Federal Judge Sides With DeSantis on Mask Mandate Ban

On Sept. 15, a Miami federal judge handed Florida Gov. Ron DeSantis a victory when he ruled against the parents of students with disabilities in a lawsuit over public school mask mandates.

Twelve parents from eight Florida school districts whose children have special needs sued the governor and the Florida Department of Education (FDOE) over a DeSantis executive order (pdf) that allows parents to opt-out of student face coverings. The school boards of the Alachua, Broward, Hillsborough, Orange, Palm Beach, Pasco, Miami-Dade, and Volusia school districts were also named in the suit for implementing the governor’s order. The federal suit argued that their children were at elevated risk of becoming ill or dying from COVID-19 if other children came to school without facial coverings.

In Judge K. Michael Moore’s decision, he denied the parents’ request for a preliminary injunction against the July-issued executive order, which was the catalyst for the Florida Department of Health to issue a rule (pdf) requiring school districts to allow parents to opt-out of any student mask mandates. Thus far, 13 school districts have defied the governor’s order. Two counties, Broward and Alachua, have been fined for non-compliance, while others are under investigation by FDOE.

Moore found that the parents hadn’t exhausted all “remedies” at their respective schools to accommodate their children’s needs before bringing a lawsuit.

One of the attorneys for the parents, Matthew Dietz, said he isn’t sure if an appeal will be filed and hoped that the Biden administration would step in and bring forth some sort of remedy instead.

“We are disappointed in the decision of the court and are evaluating our options at this point,” Dietz said in an emailed statement. “We would hope and expect federal education officials and the U.S. Department of Justice will weigh in on the rights of children with disabilities to be safely integrated into their local schools.”

Recently, the U.S. Department of Education announced a grant program that provides funding for school districts in Florida (and elsewhere) that lose money for issuing “anti-coronavirus practices,” such as mask mandates. State officials were warned by the federal agency that they would be investigating whether the state’s ban on mask mandates violates federal civil rights laws that protect students with disabilities.

In the past, DeSantis has insisted that the new Parents Bill of Rights law gives parents the authority to decide whether their children should wear face coverings to school.

The offices of the governor and the FDOE didn’t respond to requests for comment by press time.

Jannis Falkenstern is an Epoch Times reporter who covers the state of Florida.



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Bill would expand Florida ban on critical race theory beyond K-12 public schools

The Florida Board of Education (BOE) approved a rule in June that mandates K-12 public schools teach American history based on “universal principles stated in the Declaration of Independence” and bans “critical race theory” (CRT) from being taught.

The original rule, based on an executive order issued by Gov. Ron DeSantis, barred teachers from attempting “to indoctrinate or persuade students to a particular point of view” but never mentioned CRT.

The rule ultimately adopted by the BOE excludes the “indoctrinate” language but cites CRT in outlawing “fiction or theory masquerading as facts, such as critical race theory” in K-12 schools.

But there’s still too much CRT indoctrinating going on, says Rep. Randy Fine, R-Palm Bay, who is calling on Florida lawmakers to expand and codify DeSantis’ order and the BOE rule banning it when they convene Jan. 11 for their 2022 legislative session.

Fine and Rep. Jason Fischer, R-Jacksonville, on Aug. 30 pre-filed House Bill 57 for the 2022 session, which seeks to ban use of CRT in training, policy or any activity in K-12 public schools, all 12 public Florida universities, all 28 public state colleges, state agencies, municipal governments and private businesses that contract with state and local governments.

“Critical Race Theory is racist at its core, and has no place in the State of Florida,” Fine said in a Wednesday statement. “The notion that people are good or bad based on the color of their skin runs counter to everything our country was founded on. It is insidious, it is evil, and it is propagated to make our children hate their country.”

CRT is not a component of Florida’s K-12 curriculum but the BOE adopted the rule after DeSantis cited “attempts to teach CRT” in Palm Beach and Sarasota counties and at Jacksonville’s Douglas Anderson School of the Arts, where two school cultural meetings separating students based on race were canceled amid backlash.

“Critical Race Theory teaches kids to hate our country and to hate each other. It is state-sanctioned racism and has no place in Florida schools,” DeSantis tweeted before the BOE adopted its rule in June. “The woke class wants to teach kids to hate each other, rather than teaching them how to read, but we will not let them bring nonsense ideology into Florida’s schools.”

Fine also cited an example of CRT being taught in schools, noting “as we have seen in Brevard County, radical politicians and bureaucrats are indoctrinating this hate into our principals, teachers, and ultimately, students.”

