All While Getting Instructions for a Colonoscopy in Idaho.

 I live in Illinois.  I have never been to Idaho.  I am too old for colonoscopies (the ONLY delight of getting old.) So I was surprised to get instructions (be sure to drink the entire bottle)  and preparations for a colonoscopy tomorrow from a hospital in Idaho. Rather than fly out there on the spur of the moment, I called them pretty sure there was some mistake. The nurse was nice but quite flummoxed. Apparently there is another person with my name living in Post Falls, Idaho and who is a patient of Dr. Sarkis at Northwest Specialty Hospital. My email address matched the one they had on file for some bizarre reason (my guess is human error) and my heart (or colon) goes out to whomever else has my name.

That put me in a particularly satirical mood as I read about another of Trump's revenge schemes that will come back to haunt the United States. 

 Brace yourselves, everyone: it turns out Donald Trump’s beautifully orchestrated revenge tour against the global order is having a few completely unforeseen side effects. Who could have possibly predicted it?

For decades, the European Union blissfully outsourced 96% of its personal credit transactions to Visa and Mastercard. Why worry about the fact that American entities controlled literally every swipe, tap, and dip? After all, America was the world's friendly, benevolent superpower! What could possibly go wrong?

Enter Trump, armed with a Twitter account (now Truth Social) and a dream. Between slapping tariffs on everyone like they were bumper stickers and treating NATO and the UN like optional country club memberships, he really shook things up. But the real "aha!" moment for the rest of the world came in September 2020. That was when the first Trump administration gracefully landed ICC Chief Prosecutor Fatou Bensouda and senior official Phakiso Mochochoko onto the Specially Designated Nationals (SDN) list. Because nothing screams "leader of the free world" quite like using the Office of Foreign Assets Control (OFAC) to turn off an international judge's credit card.

Enter The Magical Disappearing Bank Account

The mechanism here is truly a work of art. Thanks to the absolute chokehold U.S. clearinghouses have on global finance, getting on the SDN list is the ultimate magic trick. Presto! Your Visa and Mastercard stop working, your PayPal evaporates, and you can forget about using Google or Amazon. European banks, absolutely terrified of getting caught in the crossfire of American secondary sanctions, will freeze your accounts just for looking at them funny.

Naturally, Trump doubled down with Executive Order 14203, generously targeting any ICC officials, judges, or prosecutors daring to investigate U.S. personnel or close allies (God forbid anyone look into actions in Palestine or Afghanistan). Asset freezes, travel bans, absolute blocks on getting "funds, goods, or services"—it was an incredibly subtle and nuanced way of punishing people for having opinions Trump didn’t care for.

According to legal experts on Verfassungsblog—who clearly just don't appreciate top-tier bullying—this "Sanctioning of Law" was an "unprecedented targeting of independent judges." Poor things. One minute you're upholding international law, the next you can't even pay for a Netflix subscription or order a pizza because your digital existence has been revoked.

Those nasty unintended consequences:

Shockingly, Europe didn't look at this and think, "Wow, we want more of that!" Instead, they are now sprinting toward "strategic autonomy."

To protect themselves from the whims of whatever mood the U.S. President wakes up in, the EU is rolling out some brilliant new coping mechanisms:

• The "Buy European" Initiative: Forcing public procurement to favor domestic industries in defense, healthcare, and IT. Because apparently, relying on an unstable superpower for your military tech is suddenly "bad strategy."

• The Great Software Migration: Ditching proprietary American tech to cozy up with Linux and the sparkling new "Euro-Office" suite. Goodbye, Microsoft Clippy; hello, European sovereignty. I wonder what Co-Pilot thinks of that?

• Wero: The European Payments Initiative's brand-new domestic payment network, explicitly designed to tell Visa and Mastercard to take a hike. And it's cheaper, too.

And Europe isn't the only one backing away slowly. Canada—historically America’s polite, long-suffering upstairs neighbor—is frantically building its own internal online payment infrastructure. It will be located solely in Canada, entirely out of reach of tiny, Twitter-happy American fingers. Down in South America, Brazil is doing the exact same thing, except cheaper and faster, causing Visa and Mastercard to actively hemorrhage business in one of their largest markets.

