Analysis Law and Policy

The NRA Successfully Silences Another Obama Nominee

Jessica Mason Pieklo

The Office of the Surgeon General has been vacant for almost a year, and if the NRA gets its way, it will stay vacant.

Like conservative opposition to abortion rights, conservative support for unfettered access to guns greatly depends on controlling information and gaming science, and the fight over the nomination of Vivek Murthy for surgeon general is making that connection even clearer. Murthy is an Indian-American physician at Harvard Medical School and Brigham and Women’s Hospital, and in November President Obama nominated him to serve as surgeon general. But thanks to the National Rifle Association (NRA), Murthy may never get confirmed.

Why would the NRA oppose Murthy’s nomination? Guns, naturally.

More specifically, the NRA opposes the nomination because Murthy believes that gun violence is a public health problem, and he supports the idea that doctors should be able to discuss guns and gun safety with their patients, something conservatives and the NRA oppose.

In January of last year, an advocacy organization Murthy helped establish, Doctors for America, sent a letter to Congress urging members to take action against the epidemic of gun violence in the United States. By March, following Republican’s successful opposition to Debo Adegbile to head the critically important Department of Civil Rights division within the Department of Justice, the Obama administration announced it was “recalibrating” its strategy on Murthy’s nomination in the face of mounting Congressional opposition based on his statements about gun violence being a public health issue.

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Murthy is not the first Obama nominee the NRA has successfully opposed. It was the NRA and anti-choice groups joining forces to oppose the judicial nomination of Caitlin Halligan to the powerful D.C. Circuit Court of Appeals that helped push Senate Democrats to eventually change the filibuster rules on some presidential nominees. With Halligan’s nomination, the NRA focused its opposition almost completely on a single brief Halligan wrote while working with then-New York Attorney General Andrew Cuomo.

Cuomo was looking for ways to make gun manufacturers legally responsible for a portion of the gun violence in New York, and thus have them shoulder some of the public health costs associated with treating victims of gun violence. Naturally, the NRA opposed the effort. Senate Republicans used Halligan’s work in pursuing a lawsuit against the gun manufacturing industry to smear her as a “judicial activist” who would not “strictly interpret” the Constitution should she be confirmed, and used that as one reason to block her nomination. On cue, the anti-choice right joined in and challenged Halligan’s nomination for her role in a 2002 case, National Organization for Women v. Scheidler, in which as solicitor general she argued that the Racketeer Influenced and Corrupt Organizations (RICO) Act could apply to organizations like anti-choice groups that employ criminal ends to get to (mostly) non-monetary goals.

The case, which spans decades, was first filed in the 1980s as a class action by the National Organization for Women (NOW) to try and address the escalating violence against abortion providers, clinics, and patients. NOW argued that the defendants, Joseph Scheidler and other members of the Pro-Life Action League (PLAL), and specifically the Oklahoma Pro-Life Action Network, were racketeering organizations, a functional “pro-life mafia” engaging in a conspiracy to prevent access to health-care facilities providing abortion services. It was the first time the anti-choice groups had been the target of a class-action lawsuit alleging they operated as a criminal gang. NOW ultimately lost the case when, in 2006, the Roberts Court ruled criminal conspiracy statutes didn’t apply to groups like PLAL, and that the passage of the Federal Access to Clinic Entrances (FACE) Act suggested Congress didn’t intend to have criminal statutes apply in situations like clinic blockades and patient/provider harassment.

Like the NRA and the right’s opposition to Halligan, the NRA’s opposition to Murthy is part of a pattern of what Ladd Everitt, director of communications for the Coalition to Stop Gun Violence, a nonprofit organization comprised of 48 national organizations working to reduce gun violence, described in an interview with Rewire as “all rights and no responsibilities.” This serves the NRA’s larger purpose of selling more guns and to deliver votes for conservative candidates.

“It’s good politics for the NRA. They do so many things to rev up their base and raise money, and deliver votes more broadly to the conservative movement, and I’m sure their leadership couldn’t resist [opposing Dr. Murthy’s nomination],” Everitt said. “He’s been appointed by President Obama, who is enemy number one with their supporters. He’s a man of color who has spoken forthrightly about the problem of gun violence and how he views it as a public health issue, which every other legitimate member of the medical community does as well.”