Fine said while most are engaged in “the greatest crisis to public education in history – responding to COVID,” Brevard County School Board “politicians thought it was more important to spend tens of thousands of dollars hiring a CRT trainer who stated, ‘White America has a deep and thick appetite for Black death and violence upon Black people.’ The philosophy these politicians are pushing is repugnant and repulsive, and this legislation will eradicate it root and branch.”

Brevard School District Board officials claim Fine is taking unattributed comments out of context and that they have no plan to teach CRT.

HB 57 would ban a 10-point list of “divisive concepts,” including “race or sex scapegoating,” prohibit teaching one race or sex is inherently superior to another, that the United States is fundamentally racist or sexist and that individuals are inherently racist, sexist and oppressive based on their own race or sex.

Florida Department of Education inspectors general would review compliance annually under HB 57, which clarifies it does not ban “racial, cultural, ethnic or intellectual diversity and inclusiveness efforts” that don’t feature “divisive concepts.”





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CA county to ban 911 calls “based on bias” – HotAir

Out in Santa Cruz County, California, the Board of Supervisors has passed a new municipal ordinance involving 911 calls. They want residents to know that they are free to call the emergency services line if they see something suspicious, but if it involves a person of color, the caller may wind up getting hit with a fine of up to $1,000. Of course, they don’t say it quite that explicitly. They are banning 911 calls that are “based on bias.” But let’s face it… that’s what it boils down to. So what sort of impact will this have on people facing potentially legitimate emergencies or who see people engaging in what appears to be illegal activity? The Board is quite sure nothing will go amiss. (CBS San Francisco)

The Santa Cruz County Board of Supervisors voted unanimously in favor of a new ordinance that makes it illegal to call 911 or law enforcement on someone because of bias.

The new law creates civil penalties — up to a thousand dollars — against anyone who reports someone to law enforcement because of their race, ethnicity, gender, sexual orientation or other legally protected classes.

The Santa Cruz County Sheriff’s Office proposed the ordinance to the Board of Supervisors. Supporters say the goal is to reduce the number of racially motivated calls to law enforcement specifically and not to discourage people from using 911 to report legitimate concerns.

You can tell that the board members knew they were doing something wrong based on the speed with which they rushed out to assure everyone that they should still feel free to use the 911 system. One member said, “We’re not trying to stop that. People have to make calls when something’s wrong.”

And while the ordinance may not say it in such plain language, the explanations offered by board members make it clear that they are talking about white callers reporting minority suspects. One member even referred to a hypothetical situation where a call was placed about people who “weren’t doing anything wrong and they happen to be a person of color.” Try to imagine a situation where a Black or Hispanic person called 911 to report a white guy breaking into a car and getting hit with this fine if it turns out he was just some guy who had locked his keys inside. The howls of outrage would be deafening.

What they’re obviously trying to do is cut down instances of 911 calls such as the ones infamously made by “Central Park Karen.” But the predictable, chilling effect this will have on people considering phoning in suspicious behavior is obvious. If you’re walking along and see what appears to be some sort of attempted theft in progress or illegal drug sales, are you going to pull out your phone and dial 911 if the suspicious person is a minority? Or are you just going to mind your own business and keep on walking? If you’re aware of this ordinance, you’ll probably opt for the latter. And that just makes the job of the police even harder.

Calling the police on someone based on nothing more than their race or the fact that you “just don’t like the way they look” is obviously an odious practice and those who do it need to be called out. But criminalizing something like that, even if it’s desirable, is a tricky business. You have to put yourself inside the mind of the caller and guess whether the call was really just motivated by prejudice or if they honestly believed that they might be helping to prevent a crime in progress. And society already seems to do a fairly good job of discouraging those types of calls. Look what happened to Central Park Karen after her fifteen minutes of fame. She wound up losing her job and her home.



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Alaska State Senator Excused From Votes Due to Airline Mask Mandate Ban

Alaskan State Senator Lora Reinbold (AP Images)

An Alaska state senator requested to be excused from votes until January 2022 due to being banned from Alaska Airlines for violating the federal mask mandate for public transportation.

On September 9, Senator Lora Reinbold, a Republican from Eagle River, made the procedural request to be excused from September 11 to January 15, 2022. She cited her inability to fly directly from Anchorage to Juneau as the reason for her request, and the Senate accepted her request without objections.

In two Facebook posts on September 9 and 14, respectively, Senator Reinbold refuted the notion that she will miss votes during her excusal. “Just because a legislator asked for an ‘excusal’ does not mean they cannot/will not vote. I asked for an ‘excusal’ so I would not impede state legislative business if they placed a ‘call’ on the Senate. I would be traveling the slow route, to get to a likely 4th special session, in Juneau, because the monopoly Alaska Airlines, has me on a political ban,” she wrote. In her other post, she also noted that two other senators had requested longer excusals.