Confidence in the United States as a stable global partner has been entirely lost, and it’s probably never coming back. But hey, look on the bright side! All of these global initiatives are successfully eroding U.S. dominance in finance, software, and defense.

So, thanks, Donald. Truly a masterclass in diplomacy. Way to Make America Great Again.

 

Sources:

 

https://www.youtube.com/watch?v=7y0GaMvM0SA

 

“EU Launches Wero to Rival VISA and Mastercard.”  London Daily, Monday June 8, 2026.     https://londondaily.com/eu-launches-wero-to-rival-visa-and-mastercard

 

“Die Sanktionierung des Rechts” Kai Ambos.  Verfassungsblog on matters constitutional. https://verfassungsblog.de/die-sanktionierung-des-rechts/

 

[2]  “Microsoft accused of leaking Dutch civil servants' names to U.S. government” NL Times. Friday, 22 May 2026. https://nltimes.nl/2026/05/22/microsoft-accused-leaking-dutch-civil-servants-names-us-government

 

“F-35 debate intensifies across Germany and Europe” Harici, March 26, 2025.   https://harici.com.tr/en/f-35-debate-intensifies-across-germany-and-europe/

 

“Europe Is Breaking Up With Visa and Mastercard — and It’s a $24 Trillion Problem” by Nick Staunton. April 22, 2026 European Business Magazine. https://europeanbusinessmagazine.com/europes-24-trillion-breakup-visa-mastercard/

 

Should Canada Build Up Alternatives to Visa and Mastercard?

The US controls the vast majority of online payments. It's a problem. by Vass Bednar. The Walrus: Canada’s Conversation. https://thewalrus.ca/why-your-credit-card-is-a-national-security-threat/

The Pentagon decides to "jailbreak" weapon systems software.

I have long been a fan of open source software and the GNU Public License. [1] The GNU General Public License (GPL) is a free software license created by the Free Software Foundation that grants users four essential freedoms: to run the program for any purpose, to study and modify the source code, to redistribute copies, and to distribute modified versions. Its defining characteristic is "copyleft," which requires that any derivative works or modifications distributed to others must also be licensed under the GPL, ensuring that the software and its derivatives remain free and open-source. This viral provision prevents the proprietary appropriation of GPL-licensed code while promoting collaborative development and user freedom.

That license thrives in the Linux world -- note that it has enabled companies to use Linux for servers and now more than 95% of the servers in the world run Linux. Most companies, in a mistaken effort to maximize profits, copyright and protect software for their products, including cars, trucks, tractors, kitchen appliances, phones (with the exception of Android which is open source and changed in numerous ways without penalty), etc.  This often leads to interoperability problems.  It's not much of an issue when your refrigerator can't talk to a different brand of freezer; it becomes much more serious when you are in the midst of harvest and your John Deere tractor throws a software code that you can't fix and must wait days for a JD software engineer to come fix because they won't give you the right or the information to repair your own equipment. (Hence right-to-repair legislation.)

It's even more problematic in the defense industry. Many defense contractors develop closed, proprietary communication protocols and data formats to protect intellectual property and maintain competitive advantages. This creates "walled gardens" where a missile guidance system from Vendor A cannot easily communicate with a radar system from Vendor B.  It also "locks" in the purchaser of a weapons system to the manufacturer for updates, etc.

Recent efforts of the Trump administration to distance itself from traditional allies, like NATO have caused many of those countries to reexamine proposed purchases of U.S. defense systems. For example allies operating the F-35  have expressed significant concern regarding the potential existence of "kill switches" or remote disablement capabilities embedded within the aircraft's proprietary software, fearing that the United States could theoretically deactivate the jets remotely in the event of geopolitical friction or unauthorized use. These worries stem from the fact that the F-35's source code is largely closed and controlled by Lockheed Martin and the U.S. Department of Defense, meaning partner nations cannot independently audit the software for such backdoors.  Or, the U.S. could simply refuse to provide software updates to the F-35 which would degrade or even the F-35's capabilities.

That's why it was gratifying to read a recent article about "Operation Jailbreak". Army Secretary Dan Driscoll confirmed that the military launched its largest-ever hackathon at Fort Carson, Colorado. Defense contractors, engineers, and Army personnel worked together to "jailbreak" proprietary code blocks, forcing older and newer weapons systems to communicate in real time. Historically, defense procurement incentivized contractors to protect intellectual property, creating isolated, vendor-specific "walled gardens." Consequently, radars from one manufacturer could not natively share data with interceptor missiles or cameras from another.

