The World and Everything in It - March 21, 2022

MARY REICHARD, HOST: Good morning!

Should a physician go to prison for prescribing opioids? The Supreme Court considers the question.

NICK EICHER, HOST: That’s ahead on Legal Docket.

Also today, the Monday Moneybeat. The Fed sending interest rates higher, a bid to slow down inflation. I’ll ask economist David Bahnsen to explain how that works.

Plus the WORLD History Book—today, an invention that makes modern city life possible.

REICHARD: It’s Monday, March 21st. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

EICHER: And I’m Nick Eicher. Good morning!

REICHARD: Up next, Kent Covington with today’s news.

KENT COVINGTON, NEWS ANCHOR: Zelensky condemns Russian ‘war crimes’ in Mariupol » Ukrainian leaders say Russia’s violent siege of the port city of Mariupol will go down in history for war crimes committed against citizens.

Ukrainian Ambassador to the United States Oksana Markarova.

MARKAROVA: We're hearing all these horrific reports about targeting the school, the art school with four hundred people hiding in the basement. And what happens in Mariupol is- is an epitome of war crime.

It’s unclear how many injuries or deaths resulted from the bombing of that art school.

The people of Mariupol have suffered the worst of the war. If Russia fully captures the city, it would link Crimea, which Russia annexed in 2014 to eastern territories controlled by Moscow-backed separatists.

And attacks continue on other Ukrainian cities, including the capital. The mayor of Kyiv, Vitali Klitschko, is heard here through a translator…

KLITSCHKO: There is a kindergarten nearby, and here is a large crater. The building is destroyed. The windows are blown out completely, cars are burned down.

The United Nations says 10 million Ukrainians have had to flee their homes. Most are taking refuge elsewhere in Ukraine, while 3.5 million refugees have fled the country.

Maryland, Georgia suspend state gas tax » Gas prices, nationally, are still hovering around an all-time high at $4.25 per gallon on average. But prices are down significantly in at least two states. WORLD’s Josh Schumacher has more.

JOSH SCHUMACHER, REPORTER: In Maryland, drivers are getting a little relief at the pump. Republican Gov. Larry Hogan on Friday announced a bipartisan measure to pause the state’s gas tax for 30 days. That’ll save drivers about 36 cents per gallon for regular unleaded.

Fellow Republican Governor Brian Kemp announced a similar gas tax freeze in Georgia through the end of May. That should lower gas prices by 29 cents per gallon there.

And governors and lawmakers in several other states are pushing similar measures.

But not all governors back the idea. Michigan Gov. Gretchen Whitmer, a Democrat, says she’ll likely veto a bill to pause the state gas tax for six months. She’s calling for the federal government to suspend the national gas tax instead.

Reporting for WORLD, I’m Josh Schumacher.

Fauci: New virus strain could lead to more cases but wave unlikely » A new sub-variant of the COVID-19 omicron strain is spreading in Europe and Asia.

Top White House medical adviser Anthony Fauci told ABC’s This Week it could spark an uptick in new cases here in the United States.

FAUCI: It has a degree of transmission advantage over the original omicron, but not a multi-fold advantage. So it’s about 50 to 60 percent more transmissible.

He said it could take over as the dominant strain here, but he does not expect a major surge or a second omicron wave.

Currently new cases stand below 30,000 per day. That’s the lowest level since last July.

U.S. Surgeon General Dr. Vivek Murthy says there is no reason to be worried about another wave, but there is every reason to be prepared.

MURTHY: Our focus should be on preparation, not on panic. And if we get people these tools, vaccines, boosters, treatments, then we can actually get through waves that may come and go.

Murthy said vaccines remain the first line of defense, but he added that new COVID treatments could help prevent another future spike in hospitalizations and deaths.

Trains halt across Canada as union workers strike » Thousands of rail cars are standing still in Canada today with more than 3,000 CP Rail workers on strike.

The union and CP Rail blamed each other for a work stoppage Sunday.

The dispute will impact supply chains that are already being hammered by ongoing effects of the pandemic and newer challenges related to the invasion of Ukraine.