In April, just after Republican opposition to Murthy’s nomination was reaching a fever pitch among members of Congress like Sen. Rand Paul (R-KY), the American College of Physicians went on record calling U.S. gun violence a public health issue and released a set of wide-ranging recommendations to address the average of 88 gun deaths per day that happen in the country. (The organization’s president, Molly Cooke, described this in the Washington Post as “a good-sized airplane crash every three days.”) Among the top recommendation from the group was that doctors should be able to freely, and without legislative interference, counsel patients on the risk of having guns in the home, particularly if children, adolescents, people with dementia, the mentally ill, or people with substance abuse problems live there—the very kind of proposal the NRA opposes and Congress, by refusing to advance his nomination, is stonewalling.

A 2012 article, “Legislative Interference with the Patient-Physician Relationship,” published in the New England Journal of Medicine addressed head-on this trend of legislators “overstepping the proper limits of their role in the health care of Americans to dictate the nature and content of patients’ interactions” with their doctors. The article, penned by the executive staff leadership of five professional societies that represent the majority of U.S. physicians providing clinical care—the American Academy of Family Physicians, the American Academy of Pediatrics, the American Congress of Obstetricians and Gynecologists, the American College of Physicians, and the American College of Surgeons—described the trend as “alarming” and against the best interests of the patients, because it fails to respect “the importance of scientific evidence, patient autonomy, and the patient-physician relationship.”

The article identified four areas of “inappropriate legislative interference.” The first is a gag law that “prohibits physicians from discussing with or asking their patients about risk factors that may affect their health or the health of their families, as recommended by evidence-based guidelines of care.” An example of this cited by the doctors came from Florida. In 2011, the state enacted the Firearm Owners’ Privacy Act, which substantially impaired physicians’ ability to deliver gun safety messages to patients. The law also prohibited practitioners from routinely inquiring about whether patients own firearms and recording this information in a patient’s medical record. The law, which is currently under injunction, subjected doctors to a loss of their medical license should they violate it. Republicans in the state, including Gov. Rick Scott, have appealed the injunction.

Minnesota and Montana currently have similar laws on the books.

“For all their rhetoric about responsibility and safety, this is yet another example of where it’s clear they are trying to protect people who do not operate safely,” Everitt said. “They want to divorce the issue of gun ownership from safety—not for the shooter—but for everyone around the shooter.”

This kind of silencing and debate control should sound familiar to reproductive rights and justice advocates because anti-choice activists have long used it as a way to push back against reproductive autonomy. At least five states require doctors to inform patients of a false risk between abortion and breast cancer, and at least seven states require doctors to assert only negative psychological effects from abortion. Meanwhile, at least 21 states have laws that prohibit some or all state employees or organizations that receive state funds from providing consulting, or referring women for abortion services, while at least three states have enacted measures that prohibit organizations receiving state funds from counseling or referring women for abortion services.

Lin-Fan Wang, a family doctor and reproductive health advocacy fellow at Physicians for Reproductive Health, described the impact of these kinds of gag laws globally on the medical practice and the doctor-patient relationship. “As a family doctor, I am a generalist, which means a lot of my clinical focus is on preventive care. That includes everything from birth control to immunizations and beyond,” Wang told Rewire. “The impact of gag laws means I can’t inform my patients of all their options, or I’m limited in what information I can give. And if I can’t do that in one area, it affects patient trust generally. And the doctor-patient relationship must be built on trust.”

Wang continued, “The issue of trust is so important. In rural areas, for example, family doctors may be the only doctor some people see. These relationships are important.”

Wang sees a clear connection between laws limiting what information doctors can solicit from patients related to guns and laws limiting or scripting what doctors can or must disclose to patients seeking abortions: “Both of these kinds of laws are politically motivated and not in the best interests on the patients, nor are they grounded in science or the interests of public health.”

It’s that clear political agenda behind the silencing efforts that Wang believes has helped medical groups become more vocal in their opposition to conservative legislative efforts to interfere in the patient-provider relationship. “I think doctors are slowly realizing more legislation is being proposed that directly impacts their professional judgments and that is not based on science but on the personal opinions of legislators,” Wang said.

The result is deadly, and uninformed, policy.

For its part, the media establishment has done little to help advance the cause of informed debate surrounding the problem of gun violence. Instead of pushing lawmakers to find policy solutions to the inexcusable levels of gun violence in this country, mainstream media questions the number of “legitimate” school shootings or “legitimate” cases of sexual assault.

Like the most extreme factions of the anti-choice movement, groups like Open Carry Texas are quite literally weaponizing constitutional rights in the name of intimidation and fear, using intimidation and silencing tactics very clearly aimed at women and people of color.