Driven by the threat of cheap, $20,000 Iranian Shahed drones, the U.S. military could no longer afford to use million-dollar interceptors inefficiently. By breaking proprietary software locks, the Army successfully linked legacy radars and newer cameras to track and engage drones dynamically.  The inspiration came heavily from Ukrainian forces. During a visit to Germany, Driscoll witnessed Ukraine's integrated "Delta" system—a platform cobbled together on a fraction of America's budget that seamlessly aggregated data from diverse battlefield sensors into a single interface.

The operation marks a significant shift in Pentagon philosophy, prioritizing immediate frontline interoperability and the "right to integrate" over strict corporate intellectual property boundaries. The hackathon now allows the Army to integrate new systems into command and control structures to sync with radars and sensors that previously couldn't communicate with each other. There's also mention of deployed "jailbroken tech" being sent to the Middle East as part of the ongoing effort.

Score one for open source, the free software movement, and hackers.

[1 ]https://www.gnu.org/licenses/gpl-3.0.en.html

SOURCES

"Army Hackathon Delivers Rapid Software Upgrades to Deployed Forces"   https://sentinelroger.com/article/army-hackathon-delivers-rapid-software-upgrades-to-deployed-forces

Lawrence, Drew F. "Operation Jailbreak: the Army’s massive push to hack its own systems and make them talk to each other   " https://defensescoop.com/2026/05/29/operation-jailbreak-the-armys-massive-push-to-hack-its-own-systems-and-make-them-talk-to-each-other/

Perez, Lisbeth. "Army Pushes First ‘Jailbroken’ Defense Systems to CENTCOM  ". https://www.meritalk.com/articles/army-pushes-first-jailbroken-defense-systems-to-centcom/

U.S. Army Public Affairs. "Army and defense sector announce, 'Right to Integrate' hackathon sprint for shared technology  ."  https://www.army.mil/article/292189/army_and_defense_sector_announce_right_to_integrate_hackathon_sprint_for_shared_technology

 

Review: Run to Failure: BP and the Making of the Deepwater Horizon Disaster by Abraham Lustgarten

 The Pinto, introduced in 1971, was designed to compete with imported cars. Unfortunately, it featured a fatal design flaw: the gasoline tank was placed so that it could burst into flames in rear-end crashes, even at speeds as low as 20 to 30 mph. Ford estimated the move would cost $11 per car. But in the infamous “Pinto Memo,” Ford determined it would cost 60% less to pay death benefits from accidents than to recall and fix the 12 million cars. Additionally, Ford failed to learn from the public relations backlash it faced after the release of the memo, which revealed that the company prioritized profits over human life.  BP did not learn anything from that lesson.

Following a rather harrowing recapitulation of the Deepwater Horizon explosion, the author goes into a detailed explanation of why BP was in the mess that it was and its inability to drill safely. They were in a difficult position, as the British government had owned a large part of the company until Margaret Thatcher decided to sell 30% of BP's shares into the market. This decision coincided with the 1988 market crash, which greatly decreased the value of their stock. At that time, Americans did not have the foresight to purchase BP's shares and initiate operations, but the Kuwaiti government took advantage of the opportunity. Kuwait bought up 22% of BP's available stock. Then we had the Exxon Valdez accident. And even though that was an Exxon problem, apparently the skipper of the ship was drunk, which was a real problem. BP was not ready for a cleanup. The American public was not willing to drill in the Alaskan wilderness, and hopes of opening new oil fields were crushed when BP was running out of oil. John Browne’s rise to the chairmanship of BP probably saved the company, but in the process led to a diminution of emphasis on maintenance and safety and a change in the culture.

All the world's biggest private oil companies were denied access to the best reserves in the Middle East, Venezuela, and North Africa—at least 75 percent of the world's total oil supply. British Petroleum may have suffered the most, but the crisis forced the industry to rethink its survival strategies and sparked a competition for growth and diversification of income sources. One way was to find security in becoming a global corporate conglomerate, this being the prevailing thinking of the day. The idea was that multiple, unrelated revenue streams would offset the volatility of oil, which appeared likely at the time.

