Alito and Thomas have argued that abortion providers should not have standing to bring suit when proposed laws would have shuttered their practices. It's almost like – as I often say in here – that the law is fake. It's all made up! It's Calvinball.
In his partial dissent here Ho referred to the Comstock Act a couple dozen times – a largely unenforced law that bars the mailing of “obscene” and “immoral” materials – and one which the Supreme Court is likely to dust off going forward on abortion matters.
Ho also discussed at length the plaintiffs’ "injury to conscience" when it comes to the facilitation of an abortion. “The FDA’s approval of mifepristone creates a substantial risk that plaintiffs will be forced to participate in the abortion process,” he wrote.
But here’s the real fucking spiteful shit. The reason I wanted to dig into this ruling today in the first place. Ho also writes of another reason why the anti-abortion activists have standing to sue the government here:
“the aesthetic injury they experience in the course of their work.”
In order to pass off this flimsy trolling argument – although maybe not flimsy enough that it will be ignored by the trolls on the Supreme Court – Ho refers back to cases regarding animal habitats and wildlife sanctuaries. Cases where the use of chemicals by the government were said to deplete the supply of butterflies for butterfly enthusiasts to look at or building and development that would harm the habitats of birds thereby injuring birdwatchers’ aesthetic interests in and ability to delight in their avian beauty.
“It’s well established that, if a plaintiff has ‘concrete plans’ to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal.”
Ho goes on:
"Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted."
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The Supreme Court has recognized that “the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist.” Every circuit, including our own, has concluded that, when a federal agency authorizes third parties to harm flora or fauna that a plaintiff intends to view or study, that satisfies all of the requirements for Article III standing.
In all of these cases, a federal agency approved some action—such as developing land or using pesticides—that threatens to destroy the animal or plant life that plaintiffs wish to enjoy. This injury is redressable by a court order holding unlawful and setting aside the agency approval. And so too here. The FDA has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest. And this injury is likewise redressable by a court order holding unlawful and setting aside approval of that abortifacient drug. I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants—but not unborn human life.
Women are public parks in others words. Or pretty little birds. Or flowers that are lovely to look at when pregnant and in full bloom. And it would make certain people sad to not have that. You will be harming them if you deprive them of pregnancies to behold. A bountiful crop of full bellies stretching as far as the eye can see. Nature as it was meant to be.
Is ending a pregnancy then not unlike harming beauty itself?
Speaking of aesthetically pleasing nature...
I did a couple of interviews this past week that you may be interested in listening to and/or reading. The first was with our pal Rob Rousseau over at The Insurgents.
Rob Rousseau
Today Rob is speaking to Luke O’Neil, author of Welcome to Hell World and the new collection of short fiction A Creature Wanting Form (which you can purchase by clicking the link there.)
There’s some sports chat, we talk about the conflicting emotions involved in being Weezer Guys, but mainly we spent most of the time relitigating the 2015 Democratic Primary. Not enough people are doing that! In all seriousness Luke has really carved out a place for himself as a must-read documentarian of the grim reality of modern America so it was great to have him appear on this episode.
I also talked about being one of the only good Boston sports fans in the world.
Elsewhere I really loved this interview I did with The London Magazine about the book as well.
Katie Tobin
Here are a couple excerpts. Sorry I talked about birds being beautiful to behold. I didn't mean it like the shitty judge from earlier.
Despair is an underlying theme throughout, I was wondering why you thought, as humans, we tend to face despair alone? Despite our social instinct we feel alone in despair we don’t share it.
Despair is often regarded as a shameful thing to experience. Sometimes for good reason. No one wants to be told, well, the earth is heating, and we’re fucked any way, there’s nothing to be done. Political despair in that regard is extraordinarily harmful. The antidote to despair though is in its antonym. Despair is the condition of hopeless isolation to me. If there is a Hell, that is what it means to me, infinite solitude. (A little bit of solitude here and there is delightful however!)
But community and collective action are the surest way to forestall despair. So while there is plenty to despair about – sorry I keep saying the word despair so many times – like the rise of fascism in this country in particular, there’s plenty to point to as reason for hope, like the rise of unions and worker solidarity, which is what it will take to solve any of these problems. We are nothing without each other. We can do nothing without each other.
As far as personal despair goes, that comes with its own kind of stigma. We talk a lot about recognizing mental health issues now, and we love to tell people that help is available, but what kind of help and in what form exactly and from whom? And how much will it cost?
When we are feeling despair no one really wants to hear about it.
How’s your day going man?
Oh, well, I’m constantly aware every second of the day that I’m going to die.
No one wants to hear that kind of shit. I feel sophomoric being depressed sometimes I think. Like I never matured past teenage existential dread. (Man, they fucked me up good growing up Catholic I swear to god.) I’ve bored therapists to death with this shtick.
So I don’t know. I guess it all just makes you want to find a quiet place under the porch to go lay down and die like a wounded dog. Which is what I’m working towards.
You write about these issues enveloped in your stream of thought, is it a message about how politics and state of affairs can permeate our being, our existence, our psyche?
I think most of my characters are walking around with a kind of concussion at all times. Or half in and out of a dream. Like they’ve been spun around really fast ten times and now have to compose a poem on the spot about the beauty of nature or whatever.
This goes back to the despair thing I suppose. I don’t know how people walk around in the world just being normal. Don’t get me wrong I am capable of functioning in society and being a funny and charming person, although the fact that I have to stipulate that probably isn’t reassuring, but myself personally, and most of the characters in this book have a giant backpack filled with heavy rocks on their back at all times. They take it to bed.
