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by Debbie Cenziper, ProPublica, and Michael D. Sallah, Pittsburgh Post-Gazette

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was co-published with the Pittsburgh Post-Gazette.

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The massive recall of Philips Respironics’ ventilators and DreamStation CPAP (continuous positive airway pressure) machines disrupted medical care for millions in the United States and around the world. An investigation by ProPublica and the Pittsburgh Post-Gazette found that the company continued to sell the devices long after it discovered that foam inside them could break down in heat and humidity, emitting particles and fumes into the masks worn by patients.

The federal government has classified the recall as the most serious: one for device defects that can cause serious injury or death. The company has said testing so far on its machines shows they are unlikely to cause “appreciable harm.” But experts and even some of the company’s own employees and others say test results are concerning, records and interviews show. The company has pledged to repair or replace recalled machines, investigate reports of deaths and communicate with the public about the health risks.

As we continue reporting on the recall and the damage caused by these machines, we need your help. We’re particularly interested in accounts from Philips’ customers, their family members or others who reported deaths or serious illnesses — either to the company or through the government’s MedWatch reporting form — and whether the company followed up.

We’re also interested in hearing more about your experience with the recall process.

If you worked for Philips before or after the recall, or worked at the independent labs that provided test results to the company, we’d like to hear from you too.

Your answers could help others who are still trying to navigate the recall or who have concerns about health impacts.

by Debbie Cenziper, ProPublica; Michael D. Sallah, Michael Korsh and Evan Robinson-Johnson, Pittsburgh Post-Gazette; and Monica Sager, Northwestern University

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This story was co-published with the Pittsburgh Post-Gazette.

Interested in learning more about this investigation? Join us for an upcoming virtual conversation. Register today to save your spot.

The first complaints landed at the offices of Philips Respironics in 2010, soon after the company made a fateful decision to redesign its bestselling breathing machines used in homes and hospitals around the world.

To silence the irritating rattle that kept users awake at night, Philips packed the devices with an industrial foam — the same kind used in sofas and mattresses. It quickly became clear that something had gone terribly wrong.

The reports coming into Philips described “black particles” or “dirt and dust” inside machines that pump air to those who struggle to breathe. One noted an “oily-like” substance. Others simply warned of “contamination.”

The complaints targeted some of the company’s most celebrated devices built in two factories near Pittsburgh, including ventilators for the sick and dying and the popular DreamStation for patients who suffer from sleep apnea, a chronic disorder that causes breathing to stop and start through the night.

Yet Philips withheld the vast majority of the warnings from the Food and Drug Administration, even as their numbers grew from dozens to hundreds to thousands and became more alarming each year.

“Black shavings in the chamber,” said one 2011 report that was kept from the government. “Contaminated with unknown sticky substance,” noted another three years later. By 2015, the year Philips launched the DreamStation, the company had amassed at least 25 complaints that pointed to a specific cause — the foam was falling apart.

In June 2021, more than a decade after the first reports, Philips announced a recall of millions of machines that had been delivered to nearly every corner of the United States and dozens of other countries. The company acknowledged that the foam it had chosen could crumble in heat and humidity and send potentially “toxic and carcinogenic” material into the noses, mouths, throats and lungs of users.

George Bales, who used a Philips CPAP machine for about six years before it was recalled, sued the company after developing cancer near one of his vocal cords. Unable to swallow easily, he uses a feeding tube inserted just above his belly button. (Liz Moughon/ProPublica)

In a series of statements, the industry giant said it acted as soon as it learned of the “potential significance” of the problem.

But an investigation by ProPublica and the Pittsburgh Post-Gazette of the 11 years between the first complaints and the recall reveals a different story — one of a company that sought to protect its marquee products as stock prices soared to the highest levels in decades. Again and again, previously undisclosed records and interviews with company insiders show, Philips suppressed mounting evidence that its profitable breathing machines threatened the health of the people relying on them, in some cases to stay alive.

Federal law requires device makers to turn over to the government within 30 days all reports of patient injuries, deaths and malfunctions that have the potential to cause harm, and to take action to investigate them.

A ProPublica and Post-Gazette analysis of tens of thousands of reports shows that Philips withheld more than 3,700 complaints over 11 years from the FDA, which oversees medical devices. And the company did not launch a formal investigation of the problem until 2019 — nine years after the first wave of complaints and three years after the first known tests for the company found that the foam was degrading.

Instead, as the complaints continued to pile up in company files, Philips waged aggressive global marketing campaigns to sell more machines, including new models fitted with the hazardous foam.

The sales pitch worked: The devices went to infants, the elderly and at least 700,000 veterans. The company also promoted machines meant for some of the sickest people in the country, rolling out a new ventilator filled with the foam in the early months of the COVID-19 pandemic.

Philips didn’t stop even after the company learned the foam was breaking down in its ventilators in Japan and had to be replaced — and after tests in the United States revealed that the material released chemicals at dangerous levels. Among them: formaldehyde, a compound used in fertilizer, dyes and glues that has been tied to respiratory problems and certain cancers.

In 2018, the company called more than a dozen engineers and safety supervisors to a series of urgent meetings in Pittsburgh to investigate the problem in what eventually became known to insiders as Project Uno.

Still, the public was not warned.

All the while, people using Philips machines were suffering from illnesses that no one could explain: vomiting, dizziness and headaches, along with newly diagnosed cancers of the lungs, throat, sinuses and esophagus. One man in Philadelphia coughed so hard that he broke his ribs, and a Florida woman with a hacking cough was hospitalized for days and placed on oxygen.

“Unconscionable,” said Dr. Radhika Breaden, who scrambled at her Oregon sleep clinic to help thousands of patients who were using the devices. “We were all completely blindsided. You can’t have people inhaling black dust … without warning us.”

Dr. Radhika Breaden said she is concerned about the potential for long-term health problems from the recalled machines. (Liz Moughon/ProPublica)

To examine what happened at Philips, reporters interviewed more than 200 former company supervisors, doctors, toxicologists, patients and the relatives of those who died, and obtained company records that show officials knew about the dangers but continued to sell machines that the FDA has since said are capable of causing severe illness or death.

Reporters also reviewed thousands of complaints submitted to the company and government describing device malfunction and injuries, including more than 370 reports of deaths. As part of the investigation, the news organizations collaborated with Mediahuis NRC, the publisher of one of the largest newspapers in the Netherlands, where Philips’ parent company is located.

In a statement to the news organizations, Philips said its top priority is patient safety and that it regretted “the distress and concern” caused by the recall. “We deeply apologize for that and continue to work hard to resolve this,” the company said.

Philips said complaints about the foam were limited in the years before the recall and that the reports were evaluated on a case-by-case basis. The company added that it became aware of the potential significance of the problem in early 2021 and launched the recall shortly after that.

Former company engineers and safety supervisors, who spoke on the condition of anonymity because they still work in the industry, said top officials at Philips repeatedly dismissed a dangerous breakdown that ultimately set off a worldwide health crisis involving as many as 15 million devices.

“It was a catastrophic series of errors,” said a former compliance supervisor. “There were people who knew and knew for a long time.”

In the months since the recall, the company has walked back its initial acknowledgement of the health risks posed by the degrading foam, saying tests on the DreamStation and similar devices show the chemicals released by the material fall within safety thresholds.

“The whole product complies with safety norms,” Roy Jakobs, chief executive officer of parent company Royal Philips, said last year.

ProPublica and the Post-Gazette obtained copies of four tests carried out in 2021 that were solicited by Philips. Three experts who reviewed the results for the news organizations dispute the company’s claim and point to another finding that they say is even more alarming.

The foam tested positive multiple times for genotoxicity — the ability of a chemical to cause cells to mutate, a process that can lead to cancer.

“You’re basically changing cells,” said one engineer who was familiar with the testing. “I don’t even know if we really scratched the surface of how bad this really is.”

In New York, 58-year-old retired music teacher and father of three Mark Edwards said he’ll spend the rest of his life fearing that a sleep apnea machine caused years of respiratory infections and two benign tumors in his throat.

Edwards brought home a DreamStation in 2017 and set it up next to his bed, where he sleeps with his rescued German shepherd, Tyson. He continued using it even after he said he began to spot black particles in his mask.

“I would wash it and use hot water, and then two days later, I would see it again,” he said. “I remember thinking, ‘What the hell is this?’”

After his machine was recalled, Edwards sued the company, one of tens of thousands of people joining litigation against Philips in federal court in Pittsburgh.

Edwards stopped using the device earlier this year and said his respiratory infections went away, but in April, he traveled to Florida to undergo a second surgery on his throat. As he waited in the hospital with his sister, he clutched a gold crucifix around his neck.

“If something happens to me in surgery, I’m ready to go,” he said, and then he was wheeled off to the operating room.

Mark Edwards is prepped for surgery in April to have a second mass removed from his throat. (Benjamin B. Braun/Pittsburgh Post-Gazette) A Competitive Edge

Years before the crisis, inventor Gerald McGinnis sat in his suburban Pittsburgh kitchen next to an avocado-green stove and Betty Crocker cookbooks, fretting about patients forced to breathe through tubes inserted into their windpipes.

The mechanical engineer knew he could create something better.

Throughout the 1980s, McGinnis invented a series of breathing masks and ultimately developed the nation’s first mass-produced continuous positive airway pressure, or CPAP, machine, sold under the banner of his growing company, Respironics.

During a scientific renaissance that transformed Pittsburgh from a steel town into a hub for medical innovation, the company became a dominant player in a thriving industry that would change the lives of those struggling with sleep apnea.

In Obstructive Sleep Apnea, Throat Muscles Relax and the Upper Airway Collapses, Blocking Airflow

The disorder causes people to repeatedly start and stop breathing in their sleep, and it can be treated with a CPAP machine.

Source: Mayo Clinic, National Institutes of Health (Ed Yozwick/Pittsburgh Post-Gazette)

For the millions of people impacted by the condition, CPAP machines were game changers, allowing them to breathe normally at night — often for the first time in years.

“It was the gift from heaven,” said McGinnis, now 89, whose company grew to 4,900 employees and more than $1 billion in revenue by 2007.

Everything changed when Royal Philips, the conglomerate known for light bulbs and televisions, showed up at his door, he said in an interview with ProPublica and the Post-Gazette.

The company from Amsterdam had just purchased several medical equipment companies in the United States and aimed to take over Respironics. At first, Respironics rejected the Dutch company’s bid, but finally agreed to sell in 2007 under the threat of a takeover, McGinnis said.

“They said, ‘We want to buy the company, regardless, whether you want to do it the hard way or the easy way,’” said McGinnis, then board chairman. “In less than six months, they cleaned us out. I felt like I lost my third daughter.”

Respironics founder Gerald McGinnis, who helped develop the country’s first mass-produced CPAP machine, said he did not want to sell his company to Royal Philips. (Arturo Fernandez/Pittsburgh Post-Gazette)

Soon after taking control of the Pittsburgh company, the new subsidiary called Philips Respironics made a critical decision.

Locked in a race to make its breathing machines quieter, the company inserted the foam to muffle sound. The change was a triumph in the world of sleep apnea, a way to quiet the humming, vibrating machines that disturbed patients and their partners as they slept.

Unlike its top competitor, which chose a different foam to quiet the machines, Philips selected one made of polyester-based polyurethane, the same kind of material used in furniture, shoes and other products.

Though it is unclear why the company chose the material, Philips noted in a 2009 patent that older solutions to reduce sound were “ineffective, inefficient and/or expensive.”

It was a risky move. Studies published in scholarly journals showed the foam broke apart in heat and moisture. The company used it anyway, even though the machines send air for hours at a time into the lungs of users.

“Anybody who has half a brain cell in chemistry knows that this was a stupid idea,” said the engineer who was familiar with the recent testing.

Soon, alarming reports began to surface.

The Philips Respironics plant near Pittsburgh where some of the recalled machines were built. (Benjamin B. Braun/Pittsburgh Post-Gazette)

Watch video ➜

In June 2010, Philips found that a machine sent back to the company by a customer was contaminated with “foam particles,” FDA records show. Rather than alerting the government as federal law required, records reveal that the company kept the report about the problem in-house for the next decade.

A similar report came in the following year, describing another CPAP with “black contamination.” That, too, was not turned over to federal regulators.

Another report was also held back, this one from a patient who found particles in the tube that carries air to the nose and mouth. A complaint two years later described a 3-year-old girl who was using a ventilator with a filter that had turned black.

By the end of 2014 — about six years after Philips started using the foam — more than 500 reports from health care workers, patients and others had flooded the company in a pattern that would not be revealed to the government or the public for years, the records show.

Philips said the company had previously determined that the complaints did not need to be reported but later changed course and turned them over “out of an abundance of caution” after the FDA got involved.

In an email, the FDA confirmed that the company “was in possession of numerous complaints” that should have been submitted to the government.

In most cases, the news organizations found, Philips labeled the reports that it was late in submitting as “foam degradation” complaints. That included at least 10 reports where the patient outcome was listed as a death, though there was little information about the patient or their cause of death.

Philips Received More Than 3,700 Reports About Foam Problems Before Recalling Machines

For more than a decade, the company used the polyester-based polyurethane foam in its ventilators and CPAP (continuous positive airway pressure) machines to reduce noise. In that time, it received thousands of complaints about “dust contamination,” “black particles” and “foam degradation.”

Source: Pittsburgh Post-Gazette and ProPublica analysis of data from Device Events, which extracted data from the Food and Drug Administration’s Manufacturer and User Facility Device Experience system. (Lucas Waldron/ProPublica)

In 2015, Philips received new and troubling information from overseas. Another Royal Philips subsidiary received complaints about degrading foam in Japan, where Philips had delivered ventilators.

Philips could have alerted customers and federal regulators or moved to repair all of its machines. Instead, the machines were repaired in Japan but Philips kept using the foam everywhere else, government records show.

That same year, graphic artist and painter George Bales put a Philips CPAP machine on a nightstand in his New Jersey home, unaware of the foam hidden inside the device. Every night for the next six years, he used the machine as he slept next to his wife, a pediatrician who used to nudge him awake to make sure he was breathing.

Long retired, Bales spent hours in the kitchen, perfecting his marinara sauce for dinner parties, until he developed a sore throat and congestion that wouldn’t go away in 2021.

Doctors found a malignant tumor near one of his vocal cords. Bales, who now has trouble swallowing and uses a feeding tube inserted just above his belly button, acknowledges he may never know whether the recalled machine caused his cancer. But he said the company should have warned customers years earlier.

“No one ever informed me that this machine might be killing me,” said Bales, 78, who is suing Philips. “I’m now suspicious of everything I take into my body.”

Bales, a retired graphic artist, underwent surgery and now gets regular scans of his neck and chest to check for a recurrence of his cancer. (Liz Moughon/ProPublica) Elvis and Air Fryers

As complaints inundated the company, Philips launched marketing campaigns to sell its devices around the world, from Toronto to Paris to Sydney. In Brazil, one doctor prescribed the machines to 1,200 patients — the youngest just six months old.

The company showed up at international health conferences in Berlin and Dubai to promote the devices, in one case with the help of an Elvis impersonator.

In advertisements, Philips declared that its CPAP machines were far quieter than those put out by its top competitor. “Rediscover dreams,” the company said. In 2017, Philips offered free air fryers to anyone who bought a DreamStation.

“From the very beginning, they wanted to put CPAPs in the supermarket as a long-term project,” said Laura Adorni, a former sales director at Philips in Italy. “They already had razors, toothbrushes, aerosol devices in pharmacies and shops, so why not also have a CPAP?”

Anatomy of CPAP Machine

A common treatment for sleep apnea, a CPAP machine keeps the upper airway open to allow unobstructed breathing. The device improves sleep quality and may reduce the risk for a number of health issues, including heart disease and stroke.

(James Hilston/Pittsburgh Post-Gazette)

As the company promoted its machines, Philips cut deals beginning in 2012 with local medical equipment suppliers that sell the devices directly to patients — drawing the attention of federal investigators.

In one case, the government accused Philips of giving suppliers a coveted database about the prescribing practices of doctors. In exchange, prosecutors said, Philips expected the suppliers to recommend the company’s breathing machines, which are often paid for through Medicare and other public programs.

“Move … share in our direction,” a sales director at Philips wrote in an email to his team about the arrangement.

Prosecutors later alleged that the exchange of the database — which can cost more than $100,000 — amounted to an illegal kickback scheme and reached a settlement with Philips, which eventually agreed to pay $24 million without admitting wrongdoing. In its statement to the news organizations, the company said it agreed to settle to avoid the expense of further litigation.

In 2015, Philips was moving to dominate the market, but the foam problem threatened the momentum. That year, a company engineer questioned the supplier, emailing, “Have you ever seen this occur to the foam?” company records show.

Two and a half years later, as new complaints came in from Australia, Philips scientists were summoned to a series of emergency meetings outside Pittsburgh to come up with a plan. The day after one of the sessions, another engineer detailed the safety risk in an email to the foam supplier.

Philips engineer Vincent Testa sent pictures that he said showed “disintegrating” foam in an email to the foam supplier. (Obtained by ProPublica)

“The material sheds and is pulled into the ventilator air path. As you can imagine, this is not a good situation for our users,” engineer Vincent Testa wrote that April, sharing photos of the foam breaking apart. “I flagged this message with high importance since we are addressing a potential safety concern.”

Without alerting the FDA or the public, the company started replacing the foam in some ventilators but once again left the vast majority of machines untouched, including the widely used DreamStation, FDA records show. Testa did not respond to interview requests.

Customers weren’t told even as debris turned up on their bedsheets, pillows and faces.

Outside Indianapolis, Connie Thompson slept every night with a DreamStation by her side, next to a blanket with a picture of the Disney character Elsa.

College student Connie Thompson said she worries that the machine that helped her breathe through the night may one day make her sick. (Liz Moughon/ProPublica)

She got the machine to treat sleep apnea and used soap and water to clean out the black particles that started showing up in the tube connected to her mask, she said. Thompson, a community activist who fought for safe drinking water in her hometown, said she had no idea about the menace in her own bedroom.

“It’s almost like a betrayal,” said Thompson, now a 24-year-old college student studying public safety.