But at Alaska and every other aging British Petroleum property, managers faced a paradoxical task: Make more money on a per-barrel basis even as the number of barrels produced diminishes, daily operating expenses remain more or less constant, and the equipment needed to do it requires more maintenance and larger investments. The trends were working against each other. Browne's management acknowledged this paradox with a concession: management should not seek to produce more oil at lower cost in Alaska but should seek to maintain "lifting costs" or to produce the same amount of oil at the same cost . Browne was not shy about saying he wanted British Petroleum to be a global player in the oil industry. He had a better moral motive as well.

Browne wanted, singlehandedly, to change the public’s view of the oil business, to make British Petroleum the antithesis of Big Oil, to answer the industry’s critics. He was referring to Exxon’s environmental record at the time. “Now the industry was judged by its worst member,” he wrote, referring to the least reputable company in the sector. Then he began talking about things no oil executive had ever talked about. The oil industry should be thinking of environmental sustainability. Oil companies could and should do something about climate change. He denounced the old oil business as greedy and environmentally insensitive, attempting to distance himself from it, as if claiming moral superiority could protect him from public suspicion. And he’d often talk as if the problems were very separate from British Petroleum, and that his company wouldn’t do any of those things. He promised to take the message back to impact the culture in the operations of BP.

Browne expanded the company through multiple mergers, but as is common with such endeavors, a severe case of mergeritis ensued. This led to a need for widespread cost-cutting to pay down debt and maintain the stock price. According to Pratt, BP did not have the same strong engineering emphasis as Exxon. Instead, BP focused on vague goals like being "green" and maximizing profitability. The company's constant emphasis on saving money, along with bonuses for achieving those savings, made it difficult to sell the idea of operational rigor to its employees. BP was experiencing classic mergeritis in its efforts to increase revenue to pay off debt and reduce expenses. As a result, most of the maintenance budget was severely cut. Additionally, there was a significant disconnect between budget personnel and operational staff. Engineers were typically excluded from budget discussions, and their recommendations were often disregarded in attempts to keep the stock market satisfied and to present a more favorable image of the company than was warranted. Pressure was immense. An email from a manager made this clear: "I want to see what it will take in terms of actions and risks and mitigations to those risks to reduce your LE [lower estimate] by 1 million bucks by Wednesday morning," wrote Woollam's boss. Until cuts could be identified within the program itself, reductions would come from managers’ salaries.

The result was an almost complete reduction in maintenance. The Texas City refinery was the perfect example of the result: there was a terrible explosion there because of all the deferred maintenance in order to keep the bottom line looking reasonably healthy. [1]

In the meantime, they had to deal with possible debarment from the EPA (meaning they would not qualify for more government contracts) . The EPA's representative assumed, based on interviews with BP managers, that the problems at Prudhoe Bay were one-offs.

Following a string of serious environmental violations in Alaska, where BP had large oil reserves, which nearly derailed several major mergers, Browne had BP on a sound footing but still needed to gain access to more oil reserves. The Gulf of Mexico was the logical choice, with one of its new partners experienced with drilling there.

But little had changed in the Gulf by 2010. BP’s corporate culture prioritized short-term profit maximization over safety investments, driven by shareholder demands typical of publicly traded companies. Browne’s replacement, CEO Tony Hayward, cut maintenance budgets and eliminated management redundancies even while hazards were rising. Their spill response plan was a miserable failure, plagiarized from NOAA websites with unrelated animal safeguards (sea lions and walruses didn’t inhabit Gulf waters) and even identified a marine biologist who died five years earlier. That was part of a broader pattern in which BP did not communicate the notion that safety investments were part of a long-term strategy, but rivals such as ExxonMobil were better at communicating that message.

It was hard to balance hydrostatic pressure between the well and the surrounding geology in the Gulf of Mexico. Drilling companies used heavy mud, a specific mix of substances, to maintain the balance. But the ground was so weak that too much weight could break rocks and make them fall. Despite being aware of these risks, BP chose to disregard industry best practices. For example, they used cheaper steel casing against advice, hired fewer centralizers than suggested, used only half of the recommended cement in a mixture that wasn't reliable, and didn't use a cement bond log to test the cement job. Multiple times, the Macondo well had lost circulation, which was already a problem. However, BP kept taking these cost-cutting steps that made the risk of a blowout higher. One of the crews hired to check the well's safety wouldn't stay on the platform when BP chose not to test. The result was the blast and the terrible oil spill.

