28 June 22
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A growing number of Democrats are voicing anger at what they see as the passivity of Biden and other party leaders in the face of hard-hitting GOP tactics on abortion and other issues
A short distance away, House Democrats gathered on the steps of the U.S. Capitol to sing a heartfelt rendition of “God Bless America” to celebrate the passage of a modest gun control bill -- a moment that felt tone deaf to many Democrats given the judicial bombshell that had just landed.
To an increasingly vocal group of frustrated Democrats, activists and even members of Congress, such responses by party leaders have been strikingly inadequate to meet a moment of crisis. They criticize the notion that it is on voters to turn out in November when they say Democrats are unwilling to push boundaries and upend the system in defense of hard-won civil liberties.
“We have Democrats that are doing the opposite, you know? They just aren’t fighting,” Rep. Cori Bush (D-Mo.) said. “When people see that, what’s going to make them show up to vote? We can’t just tell people, ‘Well, just vote — vote your problems away.’ Because they’re looking at us and saying, ‘Well, we already voted for you.’”
Progressive lawmakers, including Sen. Elizabeth Warren (D-Mass.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.), have outlined several actions they want to see Democrats embrace: Building abortion clinics on federal land. Funding people to seek abortions out of state. Limiting the Supreme Court’s jurisdiction or expanding its membership. Ending the filibuster.
“We can do it!” Ocasio-Cortez tweeted recently after listing some of these measures. “We can at least TRY.”
Warren called on Biden to declare a national medical emergency, and she said the administration could establish Planned Parenthood outposts on the edge of national parks. “The point is the acknowledgment of the emergency situation and the urgency of getting help out,” she said in an interview. “People need help immediately.”
Biden and his team have signaled discomfort with many of these ideas, particularly any far-reaching overhaul of the Supreme Court. Asked by reporters recently if he thinks the Supreme Court is “broken,” Biden said only, “I think the Supreme Court has made some terrible decisions.”
A senior White House official said Biden is simply being honest with the public about what he can do unilaterally, adding that the president is “taking major actions under executive authority as he fights this extreme decision very hard — but being clear and honest that only Congress can fix the situation.”
White House officials note that the administration has moved to protect access to the so-called abortion pill even in states that try to ban it, and that the president has pledged to protect women who seek to travel across state lines to get an abortion.
The official said that while the proposal to set up abortion clinics on federal lands was “well-intentioned,” it could put pregnant people and providers at risk, and that in states where abortion is illegal, women and providers who are not federal employees could be prosecuted. Some legal experts have also raised questions about whether such a proposal would stand up in court, and White House officials worry it would violate the Hyde Amendment, which prohibits the use of federal funds for abortion except if a pregnant person’s life is in danger or if the pregnancy results from rape or incest.
Some activists acknowledge Biden’s ability to act is limited. Only Congress can codify abortion rights nationwide, and the Senate, where the filibuster requires 60 votes to pass almost all legislation, is split 50-50 between the parties.
But many abortion rights supporters say Republicans have routinely broken the rules in recent years and benefited enormously from it — for example, by blocking President Barack Obama’s Supreme Court pick — and that for Democrats to continue observing the niceties amounts to unilateral disarmament.
“We are dealing with one side that is undermining the very essence of what it means to be a country that roots itself in this philosophy of equal protection under the law. You cannot battle that if folks on the other side are always moderating, modulating and compromising. It’s not the age we’re in,” said the Rev. William Barber, a North Carolina preacher who is co-chair of the Poor People’s Campaign.
“You fight a crisis until the crisis is over,” Barber added. “You can’t overreach when you’re at the bottom, and these folks have taken us to the bottom.”
If Biden pursued aggressive executive actions to expand abortion access, even if those moves were ultimately overturned by a court, it would energize supporters and signal to voters that Democrats are putting up a fight, advocates said.
Kurt Bardella, a former Republican who now consults for Democrats, said party leaders cannot be afraid of bold actions because of potential legal challenges.
“Democrats start with the question of, ‘Are we allowed to do this or not?’ And I think Democratic voters will forgive you if you try and later on it turns out a court strikes it down,” Bardella said. “But at least you tried in the meantime to keep things in place and head toward the next election. What they won’t forgive is if you keep asking them to keep you in power but you don’t do anything with it, or at least try to do something with it.”
The divisions about how to respond to the Supreme Court ruling exposed fractures among the Democratic Party that often fall along familiar generational, ideological and strategic fault lines.
At one end is Biden, who has long been tethered to the traditions and institutions of the federal government. He has shown a reluctance to dismantle the Senate filibuster, even when it comes to issues as basic to his party as voting rights. Biden has said he believes that increasing the total number of Supreme Court justices, while tempting to a party in power, is ultimately perilous and could lead to the erosion of other norms when Republicans regain control of Washington.
But a growing number of liberals say that unless Democratic leaders show a willingness to adopt more creative ways of pushing through their agenda, their most loyal voters will have little reason to turn out in the midterm congressional elections.
“It’s really important right now that they show they’re fighting for people, so people have a reason to go vote for them in November. The goodwill of voters is not going to last that long — it’s lasted for years,” said Nelini Stamp, director of strategy and partnerships for the Working Families Party, a prominent left-leaning group. “People don’t want to hear, ‘Vote for Democrats.’ They want to hear what folks are going to do. We want Biden to use the full power of his administration, even if he might get the court’s pushback. We want to see people fighting for us.”
Bush said she remembers the “gut punch” she felt when she heard about the Supreme Court ruling. An activist before being elected to Congress during the protests over George Floyd’s 2020 killing at the hands of police, Bush said she immediately began to consider what actions to take.
She had already sent Biden a letter last week ahead of the ruling, along with 19 other Black congresswomen, urging the president to “use any and all executive authorities to address the public health crisis our nation will face if Roe v. Wade is dismantled.” She said she and her progressive colleagues will continue to push leaders in the House to vote on myriad bills protecting abortion rights, to back up their election message that Democrats are the party that delivers.
Some Democrats note that any such bills would immediately die in the Senate. But others say it’s critical to show voters what the party would do if it had even slightly bigger majorities.
In a letter to colleagues Monday, House Speaker Nancy Pelosi (D-Calif.) outlined specific legislation that leaders are considering in the coming months. They include shielding women from criminal prosecution if they travel out of state to seek an abortion and protecting women’s personal data stored in reproductive health apps, in case state lawmakers try to access that information to determine if a woman has gotten an abortion.
Pelosi kept the door open for more provisions upon lawmakers’ return to Washington in July, but put the onus on the Senate to eliminate the filibuster and pass legislation codifying Roe v. Wade, which the House passed last year. Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona have been the Democrats most resistant to eliminating the filibuster, and some Democrats say electing additional senators from states like Pennsylvania and Wisconsin could establish a majority that would enact such a move.
More than 30 Senate Democrats signed a letter led by Warren and Sen. Patty Murray (D-Wash.) to Biden that called for “bold action,” adding “You have the power to fight back and lead a national response to this devastating decision.”
Some activists said Democratic leaders’ exhortation to vote for them to save abortion rights echoes the refrain activists heard on police reform in the wake of Floyd’s killing and on protecting voting rights — two major initiatives that have fallen short despite the narrow Democratic majorities in Washington.
“It’s very similar to what happened in 2020: ‘Go back to the voting booths.’ … It always comes back to ‘Now you, the individual, do something,’” said Paris Hatcher, executive director for Black Feminist Future. “But we’ve elected these people who are in office at this very moment to take action on things like this. It becomes a very passive way to pass the buck when we have elected them to make things happen that center on the well-being of the people.”