South of Baton Rouge in the Iberville Parish of Louisiana, 62-year-old Sheriff Brett Stassi said he regularly found black particles on his pillow.

He spent four years using a DreamStation before he was diagnosed with kidney cancer, rushed into surgery and put on a rigorous course of treatment. After the recall, Stassi said he learned from the FDA and others that particles released by the foam could harm the kidneys and liver.

He is hoping to complete his fourth term as sheriff before he retires to spend more time with his grandchildren, whose pictures fill his wood-paneled office, and to cheer on his beloved Louisiana State University football team.

As a longtime investigator, Stassi said he’s baffled by the company’s decisions.

“They knew about it, did nothing about it and then started working on a fix,” said Stassi, who is suing Philips. “People matter. You only get one chance to do it right.”

Brett Stassi, who recently underwent treatment for kidney cancer, is hoping to complete one more term as sheriff in his Louisiana parish. He filed suit against Philips after the CPAP machine he used was recalled. (Liz Moughon/ProPublica) The COVID-19 Surge

As the pandemic erupted and countries raced to gather ventilators to fight a virus that attacked the lungs, Philips was well positioned to meet the demand.

In March 2020, the company reached out to the U.S. government.

Nathan Naylor, a Philips vice president, emailed the Department of Veterans Affairs and included information about the V30, which featured alarms and nine settings for sick patients.

“Good for America,” Pamela Powers, the agency’s then chief of staff, wrote two weeks later. “We appreciate your company’s partnership for sure.”

That ventilator, however, was built with the problem foam and was one of about 20 models of Philips breathing machines that were later recalled.

In an email, the VA said it did not know about the foam until the recall and could not comment on the email exchange. The agency said it distributed several hundred thousand of the now-recalled machines over the years but did not say whether any were the V30s.

Naylor is no longer with the company and did not respond to interview requests.

In the spring of 2020, as the COVID-19 virus raged and thousands died, Philips boosted production of another ventilator to help ease the burden on overwhelmed intensive care units.

These, too, were built with the same foam.

Over the course of the year, operating profits from ventilators, CPAP machines and other devices soared to about $800 million, more than double what they were the year before, according to reports by Philips’ parent company.

Response from customers “remains very positive, resulting in market share gains,” Royal Philips’ then-CEO Frans van Houten said during a fourth-quarter earnings call.

During the call, van Houten made no mention of the turmoil inside the company, including internal studies that showed the DreamStation had failed emissions testing for volatile organic compounds. The chemicals can be found in everyday products, such as gasoline, paints and pesticides, but in breathing machines, the fumes can be inhaled for hours at a stretch.

“You just flooded the market with a product that had a problem,” said the former Philips compliance supervisor. “I knew it was bad. They should have fixed the problem early, a decade ago, when they had the chance.”

When contacted, van Houten said he was preparing a response but later declined to comment.

As the pandemic wore on, Philips carried out a series of new studies on the foam — all with bleak results.

About a dozen company officials began to take part in two “health hazard” evaluations in late 2020, including Gary Lotz, the head of global clinical and scientific affairs, Andy Zeltwanger, director of regulatory affairs, Erin Levering, medical safety manager, Neal Pry, manager of quality engineering, Doug Roberts, design quality engineer in safety risk management, and Dr. John Cronin, the medical leader for sleep and respiratory care, company records show. Rodney Mell, head of quality for the sleep and respiratory unit, approved at least one of the studies.

None responded to requests for comment.

The evaluations showed that the deteriorating foam and the chemicals released by the material could cause “serious injury, life-threatening or permanent impairment.”

Both summed up the risk with a single word in capital letters: “UNACCEPTABLE.”

Mounting Injuries

Inside Philips, engineers were working on another new device that would ultimately replace the company’s first-generation DreamStation.

In April 2021, Philips unveiled the DreamStation 2, a sleeker and more advanced model with a color touch screen and more personalized settings. Another change separated the new model from the old one: Philips chose different foam, one that would hold up in heat and humidity.

With the launch of the new device, the company’s stock price reached a high of $61 a share — more than double what it was five years earlier.

It was only then, during a late-April earnings call with investors, that Philips for the first time revealed that the foam it had used for years in millions of machines was at risk of breaking down.

“Regretfully, we have identified possible risks,” said then-CEO van Houten, adding that the company had set aside 250 million euros to deal with the problem. “We are taking proactive action here.”

Van Houten went on to reassure investors: “The device is safe to be continued to use to the best of our knowledge at this time.”

The company alerted the FDA but said nothing to its customers — news reports at the time were largely limited to the company’s positive earnings. Over the next six weeks, more complaints came in, one after another:

“Black particles are found in the filter. She had been spitting green phlegm,” noted one report in May.

Another report in June: “Caused the patient to develop lung nodules.”

Philips Withheld Thousands of Complaints About Foam Problems From the FDA

After Philips issued a recall in 2021, the company turned complaints over to federal regulators, including more than 2,500 that it had withheld for more than two years.

Source: Pittsburgh Post-Gazette and ProPublica analysis of data from Device Events, which extracted data from the Food and Drug Administration’s Manufacturer and User Facility Device Experience system. (Lucas Waldron/ProPublica)

Not until the middle of that month did the company announce a voluntary recall, acknowledging that the foam could release chemicals or break into particles capable of causing life-threatening injuries.

Philips said potential health problems included asthma, dizziness, vomiting, respiratory-tract irritation and “adverse effects” to organs including the kidneys and liver. The company also said the material could present a cancer risk.

“It’s one of the two or three worst things I have ever seen,” said Dr. Sidney Wolfe, a longtime medical researcher and founder of Public Citizen’s Health Research Group in Washington, D.C. “It was unacceptable to sell these machines.”

After the recall, then-CEO Van Houten said the company had used the foam since 2008. “I very much regret the impact of the … recall on patients, care providers and shareholders,” he said.

The true extent of the crisis may not be known for years.

As news of the problem spread, customers and others stepped forward by the thousands, describing emergency room visits and sudden illnesses in reports submitted to Philips and the government. The reports detailed nearly 2,000 cases of cancer, 600 liver and kidney illnesses and 17,000 respiratory ailments.

If you have questions about the Philips recall, including what experts say about the health risks, what to do with your device and whether you should stop using your machine, read the FDA’s frequently asked questions page.

“Recurring sinus infections, inflammation, chest pain,” one CPAP user wrote in July 2021.

“I have constant headaches,” another said in December. “Now I am living in my own hell on earth.”

In several cases, the reports described patients who inhaled pieces of foam.

“Caused a patient to vomit,” one report said that month. “The patient was unable to remove the mask and expired.”

In a Philadelphia apartment he shares with two cats, lawyer Roger Traversa broke several ribs while coughing two years ago. In the hospital, doctors drained two and a half liters of fluid from the wall of his lungs.

After his CPAP machine was recalled, he went to a local flea market and spent $60 on another device made by a Philips competitor.

“I feel much better,” said Traversa, who is also a plaintiff in the ongoing lawsuits. “Now I can go … most of the day without having a coughing fit that drives people nuts. It was a great relief.”

Philips said the reports of illnesses and injuries are not evidence that its devices caused harm. But six medical experts who spoke to ProPublica and the Post-Gazette said the complaints are an indisputable indicator of a sprawling public health crisis. They said more harm is likely to emerge in coming years, much as the effects of tobacco and asbestos only became clear decades later.

“If you shoot tiny pingpongs down airways to obstruct the lungs, you can imagine the potential consequences,” said Dr. Robert Lowe, a retired emergency room physician and public health researcher in Oregon who used a DreamStation before it was recalled.

Dr. Robert Lowe in Oregon used a now-recalled Philips DreamStation for about two years. (Liz Moughon/ProPublica)

Philips has pointed to studies from France and Canada that found Philips CPAP users were not at higher risk of cancer. But those studies described limitations: The analysis in Canada lacked information about whether patients used their machines regularly and the researchers in France acknowledged that more time and a larger sample size could produce more definitive results.

John James, former chief toxicologist for NASA, said it’s far too early to assess how much damage has been done.

“You can’t trivialize the problem,” said James, who was responsible for ensuring that astronauts had clean air. “You’re basically putting this in the air stream of a human being breathing straight through that material.”

Other claims by Philips have also been met with skepticism.

The company has frequently pointed to an ozone cleaner used by some customers to disinfect their devices, saying the product accelerated the breakdown of the foam. But the FDA has said that the machines themselves, not the cleaners, presented “unreasonable risk to patients.”

Philips has also said that only a small number of recalled machines showed evidence of disintegrating foam after a visual inspection. But a 2021 report by experts in the company, obtained by ProPublica and the Post-Gazette, concluded that there was no way to tell by simply looking how much the foam had broken down.

Since the recall, the company has said that testing on the DreamStation and similar devices shows the chemicals released by the foam — including phenol, which can cause lung damage and dizziness — are not at levels that can cause “appreciable harm” to patients.

The company acknowledges that the foam tested positive for genotoxicity — its own experts described “uncontrolled cellular replication” — but said that a third-party assessment still concluded the machines are unlikely to cause harm.

The three experts consulted by the news organizations said that’s not possible. While safety thresholds for chemical emissions vary and findings can be open to interpretation, genotoxicity means that one or more chemicals are changing cells, the building blocks of the human body.

“You can’t make the argument that it’s safe. That’s bad science,” said the engineer familiar with the Philips testing. “It’s a real-life failure that shows you have a problem. There’s no ambiguity. There is unacceptable risk. Full stop.”

The company’s ventilators also tested positive for genotoxicity; Philips said the devices are still being assessed.

The safety claims have raised concerns among employees and others involved in the testing, interviews and text messages show. In August 2021, two months after the recall, one Philips engineer sent a series of texts to a colleague about a lab hired by Philips to test the foam.

“It was obvious that he was trying to pass the device by any method that would work,” the engineer wrote.

In its statement, Philips said the tests were conducted “in the most rigorous and objective manner possible.”

Documents related to the testing were turned over to the Justice Department earlier this year in what has become a sweeping investigation into the company’s testing practices and safety claims, according to sources familiar with the matter. Through a spokesperson, the Justice Department declined to comment.

Philips has acknowledged that it is in discussions with federal prosecutors and that the company received a subpoena last year for information about the events leading up to the recall.

“It’s All About Money to Them”

Now, more than two years after the recall announcement, patients say they are desperate for information about what went wrong.

In Louisiana, 56-year-old Army veteran Jules Lee said he still doesn’t know whether his nagging headaches and sinus congestion were caused by the Philips CPAP machine that he used for three years. He stopped using it about six months before the recall even though he suffers from sleep apnea and worries about dying in his sleep.

“I’m fearful and untrusting,” said Lee, who struggles with post-traumatic stress disorder after serving in the Gulf War in the early 1990s.

Army veteran Jules Lee used a Philips CPAP machine for three years and said he feared for his health. (Liz Moughon/ProPublica)

More details about the health risks are expected to emerge through the ongoing federal lawsuits in Pittsburgh. Earlier this month, the company reached a settlement in one of the cases, agreeing to pay at least $479 million to reimburse customers and others for the costs of the defective machines.

Other legal challenges are still ongoing, including more than 600 personal injury claims and a class-action suit seeking ongoing medical monitoring and research on the dangers posed by the devices. In court documents, the company argued that the lawsuits failed to prove the machines were responsible for injuries and illnesses.

In recent months, parent company Royal Philips has sought to distance itself from the crisis. During a shareholder meeting in May, new CEO Jakobs said the U.S. subsidiary had received complaints about the devices beginning in 2015. “They did some action and they closed it and carried on,” he said, without elaborating.

Jakobs himself, however, was in charge of overhauling the division that produces sleep apnea machines and ventilators as the internal crisis unfolded and as Philips was pitching devices that contained the foam during the pandemic. Through the company, Jakobs did not respond to interview requests.

Royal Philips CEO Roy Jakobs at the company’s annual shareholder meeting in May (Isa Wolthuis for NRC)

Two former company managers said it’s likely officials in Amsterdam were aware of the crisis, given the scale of the problem and the importance of the devices to the company’s bottom line.

“I truly believe those folks knew about it all along,” said the former regulatory supervisor at Philips. “They tried to keep it pinned down as much as possible.”

McGinnis, the founder of Respironics, said Philips breached a fundamental tenet in the medical device industry by not acknowledging the problem early on.

“We had a lot of products we had to shut down,” he said. “You worry about it, think about it, look into it. You have to take on the responsibility. You can’t blame it on somebody else.”

In New York, Edwards, the longtime music teacher, is still recovering from his second throat surgery. He spends most of his time in an apartment he shares with his wife and dogs. Drumsticks from his years as a heavy metal rocker sit untouched in a display case on the wall.

Now using a refurbished CPAP machine, Edwards said Philips should be held accountable for failing to warn its customers about the dangerous defect long ago.

“It’s all about money to them — that’s the bottom line,” he said. “One day they’ll have to answer for what they’ve done.”

Edwards, the retired music teacher, said he still struggles with debilitating health conditions after years of using a recalled Philips machine. (Liz Moughon/ProPublica)

Watch video ➜

Help ProPublica and the Pittsburgh Post-Gazette Investigate the Recall of Philips Respironics Breathing Machines

Reporting was contributed by Molly Burke, Margaret Fleming, Susanti Sarkar, Nicole Tan, Claire Gardner, Bridgette Adu-Wadier, Aidan Johnstone, Kelly Adkins, Haajrah Gilani, Juliann Ventura and Grant Schwab of Northwestern University’s Medill Investigative Lab.

Additional design and development by Lucas Waldron.

by Nicole Carr

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Jill Joy pointed her cellphone camera at the security guards gathered near the doors to the middle school auditorium, where the Webster Central School District Board of Education meeting was about to start. Panning the scene for her livestream viewers that cold evening in February 2022, she noted, “They’ve brought in extra security. Say ‘Hi,’ you fucking tools.”

Joy was among a group of parents in suburban Rochester, New York, who’d dubbed themselves ROC for Educational Freedom. Two years earlier, in 2020, they’d created a Facebook group to organize against what they perceived as “drastic” and “deranged” COVID-19 safety measures in suburban Monroe County school districts. Then in the summer of 2021, Joy landed in a local news story when she stood before the Webster school board cupping her hand over her young daughter’s mouth to mimic a mask. “If you saw this, you would see that this is abuse and you would stop it,” she’d declared.

Now, as Joy livestreamed the scene, a handful of parents huddled with her just inside the entrance to the middle school. Dressed in jeans and puffy winter coats, they were trying to decide the best way to break the rule requiring that they wear masks to attend the meeting. “They’re going to try to put us in a classroom and segregate us,” one woman warned.

Ken Mancini, a retired jail officer turned school district security supervisor, was one of the guards captured on Joy’s livestream. It was Mancini’s job to enforce the state’s mask mandate that evening. As Joy and the other parents approached him, one father, Dave Calus, asked, “Where are you keeping those segregated people?”

“In the room down the hallway,” Mancini responded, pointing the unmasked parents in that direction.

Over the squeaking of the group’s shoes on the hallway’s shiny floors, Joy said: “When your children don’t comply, this is their walk of shame to their classroom where they go into false imprisonment.”

Almost as soon as the parents got to the room, they turned around to head back to the meeting, acting on an earlier suggestion to gain entry wearing masks and then take them off. “They’re not going to arrest us all for trespassing, right?” one woman asked.

“Yeah, exactly,” Calus responded.

“Let’s go in and see,” Joy said.

Less than a minute after they walked into the auditorium, Mancini started making rounds, asking people in the group who’d removed their masks to put them back on. One by one they ignored or argued with him. When one woman refused, Mancini picked up her cup and a stack of papers she’d set down on the staircase where she was seated. “That’s it. Time to leave,” he said, putting his hand on the woman’s back and motioning for her to exit.

“Don’t leave, make them call the police,” Joy said as she livestreamed Mancini escorting the woman out.

Then, as a first grader was preparing to give a presentation about Lunar New Year traditions in Chinese culture, Mancini tapped Calus on the shoulder.

“I realized it was a setup after the evening ended,” Mancini later recalled to ProPublica. “But at some point you have to do your job. Because if you ignore one, then you have to ignore them all.”

What happened next, depending on whom you ask, was a security guard either enforcing district rules or going too far. Calus was never charged with trespassing that night, but Mancini did wind up facing a criminal charge.

Mancini is among 59 people identified by ProPublica who were arrested or charged as a result of turmoil at school board meetings across the country from May 2021 to November 2022. While most of those people were parents or protestors who disrupted the meetings by railing against mask mandates, the teaching of “divisive” racial concepts and the availability of books with LGBTQ+ themes in school libraries, Mancini’s incident was different. It’s the only case ProPublica could find in which a member of a school district’s security team was charged for ejecting a parent from a school board meeting.

The Monroe County district attorney’s office did not answer ProPublica’s questions. Joy declined to be interviewed.

Calus and Mancini had crossed paths before. During a May 2021 school board budget hearing, Calus and other parents had yelled from the audience about there not being a public comment period — and Calus said that, as a result, Mancini and a police officer asked him to leave. He also said he did not believe Mancini had the authority to remove him and only complied because a police officer was involved.

Calus told ProPublica that when he showed up at the February 2022 meeting, there wasn’t a preexisting agreement with the other parents to cause a scene or get someone in trouble. “We didn’t plan to meet together,” he said. “We didn’t conspire together.”

Tammy Gurowski, who was president of the Webster school board at the time of the February 2022 incident, recalled that in the months before the incident, board members paid attention to the grievances parents expressed on social media. “It wasn’t the majority, but it was a very angry, very frustrated minority,” she said.

She also said the board attempted to recognize the parents’ concerns and that board members were aware of the growing unrest at nearby school board meetings.

“I think for us as a board at that time, we just saw that it’s just fracturing the whole premise of what public education was designed to do — and that is, educate every child without all those issues at play.”

The Webster middle school where the Webster Central School District Board of Education had the February 2022 meeting (Matt Burkhartt for ProPublica)

Webster, a predominantly white, middle-class town of roughly 45,000 people, is among dozens of small towns in the U-shaped band of suburbs that surround Rochester. In that swath of Monroe County, small groups of organized parents have accused multiple school boards of indoctrination and creating unsafe conditions.