Senator Reinbold has been unable to fly via Alaska Airlines since April, when it banned her from flying for violating the federal government’s mask mandate. In the airline’s statement announcing her ban, it claimed that “Federal law requires all guests to wear a mask over their nose and mouth at all times during travel, including throughout the flight, during boarding and deplaning, and while traveling through an airport.”

However, this statement is false as Congress did not pass any law requiring mask-wearing. Rather, the mask mandate was decreed by the Centers for Disease Control and Prevention following a similar executive order by President Joe Biden. It is a federal regulation, one that is unconstitutional.

Meanwhile, Reinbold is still managing to travel between her district and Juneau, albeit using less convenient routes. Earlier in the year, she reached Juneau by driving through Canada and reaching the capital by ferry. She also flew between Anchorage and Juneau via Delta Airlines, overlaying in Seattle, though this route is seasonal. Juneau can only be reached by ferry or air, and Alaska Airlines is the only airline that flies there all year.

Senator Reinbold has also come under attack from her Senate colleagues — including her fellow Republicans — for her vocal criticism of COVID-19 government overreach and draconian mandates. For declining to follow the Senate’s mask-wearing requirements, she was banned from most of the Capitol, fined by the Senate Rules Committee, and removed as chair of the Senate Judiciary Committee.

However, if Americans are to rein in COVID overreach and put an end to the tyrannical mask and vaccine mandates, it is imperative to follow Senator Rand Paul’s advice and “simply say no” to the various mandates and other restrictions imposed by all levels of government. This is a perilous time for liberty, and Americans cannot afford to sit back and allow their rights to be snuffed out.

At least one Alaska state senator is standing up for liberty.

To urge your U.S. representative and senators to protect and restore medical freedom in public transportation, visit The John Birch Society’s legislative alert here.

Related: Senator Reinbold Resists COVID Tyranny Goliath in Alaska



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TGA ban off-label use of Ivermectin

The Australian Therapeutic Goods Administration (TGA) has issued a set of restrictions preventing GPs from prescribing off-label use.

Ivermectin is not approved for use in COVID-19 in Australia or in other developed countries, and its use by the general public for COVID-19 is currently strongly discouraged by the National COVID Clinical Evidence Taskforce, the World Health Organization and the US Food and Drug Administration,” said the TGA official statement.

Ivermectin may now only be prescribed for conditions expressly approved by the TGA. These include the parasitic infections of Onchocerciasis (River Blindness), scabies, and Intestinal Strongyloidiasis.

Not all doctors agree with the TGA’s decision against Ivermectin, demonstrated by a three-to-four fold increase in prescriptions without a corresponding increase in parasitic infections. It is reasonable to assume that these figures represent prescriptions for Covid-related health matters.

The comment section under the announcement has been filled with doctors disgusted by the TGA’s decision.

“This is a drug with safe profile better than any current drugs used in this pandemics,” said Dr Ayodele Ezekiel Ogunjobi. “India saved their nation with Ivermectin. Do we want people to die in their homes in the name of promoting vaccination? GPs should stand up for choice. I am in no way against vaccination. Please.”

“This is disgusting. Is medicine only about money and power now?” added Dr Sandra Jae Skinner.

We should never accept such restrictions on our practice, especially ones as contentious as this. If you don’t believe it’s contentious then you haven’t looked hard enough,” said Dr Anthony Francis Dique. “And what happened to the principle of autonomy? Either we as Drs are capable of determining risk vs benefit or we’re not. If it’s the latter folks, as the TGA are now essentially asserting, then it’s all over.”

This is not the first time that the TGA has issued doctors with a stern warning about Ivermectin.

Doctors that prescribe Ivermectin off-label must consider the potential risks and benefits, and obtain informed consent from patients about the condition and treatment options. The TGA strongly discourages self-medication and self-dosing with Ivermectin for COVID as it may be dangerous to your health,” said the TGA at the time.

Many drugs are prescribed to treat conditions not listed on their labels. Restricting discretionary prescription has caused a backlash of GPs questioning the TGA’s heavy-handed oversight of the medical profession.

Lawyers for the TGA accused the United Australia Party of breaching copyright and distributing alleged misleading content.

The comments are in relation to Craig Kelly quoting from the Database of Adverse Event Notifications on the TGA website. These were then mass-distributed in text messages to the Australian public.

Craig Kelly counter-accused the TGA, claiming that their statement about his actions was ‘misleading, deceptive, and defamatory’.

The TGA’s media release creates a false impression that the correspondence I have received from Maddocks includes a reference to the text being ‘seriously misleading’ when, in fact, the correspondence from Maddock lawyers makes no reference to this point,” said Craig Kelly.