But the important thing is there have to be moments where they forget they’re wearing it. There has to be cause for wonder and joy at the world. Many of the stories concern the ocean, which certainly may well kill us all, but myself, and most of the characters, are dumbstruck by its awesome beauty. Or a bird taking flight? What a thing! There is a reason poets have never shut the fuck up about birds since the invention of poetry.
I think the bit about landing on another planet and immediately being snatched into the sky by a giant space bird and carried off to your doom illustrates the overall message pretty well:
“In those last terrifying seconds you might see the expanse of the new planet for miles around you toward the horizon blushing in a color you couldn’t name and think my god this is beautiful.”
There was another story about a cop overdosing from coming into contact with fentanyl going around the other day. It doesn't matter which one it's the same as all the others ones that have come before and the next ones to come in that it was a lie. In any case I thought it was good cause to re-up this piece about how this all goes:
Zachary Siegel has a great essay in that Hell World but I lead it off like so:
Police lie. Constantly. If there’s any point at all I’ve managed to convey with this newsletter over the years I hope it is at least that. And they could not spread those lies so effectively without the help of the media and in particular local news who far too often consider themselves duly sworn deputies in the public relations branch of law enforcement.
This whole thing where cops are rushed to the hospital after touching some fentanyl is one of the more easily debunked lies among the many that they like to tell but no matter how many times doctors and scientists and some reporters explain that it is very unlikely to happen this way there will always be a new round of news stories contributing to the panic. That’s because the opposite of what I said about the news media thinking they’re cops also holds true: Cops think they are — and often act as — assignment editors for local news.
...
The reason they want us to believe it does is obvious to anyone reading this but just to lay it out anyway the more dangerous the job of a cop appears and the more that idea is laundered through the media the harder it becomes for people to push back against anything they say or do never mind get anywhere remotely near something like defunding them. After all look at how valiant they are out there risking their lives every day to rid the streets of the scourge of dangerous drugs. For us.
It also provides further justification for destroying the lives of the people they arrest for possession of said drugs. If people like this can use drugs this dangerous they must naturally be inhuman.
I'm just glad none of my grandparents or parents ever had any money so I will never have to end up picking over their bones.
Sure wish Feinstein had stepped down a couple years ago but the larger point I wanted to talk about here real quick is financial elder abuse. Unfortunately there is almost always a Hell World to refer back to. Or two in this case.
Essentially how this all goes is that when an older person “can no longer take of themselves” — a very subjective concept ripe for abuse on its face — a guardian will be appointed by a court. Ideally this will be one of their children or someone who actually gives a shit about them. When such a person isn’t available — or even when they are and they can be successfully boxed out by someone amoral enough to do it like Parks in real life or Pike’s character in the film — a professional guardian will be granted control of the elder’s entire life at which point they will dump them in a care facility confused but often too scared to do much about it. And besides if they do happen to “go crazy” and cause too big of a stink during the ordeal of being uprooted and drugged and essentially imprisoned well then that’s just more evidence that they can’t care for themselves after all. This is all for the best the system says. Look how erratically they’re behaving. We’d hate for anything bad to happen to them.
"Most of the harm happens very plainly, very boringly and incrementally, by shrewd everyday people who know how to make their billing look benign at a glance. They do shit like chip off a few hundred bucks here and there from multiple people, so it adds up over time. They submit their work to the court. Courts approve the submitted paperwork because they don't care or the staff are overworked or both, the judge doesn't look too closely because no one is actively dying in front of them and someone else told them the fees look reasonable so it's fine, and it just kind of pitter-patters on under the radar for the most part."
"I’ve seen cases where guardians are drugging their wards, institutionalizing their wards, executing their wills not according to the wishes of the ward but just kind of where the guardian wants the money to go, and there's a paper trail along the way before anyone with oversight gets to them where the courts are just rubber stamping it all through and it's all been right there in plain sight. They approve it for years before there is a complaint that points investigators in the right direction. Then they spend so much time unravelling those years worth of shit for one guardian/business that everyone else doing similar garbage continues to get away with it because the state can't do 500,000 investigations at once. It's depressing and a bit Sisyphean."
I thought this Hamilton Nolan piece on that fucking song from the other day was quite good.
Hamilton Nolan
“Do not let the rage of the populace become focused on the capitalists” is the number one rule of capitalism’s perpetuation of itself. In fact it is more accurate to look at a large portion of what occurs in our nation’s political sphere as “systematic redirection of rage towards false targets” than “governing.” Governing is a small minority of what occurs in our political system. As an institution, the Republican Party (and a significant part of the Democratic Party) and all of its supporting tendrils have as their primary project not enacting political policies but rather the digging of a narrative channel through which popular rage can flow away from the rich. It does not help that Washington DC is, in fact, a shiny bubble of disconnected elites who view themselves as the True Knowers of What Is Good For Everyone and who are, in fact, to a large degree, funded by interests with ulterior and extremely self-serving motives. It’s easy to hate the government. And it’s easy to hate the damn welfare people. Billions of dollars have been spent and vast architectures of think tanks and media companies and insincere intellectual traditions have been built to keep a grand spotlight pointed on those things, so that the capitalists can function comfortably in the shadows. This is the whole game. “Rich Men North of Richmond,” the viral smash hit, is just evidence that the game is still being won by the wrong people.
New awakebutstillinbed good.