At a June 2021 meeting in nearby Penfield, a mother bemoaned the district’s “scary” diversity, equity and inclusion efforts, suggested that the board was pushing a transgender agenda and told members to understand that the students “are God’s children.” A short time later, a father in the audience yelled that one of the board members should be respectful of parents. The board member yelled back, “You’re not going to stand up here and do anything to me, asshole!” — prompting the father to jump on the stage and confront the school board member face-to-face.

In the months before the incident in Webster, four parents were arrested for disrupting other meetings in neighboring school districts. Charges against all four were dismissed.

In October 2021, in a suburb on the other side of Rochester, members of the Hilton Central School District board adjourned a meeting after asking the sheriff’s office to assist with disruptive parents. One parent who refused to mask was charged with trespassing. Two others faced charges for refusing to leave the property. Parents would go on to lead an effort to ban a book with LGBTQ+ themes from the district. The superintendent would later say the book was cited in a bomb threat made against the district. Two similar anti-LGBTQ bomb threats followed. Agencies, including the FBI, concluded the threats were a hoax, sent anonymously from an overseas server.

In an incident similar to the one in Webster, a parent in nearby Fairport named Shannon Bones livestreamed her arrest at a school board meeting during which she’d kept her mask lowered. Bones later appeared on “The Megyn Kelly Show,” where she alleged she had been singled out for arrest. She went on to claim that this particular meeting “was very different than previous meetings” because the board had “worked with” a group called Black in the Burbs and that the group had “brought in activists.”

Immediately after that August 2021 meeting, there was a shouting match between two groups of parents in the parking lot. One group included Bones, who’d been released by police at the scene, and an opposing group coalesced around Tiffany Porter, the founder of Black in the Burbs. Porter said she had posted a photo of a young man on social media after, she alleged, he threatened her as a result of her activism, and the man’s mother was with Bones in the parking lot. Bones denies having anything to do with the confrontation.

“You made it personal, bitch! You made it personal!” the mother yelled in a video recorded by one of Porter’s friends.

“I don’t know who your son is,” Porter replied.

“Go wear your mask!” another woman shouted after the groups continued their back-and-forth yelling.

“Go fuck yourself,” Porter snapped back.

A prosecutor dropped trespassing charges against Bones within three weeks. But Bones continued to use the case as a rallying cry against government overreach, filing a wrongful arrest lawsuit seeking $17 million in damages. The case is ongoing.

Bones told ProPublica that her arrest was “violent aggression” against parents attempting to exercise their rights: “I think we are somewhat in the middle of the righteous battle over who is going to control the education and upbringing of children.”

Porter, a Black, queer woman who’d responded to George Floyd’s murder by launching Black in the Burbs and organizing protests during the summer of 2020, says she was not plotting against Bones or working with the board. But she said she did expect trouble at meetings because online vitriol was flaring. “We were in and are still in a civil war when it comes to public education,” she said.

At the February 2022 meeting in Webster, after Mancini tapped him on the shoulder, Calus didn’t budge. Mancini then gripped the back of the rolling chair Calus was sitting on and tried to wheel it toward the exit. When Calus lunged forward, Mancini grabbed the back of his jacket.

“What the fuck are you doing?” Joy screamed as she kept livestreaming. “That’s assault!”

Calus’ coat slid off and he sat back in his chair. Mancini stepped in front of him, pointing to the door. Another security guard grabbed Calus as Mancini shoved the chair toward the exit. Three guards pushed Calus out of the auditorium.

The meeting continued as Joy and others yelled about Mancini’s actions. “The cops should have arrested this fucking guy instead of them throwing Dave out,” she said.

Watch video ➜

An attorney named Chad Hummel was at home watching Joy’s livestream but had stepped away before the incident with Mancini. “In the meantime, my phone literally starts buzzing off the counter,” he later recalled on a friend’s podcast. “I’m getting text after text after text after text. I read my text messages, and somebody tells me that Dave Calus just got quote-unquote manhandled and dragged out of the place. So I immediately texted Dave.”

Calus said he met Hummel in 2021 when the attorney offered his office as a meeting place for parents to give depositions in a lawsuit they had filed against 15 local school districts over COVID-19 protocols, hoping to force schools to reopen for in-person instruction. Calus was one of nearly 30 plaintiffs in the suit, which was dismissed six months later.

That year, Hummel started hosting a show on the We The People Podcast Network, a local platform of political programs that aims to “bring the right and the left together” and allow “both sides to present their similarities.” Yet Hummel’s show promised “to break down the hypocrisy of the left and fight for the right.” He would later tell his listeners that the FBI had questioned him about being at the Capitol on Jan. 6.

Prior to the incident involving Calus, Hummel had stepped in to represent a local woman who was arrested for confronting a school district employee over the masking policy. In that case, the woman faced charges for allegedly assaulting a school bus monitor who tried to make her son wear a mask. (Police said the woman also encouraged her child to punch the bus monitor; there’s no record of the outcome of the case.) Months before that, Hummel himself had been arrested in his own kid’s school district. He had refused to mask at his son’s baseball game and then refused to leave when security tried to escort him out for breaching district policy. He was charged with third-degree criminal trespass and was preparing for his own trial when Calus’ incident landed on his radar.

Hummel, who was later acquitted, did not respond to ProPublica’s questions.

Calus said that the night of the incident, Hummel recommended he call the Webster Police Department to press charges against Mancini and said that an officer came to his home to take a statement. The Webster Police Department did not respond to ProPublica’s questions.

Calus also said he’d wanted the media to cover the incident. He recalled that, though he’s a registered Democrat, “nobody on the left wanted to pick it up.” So he ended up on conservative programs. “I was willing to give interviews to anybody who was willing.”

The day after the incident, with Hummel at his side, Calus was a guest on a We The People Podcast Network show hosted by Hummel’s friend. Two days later, Calus and Hummel were featured guests on Greg Kelly’s show on NewsMax and the “Hannity” show on Fox News.

“There’s been political overreach and control over our kids for so long,” Calus told Sean Hannity. “And we haven’t been asking for a ban on masks. All we want is a choice. We deserve the right to choose whether our kids go to school with a mask or not.”

A week later, Hummel said he had an important announcement to make about the case on a “bonus” episode of his podcast: “My Information at this point is that Mr. Mancini was in fact charged today in Webster town court.” The Monroe County district attorney’s office had charged Mancini with second-degree harassment.

At around the time of Calus’ media appearances, Mancini and his family began receiving alarming messages on Facebook.

“I wouldn’t be surprised if your scumbag ass catches a beating,” one message read. “You better be careful who you put your hands on.”

“Are you one of the rent-a-dick brown shirt Nazis in the video of the school board meeting, assaulting a peaceful taxpaying father?” said another message.

Mancini said he had to shut down his Facebook page because the messages kept coming. “They posted on different accounts that they were going to come by my house and do a citizen’s arrest,” he said. “I would get anonymous phone calls about different stuff. Got to the point I wasn’t even answering my phone anymore unless I knew the person that was calling me.”

Meanwhile, many people who’d watched Joy’s livestream, which racked up 185,000 views, sympathized with Calus. In one of the 1,600 comments, one man compared him to Rosa Parks “who refused to give up her seat on a bus” and to anti-segregation student protestors who “quietly sat in at lunch counters while enduring all kinds of physical and verbal abuse.”

In September 2022, Mancini arrived for his trial in Judge David Corretore’s courtroom. He was represented by the high-profile defense attorney Joe Damelio, a childhood friend who had previously defended several politicians charged with federal crimes.

The trial lasted two and a half hours. The judge found Mancini not guilty of harassing Calus.

Details of the trial and the case are scarce. Damelio did not respond to a request for comment. A spokesperson for the Monroe County district attorney’s office stated that court and police documents had been sealed, consistent with New York law, because Mancini was acquitted. After an initial interview with ProPublica, Mancini declined further comment, referring interview requests to his employer, the Webster Central School District. The district did not respond to repeated requests for an interview or to written questions.

Calus said he was disappointed by the outcome of the case. “It’s not like I wanted Ken to go to jail,” he said. “But I would have thought the judge would have said, ‘Yeah, you know what, Dave, you didn’t deserve that. Your rights were violated. We’re gonna give Ken a slap on the hand.’ But realistically, that’s not what happened.”

Calus never publicly acknowledged the acquittal, which received no media coverage.

“My ex-wife tells me every once in a while, ‘I ran into so-and-so and they still think that you’re a loser for what you did in 2022.’ And I just didn’t need that shadow following me everywhere, constantly,” Calus said of his silence after the case.

But Calus briefly returned to the public eye. This year, he ran for a seat on the Webster Central School District board. He lost his bid in May.

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by Paul Kiel

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

For the past quarter century, Intuit, the maker of TurboTax, has worked to thwart one clear threat to its profits: a free, publicly funded tool to file taxes online. The company’s success at preventing that threat was near total — until earlier this year, when the IRS announced a plan to test such an approach. Advocates cheered, seeing it as a first step to a system where Americans, particularly low-income taxpayers, could easily avoid paying big fees for tax preparation.

It’s a new chapter in the long-running conflict over free tax filing, but Intuit has fallen back on some tried-and-true tactics, ones previously documented by ProPublica. In Washington, D.C., the company has deployed 63 lobbyists this year, according to OpenSecrets, to stalk the halls of government. Meanwhile, op-eds and stories that parrot Intuit’s talking points have appeared in at least 20 newspapers and other publications across the country.

The centerpiece of this PR push has been an argument that Intuit unveiled on its website in May. Seeking to capitalize on recent research that found racial disparities in IRS audits, the company has argued that an IRS tax filing tool would only make things worse. It’s a conclusion rejected by authors of that research, but the idea has certainly made for some eye-catching headlines.

“IRS Free Tax Service Could Further Harm Blacks,” is how the Defender, a Black paper in Houston, put it in a June headline. The piece cited unnamed “industry experts” as raising the concern but quoted only one person by name: Intuit’s spokesperson Derrick Plummer. The story was produced by Trice Edney News Wire, a service that provides content to local Black papers across the country. Hazel Trice Edney, the service’s editor-in-chief, did not respond to requests for comment.

Later that month, an article in Black Enterprise (“Critics Claim The IRS Free Tax Prep Service Could Hurt Black Americans”) took a similar approach. The story’s arguments were attributed to “industry skeptics” or other unnamed opponents of the IRS proposal, while Intuit’s Plummer was the only critic identified by name, and he was quoted at length. Ida Harris, Director of Digital Content for Black Enterprise, which touts itself as “the premier business, investing, and wealth-building resource for African Americans,” told ProPublica that “the story came to fruition through information shared by a fellow media professional,” but declined to identify who that was. The article was “not sponsored content, no payola was involved,” she said.

Internal Intuit documents from last decade, previously divulged by ProPublica, made clear that “pushing back through op-eds” was part of the company’s strategy against what it called government “encroachment.” One specific goal: “Buy ads for op-eds/editorials/stories in African American and Latino media.” ProPublica did not find evidence that Intuit has paid to place stories this year, but otherwise, the 2023 campaign seems to be following that template.

TurboTax has long dominated the market for online tax filing, in part by luring customers with the promise of “free” filing. A wave of government investigations, prompted by ProPublica’s reporting, has accused Intuit of frequently misleading customers with that promise. Most recently, a Federal Trade Commission judge ruled that the agency’s fraud suit against Intuit can proceed. Intuit has denied wrongdoing and has vowed to appeal.

Back in 2014, ProPublica reported on an Intuit-backed campaign against the idea of return-free filing, a government service that would pre-fill tax return information, just as governments do in many other countries. A rabbi, a state NAACP official and others penned pieces claiming return-free filing would hurt “the most vulnerable people.” Various PR firms and lobbyists were involved in organizing the effort.

This time around, the threat to the tax prep industry is what the IRS has called a direct file option. The agency will build an online tool similar to TurboTax that allows people to file their taxes by answering simple questions. The option will not be widely available next tax season, however, since it is only a test run. The agency has yet to detail who will be eligible to use it.

“The fact of the matter is that the industry is targeting black and brown communities trying to stoke fear of a direct file tool,” said Brandon Tucker, senior policy director of Color of Change, an online activist organization devoted to racial justice that supports direct file. “Black people are critical to their profit margins.”

In a statement, Plummer, Intuit’s spokesperson, declined to comment on the company’s role in the recent spate of op-eds, except to deny it had paid to secure the pieces. “With an idea as bad as the Direct File scheme we don’t have to pay anyone to talk about how terrible it is,” he wrote. “The fact that Americans across the political spectrum and people of color are raising alarm bells about how harmful the Direct File scheme will be to the most vulnerable should be a wake-up call to its cheerleaders.”

In July, Benjamin Chavis penned the highest profile entry in the current wave of Intuit-friendly op-eds. Chavis is a former executive director of the NAACP who currently heads the National Newspaper Publishers Association, a trade association for Black papers. He also is the national co-chair of No Labels, which seeks to raise $70 million to launch a third-party presidential ticket for 2024. (“Dr. King was a centrist” and would have supported No Labels, Chavis has argued.) Chavis did not respond to questions from ProPublica. His Chicago Tribune op-ed did not quote Intuit, but used language that echoed the company’s arguments. “The IRS has an alternative to TurboTax. But will that widen the racial wealth gap?” was the headline.

One of Chavis’ arguments, that an IRS tool could lead Black taxpayers to miss out on tax credits, came from a report by the Progressive Policy Institute. Despite its name, the nonprofit think tank is aligned with the pro-business wing of the Democratic Party and has a long history with Intuit. (One Intuit document listed PPI as part of its “coalition.”) After the company’s long-tenured chief lobbyist retired, he joined PPI’s board. PPI declined to say whether Intuit had contributed to the organization. In a statement, PPI President Will Marshall said, “No funding source has a vote on the subjects PPI tackles or the positions it takes.”

The core of Chavis’ piece was the same as the earlier stories by Trice Edney News Wire and Black Enterprise — an argument from an Intuit blog post.

Earlier this year, a study by a team of academic and government researchers found that the IRS audited Black taxpayers between three and five times the rate of other taxpayers. As a result, Intuit argued, having the IRS prepare the taxes of Black taxpayers “would likely increase these inequities.” Chavis more timidly offered that it “may increase racial income inequality.”

The study itself, however, lends no support to that conclusion. The authors pinpointed audits of people who claim the earned income tax credit as the driver of the racial disparity. The EITC is one of the main anti-poverty programs in the U.S. and is aimed primarily at low-income, working parents: Most recipients earn under $20,000 a year. For decades, the IRS has disproportionately audited EITC claimants because of pressure from Republicans in Congress as well as laws that require a special focus on “improper payments.”

Together with the gutting of the IRS’ budget, which caused audits of the rich to tank, the focus on the EITC meant the agency audited those who claimed the credit at about the same rate as the top 1% of taxpayers by income. Another clear consequence was that Black taxpayers, who on average have lower incomes, were disproportionately audited. ProPublica examined these problems in articles in 2018 and 2019. One of those articles reported that “the five counties with the highest audit rates are all predominantly African American, rural counties in the Deep South.” ProPublica’s work was cited in Congress as well as in the study.

The researchers found that the way the IRS selected EITC audits made the disparity even worse, but put the blame on “seemingly technocratic choices about algorithmic design,” not conscious bias.

Evelyn Smith, one of the co-authors of the study and a Ph.D. candidate in economics at the University of Michigan, disagreed with Intuit’s take on her work. “With free, assisted filing, we might expect EITC claimants to make fewer mistakes and face less intense audit scrutiny, which could help reduce disparities in audit rates between Black and non-Black taxpayers," she said.

Last week, in response to the study’s findings, the IRS announced major changes to how it audits EITC claims. The agency will “substantially” reduce the number of EITC audits, said IRS Commissioner Daniel Werfel. The move is part of the IRS’ broader shift to focus more on high-end tax evasion.

The recent PR push against direct file has not been limited to Black publications and authors. In Nevada, a pair of accountants and the state’s former controller penned op-eds in local newspapers with almost the same wording. “We urge Nevadans to speak out about this congressional proposal and urge our elected officials in Washington D.C. to not let the IRS have more power than it already has!” said one. “I urge all Nevadans to speak out about this Congressional proposal and urge our elected officials in Washington D.C. to not let the IRS have more power than it already has!” said the other. Neither the writers nor the editors of papers they appeared in responded to requests for comment.

In Arizona, a lawyer named Phillip Austin, vice chair of the East Valley Hispanic Chamber of Commerce, argued in the Arizona Republic in July that the IRS providing free tax filing “would disproportionately hurt the Hispanic community.” Austin told ProPublica that he was not compensated for writing the piece. “I submitted the letter as an Op-Ed, reflecting my opinion, citing research,” he said, but declined to say how he came to write it.

Meanwhile, there’s been a steady supply of op-eds and letters from right-leaning and centrist nonprofits denouncing direct file in politically oriented Washington, D.C., publications. In July alone, The Hill ran four op-eds against the idea. One came from Center Forward, a group that says it aims to “give voice to the center of the American electorate.” Recently listed as among the group’s “stakeholders” was H&R Block’s chief lobbyist. Neither Center Forward nor H&R Block responded to requests for comment.

While the op-eds keep coming, the tax prep industry did get one early win in Congress. In July, the House Appropriations Committee passed a provision barring the IRS from spending money on “a free, public electronic return-filing service option.” A similar provision almost became law in 2019.

This provision is unlikely to pass in the Democratic-controlled Senate, however. Instead, the IRS is on track to launch its direct file pilot next tax season. What happens after this spring is unclear — except that Intuit will continue to work to make sure the idea goes no further.

by Lulu Ramadan, The Seattle Times

This article was produced for ProPublica’s Local Reporting Network in partnership with The Seattle Times. Sign up for Dispatches to get stories like this one as soon as they are published.

In its early days as a major aircraft manufacturer, Boeing was remarkably open about toxic chemicals flowing from its factory into the neighboring Duwamish, Seattle’s only river and a longtime source of food, tradition and culture for Indigenous people.