All the disruptions have pushed inflation to a three-decade high.

CP and the union have been negotiating since September, with wages and pensions a sticking point.

I'm Kent Covington. Straight ahead: The Supreme Court considers whether a physician should go to prison for prescribing opioids?

Plus, an invention that makes modern city life possible.

This is The World and Everything in It.

MARY REICHARD, HOST: It’s Monday, March 21st and we thank you for listening to The World and Everything in It from WORLD Radio! Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.  So it was fun on our radio team meeting on Friday to see Myrna rocking her new ball cap with The World and Everything in It logo.

REICHARD: She looked great in it and reminded me I need to get over to the store and order my own cap! Or shirt. Or baby onesie for my first grandbaby about to arrive.

EICHER: Or all of it! And we invite you to shop the “Merch” store. Our marketing team designed some really terrific WORLD gear, you can find podcast-branded stuff, WORLD Watch themed items, anything WORLD you can find at WNG.org/store.

REICHARD: Because they’re the marketing department, they have a snappy name for it, we’re calling it MERCH-MADNESS this month!

EICHER: WNG.org/store.

It’s time for Legal Docket.

Today, we cover one oral argument the justices of the U.S. Supreme Court heard this month.

Underlying this case is the opioid abuse crisis in the United States. The statistics are staggering: the Centers for Disease Control and Prevention reports that in the year 2019, an average of 38 people died every day from prescription opioid abuse. That translates to fourteen thousand people in that year alone.

REICHARD: And because physicians write those prescriptions, their prescribing practices are under scrutiny.

Listen to local news coverage in Alabama from TV station WJTC in February 2017:

REPORTER: Today a federal jury found Couch and Dr. Xuilu Ruan guilty of running what many referred to as a pill mill.

LAWYER: Our position from the get go through now that it was financially motivated and motivated by greed and that's why they were prescribing in the manner they were.

REPORTER: Their clinic was actually raided back in May of 2015, if you recall, and it was part of a multi -state DEA sweep.

The doctors’ convictions in part fall under the Controlled Substances Act. That law says that if physicians prescribe for a legitimate medical purpose within the usual course of professional practice, that’s fine.

The jury found these doctors did violate that law, in that they prescribed medicine outside the standard of care and that they put profits ahead of patients.

For that, they each received prison time. One of them, Dr. Xiulu Ruan, received a 21 year prison sentence.

EICHER: He appealed his conviction to the U.S. Supreme Court, which is considering his case along with that of another physician from Wyoming.

The legal question is whether a doctor can use the defense of “good faith” to fight charges of unlawful distribution of controlled substances.

Judges instructed the juries in these cases to find the doctors liable if their actions were so out of line with medical practice as to be unrecognizable.

REICHARD: That jury instruction is what the physicians now appeal.

They wanted instead to instruct the jury that so long as the doctors acted in good faith, they hadn’t acted illegally.

But what exactly is good faith? How should that be analyzed?

Here’s how Dr. Ruan’s lawyer, Lawrence Robbins, put it:

ROBBINS: The good-faith medical purpose test makes the best sense of the statutory text, this Court's case law. It enables the jury to focus on the question of intent, as it always does in criminal cases, and affords an appropriate berth for doctors and patients to make the best choices for the individual care of what is often invisible and yet real and intractable pain.

He argued a subjective standard is the right one. That is, did the doctor believe he was prescribing for a legitimate medical purpose?

But the federal government says no, the right standard is an objective one that doesn’t consider physician intent.

Here’s the government’s lawyer, Deputy Solicitor General Eric Feigin. He mentions the DEA; the initialism for the Drug Enforcement Agency. It has authority to oversee and sanction prescribers. And, the petitioners are the doctors.

FEIGIN: Although Petitioners are trying to disclaim it as much as they can, they really are asking this Court to transform their DEA registrations, which are premised on the idea that they're actually practicing medicine, into licenses to, at their own subjective views, violate the general rule that drug pushing is illegal. They want to be free of any obligation even to undertake any minimal effort to act like doctors when they prescribe dangerous, highly addictive, and, in one case, lethal dosages of drugs to trusting and vulnerable patients.