While the anger and frustration is understandable, there is ample evidence that the Republican controlled states that support abortion bans have failed to provide health care and have high infant and maternal mortality rates that will cause the loss of life, those states are already punished by the lack of economic opportunities because of the legislative lunacy. What company wants to expand in a state that has discriminatory laws?
When Massachusetts Governor Charlie Baker signed an executive order protecting abortion rights, he also raised the issue of companies fleeing states with abortion bans.
excerpt:
In other post-Roe news:
— Baker believes his executive order could do more than just offer protections to patients and providers: it could help bring more companies to Massachusetts.
“I do believe that, having listened to and heard from a lot of companies over the course of the past several days about what this decision means with respect to their workforces and their benefit plans, that there may in fact be a big opportunity here for Massachusetts to encourage some employers to either come here or expand their footprint here,” Baker told reporters.
SCOTUS. (photo: Brad Weaver/Unsplash and 101cats/Getty Images Plus)
There is no court legitimacy without public trust in the court.
What Thomas was telling us was that institutional respect is owed, blindly and without conditions. It chimed in the same key as then–Attorney General Bill Barr’s promise that unless Americans stopped disrespecting the police, the police might stop showing up to protect them. That isn’t how respect, or public trust, works. Those things are earned, over time. They can also be squandered, we are now learning, in the span of a few careless months.
Today, for the first time in constitutional history, the United States Supreme Court, by a 6–3 margin, took a fundamental constitutionally protected right away from half the population, a right around which generations of women and families have ordered their lives. Make no mistake, the same court that just 24 hours earlier had determined that the decision to carry a gun on the streets is such an essential aspect of personal liberty that states may not be permitted to regulate it has now declared that decisions about abortion, miscarriage, contraception, economic survival, child-rearing, and intimate family matters are worthy of zero solicitude. None. In their view of liberty, women were worthy of zero solicitude at the founding, and remain unworthy of it today. As Mark Joseph Stern notes, women will suffer. Some will be refused treatment for miscarriages, and some will be turned away from emergency rooms. Some will be hunted down, spied on, and prosecuted for seeking health care, medication, and autonomy. The majority glibly tells us that because the harms to these people are unknowable, they are not urgent—or at the very least, less urgent than the harms faced by people who would like to see more guns in public spaces.
But ordinary Americans do not think these harms are trivial. On Thursday, Gallup polling showed public approval for the Supreme Court to be at a historic low—25 percent. It’s a precipitous drop from the prior historic low the court received in September, which sat at about 38 percent. The six justices in the majority of Dobbs will comfort themselves that this doesn’t matter. They will tell themselves that they corrected a historical injustice and that they saved unborn babies. They will say that they have lifetime tenure in order to protect against the whims of the majorities. They will blame protesters and they will continue to blame the press. Even the much-vaunted centrism and pragmatism of Chief Justice John Roberts seems to have left the building. Notwithstanding the fact of his seemingly moderate concurrence—in joining with a majority that could not wait to do in three years what they could do in one—it is clear that he has lost his court, and that he is surely less worried about the public regard for the institution than we had believed.
The joint dissent, authored together by Stephen Breyer, Elena Kagan, and Sonia Sotomayor, is elegiac in tone. It includes a shoutout to the three Republican appointees who crossed the partisan line to preserve Roe in 1992’s Planned Parenthood v. Casey—not because they liked abortion but because, as they write, they chose to privilege the legitimacy of the institution over their personal wants. Breyer, Kagan, and Sotomayor wrote of the triumvirate that came before them, and of their unwillingness to harm the standing of the institution they loved:
“[T]he Court,” Casey explained, “could not pretend” that overruling Roe had any “justification beyond a present doctrinal disposition to come out differently from the Court of 1973…. To reverse prior law “upon a ground no firmer than a change in [the Court’s] membership”— would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this Court and to the system of law which it is our abiding mission to serve. For overruling Roe, Casey concluded, the Court would pay a “terrible price.”
The dissent laments the loss of Souter, O’Connor, and Kennedy as “judges of wisdom.” The three write, “They knew that ‘the legitimacy of the Court [is] earned over time.’ ” They also would have recognized that it can be destroyed much more quickly. Quoting Breyer’s recent lament that “it is not often in the law that so few have so quickly changed so much,” the three dissenters conclude: “For all of us, in our time on this Court, that has never been more true than today.”
Compare this to Justice Samuel Alito’s flippant dismissal of the pain soon to be heaped upon the court, the country, women, their children, and families, pain that is laid out in one meticulous amicus brief after the next:
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
It is one thing to take away autonomy and dignity. It’s something else entirely to say that the hardship and jolt to the nation cannot be determined, and shouldn’t even matter.
The three dissenters take no joy in decrying the self-administered body blow the court has brought upon itself this term. There is no pleasure in seeing new fencing around the building, nor is there any delight in the protesters blocking D.C. streets or staking out justices’ residences. There is no mention of the fact that one of their colleagues is married to a partisan political operator who worked to support those who would have set aside the presidential election. There is simply the acceptance of that colleague’s abject refusal to take responsibility for it. This may well be one of the last published opinions of Stephen Breyer’s storied legal career, and it reads like a rebuke to his own aspirational hopes, including in a book published only this fall, for an institution he tried to protect until the end. Breyer always understood that public acceptance and regard aren’t demanded, and that for the court he is departing, it may not come back.
The dissenters understand where to place the blame for this loss of legitimacy. Even in the notoriously collegial Supreme Court, they place it squarely, and fairly, on a majority that has spent a year proving itself unwilling to moderate tone, language, conduct, and pace in exchange for the appearance of sobriety. The “stench,” as Sotomayor once warned, will not dissipate just because the majority can’t smell it.
There will not be a glorious peace that settles over the land now that this issue has been sent back to the states, no matter how much Justice Brett Kavanaugh wants you to believe it. There will be infighting among states, and vicious criminal prosecutions, and joyous theological efforts to secure future harms for gay partners and families struggling with IVF and women seeking contraception. The people who suffer the most will be the poorest, the youngest, the sickest—the people whose interests don’t even warrant acknowledgment by the majority opinion.
The dissenters sign off in “sorrow.” It is a sentiment that is surely directed at millions of women who will suffer appallingly as a result of this ruling. But it is also sorrow for an institution that was always rooted in an idea that there had to be a relationship between the public trust and judicial power. Justices are not kings. They can demand silent reverence, but it is not assured them. There have been plenty of us warning that this relationship was in jeopardy for many years, and the warnings were dismissed as efforts to undermine the court. Today’s decision confirms that, if and when the public is finally ready to give up on the court, there will be nobody to blame but the six justices who gave them nothing to believe in.
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, April 23, 2021. (photo: Erin Schaff/AP)
Devised by the likes of Thomas Jefferson, a slave owner, the constitution saw Black people as property. It's no surprise it's being used to take human rights.
The mostly conservative justices are using the Constitution as a smoke screen for their rulings—which will continue to demolish even more human rights. The governing document was constructed during the Constitutional Convention that occurred in Philadelphia from May 5, 1787 to September 17, 1787.
The primary authors consisted of: John Adams, Thomas Paine, Thomas Jefferson, and James Madison. The last two men on that list owned slaves. How can this set of laws still guide a nation when it was concocted by white men who looked at Black people as property and not as human?
The fact that a Black man—Justice Clarence Thomas—is working to erode the rights of millions of people is more than ironic: it’s downright pathetic. In a concurring opinion Thomas wrote Friday, he claimed that the Supreme Court’s controversial June decisions aimed to weaken substantive due process which protects certain rights even if they’re not listed in the Constitution.
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote. He also said that it’s “legal fiction” that is “particularly dangerous.” Even more ironically, how is it up to the states to decide a woman’s right to abortion yet not interfere with a person’s right to carry a concealed firearm?