In fact, the company described the Duwamish River as “a natural collector for Boeing’s fluid wastes” in a 1950 magazine article Boeing produced for its employees. Boeing said at the time that it had a handle on the situation — asserting, for example, that some of its most volatile waste would be neutralized by chemicals released by other polluters.

Today the waterway is among the nation’s most contaminated, a full-scale cleanup is scheduled to begin next year, and Boeing is deep in negotiations over how to split the cost with other leading landowners on the river: the city, adjoining King County and the Port of Seattle.

As with most negotiations conducted under the nation’s Superfund cleanup law, the parties agreed long ago to keep details of their talks secret. But a short-lived lawsuit, filed by the port last year and withdrawn in June, offered a glimpse of a staggering dollar figure that’s never been part of the public discussion.

In court papers accusing Boeing of trying to slough off its share of the cleanup bill, the port said the total cost could top $1 billion. The sum is more than double any estimate previously made public, and it would make the Duwamish one of the nation’s costliest cleanups on record. Government websites still put the cost at about $340 million.

The dollar amounts alluded to in the 2022 lawsuit point to a high-stakes and largely hidden deliberation between the region’s biggest government players and a major company born in Seattle more than a century ago.

A dredge operates in front of Boeing’s property, at bottom, on the Lower Duwamish Waterway in 2014. Full cleanup will involve dredging contaminated soil from 5 miles of river bottom. (Alan Berner/The Seattle Times)

Whatever the parties agree to, taxpayers may never know whether the cost split was fair because how the decision was reached is intended to remain secret.

This month, in response to questions from The Seattle Times and ProPublica, Boeing said it was the port that is refusing to do its part.

Local Government Agencies and Boeing Have Spent More Than $200 Million Cleaning Up “Early Action” Sites in the Duwamish Superfund Area Since 2001

A full-scale cleanup is scheduled to begin next year. The Port of Seattle says it could cost $1 billion, which would make it one of the nation’s costliest Superfund cleanups.

Sources: EPA, Lower Duwamish Waterway Group (Lucas Waldron/ProPublica)

“We were extremely disappointed in the Port’s refusal to pay its equitable share of the cleanup and in their decision to subsequently file and then dismiss a lawsuit,” the company said in a written statement.

Boeing declined to comment on the private negotiations or disclose the exact amount it agreed to pay, but it said that the company expects to spend “hundreds of millions of additional dollars.”

This summer, Boeing joined with the city and county in issuing a separate statement saying the lawsuit’s allegations do not affect their “ongoing and lasting commitment to restoring the water quality of the Lower Duwamish for people, salmon, and orcas.”

“The City of Seattle, King County, and Boeing will continue to work to advance the cleanup to benefit this generation and those that will follow,” the joint statement reads.

The port continues to claim, as it did in its lawsuit against Boeing, that negotiations could saddle taxpayers with “tens of millions of dollars” in costs for which the company is liable.

Meanwhile, people who have waited for the Duwamish to be restored say they worry about the lack of information available to the public.

“The reality is there isn’t a lot of transparency,” said Paulina López, executive director of the Duwamish River Community Coalition, a federally recognized task force dedicated to representing community interests in the cleanup.

What advocates say worries them even more is the possibility that an impasse over who pays, two decades into the river’s Superfund listing, will mean yet further delays in restoring the river.

In 1922, the original meandering course of the Duwamish River was still visible after dredging opened up a straight, deepened waterway to create industrial land south of downtown Seattle. (Seattle Times Archives)

Two centuries ago, as white settlers began to develop the land, Native tribes successfully negotiated for their fishing rights on the Duwamish River to preserve a cultural touchpoint and vital food source. The city of Seattle eventually recognized the river’s value as a pathway for transporting cargo. It scraped away the winding river’s marshy banks, straightened its natural bends and dredged its floor.

What was once a complex ecosystem of mudflats, native plants and spawning fish became a sprawling industrial corridor.

Boeing’s first factory was next to the Duwamish River in this wooden building, photographed in 1917, which came to be known as the Red Barn. It was relocated and restored, then opened to the public in 1983 as part of the Museum of Flight. (Seattle Times Archives)

Boeing found a home along the Duwamish in 1916, launching an operation from an abandoned shipyard where it built seaplanes. In the 1930s, the company developed the nation’s first four-engine bomber, and the federal government eventually ordered about 7,000 B-17s over the course of World War II. By the end of the war, Boeing’s plant along the Duwamish expanded to nearly 1.7 million square feet.

It ultimately became one of the largest landowners in the industrial district, but publicly owned facilities also contributed toxins: water runoff tainted with chemicals from the city’s steam plant, pollution from the port’s cargo terminals and unfettered sewage dumped from King County’s wastewater system.

The river is now contaminated with heavy metals and cancer-causing chemicals, including polychlorinated biphenyls (PCBs) and polyaromatic hydrocarbons (PAHs).

A public health warning about eating fish from the polluted waterway at Duwamish River People’s Park in Seattle’s South Park neighborhood. (Kevin Clark/The Seattle Times)

Along the river now are large health advisory signs warning the public not to eat bottom-feeding fish and to limit consumption of certain salmon, a warning system King County calls “Fun to Catch, Toxic to Eat.” Even direct contact with river mud is a risk, the state health department warns. Tribal fishing, protected by an 1855 federal treaty, continues along the river despite declining fish populations and public health warnings.

Some of these contaminants can be traced to Boeing’s plants along the river, which is why the federal government has named it as one of the major responsible parties.

Boeing’s 1950 magazine article, brought to light in the port’s lawsuit, described its efforts to curb pollution, but the company openly acknowledged that “any unrestrained liquid emptied on the Boeing premises is bound sooner or later to get into the Duwamish.”

Ken Moser, known as the Puget Soundkeeper, checks a sample for water quality violations at an unknown outflow on the Duwamish River in 1991. (Alan Berner/The Seattle Times)

Tracy Collier, a toxicologist who worked at the National Oceanic and Atmospheric Administration’s Northwest Fisheries Science Center for three decades and who read the magazine article at The Times’ request, said that it makes legitimate scientific arguments about how pollutants can be diluted and neutralized, but that it’s impossible to tell from the description alone whether Boeing successfully reduced the amount of contamination.

It’s also important to note, Collier said, that some contaminants now found in high concentrations in the river weren’t on the radar 70 years ago. Boeing is one of the parties known to have contributed PCBs, for example, according to the state Department of Ecology.

Divers from the Environmental Protection Agency collect samples from the bottom of the Duwamish River near the Marine Power & Equipment shipyard in 1985. The EPA received court permission that year to search for evidence of pollution. (Greg Gilbert/The Seattle Times)

“We didn’t know in 1950 that PCBs were going to be persistent and as toxic as they are,” Collier said. The chemical wasn’t banned by the EPA until the 1970s.

Boeing said in a statement that its article described disposal practices that were the industry standard at the time. The company added that it proactively took the steps described in the article before federal and state environmental laws took effect.

In early 2000, a survey by the EPA revealed that the river was eligible for Superfund designation, meaning it was one of the most polluted sites in the country.

The Superfund, created by Congress in 1980, was meant to address the nation’s legacy of toxic industrial waste by establishing a process to pay for cleanups. It was also known to result in costly legal battles. The port, city, county and Boeing hoped to divvy up the tab and clean the river without triggering the Superfund process.

“They were worried about the stigma it would cast on the city, and some believed that they could clean the river up faster and better without EPA dogging their efforts,” BJ Cummings, community engagement manager for University of Washington’s Superfund Research Program, wrote in her book “The River That Made Seattle,” which details the Duwamish’s history.

The Port of Seattle, Boeing, the city of Seattle and King County dredged contaminated soils in the lower Duwamish River as part of an “early action” cleanup in 2014. (Alan Berner/The Seattle Times)

But federal environmental regulators needed to sign off. They wanted an agreement that would allow them to go after polluters for damage up to three years after completion of the cleanup, just as they could under the Superfund.

Boeing would not agree. The company told a Times reporter in 2000 that it caused only a small part of the pollution and was worried that it would be stuck with a big share of the cleanup.

“We couldn’t sign the agreement without assurances that there would be an equitable outcome,” a Boeing spokesperson said at the time.

The Duwamish River landed on the national Superfund list the following year.

The rechanneled Duwamish River, seen here in 2004, became an industrial and shipping waterway and sewer in the 20th century. Today, the Lower Duwamish Superfund site stretches above and below the First Avenue South Bridge, lower right. (Tom Reese/The Seattle Times)

With EPA oversight, the three government agencies and Boeing agreed to equally front the bill for testing the river water, surveying the contamination and planning the cleanup. They planned to eventually redistribute the costs based on responsibility for pollution, a canon of Superfund law known as the “polluters pay” principle.

What happened next is hidden by an agreement signed by the parties to keep the process private.

This type of process was first created under the Superfund to make it easier for private companies to discuss business practices and liabilities frankly with the EPA. The goal was to have polluters agree among themselves on how to cover cleanup costs.

Next to the South Park Bridge, polluted soil is scooped from the Duwamish River in 2014. This dredging was a precursor to Superfund cleanup. (Alan Berner/The Seattle Times)

But in this case, the polluters in question include three local governments. Every dollar that Boeing doesn’t pay could end up the responsibility of Seattle-area taxpayers.

Even where the negotiators meet, who is in the room and what evidence is considered are secret. But court documents and interviews offer a few intriguing details about the process so far.

In 2014, the group hired John Barkett, an experienced environmental lawyer from Florida, to act as an outside allocator and deliver a report suggesting how the parties should divide the costs.

Court documents Boeing filed seeking to put the port’s lawsuit on hold describe parties exchanging historical records, responding to detailed questionnaires, providing expert reports, taking depositions and attending meetings to discuss costs.

Barkett provided his final report to the parties last year and hasn’t been involved in the process since, he told The Times and ProPublica, declining to speak in detail about the Duwamish River or the allocation. The news organizations asked the port, the city and the county for a copy of the report, but all declined, citing the nondisclosure agreement among the parties.

Both King County and the city said in separate statements that they believe the ongoing allocation process has been “thorough and fair.” Both said they plan to make their individual shares public once the process wraps up, but neither one plans to release the full report. The reason, the city wrote in an email, is that it “contains each party’s sensitive operational and financial information.”

The allocation report is nonbinding, meaning the parties can adjust or reject Barkett’s suggested breakdown of costs. Court documents show that on July 11, 2022, Boeing agreed to an undisclosed share of the cost. The Port of Seattle filed its lawsuit eight days later.

“Boeing has gleaned billions of dollars in profits over the past several decades partly through externalizing its waste disposal costs by dumping wastes into the Lower Duwamish River,” the port said in its claim.

The Duwamish River’s West and East waterways flow around Harbor Island into Elliott Bay, with Sodo in the foreground and West Seattle in the background, seen here in 2015. The Duwamish, Seattle’s only river, is a longtime source of food, tradition and culture for Indigenous people. (Bettina Hansen/The Seattle Times)

The port said it had negotiated diligently for eight years, but that the cost split on the table would force the port to “redirect taxpayers’ funds from projects and programs that benefit the public,” threatening environmental justice initiatives, “employment funds” and projects aimed at expanding public access to the river.

The port’s allegations opened old wounds for tribal leaders who have fought for decades to hold the river’s polluters accountable, said Leonard Forsman, chairman of the Suquamish Tribe, which has fishing rights on the river.

“I know that industries along the river made a lot of money at the expense of our waterway,” Forsman said.

“They were well aware of what they were doing,” Forsman said of corporate polluters, adding that Boeing and other companies “have to acknowledge that and take responsibility.”

Port officials withdrew the lawsuit in June, saying that “litigation is not the most efficient path to resolution at this time.” Any further discussions would once again take place behind closed doors.

Jamie Hearn, left, Superfund program manager at the Duwamish River Community Coalition, and Paulina López, the group’s executive director, at the Duwamish this year. “The reality is there isn’t a lot of transparency,” López said of the Superfund process. (Karen Ducey/The Seattle Times)

The Duwamish River Community Coalition, which represents the public’s interests in the cleanup, feels shut out, said Jamie Hearn, a lawyer for the coalition. “We don’t have access to a lot of information, and responsible parties are very careful to only release certain details,” Hearn said.

Still, as frustrated as Duwamish activists may be about the lack of transparency in the Superfund process, they want to avoid delaying the cleanup any further.

The community is less concerned with who pays the bill than with making sure the cleanup happens on schedule, said López, the executive director of the community coalition.

“We’ve already waited so long,” she said.

Reclamation work on a Boeing property on the Lower Duwamish River in 2014 included placing tufted hairgrass, bulrush, willows, big leaf maple and more than 170,000 native plants on 5 acres along the water’s edge. (Alan Berner/The Seattle Times)

What is known about the Duwamish cleanup publicly is that it has already cost a lot — and U.S. taxpayers have picked up a big chunk of the bill so far.

The Lower Duwamish Waterway Group, a private-public partnership between Boeing and the three government agencies, says it has already invested more than $200 million in early cleanup projects and habitat restorations along the river, targeting its most polluted parts. These actions have reduced the amount of PCBs in the river’s sediment by half, according to the group.

Boeing said in a statement that it alone invested $115 million on an early cleanup project. In 2015, the company completed a two-year cleanup that turned five acres of industrial waterfront into a wetland habitat with native plants and woody debris. The company touts on its website an award from NOAA for the project.

Boeing recovered $51 million from the federal government in 2018, through a lawsuit that said the Duwamish pollution was the result of the company’s role as a defense contractor during World War II.

Originally, the Superfund was fed by a tax on a variety of polluting industries to ensure cleanups could proceed even if polluting companies went out of business or couldn’t afford to pay.

But since that tax expired, in 1995, taxpayers of all kinds have spent billions of dollars cleaning up hazardous waste released by private companies, according to a 2017 analysis by News21, an investigative journalism project connected to Arizona State University.

The Lower Duwamish River parties are scheduled to embark on the full-scale cleanup as soon as next year.

River water spills from a bucket as a dredger lifts contaminated soil from the bottom of the Duwamish in Seattle’s South Park neighborhood in 2017. (Alan Berner/The Seattle Times)

The schedule will be complex and intricate. In-water work, which will involve dredging and barging away contaminated sediment, can only happen during a short window, typically October to February, to avoid interfering with fish migration or fishing treaties. It will likely take years to complete the cleanup.

Removal of contaminants from the river’s most polluted stretch, where Boeing Field airport is located, is supposed to come first, after a final bout of planning and contracting, according to the EPA.

But it isn’t clear how the lengthy cost negotiation will play a role in the timeline. The dozens of parties responsible for the cleanup have to agree to a payment plan and present it to the EPA for approval.

Agreeing is key to avoiding years of litigation and bickering.

The city of Seattle warned as much on its website, where it notes that cleanup parties can disagree, “but everyone knows that those who reject their assigned shares are likely to be sued by the others.”

Correction

Sept. 27, 2023: This story originally quoted a King County health warning incorrectly. The correct wording is “Fun to Catch, Toxic to Eat,” not “Fun to Fish, Toxic to Eat.”

by Todd Wallack, WBUR

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Massachusetts housing officials announced Friday that they are launching a “90-day push” to reduce the number of vacancies in state public housing by the end of the year.

The initiative comes after an investigation by WBUR and ProPublica found nearly 2,300 of 41,500 state-funded apartments were vacant at the end of July — most for months or years — despite a housing shortage so severe that Gov. Maura Healey called it a state of emergency. Massachusetts is one of only four states with state-subsidized public housing, and about 184,000 people are on a waitlist for the units. Massachusetts also has federally funded public housing, which is more common nationwide.

The state’s plan focuses on providing financial and other assistance to local housing authorities, which maintain and operate the apartments, to help fill units. The Executive Office of Housing and Livable Communities is “undertaking a new initiative to significantly reduce the number of state-aided public housing vacancies,” Fatima Razzaq, acting director of the public housing division, said in a memo. “We recognize the shared responsibility in tackling this challenge and are therefore initiating a 90-day push to assist with reoccupying units.”

Chelmsford Housing Authority Executive Director David Hedison, who has complained that state policies for managing apartments hamper local agencies, said the new initiative shows the state is now committed to reducing vacancies.

“I’m thrilled,” he said. “It appears to me now that all hands are on deck and if there’s an issue, they’re going to be highly responsive.”

Among other measures, the state will help pay employee overtime costs for localities that have high vacancy rates and are approved for budget exemptions. It will also pay for contracting with other local agencies to assist with tenant selection and preparing units for new tenants.

In particular, Razzaq wrote, the state will closely monitor local housing authorities with vacancy rates above 10%. State housing management specialists will conduct weekly check-ins and provide technical assistance.

State housing officials will also visit local agencies where units are empty for more than 60 days — the amount of time the state allows local authorities to fill a vacancy — because they need certain types of repairs. As of the end of July, WBUR and ProPublica found almost 1,800 of the vacant units, including some with at least three bedrooms, had been empty for more than 60 days. About 730 of those have not been rented in at least a year.

Because the state pays local housing authorities to take care of the units whether they’re occupied or not, the vacant apartments translate into millions of Massachusetts taxpayer dollars wasted due to delays and disorder fostered by state and local mismanagement. Reasons for the vacancies include a flawed online system that the state created for selecting potential tenants, as well as underfunding for maintenance, renovations and staff.

The housing authority in Watertown, a Boston suburb, has six maintenance workers for 589 units. Michael Lara, executive director of the agency, said he plans to request additional maintenance staff as a result of the state’s initiative. The announcement shows that the state is “treating the situation seriously and with care,” he said.

In an interview with WBUR this week, Healey said she has asked Housing Secretary Ed Augustus to take the lead in fixing the problems and noted the state will centralize the screening process for people on the waitlist.

As WBUR and ProPublica first reported, the state recently hired a marketing firm to take over a portion of the applicant screening to try to speed up the process of filling units.

“Our public housing system is absolutely crucial to helping to solve our housing crisis,” Healey said in an interview on WBUR’s Radio Boston on Wednesday.