Clive Palmer held a press conference to address the TGA issue.

The United Australia Party is a registered political party under the Electoral Act and Craig Kelly is a member of the House of Representatives and therefore has the right of free political communication with all Australians,” added Clive Palmer, in a statement.

It’s an extraordinary situation where you’ve got a member of the Australian House of Representatives being attacked for doing nothing more than circulating a government report,” Palmer continued. “Of course, Craig Kelly has nothing to fear from circulating an Australian government report. He has nothing to fear or be intimidated about. He has the resources to defend himself. He has the resources to expose what’s happening with the TGA.”

Palmer further went on to direct his comments at TGA Adj. Professor John Skerritt.

A serious question has got to be asked with Mr Skerritt, who’s responsible for regulating drugs in this country. When we see him in a white coat on television promoting vaccines … is a serious conflict of interest between a regulator promoting a company’s product.”

Against the advice of the World Health Organisation, globally Ivermectin is commonly administered off-label to treat Covid. Use is so widespread in Africa, India, Asia, and South America that doctors attempting to conduct clinical trials have struggled to find large groups of patients who haven’t taken Ivermectin.

In March of 2021, the World Health Organisation officially added Ivermectin as a drug of interest to be investigated as a treatment for Covid in clinical trials.

Far from the politicised and unflattering slur of ‘horse paste’, Ivermectin is a Nobel Prize winning drug that is credited with saving countless lives combating parasitic diseases such as River Blindness. It has been recognised for a long time that in addition to fighting parasites, Ivermectin has shown significant promise as a powerful anti-viral.

Ivermectin became controversial during the US presidential election when it was championed by Donald Trump.





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WIN: Florida court rules in favor of DeSantis, lifts pause on mask mandate ban

Florida’s First District Court of Appeals ruled in favor of Gov. Ron DeSantis on Friday temporarily lifting the pause on the governor’s executive order banning public schools from implementing mask mandates.

“Upon our review of the trial court’s final judgment and the operative pleadings, we have serious doubts about standing, jurisdiction, and other threshold matters,” the three-judge panel said about a parent-led lawsuit insisting the governor overstepped his power when issuing the ban. “These doubts significantly militate against the likelihood of the appellees’ ultimate success in this appeal. Given the presumption against vacating the automatic stay, the stay should have been left in place pending appellate review.”

“Accordingly, we grant the appellants’ motion, quash the trial court’s order vacating the automatic stay, and reinstate the stay required by Florida Rule of Appellate Procedure 9.310(b)(2). A written order explaining this disposition will follow,” the ruling stated.

The decision comes after DeSantis’ team quickly filed an appeal as the result of Circuit Judge John Cooper’s decision to strike down the ban on mask mandates in schools in late August.

Celebrating the decision, DeSantis tweeted, “No surprise here – the 1st DCA has restored the right of parents to make the best decisions for their children.”

Back in July, DeSantis signed an executive order that prohibited school districts in the sunshine state from implementing any form of mask mandates, providing parents the power to make the best decisions for their children. The state threatened to pull funding from schools that refused to follow the order.

“On June 29, 2021, I signed into law H.B. 241, the Parents’ Bill of Rights, which prevents the state, its subdivisions, or any governmental institution, from infringing on the fundamental rights of a parent to direct the upbringing, education, health care, or mental health of a minor child without demonstrating that such action is reasonable and necessary to achieve a compelling state interest and that such action is narrowly tailored and is not otherwise served by less restrictive means,” the order stated. “Pursuant to Florida law, all parents have the right to make health care decisions for their minor children.”





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Bill would expand Florida ban on critical race theory beyond K-12 public schools

The Florida Board of Education (BOE) approved a rule in June that mandates K-12 public schools teach American history based on “universal principles stated in the Declaration of Independence” and bans “critical race theory” (CRT) from being taught.

The original rule, based on an executive order issued by Gov. Ron DeSantis, barred teachers from attempting “to indoctrinate or persuade students to a particular point of view” but never mentioned CRT.

The rule ultimately adopted by the BOE excludes the “indoctrinate” language but cites CRT in outlawing “fiction or theory masquerading as facts, such as critical race theory” in K-12 schools.

But there’s still too much CRT indoctrinating going on, says Rep. Randy Fine, R-Palm Bay, who is calling on Florida lawmakers to expand and codify DeSantis’ order and the BOE rule banning it when they convene Jan. 11 for their 2022 legislative session.

Fine and Rep. Jason Fischer, R-Jacksonville, on Aug. 30 pre-filed House Bill 57 for the 2022 session, which seeks to ban use of CRT in training, policy or any activity in K-12 public schools, all 12 public Florida universities, all 28 public state colleges, state agencies, municipal governments and private businesses that contract with state and local governments.