*******************

[1] Then another explosion happened in March 2026 after BP sold the refinery off. The 2026 Valero Port Arthur refinery explosion is notable for its dramatic visual impact and rapid containment with no loss of life. The March 2026 incident sent towering plumes of smoke and flames into the sky, caused structural vibrations felt for miles and led to a temporary shelter-in-place order for residents in western Port Arthur . Although the explosion was severe and the immediate disruption to the local community was considerable, authorities confirmed there had been no injuries and the fire was extinguished within 24 hours, allowing for the quick lifting of safety orders.

The 2005 BP Texas City refinery explosion was an epic failure of safety protocols with a horrific human toll. The blast was triggered by the ignition of a hydrocarbon vapor cloud in the isomerization unit. It killed 15 workers and injured more than 180 others, making it one of the deadliest industrial accidents in U.S. history. The 2005 disaster revealed deep organizational and technical neglect, resulting in massive fines, criminal charges, and a fundamental overhaul of BP’s safety culture that ultimately helped lead to the divestment of its North American refining assets.

The culture of impatience and intolerance for any disruption to corporate momentum appeared to be intensifying. Workers observed the behavior of their leaders, who, despite advocating for safety and environmental responsibility, were actually motivated by quotas, budgets, and quarterly results. According to the workers, these values began to reverberate throughout the organization. Technicians and mechanics, facing risks in the oil fields, became more inclined to protect their own interests and ensure steady paychecks rather than take the necessary precautions to thoroughly inspect potentially hazardous equipment that was often neglected.

[2] I have long been interested in the effects of mergers. A search on changes in oil refinery ownership shows that sudden changes in control, like when a refinery is privatized or bought out, can put safety systems under a lot of stress. During these changes, set maintenance schedules (called TAM cycles) are often thrown off, which can put equipment, instruments, and alarm systems at risk. Literature says that when new owners put short-term profits or streamlining operations ahead of long-term dependability, the "safety barriers" that protect workers can weaken. This makes it more likely that there will be unexpected shutdowns, equipment failures, and serious accidents. This fits with what was learned from the BP Texas City disaster in 2005, where changes in the way the company was run and efforts to cut costs were blamed for the terrible accident.

A study titled "Examining Organizational and Safety Culture Causes of the BP Texas City Refinery Explosion" (available via ResearchGate) details how the pressure to cut costs post-merger led to a breakdown in "human-factors engineering principles." It highlights that when maintenance is treated as a variable cost to be minimized rather than a safety imperative, the risk of catastrophic failure increases exponentially.

Additional Reading:

Andrew Hopkins is a sociologist in Australia specializing in the study of how organizational behavior and structure affect safety and regulations.

Hopkins, A. Failure to learn: The BP Texas city refinery disaster. Lightning Source, 2008.

Hopkins, A. Disastrous decisions: The human organisational causes of the Gulf of Mexico blowout. 2012.

Hopkins, A. Failure to learn the BP Texas city refinery disaster. 2015.

Hopkins, Andrew. "'Safety Case Regulation Post-Macondo' at Piper 25." YouTube. n.d. https://www.youtube.com/watch?v=Vg1ZRHH-RH4. [Macondo was the official name of the Deepwater Horizon installation.)

Hopkins, Andrew. "Working Paper 87." U.S. Chemical Safety and Hazard Investigation Board | CSB. Accessed May 25, 2026. https://www.csb.gov/assets/1/7/workingpaper_87.pdf.

Kirwan, B., A. Hale, and A. Hopkins. Changing regulation: Controlling risks in society. Elsevier, 2002.

Videos:

"BP Texas City Explosion." YouTube. n.d. https://www.youtube.com/watch?v=ti9YfdXqbjs.