Some context is useful.

The government’s brief said Dr. Ruan often prescribed drugs to people without cancer that the FDA had only approved for people with cancer. He prescribed a particular opioid at twice the rate of the next higher prescriber. Sometimes he’d never even met the patient before writing a prescription for pain meds. And he had a large financial stake in a pharmaceutical company that manufactures a drug he often prescribed.

For his part, Dr. Ruan points out that at the time he was a board certified specialist in pain management with more than 8,000 patients. So it stands to reason that he’d prescribe more pain meds than the average physician would. He accepted insurance oversight and he didn’t take cash payments; his was no sham practice. The government’s lawyer at trial even said so.

Chief Justice John Roberts tried an analogy to sort out what kind of defense the doctors could mount. Listen to this exchange with Robbins, lawyer for the doctors:

ROBERTS: What if you're driving along the highway and you're pulled over for speeding and the officer tells you, look, it was 55 miles an hour, you're -- you get a ticket, and you say, oh, no, I thought it was 70 miles per hour? You still get the ticket, right?

ROBBINS: Of course. 

ROBERTS: What if you say -- you're pulled over, the officer says, you know, you're speeding, it's 55, and you say, you know, I -- this is in the middle of Montana, I think it should be 70, and I was going under 70? You'd still get a ticket, right? 

ROBBINS: Yes, you would.

But Robbins didn’t think that was the correct analogy.

He mentions “scienter.”

Or, scienter. That means knowledge that something is wrong.

ROBBINS: I don't want to bury the lead. The fact is this speeding is the classic case of a regulatory offense, the sort of situation in which scienter isn't even an issue. You don't get to defend the traffic violation based on your state of mind. But, when you're talking about sending doctors or anybody for that matter to jail for mandatory minimums of decades in prison, this is not a regulatory offense. This is an offense as to which this Court's case law on scienter applies with the most robust force it could.

Robust force, because a legal standard that is unknowable and nebulous violates the vagueness doctrine.

That says laws must be written so people know what conduct is punishable before you throw them in jail.

And remember what the Controlled Substances Act says: registered healthcare professionals can legally prescribe certain controlled substances so long as the drugs are "prescribed for a legitimate medical purpose within the usual course of professional practice.”

Justice Brett Kavanaugh said those are words upon which reasonable people can disagree.

He sounded incredulous in asking Feigin for the government about that.

KAVANAUGH: And so, if you're on the wrong side of the close call as the doctor who was acting before you get to the trial, if you're on the wrong side of the close call about what you believed, you go to prison for 20 years?

FEIGIN: Well, Your Honor, I don't really think that's going to be the case for doctors who make innocent mistakes because, if the jury is instructed properly, and we do think the jury instructions here were proper, and at a bare minimum, counsel was able to argue without objection that this is not just a negligence standard, that a jury has to really believe that the doctor wasn't even trying to act as a doctor.

Feigin underscored that the doctors in these cases were out of the mainstream. He gave categorical examples of types of doctors:

FEIGIN: Number one would just be the irrationally egotistical doctor, and these are the kinds of cases we have trouble even bringing, let alone convicting a doctor. It's a doctor who gets his license and his registration and he prescribes substances that are -- any other doctor would say are crazy and lethal.

Number two?

FEIGIN: …the absentee doctor, and one problem with their standard is it really rewards doctors for untethering themselves not only from the medical profession but from their patients. It's the kind of doctor who doesn't follow up on the background of his patients, doesn't make sure they're taking the medications, doesn't even conduct physical exams, doesn't check the database to see who else is prescribing opioids, and trusts nurse practitioners, who aren't DEA registrants…

Chief Justice Roberts pointed out Feigin was arguing about evidence, when this case is about legal standards.

ROBERTS: You're saying this is outrageous, they're doing all this, he doesn't care, we're worried about doctors. What -- but what is it in the statute that separates innocent conduct from unlawful conduct?