“Critical Race Theory is racist at its core, and has no place in the State of Florida,” Fine said in a Wednesday statement. “The notion that people are good or bad based on the color of their skin runs counter to everything our country was founded on. It is insidious, it is evil, and it is propagated to make our children hate their country.”

CRT is not a component of Florida’s K-12 curriculum but the BOE adopted the rule after DeSantis cited “attempts to teach CRT” in Palm Beach and Sarasota counties and at Jacksonville’s Douglas Anderson School of the Arts, where two school cultural meetings separating students based on race were canceled amid backlash.

“Critical Race Theory teaches kids to hate our country and to hate each other. It is state-sanctioned racism and has no place in Florida schools,” DeSantis tweeted before the BOE adopted its rule in June. “The woke class wants to teach kids to hate each other, rather than teaching them how to read, but we will not let them bring nonsense ideology into Florida’s schools.”

Fine also cited an example of CRT being taught in schools, noting “as we have seen in Brevard County, radical politicians and bureaucrats are indoctrinating this hate into our principals, teachers, and ultimately, students.”

Fine said while most are engaged in “the greatest crisis to public education in history – responding to COVID,” Brevard County School Board “politicians thought it was more important to spend tens of thousands of dollars hiring a CRT trainer who stated, ‘White America has a deep and thick appetite for Black death and violence upon Black people.’ The philosophy these politicians are pushing is repugnant and repulsive, and this legislation will eradicate it root and branch.”

Brevard School District Board officials claim Fine is taking unattributed comments out of context and that they have no plan to teach CRT.

HB 57 would ban a 10-point list of “divisive concepts,” including “race or sex scapegoating,” prohibit teaching one race or sex is inherently superior to another, that the United States is fundamentally racist or sexist and that individuals are inherently racist, sexist and oppressive based on their own race or sex.

Florida Department of Education inspectors general would review compliance annually under HB 57, which clarifies it does not ban “racial, cultural, ethnic or intellectual diversity and inclusiveness efforts” that don’t feature “divisive concepts.”



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Fauci Ignored Obama’s Ban on Gain-of-Function Research, Ordered Coronavirus Studies to Continue – RedState

In the early days of the pandemic, I found Dr. Anthony Fauci to be the typical government bureaucrat: well-meaning, but inept and ultimately unnecessary in the larger picture. Over the course of the pandemic, and especially due to the investigative reporting I’ve done on the origin of COVID-19, I’ve come to believe that Fauci’s desire to control the narrative on this subject deals squarely with his culpability in creating the pandemic in the first place.

While larger media outlets are now highlighting things reported here in May and June, such as NIH funding of gain-of-function research (or, research that makes viruses more deadly or contagious) at Wuhan and the conflict of interest of the vast majority of the Lancet letter’s signatories, they’re dancing around the bigger story:

Dr. Fauci, the NIAID, and the NIH ignored a ban on gain-of-function research instituted by the Obama administration in 2014 and continued to fund it until the Trump administration revoked funding in April 2020, and knowingly continued to fund research undertaken at the Wuhan Institute of Virology.

These facts and many others were revealed in my May 13 piece, “Dr. Fauci’s Testimony to Rand Paul on ‘Gain-of-Function’ Research Certainly Seems Like It Was Untrue.

As we’ve reported and as Fox News Channel’s Steve Hilton brought out nearly 10 months ago, Dr. Fauci has long been a cheerleader of GoF research. In 2011, Fauci and NIH Director Dr. Francis Collins went on an offensive regarding gain-of-function research, suggesting that such experiments, regardless of the associated dangers, are necessary. The next year, Fauci testified before Congress on the topic again, suggesting again that the benefits of the research outweigh the risks. Throughout the next couple of years, many within the scientific community became alarmed about gain-of-function research, especially after scientists created several chimeric viruses in labs that, had they gotten out, could have spelled global disaster. Yet, Dr. Fauci’s unqualified support continued.

As a result of the serious concern expressed about creating new, more lethal, and more transmissible viruses, the Obama Administration’s Department of Health and Human Services issued a moratorium on US funding of gain-of-function research, which took effect in 2014.  At the time, there were more than a dozen studies that fell under the HHS order, including a study being performed by Dr. Ralph Baric of the University of North Carolina.

Below is a copy of the letter sent to UNC:

Of the 14 gain-of-function studies that were occurring at the time of the issued pause, 13 immediately ceased, but one continued – Baric’s study at UNC. Dr. Ralph Baric, often referred to as the “godfather of gain-of-function,” was ordered by the NIH and NIAID to continue his research despite the HHS-issued moratorium. How do we know that?  Well, Baric was careful to note this in his studies performed after the institution of the moratorium.