In Justice Samuel Alito’s concurrence, he stated:
“Does the dissent think that laws like New York’s prevent or deter such atrocities? How does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop the perpetrator.”
Does Alito realize that by that line of reasoning, abortion laws won’t stop abortions from happening?
Seven of the nine Supreme Court justices were put there by presidents from a party who haven’t won a popular vote more than once in three decades. Shouldn’t the Twelfth Amendment, which established the electoral college, be revisited?
The Fifteenth Amendment gave Black people the right to vote. However, last year nineteen states passed laws that restricted access to voting. The Thirteenth Amendment outlawed slavery and involuntary servitude, but America’s mass incarceration problem proves this as untrue.
Why isn’t the Supreme Court clamoring to restore these rights or rectify systems that fail the people?
It’s clear that the right will continue to twist and contort anything they can to carry out their agenda—an agenda that has and will always harm this country’s most marginalized and vulnerable populations. And honestly, the Constitution will always be a hell of an excuse to oppress Black folks on behalf of white supremacy.
Police exhume a body in pastureland near the village of Zahaltsy in the Bucha district west of Kyiv. (photo: Pjotr Sauer/Guardian UK)
Many exhumed bodies found near checkpoints used by invading Russian soldiers before their retreat in April
Only lightly covered with dirt, it lay near a copse of trees beside open pastureland roamed by cows near Zahaltsy, a small village in the Bucha district west of Kyiv.
On Tuesday, local police exhumed the remains – believed to be those of a local man – as the aftermath of the Russian occupation continues to haunt the towns and villages around Ukraine’s capital, nearly three months after the invading troops withdrew.
The body was found next to a police checkpoint used by Russian soldiers during their occupation, leading officials to believe that he was killed by the soldiers manning the post.
“All signs indicate that this man was murdered by Russian soldiers. We have found more bodies around checkpoints in this area,” said Vyacheslav Tsyliuryk, the head of the local police unit. “We believe this person was heading towards his home when he was shot.”
As two men started digging up the earth, the outlines of the corpse began to emerge, and then Tsyliuryk pointed to a gunshot wound in the man’s chest as the likely cause of death.
The dead man was wearing a thick winter jacket, which Tsyliuryk said suggested that the killing had taken place in late March or early April, shortly before the Russians left Kyiv. Zahaltsy, like other towns and villages nearby, was occupied for about a month before the Russian forces’ retreat.
“We saw that the majority of murders happened just before the Russians retreated. Then they lost all sense of humanity,” said Tsyliuryk.
The bodies of more than 1,000 civilians have been discovered in the Bucha district, many hastily buried in dozens of shallow mass graves. Ukrainian police believe that about 650 people were shot in what they have described as executions.
The dead man had no identification on him, and the only thing in the pocket of his jeans was an e-cigarette.
As the team worked, a local woman from Zahaltsy ran across the field towards the grave.
“My nephew is missing,” she shouted. “Could this be Victor?”
The woman, Tatyana Ivanina, showed Tsyliuryk a photograph of a young man, but it quickly became clear that the corpse didn’t match the height and weight of her missing nephew.
“Victor has been missing for months,” Ivanina said, as she walked away. “I just want to know what happened to him.”
Tens of thousands of Ukrainians like Victor are still missing.
Many among them, mostly men, were detained and sent to Russian-controlled territories, sometimes used to barter for Russia’s captured soldiers. Others, Tsyliuryk said, were probably dead.
“We have 70 missing in my area alone. The hardest part is when family members come to these exhumations,” he said.
This summer, the fields and forests around Kyiv – dotted with wooden datchas and normally beloved by those looking for a break from the sweltering heat of the city – have turned into crime scenes.
Earlier this month, Ukrainian authorities exhumed a mass grave containing the bodies of seven civilian men believed to have been tortured by Russian forces and brought to the forest to die.
“The people who did this weren’t human, they were animals. We will need to punish those responsible for these barbaric crimes,” Tsyliuryk added.
Once Tuesday’s exhumation was complete, the corpse was put in a truck and the body was brought to a local morgue, where DNA samples would be taken and an examination would establish a definitive cause of death.
Ukraine has vowed to prosecute those involved in war crimes in the country, and the authorities have already compiled hundreds of dossiers, named dozens of suspects and sentenced one Russian soldier to life in prison.
The exhumation happened on the same day as Merrick Garland, the US attorney general, made an unannounced trip to Ukraine to discuss the prosecution of Russians for war crimes.
He was scheduled to meet Ukraine’s prosecutor general, Iryna Venediktova, to discuss US and international efforts to help identify those involved in war crimes and other atrocities in Ukraine.
For those living in Zahaltsy and nearby towns, life after the Russian occupation has not returned to normal.
Houses in Zahaltsy and the nearby city of Borodianka remain damaged, and some local people say they now dread going on walks.
“It is hard to live here when you can just stumble upon a body during a walk with your children,” said Tonya, whose wooden house overlooked the field where the body was found.
“We haven’t really recovered since the Russians left.”
The Tallahatchie County Correctional Facility operated by CoreCivic in Tutwiler, Mississippi, Aug. 16, 2018. (photo: Rogelio V. Solis/AP)
“CoreCivic is one of the very few companies in the United States that has proactively embraced the process,” Hininger gloated.
The private prison corporation’s stock price and access to bond markets had been battered by pressure over its role in profiting from immigrant detention and for providing financial support to Donald Trump’s presidency. The company is currently facing a class-action lawsuit brought by immigration detainees claiming that they were forced to work with little or no pay. The racial equity audit was a conscious effort by CoreCivic not only to mend its poor public image, but also to harness public interest in racial justice to bring the company back into the good graces of Wall Street investors.
The contents of CoreCivic’s audit pointed to mostly superficial contributions to diversity and equity. The report, conducted by Moore … Van Allen, a North Carolina-based law firm, offered some room for improvement but largely applauded the private prison giant for its “genuine” commitment to diversity principles, including by raising cultural awareness with a mural of Martin Luther King Jr. at one of its Immigration and Customs Enforcement detention centers in Arizona. The report also praised CoreCivic for its philanthropy and business practices that have “benefitted communities of color.”
In an accompanying report on the company’s diversity, equity, and inclusion — known as DEI — CoreCivic touted its ranks of nonwhite prison guards, diversity on its board of directors, and diverse ranks of wardens, as well as its partnership with a Black-led, pro-business trade group.
Those supposed strides elicited eye rolls among its critics. “They put children’s murals on the wall while incarcerating infants. That doesn’t mean they have positive impacts for children,” said Bob Libal, a longtime watchdog of the private prison industry, referencing the company’s Taylor, Texas-based ICE detention center.
“This is hollow at best, and probably a deeply cynical attempt to whitewash a company that has a horrible reputation, a horrible track record of abuse and neglect of people who’ve been sentenced in their facilities,” added Libal. The company has faced multiple allegations of severe understaffing and safety issues, as well as unsanitary conditions in many facilities.
“The reality is, CoreCivic’s entire existence is offensive to Black and brown communities. They’re trying to create some version, right, some image that they aren’t one thousand percent harmful,” said Bianca Tylek, the founder of Worth Rises, an advocacy group that focuses on the privatization of the criminal justice system.
Tylek received a call from Moore … Van Allen in an attempt to include her perspective in the CoreCivic report, which she declined. The company initially included her name as a validator without her permission anyway, Tylek said. She was later removed from the report.
“The audit tells us nothing,” said Tylek. “The private prison business model is the problem. Everything they do is the problem, and to be honest, sometimes we’re at odds with other advocates because these racial equity audits are absolutely ridiculous and not an effective advocacy tool.”
