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Comprehensive review of Texas’ Heartbeat Act

Excellent, thorough, and true! Since I could never do better and can’t imagine editing, I’ve been given permission to copy & paste. Please give it your time and attention!

(The group is an excellent source & great to follow on Twitter, @secularprolife)

Secular Pro-Life Perspectives

Wednesday, September 29, 2021

The Texas Heartbeat Act: Answers to 11 Frequently-Asked Questions

Today’s guest post is by Daniel Gump.

After passage of the Texas Heartbeat Act (Senate Bill 8), numerous misinformation campaigns have led to confusion among the general public as to what the legislation covers and how violations are handled.  Because of this, I have encountered several of the same questions and inaccurate statements repeated on social media over the past couple months.  The following responses address some of these questions.

1. What is excluded from the definition of “abortion”?

Health and Safety Code already defines abortions under Sec. 245.002, and the Act did not amend them. Subsection (1) states:

(1) “Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.  The term does not include birth control devices or oral contraceptives.  An act is not an abortion if the act is done with the intent to:

(A) save the life or preserve the health of an unborn child;

(B) remove a dead, unborn child whose death was caused by spontaneous abortion; or

(C) remove an ectopic pregnancy.

This definition is similar to those across the entire United States, as treatment for ectopic pregnancies and post-miscarriage treatment are not criminal acts in any jurisdiction.  The laws solely address intentional acts of feticide.

2. How are medical emergencies handled?

The legislation declares for Health and Safety Code §171.203-§171.205 that abortions performed or induced for legitimate medical emergencies are exempted from prosecution.  They must be logged in the woman’s medical records and retained in the physician’s own practice records.  

The existing Sec. 171.002 defines what would be considered a medical emergency:

(3)  “Medical emergency” means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.

3. How are fetal anomalies addressed?

The Texas Heartbeat Act is silent on fetal anomalies of any type, so an unborn child with Down syndrome, spina bifida, hydrocephalus, or other conditions is protected from abortion, unless the pregnant woman’s life is in danger.

4. Could women be sued for procuring abortions in Texas?

No, Section 3 of the Act adds Sec. 171.206 to the Health and Safety Code.  This includes the text:

(b) This subchapter may not be construed to:

(1) authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter;

(2) wholly or partly repeal, either expressly or by implication, any other statute that regulates or prohibits abortion, including Chapter 6-1/2, Title 71, Revised Statutes;

Several other statutes already protect women from criminal abortion liability. Examples within the same code Chapter 171 include: 

Sec. 171.064.  ADMINISTRATIVE PENALTY.

(b) A penalty may not be assessed under this section against a pregnant woman who receives a medical abortion.

Sec. 171.106.  APPLICABILITY.

A woman on whom a partial-birth abortion is performed or attempted in violation of this subchapter may not be prosecuted under this subchapter or for conspiracy to commit a violation of this subchapter.

Sec. 171.152.  DISMEMBERMENT ABORTIONS PROHIBITED.

(b) A woman on whom a dismemberment abortion is performed, an employee or agent acting under the direction of a physician who performs a dismemberment abortion, or a person who fills a prescription or provides equipment used in a dismemberment abortion does not violate Subsection (a).

Sec. 171.154.  CONSTRUCTION OF SUBCHAPTER.

(d) This subchapter may not be construed to:

(1) authorize the prosecution of or a cause of action to be brought against a woman on whom an abortion is performed or induced in violation of this subchapter;

5. Could women be sued or held liable for leaving Texas to procure abortions in another state or country?

There would be no civil or criminal liabilities within Texas for women receiving abortions, so any such liabilities would fall under the jurisdictions where the abortions take place.  Holding women liable for abortions is very rare in any nations following English common law (as the US does when no statutory law exists to the contrary).

Of all 50 states, the only ones that explicitly allow for women to be criminally liable for abortions are:

6. Could taxi drivers and rideshare drivers be liable for transporting women to receive abortions?

This would take a very liberal interpretation of the new Sec. 171.208(a) to include drivers under “any person who…”

  1. performs or induces an abortion in violation of this subchapter;
  2. knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter
  3. intends to engage in the conduct described by Subdivision (1) or (2).

Drivers are multiple degrees separated from (2) aiding or abetting “performance or inducement” of abortions, and they are not (3) intending such action by transporting customers between locations.

The claim that drivers would be liable was little more than a publicity stunt by Lyft to inject themselves into discussion on the legislation.  In their press release, they were very careful to avoid use of the word “abortion” and repeatedly hid behind euphemisns like “healthcare they need,” “healthcare appointment,” “healthcare access,” etc.  This made the Texas Heartbeat Act seem like its purpose was to block women from seeing their OB/GYNs or other healthcare practitioners.

Lyft also made it clear that drivers and riders should follow a don’t-ask-don’t-tell policy for any illegal activities.  The press release closed out with an announcement of a legal defense fund for drivers ferrying women in violation of the Texas Heartbeat Act, a $1 million donation to Planned Parenthood, and a link (with tracking parameters in the URL) for individuals to further donate to Planned Parenthood.

7. Could the rapist of a woman receiving an abortion sue the physician or anyone else involved for $10,000?

No, Section 3 of the Act adds Sec. 171.208(j) to the Health and Safety Code that states:

Notwithstanding any other law, a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other act prohibited by Sections 22.01122.021, or 25.02, Penal Code.

The Penal Code sections referenced address “Sexual Assault,” “Aggravated Sexual Assault,” and “Prohibited Sexual Conduct,” respectively.

8. Can anyone claim “bounty” after an abortion is performed?

What makes the Texas Heartbeat Act unique among fetal heartbeat legislation is that it declares any non-government individual to have standing to sue.  The claims of open bounty on abortion clinics are exaggerated, as generally only those close enough to the acts would have enough evidence to merit lawsuits.  Presumably, those close enough would include the women who had the abortions, the father of the unborn children, any relatives or guardians of either, and possibly those within their inner circles.

A random individual would have difficulty presenting a strong case, particularly with HIPAA laws and Texas’ own privacy laws concerning abortion reporting under Chapter 171 of the Health and Safety Codes.  Any individual performing or inducing abortions who provides enough details to the general public about specific violations would likely be in violation of several other laws, as well.

Any lawsuit would also have to follow established legal procedures in the state under the Civil Practice and Remedies CodeCode of Criminal Procedure, and any other applicable areas of the Revised Statutes.  A state-wide free-for-all to claim $10,000 per violation is not likely, as a claimant would have to pay court fees and attorney fees on a lawsuit with dubious chance of actually succeeding.  Plus, an award is only available once per violation (Sec. 171.208(c)).

On September 18, 2021, abortionist Alan Braid wrote an article for The Washington Post in which he admitted to violating the law.  He was careful to avoid publicly disclosing specific details, but two individuals residing out of state (Oscar Stilley and Felipe N Gomez), nevertheless, filed lawsuits against him to test the law.  As these cases are still pending, their merits are difficult to determine.

9. What method must be used to determine the fetal heartbeat?

Section 3 of the Act adds Sec. 171.203 to the Health and Safety Code, which describes the means as being “standard medical practice”:

(a) For the purposes of determining the presence of a fetal heartbeat under this section, “standard medical practice” includes employing the appropriate means of detecting the heartbeat based on the estimated gestational age of the unborn child and the condition of the woman and her pregnancy.

(b) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat.

(c) In making a determination under Subsection (b), the physician must use a test that is:

(1) consistent with the physician’s good faith and reasonable understanding of standard medical practice; and

(2) appropriate for the estimated gestational age of the unborn child and the condition of the pregnant woman and her pregnancy.

Any specific requirements for methods fall outside the scope of the legislation and within any medical licensing boards of medical associations.

10. How far into pregnancy does the abortion ban take effect?

Based upon the definitions in the new Health and Safety Code Sec. 171.201, there is no specific time period, as the ban is based upon the ability to detect a fetal heartbeat, using “standard medical practice.”  From subsection 1:

“Fetal heartbeat” specifically means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.

Even though the term used is “fetal heartbeat,” the scope of the law includes embryos, based on subsection 7:

“Unborn child” means a human fetus or embryo in any stage of gestation from fertilization until birth.

The actual method of detecting the heartbeat of the embryo or fetus relies on the discretion of the one conducting the test.

Johns Hopkins Medicine states that a transvaginal ultrasound can detect the heartbeat by 5-6 weeks, and an abdominal ultrasound can detect one by 7-8 weeks.  These are just estimates that can depend on a number of circumstances, like quality of equipment and training of the individual.

Sec. 171.203 requires a physician to record the method of detecting the fetal heartbeat and the estimated gestational age.  Presumably, this would reduce purposeful attempts of deceit to circumvent the law.

11. Did the Texas legislature increase funding to social programs within the Texas Heartbeat Act?

Though not part of the same legislation, the state’s budget increased several social programs for the year.

The “Alternatives to Abortion” program under the Texas Health and Human Services has seen a budget increase every two years since its inception. For the 2022-2023 biennial budget earlier this year, there was a 25% increase from $80 million to $100 million.  This program addresses financial and material needs of pregnant women and parents.  The website lists examples of services:

  • Counseling, mentoring, educational information and classes on pregnancy, parenting, adoption, life skills and employment readiness.
  • Material assistance, such as car seats, clothing, diapers and formula.
  • Care coordination through referrals to government assistance programs and other social services programs.
  • Call center for information and appointment scheduling.
  • Housing and support services through maternity homes.