In the first study, which was completed in the year after the pause in funding and research, Dr. Baric inserted the following disclosure, likely as a means of shielding himself from criticism or questioning as to why he was continuing research that had been stopped.

SHC014 GoF Disclosure

The second study contained a similar disclosure.

GOF Approved by NIH

Baric’s funding was not the only study that continued. The NIH and NIAID continued grant funding through EcoHealth Alliance, which conducted gain-of-function research throughout the pause as well.  EcoHealth Alliance also continued funding gain-of-function research through grants issued by the Department of Defense during this time.

While the common thread in these studies is that all the funding and research continued at the direction of the NIH and NIAID during the ordered pause, there’s another common thread running through all three of these studies: The Wuhan Institute of Virology.

In both studies, Baric worked directly in coordination with Dr. Shi Zhengli, the lead researcher at the Wuhan Institute of Virology. In one of the studies in which Baric placed his disclosure regarding the research pause, Baric also credited Dr. Shi, proving that not only were the NIH and NIAID aware that the research was being conducted, but a portion of that research also originated with the WIV.

Baric WIV1 Study

Baric’s other study wasn’t just funded by the NIH, but also the US Department of Defense through a USAID PREDICT grant to EcoHealth Alliance.  EcoHealth Alliance then awarded that money directly to Dr. Shi at the WIV:

SCH014 Funding Acknowledgements

Not only does this information directly contradict Dr. Fauci’s statements, but it also proves them to be lies.

In summary:

  • The Obama Administration ordered a pause in gain-of-function research.
  • That pause was ignored by the Department of Defense (DOD), The National Institutes of Health (NIH), and The National Institute of Allergy and Infectious Disease (NIAID).
  • Three studies confirm that a portion of the research was conducted at the Wuhan Institute of Virology (WIV).

We’ve been reporting this since May. When will Fauci be interrogated about this?



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The Texas abortion ban decision was “very bad,” but not political – HotAir

Amy Coney Barrett and Stephen Breyer — together again for the first time? Both Supreme Court justices have made public rebuttals over the past few days to charges of politicization, especially in regard to the Texas fetal-heartbeat abortion ban. Breyer makes the argument almost verbatim from his new book The Authority of the Court and the Peril of Politics, which George Stephanopoulos disputes, calling Breyer’s argument distanced from “the world as it is.”

How would Stephanopoulos know what the “world as it is” in the inner workings of the Supreme Court?

Justice Stephen Breyer said Tuesday the Supreme Court’s recent 5-4 decision allowing Texas to effectively ban abortion across the state was “very bad” but not politically motivated.

“We don’t trade votes, and members of the court have different judicial philosophies,” Breyer, the court’s most senior liberal justice, told George Stephanopoulos on ABC’s “Good Morning America.”

“Some emphasize more text. … Some, like me, probably emphasize more purposes. And the great divisions are probably much more along those lines than what we would think of as political lines,” Breyer said.

“I thought that was a very bad decision and I dissented,” he said.

This argument echoes Barrett’s explanation about the difference between politics and judicial philosophy. That is the true distinction, Breyer insists, just as Barrett did earlier this week in Louisville, Kentucky. Breyer made the same argument to the Washington Post in an interview yesterday:

At least two court members see the need to dial down the hysteria over the Texas decision, which is at least grounded in precedent and law. The ruling itself strongly implied that the plaintiffs in this case had insufficient standing for a temporary restraining order, and that there was nothing yet to restrain anyway. There are cases already percolating in Austin that would resolve both issues if the respondents can force them into federal court, which the Supreme Court would eventually have to address on the basis of more acute issues.

Breyer obviously disagrees on the issue of standing and ripeness, and declared that in his dissent. But he also understands the basis on which the other five jurists ruled, and knows that the issue is far from settled. For what it’s worth, although the outcome of the Supreme Court denial of the TRO petition pleases me, I do think that Breyer had the better argument on the law. And when those cases come to the court with the standing and ripeness issues resolved, I suspect that a TRO will be forthcoming, perhaps even explicitly on the basis of Breyer’s dissent.

If and when that happens, the “politicization” argument will fade, at least until the next ruling that cuts against the interests of progressives and media outlets. In the meantime, it looks like the court is unanimous so far on the effort to tamp down this talk. Perhaps they’re looking at what’s happening to Brett Kavanaugh and want to dial down the temperature a bit for their own benefit. Let’s get Breyer and Barrett to do a lecture series for the next couple of weeks before the court’s term starts again on October 4th.