“The gun issue is intimately woven with the fears of white men and the fact that the demographic writing is on the wall and they are seeing their position of privilege erode day by day,” Everitt said. In particular, gendered violence and violent rhetoric against women have always been a part of the movement, Everitt explained. “Women’s heightened position in society [and] gay rights drives them nuts. Racism being totally inexcusable—that worries them. The gun has been a symbol of personal power and status and a guarantor of one’s position in society for these folks. It’s their ‘Second Amendment check’ on feeling their position of power give way.”

Despite the president’s heartfelt condolences offered now on a near-daily basis in response to yet another public shooting, and despite the fact that poll after poll shows wide support for reasonable gun restrictions, Murthy has gone silent on the issue of gun violence, and it appears his vote will be delayed until after the midterm elections, if it happens at all.

In other words, the NRA has successfully silenced Murthy. For now at least.

Commentary Human Rights

The Democratic National Convention Was a Remarkable Victory for Disabled People

s.e. smith

This year's convention included disabled people every evening, as part of a larger inclusive policy that made 2016 a banner year for disability rights activists.

Read more of our coverage of the Democratic National Convention here.

On Thursday night, Hillary Clinton formally accepted the Democratic Party’s nomination for president. Her speech included many of the elements one expects from a nominee, but there were some standout moments—like when she mentioned disability rights, which she did repeatedly.

Clinton integrated disability into her discussion of her record, talking about her work to ensure that disabled children have the right to go to school and bringing up the health-care needs of disabled youth. Her commentary reinforced the fact that she has always cared about disability issues, particularly in the context of children’s rights.

But she did more than that. She referenced shortages of mental health beds. She explicitly called out disability rights as necessary to defend. And at one point, she did not mention disability, which in itself was radical. When she outlined her plans for gun reform and clearly stated that she wanted to keep guns out of the hands of people who shouldn’t have them, she referenced people with criminal histories and terrorists, but not mentally ill people, who have been fighting a surge in stigma thanks to perennial (and wildly incorrect) assertions that mental illness causes violence. That omission was clearly deliberate, given the meticulous level of crafting that goes into writing one of the most important speeches of a presidential candidate’s career.

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The nominee’s speech would have been remarkable on its own, but what made it truly outstanding is that it was far from the first appearance of disability at this year’s Democratic National Convention (DNC). The convention included disabled people every evening as part of a larger inclusive policy that made 2016 a banner year for disability rights activists, who are used to being invisible. These kinds of appearances normalized disability, presenting it as a part of some people’s lives and a source of pride, not shame or misery.

On Monday, for example, disability rights activist Anastasia Somoza rolled out to give a sharp, compelling speech that didn’t cast disability in a tragic or exceptional light. She wasn’t the only wheelchair user to appear on the DNC stage—Paralympic athlete Mallory Weggemann led the pledge of allegiance on a different evening. Dynah Haubert, an attorney for Disability Rights Pennsylvania, took the stage on Tuesday. Nor were wheelchair users the only disabled people represented. Ryan Moore, a longtime friend of Clinton’s, spoke about health care and his experiences as a man with spondyloepiphyseal dysplasia congenital syndrome, a form of dwarfism. Connecticut Gov. Dannel Malloy talked about his learning disabilities. Musician Demi Lovato, who has bipolar disorder, took on mental health.

Former Iowa Democratic Sen. Tom Harkin, a nondisabled man who played an instrumental role in the push to pass the Americans with Disabilities Act (ADA) in 1990, taught the crowd sign language during a lively speech about the fight for disability rights on Tuesday, the 26th anniversary of the landmark legislation.

On Wednesday night, former Rep. Gabby Giffords (D-AZ) strode out onto the DNC stage in Philadelphia, smiling and waving at the crowd, to make a few short remarks. “Speaking is difficult for me,” she concluded, “but come January 2017 I want to say these two words: ‘Madam President.'” Her speech was about gun violence—a subject with which she’s intimately familiar after being shot in the head in 2011.

This level of representation is unprecedented. Some speakers, like Somoza, explicitly talked about disability rights, putting the subject in the spotlight in a way it’s never been at previous conventions. Others, like Giffords, came up on stage to talk about something else entirely—and happened to represent disability while they were at it. Similarly, Rep. Tammy Duckworth (D-IL), a decorated combat veteran and double amputee, talked about military policy.

This is a striking contrast from the treatment of disability at previous Democratic National Conventions: When disabled people have appeared, it’s often been in the form of a lackluster performance that objectifies disability, rather than celebrating it, as in 1996 when former actor Christopher Reeve framed disability as a medical tragedy.