Healey also vowed to unveil a new bond bill with additional funding for public housing, but she declined to provide details. The state has estimated there is a $3.2 billion backlog of repairs needed in public housing. Some units are in such disrepair that they have been condemned or demolished.

In 2018, the Legislature allocated $600 million over five years for capital expenditures in public housing — not enough to catch up with all needed repairs.

House Speaker Ron Mariano said that the Legislature originally ordered the state to create a central waitlist to address concerns that some local housing authorities weren’t offering units to people fairly in order of who applied. But Mariano acknowledged the new system created “some inefficiencies,” making it harder for local housing authorities to find new tenants.

He said he was glad the administration is trying to improve the system.

“That’s what we need to do,” Mariano said at a news conference earlier this week. “We need to make sure that these local authorities have the ability to get in and get the apartments livable and ready.”

Still, Mariano seemed skeptical about some of the claims that local housing authorities need more staff and funding to repair units and fill vacancies.

“I’m sure that’s true in some cases. I’m sure it’s not true in other cases,” Mariano said. “It’s like any other need in a city or town.”

The Legislature approved a 16% increase in operating funds for public housing this fiscal year, allocating $107 million in total. But that’s short of the 100% increase some advocates had lobbied for. Healey had proposed keeping the funding at the same $92 million as last year.

On Thursday, Augustus met with Hedison, the Chelmsford housing authority director, and toured an empty building there slated for renovations. Hedison said the cost has ballooned after discovering additional repairs that need to be made, something he said is indicative of aging public housing. The average age of state-funded public housing is 57 years.

Hedison said Augustus acknowledged agencies need more money for repairs and is working on a bond measure.

“I want to see what it actually means,” Hedison said. “You know, show me the money. Show me the bond bill.”

by Megan O’Matz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

In the northwest corner of Wisconsin, the 73rd Assembly District used to be shaped like a mostly rectangular blob. Then, last year, a new map drawn by Republican lawmakers took effect, and some locals joked that it looked a lot like a Tyrannosaurus rex.

The advent of the “T. rex” precipitated dark times and perhaps extinction for local Democrats.

The new map bit off and spit out a large chunk of Douglas County, which tended to vote Democratic, and added rural swaths of Burnett County, which leans conservative.

The Redrawing of Assembly District 73 Source: Wisconsin State Legislature Legislative Technology Services Bureau (Jason Kao/ProPublica)

The Assembly seat had been held by Democrats for 50 years. But after the district lines were moved, Republican Angie Sapik, who had posted comments disparaging the Black Lives Matter movement and cheered on the Jan. 6 rioters on social media, won the seat in November 2022.

The redrawing of the 73rd District and its implications are emblematic of the extreme gerrymandering that defines Wisconsin — where maps have been drawn in irregular and disconnected shapes over the last two decades, helping Republicans seize and keep sweeping power.

That gerrymandering, which stands out even in a country where the practice is regularly employed by both major parties, fuels Wisconsin power dynamics. And that has drawn national attention because of the potential impact on abortion rights for people across the state and voting policies that could affect the outcome of the next presidential election.

The new maps have given Wisconsin Republicans the leeway to move aggressively on perceived threats to their power. The GOP-controlled Senate recently voted to fire the state’s nonpartisan elections chief, Meagan Wolfe, blaming her for pandemic-era voting rules that they claim helped Joe Biden win the state in 2020. A legal battle over Wolfe’s firing now looms.

The future of a newly elected state supreme court justice, Janet Protasiewicz, also is in doubt. Her election in April shifted the balance of the court to the left and put the Wisconsin maps in peril. Republican leaders have threatened to impeach her if she does not recuse herself from a case that seeks to invalidate the maps drawn by the GOP. They argue that she’s biased because during her campaign she told voters the maps are “rigged.”

“They are rigged, period. Coming right out and saying that. I don’t think you could sell to any reasonable person that the maps are fair,” she said at a January candidates forum.

She added: “I can't ever tell you what I’m going to do on a particular case, but I can tell you my values, and common sense tells you that it’s wrong.”

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Given the usually staid campaign statements associated with state-level judicial races, her comments stood out.

But, by any number of measurements made by dispassionate researchers, the maps have, in fact, proven to be extreme.

The Gerrymandering Project at Princeton gives the Wisconsin redistricting an F grade for partisan fairness, finding Republicans have a significant advantage, as do incumbents. “Wisconsin’s legislative maps are among the most extreme partisan ones in the country,” the project’s director, Sam Wang, said in an email to ProPublica.

Wang argues that Wisconsin’s GOP has gone further than most states and engineered “a supermajority gerrymander” in the Senate. Republicans control 22 of 33 Senate seats, giving them the two-thirds required to override a gubernatorial veto. (In the Assembly, the GOP is still two seats short of a supermajority.)

“The resulting supermajority, immune from public opinion, can engage in extreme behavior without paying a price in terms of political power,” Wang warned in a Substack article.

In the two decades before the Republicans configured the maps to their advantage, the state Senate, in particular, was more competitive, and Democrats at times controlled it.

The state’s maps changed dramatically beginning in 2011 when the GOP gained control of the Legislature and Republican Scott Walker became governor. The party redesigned the maps again in 2021, further tweaking the successful 2011 template.

“The current maps, as currently constituted, make it virtually impossible for Democrats to ever achieve majority party status in the legislature,” said Democratic strategist Joe Zepecki of Milwaukee. “Even if they win statewide by like 10 points.”

State politics is now dominated by confrontation and stalemates, with the GOP pushing its agenda and Democratic Gov. Tony Evers regularly wielding his veto power to block Republican initiatives. Unless the maps change or Republicans win the governor’s office, there seems to be no end to this dynamic.

Republicans have argued that it is their right, politically, as the victorious party to craft the maps, and so far the maps have survived legal challenges.

“Our maps were adopted by the Wisconsin Supreme Court because they were legal,” Assembly Speaker Robin Vos said in a statement to ProPublica.

He added: “Republican legislative candidates do well in elections because we have good candidates who listen to their constituencies and earn the votes of Republicans and independents alike.”

Asked at a 2021 Senate hearing whether partisan advantage was the intent of the maps, Vos said: “There is no constitutional prohibition on that criteria, so yes, was partisanship considered as a consideration in the map? Yes, there were certain times that partisanship was.”

Basic goals set by state and federal law govern the drawing of districts. Among them: District lines should be contiguous and compact with equal numbers of people. The boundaries should not, where possible, split counties or municipalities.

But 55 of the 99 districts in the Assembly and 21 of the 33 in the Senate contain “disconnected pieces of territory,” according to the most recent complaint filed with the state Supreme Court by 19 Wisconsin voters. The suit argues that this should not be allowed, even when towns annex noncontiguous areas, creating islands or enclaves in districts.

“Despite the fact that our Assembly and Senate are meant to be the most direct representatives of the people, the gerrymandered maps have divided our communities, preventing fair representation,” said Dan Lenz, staff counsel for Law Forward, which brought the maps suit, in a statement to ProPublica. “This has eroded confidence in our electoral systems, suppressed competitive elections, skewed policy outcomes, and undermined democratic representation."

The Impeachment Question

Protasiewicz’s election came after a hard-fought campaign, with both parties pouring in millions of dollars. Protasiewicz promised to recuse herself from any case brought by the Democratic state party, but not from all cases that might benefit Democrats.

Her victory meant conservatives lost control of the state’s highest court. It gave liberals hope that GOP initiatives, including some dating back to the Walker administration, could be reconsidered.

The court may be called upon to review key voting rules heading into the 2024 presidential election and to decide whether Wolfe keeps her role as administrator of the state elections commission. Also likely to come before the court is whether an 1849 abortion ban, reimposed by the overturning of Roe v. Wade, will stand. This week, after a favorable lower court ruling, Planned Parenthood resumed providing abortion services in the state.

Meanwhile, the possibility of the court striking down the maps, potentially loosening the Republicans’ grip on the legislature, sent the GOP looking for alternate ways to hold on to power.

Republican Sen. Dan Knodl first floated the idea in March of impeaching Protasiewicz — before she had even won.

Months later, after Protasiewicz was sworn in Aug. 1, Vos warned that she risked impeachment if she did not step away from the maps case.

Impeaching a justice who won by more than 200,000 votes, with over 1 million total cast for her, struck many as wildly inappropriate and undemocratic.

The reaction from some Wisconsinites was intense, with Democrats leading the outcry. “To threaten the ability of a duly elected justice who was overwhelmingly elected, functioning in her role, is nothing short of a denial of democracy,” said former U.S. Sen. Russ Feingold, a Democrat from the Madison area who now leads the American Constitution Society, a legal advocacy group.

The state Democratic Party mobilized, launching a $4 million campaign to challenge the prospect of impeachment.

In the face of the backlash, Vos appeared to shift course, briefly. He proposed, in a Sept. 12 press conference, that Wisconsin adopt a system to configure maps based on an “Iowa model,” in which an advisory committee would help the state Legislative Reference Bureau, a nonpartisan government agency, set the boundaries, subject to legislative approval. Without public hearing or Democratic input, the GOP put forth a bill, which passed the Assembly last week, with only one Democrat in favor.

Evers opposed the plan, saying: “A Legislature that has now repeatedly demonstrated that they will not uphold basic tenets of our democracy — and will bully, threaten, or fire on a whim anyone who happens to disagree with them — cannot be trusted to appoint or oversee someone charged with drawing fair maps.”

Vos has made it clear that he is not abandoning impeachment. He announced last week he had assembled a panel of former justices to advise him on criteria for removing Protasiewicz.

Two Protasiewicz voters filed an emergency petition with the Supreme Court last week asking the court to issue an injunction prohibiting the Assembly from impeaching Protasiewicz, or any other justice, without grounds. Protasiewicz recused herself. She told ProPublica she did not wish to comment for this story.

Wisconsin’s constitution allows for impeachment “for corrupt conduct in office, or for crimes and misdemeanors.” Protasiewicz has not been charged with any crime.

If the Assembly impeaches, it would then fall to the Senate to hold a trial and convict, forcing her from office.

If there is a vacancy on the court on or before Dec. 1, Evers would then choose a replacement to serve until the next election in April 2024, coinciding with the GOP primary for president. Evers likely would appoint another liberal-leaning judge.

But there is another scenario posited by political observers. The Senate could simply not take up a vote, leaving Protasiewicz impeached and in limbo. Under the state constitution, she’d be sidelined, unable to carry out her duties until acquitted.

That would leave the court with a 3-3 ideological divide, though conservative Justice Brian Hagedorn at times sides with the liberals.

Timing matters: Under state law, if Protasiewicz is removed or resigns after Dec. 1, Evers could appoint a replacement who would serve until 2031.

The only thing certain about the situation, it seems, is that those state statutes are being studied closely and that compromise on issues such as the district maps, abortion and voting are off the table.

Onions, Memes and Freedom

The dinosaur-shaped 73rd Assembly District was one of three in northwest Wisconsin that the Republicans flipped last year.

Besides Sapik, voters chose Republicans for the neighboring 74th Assembly District and the horseshoe-shaped Senate District 25. In each case, the Democratic incumbents bowed out.

Democrat Janet Bewley, a former state senator who declined to run again in 2022, watched the GOP mapmaking in that corner of the state up close. She said the changes led to small incremental gains for Republicans in various corners of the new maps — a couple dozen votes here and a couple dozen there. But they added up to defeat.

“They went down to the town level, to see how the towns voted,” she said, making it harder for Democrats.

Sapik, who makes a living shipping onions, had never run for public office before. She loved the new maps.

“I’ve said it before, but we really are in the Dinosaur District! I love the way the lines changed and I welcome everyone new into District 73!” Sapik wrote in a Facebook post during her campaign. “Burnett and Washburn counties, you are going to help turn this District red for the first time!”

In a podcast during her primary race in August 2022, Sapik said she decided to run because she opposed business shutdowns during the pandemic and mask mandates.

About the time she submitted her nomination papers, she said, she was interviewed by the state director of Americans for Prosperity, a political nonprofit established by right-wing billionaires Charles and David Koch. Sapik won the group’s endorsement, and it spent about $40,000 advocating for her election, according to FollowTheMoney.org, a nonpartisan initiative that tracks special interest money in politics.

“I’m on that Freedom Train. I want less. I want less laws. And that was the number one reason that AFP likes me so much,” she said on the podcast.

She has vowed to be “a strong, positive voice for my community,” a diverse district that includes farmers, longtime manufacturers and shipbuilders, union members, and outdoors enthusiasts who prize strong environmental protections for Lake Superior. And she has promised to vote against “infringements against personal freedoms,” to promote tourism, and “bring back true American values.”

Sapik declined to speak with ProPublica for this story. In an emailed response to written questions, she sent a so-called “distracted boyfriend” meme and included a label claiming a ProPublica reporter was “writing lies about Wisconsin Republicans.”

The questions included requests for explanations of what’s behind some of her online comments.

Last summer, for instance, Sapik posted a video on Facebook for a campaign fundraising golf event that said: “Let’s get rid of Democracy; everyone in favor raise your hand!”

It elicited confusion among some followers.

“It’s a joke,” Sapik responded at the time.

by Tony Schick, Oregon Public Broadcasting

This article was produced for ProPublica’s Local Reporting Network in partnership with Oregon Public Broadcasting. Sign up for Dispatches to get stories like this one as soon as they are published.

The Biden administration agreed Thursday to spend more than $200 million to fully fund Native tribes’ plans to reintroduce salmon in the upper Columbia River basin — more than 80 years after construction of the Grand Coulee Dam rendered the fish extinct in parts of Washington, Idaho and British Columbia.

The unprecedented show of federal support is a course correction from the previous efforts of some federal agencies to resist tribal salmon restoration, which were documented in an August 2022 investigation by Oregon Public Broadcasting and ProPublica.

“This agreement is the start of fixing a wrong,” Greg Abrahamson, chair of the Spokane Tribe of Indians, said during the announcement of the agreement. “Grand Coulee Dam allowed the desert to bloom, and many faraway cities enjoyed the cheap electricity it produces, at my people’s expense.”

The announcement is also a recognition of the federal government’s long-standing violations of the fishing rights of sovereign tribes, some of whom have signed treaties with the U.S. government. Construction of Grand Coulee Dam destroyed the Columbia River fishing site of Kettle Falls, a regional trading hub and sacred site for many salmon-dependent tribes. It cut off hundreds of miles of river habitat for salmon, who migrate to the ocean as young fish and return to their home waters to spawn as adults. Salmon and other oceangoing fish once accounted for an estimated 60% of the historic diet for Northwest Indigenous people. After the construction of Grand Coulee and other dams in the upper Columbia basin, those fish disappeared.

After nearly 80 years without those fish, a coalition of tribes along the upper Columbia River developed in 2015 a multiphase plan to reintroduce salmon into areas where they’d been blocked.

The tribes’ long-term plan involves building hatcheries, releasing fish into waters above Grand Coulee, tracking their migration and developing plans to pass fish safely around the dams through techniques like trapping them and trucking them up or downstream. They designed the plan to ensure it does not interfere with hydropower generation at the federal government’s biggest dam on the Columbia.

Grand Coulee Dam, and Chief Joseph Dam farther downstream, together produce roughly half of all the federal hydropower on the Columbia River. Those two dams don’t currently have to accommodate salmon, which has cut into revenues at other federal dams.

Two salmon swimming at Chief Joseph Dam (Chona Kasinger for ProPublica)

As OPB and ProPublica found, tribal efforts faced resistance from the Bonneville Power Administration, the agency in charge of selling hydroelectricity from the dams and funding salmon restoration using the revenue. Tribes told Bonneville in 2019 that the federal agency’s lack of funding and stonewalling” put their reintroduction efforts at least three years behind schedule.

Restoration above Grand Coulee is about more than the tribes’ own fishing. The coldwater rivers and streams above the dam are thought to offer a bastion for the fish as the climate turns warmer. Reintroduction has been endorsed by the Northwest Power and Conservation Council, a government body that oversees the fish and wildlife program funded by Bonneville, and more recently by the National Oceanic and Atmospheric Administration, which oversees endangered species recovery for salmon.

The next phase of the tribes’ plan, which this agreement funds, will cost an estimated $208 million. Under the agreement announced Thursday, which doesn’t require congressional approval, Bonneville will put $200 million toward implementing the tribes’ plan over the next 20 years. That money will come from electricity ratepayers in the Northwest. During that span, the tribes agreed to pause an existing lawsuit over the federal government’s dam operations. Bonneville executive John Hairston lauded the opportunity to use the money on “meaningful actions for fish rather than costly litigation.”

The Department of the Interior will add $8 million from the Bureau of Reclamation.

“We will bring salmon back where they belong — to the waters of the upper Columbia,” Jarred-Michael Erickson, chair of the Confederated Tribes of the Colville Reservation in northeast Washington, said in a statement. “The Colville Tribes look forward to our children celebrating a Ceremony of Joy when salmon are permanently restored to their ancestral waters.”

The Coeur d’Alene Tribe of Idaho described the agreement as a “180-degree reversal for the federal agencies.”

This agreement over fish reintroduction in the upper Columbia was part of a larger negotiation over the fate of the river, in which tribes and environmental advocates agreed to a pause in litigation for the past two years after the Biden administration vowed to find a solution.

“The Columbia River and its tributaries are the life spring of the Pacific Northwest, stewarded since time immemorial by tribal nations,” Brenda Mallory, chair of the White House Council on Environmental Quality, said during the announcement. “Today’s historic announcement builds on the Biden-Harris Administration values of honoring long-standing commitments to tribal nations.”

The most contentious issue remains the potential breaching of four dams on the Snake River in southeast Washington; tribes and advocates have urged dam removal for years, and federal scientists now say it’s necessary to allow salmon to recover.

Negotiators have a deadline at the end of October.

by Joshua Kaplan, Justin Elliott and Alex Mierjeski

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On Jan. 25, 2018, dozens of private jets descended on Palm Springs International Airport. Some of the richest people in the country were arriving for the annual winter donor summit of the Koch network, the political organization founded by libertarian billionaires Charles and David Koch. A long weekend of strategizing, relaxation in the California sun and high-dollar fundraising lay ahead.