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Opponents of the Texas Abortion Ban Are Struggling to Find Defendants They Can Sue To Prevent Its Enforcement – Reason.com

S.B. 8, the Texas abortion ban that took effect at the beginning of this month, was designed to frustrate pre-enforcement challenges by relying on private lawsuits to deter the conduct it forbids. A recent ruling by the U.S. Court of Appeals for the 5th Circuit shows how effective that strategy is. Because S.B. 8 explicitly bars Texas officials from enforcing its restrictions, the 5th Circuit said on Friday, they cannot be sued to block its implementation—a decision that illustrates the “complex and novel antecedent procedural questions” that the Supreme Court mentioned when it declined to intervene in this case.

The implication is that people who object to the law, which is plainly inconsistent with Supreme Court precedents, cannot challenge its constitutionality until someone is sued for performing or facilitating a newly prohibited abortion. But meanwhile, the law has already had its intended effect, since the threat of litigation has led Texas clinics to stop serving the vast majority of women seeking abortions.

S.B. 8 bans abortions after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy, before many women even realize they are pregnant. The abortion providers and abortion rights supporters who challenged the law in Whole Woman’s Health v. Jackson estimated that it would affect “at least 85% of Texas abortion patients.”

In lieu of enforcement by state officials, S.B. 8 allows “any person” to sue “any person” who performs post-heartbeat abortions or who “aids or abets” them. Prevailing plaintiffs are promised at least $10,000 in “statutory damages” per abortion, plus compensation for their legal expenses. Meanwhile, S.B. 8 limits the defenses available to targets of these lawsuits and specifies that they cannot recover attorney’s fees if they nevertheless manage to win. This scheme, which embraces legal tactics that conservatives have long condemned, creates a daunting deterrent even without any actual litigation, as it was designed to do.

The plaintiffs in Whole Woman’s Health v. Jackson tried to get around the law’s unusual enforcement mechanism by arguing that certain state officials—judges, court clerks, the attorney general, and the heads of various regulatory agencies—would play a role in implementing S.B. 8. Although U.S. District Judge Robert Pitman thought that argument was plausible enough to let the case proceed, the 5th Circuit emphatically disagrees in an opinion that explains the reasoning behind its earlier denial of the plaintiffs’ emergency motion for an injunction pending appeal.

The plaintiffs named Smith County District Court Judge Austin Jackson and Smith County District Court Clerk Penny Clarkston as defendants, representing a proposed class of all Texas judges and court clerks. These officials, the complaint argued, would be essential in enforcing S.B. 8 because they would handle the lawsuits authorized by the statute. The 5th Circuit deems that argument “specious,” saying the Supreme Court has made it clear that state judges are not proper defendants in cases challenging a law’s constitutionality.

In the 1908 case Ex parte Young, the Court said state officials charged with enforcing an allegedly unconstitutional law can be sued in their official capacity. The case involved Minnesota Attorney General Edward T. Young, who sued railroads for violating state rate regulations. While the Court said the railroads could respond by seeking a federal injunction against Young, it added that “the right to enjoin an individual, even though a state official, from commencing suits…does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature.” The justices said “an injunction against a state court would be a violation of the whole scheme of our government.”

The 5th Circuit also cites several appeals court decisions regarding liability under 42 USC 1983, which authorizes lawsuits against state officials who deprive people of their constitutional or statutory rights under color of law. The plaintiffs in Whole Woman’s Health cited that provision in their lawsuit. But “it is well established that judges acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law,” the 5th Circuit says. It adds that “Plaintiffs’ position is antithetical to federalism, violates the Eleventh Amendment and Ex parte Young, and ignores state separation of powers.”

The appeals court also notes that “the Declaratory Judgment Act requires an ‘actual controversy’ between plaintiffs and defendants.” But in this case, it says, “no such controversy exists,” since “the Plaintiffs are not ‘adverse’ to the state judges.” When “acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy.”

The 5th Circuit says “it is absurd to contend, as Plaintiffs do, that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law.” In other words, Texas judges will be obligated to consider constitutional objections to S.B. 8 when they hear any lawsuits authorized by it.

Or maybe even before then: Earlier this month, Travis County District Court Judge Maya Guerra Gamble issued a temporary restraining order against Texas Right to Life, barring that organization from filing S.B. 8 lawsuits against Planned Parenthood of Greater Texas. Gamble found that the law “creates a probable, irreparable, imminent injury” for which Planned Parenthood and its staff “have no adequate remedy at law.” Still, that decision is a far cry from the broad relief sought by the Whole Woman’s Health plaintiffs.