Additionally, the budget increased the following:

  • $135.5 million for various mental health programs
  • $10.2 million for women’s health programs
  • $123.5 million for rural hospitals
  • $164.2 million relating to foster care
  • $57.6 million for combatting human trafficking

Photo by Matt Walsh from Unsplash

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Biden to Ask OSHA to Mandate Vaccines at Businesses With 100 or More Workers

A primary tenant of Western medicine is that people have the right to refuse medical treatment. President Joe Biden has ignored this tradition, the First Principle of Medical ethics (“First, do no harm”) and the Constitution of the United States.

In medicine, there’s a huge ethical difference between forbidding intervention and not only forcing individuals to comply, but forcing third parties like employers and medical personnel and administrators to intervene by mandating the involuntary breaching of bodily integrity.

The rare cases in contradiction are treatment of tuberculosis and psychosis where it’s proven that patients are an imminent danger to others, not just themselves. This infection can not rise to that level of threat.

There is a history consistent with quarantines – but only of the contagious or suspected contagious.

It’s an egregious violation of human rights to force invasive medical treatment on the unwilling except in emergent, extreme circumstances.

https://news.google.com/articles/CAIiECEzQBy-2BVvgoYNVQlwMKUqFwgEKg8IACoHCAowjuuKAzCWrzww9oAY?hl=en-US&gl=US&ceid=US%3Aen

Normal & reality: a proposed definition for discussion

On one of the Facebook groups I follow, the conversation about the recent Arkansas law protecting conscience was diverted from the law itself by a sensational headline that reflected only the worst accusations of opponents & the reactions of group members to that headline. 


During the  conversation,  I was questioned about my use of the term “normal” for healthy bodily functions.  At the least, “normal” is that which doesn’t itself injure tissues & organs and doesn’t require technological intervention to produce or to prevent morbidity & mortality.


We are hearing & reading about demands that legitimate research results should be suppressed,  watching physicians and scientists who express heterodox opinions be censored. Then we’re told that there’s a “consensus,”  since none of the “objectionable” research is published, much less popularized, and the outliers are demonetized and covered with warning boxes.


Science  isn’t a “consensus.” In science, true hypotheses are testable,  with valid results capable of being confirmed by different observers under similar conditions in different labs. 


That’s also a good definition of reality or “normal.” One that  could be applicable to medical subjects like COVID or vaccines, as well as social and legal  matters.


We’re  being manipulated for reasons that have nothing to do with actual health, physical or mental.  I can’t fathom a reasonable explanation. It looks like an exertion of power – social, financial, then legal.


Patients won’t be helped at all by forcing moral injury by requiring medical professionals to act against their conscience and we all lose when rational discussion is suppressed in the  public sphere.

Update on “Armed men” & fake ballots

CNN has corrected its headline and printed a corrected story in typical fashion: down at the bottom of the page, they note that they might have made a mistake.

“According to our information at this very early stage of investigation, it appears these individuals were operating under the belief that ‘fake ballots’ are being counted at the Convention Center — a completely unsupported claim — and that belief may have been what drew their attention to Philadelphia.” Roh told CNN in an emailed statement.


But it wasn’t their fault.



CNN affiliate KYW had earlier reported that the men were “coming to deliver a truck full of fake ballots” to the city, citing prosecutors.



Correction: A previous version of this story misstated the presumed motive for why Antonio LaMotta and Joshua Macias had come to the Philadelphia Convention Center armed with guns. They may have believed fake ballots were being counted there, according to Philadelphia District Attorney’s Office spokeswoman Jane Roh. The headline and story have been corrected.


So what apparently happened was the two men drove to Philadelphia to check out the counting of ballots while unaware that Pennsylvania doesn’t recognize any other State’s license to “keep and bear arms.” (Or the Constitution.)


None of the articles report that the men possessed any ballots – fake or otherwise.

They were arrested, their names and personal histories published, then arraigned on the possession charges. The judge ordered them held on $700,000 bond. Each.

If only they had chanted “Black Lives Matter” or “No Justice, No Peace” & thrown a few rocks. Then, they would have been released with no bond.

(Other than that, the story was accurate.)

CNN.

Scott Atlas, MD, in his own words

You’ve probably heard about the new doctor, Scott Atlas, MD who is advising President Trump on health policy during the last couple of months.

Here’s a video in which he describes his views and recommfations. You might be surprised!

Dueling Statements by “Experts:” More COVID-19 politics

The blatant political and personal attacks on the integrity and qualifications of the three original signers of the “Great Barrington Declaration” (“GBD” or “Declaration” ), Dr. Martin Kulldorff, Dr.Sunetra Gupta, and Dr. Jay Bhattacharya by the reactionary “John Snow Memorandum” (the “Memo”) are more prominent than any legitimate criticism, much less an honest breakdown of the science behind it.
Look at this Guardian article. Then there’s the Lancet’s editorial.
The Declaration’s original authors are three physicians, extensively published instructors at prestigious teaching institutions. They are acknowledged epidemiologists immunologists, experts in vaccine development, biostatistics, economics & health care policy. The article refers to the author’s as “defiant” “professors” & contrast them with the “scientists” who disagree.
Yet, the words “physician” or “Doctor” do not appear in the Guardian article, at all. There’s absolutely no discussion of the GBD author’s qualifications. Instead, the argument turns immediately to politics, and blaming the supporters of the earlier document for the response of the latter.
The reactionary “John Snow Memorandum” was written a few days after the GBD was announced. The Memo authors oppose the GBD mainly by claiming their own purity of agenda, free of both politics and financial interests. They imply that the Declaration is tainted because of backing from the economics think tank, the American Institute for Economic Research, which is supported by business donors and investment fund that sponsored the original conference presentation.
The Memorandum authors paint with a broad brush to discount natural immunity, insisting that the only way for governments to react to COVID-19 is to mandate total lockdowns and strict isolation of entire populations until acquired immunity from a vaccine can be implemented. The Memo doesn’t give us any guidelines to enforcing the mandates, they throw pejoratives like the Guardians’ “deniers,” or “right-wing” (and “creationists !”), as though the GBD signers disavowed any use of common sense infection control such as hand-washing, distancing, or masks.
Significantly, the CDC, Journal of the American Medical Association, and theUK’s Office for National Statics

The major points of discussion ought to be that by some estimates deaths due to the lockdowns and restrictions

equal or exceed the deaths due to infection, and that protecting the vulnerable by “focused” isolation, hand washing, and masking of the vulnerable where needed is much more achievable and humane than using laws legally mandating these same measures (along with fines, involuntary quarantine, intrusion in private realms and appropriate total isolation), in an attempt to protect everyone for another year or so.

Why the fuss about Amy Coney Barrett?

Politics are heated, these days. One hot spot is the imminent confirmation of Judge Amy Coney Barrett to the Supreme Court of the United States after the unanticipated (yet expected) death of Ruth Nader Ginsberg last month.

A lot of us have expressed our concerns about what has been called “social eugenics,”experimenting with basic societal institutions and our children’s future. (Example: the unexpected problems of forced single parent homes and racial disparity in prisons from the way we pay aid to families and “the War on Drugs.” )

Huge changes were mandated by SCOTUS, rather than State by State, or even at the Federal legislative level, through legislation by our elected representatives. Controversial social change – either direction – is better accepted if it comes socially, then politically.

Judge Amy Coney Barrett has demonstrated the ability to rule based on law, separating religious matters from the meaning of the law. The ABA isn’t adverse to withholding approval for judges, yet gave a glowing recommendation of “Very qualified” and testified about their deliberative process and in favor of confirmation at the Judiciary Committee this morning.

About the “Born-Alive” Debate

For those interested in the Born Alive issue, here’s a “pro-choice” leaning “FactCheck.org” article that generally has the details right. It’s the conclusion that is flawed.

We don’t know the specifics of President Trump’s Executive Order, but there’s quite a bit of controversy in social media and the news media.

The Fact Check article claims that neither the 2002 Act nor the 2019 (failed) Bill are necessary due to homicide laws in the States as well as Federal law.

However, there has always been a very real debate about both the babies on the cusp of viability and babies born alive in the process of an induced abortion.

The latter was addressed in the 2019 Bill that failed to pass. Specifically, that Bill (would have) mandated standard of care medical attention.

A real class act

CNN has an opinion piece disguised as a report on yesterday’s “hearing” with Attorney General William Barr. Even as the author, Jerry Herb, repeatedly declared statements by Barr and President Trump as “false,” he took note of the poor treatment of Barr by the Democrats.

“Jerry Nadler of New York and the panel’s Democrats did not offer Barr any niceties congressional witnesses typically receive. Democrats repeatedly cut off Barr’s responses, accused him of being wrong or lying and made clear they weren’t interested in the explanations he was offering. Barr wasn’t allowed extra time at the end of each lawmaker’s five minutes to respond to questions that witnesses typically receive — forcing Republicans to use their time to let Barr push back on the Democratic accusations.”

Indeed, rather than a ” hearing” to learn from General Barr, the Democrats made sure *they* were heard. One after the other ranted angrily and refused to allow the General to speak, much less respond to any questions. All too often, the Dem shouted, “I’m reclaiming my time!”