Disability rights activists have spent decades fighting for this kind of representation. In 1992, two years after the passage of the ADA, the platform included just three mentions of disability. This year, the subject comes up in 36 instances, woven throughout the platform for an integrated approach to disability as a part of society, rather than as something that needs to be walled off into a tiny section of the platform, tokenized, and then dismissed.

In the intervening years, disabled people in the United States have fought for the enforcement of the ADA, and taken the right to independent living to court in 1999’s Olmsted v. L.C., which was namechecked in the 2000 platform and then forgotten. Disabled people advocated to have their rights in school codified with the Individuals with Disabilities Education Act (IDEA) in 2004, pushed for inclusion in 2010’s Affordable Care Act, and are fighting to pass the Community Choice Act and Disability Integration Act (DIA). Disability rights in the United States has come a long way since 1990’s infamous Capitol Crawl, in which disability rights activists dragged themselves up the steps of the U.S. Capitol, pleading with Congress to pass the ADA.

And as activists have pushed for progress in the courts and in Congress, disability rights have slowly become more prominent in the Democratic party platform. The ADA has been a consistent theme, appearing in every platform since 1992 alongside brief references to civil rights; historically, however, the focus has been on disability as a medical issue. The 1996 platform introduced Medicare, and health care in general, as issues important to the disability community, a refrain that was reiterated in years to come. In numerous years, Democrats addressed concerns about long-term care, in some cases positioning disabled people as objects of care rather than independent people. Disabled veterans have also played a recurring role in the platform’s discussion of military issues. But beyond these topics—again, often approached from a dehumanizing angle—and the occasional lip service to concerns about discrimination and equal rights, until the 2000s, education was the only really consistent disability issue.

In 2000, however, the Democrats went big, building on eight years under President Bill Clinton, and the influence of his then-first lady. For the first time, disability wasn’t simply lumped under “civil rights.” The platform explicitly called out the need for protection from disability hate crimes, but it also began to introduce the idea that there were other issues of relevance to the disability with a discussion of the digital divide and the obstacles that held disabled people back. Almost 30 years after the passage of the Rehabilitation Act of 1973, which barred disability discrimination by government agencies and contractors, the Democrats were starting to embrace issues like accessibility and independent living, which also played a prominent role in 2000.

It was a hint that the party was starting to think about disability issues in a serious way, especially when in 2008, the Democrats discussed the shameful delay on ratification of the United Nations’ Convention of the Rights of Persons with Disabilities, took on the Community Choice Act, talked about the need to enforce IDEA, and, again for the first time, explicitly addressed voting rights issues. By 2012, they were also calling out discriminatory voter ID laws and their disproportionate effect on the disabled community.

That’s tremendous, though incremental, progress.

And this week, the efforts of a generation of disability rights activists are on display everywhere in Philadelphia, where Daily News columnist Ronnie Polaneczky observed that accessibility is a top priority across the city. The DNC is providing expanded accessible seating, wheelchair charging stations, service dog relief areas, Braille materials, closed captioning, American Sign Language interpreters, medication refrigerators, and more. That’s radical inclusion at work, and the result of incredible efforts by disability rights organizers—including the 400 delegates who disclosed disabilities.

Those same organizers have been hounding the presidential candidates, holding them accountable on disability over and over again. They’ve brought up concerns about independent living, wage disparities, education, access to services, accessibility, hate crimes, reproductive rights, the “marriage penalty” and government benefits, and casual disablism in campaign rhetoric and practices. Advocates leaned on the Clinton campaign until it began captioning its content, for example. RespectAbility sent journalists out on the trail, #CriptheVote organized Twitter, and Rev Up encouraged people to register to vote and get involved. The disability community may be more explicitly politically active this year than ever before, and the DNC has been responding accordingly.

Clearly in consultation with disability rights activists, the Democrats have brought a host of new issues into this year’s platform, acknowledging that disabled people are part of U.S. society. Some of the many issues unique to this year’s platform include: abolition of the subminimum wage, concerns about economic opportunities with an explicitly intersectional discussion of the racial wealth gap, affordable housing, accessibility at the polls, the role of disability in the school-to-prison pipeline, and the need for more accurate Census data.

Notably, in a platform that has loudly called for a Hyde Amendment repeal and pushed for other abortion rights, the Democrats have also reinforced the need for access to reproductive health for disabled people, a revolutionary clause that’s gone virtually unnoticed.

This is a platform—and convention—of aggressive inclusion, and it reflects a victory for disabled people in the United States. It does still lack some components the disability community would like to see, like a shoutout to the DIA, which Clinton supports. This is, however, the start of what looks like a robust and real relationship between the Democrats and the disability rights community.

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.