FEIGIN: Your Honor, I'm happy to -- I'm happy to argue the law. I just wanted to respond to the suggestion that this -- this doesn't really matter in the real world.

But lawyer Beau Brindley for the other doctor pointed out the trouble with leaving the analysis at that:

BRINDLEY: I think the risk here is -- is twofold. On the one hand, worrying about these extreme examples that are not going to come to fruition fails to take into account the terrible chilling effect that's coming and we see in the amicus briefs from the result of -- of having what turns out to be medical norms policed. And I think that raises the real risk that the DEA becomes a de facto national medical board that's never been authorized.

Justice Neil Gorsuch tried to pin the government down on what it needs to prove to show these doctors violated the law. Listen to this exchange with lawyer Feigin about mens rea, or “guilty mind.”

GORSUCH: And so are you saying that there has to be some form of mens rea here that the government has to prove? Yes or no?

FEIGIN: Yes…is an objective honest effort standard under which the defendant has to show some—"

GORSUCH: Objective honest efforts is like a—a contradiction in terms, Mr. Feigin.

I think one amicus brief filed by a board-certified doctor in pain and addiction medicine summed up things quite well.

This country has several crises going on with drugs.

One is substance abuse. The other, insufficient treatment of pain. At its root, these are questions of morality that the law may not be best placed to solve.

And that’s this week’s Legal Docket.

NICK EICHER, HOST: March Madness came to a standstill on Thursday during the second half of a game between Indiana and St. Mary’s.

AUDIO: … as that one goes over. And the ball is stuck. We’ve got an issue now.

They did have an issue. A missed shot resulted in the basketball getting lodged between the top of the backboard and shot clock.

One of the referees stood on a chair and tried to poke the ball with a mop handle, but he wasn’t nearly tall enough.

So then someone had a bright idea! Get the cheerleaders involved. You’ve seen a halftime show—a five-foot cheerleader propped up on the arms of another cheerleader. Well, let’s just say, she can tower over any merely 7-foot-tall basketball player

AUDIO: Now she’s GOT IT!! What a play! The cheerleader saves the day! And that’s her one shining moment!

I love it!

Cheerleader Cassidy Cerny with the ball and cheerleader Nathan Paris with the assist.

That has to be a first. They don’t call it March Madness for nothing!

It’s The World and Everything in It.

MARY REICHARD, HOST: Next up on The World and Everything in It: the Monday Moneybeat.

NICK EICHER, HOST: Time now for our regular conversation on business, markets, and the economy. Financial analyst and adviser David Bahnsen is here. Morning, David.

DAVID BAHNSEN, GUEST: Other than the Fed news—and we should certainly cover that—but outside of the quarter-point interest-rate rise the Federal Reserve has been telegraphing for months and finally did, would you say there was any big economic story of the week?

BAHNSEN: Oh, I guess, it was kind of a weird week economically, because there was a lot of focus on the Fed. And then it's the first week where I've wondered if the Russia-Ukraine story is starting to get kind of baked in as a long-term story, not one that like everyone is focused on day by day, there's a lot going on day by day, and it's a big story day by day. But I do think those first few weeks of the drama, now people are kind of like, okay, you know, this is gonna go on a little while. But also, I think this week, too, you did see something I've seen throughout my career and something that I do believe is very common. And that is that, supposedly, the markets are concerned about the Fed taking liquidity out of the economy, and worried about the Fed increasing the cost of capital - raising interest rates. They do exactly that, announce officially and act officially on what they've been sort of talking about for months and months, and the market rallies. And so just a very significant move higher in the markets on the news that people would think the market wouldn't like. That kind of contrarian reality is something that I think a lot of people will never get used to.

EICHER: Would you talk through the mechanics of the rate hike? When a listener reads about a Fed action like this, could you describe what the Fed actually does?