The Shadow of the Comstock Act: 19th Century Obscenity to 21st Century Jurisprudence

The recent Supreme Court’s involvement in the regulation of mifepristone has significantly disrupted the current legal landscape of reproductive autonomy. In FDA v. Alliance for Hippocratic Medicine, the Court focused on whether the anti-choice medical groups had the right to challenge the Food and Drug Administration’s (FDA) easing of mifepristone access, deciding they lacked the real injury needed to do so. But this unanimous procedural decision masks a major ideological divide that emerged earlier in the litigation. Justices Alito and Thomas signaled their skepticism of the current administrative order during the first stay in 2023. Justice Alito questioned the FDA’s expertise in determining safety, but Justice Thomas’s concurrence was a more basic constitutional argument, saying that the doctrine is not rooted in the Constitution and allows groups to “spend their way into standing” without being directly harmed. This judicial reawakening suggests that the Court’s standing obsession is a strategic delay, a tactical pause before a wider textualist confrontation with the substantive statutory issues that leapfrog procedural barriers to the heart of federal power. He has more recently called the manufacturers of mifepristone criminals and part of a "criminal enterprise." [1]

A remnant of the nineteenth-century “moral militia” serves as the statutory weapon at the heart of this escalating conflict. The Comstock Act of 1873 was born of the fervor of the Second Great Awakening, a period of evangelical crusading to make American law a vehicle for Christian teaching. The Comstock Act was a radical break with the traditions of the ancient world. In Greece and Rome, and even in Colonial America, sexual expression was generally accepted as a natural part of human experience, not subject to legal concepts of "obscenity" or "sin." However, with the industrialization and urbanization of the 1840s, the Young Men’s Christian Association (YMCA) recorded urban “vice” as a “moral Maelstrom.” Anthony Comstock, a zealous anti-vice crusader and YMCA inspector, pushed for the 1873 Act. He cautioned that obscenity was a "hydra-headed monster" that was corrupting the youth. The resulting legislation declared any article “intended for producing abortion” or preventing conception as “nonmailable” obscenity, giving the Postmaster General vast power to censor the mail and effectively limiting adult access to any material considered inappropriate for an impressionable child.

As social mores evolved into the early twentieth century, the judiciary began to shy away from the draconian literalism of “Comstockery,” adopting a “rule of reasonable construction” to reconcile Victorian morality with modern medical practice. This judicial safeguard developed when the courts perceived that strict enforcement of the Act would dangerously frustrate legitimate healthcare. But the 1874 Congress itself planted the textual seed for this narrowing, with its use of the term “unlawful abortion” in the Tariff Acts, suggesting the statute did not reach all medical procedures. In the landmark cases of Youngs Rubber Corp. v. C.I. Lee & Co. (2d Cir. 1930), Davis v. United States (6th Cir. 1933), and United States v. One Package (2d Cir. 1936), the federal courts determined that the Act did not absolutely prohibit the mailing of contraceptives or abortifacients. Instead, they read a “knowing” or “unlawful intent” requirement into the law, finding that the Act only prohibited distribution where the sender intended the items to be used for a purpose prohibited by law. This refinement was celebrated as a legislative sanction in 1971 when Congress repealed the Act’s references to contraception but left the abortion provisions intact—a move long understood to preserve the “Rule of Reasonable Construction” for professional medical use.

The  Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade has injected new life into efforts to revitalize a literalist, textualist interpretation of the Comstock Act. This effort could turn the Act from an anachronistic obscenity law into a de facto national ban on abortion. Legal scholars Greer Donley and Patricia Zettler have criticized this “resurrection,” emphasizing the unprecedented challenge. Indeed, at oral argument in the AHM litigation, plaintiffs’ counsel conceded that they could not identify a single “analogue” in which a court intervened to take an approved drug off the shelf after decades of safe use. In addition, the public debate has warped subtle and complex administrative issues. While critics refer to the 2000 approval of mifepristone as an "accelerated approval" under Subpart H, which typically applies to drugs approved based on indirect measures, the FDA highlighted a specific part of Subpart H that focuses on “restrictions to ensure safe use.” This distinction is important to the “senior scholar" view as it emphasizes that the agency was taking a safety-based regulatory route rather than a speed-based route.