(“I’m reclaiming my time!” “I’m reclaiming my time!” “I’m reclaiming my time!” It started sounding like one of the rioter’s chants.)

There were few questions with an opportunity to answer, only
character attacks and accusations that the AG is guilty of politics and doing the bidding of the President. (Wingman?)

More than once AG Barr was accused of racism and causing people to die. One man flatly declared that the Attorney General of the United States was guilty of breaking his oath of office. And, of course, there were threats of impeachment.

Cedric Richmond from Louisiana ironically gave us a great example of racism by noting that when the AG came to his office, he didn’t have a black staffer.

Is there supposed to be a “quota?” Isn’t hiring according to race the definition of “racism?”

I kept waiting for someone to have a stroke – not the AG, he was usually amazingly cool and calm.

(Or spontaneously combust?)

Bizarrely, toward the end of the day, Nadler committed the most egregious act by harshly refusing AG Barr’s request for a 5 minute break.
The meeting began an hour past schedule: Nadler was late because he had an automobile accident on the way to the Capitol. He then jumped into a hostile rant about Barr, skipping the Chairman’s routine notification that the witness could request such breaks as needed.
Throughout the day, the Representatives had, as is customary, individually left the hearing room, coming and going at will. The Attorney General, however, sat for over 5 hours with only three (3) 5-10 minute breaks. There was no lunch break and no scheduled recesses.
The only reason to breech the usual House protocol – not to mention common courtesy – in such a way would be to force the 70 year old witness to ask repeatedly before being excused.
The Democrat members of the House “Justice” Committee could have acheived the grandstanding they apparently craved by simply holding a press conference or giving one of their “One Minute” speeches. Rather than *hearing from* the Attorney General of the United States, they shamefully went out of their way to abuse – and even humiliate him.
I agree with the General: Nadler, indeed each of his Democrat colleagues, are a “real class act.” Not.

General Barr is, however.

(This is an edited version to clear up typos.)

Kristallnacht mobs or Gestapo? Burn, smash stores as police watch

“Police made no effort to interfere…” This is happening to Americans all over the US and multiple factions compare their opposition with the abusers of Nazi Germany.

There’s been looting and vandalism in broad daylight, and 2 months of nightly destruction of property and fires in Seattle, Washington and Portland, Oregon. (And Atlanta, Georgia, New York City, Chicago, Minneapolis, St Louis and virtually every large city in the US) This weekend in Columbus, Ohio, a peaceful rally was disrupted by obscene “Black Lives Matter” protestors, with one woman waving what looks like severed male genitals (here, at about 6:35).

Local police are being *ordered* to stand down and limit their efforts to interfere by Mayors and Governors, but when they do – or Federal law enforcement is sent in – who is criticized, even called the “Gestapo?”

House Majority Whip James Clyburn, D-S.C., compared federal law enforcement in Portland to Nazi Germany’s Gestapo police force on Monday.

Sometimes, even “Black Lives” are victims of both vandalism and assault.

The parallels with Kristallnacht are not precise, but they’re there: the rioters have unofficial approval from the same local governments that are throttling down law enforcement. Only, this time, another governing body would stop the vandalism if allowed.

The question is not whether Godwin’s law has been broken, but whether we learned anything from history in general. I’m also reminded of the chair of the French Revolution which ended when the original leaders were sent to the guillotine, and George Washington’s response to the Whiskey Rebellion with an army of Federal soldiers attacking members of the mob who were accused of harming Federal agents and burning the home of one a official.

How long will the voting public allow their elected officials to be “distracted” by the anarchy and politics?

(Edited for grammar 21/07/20 17:30. BBN)

SCOTUS redefines words. Again. (Say goodbye to single sex sports & spaces)

There’s a right way and a wrong way to change a law. The Constitution doesn’t provide that the Courts make the big decisions, leaving the inconsequential matters to Congress. And yet, nominally “textualist” Supreme Court Justices Gorsuch and Roberts joined with the”living document” Progressives to do it the wrong way.

Gorsuch wrote the majority opinion in Bostick v. Clayton County and got at least two points right:

  1. “When the express terms of a statute give us one answer and the extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” and,
  2. There’s no way that the 1964 Congress would have intended for the word “sex” to include sexual orientation or gender identity.

In his 37 page argument, Gorsuch stuffed and fluffed strawman after strawman to fit an extratextual interpretation of “because of …sex” into the redefinition of “sex.” As noted in the dissents by Justices Alito & Kavenaugh, his is a redefinition that wasn’t even attempted when SCOTUS redefined “marriage” in Obergefeld.

In other words, as Justice Alito wrote in his dissent, Gorsuch and the majority “legislated.”

I agree that this law needed changing to give more protection to employees in the public market place. Congress should have been encouraged to work out those protections, while also preserving religious freedoms and single-sex spaces and even women-only sports. I can’t help but wonder whether – perhaps – both political Parties took a dive, hoping the Supreme Court would do exactly what they did.

And the Country will witness lawsuits, year after year, that might have been averted.

In the meantime, though, I’ll bet Senator Chuck Schumer feels caught in a whirlwind of his own. What price, now, Chuck?

Right to Life, COVID, 16 May, 2020

The “Right to Life” means the negative right not to be killed by intentional acts. It’s not the right to force others to invest our life, liberty or property other than the duty to intervene against infringement. This is a basic negative right, not a positive right.

There’s a huge difference between personal responsibility in avoiding a risk to yourself and actively causing harm to someone else. Self-defense rather than selfish demands, using only appropriate force on others.

You know, the old “your right to swing your fist ends at my nose!” (Especially Appropriate in this case.)

*You* take the actions *you* believe are responsible. Only frequent places/businesses that require masks if you want, do the work necessary to maintain the social distancing you are comfortable with. Don’t force everyone else to do your work for you.

In-Justice “In like Flynn” (after 3 years)

This all makes me physically ill. Documents withheld for over 3 years.

Hand written note “get him to lie.”

Special ProsecuterMueller’s investigation had some of these documents. Did Horowitz?
I have said that justice died the day that Kelo was decided and Terri Schiavo was killed by medically pulling her feeding tube & threatening her mother with Sheriff’s deputies guarding her to ensure dehydration.

Then, Comey pulled his Hillary stunt and the DOJ handed out immunity like candy. Then, the Russia hoax, and impeachment with Schiff claiming ownership of interview documents.

Law enforcement forcing the elderly to sit on sand rather than beach chairs and parents arrested for playing with their own children.

Now FISA courts subverted, 66 yo’s are arrested in their homes in SWAT assaults, and this, with Flynn. The FBI leadership planned to go after Flynn, in order to prosecute or get him fired.

Then, the documents and others proving the plan were held – hidden – for over three years in spite of a judge ordering them turned over.

The real story is the lies they told, and especially the fact that they hid these documents 3 years after they were ordered by a judge to turn them over!

They didn’t appeal the judge’s rulling: they obstructed justice, hiding and denying their existence! The Sztrok/Page texts were supposedly destroyed, remember? Then some were turned over as if the complete record.

Justice is dead and the body has been repeatedly mutilated.

Edit: 509 PM AST 30/04/20 To add 2nd & 3rd to last paragraphs BBN

To kill or not to kill – or even to call it killing?

It seems that an advocate of Euthanasia and Assisted Suicide (EAS), which is legal in Canada since 2016, complained to the “The Protection of Conscience Project” administrators about their use of the word, “killing,” rather than “Medically Assisted Death” (MAD) when writing about the law. The wording of the objection exposes the potential limitations even on thoughts, much less the act of refusal, of physicians who object to participating in EAS.

In response, Sean Murphy, an Administrator of the Project, discusses and defines the acts and prohibitions involved in EAS, threatened conscience protection in law as decided by Canadian legislators and courts, and policy statements of the Canadian Medical Association.
A recent case decided by the Supreme Court of Canada considered “whether or under what circumstances physicians and institutions should be allowed to refuse to provide or collaborate in homicide and suicide.” While the Canadian courts have not made it illegal to refuse, the author points out that the Canadian Medical Association now considers EAS medical treatment. Although refusal isn’t illegal, if it becomes “unethical,” the licenses of conscientious objectors may one day be at risk. (Mr. Murphy let me know that the CMA is trying to respect both views)*
Just as all inalienable rights are dependent on the protection of the right to life, all medical ethics principles (autonomy, beneficence, justice) are based on the foundation of nonmaleficience, “Cure when possible but, first, do no harm.” This is the First Principle of Medicine.
The editorial gives an useful “litmus test” for discerning between ethical and unethical acts carried out under the umbrella of medical therapy: it’s considered a “failure” if the patient doesn’t die as a result of EAS.
In contrast, the intent of withdrawal or withholding medical treatment is not necessarily to cause death, but to stop acts that are unwanted or medically inappropriate because they do not heal, cure, slow the progression of the disease or relieve pain and suffering, but actually exasperate suffering and may cause damage beyond that inflicted by the disease.
To use a current case in the news in the USA (which I recently covered here), Baby Tinslee Lewis’ doctors wish to withdraw life sustaining treatment that they believe is medically inappropriate. The doctors would not consider it a failure if, rather than die of her severe heart and lung damage, she continued to live.
Canada is already far down the slippery slope of mandating participation in induced (elective) abortion and “MAD” by designating each as “therapeutic and medical services.” The Project Conscience authors rightly predict the possible consequences:
“[I]f the state can force unwilling people to kill or help to arrange for the killing of other people, there would seem to be nothing that the state cannot demand of its citizens. This would promote the development of dangerous forms of authoritarian and even totalitarian government: ultimately more effective and deep-rooted, perhaps, within a democratic framework than they ever have been in dictatorial regimes.”