BAHNSEN: Well, when the Fed announces they're raising interest rates, they're only referring to what's called the federal funds rate. And it's a target. They're going to go do what they call open market operations - their buying and selling of securities to get to a certain rate, you're talking about an overnight rate and ultra short term rate. And when that rate’s at zero, they're basically trying to facilitate borrowing at the ultra short term, because there's no cost to doing so. And then when you raise rates, there's a small cost. And the, obviously, the higher you go, the more the cost is. So it is intended to be either incentive or disincentive for borrowing under the premise that borrowing is driving some form of economic activity. So that's kind of the mechanics of it, Nick. And I think that this is really where the focus is right now is on the rate. And yet the other issue is what the Fed’s going to do about their balance sheet, as they bought $3.9 trillion of treasuries and mortgage bonds during COVID. And now they have to somehow try to get those things off of their balance sheet, without causing big problems in the market, in the economy, in borrowing and other things like that. So they have a lot of work ahead of them.

EICHER: Okay and the stories we’re all reading in the financial press and in the regular press, all this work the Fed has in front of it, this is targeted, we are told, at taming inflation. How is what the Fed is doing going to fight inflation?

BAHNSEN: Well, of course, the idea is that by taking liquidity out of the financial system, that would be anti inflationary. And when you're putting liquidity in the system, the belief is that it's potentially more inflationary. Now, look, if the Fed really believed that they needed to take big monetary measures to stop inflation, do you think they would have raised rates only a quarter of a point? It'd be hard to imagine a smaller measure. You know, it'd be like if someone says I desperately need to lose a lot of weight. I'm going to go down from eight cheeseburgers a day to seven and a half cheeseburgers a day or something. I mean, obviously, it isn't a very substantive move.

The reason in my opinion is that the Fed has to posture publicly that they're doing something to counter inflation - and the inflation that we have right now is actually outside the monetary category and much more related to the supply side. If the Fed did raise rates 100 basis points meaning 1%, instead of only a quarter point, they still could not possibly help China export more semiconductors or or more truck drivers go to work or more ports open up, and all these types of supply-oriented things are not really remotely related to the monetary side. But my view is, at the end of the day, they lose their emergency measure. That is because the Fed has been there to take huge measures when we have big problems, if they're already at zero, they can't do anything. And so they need to get back to something more normal, because something else in the future will happen and they won't be prepared for it. And yet they somehow now want to thread a needle of doing so without doing great damage along the way. And what I'll say just to give people historical context is there is no history. This is all basically, totally unprecedented. Japan went to many, many years of zero interest rate, all kinds of quantitative easing, they've never gotten off of it. They're still on it now. Our country did after the financial crisis - we started to try to get off it a little bit in 2018. And then they chickened out in early ‘19 and stopped and started cutting rates again. And then COVID came in 2020. So we, right now, we're not just dealing with COVID monetary policy. We're dealing with the monetary policy measures from the financial crisis that we never normalized. So it's experimental.

EICHER: All right, David Bahnsen, financial analyst and advisor, head of the financial planning firm The Bahnsen Group

You can catch David’s daily writing at DividendCafe.com. Sign up there for his daily email newsletter on markets and the economy. David, thanks again!

BAHNSEN: Thanks so much, Nick.

NICK EICHER, HOST: Today is Monday, March 21st. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Up next, the WORLD History Book. Here’s associate correspondent Harrison Waters with a few notable anniversaries for the third week of March.

HARRISON WATTERS, ASSOCIATE CORRESPONDENT: In early 1812, Massachusetts’ Governor Elbridge Gerry was worried that the Federalist party was becoming too powerful in Congress. He feared they were dragging the United States into another war with Great Britain. To reduce the number of Federalist senators from Massachusetts, Gerry worked with his party to change how the state was represented in Congress.

HISTORY CHANNEL: This included changing Massachusetts' Senate districts from reflecting county lines to ones benefiting the Democratic Republicans.

Soon after the district maps came out The Boston Gazette published a cartoon of one of the distorted districts on March 26th. The map was fitted out with a salamander’s head, wings, and tail. As George Grant would say, the cartoon title was a portmanteau of Gerry and Salamander or Gerry-mander.

Gerry with a hard G. The Wall Street Journal ran a video in 2018 explaining why we pronounce it gerrymander today.