Just after 6 p.m., a Gulfstream G200 jet touched down on the tarmac. One of the Koch network’s most powerful allies was on board: Supreme Court Justice Clarence Thomas.

During the summit, the justice went to a private dinner for the network’s donors. Thomas has attended Koch donor events at least twice over the years, according to interviews with three former network employees and one major donor. The justice was brought in to speak, staffers said, in the hopes that such access would encourage donors to continue giving.

That puts Thomas in the extraordinary position of having served as a fundraising draw for a network that has brought cases before the Supreme Court, including one of the most closely watched of the upcoming term.

Thomas never reported the 2018 flight to Palm Springs on his annual financial disclosure form, an apparent violation of federal law requiring justices to report most gifts. A Koch network spokesperson said the network did not pay for the private jet. Since Thomas didn’t disclose it, it’s not clear who did pay.

Thomas’ involvement in the events is part of a yearslong, personal relationship with the Koch brothers that has remained almost entirely out of public view. It developed over years of trips to the Bohemian Grove, a secretive all-men’s retreat in Northern California. Thomas has been a regular at the Grove for two decades, where he stayed in a small camp with real estate billionaire Harlan Crow and the Kochs, according to records and people who’ve spent time with him there.

A spokesperson for the Koch network, formally known as Stand Together, did not answer detailed questions about his role at the Palm Springs events but said, “Thomas wasn’t present for fundraising conversations.”

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“The idea that attending a couple events to promote a book or give dinner remarks, as all the justices do, could somehow be undue influence just doesn’t hold water,” the spokesperson said in a statement.

“All of the sitting Justices and many who came before them have contributed to the national dialogue in speeches, book tours, and social gatherings,” the statement added. “Our events are no different. To claim otherwise is false.”

In a series of stories this year, ProPublica reported that Thomas has accepted undisclosed luxury travel from Crow and a coterie of other ultrawealthy men. Crow also purchased Thomas’ mother’s home and paid private school tuition for the child Thomas was raising as his son. Thomas has said little in response. In a statement earlier this year, he said that Crow is a close friend whom he has joined on “family trips.” He has also argued that he was not required to disclose the free vacations. Thomas did not respond to questions for this story.

The code of conduct for the federal judiciary lays out rules designed to preserve judges’ impartiality and independence, which it calls “indispensable to justice in our society.” The code specifically prohibits both political activity and participation in fundraising. Judges are advised, for instance, not to “associate themselves” with any group “publicly identified with controversial legal, social, or political positions.”

But the code of conduct only applies to the lower courts. At the Supreme Court, justices decide what’s appropriate for themselves.

“I can’t imagine — it takes my breath away, frankly — that he would go to a Koch network event for donors,” said John E. Jones III, a retired federal judge appointed by President George W. Bush. Jones said that if he had gone to a Koch summit as a district court judge, “I’d have gotten a letter that would’ve commenced a disciplinary proceeding.”

“What you’re seeing is a slow creep toward unethical behavior. Do it if you can get away with it,” Jones said.

The Koch network is among the largest and most influential political organizations of the last half century, and it’s underwritten a far-reaching campaign to influence the course of American law. In a case the Supreme Court will hear this coming term, the justices could give the network a historic victory: limiting federal agencies’ power to issue regulations in areas ranging from the environment to labor rights to consumer protection. After shepherding the case to the court, Koch network staff attorneys are now asking the justices to overturn a decades-old precedent. (Thomas used to support the precedent but flipped his position in recent years.)

Charles and David Koch (David Zalubowski/AP Image and Dia Dipasupil/Getty Images)

Two years ago, one of the network’s groups was the plaintiff in another Supreme Court case, which was about nonprofits’ ability to keep their donors secret. In that case, Thomas sided with the 6-3 conservative majority in the Koch group’s favor.

Charles Koch did not respond to detailed questions for this story. David Koch died in 2019.

The Koch network is an overlapping set of nonprofits perhaps best known for its work helping cultivate the Tea Party movement in the Obama years. Recently rebranded as Stand Together, the network includes the powerful Americans for Prosperity Action, which spent over $65 million supporting Republican candidates in the last election cycle.

Though Charles Koch is one of the 25 richest people in the world, worth an estimated $64 billion, he raises money from other wealthy people to amplify the network’s reach. The network brought in at least $700 million in 2021, the most recent year for which data is available. It has more than 1,000 employees who, on paper, work for different groups.

But for all its complexity, the network is a centralized operation, staffers said. Many of the groups occupy the same buildings in Arlington, Virginia, and share leadership and often staff. Many of the donations go into a central pot, from which hundreds of millions of dollars are disbursed to the smaller groups focused on various political and social concerns, according to tax filings and former employees.

For decades, the Kochs have held deep antipathy to government regulation. When Charles Koch’s brother David ran for vice president on the Libertarian Party ticket in 1980, the party platform called for abolishing the Environmental Protection Agency, the Department of Energy and the Food and Drug Administration.

Every winter, the network holds its marquee fundraising event in the Coachella Valley in Southern California. Hundreds of donors fly in to learn how their money is being spent and plan for the coming year. Former staffers describe an emphasis on preventing leaks that bordered on obsession. The network often rents out an entire hotel for the event, keeping out eavesdroppers. Documents left behind are methodically shredded. One recent attendee recalled Koch security staff in a golf cart escorting their Uber driver out of the hotel to make sure he left. The former staffers spoke on the condition of anonymity because they feared retaliation.

To score an invite to the summit, donors typically have to give at least $100,000 a year. Those who give in the millions receive special treatment, including dinners with Charles Koch and high-profile guests. Doling out access to powerful public officials was seen as a potent fundraising strategy, former staffers said. The dinners’ purpose was “giving donors access and giving them a reason to come or to continue to come in the future,” a former Koch network executive told ProPublica.

At the 2018 Koch donor summit in Palm Springs, California, a speaker touted the network’s accomplishments defeating taxes and government regulations. (via Facebook)

Thomas has attended at least one of the dinners for top-tier donors, according to a donor who attended and a former high-level network staffer.

“These donors found it fascinating,” said another former senior employee, recounting a Thomas appearance at one summit where the justice discussed his judicial philosophy. “Donors want to feel special. They want to feel on the inside.”

A former fundraising staffer for the Koch network said the organization’s relationship with Thomas was considered a valuable asset: “Offering a high-level donor the experience of meeting with someone like that — that’s huge.”

Many details about Thomas’ role at the summits, including the specifics of his remarks, remain unclear. The network spokesperson declined to answer if Thomas’ appearances were ever tied to a specific initiative or program.

Thomas’ appearances were arranged with the help of Leonard Leo, the Federalist Society leader, according to the former senior network employee. “Leonard was the conduit who would get him,” the former employee said. During one summit, Thomas gave a talk with Leo in an interview format, the donor recalled.

“Justice Thomas attends events all over the country, as do all the Justices, and I was privileged to join him,” Leo said in a statement in response to questions about the Koch donor events. “All the necessary due diligence was performed to ensure the Justice’s attendance at the events was compliant with all ethics requirements.”

While attending the donor events would likely violate the lower courts’ prohibition on fundraising, experts said, the Supreme Court has a narrow internal definition of a fundraiser: an event that raises more money than it costs or where attendees are explicitly asked for money while the event’s happening.

On the Thursday before the January 2018 summit in Palm Springs, Thomas flew there on a chartered private jet, according to records reviewed by ProPublica. Four days later, the plane flew to an airport outside Denver, where Thomas appeared at a ceremony honoring his former clerk, federal Judge Allison Eid. The next day, it flew back to northern Virginia where Thomas lives.

Thomas’ financial disclosure for that year contains two speaking engagements: one in New York City and another at a Federalist Society conference in Texas. His trip to the Koch event in California is not on the form.

Thomas’ 2018 disclosure form did not include his trip to the Koch donor summit in Palm Springs. (via the Free Law Project)

For the event that year, the Koch network rented out the Renaissance Esmeralda Resort and Spa. On the main stage, donors heard from Hall of Fame NFL cornerback Deion Sanders, who was working with the Kochs on anti-poverty programs in Dallas. Another speaker delivered a report card on the group’s political wins large and small: “repealed voter-approved donor disclosure initiative”; “retraction of mining & environmental overreach”; “stopped Albuquerque paid sick leave mandate.”

During the event, the group announced a new initiative focused on getting conservatives on the Supreme Court and the federal bench. The network, which had already given millions of dollars to Leo’s Federalist Society, planned to mobilize its activists and buy advertisements to push senators to vote for President Donald Trump’s judicial nominees. They appointed a former employee of Ginni Thomas, the justice’s wife, to lead the effort.

The first glimpse of Thomas’ connection to the network came more than a decade ago. In 2010, reporters obtained an invitation sent to potential Koch donors that mentioned Thomas had been “featured” at one of the network’s previous summits.

After critics called for more information about Thomas’ attendance, the Supreme Court press office downplayed the episode. A court spokesperson acknowledged Thomas had been in the Palm Springs area during the Kochs’ January 2008 summit. However, she said he was there to talk about his memoir at a Federalist Society dinner that was separate from the donor summit but was also sponsored by Charles Koch. She added that Thomas made a “brief drop-by” at the network summit that year but said he “was not a participant.” (Thomas disclosed the 2008 Palm Springs trip as a Federalist Society speech.)

In the 15 years since, the Koch network has left a deep imprint on American society. Its advocacy is credited with helping stamp out Republican Party support for combating climate change, once an issue that drew bipartisan concern. The “full weight of the network” was thrown behind passing the 2017 Trump tax cut, securing a windfall for the Kochs and their donors. And the upcoming Supreme Court term could bring the network a victory it has pursued for years: overturning a major legal precedent known as Chevron.

While most Americans aren’t familiar with the 1984 case Chevron v. NRDC, it’s one of the Supreme Court’s most-cited decisions. Legal scholars sometimes mention it in the same breath as Brown v. Board of Education and Roe v. Wade. In essence, Chevron is about government agencies’ ability to issue regulations. After a law is enacted, it’s generally up to agencies across the government to make detailed rules putting it into effect. The Chevron decision said courts should be hesitant to second-guess the agencies’ determinations. In the years that followed, judges cited Chevron in upholding rules that protect endangered species, speed up the approval process for new cellphone towers and grant benefits to coal miners suffering from black lung.

The Koch network has challenged Chevron in the courts and its lobbyists have pushed Congress to pass a law nullifying the decision. It has also provided millions of dollars in grants to law professors making the case to overturn it.

The network’s position has become increasingly popular in recent years. Once broadly supported by academics and judges on the right, Chevron is now anathema to many in the conservative legal movement. And there’s no more prominent convert than Thomas.

In 2005, Thomas wrote the majority opinion in a case that expanded Chevron’s protections for government agencies. Ten years later, he was openly questioning the doctrine. Then in 2020, Thomas renounced his own earlier decision, writing that he’d determined the doctrine is unconstitutional after all — a rare reversal for a justice with a reputation for being unmovable in his views.

By last year, Koch network strategists sensed that victory could be at hand. During an internal briefing for network staff, Jorge Lima, a senior vice president at Americans for Prosperity, said the Supreme Court seemed primed to radically change its approach to the issue. The network was trying to find cases that could bring about major changes in the law, according to a video of the meeting obtained by the watchdog group Documented. “We’re doubling down on this strategy,” Lima told the crowd.

Several months later, the Supreme Court announced it would take up a case, Loper Bright Enterprises v. Raimondo, in which Koch network staff attorneys represent the plaintiffs. If Thomas and his colleagues side with them this coming term, Chevron will be overturned once and for all.

Without Chevron, “any place you would need regulation to address a pressing social problem, it’s going to be more costly to get it, harder to implement it and it’s not going to go as far,” said Noah Rosenblum, a professor at New York University School of Law.

“​​Loper Bright is a case seeking to restore one of the core tenets of our democracy: that Congress, not the administrative agency, makes the laws,” the Koch network spokesperson said.

Ethics experts said Thomas’ undisclosed ties to the Koch network could call his impartiality in the case into doubt. This sort of potential conflict is why the judiciary has rules against both political activity and fundraising, they said. “Parties litigating in the court before Justice Thomas don’t know the extent of Thomas’ relationship with the parties on the other side,” said James Sample, a Hofstra University law professor who studies judicial ethics. “You have to be pretty cynical to not think that’s a problem.”

The Supreme Court itself said in a recent statement to The Associated Press that “justices exercise caution in attending events that might be described as political in nature.” But unlike with lower court judges, there is no formal oversight of the justices.

Two decades ago, Justice Ruth Bader Ginsburg delivered the opening remarks at a lecture cosponsored by the NOW Legal Defense and Education Fund, a women’s rights group that filed friend-of-the-court briefs at the Supreme Court. It was a public event co-sponsored by the New York City Bar Association. But some judicial ethics experts criticized the justice for affiliating herself with an advocacy group.

Thirteen Republican lawmakers, including Mike Pence and Marsha Blackburn, who now sits on the Senate Judiciary Committee, went further, calling on Ginsburg to recuse herself from any future cases related to abortion. The justice brushed off the criticism: “I think and thought and still think it’s a lovely thing,” she said of the lecture series. (Ginsburg died in 2020.)

Charles and David Koch’s access to Thomas has gone well beyond his participation in their donor events. For years, the brothers had opportunities to meet privately with Thomas thanks to the justice’s regular trips to the Bohemian Grove, an all-male retreat that attracts some of the nation’s most influential corporate and political figures. Thomas has been a regular at the Grove for 25 years as Harlan Crow’s guest, according to internal documents and interviews with dozens of members, other guests and workers at the retreat.

Charles Koch at the Grove. His hat features the club’s owl insignia. (Obtained by ProPublica)

“What we’re seeing emerge is someone who is living his professional life in a way that’s seeing these extrajudicial opportunities as a perk of the office,” said Charles Geyh, a judicial ethics expert at Indiana University law school. Judges can have social lives, he said, and there are no clear lines for when a social gathering could pose a problem. But the confluence of powerful political actors and undisclosed gifts puts Thomas’ trips far outside the norm for judges’ conduct, Geyh said: “There’s a culture of impartiality that’s really at risk here.”

The Grove is an exclusive, two-week party held in the Sonoma County redwoods every July. A member or his guest can wander from the Grove’s shooting range to a lecture by Blackwater founder Erik Prince, or from a mint julep party to a performance by the Grove’s symphony orchestra. Wine, sometimes at $500 a bottle, flows freely, and late at night, members consume clam chowder and chili by the gallon. More than one attendee recalled walking outside in the morning to find a former cabinet secretary who fell asleep drunk in the grass.

There’s a saying among the Bohemians, as the club’s members call themselves: The only place you should be publicly associated with the Grove is in your obituary. That privacy is paramount, members said, in part to allow the powerful to speak freely — and party — without worrying about showing up in the press. Only designated photographers are allowed to take pictures. Cellphones are strictly forbidden.

An entrance to the Grove (Preston Gannaway, special to ProPublica)

Members typically must pay thousands of dollars to bring a guest. Several people ProPublica spoke to said that before the pandemic, they saw Thomas there just about every year. ProPublica was able to confirm six trips Thomas took to the retreat that he didn’t disclose. Flight records suggest Crow has repeatedly dispatched his private jet to Virginia to pick up Thomas and ferry him to the Sonoma County airport and back, usually for a long weekend in the middle of the Grove festival.

“I was taken with how comfortable he was in that environment and how popular,” a person who stayed in the same lodge as Thomas one year said. “He holds court there.”

In response to questions about his travel to the Grove with Thomas, Crow said Thomas is “a man of incredible integrity” and that he’s never heard the justice “discuss pending legal matters with anyone.” Neither Crow nor Thomas responded to questions about whether the justice reimbursed him for the trips.

(Other justices have Grove connections too. The mid-20th-century Chief Justice Earl Warren was a member. Among modern justices, Thomas appears to have been the most frequent guest. Justice Antonin Scalia, who died in 2016, attended many years ago. Justice Stephen Breyer went in 2006; he told ProPublica he was the guest of his brother and that to the best of his memory, he paid his own way. Justice Anthony Kennedy went at least twice before he retired. Kennedy, who did not respond to a request for comment, did not disclose the trips. It’s unclear if he needed to because his son is a member and gifts from family don’t need to be reported.)

The annual Grove festival kicks off with a highly produced ceremony in which an effigy representing worldly cares and concerns is burned. (Obtained by ProPublica)

The Grove is broken up into more than 100 “camps,” essentially adult fraternity houses where the same group of men stay together year after year. Hill Billies was George H. W. Bush’s camp. Nancy Pelosi’s husband has been a longtime member of Stowaway. Thomas stays with Crow at a camp called Midway.

One of the ritzier camps, Midway employs a staff of cooks and personal valets and boasts an extensive wine cellar. The men sleep in private cabins that zigzag up a hillside. Known for its Republican leanings, Midway has a string of superrich political donors as members, including an heir to the Coors beer empire and the owner of the New York Jets. Charles Koch is an active member, as was his brother David. It’s not clear if Thomas has ever been the guest of a member other than Crow.

Bohemians, as the club’s members call themselves, mingle on the deck of Midway camp. (Obtained by ProPublica)

During the annual retreats, the Kochs often discussed political strategy with fellow guests, according to multiple people who’ve spent time with them at Midway. A few years ago, Brian Hooks, one of the leaders of their political network, was a guest at the camp the same weekend Thomas was there. A former Midway employee recalled the brothers discussing super PAC spending during the Obama years and complaining about government regulation.

“Chevron was one of the big things the Koch brothers were interested in,” the former employee said. He did not remember if Thomas was present for any of the discussions of the doctrine.

But Thomas and the Kochs developed a bond over their years at the retreat, according to five people who spent time with them there. They discussed politics, business and their families. They often sat together at meals and sat up talking at night at the lodge. A photo obtained by ProPublica captures Thomas and David Koch smiling on Midway’s deck. David’s windbreaker features an owl insignia, the symbol of the club.