(*EDITED An earlier version stated that licences were at risk. Not yet.

BBN 11 February 2020 12:30 AM)

More thoughts on Texas Advance Directive Act

I was asked about the #BabyTinslee case and what we should do, what can we do, in the disputed cases.

We need to educate more. People don’t understand basic medical ethics in this day of “choice.”

Autonomy doesn’t supersede nonmaleficience. In other words, the First Principle of medicine, “Cure when possible, but first do no harm,” always should guide us, rather than “wants” or “choice.”

In the end, doctors are the ones actually performing the acts and we’re most likely to understand the projected outcome. We benefit from oversight by colleagues and the community, both informally and in the process prescribed by the Texas Advance Directives Act.

Some people demand that every one of these cases go to court, for “due process” and “cross examination.”

But judges and courts can’t be as knowledgeable as doctors are. Their decisions are necessarily informed by dueling (paid) lawyers and (hired) medical experts.

In all the cases that have gone to court, the family has had quite a lot of notice, but the 48 hour notice before the committee meeting is perceived as too abrupt, especially since the relationships all appear to be adversarial by that point.

(And who could get your family to a meeting in 2 days?)

The 10 days isn’t thought to be long enough to arrange a transfer, either. Again, in many of the Court cases, the attempts to find another doctor willing to accept the patient’s care has begun before the committee meeting.

Doctors acknowledge the great trust and privileges we are given by agreeing not to abandon our patients. When we have a disagreement with a patient or surrogates (usually a familymember), we accept that we must continue treatment for a period of time. But not indefinitely.

If we could get the reforms that have been attempted to lengthen the statutory timeframe (multiple times) since before 2005, the TADA would be much better. It’s still the best process we have, currently.

Doing to, not for (Baby Tinslee & TADA)

“We’re doing things to her. Not for her.” (Wini King, spokesperson for Cook’s Children’s Hospital, January 3, 2020) This may be the best description of a very sad case. 

Tinslee Lewis was born prematurely on February 1, 2019, with severe heart and lung defects. She had cardiogenic shock and was admitted to the Cardiac ICU at Cook’s Children’s Hospital immediately. ♡(See Cardiac Pathology ♡below.)

Even after three open heart surgeries, a fourth to close her sternum, a short time on ECMO (essentially, heart-lung bypass) and constant ventilator since July, of 2019, Tinslee’s enlarged heart and small, damaged lungs can’t keep up with the necessary blood circulation and exchange of oxygen and carbon dioxide, even with the assistance of multiple blood pressure medicines, diuretics and the ventilator on high, except when she’s still and quiet with the help of sedating and paralyzing drugs.


In response to a lawsuit against Cook’s Children’s Hospital,  where Tinslee has been in the CICU since birth, Tinslee’s medical records were submitted to the Court.  I’ve been able to review approximately 200 pages that are now public record, describing the constant,  repetitive interventions necessary to keep Tinslee alive on the ventilator.  

Tinslee’s doctors (and, the notes show, the nurses and staff) believe that they are being forced to cause Tinslee pain and suffering, while keeping her paralyzed and sedated. They report increasing difficulty with managing the ventilator so that her damaged heart & lungs can maintain oxygenation. She requires repetitive heart, lung and blood tests to guide adjustment of meds & treatments and has had several infections requiring treatment. In contrast to my earlier presumption, the notes in the records show that the ventilator and all its required meds and manipulations are indeed causing undesired problems, including fluid overload, infections and cardiopulmonary distress, in addition to her underlying lung disease. Even the baby’s growth, something we usually celebrate, increases her risk of cardiopulmonary insufficiency. 

Those records also contain notes from many attempts to explain and council Trinity Lewis,  Tinslee’s mother,  about her baby’s underlying problems and prognosis and the reasoning behind, in contrast to some past media reports.

Ignoring the fact that doctors, not hospitals, practice medicine in Texas, Texas Right to Life Lawyer Joe Nixon is quoted, claiming that the “hospital ” has decided to withdraw treatment. Texas Attorney General, Ken Paxton, is shown to have Tweeted that the problem is a “legal issue,” rather than an ethics and justice matter of forcing doctors (and by their orders, nurses and other staff) to cause pain and suffering for a little girl who is dying as her body fails to heal, in spite of every intervention possible.

Many people, out of compassion, object that “the family ” should decide when to withdraw life support. Yet, the family  members aren’t watching the oxygen levels drop while they rinse Tinslee’s airways with a bicarbonate solution to keep her lungs clear. And it’s certainly not the lawyers that are probing, injecting, measuring and adjusting constant, innumerable hourly interventions done to a baby who must be sedated and paralyzed to prevent cardiac and respiratory distress. 

In spite of the diligent  complicated interventions and care of the doctors and nurses at Cook’s, there have been comments in blogs and social media that the “hospital” wants to “kill” Tinslee. Startlingly,  AG Paxton called the latest Court ordered, indefinite hold on removal of life support  a “Stay,” as though the doctors, not her multiple medical problems, would kill Tinslee. He also misrepresents the process that Cook’s Children’s Hospital and Tinslee’s doctors followed,

“The statute fails to require that physicians provide an explanation of why they refused life-sustaining treatment and provide the patient’s family with adequate notice and opportunity to argue their position prior to the committee reaching a decision, effectively allowing the government to deny an individual’s right to his or her own life and to do so without due process.”

In fact, though, it is the lawyers, particularly at Texas Right to Life, who are turning a little girl’s tragedy into a continuation of their legal battle against the Texas Advance Directive Act. I’ve covered the benefits of and the struggle to improve the Act – repeatedly blocked by TRTL and their lawyers – for years on both WingRight.org and Lifeethics.org

The Act, TADA, was hammered out in 1999 by a group of stakeholders   including  patient and disability advocates, hospitals, doctors, ethicists and lawyers. Texas’ prolife organizations,  including TRTL and the organization for which I served on the Board of Directors for 15 years, Texas Alliance for Life, and for whom I wrote this essay.  

Briefly, TADA allows a balance and legal options when there’s a difference in opinion between a patient’s desire for a given treatment and the medical judgment (a combination of education, experience, and the standard of care) of the doctors who are tasked with the most difficult medical and surgical cases. 

I’ll admit that it’s my opinion – and only my opinion – that the lawyers hate that TADA provides a safe haven from lawsuits if doctors follow the law (!). I slowly came to this conclusion over the years because at virtually every Legislative hearing and stakeholders’ meeting about any changes to the Act, the lawyers bemoan the fact that doctors don’t have to go to court over each of these cases and that they face no legal penalty or “liability.” 

Poor Tinslee Lewis will most likely never leave the hospital alive. Disease and death don’t respect “due process,” but, they are predictable and an inevitable part of life. Hopefully,  we will see her mother and those who love her come to find peace with her death, celebrating the time they’ve had to be with her, especially these last 2 months. However, I fear that the lawsuits will continue for years, adding to their grief.

Edited 1/19/2020 for a typographical error: in the secondparagraph, “cardiogenic” replaced “carcinogenic.” BBN

♡Ebstein Anomaly – Cardiac Pathology 101, about as simple as I can make it (and understand,  too);

Ebstein Anomaly
(Thanks to Mayo Clinic)

Babies born with Ebstein Anomaly have a malformed right and atrium and ventricle and misplaced (tricuspid) valves between the right sided ventricle and atrium. The larger right ventricle can’t pump efficiently. 

In addition,  the blood the right ventricle tries to pump into the lungs leaks/flows/churns (risking blood clots) back into the right atrium, which grows even bigger, with even thicker walls. The ventricle also grows bigger. When the  muscle fibers of the chamber walls get stretched apart enough, they are less inefficient. (Think of two hands gripping at the fingers. The farther out the grip, palm > 1st joint  > fingertips,  the less strength and pull on the opposite hand.) (For the geeks: Frank-Starling law.

The lungs aren’t efficiently filled with blood, they don’t expand, the pressure builds up in them and efficient exchange of gasses doesn’t take place. 

In the meantime, the blood backs up in the body, the liver, kidneys and extremities & eventually the left side of the heart, which can hypertrophy , too. 

The enlarged heart puts pressure on the lungs and nearby soft tissue,  including the blood vessels coming to the heart.

The combination of leaking high pressure blood vessels and the body’s increasing fluid in order to try to pump what oxygen there is, leads to edema or swelling of the body.

Sometimes,  the fetal atrial-septal defect stays open, allowing mixing of the un-oxygenated blood from the right, with the oxygenated blood. This malfunction can help, temporarily. 

With the high pressure, poor flow, and actual physical damage due to the mass of the heart, none of the organs can function well. Increased activity, stress, and growth will increase the demand for oxygen, kidney & lung function.

OIG finds Comey violations. No big deal?