Asked for comment about activist concerns, CoreCivic reiterated its support for the “principles of diversity, equity and inclusion.” The company, said spokesperson Ryan Gustin, “didn’t hesitate to participate in the recent racial equity audit.”
But Tylek, Libal, and members of the activist community are not the intended audience for the report; the racial equity audit and similar measures are part of an opaque and virtually unregulated rubric that sets the flow of massive piles of investor dollars. CoreCivic’s gestures are meant to shape its standing in “environmental, social, and governance,” or ESG, funds, a catchall term for a system that allows investors to put their money into companies that score as socially responsible by various metrics.
Compliance can be lucrative. For instance, among the many ESG ratings agencies, a company with nonwhite or female board members or a decision to simply conduct a racial equity audit or DEI report can automatically lead to a higher score, and corporations with high ESG rankings find placement in special exchange-traded funds, or ETFs, that are marketed as socially responsible, opening the door for investor cash.
Over $35 trillion in global assets are invested in funds that claim to vet companies using ESG principles, making the label one of the hottest trends in finance. Following the racial justice protests of 2020, a coalition of institutional funds, which now includes the California State Teachers’ Retirement System, a pension fund with over $250 billion in assets, launched proxy campaigns to pressure publicly traded companies to undergo racial equity audits and to prioritize racial diversity issues.
Proponents of the approach claim that the market sprouting up around ESG principles provides a window, guiding investors into safer, less controversial companies while creating a market incentive for good corporate behavior, whether on racial justice, the climate crisis, or any number of issues.
Larry Fink, the chief executive of BlackRock Inc. and one of the most powerful ESG-focused asset managers in the world, has described the move toward socially responsible investing as a “tectonic shift” that stands to reshape capitalism as we know it. In his letter to investors this year, Fink made clear that racially diverse boards and racial diversity would be a focus of his company.
BlackRock is among the many corporations that sponsor television advertisements — the latest featuring NBA star Jalen Duren — touting their socially responsible or sustainable investment funds, luring ordinary retail investors.
But a growing chorus of critics have questioned the lofty promises of ESG investing. The high-minded rhetoric of the movement, they argue, serves to enrich a small set of ESG-focused consultants and fund managers while misleading the public and investor community and providing little to no benefit to society. They charge that the investing trend is no more than reputation laundering and, potentially, fraud on an industrial scale.
“People who are buying these funds almost always believe that they’re doing something to make the world a better place, and in reality, they’re just moving shares around in publicly traded companies,” said Tariq Fancy, the former chief investment officer for social responsibility investing at BlackRock, who has emerged in recent years as a critic of ESG.
“It’s actually dangerous because they imply real-world impact, creating a societal placebo,” continued Fancy. “It actually lowers the case for government regulation. If you think you can do something quick and easy like ESG, then it follows to say, ‘We don’t need a carbon tax.’”
Fancy also finds the righteous rhetoric of his former employer hypocritical. BlackRock will make a fortune in fees promoting an ESG model entirely based on voluntary self-reporting requirements and opaque scores, said Fancy, while using its power as a shareholder to block proposals that call on companies to disclose political spending — the very political spending that corporations use to prevent any meaningful laws and government regulations on social welfare spending or pollution.
“It’s like they’re giving us talking points on good sportsmanship, meanwhile, they’re saying it’s all right for teams to secretly pay off the referees.”
In an email, BlackRock spokesperson Matt Kobussen noted that the company provides multiple ESG index products, some of which include CoreCivic and others of which do not. The ETF that includes private prisons is based on ESG criteria provided by the index provider S…P, while another, the MSCI Small Cap ESG Aware, uses an index provided by MSCI and “does not have exposure to CoreCivic or GEO Group,” another main prison company.
Despite the rhetoric, the portfolio managers preaching the gospel of ESG are in fact legally prohibited from doing anything that compromises corporate profits. The types of changes they promote are superficial at best, critics charge.
What’s more, regulators have taken notice that fund managers have marketed ESG investing with little due diligence in regard to how companies are changing any actual business practices or whether companies included in the funds meet the stated criteria. In May, around 50 German police officers raided the Frankfurt offices of DWS Group, the asset manager subsidiary of Deutsche Bank. The investigation stems from allegations by a former DWS Group executive that the company had made misleading statements about how ESG assets were allocated.
And this year, the Bank of New York Mellon Corp.’s asset manager paid $1.5 million to settle claims by the Securities and Exchange Commission over “misstatements and omissions about ESG considerations.” The bank, as part of the settlement, did not admit any guilt.
Earlier this month, word leaked that the SEC is currently investigating Goldman Sachs Group Inc. over similar claims about its ESG mutual fund business. In June 2020, Goldman Sachs renamed its blue-chip fund as the U.S. Equity ESG Fund, while maintaining the same top holdings.
Last month, the SEC began collecting comments for new regulations aimed at boosting transparency and accountability around ESG funds.
Measures of Goodness
At the core of the criticisms is the fact that there is no set definition for how ESG rankings are devised. Competing ratings agencies and financial analysts offer a tangled web of various scores, with no consistency from firm to firm.
Charles Schwab Corp.’s asset management arm, for example, last year launched Schwab Ariel ESG ETF, an ESG fund that excludes tobacco products, the extraction of fossil fuels, weapons manufacturers, and operators of private prisons such as CoreCivic.
Other asset managers, however, sell ESG funds that do include private prisons. BlackRock’s iShares ESG Screened S…P Small-Cap ETF, one of its social responsibility funds, includes CoreCivic. Investors purchasing shares in DWS Group’s Xtrackers S…P SmallCap 600 ESG are also buying a slice of CoreCivic.
State Street Corp., an asset manager that is one of the loudest and most prominent proponents of ESG, markets a social responsibility fund, SPDR S…P SmallCap 600 ESG ETF, that owns shares in CoreCivic as well as the second-largest private prison company in the U.S., GEO Group Inc.
State Street spokesperson Deborah Heindel said in an email that ESG can be very broad or specific depending on who’s defining the term. “Case in point, a Google search pulls several million results from countless sources,” she said.
Ratings agencies can change ESG formulas on a dime, with little public notice. Fund managers are free to choose any ratings agency with any formula, often with most sources of information completely self-reported by corporations.
CoreCivic, in its own ESG report, touts a 2021 award issued by Newsweek/Statista claiming that it is one of America’s most responsible companies. The Newsweek/Statista ESG rankings give CoreCivic a high social rating in part based on the prison company’s commitment to “good causes” and the number of women and racial minorities on its board of directors.
The criteria for what constitutes a socially responsible investment can change from day to day. In March, analysts from Citigroup Inc. suggested that companies that manufacture weapons used for the war in Ukraine to thwart the Russian invasion could count toward a better ESG score. “Defending the values of liberal democracies and creating a deterrent, which preserves peace and global stability,” they wrote.
Before this year, many ESG funds promoted the exclusion of certain arms manufacturers, arguing that the global sale of bombs and missiles did not constitute a social good — now there’s a push to reward arms makers. If a shift in public opinion can reshape the entire model, that leaves many to wonder how any fund can claim fixed principles when ideas around social responsibility are inherently subjective.
“It’s a scam, that’s all it is, a scam,” said Aswath Damodaran, a professor of finance at New York University’s Stern School of Business, of ESG. “How can you have a measure of goodness? Or let me put it another way: Name me one social factor where we have consensus in society. How the heck are we going to come up with one score?”
The CoreCivic board of directors, its ESG report proudly notes, is 36 percent “gender or racially diverse,” a figure that the company notes won recognition from a women’s advocacy group. The private prison company’s board includes Donna Alvarado, a former Reagan administration official, and Thurgood Marshall Jr., the son of the former Supreme Court justice.