One tradition at Midway is a lecture series, often held beneath the redwoods on the camp’s deck. The weekend Thomas was there in July 2016, the Midway schedule featured a talk from Henry Kissinger and another by Michael Bloomberg and Arthur Brooks, then president of the conservative think tank the American Enterprise Institute. Over breakfast Friday morning, the author Bjorn Lomborg delivered a lecture on climate change. Lomborg has for years argued the threat of global warming is overstated, saying that rising temperatures will actually save lives.

A Midway schedule featured a talk by Thomas and other events. (Highlighting by ProPublica. Obtained by ProPublica.)

Thomas spoke that year as well. He talked about his friend Justice Scalia, who had recently died, according to a person who attended. Scalia, a conservative luminary, had been a prominent advocate for the Chevron doctrine, but Thomas said he believed his colleague was coming around to Thomas’ revised view on it before his death.

Thomas didn’t explain what he meant by that. “It was an aside,” the person said, “like he assumed most of the people in the room knew his position.”

Do you have any tips on the Supreme Court? Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.

by Jessica Priest and Vianna Davila

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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

Soon after his acquittal in an impeachment trial last weekend, Texas Attorney General Ken Paxton released a statement that lambasted the proceedings but also spelled out his plan to continue challenging Biden administration policies now that he was being reinstated in office.

“Now that this shameful process is over, my work to defend our constitutional rights will resume,” the statement read.

“Now it is back to work!”

With his reinstatement, Paxton will return to his job overseeing an office of nearly 4,000 employees who handle thousands of legal cases every year — many of them connected to state agencies facing lawsuits.

But an investigation published this month by ProPublica and The Texas Tribune found Paxton denied requests for representation at least 75 times. That included instances in which Paxton refused to defend agencies fighting lawsuits connected to policies he’s publicly opposed, like affirmative action and gay marriage, according to records the news organizations obtained through public information requests.

Paxton did not respond to questions from ProPublica and the Tribune about these denials. Neither did the attorney general’s office, other than to say it has approved the vast majority of solicitations for help. The bulk of the denials, the attorney general’s office has said, were because the agencies preferred to hire their own lawyers. In other cases, the attorney general’s office said, it may refuse a request for help because defending an agency would conflict with state law or with positions the attorney general has taken in other lawsuits.

First Assistant Attorney General Brent Webster told state lawmakers during a legislative hearing in February that Paxton’s office had “never prevented someone from defending themselves. There’s no precedent for that.”

However, a week earlier, the attorney general’s office had effectively done just that, withholding a decision on whether or not to represent the University of Texas System in a case, but also refusing to give the school a green light to hire outside counsel.

ProPublica and the Tribune have compiled a list of instances in which the attorney general’s office refused requests for representation. The reason the office said was most commonly cited — agencies wanting their own lawyers — did not factor into most of the examples detailed below.

Public Universities

The news organizations found numerous examples of Paxton’s office refusing to represent public universities that receive state funding.

Requester: University of Houston-Clear Lake

Request date: Nov. 30, 2021

Denial date: Nov. 30, 2021. The attorney general’s office said in a letter that the request was “not suitable for representation by our office.” A spreadsheet provided to the news organizations by the state Legislative Budget Board said the case conflicted with positions the attorney general’s office had taken in other litigation.

Case: Two students and Ratio Christi, a Christian organization that defends and shares its faith on college campuses, sued the university on Oct. 25, 2021, after it refused to recognize a new chapter. According to the lawsuit, the university wouldn’t recognize the chapter because it believed the organization’s requirement that leaders be Christian ran afoul of the institution’s anti-discrimination policy.

Ratio Christi was represented by Alliance Defending Freedom, a nonprofit legal firm that works to expand Christian practices in public schools and government as well as to outlaw abortion and same-sex relationships. Alliance Defending Freedom senior counsel Caleb Dalton said the case was important to pursue because “the bottom line is that student organizations, whether they are Christian, Muslim, conservative or liberal, should be able to require their leaders to actually believe what the organization is about.”

What happened after the denial: University spokesperson Chris Stipes said this was the first time the attorney general’s office had rejected representing the University of Houston in a lawsuit. As a result, the university’s Office of General Counsel took on the case. It settled the lawsuit in February 2022, before it was scheduled to respond to the allegations in court. The university agreed to allow student groups to “limit officers to those members who subscribe to the tenets of that organization.” The university also agreed to pay the plaintiffs $26,200 in attorneys fees and damages. Asked whether the outcome of the case would have been different had the attorney general’s office represented the school, Stipes said any response “would be purely speculative.”

Response: Stipes said the university’s Office of General Counsel devoted time and resources to the case, but he was unable to provide an exact amount. Paxton and the attorney general’s office did not answer questions about this case.

Requester: University of Houston

Request date: Feb. 28, 2022

Denial date: March 10, 2022. The attorney general’s office said in a letter that the request was “not appropriate for representation by our office.” A spreadsheet the news organizations obtained from the Legislative Budget Board said the attorney general’s office thought the case conflicted with positions it had taken in other litigation.

Case: The group Speech First sued the university on Feb. 23, 2022, on behalf of three politically conservative students, arguing the university’s anti-harassment policy, which the lawsuit described as “restricting offensive speech about personal characteristics such as race, ethnicity or gender,” violated the First and 14th amendments.

What happened after the denial: The university retained outside counsel that represented it for free. In May 2022, the university amended its anti-harassment policy to specify that harassment must rise to the level of denying a student access to education by creating a hostile learning environment. In June 2022, the University of Houston settled the case by agreeing to officially adopt the amended policy and pay the plaintiffs $30,000 for attorneys fees.

Response: Stipes, the university spokesperson, said the attorney general’s denial in this case was surprising. The attorney general’s office has previously represented the university in similar cases, he said. “The OAG has done great work for UH in the cases we have had over the years.” Speech First did not respond to requests for an interview. Paxton and the attorney general’s office did not answer questions about this case.

Requester: Texas A&M University System

Request date: Sept. 13, 2022

Denial date: Oct. 13, 2022. The attorney general’s office said in a letter that the matter was “not suitable for representation by our office.”

Case: Richard Lowery, a professor at the University of Texas at Austin, sued Texas A&M University, arguing the school illegally used race and sex preferences in faculty hiring and compensation, after its Office for Diversity sent a memo announcing the allocation of $2 million for the institution’s Accountability, Climate, Equity and Scholarship Faculty Fellows Program. The program provides a 50% match of a base salary and benefits, up to a maximum contribution of $100,000, for new, mid-career and senior tenure-track hires from underrepresented groups. Lowery said in the lawsuit he was “able and ready” to apply for a job at Texas A&M, but argued the university’s program prevented him from competing equally with the other applicants. Texas A&M has said that Lowery did not have standing to bring a lawsuit because he had not applied for a job. It said that nothing in the memo Lowery cited “indicates that anyone has been hired under this program, nor that any applicant of any race or gender will be excluded from consideration once implemented.”

Lowery is represented by Jonathan Mitchell, the former solicitor general of Texas who has made a name litigating conservative causes, and by America First Legal, which was founded in 2021 by Stephen Miller, a former policy adviser to former President Donald Trump.

What happened after the denial: Texas A&M retained outside counsel. The university argued that the case should be dismissed as moot after Senate Bill 17 passed earlier this year, prohibiting public universities from giving preference to applicants for faculty positions based on their race, sex, color, ethnicity or national origin. But Lowery has argued that the university cannot be trusted to follow the law. The case is ongoing.

Response: Texas A&M, which has been denied representation by the attorney general at least three other times since 2021, according to records, did not respond to requests for an interview or questions. Mitchell and America First Legal did not answer questions about the case. Paxton and the attorney general’s office did not answer questions about this case.

Requester: University of Texas System

Request date: Jan. 12

Denial date: In its Feb. 14 response, the attorney general’s office did not deny the university system representation but withheld a decision on whether to represent the system and withheld a decision on whether or not it could retain outside counsel.

Case: In January, a man named George Stewart sued six medical schools that had rejected his applications for admission. All of the schools were in the UT System, except one that was part of the Texas Tech University System. Stewart, who is white, argued that the schools were “unlawfully discriminating against whites, Asians, and men.” The attorney general’s office told the UT System in a letter it agreed with the plaintiff’s argument that considering race and gender in student admissions was illegal and that it was awaiting the outcome of other affirmative action cases before the U.S. Supreme Court. The attorney general’s office also wrote in the letter that it had filed briefs urging the court to do away with affirmative action because it was “abhorrent to the Constitution.” UT could represent itself, the letter said, but only for the purpose of requesting extensions in the case. In a court filing, the UT System said by withholding a decision on the denial, the attorney general’s office “could potentially deny the UT Austin Defendants any litigation counsel whatsoever.”

What happened after the denial: UT asked for at least two more deadline extensions in the case. Eventually, the attorney general allowed the UT System to hire outside counsel to represent it, while Paxton was suspended from office. The attorney general’s office is representing the Texas Tech University Health Sciences Center in the case, though it would not explain what differentiated one university from the other.

Response: A UT System spokesperson declined to discuss the case but said the school, like every state agency, is required to ask the attorney general for representation or outside counsel. The UT System has ultimately been able to secure counsel. The Texas Tech University Health Sciences Center did not respond to requests for comment. Stewart and his attorneys, Mitchell and America First Legal, did not answer questions about the case. Paxton and the attorney general’s office did not answer questions about this case.

Requester: University of Texas at Austin

Request date: Feb. 13

Denial date: March 6. The attorney general’s office denied the request, stating in a letter that the request was “not appropriate for representation by our office.” It provided no further explanation in the letter.

Case: Lowery, the same UT professor who sued Texas A&M in 2022, sued three University of Texas at Austin officials on Feb. 8, 2023. In this lawsuit, Lowery claims university officials engaged in “a campaign to silence (him) by threatening his job, pay, institute affiliation, research opportunities, academic freedom, and labeling his behavior as inviting violence or lacking in civility.” He claims university officials did this after he publicly criticized them for using diversity, equity and inclusion requirements to filter out competent academics with a differing viewpoint.

What happened after the denial: The attorney general’s decision delayed the case, said Del Kolde, a senior attorney at the Institute for Free Speech who is representing Lowery. Kolde wanted to request a hearing as soon as possible to obtain a court order for UT not to retaliate against Lowery, but UT officials asked for patience as they waited to hear whether the attorney general’s office would represent them, Kolde told the news organizations. On March 2, the university notified the court it had retained outside counsel and asked for more time to respond to the lawsuit, a request the judge granted. Kolde would have preferred the representation decision be made more quickly. “In my personal experience dealing with public-entity defendants in various jurisdictions, the decision about who would represent the UT defendants took longer than what I’m used to seeing,” he said. “I do not, however, know why it took so long.”

The case is ongoing.

“I am sure that it is costing the taxpayer more to have an outside law firm handle this than a salaried employee of the office of the attorney general,” Kolde said.

Response: The university did not respond to requests for an interview or answer questions. Paxton and the attorney general’s office did not answer questions about this case.

Small State Agencies

The news organizations found instances in which Paxton’s office refused to represent smaller agencies with little to no budget to pay for private attorneys. Some smaller state agencies have general counsel on staff, but those attorneys may not have the experience or bandwidth to handle litigation.

The news organizations found one small agency that the attorney general’s office hasn’t represented in court for years and another that Paxton’s office said it would represent — but it wouldn’t use what could have been one of the best defenses available.

Requester: Board of Disciplinary Appeals

Request date: March 30

Denial date: May 2. The attorney general’s office said it would represent the agency but in a limited way.

Case: The Board of Disciplinary Appeals, made up of 12 attorneys appointed by the state Supreme Court, disciplines Texas lawyers. This year, a former lawyer sued board members who disbarred her in 2012 (none of the defendants still serve on the board). The attorney general’s office said it would represent the former board members, but conditionally: Specifically, it said it would not use as a defense a part of the Texas Rule of Disciplinary Procedure that says board members “are immune from suit for any conduct in the course of their official duties.” That decision surprised Kelli Hinson, the current board chair, who described the immunity defense as a “critical one that I would want asserted if it were me.”

Generally speaking, Hinson said, defending board members who make judicial decisions and asserting their immunity is important to make sure people want to continue serving in these kinds of volunteer roles. The whole basis of immunity is “that you shouldn’t be able to sue someone serving a judicial function for the decision that they make.”

What happened after the denial: The former board members ultimately chose not to be represented by Paxton’s office. Hinson is instead representing them, for free. The board does not have a budget for outside counsel, Hinson said. It has a total of three employees. “I didn’t feel like they should have to pay for a lawyer to defend them.” The former board members recently filed a motion asking the judge to dismiss the case against them.

Response: Hinson said she doesn’t know why the attorney general’s office declined to raise the immunity defense but believes the board members ultimately will prevail in court. “I’m confident that they’re going to win in the end. So it’s just, do you want five air arrows in your quiver or four? And I think you would want as many as you could get,” Hinson said. Paxton and the attorney general’s office did not answer questions about this case.

Requester: Texas Ethics Commission

Request date: Unknown

Denial date: Aug. 22, 2014, and Oct. 17, 2016

Case: Empower Texans, a conservative advocacy group that donated hundreds of thousands of dollars to Paxton over the years, and its leader Michael Quinn Sullivan, challenged the commission’s enforcement of state campaign finance and lobbyist registration laws as unconstitutional in cases now before the Texas Supreme Court.

One case stems from the commission finding in 2014 that Sullivan failed to register as a lobbyist, ordering him to pay a $10,000 fine. He appealed, arguing that registering restricts free speech and the state can’t show that being compensated for speech is corrupt. At the time, Gov. Greg Abbott was still attorney general. An August 2014 San Antonio Express-News story reported that the Ethics Commission decided to hire an outside law firm to represent it in this case. However, the Ethics Commission has said in legislative appropriations requests that the attorney general’s office declined to represent it.

The other case stems from the commission’s investigation of Empower Texans and Sullivan allegedly violating campaign finance provisions governing political action committees. The commission sued Empower Texans and Sullivan on Oct. 15, 2015, to get the group to turn over more information as part of an investigation into those alleged violations. The attorney general’s office, by this time under Paxton’s leadership, initially represented the commission. In September 2016, the attorney general’s office dropped the commission’s effort to get a judge to order Empower Texans and Sullivan to comply with its subpoenas for information. But the case remained alive because of Empower Texans’ and Sullivan’s counterclaim that the commission could not enforce campaign finance laws because it is part of the legislative branch of government. A short time later, the Houston Chronicle reported, commission leaders told staff of the state Legislative Budget Board that the agency needed money to hire outside lawyers because it couldn’t depend on Paxton’s office to defend the agency in the future. In October 2016, the attorney general’s office asked a judge if a private lawyer could take the place of someone in its office to represent the commission. The judge agreed.

What happened after the denial: The commission requested from the state Legislature an additional $150,000 per year for outside legal counsel to defend it in these cases, starting in 2016. The Legislature increased the amount the commission was authorized to spend on outside legal counsel in 2018 to $300,000 per year. As of Sept. 1, the commission has spent nearly $1.1 million for representation in these cases. The cases are ongoing. The Texas Supreme Court has said it will hear oral arguments in Empower Texans’ case on Nov. 30 and has requested more information about Sullivan’s case.

Response: The Ethics Commission declined to comment on the denial and the cases. The Empower Texans PAC dissolved in October 2020, records show. It stopped posting to its website in 2021. Sullivan did not respond to calls and emails requesting an interview or to questions about this case. Paxton and the attorney general’s office did not answer questions about this case, including whether Empower Texans’ financial contributions to him influenced the attorney general’s office’s decision not to represent the commission in this case. In 2018, a spokesperson for the attorney general declined to explain why he refused to represent the commission. He told the Houston Chronicle that the office takes its duty to defend agency enforcement actions seriously, but its “first obligation is to defend the Constitution and the basic rights it guarantees to each and every Texan.”

Agency: State Commission on Judicial Conduct

Request date: 2020

Denial date: 2020

Cases: In late 2019, Dianne Hensley, a justice of the peace in Waco, Texas, sued the judicial commission after it issued her a public warning because of statements she made to the media about disagreeing with and refusing to perform same-sex marriages after they’d been legalized, casting “doubt on her capacity to act impartially.” Hensley’s lawsuit argued that the commission’s public punishment of the justice of the peace constituted “a substantial burden” on her “free exercise of religion,” according to court records. A few months later, Brian Umphress, the county judge of Jack County, sued the judicial commission in federal court, arguing that he also was at risk of being sanctioned because he did not perform same-sex marriages. The attorney general’s office declined to represent the judicial commission in both cases. Both Hensley and Umphress are represented by Mitchell, the former solicitor general. The plaintiffs have also at some point been represented by First Liberty Institute, a Plano, Texas-based conservative Christian law firm. The firm’s president and chief executive, Kelly Shackelford, is a longtime friend of Paxton’s. First Liberty’s executive general counsel, Hiram Sasser, briefly worked for the attorney general’s office under Paxton. First Liberty board member Tim Dunn is among Paxton’s biggest individual donors.

What happened after the denials: The state judicial commission spent more than $120,000 to pay for outside counsel after the attorney general refused to represent it. Agency Executive Director Jacqueline Habersham successfully lobbied state legislators for an additional $150,000 to fund the commission’s legal representation over the next two years. The Texas Supreme Court will hear Hensley’s case in October. Umphress lost in federal district court but appealed to the U.S. Court of Appeals for the 5th Circuit. The 5th Circuit has yet to rule.

Response: Habersham said she hopes no one else files a lawsuit against the commission in which the attorney general’s office chooses not to represent it. Mitchell, Shackelford and Dunn did not respond to requests for comment. Sasser, who mainly has worked on the Hensley case, said in an interview he would have been disappointed had the attorney general chosen to represent the commission. Paxton and the attorney general’s office did not answer questions about this case.

by Catherine Rentz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

An alleged serial rapist was arrested last month with help from evidence saved by a Baltimore County doctor nearly half a century ago. ProPublica highlighted this rare trove of hospital microscope slides in its Cold Justice series and inspired a new Maryland law to protect the evidence.

In this case, the evidence was collected from five women who visited the Greater Baltimore Medical Center for rape exams between 1978 and 1986. All said a man had violated them after breaking into their first-floor apartments in complexes within the same mile radius. Police at the time had not yet started saving standardized rape kits. But a prescient doctor, Rudiger Breitenecker, anticipated that one day, science might advance enough to make use of the specimens.