Some (political) animals are more equal, I guess.
Is this all there is to the OIG report by Michael Horowitz that we were told was coming in June? (It’s now the end of August.)
If not, why is the IG’s report piecemeal? Why is it taking so long? And why is the follow through on “wait until the IG finishes the investigation” so chaotic – or at the least, highly variable?
The Inspector General released info that he found Comey broke FBI policies *after* the Justice Department determined that Comey wouldn’t be prosecuted.
It turns out that Horowitz actually referred the Comey violation to the Justice Department for prosecution but the DOJ decided not to prosecute.

Who – in actual places of responsibility – cares about policies? What good is an Inspector General investigation and referral for prosecution, anyway?

Children born overseas (No change)

About the Trump Admin & citizenship of children who aren’t born citizens: don’t believe the spin. Nothing has changed in the law. In fact, the policy is the same as long standing State Department policy and practice.
The disputed policy update of the United States Citizenship and Immigration Services is here.

The “Highlights:”

•Clarifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States.

• Explains that USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring citizenship under INA 320.3

The regulations clarify the question of physical presence vs. “residing in” the US and the timing of the birth & citizenship.
Children of citizens who have lived in the US as citizens for 5 years before the birth – the usual situation for US military and government workers – will continue to “automatically” be citizens from birth.
Children who are born before a parent becomes a citizen, non-citizen children who are adopted by citizens, and children of US citizens who have not physically lived in the US for at least 5 years will need to become naturalized citizens. The parents must apply for citizenship for the child by his 18th birthday.

Not the hype you’re reading about in the news.

Edit: Penultimate sentence: “18” instead of “28.” On September 3, 2019. BBN

Texas’ reaction

At least 22 people are dead and another 20 to 40 wounded in El Paso, Texas, due to a planned, murderous rampageby a man who drove 650+ miles to reach the site. He carried a semi-automatic rifle and wore both eye and ear protection.

13 hours later, a second man also carried a long gun and put on eye and ear protection. He added a bullet proof vest and a huge ammunition magazine. When he attempted to enter a neighborhood bar, he was refused entry, was immediately surrounded by police, and yet managed to kill nine people and wound dozens of others.
These followed closely on the California Garlic Festival shooting that claimed three lives, including two children.

The killings alone are enough to prove the killers are evil and full of hate, but their history and social media portray individuals focused on hate, erasing all doubt. It appears that the Texas shooter identified with white supremacists white supremacists while also professing to be anti-government and anti-corporation, while concerned about the environment. The Ohio shooter was known to be obsessed with guns, had participated while armed in a counter-protest against white supremacists and was politically left-leaning. The motives of the California shooter aren’t clear at all.

Meanwhile, in Chicago,at least two mass shootings in public parks went nearly unnoticed, although seven people were killed by guns in the City and 52 were injured and treated at local hospitals.
Yet, Chicago and Illinois have some of the strictest gun control laws in the US:
“””The age to purchase a firearm is 21. The state requires gun owners to obtain licenses and face background checks as well as imposing waiting periods on firearms purchases. Judges can take guns away from owners who are deemed to be a threat to themselves or others. And recent legislation aims to begin a fingerprinting database of all gun owners in the state.””
However, as noted in that article,
“””Apparently it doesn’t work like that. (Someone should tell our elected leaders.)””
These are the same strict gun control measures that are now being demanded across the Nation. The contention is that strict gun laws will decrease gun violence.
The problem seems to be (both in Chicago and around the country) that legal gun owners are not the ones causing the issues, these gun control laws are also suspected of impacting poorer citizens disproportionately, and, in the recent cases, it’s unlikely that any of the often-proposed gun control laws would have prevented the murders: The murderers decided to kill people. Each went to extremes and broke laws already in place, in order to carry out their plans.

Evil will find a way.

The UK has had 285 knife killings in the UK IN 12 months, 40K+ knife attacks and hundreds of homicides using knives or other sharp instruments in the last year. Twenty people were killedwith a knife attack in Japan in 2016. Three more were killed and in another knife attack this year. In 2015, a man attacked teachers and students with a sword, killing two.
And this week, four people were killed and others wounded by a man with a knife in California, a State with the most strict gun laws in the country.
The greatest risk is that an unarmed populace is vulnerable to domination by armed criminals. Gun control in Mexico is nominally very strict, yet the gun murder rate is five times that of the US and large parts of the country are oppressed by organized – and armed – criminal cartels.

What will Texas response be?

I doubt that any of the proposed gun control laws will ever be passed in Texas.
First, it’s important to realize that Texas’s Legislature only meets every two years. The next Regular Session won’t meet until January, 2021. The Governor is unlikely to call a Special Session to increase gun control.
Second, in spite of calls by President Trump and some Republicans, it’s highly unlikely that the Lone Star State will back (attractive, even to me) “Red Flag” laws because of these attacks. So called “Red Flag” laws are billed as attempts to make it easier to seize guns from current owners who may be dangerous, but are certain to result in armed resistance by owners and the refusal by law enforcement. In fact, nearly half of the Sheriffs in Washington State have made it known that they won’t enforce that State’s new law, I-1639.
Any move to prohibit classes of guns and ammunition will likely face a successful court challenge, at least until the more unlikely event that the Second Amendment is constitutionally repealed. Even if you see repeal of the Second Amendment to the Constitution as a remote possibility, how quickly do you think it could happen?

In Texas, the result will probably be more guns.

I won’t be surprised to see an increase in gun purchases, in Concealed Carry License (CCL) applications and to see more current CCL holders actually carry, rather than to decide to leave the gun at home.
I do hope that more people will sign up for CCL, safety and response classes.
But, if we learned anything from these recent shootings, it’s not that guns are dangerous: The gun needs a human to pull the trigger. But it’s more obvious than ever that even when the police are present or respond immediately, they can’t prevent a determined killer from the attempt.

Updated information on TRTL, end of life, and money

One Texas Right to Life (TRTL) lawyer has posted an update on Facebook about the “rescue” of Mrs Carolyn Jones. I’m afraid that, as with the declaration that another patient was “slain,” TRTL is gaming the Medicare funding and Texas medical systems for political purposes.

Emily Cook, General Council for TRTL, wrote that she worried that “funny business clinically would happen as we moved her” from the hospital where Mrs. Jones has been admitted for over 6 months, where the docs had weaned her off the ventilator and wanted her to transfer to a more appropriate level of care facility over 2 months ago.

Emily says TRTL spent their own money (*see my last paragraph) to put her in a private ambulance and take Mrs. Jones to another hospital ER. That hospital couldn’t provide dialysis, so they in turn transferred her via ambulance somewhere else, to yet another hospital until admission can be arranged at the nursing home.

Even Lawyer Cook admits that the first move wasn’t “legit.”

Cook-ing the system

There were comments on various sites that the original hospital had refused transfer. However, from what I’ve read, it’s likely the hospital was refusing to be complicit with “patient dumping.” For a hospital to knowingly discharge a patient for the purpose of transferring to the ER of another hospital without (or even with) the acceptance of the transfer from the docs at the other facility is highly irregular, and likely goes against Medicare regulations.

Mrs. Jones’ Medicare funding for the original hospitalization is bound to have run out some time ago. Normally, Medicare will allow 90 days per admission, with an extra 60 “reserve” days, once per person, per lifetime. The patient is responsible for part of the bill from the first day of admission, and for the total hospital costs after the eligible days.

But there are still Medicare regulations to deal with in the case of “Medicare eligible” patients, even when they aren’t paying.

As to the refusal of the original hospital to accept private payment for in-hospital dialysis, there were 2 issues: Medicare funding about privately payment for covered services and the probability that the physician-patiebt relationship would be reset, along with the 10 days in the statute.

Medicare makes it very difficult and risky for everyone to navigate the private pay process. When I had a question in my private medical office about whether Medicare would cover something, we had the patient sign an informed consent agreement and an acknowledgement that the patient might have to eventually pay if Medicare denied the service. Then we performed the service, filed the charge with Medicare, waited to be denied, and then tried to Bill the patient. I gave away a lot tetanus vaccines and removed a lot of moles and warts for free to avoid the risk of “fraud and abuse” from the likes of Janet Reno.

The same risk would have applied if the hospital had privately charged Mrs. Jones’ Dialysis.

I don’t believe the first new hospital is at risk for a charge of “dumping” if they documented a legitimate reason. However, both new hospitals will be able to charge the Jones copays and co-insurance. They may also find Medicare coverage limited because of the way Mrs. Jones left the original.

Another, discussion has concerned the delay in funding from Medicaid:

“Medicaid limits 2019” (a .PDF)

I certainly don’t know the Jones’ financial circumstances, and I may have over estimated the maximum income in early speculation. However, there are strict maximum Medicaid income and asset levels. These vary according to age, disability, and marital status. (Even the government bureaucratic Leviathan doesn’t want the spouse if a nursing home patient to end up indigent.)

In my experience, the social workers and benefits experts at hospitals and nursing homes are experts at negotiating and translating the bureaucracy. In addition, the disabled Medicare eligible person will have access to a benefits specialist. I’ve never had a hospital discharge and nursing home admission blocked by this “paperwork.” Certainly not for months at a time.

*TRTL hasn’t updated their Carolyn Jones fundraising numbers since last week. That “Family Assistance Fund,” part of their 403(c) PAC, (AKA the Educational fund”), has been posted as a little over $33,000, since last Friday.

I hope TRTL assists the Jones family with what is certain to be several enormous hospital bills. As long as they pay the bills directly, the funds won’t be counted as income to Mrs. Jones.