“For-profit incarceration is the antithesis of social responsibility,” said Libal. “They’ve made profits on the back of incarceration at record numbers while contributing millions of dollars in campaign contributions to ensure their interests are met.”
“If your board is diverse, it doesn’t matter what you’re selling, right?” he added. “If you have enough women on the board of Blackwater, that doesn’t make mercenary companies a positive influence on the world.”
“Greenwashing Is a Feature, Not a Bug”
Fulfilling diversity goals is a highly visible way to offset lower scores in other areas. Defense contractors, fossil fuel companies, banks, and pharmaceutical giants that annually hike the prices of lifesaving drugs have all used diversity metrics to earn placement as socially responsible companies, eligible for placement in lucrative ESG funds. And according to a review by The Intercept, several of the corporations commonly included in ESGs have recently been under investigation or scrutiny, engaging in business practices that few would call socially responsible.
Eli Lilly and Co., the pharmaceutical company, is facing multiple regulatory and legal battles over its practice of hiking the price of insulin. The company raised the price of its Humalog line of insulin products by 1,219 percent since it launched. The high prevalence of diabetes among nonwhite Americans has placed the rising costs of insulin disproportionately on members of racial minority groups, a dynamic that some public health researchers argue amounts to a form of structural racism.
But the disparate impact of drug pricing dynamics are not measured by ESG scores. Instead, the Eli Lilly report notes that the company promotes diversity through a variety of measures, such as DEI training and employee resource groups that sponsor events such as the Lunar New Year Gala.
Those efforts are among the qualifications used to include Eli Lilly prominently in multiple ESG exchange-traded funds. Eli Lilly is the second-largest holding of a BlackRock fund marketed as focused on promoting companies that excel in the fields of diversity and inclusion.
Just Capital, a not-for-profit group that provides ESG rankings, scores Amazon as an industry leader and a three-time winner of its America’s Most Just Companies award. Despite an aggressive anti-union campaign against its warehouse workers in Alabama and New York that has garnered international condemnation and wide-ranging complaints about working conditions, the Seattle-based company scores relatively highly in the category of labor practices. One reason is Amazon’s “diversity, equity, and inclusion” policies and the total number of jobs the company has created — two areas in which Just Capital ranks Amazon as the best company in America.
“I think it’s smoke and mirrors. From a social, from a labor perspective, it’s not a good company. That’s like rating the Triangle Shirtwaist Co. a model employer in New York,” said Seth Goldstein, an attorney for the Amazon Labor Union, which represents warehouse workers who won an upset victory to form the company’s first labor union.
Just Capital — whose board includes HuffPost founder Arianna Huffington and Marc Morial, the president of the National Urban League — partners with Goldman Sachs to promote a special ESG fund that utilizes the organization’s social responsibility analytics. The third-largest holding for the fund is Amazon.
In response to an inquiry from The Intercept, Just Capital said that Amazon was scored on a number of factors. “We find that, like many other companies, Amazon is both a leader and a laggard relative to its peers across all of the individual stakeholder categories that we measure, from communities to environment to workers,” wrote Martin Whittaker, chief executive of Just Capital, in a statement to The Intercept.
PepsiCo Inc. and Coca-Cola Co., for instance, routinely score well on ESG rankings through relatively low greenhouse gas emissions, while delivering a core product that is fueling a crisis of diabetes, obesity, and heart disease, noted Hans Taparia, an associate professor also at NYU’s Stern School of Business, in an article for the Stanford Social Innovation Review. Alphabet, Amazon, and Facebook are also among the largest holdings of ESG funds but engage in a variety of monopoly, surveillance advertising practices and provide a core product that has fueled mental health issues among users. They all tout DEI and diversity-related measures in the glossy ESG reports that are submitted to fund managers.
“If a company’s core business model does so much harm,” wrote Taparia, “the cover-up through ‘good behavior’ on other parameters shouldn’t be so easy.”
Exxon Mobil Corp., one of the largest oil and gas companies in the world, has been cited as a prime example of an ESG victory, after the company added board members viewed as more favorable to action on climate change last year in response to pressure from activist investors and ESG-minded asset managers.
But there is still little evidence that ExxonMobil has changed any core fossil fuel-related business practices. The oil giant has massively increased spending on green-related marketing, and the word “climate” now appears all over its corporate reports. The company has sold off some assets that will be developed by other companies.
Damodaran and his NYU colleagues have chronicled many of the inconsistencies and the subjective nature of ESG rankings. As oil majors sell off carbon-intensive oil and gas assets in order to comply with ESG fund objectives, Damodaran noted, the same assets are being purchased by private equity firms that are far less accountable, a shift in hands that he argues nullifies any greenhouse gas benefit from the campaign.
“So basically, here’s what you accomplished,” said Damodaran. “You took the reserves out of a company where you had a semblance of prudent strategy in process and put it in the hands of the least scrupulous people on the face of the Earth. And if you declared this to be a victory, I’d hate to see what your defeat looks like.”
The calls for decarbonization, once central in the ESG movement, can also be offset by racial metrics. ESG rankings maintained by the S…P 500 now include ExxonMobil but exclude electric car marker Tesla Inc. One of the reasons? Racial discrimination charges lodged against Tesla, a dynamic bitterly highlighted by Tesla chief executive Elon Musk on Twitter. Many of the charges, including a class-action lawsuit, are still making their way through court.
Researchers have also found that companies selectively omit certain suppliers and business practices in order to artificially report low carbon emissions and thereby gain higher ESG scores.
One of the most revealing reports came from Bloomberg News, which found that one of the largest ESG ranking companies, MSCI Inc., which BlackRock uses to market “sustainable” stocks and bonds, provided year-to-year upgraded rankings to companies that increased levels of carbon emissions.
In the case of McDonald’s Corp., MSCI provided an upgraded ESG ranking despite the fact that the company produced an increase of 7 percent in global emissions over four years. The ratings agency made the determination because the climate crisis did not pose a special risk or “opportunity” for the company.
The MSCI rankings for climate change score corporations over the possibility of climate regulations and whether restrictions on carbon emissions could harm future profits. In other words, when anti-regulation Republicans take office, the environmental scores of fossil fuel companies improve.
When MSCI gave positive “water stress” scores, the rating had no bearing on pollution or discharges into local water systems. Rather, the scores were awarded based on whether chemical companies had enough water to sustain their factories — an inversion of the very idea of environmentalism that reporters labeled as blatant doublespeak.
“This is exactly what gamification looks like: You create the rules of the game, I’ll find a way to play it,” said Damodaran. “A lot of ESG advocates say ESG would work except for the greenwashing. And my response is, greenwashing is a feature, not a bug. It’s exactly what you get when you create something like ESG.”
High-Minded Rhetoric, Even Higher Fees
Three weeks after the George Floyd protests began in 2020, Marvin Owens, then the senior director for economic programs at the NAACP, appeared on CNBC to tout an ESG-style fund on diversity branded with the NAACP.
“The problem that has existed for ESG is that the ‘S’ has been very difficult to define, and that’s why an organization like the NAACP, with its 111-year history of being advocates for African Americans in this country, is the right kind of organization to partner on this work,” said Owens.
The ETF, Owens told CNBC, is “the next evolution in our corporate advocacy work around closing the wealth gap for African Americans in this country.” The Minority Empowerment ETF website features the logo of the NAACP and iconic images from civil rights history.
Owens noted that the fund used a variety of diversity metrics, reflecting the NAACP’s scorecards on corporations, to invest in companies that make “commitments, public commitments, to standing against racial discrimination.”