WALL STREET JOURNAL: It all goes back to that cartoon. This is prior to radio. There was no audio transmission except word of mouth and so the word 'gerrymander' traveled further and faster than the pronunciation of the family name of Gerry.

Despite signing the Declaration of Independence and serving as James Madison’s Vice President, Gerry is remembered most for his crooked map drawing. At the election later in 1812, Gerry lost his office as governor but his scheme to get Democratic-Republican senators to Congress worked. Unfortunately, it wasn’t enough to avoid the War of 1812. And it set the stage for two centuries of wrangling over what is fair and just representation.

From the origin of one problem to the end of another, 170 years ago this week Elisha Otis opened the first public safety elevator.

Elevators have been around since the Romans were building aqueducts, but they all had the same problem: If the cables broke, the platform would fall.

In 1852, while building furniture hoists for a bedstead manufacturer, Otis jerry-rigged a mechanism that would automatically lock the lift in place if the ropes broke. The invention was a success. But it wasn’t until two years later that his business really took off…thanks to the 1854 World’s Fair.

Steve Hoefer for Make: Inventions explains what happened.

HOEFER: In front of a crowd of curious onlookers he rode his elevator to the top and then commanded his assistant to cut the rope with an ax. When the rope split, the elevator fell only a few inches and stopped.

The stunt paid off. Big time. Here’s YouTuber The History Guy:

THE HISTORY GUY: After the World's Fair, Otis was said to have doubled his sales every year thereafter and in 1898 Otis absorbed 14 of its major competitors.

On March 23rd, 1857, Otis installed the first safety elevator for passenger service in a New York City department store. While the inventor patented many other devices, including a steam plow and bake oven, the invention that took his name around the world was the elevator. The Otis safety elevator made high rises—and the modern city possible.

OTIS ELEVATOR PROMO VIDEO: Today Otis is still the largest elevator company in the world with 1.2 million units in service and annual sales approaching six billion dollars. Elisha Otis: a business legend.

We end today with Russia’s annexation of Crimea, 8 years ago this week.

NEWS REPORT: The Russian President Vladimir Putin receiving a standing ovation there from both houses of parliament, whom he’s just addressed about the situation in Crimea, explaining that Crimea has historically in the minds of Russians always been part of Russia.

But one person in the room was not cheering—or standing—and he went on to cast the single vote against annexing Crimea.

Ilya Ponomarev was an energy entrepreneur who left business in 2007 to represent Siberia in parliament. Ponomarev was alarmed when Putin described the Ukrainians who opposed annexation as “national traitors.” That term was first used by Adolf Hitler.

PONOMAREV: And so when Putin said that, and when everybody stood up and started applauding him, and cheering “hail to the chief,” and you know “yes, we’ve done it,” and stuff like that, I thought you know, somebody needs to be against.

Ponomarev knew his district was split on the merits of annexation. When he saw the overwhelming support for Putin’s plan, he chose to represent the millions of Russians in opposition and faced immediate backlash. Ponomarev resisted calls to resign but he did leave the country, living in the United States for a year before moving to Ukraine—where he’s lived since 2016.

Ponomarev remains critical of Putin’s actions—and while he is concerned about what Putin might do in his war with Ukraine—he believes that the Russians and Ukrainians are brothers and sisters who can live in peace.

PONOMAREV: Putin will go. He is not immortal. No technologies will make him immortal, we will make sure of this in Silicon Valley, you know, and the situation will definitely change. Thank you.

That’s this week’s World History Book. I’m Harrison Watters.

NICK EICHER, HOST: Tomorrow: The case of a teacher who’s challenging her school’s transgender speech code. She’s seeking a religious accommodation and has to sue to try to get it.

That and more tomorrow.

I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

The World and Everything in It comes to you from WORLD Radio.

WORLD’s mission is biblically objective journalism that informs, educates, and inspires.

The Bible says: For by grace you have been saved through faith. And this is not your own doing; it is the gift of God, not a result of works, so that no one may boast. (Ephesians 2:8-9 ESV)

Go now in grace and peace.

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