Why does TRTL lie? (UPDATE)

I can’t tell you why, but it’s true: Well below their “Donate Now” banner, Texas Right to Life (TRTL) is shamefully spinning another one of their false stories.
Just as they lied on their website that Chris Dunn was “slain by his doctors,

they now post that a woman, Mrs. Carolyn Jones, had to be “rescued” from hers, “racing” to another facility “in the middle of the night.”

Okay, it’s night in that picture. That and the proper names are the only things they got right.
Mrs. Jones wasn’t “rescued” from the hospital that has been giving her excellent care for over 6 months. Nor were her doctors and nurses “surprised.” that she was able to breathe on her own. After all, they were the ones who weaned her from the ventilator over a month ago.
What was expected was that Mrs. Jones would be transferred out if the hospital where she’s been admitted since November, 2018 to a more appropriate, lower level of nursing care two months ago.
On April 10, Mr. Jones testified to the Texas Senate Health and Human Services Committee that, thanks to the hospital doctors, his wife now needed the ventilator only “occasionally at night.”

The family were given notice that they needed to transfer Mrs. Jones in March. They’ve had another doctor and three facilities capable of providing the treatments she needs waiting to accept Mrs. Jones.

When the family of a hospitalised patient refuses to allow her to be transferred to a more appropriate treatment facility, the attending doctor has no legal means other than the 166.046 process laid out in the Texas Advance Directives Act (TADA). This is the legislation that has been called the “Futile Care Law” in the past, but TRTL likes to call it the” 10 Day Rule,” now, in spite of their rejection of effort after effort, etc., to expand the time frame and increase transparency and assistance. This is the issue that led to the rebuke (.PDF) of TRTL by the Texas Conference of Catholic Bishops and gleefully reported by the liberal press in Texas
The Jones family are real people, scared and hurting. Mr. Jones somehow was misled to believe the lie that “food and water” would be removed. I would have thought that at least one of the many, many lawyers at TRTL would have assured him that that is not legal under Texas law.
Instead, the Jones family’s fears – and your compassion – are being used as a means to TRTL’s political – and fundraising – ends.

And now, TRTL – in direct competition with – and with absolutely no mention of – Mrs. Jones’ family’s GoFundMe campaign – has been raising money in Mrs. Jones’ name. They state that the funds will be used for (TRTL) lawyer’s fees in addition to Mrs. Jones’ healthcare needs and that “excess” funds will go to help (TRTL’S) efforts for other patients.

I hope that TRTL’s money will also be used to pay for the very large hospital and doctor’s bills that the Jones family will receive. While there’s a chance that Texas Medicaid will pay for three months of medical bills, retroactively, Medicare doesn’t pay for hospitalizations over 90 days and has a 20% co-insurance (co-pay).

That’s bound to have added up in over 6 months.

We’ll just have to trust that TRTL won’t lie again.

Beverly B Nuckols, MD

Edit, Updated information:

One of the bloggers has told us more about that “rescue.” (Or today’s story, anyway.)

TRTL put her in a private ambulance and took her to *another ER,* one that couldn’t provide dialysis, so they then transferred her somewhere else.

There were comments about the first Hospital refusing transfer — no, refusing to be complicit with “dumping” a patient. Discharging to without ( or even with) acceptance of the transfer from the docs at the other facility is highly irregular and likely illegal.
Much has been said about funding. Yes. It appears that Medicare funding ran out, so no longer paying. 90 days per admission, with an extra 60 days over, under certain conditions.

About that Medicaid funding: I don’t know the limits of the mandatory asset tests, but the yearly income level is $60,000. One way to adapt is to spend money on medical costs.

Medicare makes it difficult to navigate the private pay process. When we had some question, we got informed consent, promise to pay, then performed the service, filed with Medicare, waited to be denied, then tried to Bill the patient. The risk is always a charge of “fraud and abuse.”

The same thing would have happened if the hospital had privately charged for Dialysis.

(5/20/19, BBN)

Alabama bans all elective abortions

There’s an exception for the life of the mother. Doctors can be prosecuted, but mothers can’t. (Similar to the way we treat assisted suicide: the one who assists can be prosecuted, the victim isn’t, if he survives.)

Twitter is filled today with outraged hashtags: #HumanRights #HumanRightsAreWomensRights and #RoevWade

(I’ve had to create #NoIDidNtSayThat )

Eggs stop being eggs, or part of the woman’s body, when fertilized.

In #RoevWade, Blackmun stated that science doesn’t say when life begins. Louise Brown, the first “test tube baby,” was born just five years later. Any employee of an in vitro fertilization clinic can tell you the difference between the flasks with gametes and the ones containing embryos.

The embryo conceived by human parents is no other species. I can show you proof that he or she is the same human organism from the time the human sperm penetrates the human zona pellucida and enters the oocyte. From that moment, meiosis begins and the embryo refuses all other sperm.

Elective abortion infringes – aggresses – against the human rights of the one killed – and the people who are defrauded into believing the lies.
Everyone’s Human Rights are stronger when we recognize that all are equal & weakened when we call anyone less than human-enough. Disaster always follows.

Our Declaration of Independence declared that all are created equal, and legitimate government is organized to protect our individual rights.

All humans, even new humans, are human-enough to possess human rights.

(Edited typos 5/15/19 9:29PM. BBN)

Life Ethics

Western classical liberal ethics has favored “deciding” that all humans are human-enough to possess human rights. 1.Are they human? 2.Can we kill them? The answers have been increasingly 1. Yes, & 2. No. That’s not #Patriarchy. It’s a good basis for a #sentient, civil society.

HatTip to a FB poster, Clint Stutts, for the questions.

False story about Texas Advance Directives Act (TADA)

I’m a subscriber to the new reader-supported online news site, The Texan which is the project of former State Senator, Konni Burton, having recently paid for the annual subscription. (A heads up: if you click through on all my links, you’ll risk using up all your free views this month.)
But I’m disappointed to see a definite spin in today’s news story about the Texas Advance Directives Act (TADA), even though one of my WingRight blog posts is quoted.

TADA isn’t just for disagreements over whether CPR and ventilator support are “medically inappropriate treatment” It covers any dispute between the doctor and the hospitalized patient when “the attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient.” (emphasis mine) This could be demand for inappropriate surgery or medications or if the patient refuses to leave the hospital or be transferred after 6 months, for instance.
From all the previous news reports and blog posts, her husband’s testimony to the Senate Health and Human Services Committee, and a few of my blogs, Mrs. Carolyn Jones’ case seems to be a disagreement over whether to transfer her from the hospital, where she’s been admitted and improving for about six months.

Mrs. Jones is not dependent on the ventilator.

In fact, it sounds like Mrs. Jones has had excellent treatment at the hospital,

even after the Committee meeting on March 8.

Mr. Jones told the Texas Senate Health and Human Services Committee that the doctors at the hospital successfully weaned Mrs. Jones from the ventilator.

He also said that three other facilities are ready for her admission.

Drew White, Senior Editor of The Texan, and I communicated by email over the weekend, after I wrote to explain some errors in the news coverage.

I’m happy to see that today’s article by reporter Tony Guajardo quotes both opponents and supporters of TADA and corrected the impression that Mrs Jones is dependent on the ventilator: “She requires dialysis, occasionally needs a ventilator for breathing assistance, and uses a feeding tube.

All of these treatments are routinely provided at lower level of care facilities, other than tertiary hospitals.

And yet, today’s The Texan article still misrepresents this case: “UPDATE: Recovering Beaumont Woman’s Life-Sustaining Treatment to End Due to 10-Day Rule.”

There’s also a quote from Mrs. Jones’ daughter, repeated from the earlier article: “My mom is going to die on Monday because of a law that saves hospitals money.”

It turns out that money and Medicaid paperwork is actually what is keeping the family from allowing Mrs. Jones to be transferred to another doctor and facility. The family is concerned that they (rather than the hospital) will be responsible for the costs of Mrs. Jones’ care.

This is in spite of the fact that when a patient first goes on dialysis, she becomes immediately and automatically eligible to apply for Medicare and Social Security Disability.

Depending on assets and income, patients unable to work on dialysis also qualify for Medicaid and other State benefits in Texas. Medicaid will even pay bills retroactively for three months.

Even more than usual, I double checked all of my information to ensure that I’m right that Mrs. Jones isn’t dependent on hospital treatments – since it was reported in the article that the hospital would withdraw “life-sustaining treatments” at 2 PM, today, May 13, 2013.

The good news is that she isn’t dependent on the ventilator, dialysis is not constant but only 2-3 times per week and paid by Medicare, food and water by the feeding tube can’t be withheld under TADA.

Hopefully, the Jones family will finally agree to transfer her, even if costs them more than her Medicare & Social Security Disability will pay.

Have they no decency?

Now, Texas Right to Life is blatantly lying, posting an article on their website entitled “American hero slain two days before Christmas …”

“slain?”

Far down in the piece, there’s this:

“Chris passed away naturally on December 23, 2015 – two days before Christmas.”

Mr. Dunn died from his metastatic pancreas cancer, on full medical treatments. His mother, Mrs. Kelly actually thanked those who cared for him at the hospital.

Every article on TRTL’s website has a “Donate” button at the top, prioritizing money over the people whose stories they use to raise money and influence the Texas Legislature. Now, we see this completely dishonest caption.