Two years later, the NAACP ETF’s largest holdings include Amazon, Tesla, Meta Platforms Inc., Johnson … Johnson, Microsoft Corp., JPMorgan Chase … Co., and Nvidia Corp. The holdings are fairly similar to many large- and mid-cap ETFs, such as the Vanguard Total Stock Market Index Fund, or VTI, which has the same seven companies among its largest holdings.
The difference, however, is the fee structure. The Minority Empowerment ETF has a fee of 0.49 percent compared with the VTI fee of 0.03 percent, making the NAACP ETF 16 times more expensive for investors. Impact Shares, the plan sponsor that operates the Minority Empowerment ETF, in addition to other thematic ETFs around sustainability and women’s empowerment, says that the excess profits after expense fees are donated back to the NAACP, though it has not made enough fees to transfer any funds to the NAACP yet.
Impact Shares has lobbied the federal government to allow retirement plans to be invested with ESG funds. The investment firm wrote to regulators “on behalf of Impact Shares and our advocacy partners including the NAACP.”
Asked how the ETF fund has impacted racial justice issues, Ethan Powell, the chief executive of Impact Shares, gave Amazon credit for permitting its workers to vote on a union. Amazon, he claimed, engaged in a “significant shift in company policy” by allowing workers at its Alabama warehouse “the opportunity to vote on unionization” this year.
Labor officials, however, contend that Amazon spent millions of dollars on efforts to derail the union vote and engaged in a campaign of intimidation and surveillance against workers suspected of sympathizing with the union — and that the unionization at Amazon was in spite of the company’s efforts, not because of them.
LGBTQ Loyalty Holdings Inc., a company led in part by former Massachusetts Rep. Barney Frank, launched the LGBTQ + ESG100 ETF, which invested in large-cap public companies that “demonstrated a commitment to LGBTQ diversity and inclusion.” The fund, which wound down earlier this year, had an even higher fee structure of 0.75 percent.
Despite the fact that the ESGs largely mirror traditional ETFs, a higher fee structure, typically benefiting investment managers, is common across the board. An analysis from the Wall Street Journal found that ESG funds have 43 percent higher fees than widely popular standard index funds.
Fancy, the BlackRock social responsibility CIO turned critic, has argued repeatedly that many ESG funds are virtually identical to existing mutual funds, rebranded as “green” with higher fees. There are almost no discernible differences other than marketing, he has said in a series of confessional essays about the nature of ESG.
The notion of investment funds that promote social change without any of the guilt of profiting from capitalism can be alluring. Betterment, a millennial-focused “robo-advisor” that markets wealth-building strategies, has sponsored Facebook ads promising racial justice-minded investing. Betterment steers consumers to products such as the NAACP ETF without warning of the high fees or an explanation that many of the holdings are simply traditional large companies that investors would find in ordinary funds.
Asset managers have even worked with public relations firms to co-opt public opinion around social justice movements into inflows of cash to ESG funds. In 2017, at the height of the #MeToo movement, State Street worked with advertising agency McCann New York to create the “Fearless Girl” campaign, which featured a statue of a young woman, with her arms planted defiantly on her hips, that was placed in front of the bronze Charging Bull outside the New York Stock Exchange.
The wildly successful ad campaign, launched the day after International Women’s Day, was designed to advertise State Street’s women-focused SHE ETF, an ESG fund marketed as a vehicle to promote companies with gender diversity on corporate boards. But the corporate beneficiaries of the fund might come as a surprise to retail investors who thought they were supporting the political goals of #MeToo or feminism more broadly. The current SHE ETF holdings include weapons maker Northrop Grumman Corp., fracking giant Pioneer Natural Resources Co., and health insurer UnitedHealth Group Inc.
State Street and other fund managers have boasted about the growth of ESG funds as a cash cow. Last December, Gary Shedlin, the chief financial officer at BlackRock, appeared at a conference hosted by Goldman Sachs at the Conrad Hotel in New York to tout the growth of the firm’s ESG business. BlackRock ESG-related products, he said, had generated over 20 percent new fee growth. In January, BlackRock’s ESG funds reportedly surged to over $508 billion in managed assets, more than double the previous year.
It’s not just fund managers that are poised to gain from the influx of money into ESG. The trend has been a job creator for accountants, analysts, and other specialty consultants. MSCI, the largest data provider for ESG funds, disclosed that revenue from its ESG ratings business jumped to $166 million in 2021 from $90 million in 2019.
Both former attorneys general of the Obama administration are now serving as consultants to companies hoping to burnish their credentials as racially progressive. Eric Holder, now with the law firm Covington … Burling, was tapped by Citigroup to conduct its racial equity audit, to review its efforts to close the racial wealth gap. In April, Amazon announced that Loretta Lynch, a partner with Paul, Weiss, Rifkind, Wharton … Garrison, will work for the company to produce a similar report.
And Preet Bharara, the former U.S. attorney for the Southern District of New York, an Obama administration prosecutor turned vocal Trump critic, this month announced his move to become a partner at the law firm WilmerHale. According to reports, he will focus on advising companies on ESG. “Simple-minded criticism of this issue fails to appreciate its complexity and its emerging importance,” Bharara told the New York Times.
ESG investing has been an attractive proposition for investors who consider themselves to be civic-minded and want to use market logic to make change. But as The Intercept’s review shows, diversity audits and other superficial measures are simply being used to sell investors on the same old funds.
The implication is explicit. Moore … Van Allen, the firm that conducted the racial equity audit on behalf of CoreCivic, noted in an article this year that such audits serve multiple goals, including increased profits and a competitive advantage in a market. The public relations benefits are also clear, the law firm argued. The racial equity audits can lead to a “positive impact on reputation for companies,” partners at the firm wrote.
Placing selective pressure on a few companies won’t work, Damodaran argued, because businesses that voluntarily retreat from one area will be swiftly replaced by less accountable players, such as private equity or hedge funds. If advocates seek better business practices, he said, they should change the law to force compliance instead.
“These are decisions we should be making as voters, as regulators pushing for change,” said Damodaran. “Instead, we’ve passed on this responsibility to CEOs and fund managers to make these decisions for us.”
“The U.S. political sphere is putting optics over substance,” noted Fancy, the former BlackRock executive. “We could do some version of reparations, like a serious investment in Black communities and education and social welfare, but that’s going to cost a lot of money.” Instead, he said, high-profile Black Americans are elevated onto corporate boards to “create a marketing narrative” that helps a small number of elites without substantive change for the public.
One chief executive of a publicly traded company, who asked for anonymity while speaking with The Intercept, said he recently paid around $20,000 to social responsibility consultants in order to produce a special report to submit to ratings agencies. The ESG professionals created a document that dazzled with progress on a number of environmental and racial grounds. The self-reported data isn’t checked by anyone, he noted with a shrug.
The chief executive said that he appears white to most people, but he is technically a quarter nonwhite, making him, for the purposes of ESG, a “diverse” CEO — a dynamic he found absurd.
“It’s kind of like the one-drop rule. I’m diverse for the purpose of these rules, they really make no sense,” said the executive, who wondered how asset managers and investors can demand compliance on rules around racial identity when race is socially constructed, not a biological reality.
“We didn’t change any business practices. It’s a charade, yet no one questions this stuff,” he added. “It sounds good, but it doesn’t do anything.”
After the CRYPTO CRASH when some of the mega banks were still recommending the investments, who would believe anything coming from Wall Street, the Federal Reserve or these companies?
Jerome Powell is a lawyer not an economist, a tRump appointment, presided over the largest Wall Street Scandal in history and took no action. The Federal Reserve is failing to regulate.