Modern-day conflict further complicates the Department of Justice’s “manifold uses” logic, arguing that the fact that these drugs are used lawfully in myriad ways in every state, including for miscarriage management, gastric ulcers, and life-saving procedures, means that simply mailing the medication cannot establish the “unlawful intent” necessary under 18 U.S.C. § 1461. This creates a uniform national baseline that defeats the presumption of illegal intent even in restrictive jurisdictions. But recent upheavals in administrative law by the Supreme Court endanger the stability of that interpretation. Overruling Chevron in Loper Bright Enterprises v. Raimondo removes the FDA’s exclusive expertise in interpreting ambiguous statutes, and the ruling in Corner Post, Inc. v. Board of Governors opens the door to new challenges to the original 2000 approval that had been thought to be barred by the six-year statute of limitations. These changes provide a roadmap for states to argue that the FDA’s interpretation of its authority under Subpart H is incorrect and not entitled to deference.

The next phase of this litigation will likely be a tension between a textualist “resurrection” of the 1873 Act and the First Amendment protections of medical information. The Miller test for “obscene” material requires that the material be patently offensive and have no serious literary, artistic, political, or scientific value. Medical information relating to access to abortion obviously fails these prongs, which implies that a broad Comstock prosecution would have significant constitutional issues. Moreover, requiring the FDA to conduct Comstock Act analyses would be an extraordinary expansion of “hard look” review, requiring an agency to interpret a criminal statute administered by the Postmaster General—a task that lies well outside of its scientific expertise. As the judiciary continues to move toward an attitude of administrative skepticism, the key question is whether the "Rule of Reasonable Construction" can survive a court increasingly inclined to prefer the plain, nineteenth-century text of the "moral maelstrom" to a century of settled medical and legal practice.

Sources:

[1] https://www.newsweek.com/supreme-court-mifepristone-alito-thomas-dissent-11952809  

Dorf, Michael. Comstockery and Popular Constitutionalism. https://www.bu.edu/bulawreview/files/2025/01/DORF.pdf

Dorf, Michael.     https://www.dorfonlaw.org/2026/05/the-mifepristone-dissents-by-justices.html 

Noah, Lars, Medication Abortion and the Mails: The Ghost of Anthony Comstock Rides Again? (February 02, 2025). Georgia St. U. L. Rev., vol. 41 (forthcoming May 2025), Available at SSRN: https://ssrn.com/abstract=5121876 or http://dx.doi.org/10.2139/ssrn.5121876

Siegel, Reva B. and Ziegler, Mary. Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It (November 24, 2024). Yale Law Journal, Forthcoming, Yale Law School, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=4761751

Stone, Geoffrey. Sex and the First Amendment. The Long and Winding History of Obscenity Law. University of North Carolina School of Law Scholarship Repository. https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1267&context=falr

 

 

Review: Jean-Marie Crocker memoir.

Why read this? I ran across Crocker's name from the Ken Burns documentary on Vietnam.  She struck me as an articulate, intelligent mother trying to understand and explain the tragedy of her son's death in Vietnam. I looked her up and discovered this memoir and decided to read it. It's available online at https://tile.loc.gov/storage-services/service/vhp/0111/011174/pd0001.pdf

In it, readers are drawn into the inner spaces of a mid-century American family, struggling with the terrible implications of global strife. The tale serves as both a thorough biography of her eldest son, Denton “Mogie” Crocker Jr., and a melancholy meditation on the idealism and tragedy that dominated the Vietnam era. Crocker’s prose is dignified and calm, her memory relentless; together they make what could have been a straightforward history into a raw study of love and sorrow.

It opens by describing the context of post-war America, a time of seemingly great wealth, but yet one fraught with the existential fears of the Cold War. Mogie (b. 1947) is described as a child of exceptional intelligence and sensitive nature. Born in Saratoga Springs, New York, he grew up with a fascination for the heroic stories of the past, especially the Civil War, and was well aware of the tensions gathering in his own day. Mogie is portrayed by Crocker as a young guy who felt a deep, almost religious sense of his duty to the country, a conviction that often ran counter to the usual light-hearted attitude of the youth of the 1960s. That friction between the young man’s inner tenderness and his imagined martial commitment is the tragic heart of the book’s early chapters. He was a grade skipping, honors student of a boy, but he thought his actual vocation was to stand up for the principles he read about in his history books.