Just what is their mission and how can we trust them?

Hurting patients and families

Facing the life-threatening illness of a loved one is hard enough, without misunderstandings. It’s cruel when people who claim to be helping don’t correct those misunderstandings.
I can’t comment on on Texas Right to Life’s (TRTL’s) recent Facebook post, where the organization is, frankly, spreading falsehoods and perpetuating misunderstandings that are bound to make a difficult process even harder.
The story about the family of Mrs. Carolyn Jones is one I’ve covered before.
I believe that the Jones family could be – should be – reassured about the care and treatment that Mrs Jones is receiving. In my post, today, I would like to further clear up some of the problems in TRTL’s reporting.
Significantly, on April 10, 2019, Mr. Jones testified to the Senate Health and Human Services Committee ( at 52 minutes into the video, near the end) that, on March 8 of this year, after 4 months’ admission, the hospital held what he says was the second ethics committee meeting. After the meeting, the family believes that the hospital informed them that Mrs. Jones needed to be transferred by March 18, or her oxygen, food and water, and dialysis would be stopped.
Why hasn’t anyone told Mr. Jones that withholding or withdrawal of even IV Artificial Administered Hydration and Nutrition (AAHN) is prohibited by the very law he believes should be repealed?
Mr. Jones testified that over the last month, his wife has since been weaned from the ventilator, only needing assistance “sometimes at night.”

I don’t understand why TRTL repeats that a ventilator tube prevents Mrs. Jones from speaking or eating. Mrs. Jones has a tracheostomy in place (the tube we see in the pictures is a feeding tube). The tracheostomy, even when a ventilator is attached, would not interfere with her ability to speak and swallow, with training.

Breathing assistance, AAHN, and dialysis can all be provided by the 3 facilities – and at least one doctor – that have agreed to accept Mrs. Jones as a patient.
TRTL is using the grief of the Jones family to solicit donations and to lobby for a Bill I’ve also written about, SB 2089, that would require “treatment until transfer.”
In this case, the treatment that is disputed is transfer from in-hospital treatment after 5 months to a lower level facility that is able and willing to provide what Mrs. Jones needs.
Comments are closed here. (I just can’t keep up with all the sites.) Please comment on my Facebook page.

End of life or end of hospital stay?

What a tragic story!

While I only know what I’ve seen online, in my experience, it appears that the dispute about Mrs. Carolyn Jones is over continued hospitalization at this hospital, versus transfer to care at another facility.

(See this television news report.)

I’m the first to say that hospitals are scary places and to sympathize with families struggling to cope with the bureaucracy and protocols. However the current news, press releases, and pro-life blogs are reporting several errors and omissions about Texas’s law and legislation up for consideration in Austin.

The obvious errors in this report include:
1. First. It’s not correct that Mrs Jones will die on Monday, even if the ventilator is turned off at the hospital. She’s not intubated through the mouth or nose. Instead, there’s a tracheostomy and a feeding tube in place. Supplemental oxygen could be provided many different ways, at home or in a nursing home.
2. Mr. Jones has testified at the Texas Senate Health and Human Services Committee meeting (EDIT: the video is here, at 52 minutes in) on 4/10/19 and elsewhere that Mrs Jones had been weaned off the ventilator, needing it only occasionally, at night.
2. She should be able to speak and swallow with training.
3. Texas Advance Directives Act doesn’t require that the doctor declare the treatment be “futile.” Instead, the doctor must declare that he refuses to follow a certain treatment decision that the patient or family demands .
4. Kidney dialysis is paid for by the Federal government, so the problem isn’t only funding.

In my admittedly limited knowledge about this particular case – it appears that Mr. Jones disagrees that it’s time to move from the hospital to home or nursing home, even after 5 months (not 10 days).

At least since 2005, legislation has been introduced at the State to increase the timeframe to as long as a month. Texas Right to Life refuses to agree to anything other than indefinite treatment, with the doctor forced to act against his will, violating his conscience and ignoring his medical judgement.

TRTL has even clashed with other pro-life organizations and Texas’s Catholic Bishops and “primaried” several conservative Legislators, although they are the only Texas pro-life group that opposes the law.

It would be good to add more time – I don’t know of anyone who disagrees. But there needs to be a limit to how long a doctor is forced to act against his conscience. One Bill that was rumored this year would change the “10 days” to 21 days and add a week to the notification period before the Ethics committee meets. Unfortunately, it never got past the Powers That Be.

For more on the ethics of the Texas Advance Directives Act, see this WingRight post.

The most urgent need is communication with families, correcting misunderstandings like those outlined here.

(Edited May 10, 2019 at 12:22 AST, to correct the Link to the testimony of Mr. Jones. BBN)

Emergency: Liberty Right Infringement

Texas Right to Life General Counsel Emily Cook is attacking Texas Medical Association on Facebook, even though virtually every other pro-life, medical, nursing, hospital, and disability group in Texas oppose SB 2089 by Hughes, that would change the “Texas Advance Directive Act, “TADA” will harm patients and attack the right of doctors to refuse to act against our conscience.

Here’s a partial list of organizations opposing SB 2089: Texas Medical Association, Texas Baptist Christian Life Commission Ethics, Texas Catholic Bishops, Texas Nurses Association, Texas Society for Anethesiology, Texas Osteopathic Association, Catholic Health Association, Texas Hospital Association, Baylor Scott and White, Texas Teaching Hospitals, Texas Alliance for Life, Coalition of Texans With Disabilities.
The central question isn’t “10 days” or the actions of a “Committee.” Doctors start the process, and under the law, the Committee can only affirm that his decision is medically appropriate or not.
The question is whether a patient can demand that a doctor be forced against her conscience to indefinitely write orders and provide treatment she believes is not in the best interest of the patient because the patient or family wants it?
The patient is near death and in the hospital, so the doctor can’t morally just “fire” him if there’s a disagreement. We all agree that 10 days isn’t enough time for families, and have tried since 2005 to add days to the process – we had a Bill that would expand the time to a month in 2007. (CSSB 439)
But Texas Right to Life would/will accept nothing but indefinite “treatment until transfer.” They keep demanding lawyers, courts and trials for medical decisions.
This is the issue that caused the break between TRTL and the Catholic Bishops.
It would force Drs to violate our conscience, without compromising with a set, limited time frame.

We’ve worked to fix other problems: Artificially administered food and water, even full IV feedings, can‘t be removed. Texas law didn’t even mention DNRs, but last session, we passed an amendment with explicit procedures and informed consent language.

SB 2089 ends the ability for a doctor to “refuse” medically inappropriate treatment, only allows “recommending,” (while being legally required to act against her conscience, harming the patient, prolonging death and increasing side effects, requiring more treatments.)

There’s no leeway, at all, in the new Bill.

SB 2089 specifically says anyone can file a lawsuit in any Court in the County, the Court can’t charge the patient (or surrogates) any fees, and the judge is required to rule in 5 days.

More doctors will limit the number of older or sicker patients to keep from falling under the dispute process and the Court battle.
Even tertiary hospitals – teaching hospitals and big City referral hospitals – will find that their doctors don’t want to accept patients from outlying hospitals.
It will kill tort reform, because it’s designed to get all these cases into Court.
It’s like the Masterpiece Cakeshop case, only bigger, in my opinion, because if doctors lose here, we lose the right to conscience in everything.

If you believe that even doctors have the right of Conscience, and that infringement of the right not to be forced to act against your will is wrong, please contact your Texas Senator and Lieutenant Governor Dan Patrick and respectfully ask that SB2089 not be brought up.

You can let me know if you disagree on my Facebook page.

Another kind of lawyer joke

“[T]he doctor/bioethics committee thinks the patient should die.” Wesley J. Smith, Esq., Texas Senate Health and Human Services Committee, 4/10/2019 LifeNews.com

Wesley Smith is a rarity among the many lawyers who chased bioethics to the bedside late in the last century: he actually believes in the sanctity of human life and in the right of conscience. I’ve attended and reported on his debates and encounters with proponents of intentional euthanasia. And even happily defended him.

Unfortunately, Lawyer Smith was not above spinning the truth this month when he came from California to once again misrepresent the Texas Advance Directive Act (“TADA,” “the Act,” or “166.___”), an attempt to balance conflicting rights when doctors disagree with a patient or his surrogates about actual medical procedures and treatments that the doctor believes harms the patient.

On April 10, 2019 Mr. Smith gave invited testimony to the Senate Health and Human Services Committee in favor of SB 2089 (Hughes) and
SB 2129 (Creighton). LifeNews.com published part of his testimony online, under the title, “Texas Rule Allows Hospitals to Essentially Euthananize Patients After a 10-Day Notification.”

Mr. Smith doesn’t just contradict multiple Supreme Court rulings since Cruzan (1990) affirming that withholding or withdrawing treatment is not equivalent to euthanasia. Paradoxically, he echoes arguments that anti-conscience activists use to justify abortion on demand, Physician Assisted Suicide and intentional euthanasia by a third party by claiming that the principle of autonomy supercedes “First, do no harm,” or non-malevelence, and the right to conscience.

(You can watch all of Part I and Part II of the April 10, 2019 Health and Human Services Committee meeting addressing SB 2089 by Senator Bryan Hughes and SB 2129 by Senator Brandon Creighton online. Part I includes Mr. Smith’s testimony beginning at 33:00/1:01:10.)