" “We didn’t change any business practices. It’s a charade, yet no one questions this stuff,” he added. “It sounds good, but it doesn’t do anything.” "
Do your homework and don't trust Wall Street!
excerpts:
Crypto pushers hired themselves Trump’s outgoing SEC Chairman, Jay Clayton; a boatload of celebrities like Matt Damon (see his commercial below), LeBron James, Spike Lee, Tom Brady, Alec Baldwin, among numerous others; and high-priced lobbyists to sway Congress and state legislatures to back off any regulatory push. Crypto even slapped its name on sports stadiums and arenas – similar to Enron and Citigroup just before they blew up from specious business models.
Five U.S. Megabanks Have Lost $300 Billion in Market Cap in One Year; Crypto Is in Meltdown this Morning; and the Fed Will Hike Rates Further on Wednesday
The Smartest Guys in the Room Call Bitcoin “Rat Poison Squared,” “a Colossal Pump-and-Dump Scheme” and “a Big Criminal Scam” but Federal Regulators Look the Other Way
TED BUDD is running for election to be Senator from NORTH CAROLINA
[maybe you should vote for his opponent Cheri Beasley]
As Bitcoin Crashes 34 Percent in a Week, U.S. Congressman Ted Budd Pushes Bank Regulator to Approve More Crypto National Bank Charters
Cancer treatment. (photo: MS Tech/Envato)
Clinics offering debunked cancer treatments are still allowed to advertise, despite the company’s stated efforts to control medical misinformation.
If you’re on Facebook or Instagram and Meta has determined you may be interested in cancer treatments, it’s possible you’ve seen this ad, or one of the 20 or so others recently running from the CHIPSA hospital in Mexico near the US border, all of which are publicly listed in Meta’s Ad Library. They are part of a pattern on Facebook of ads that make misleading or false health claims, targeted at cancer patients.
Evidence from Facebook and Instagram users, medical researchers, and its own Ad Library suggests that Meta is rife with ads containing sensational health claims, which the company directly profits from. The misleading ads may remain unchallenged for months and even years. Some of the ads reviewed by MIT Technology Review promoted treatments that have been proved to cause acute physical harm in some cases. Other ads pointed users toward highly expensive treatments with dubious outcomes.
CHIPSA, which stands for Centro Hospitalario Internacional del Pacifico, S.A, was founded in 1979 and refers to itself as a community hospital offering integrative treatments for cancer. On Facebook, the facility describes itself as being at the “cutting edge” of cancer research. But the hospital’s foundational diet-based therapy, called the Gerson Protocol, is “all nonsense,” says David Gorski, a surgical oncologist at Wayne State University in Michigan and the managing editor of the website Science-Based Medicine. Developed by a German doctor in the 1920s to treat migraines, the regimen consists of a special diet and frequent “detox” procedures. It has been discredited for decades in the medical community.
CHIPSA did not respond to repeated requests via phone and email for comment.
MIT Technology Review alerted Meta to five CHIPSA ads, along with three ads from another international clinic called Verita Life. In response, Meta spokesperson Mark Ranneberger said that it had removed “several of the ads for violating our misleading claims policy, which prohibits claims of cures for incurable diseases.”
When asked for the specifics of the ads removed, Ranneberger said that two were rejected: the one claiming that Apatone was “killing” cancer and another that mentioned “growing distrust” of the US health-care system while advertising exclusive cancer treatments. Another ad using identical text to that second one but a different image remains active. On Monday, after the publication of this article, Meta noted that it had removed three additional ads using the same language.
“Us cancer patients and survivors, we are just bombarded with all these kinds of alternative things all the time,” says Nikhil Autar, a medical student in Australia who has acute myeloid leukemia. Autar started seeing ads for cancer treatment centers on Facebook in 2019—just as Facebook and other platforms began rolling out new policies designed to limit the reach of health misinformation.
Facebook has drastically stepped up its efforts to stop the spread of sensational and false health claims over the past few years. After a series of local measles outbreaks in the US in 2019, it announced it would start treating misleading health claims like spam, reducing their reach on news feeds and limiting the visibility of private Facebook groups promoting dubious treatments. When the covid-19 pandemic began, the company rolled out more comprehensive efforts to remove or limit such claims as conspiracies about the virus, masks, and vaccines spread on its platform.
These attempts to combat pitches for miracle cures and dubious medical advice have been a step in the right direction, says Rachel Moran, a postdoctoral fellow at the Center for an Informed Public at the University of Washington. However, many such ads continue to slip through.
One from Verita Life, in Bangkok, Thailand, targeted Australians like Autar, falsely claiming that a hypothermia treatment offered there would “destroy cancer cells.” When Autar took a screenshot of the ad in his news feed in August of 2020, it had more than a thousand likes and 600 shares.
Autar reported the ads he saw to Facebook using its in-platform systems, but they remained up. At one point, he says, he used a Silicon Valley connection to try to flag the ads directly to Facebook management. He stopped seeing the clinic’s ads in the Ad Library and on his own feed after that, but they returned a few months later.
Both CHIPSA and Verita Life had several ads running on Facebook and Instagram before MIT Technology Review inquired about them, according to the Ad Library. Verita Life was able to place an ad as recently as June 18, 2022, promoting the testimonial of a patient with prostate cancer. MIT Technology Review flagged that ad, along with two others promoting the same testimonial. All three remain active.
Meta reviews new ads through a largely automated process before they go live. The company noted that ads and posts from CHIPSA’s Facebook page and Instagram account are eligible to be flagged and fact-checked by third-party fact checkers. If a company repeatedly violates its policies, Meta says, it will temporarily suspend the company’s ability to place ads.
While Meta has rules pertaining to, for instance, misleading claims in ads, all Facebook and Instagram ads must also follow Meta’s community guidelines. The guidelines ban content “promoting or advocating for harmful miracle cures for health issues” when those claims both contribute to serious injury or death and have no legitimate health use.
Those rules, even when swiftly enforced, can leave a lot of gray area for sensational claims, Gorski says, because “a lot of quackery could have a legitimate health use.” For instance, he says, “vitamin C obviously has legitimate health uses; it just doesn’t cure cancer.”
So what about Apatone, the treatment advertised by CHIPSA? Pre-clinical research indicates some anti-cancer effect, but it “has not been demonstrated to be more beneficial than standard treatments we are using currently in humans,” says Skyler Johnson, a cancer researcher who studies misinformation at the University of Utah.
The danger is not simply that the treatments are unproven or ineffective. Some alternative cancer treatments advertised on the platform can cause physical harm. Coley’s toxins, a treatment developed in the late 19th century and offered at CHIPSA, comes with risks including infection, site reactions, anaphylaxis, and in severe cases shock, says Johnson.
Unproven treatments can also interact poorly with conventional treatments like chemotherapy should a patient decide to pursue alternative care on their own. Moreover, simply delaying the start of proven therapies by detouring into unproven ones can allow the cancer to advance, complicating and diminishing the effectiveness of further treatment.
Johnson’s research has demonstrated worse survival rates for patients who seek unproven cancer treatments at first. In a 2017 study, he found that after about five years, patients with breast cancer who delayed conventional treatment in favor of alternative medicine were more than five times more likely to die.
There’s the financial burden, too—because clinics like CHIPSA aren’t generally covered by insurance, patients often have to raise money to afford their treatments. One recent GoFundMe campaign for a cancer patient seeking treatment at CHIPSA included a screenshot of a bill for the “base amount” he’d have to pay. It was $36,500 for three weeks of inpatient care in Mexico. That cost would increase once the facility decided on a treatment plan.
CHIPSA has spent about $5,000 since mid-2018 advertising on Meta about social issues, politics, or elections, according to information available in the Ad Library before Meta removed two of its ads. CHIPSA did not respond to requests for details on its ad spending or the cost of the treatments it offers.
Gorski is blunt about his view on whether Facebook will effectively address cancer misinformation: “The only real way to combat such misinformation on Facebook would require an army of fact checkers that Facebook is never going to pay for, given its past record even on covid-19 misinformation and dangerous political conspiracy theories.”