Things come to a head when Mogie, still a teen, wants to join the Army. Mogie’s parents were reluctant to start with and he had clear academic potential, but he felt talk was cheap and he needed to stand up for his ideas. He ran away from home but left a letter expressing his concern for the Vietnamese and the domino theory. Eventually he got his parents to sign the papers and joined up on his seventeenth birthday in June 1964. Crocker writes on the odd experience of watching her son become a soldier. His letters from basic training and airborne school at Fort Campbell are the writings of a youngster trying to become a man, documenting the difficulties of military life with a mix of pride and fatigue. He wrote home about the rigors of jump school and the discipline expected of a paratrooper, displaying a new maturity that both amazed and worried his mother. Mogie’s idealism began to collide with the hard realities of counter-insurgency warfare when he was deployed to Vietnam as part of the 101st Airborne Division, the Screaming Eagles.

Using Mogie’s own letters, the narrative presents two points of view: the mother’s nervous waiting at home, and her son’s growing fatigue in his letters from the field. Mogie’s depictions of the heat, the leeches and the faceless adversary give a harsh, no-holds-barred perspective at the ground combat in 1965 and 1966. He was often disappointed by the nature of the fight, the difficulties in recognizing the enemy and the seeming apathy of some of the people they were assigned to protect. But even in the forest he was a scholar at heart, and he asked his mother to send him copies of books and magazines so he might hold on to the intellectual life he had left behind. He requested everything from classic books to current affairs journals, revealing an intellect that would not be confined by the trappings of war.

The emotional climax of the narrative comes in the spring of 1966. Mogie had seen his share of fighting, and had survived the grueling months of his first tour. But the severity of the fight was mounting. His intelligence and education had given him options to pursue safer assignments but he always stayed with his group in the field. Mogie was killed in battle on his nineteenth birthday, June 4, 1966, during a search-and-destroy mission in Kontum Province. Crocker’s account of hearing the news, the green vehicle and the two military men arriving at their home, is devastatingly clear and takes away all romanticism about war.

The rest of the narrative chronicles the long, agonizing aftermath, including the repatriation of his body and the funeral in Saratoga Springs, and the family’s struggle to make sense of a loss that seemed both inevitable and incomprehensible. Crocker writes of how loss was in every moment, from the silence at the dinner table to the painful chore of going through Mogie’s stuff. She also considers the greater social background of the day, as the nation became more and more divided over the very war that had taken her son. It is a memoir not merely of death, but of a mother's enduring love and the ability of memory to bridge the gap between the living and the dead.

Son of the Cold War is an outstanding accomplishment in the memoir genre. Jean-Marie Crocker does what many historians do not: she rescues an individual life from the cold statistics of a muddy war. She writes with a commendable discipline; she never succumbs to sentimentality, but trusts to the strength of primary materials and her own acute observations to give the measure of her anguish. The book’s greatest asset is its honesty. Crocker does not shy away from the complexity of Mogie’s character, his stubbornness, his occasional arrogance and his deep-seated insecurities. By making him a real human being, not a polished image, she has made his death feel like a personal loss to the reader.

In addition, the memoir is a strong denunciation of the Cold War state of mind that required such sacrifices of its young people. Never overtly political, the contrast of Mogie’s youthful dreams with the tragic reality of his death speaks eloquently about the distance between geopolitical policy and the families that pay for it. The memoir asks readers to reflect on the human cost of decisions on foreign policy and the permanent scars they leave on the domestic front. In short, Jean-Marie Crocker has given her son a legacy as permanent as any monument. Son of the Cold War is a must read for anybody interested in the human aspects of the Vietnam War.” It is a story of a youngster who aspired to be a hero and a mother who refused to let the world forget who the boy really was. As she puts it, Mogie Crocker is no longer a name on a wall, but a genuine, breathing presence whose narrative continues to echo decades after his last mission. 

As she writes in her preface:  

Time and scholarship are revealing misconceptions and errors that can only altar the future.  As we continue to ponder the sacrifice of young men like our son, measured against the confessed flaws and misjudgments of our leaders, we may better understand the conflicts of reason and emotion that continue to surround Vietnam.

Mogie was born June 4, 1947. My birthday was June 3, 1947.  His parents wouldn't permit him to have a toy gun; neither would mine. Both sets of parents were academics. What explained the difference in his reaction to the conventional wisdom and governmental "brainwashing" and my skepticism? Was it my Quaker schooling?  I opted for conscientious objection; he felt obligated to join the army.  Why the difference?

His mother died in 2020 aged 97.