We’ll skip Mr. Smith’s assertion that there is a right to force others to provide everyone medical care in general, not just in emergencies or at the end of life. I’ve covered these assertions and his attacks on the Texas Conference of Catholic Bishops I’m, back in 2007.

Today, let’s just look at his spin on the current version of TADA.

Lawyer Smith uses emotionally weighted terms that aren’t in TADA, such as, “life-extending,” “futile care,” “permitting the institution to force its will on patients and families,” “invidious discrimination,” and “inappropriate care.” He contrasts patient’s “rights” with doctor’s “values,” and is the first that day to raise the specter of doctors willing to kill when patients are “expensive.” And, reflected in the LifeNews.com headline, Mr. Smith flatly says that TADA allows euthanasia – intentional acts to kill patients – equivalent to the administration of injections or medications that he wrote about this week.

As I’ve stated so many times in past WingRight.org and LifeEthics.org posts, TADA doesn’t allow us to remove or withhold care for patients, only treatments that are “medically inappropriate.” There are no futile patients, only futile treatments that cause harm to the patient over and over, without any expectation of reversing organ failure after organ failure.

Mr. Smith also ignores the multiple attempts by the medical and pro-life community and Legislature to improve the law’s timeframe and communication, much as Senator Creighton’s Bill. One example from 2007, SB 439 by Senator Bob Deuell, would have required written notice and an offer of a private ethics consult to take place at least seven days before the hospital committee meeting. That Bill had a schedule for giving the patient or surrogates written information about the dispute process, copies of medical records, and lists of resources. The family would have been given access to the committee meeting, with their own advocates. When the committee agreed that the treatment requested was inappropriate, the family would have receive assistance in searching for7⅞ another doctor or facility for at least another 21 days. I believe that the Bill bogged down in the House because of opposition from Texas Right to Life to any Bill that did not include liability for doctors and the indefinite “treatment until transfer” in this year’s SB 2089.

In the last five minutes of the Part I video, another lawyer, Texas Right to Life General Council Emily Cook, gave us the best clue about the ultimate goal of her organization: “judicial review.

Ms. Cook and Mr. Smith would have every one of these disputes settled by a Court. This is the Texas trial lawyers’ dream: a huge weapon against our State’s tort reform.

Today, the law specifically allows an appeal to a County probate judge when the Committee agrees with the doctor’s decision. SB 2129 allows a request for an injunction in any Court in the County, enabling “judge shopping.” Since it also prohibits the County from charging the patient or his surrogates any fees, the costs would fall solely on the County.

Ultimately, SB 2129 would make it much, much easier to sue the doctor and the hospital, moving Medical decision-making into the courtroom.

Most of the “stakeholders” for patient rights in Texas (including Texas Alliance for Life, Texas Baptist Christian Life Commission, Coalition of Texans With Disabilities, Texas Medical Association, Texas Hospital Association, Catholic Hospital Association, Texas Nurses Association, and the Texas Conference of Catholic Bishops and many others) oppose both of the Bills that Mr. Smith favored. Since SB 2129 would mandate that the County pick up any Court costs and that the judge make his ruling within five days, don’t be surprised if we hear objections from representatives of these parties, too.

So what’s the “joke?”

It could be the ridiculous notion that Lawyer Smith is a mind reader, able to discern the “invidious” motives for the “discrimination” he feels doctors and hospitals routinely practice:

“To fully comprehend the unjust nature of Texas law in this regard, realize that these “futile care” or “inappropriate care” decisions do not terminate treatment because it won’t work, but because it does. It is keeping the patient alive when the doctor/bioethics committee thinks the patient should die.” (Emphasis from LifeNews.com’s transcript.)

He repeatedly comments that physician’s decisions about medically appropriate treatment are subjective and that they (we) might “project their fears and their desires onto the patient” based on our “values,” rather than medical judgement based on repeated, at least once a day examination of the patient, reports by the nurses and staff and our education and experience.

The joke might be that Lawyer Smith volunteered that the indefinite, repeated evaluation and medical decision-making against the medical judgement of doctors would not be “slavery.” I would like to know what Lawyer Smith calls the legal requirement to use one’s body and brain to carry out actions, including writing orders for nurses and other medical staff, against your will.

It might be tragically funny to watch “judicial review” end up with the two sides hiring expert witnesses – doctors – to give the judge opposing views. There’s dark humor in the realization that ultimately the judge would order the original doctor to use her medical judgement to provide treatment – against her best medical judgement.

But the real joke is that “judicial review” risks the unintended consequence of decisions made by judges like the late t Judge George Greer, who Mr. Smith wrote about in this article.

Comments are closed. Please comment on my Facebook page.

Texas Advance Directive Act 2019 Legislature

The Texas Advance Directive Act is being attacked in the State Legislature, again, as it has just about every Session for the last 10+ years. In my opinion, one group is doing the bidding of the trial lawyers to destroy Texas’s tort reform by attempting to force every end of life treatment disagreement into the Courts.
Here’s my explanation of the Act, written in 2016, as an “effort to balance” patients’ rights and the rights of doctors to practice Medicine according to their consciences, using our best medical judgement. And here is an example of a previous attempt to truly improve the Act.
The opponents of TADA would force doctors to ignore their consciences to continue performing procedures and writing orders – for nurses and staff to carry out – against our best medical judgement, while faced with the moral distress of continuing acts that hurt our patient, as organ system after organ system fails, faster than we can compensate, prolonging and increasing his suffering and death.
For example, yesterday, the House passed a useless Amendment to a useless amendment to HB 1504, the Sunset review and reauthorization of the Texas Medical Board.
(22) in complying with the procedures outlined in Sections 166.045iand 166.046, Health and Safety Code, fails to make a reasonable effort to transfer a patient to a physician who is willing to comply with a directive.
Amendment No. 5
Representative Toth offered the following amendment to Amendment No. 4:
Amend Amendment No.4 by Toth to CSHB 1504 on page 3, line 25, between “Code,” and “fails”, insert “willfully”.””
The amendment is useless because doctors don’t handle or arrange transfers between facilities; the hospital social services staff and nurses do. The only possible exceptions might be ER docs in outlying areas, transferring to a larger medical center or a rare phone discussion between doctors about the patient’s course after the two separate staffs have worked out the logistics. Neither of these would apply in the TADA cases.
Importantly, how would the accusation of “willfully fails to make a reasonable effort” be made? Could there be more vague terms in that sentence than “willfully” or “reasonable?” (Especially in light of TRTL’s claim that 60 attempts weren’t reasonable in the tragic case recently ruled moot and dismissed by Texas 1st Court of Appeals, covered here and here.) Is this an attempt to criminalize the actions of doctors, an excuse to sue in a Court of law?
After the amendment passed, one of the lawyer lobbyists paid by Texas Right to Life tweeted a mean little remark:
The lawyer said that doctors who begin the process in TADA “set the 10 day count and sit on their hands.”
I understand that he never had to ask (to order) a nurse to cause pain to a dying patient, but he should understand that doctors don’t “sit on their hands” during the waiting period. We still perform those life sustaining procedures, write orders, and interact with the patient and family.
In order to push their view point they oppose not only other pro-life organizations, but the Texas Catholic Bishops, the Texas Baptists, and Texas Medical Association. Bills such as SB 2129 or SB 2089 would destroy TADA and undermine Texas’ tort reform.
Of course, once in the Courts, the lawyers would have to hire doctors to testify and the judges would decide between the two sides and order doctors to act against their consciences.
That, or lawyers and judges would be placed in the position of practicing medicine: writing medical orders for nurses and staff to carry out.
In the long run, the risk of civil and even criminal liability of caring for patients at the end of life would drive most doctors away from not only intensive end of life care, but increase the risk for any of us who care for trauma, oncology or geriatric patients.

Edit 19 April 2019 BBN: Comments are disabled here. Please comment at my Facebook page, “Beverly Nuckols.” https://m.facebook.com/story.php?story_fbid=10218835564657861&id=1163711361&refid=52&_ft_=mf_story_key.10218835564657861%3Atop_level_post_id.10218835564657861%3Atl_objid.10218835564657861%3Acontent_owner_id_new.1163711361%3Aoriginal_content_id.2226941544065344%3Aoriginal_content_owner_id.110756395683880%3Athrowback_story_fbid.10218835564657861%3Apage_id.110756395683880%3Astory_location.4%3Astory_attachment_style.share%3Apage_insights.%7B%22110756395683880%22%3A%7B%22role%22%3A1%2C%22page_id%22%3A110756395683880%2C%22post_context%22%3A%7B%22story_fbid%22%3A2226941550732010%2C%22publish_time%22%3A1555527649%2C%22object_fbtype%22%3A32%7D%2C%22actor_id%22%3A1163711361%2C%22psn%22%3A%22EntStatusCreationStory%22%2C%22sl%22%3A4%2C%22dm%22%3A%7B%22isShare%22%3A0%2C%22originalPostOwnerID%22%3A0%7D%2C%22targets%22%3A%5B%7B%22page_id%22%3A110756395683880%2C%22actor_id%22%3A1163711361%2C%22role%22%3A1%2C%22post_id%22%3A2226941550732010%2C%22share_id%22%3A0%7D%5D%7D%7D%3Athid.1163711361&__tn__=-R

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