And as the University of Washington’s Moran points out, misinformation like this rarely stays confined to the platform where it’s originally posted. While Facebook plays a key role in getting sensational claims about dubious cancer treatments in front of desperate patients, the groups and ads carrying those claims often link to other sites and networks that reinforce them.
Johnson, using data from 2017 to 2019, has observed that articles and videos containing myths about cancer treatment often receive more social media engagement than those from “safe” sources. And although it’s tricky to say for sure, his and other research in this area suggests that as many as one in three online articles or videos posted online about cancer may contain harmful misinformation.
“Especially when you are experiencing a medical crisis, you are looking at an incredible amount of information,” Moran says. “It seems good to you that you are doing your research, you're going from one site to the next. But they all belong to the same ecosystem.”
Smoke pours out of towers at the Phillips 66 Bayway oil refinery in Linden, New Jersey, Dec. 11, 2019. (photo: Robert Nickelsberg/Getty Images)
Fifteen years after it opened the door to greenhouse gas regulation, the court is poised to close it.
The court is expected to rule this week on whether the Environmental Protection Agency can continue to regulate carbon dioxide and other greenhouse gases using the Clean Air Act.
The decision in West Virginia v. EPA — which comes as scientists warn that the world is running out of time to avert catastrophic global warming — could severely limit the federal government’s ability to combat warming.
And depending on how broad the court’s ruling is, it could also drastically weaken the government’s power to regulate anything.
“Whatever the court does here … it could have long-term, enduring, harmful effect,” said William Buzbee, a law professor and director of Georgetown Law’s Environmental Law and Policy Program.
Any progress the federal government has made on climate change has stemmed in large part from a 2007 Supreme Court case, Massachusetts v. EPA. It established the agency’s right to regulate greenhouse gases including CO2 and methane as “pollutants” under the Clean Air Act. Though it has moved forward in fits and starts, allowing the EPA to set limits on these emissions under the Clean Air Act is, alongside the technological and economic advances of the solar and wind power industries, among the most important developments of the last few decades.
None, some or all of that result is currently at risk.
The current case, West Virginia v. EPA, was brought by several fossil fuel-producing states along with coal and mining companies. The plaintiffs argued that an Obama-era rule called the Clean Power Plan overstepped the agency’s statutory bounds by trying to regulate greenhouse gas emissions from existing power plants.
Interestingly, the rule in question isn’t even a rule anymore; in fact, it never really was.
The Obama administration issued the Clean Power Plan in 2015, but in early 2016, before any actual implementation took place, the Supreme Court issued a stay after 27 states joined a legal challenge. With the election of President Donald Trump, the rule was dead in the water; his administration issued a separate, much more industry-friendly regulation (the Affordable Clean Energy rule), which itself has since been vacated by the courts. As it stands, there is no relevant EPA rule, and the Biden administration has yet to issue its promised replacement.
Improvident Hail Mary
The strange hole at the center of West Virginia v. EPA offers a tiny glimmer of hope for a less-than-dire outcome.
“It’s possible the court is ultimately persuaded that the case isn’t really ripe for resolution until the Biden EPA finalizes a new rule,” said Cale Jaffe, an associate professor and director of the University of Virginia’s Environmental Law and Community Engagement Clinic. “If it goes that route, then it might simply dismiss the case as ‘improvidently granted,’ without reaching the merits.”
Experts say this is rare and, in this case, probably an unlikely outcome, but Jaffe did point out that we have seen one “DIG” — dismissal as improvidently granted — already this term, in a case involving Republican states defending Trump-era immigration policy.
Another possibility is that it could rule that the EPA lacks the authority to institute what are known as “beyond the fence-line” controls, meaning that the agency cannot issue systemwide requirements for emissions but instead can regulate individual facilities and their smokestack emissions — a much more limited mandate, but not one that overturns the Mass. v. EPA result and removes greenhouse gases from the agency’s purview entirely.
A darker possibility lies in what’s known as the “major questions” doctrine — the premise that if Congress intended agencies to make sweeping, economywide changes with their regulations, the relevant legislation must say so specifically and clearly.
“If they really go whole hog, it’s possible they could simply overturn Massachusetts v. EPA, and just say, ‘You know, that was wrong because it’s a violation of the major questions doctrine,’” said Victor Flatt, a law professor at the University of Houston and co-director of the Environment, Energy and Natural Resources Center.
That would send the agency more or less back to square one, without a mandate to regulate greenhouse gases at all. But Flatt said that’s still not even the worst-case scenario.
“The worst thing that can happen is that they say that it violates the non-delegation doctrine,” he said. “[That] it’s a constitutional violation.” That doctrine essentially says that Congress cannot grant its legislative authority to other bodies. If the court says the EPA’s regulatory efforts violate that principle, or if it overturns what is known as the Chevron deference — the idea that if the legislative guidance to the agencies is not explicit, federal courts must defer to the interpretation of the experts at those agencies — the regulatory agencies themselves are in trouble.
“It relegates them to a much more limited role,” Flatt said, though he added that, thankfully, he does not expect the court to invoke the non-delegation doctrine.
A surprisingly positive legacy
But if the major questions-related outcome comes to pass, or even a more limited ruling that shuts off widespread greenhouse gas regulation, it would mark the end of a relatively short but meaningful era in American efforts to combat climate change. The biggest impact of Massachusetts v. EPA was the Obama administration efforts to limit tailpipe emissions from cars and trucks — efforts that clearly worked to a large extent.
Obama-era rules for cars and trucks, which Trump partially rolled back, have now been solidified by a rule President Joe Biden finalized in late 2021. That rule requires that cars and light trucks of model years 2023 through 2026 manage roughly 55 miles per gallon in laboratory emissions testing. The EPA estimates that the rule will prevent more than 3 billion tons of CO2 emissions — an amount bigger than the total annual carbon dioxide output of India, the world’s third-largest emitter — over the next three decades.
Asked about the legacy of Mass. v. EPA, a spokesperson for the agency pointed Grid toward the greenhouse gas data since the ruling. Though the spokesperson cautioned that large trends can’t be pinned to one single event or policy, the results are notable nonetheless: Between 2007 and 2019, greenhouse gas emissions from the U.S. transportation sector dipped by 5.1 percent (2020 data is available, but the pandemic resulted in a significant but short-lived decrease, which unreasonably skews this trend). Over that same period, registered vehicles on American roads increased by 8.7 percent, and passenger-miles driven climbed by 7.6 percent.
“Those [rules] are effective,” Flatt said. “They can do a lot. The automobile thing already has done a lot.”
Taking that bite out of the transportation sector’s emissions was an obvious and important victory — the sector is the biggest U.S. source of greenhouse gases, and there is a definite sense of momentum behind the transition to electric vehicles and dramatically reduced tailpipe emissions in general.
The second-biggest sector for greenhouse gas emissions is the electricity sector, the subject of the Clean Power Plan and West Virginia v. EPA. The economics of coal, natural gas and renewable energy has led to emissions decreases in that sector as well, but achieving the Biden administration’s stated climate goals — about a 50 percent reduction in overall emissions from 2005 levels by 2030 — will require more stringent regulation and enforcement. So the specifics of what the Supreme Court says are enormously important.
“No matter what the Supreme Court does — unless it takes that really eye-opening step of saying [carbon dioxide is] not a pollutant … then there’s going to be some way that EPA can regulate carbon emissions from these sources,” said Brendan Collins, an environmental lawyer and partner in Ballard Spahr’s Philadelphia office. “And it’s better they all get about doing it as quickly as possible, because it’s already two years into Biden’s first term.”
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