In addition to state judges, those plaintiffs argued that Texas Attorney General Ken Paxton was an appropriate defendant because he has the power to seek civil penalties against physicians and physician assistants who violate the Texas Medical Practice Act. The restrictions imposed by S.B. 8, they said, implied new constraints on medical practice under that broader law. For similar reasons, they sued the heads of the state agencies charged with regulating doctors, nurses, pharmacists, abortion clinics, and ambulatory surgical facilities. S.B. 8, they said, authorizes administrative actions against those practitioners and entities for performing or facilitating post-heartbeat abortions.

Although Pitman thought that argument made sense, the 5th Circuit says it is defeated by the plain language of S.B. 8. “Notwithstanding” any other legal provision, S.B. 8 says, “the requirements of this subchapter shall be enforced exclusively through the private civil actions” authorized by the law. It adds that “no enforcement of this subchapter…may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person.”

As the 5th Circuit sees it, “This language could not be plainer. Exclusive means exclusive, and notwithstanding any other law means notwithstanding any other law. When the district court imputed ‘indirect’ S.B. 8 enforcement authority to other agency provisions, it ran the multiple red lights in S.B. 8’s text….S.B. 8 emphatically precludes enforcement by any state, local, or agency officials. The defendant officials thus lack any ‘enforcement connection’ to S.B. 8 and are not amenable to suit under Ex parte Young.”

The plaintiffs also sued anti-abortion activist Mark Lee Dickson, based on statements indicating that he intended to file lawsuits under S.B. 8. They argued that Dickson was “a private individual deputized to bring S.B. 8 enforcement actions under color of state law.” Notwithstanding his avowed eagerness to take advantage of S.B. 8, Dickson “filed an affidavit stating that he has no present intention to enforce the law.”

The 5th Circuit rejected the plaintiffs’ motion to dismiss Dickson’s appeal, and it agreed with Dickson that Pitman should have stayed the district court proceedings against him pending appeal when he did the same for the state defendants. The “jurisdictional issues presented in the proceedings against Dickson are related to the issues presented in the state officials’ collateral-order appeal,” it says. And while the appeals court has not yet addressed the merits of Dickson’s defenses, it is not hard to predict how it will come down on the propriety of suing him based on speculation that he will file one or more lawsuits under S.B. 8.

South Texas College of Law professor Josh Blackman thinks the 5th Circuit’s conclusions in Whole Woman’s Health v. Jackson do not bode well for the Justice Department’s lawsuit challenging S.B. 8, which was filed in the U.S. District Court for the Western District of Texas. That suit, United States v. Texas, seeks “an order preliminarily and permanently enjoining the State of Texas, including its officers, employees, and agents, including private parties who would bring suit under the law, from implementing or enforcing S.B. 8.” But the 5th Circuit, which will hear appeals from the district court in this case, says state judges and other Texas officials “lack any ‘enforcement connection’ to S.B. 8.” If so, they would not be appropriate targets of an injunction in the Justice Department’s case either.

As for “private parties,” S.B. 8 authorizes lawsuits by “any person.” In effect, Blackman says, the Justice Department is suing all Americans based on the prospect that some of them will file lawsuits against people they accuse of performing or facilitating prohibited abortions. “This case really should be captioned United States v. United States,” he writes. “Is there any authority to bring such a suit? [The Justice Department] cites none, and I am not aware of any precedent….How can the federal government show that unnamed defendants are likely to bring a lawsuit? The entire case is speculative.”

If neither abortion providers nor the Justice Department can identify defendants whom the courts will deem appropriate, the only viable route to broad protection against S.B. 8 is to defy the law and wait for a lawsuit. That prospect is understandably troubling to abortion rights supporters, since the law has already had a dramatic chilling effect. A footnote to the 5th Circuit’s ruling claims “these Plaintiffs have no present or imminent injury from the enactment of S.B. 8.” That view, which Judge Gamble obviously does not share, ignores the fact that fear of S.B. 8 lawsuits has dramatically reduced the availability of abortions in Texas.

The Supreme Court has said state laws are unconstitutional when they have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus”—a description that clearly applies to S.B. 8. When it declined to issue an emergency injunction in Whole Woman’s Health v. Jackson, the Court acknowledged that the applicants “have raised serious questions regarding the constitutionality of the Texas law.” The 5th Circuit quotes that observation, saying “we are mindful that S.B. 8 applies to pre-viability abortions.”

Chief Justice John Roberts, no fan of Roe v. Wade, was nevertheless troubled by the idea that S.B. 8 cannot be challenged until someone provokes a lawsuit by violating it. “The statutory scheme before the Court is not only unusual, but unprecedented,” he wrote in dissent when the Court decided not to intervene in Whole Woman’s Health v. Jackson. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large.”

The aim, Roberts noted, “appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.” Although “the State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place,” he said, “I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.” The courts are now considering that, and so far it looks like the answer is yes.



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