Most of the evidence collected by Breitenecker between 1975 and 1997 sat untouched for decades, until a new generation of cops recognized its value and slowly began to test it. By 2022, Baltimore County police knew four of the cases shared the same perpetrator’s DNA. (Initial testing didn’t yield a profile from the fifth, according to prosecutors.) But the suspect’s identity was still a mystery.

Enter Detective M. Lane, one of two detectives in the relatively new Special Victims Unit cold case division, who decided to read all of the police reports connected to those slides and link them to other cases. (Lane uses only her first initial on court documents.) She found a reported attack that wasn’t one of the four DNA-linked cases, but which happened just a short walk away from a rape connected to DNA evidence, and just two months later.

The report contained an almost unbelievable lead: A woman attacked on Dec. 3, 1978, told police that the suspect told her his first and middle names: James William. He wore a bracelet with “Jim” on it and said that day was his 26th birthday.

This June, Lane plugged those clues into a police database and found James William Shipe Sr., a man who had been arrested and charged for a separate attempted rape in 1979. Prosecutors at the time had dropped the case; Baltimore County State’s Attorney Scott Shellenberger said it is unclear why. The victim in this later case also reported that her attacker was wearing a bracelet with “Jim” on it.

Lane had Shipe’s fingerprints from that case compared to the one pulled from the 1978 crime scene. They matched. Shipe had arrest reports for charges often associated with rapists: trespass and Peeping Tom, for which he served probation.

Mugshots from James William Shipe Sr.’s 1972, 1979 and 1989 arrests (Baltimore County Police Department)

The detective had enough information to request a warrant for Shipe’s DNA. The 70-year-old was living with his wife less than 10 miles away from the scenes of the five attacks.

On July 22, Lane got the results: Shipe’s DNA matched those on the doctor’s rape evidence slides, according to court and police reports. Police had now linked Shipe to five cases by DNA or fingerprints.

Shipe was arrested 10 days later and is now in jail, facing charges in three of the five rape cases; the two other women who were assaulted have since died, and prosecutors are not pursuing charges in those.

Mugshot from James William Shipe Sr.’s 2023 arrest (Baltimore County Police Department)

ProPublica tried to reach Shipe, who is in a Baltimore County jail awaiting his next court hearing, but could not get through to him by phone. Reached by phone at her home, Cynthia Shipe said her husband has not yet been assigned a public defender.

She said the charges against her husband are “totally bogus” and she believes that he is innocent. She said she did not know about the DNA evidence, but that she’s known him for 37 years and that he’s a “wonderful man” who just sent her a dozen red roses for her birthday and that he “doesn’t have a violent bone in his body.”

Cynthia Shipe said her husband was a trucker until three years ago, when he had to retire due to heart problems, and she worries about his health now. She said he has not been given the proper medication in jail and she’s seen his health deteriorate.

The Maryland Office of the Public Defender said they could not comment on the case at this time.

“I am a new person, I feel totally different,” said Linda Shinault, who reported a rape to police in September 1986. She said someone broke into her apartment, severed her phone cord and was waiting for her in the bathroom after she got out of the shower. She said the attack and not knowing who did it had put a “heaviness” on her. When she got a call from a detective nearly 37 years later telling her a suspect had been arrested, she said she was screaming into the phone, she was so happy. She then told everyone she knew. She considers the doctor’s saving of evidence to be a “miracle.”

“I feel the doctor is looking over us,” she said. Breitenecker passed away in September 2021. Linda said she wanted to tell her story to help other survivors and questioned why law enforcement was waiting “even another week” to test more evidence if there might be more victims whose cases could be solved.

For the Street family, the answer came too late. Dennis Street said his late wife Patricia would have appreciated the answer.

“I'm glad the guy was caught,” Street said. “And I know my wife would be happy, too, after all these years. Thank God for DNA testing. But I don’t know what took so long.”

Patricia Street reported a rape in September 1978 that police say is the earliest case linked to Shipe by DNA so far. She died in 2021 after two decades of health complications.

Baltimore County police say they are continuing to process cold case evidence and investigate whether more cases are tied to Shipe.

Most of the rapists who have been caught with the historic hospital DNA have been found to have a long list of other criminal charges on their records, such as other rapes, theft, burglary and murders. Shipe does not have such charges on his record, according to the Maryland Judiciary online records.

ProPublica helped solve the 1983 murder of Alicia Carter, a 21-year-old college student, by studying perpetrator patterns. Alphonso W. Hill’s DNA has matched 11 hospital slide cases so far, including DNA from the assault of a Goucher student in the same location where Carter’s body was found. After ProPublica’s investigation and police inquiry, he confessed in 2021 to raping and murdering her.

As these cases show, finding suspects who have eluded police for decades often requires more than DNA tests. “You can have all the computers, all the DNA, all these things that you want, but it still takes good old-fashioned police work,” said Shellenberger.

Shipe’s is the first arrest from the new effort to test the hospital slide cases, announced by Baltimore County officials in October 2019. Police have been delayed in part due to a backlog inside their forensics lab.

Like many other agencies, the Baltimore County police face significant staffing shortages. The department has only two dedicated cold case detectives in its Special Victims Unit, though that is more than a previous cold case effort in the first decade of the century, which had no dedicated detectives.

The unit often gets pushed down the priority list for testing even though rape cases notoriously involve serial perpetrators.

As of January 2023, police had about 1,300 hospital slide cases. At the rate of testing so far, it could take another couple of decades to finish processing them.

However, police have made a recent move that should help expedite testing. The remaining evidence, still at the hospital, is moving to police headquarters where it will be logged and sent for testing at a private lab. They are skipping a pre-screening step in their own lab and shipping the slides directly to a private DNA testing company. A police spokesperson wrote to ProPublica that "The Department looks forward to receiving all available evidence and is doing everything possible to expedite the analysis and investigation of these important cases."

Part of that is driven by a new state law passed earlier this year in response to issues raised by ProPublica’s investigation. The law classifies the hospital slides as official rape evidence and requires the police department to count them among its rape kit backlog and retain the slides for at least 75 years after they were collected.

Baltimore County police have released Shipe’s mugshots and are encouraging anyone with information on additional crimes to reach out at 410-307-2020.

Survivors who would prefer to speak with the department’s victim advocate may call 443-345-7587 or email aharkins@turnaroundinc.org.

Survivors can find additional resources at Maryland Coalition Against Sexual Assault and TurnAround, Inc.

by Sarah Elbeshbishi, Mountain State Spotlight

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This article was produced by Mountain State Spotlight, a member of ProPublica’s Local Reporting Network.

A citizens’ group in West Virginia is suing the Environmental Protection Agency, alleging that federal regulators have failed to protect a majority-Black community in the state and residents of parts of Louisiana and Texas from cancer-causing chemicals.

A 2021 Mountain State Spotlight and ProPublica story detailed how largely Black communities across the country, like Institute in West Virginia, were saddled with a disproportionate health burden from industrial pollution. ProPublica’s analysis of emissions data found that on average, the level of cancer risk from industrial air pollution in majority-Black census tracts was more than double that for majority-white areas.

Earlier this year, the EPA proposed tougher air pollution rules for chemical plants and other industrial facilities, including placing stricter limits on ethylene oxide — the same chemical released by the plant in Institute. But the proposed rules wouldn’t cover the main ethylene oxide polluters in West Virginia because those plants fall under a different industry category in EPA regulation.

Pam Nixon, a former Institute resident and member of the Charleston, West Virginia-based People Concerned About Chemical Safety, which filed the lawsuit, said her community was often neglected by the EPA.

“There is no justice yet until all communities are treated the same and until people everywhere are breathing clean air and it doesn’t impact the health of their families,” said Nixon. While it can be difficult to link specific cases of disease to pollution exposure, she said she suffered from blisters and autoimmune problems after being exposed to a leak from the Institute plant in 1985.

The lawsuit filed Monday notes that the EPA missed a legally required deadline to update federal emissions standards for facilities that produce polyether polyols, a type of chemical that leads to the emission of carcinogens including ethylene oxide.

These facilities are major sources of pollution that disproportionately affect communities of color and lower-income areas, which are often already burdened by industrial development.

Institute, which is in one of West Virginia’s only two majority-Black census tracts, faces an excess cancer risk from industrial air pollution that is 36 times the level the EPA considers acceptable from the nearby Union Carbide plant — a facility that has helped define West Virginia’s “Chemical Valley.”

That Union Carbide facility makes ethylene oxide, which is used in various products, including antifreeze, pesticides and sterilizing agents for medical tools.

A 2021 ProPublica analysis found that of over 7,600 facilities across the country that increase the estimated cancer risk in nearby communities, the Institute plant ranked 17th.

Dow Chemical, which owns Union Carbide, did not respond to an emailed request for comment, or to multiple requests sent during research for the 2021 story.

Elevated cancer risks also affect an area known as “Cancer Alley” along the Mississippi River between Baton Rouge, Louisiana, and New Orleans, as well as around Houston, Texas. Both of those regions also have clusters of polyether polyol production facilities, according to the lawsuit.

The Louisiana Environmental Action Network and the Sierra Club joined the West Virginia organization in its lawsuit against the EPA. Environmental groups commonly pursue legal action when the agency misses deadlines.

The EPA is required by the Clean Air Act to review and update emission standards for hazardous air pollutants every eight years, but the agency hasn’t made any substantive revisions to the emission standards for this source category since 1999, according to Adam Kron, an attorney for Earthjustice representing the environmental groups.

In 2014, the EPA made minor changes to how polyether polyol is monitored and measured but decided not to make any revisions to emissions rates after a review that looked at whether the current standards adequately protect communities against health risks.

In the lawsuit, the environmental groups argue that the EPA has failed to perform its required duties by missing its 2022 deadline.

Because regulators missed the deadline, the lawsuit is asking the court to find the EPA in violation of the Clean Air Act and to compel the agency to update the emissions standards by a swift deadline set by the court itself.

The EPA declined to comment because of the pending litigation.

The groups argue in the lawsuit that in addition to missing deadlines, EPA’s regulation has failed to keep up with science. In 2016 — two years after the EPA reviewed the standards — the agency determined that ethylene oxide’s cancer risk was nearly 60 times greater than previously thought.

But even after that finding, the agency didn’t update its standards. In 2021, the EPA’s Office of the Inspector General urged the agency to review polyether polyol production before its 2022 deadline after a report on ethylene oxide-emitting source categories found that the EPA was failing to meet required deadlines for conducting reviews.

The inspector general’s report also noted that the EPA couldn’t guarantee that the current emissions standards were adequately protecting public health because it had fallen behind on reviewing them, according to the lawsuit.

In response to the report, EPA regulators said they planned to complete a review of emissions standards for facilities like the one in Institute by late 2024 — more than two years after the deadline.

by Bianca Fortis

ProPublica is a nonprofit newsroom that investigates abuses of power. This story was originally published in Dispatches, a weekly newsletter that spotlights wrongdoing around the country and journalism from our newsroom.

Recently, my co-reporter Laura Beil and I published an investigation into the way in which Columbia University allowed a sexual predator to operate within its walls for more than 20 years. We examined the case of Robert Hadden, a former OB-GYN, and found that Columbia had allowed him to continue practicing, despite multiple patient complaints. The university also undermined the criminal investigation into Hadden.

Hadden’s crimes were first covered in the local New York press in 2013 and made national headlines as the criminal and civil cases against him made their way through the courts. But Columbia’s role was never thoroughly examined. Laura and I wanted to understand what the university knew about his behavior, when, and whether it had missed opportunities to protect patients.

Following publication of our story, the new university president, Minouche Shafik, and the CEO of the Columbia University Irving Medical Center, Katrina Armstrong, issued an apology to the survivors. But so far, the university has not formally notified Hadden’s patients about the reason for his departure or his criminal convictions. Columbia has still not commissioned an independent investigation into what happened under its roof.

As with much investigative reporting, documents proved crucial in helping us understand what went wrong. Police and prosecutors’ reports informed us about patients’ experiences, and they helped us establish timelines. Letters filed in court created a record of communication between Columbia and Hadden, as well as the university and its patients. Some of these documents are public (if you know where to look) and some of them we obtained from sources. Together with dozens of interviews and nearly two years of research, they helped us reconstruct decades of abuse and ignored warnings.

I want to tell you more about the documents themselves and how we got them:

1. The Police Report

One of the patients Hadden assaulted was Laurie Kanyok. In interviews, she told us what had happened to her in late June 2012, including the fact that she reported Hadden to the police immediately after the assault. The police arrested him that afternoon.

We were able to get an unredacted copy of the report made after her complaint by submitting a public records request to the New York City Police Department, along with a notarized affidavit she provided giving permission for it to give the records to us.

This document was important because it confirmed what Kanyok had told us about the timeline of events. But it also revealed that there were administrators within the OB/GYN department who immediately knew of Hadden’s arrest. One showed up to the office once she learned the police were present. We reached out to those administrators to see if they would talk to us. (They either declined or never answered our requests.)

2. The “Dear Bob” Letter

We were aware that Hadden had been allowed to continue practicing following his arrest because several women said he had assaulted them after that date. What we didn’t know is how quickly he had been allowed back.

Hadden was indicted by the U.S. Department of Justice in 2020, but the criminal case against him didn’t go to trial until January of this year. Before and throughout the trial, Laura and I religiously checked Pacer, an online database that provides public access to documents filed in federal court cases. Late one Sunday night, I got a call from Laura who had just spotted something important: an excerpt from what we now call “The ‘Dear Bob’ Letter.”

A document filed by prosecutors referenced the letter, which was addressed to Hadden and sent on July 2, 2012. It said that, despite the allegations against him that were being investigated by the police, if Hadden complied with university and hospital policies — specifically that a chaperone be in the room — he was allowed to “resume clinical activities.”

We realized that he had been allowed to go back to work almost immediately. We discussed whether we might be able to get the full letter via a public records request, but before we submitted one, we got lucky: Prosecutors shared it in another filing. And this time, we learned, it had been signed by Hadden’s supervisor and three high-level administrators had been cc’d. This was evidence that even more people knew of the arrest.

In a statement, Columbia said, “we are profoundly sorry for the pain that Robert Hadden’s patients suffered as a result of his abhorrent misconduct. We also deeply regret, based on what we know today, that Hadden saw patients for several weeks following his voided arrest in 2012.”

3. The “Dear Valued Patient” Letter

Hadden stopped practicing in August 2012. In April 2013, Columbia sent a letter to Hadden’s former patients to inform them that he had left the practice. Conspicuously absent in the letter? The reason. We got a copy early on from the attorney who has filed many of the civil cases against the university.

The letter is significant because this was an opportunity for Columbia to inform patients why Hadden had left. More than 10 years after his arrest, Columbia has yet to notify Hadden’s former patients that he has been convicted of sexual abuse.

Some of those patients have called on legislators to push for the passage of the Adult Survivors Act, a New York law that opened a temporary window for victims of abuse to file civil suits against their abusers, even when a statute of limitations has expired. The window will close on Nov. 23.

According to federal prosecutors, 245 patients have alleged abuse, but we estimate that Hadden likely saw tens of thousands of patients during his career, so the number could be much higher. Because Columbia refuses to notify them, those patients remain unaware that he has been convicted of the abuse charges he faced.

4. The Post-It Note (Courtesy of Sandy Abramowicz)

In 2014, patient Sandy Abramowicz told another Columbia OB-GYN that Hadden had abused her. The doctor left the room and returned with a Post-it note that had the name and phone number of Patricia Catapano, who at the time was deputy general counsel of the university.

We later learned that Columbia had failed to alert the Manhattan District Attorney’s Office to new patients who had come forward while the DA’s office was investigating. The Post-it note served as tangible proof that the university was referring patients to its own general counsel’s office and not the DA during that time.

We were surprised — and relieved — to know that Abramowicz had kept the note for all these years. It was evidence of the way Columbia was responding to patients who were coming forward.

Abramowicz never called the number. During an interview, she told us: “The fact that she said, ‘This is where they’re referring former patients of Dr. Hadden’ told me I’m not the only one. And Columbia knows that I’m not the only one. And then the thing that hits me is — if she represents Columbia and I’m Sandy, whose interests is she representing here?”

We reached out to Catapano, but she said she had no interest in responding to the inquiry.

5. The DA Report

We knew that the Manhattan District Attorney’s Office had opened a criminal investigation into Columbia in 2020. We repeatedly asked the DA’s office about the status of the investigation, but we got no answers, only that the investigation was ongoing.

Eventually, we got hold of documents that were directly related to the criminal investigation. It was like finding the Holy Grail.

The documents proved invaluable: They listed patient complaints that we didn’t know about, said that Columbia had failed to share those complaints during the DA’s investigation into Hadden, despite subpoenas, and said that Columbia had failed to place record-retention holds. Administrators had also failed to establish guidelines for documenting additional patient complaints.

These documents were our clearest record that Columbia had undermined prosecutors in the Hadden case. In an interview, Cy Vance, who was the district attorney at the time, told us that if Columbia had fully cooperated with the investigation, it could have made a difference in his office’s decision to accept a plea deal for Hadden in 2016. In a statement, Columbia told us that it continues to cooperate fully with the U.S. attorney for the Southern District of New York and the Manhattan district attorney.

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by Lisa Song and Maya Miller

The plastics industry has long pushed for recycling as a way to clean up its image. But large-scale, effective plastic recycling remains a myth. In 2021, the United Nations Environment Program reported there were 75 million to 199 million tons of plastic waste in the oceans. Plastic continues to drive climate change and threaten human health, biodiversity and the environment — sometimes in ways the public can’t even see.

ProPublica wants to better understand everything about the plastics industry, from how supply chains work to the health impacts of its products to the unwanted plastic wealthy nations export to lower-income countries. We want to hear from people working in growing fields of the industry, like chemical/advanced recycling and plastic credits. We’re particularly interested in talking to experts and residents outside of North America and Europe.

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by Lisa Song

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The plastic crisis has grown exponentially. Despite marketing claims, less than 10% of the plastic waste from recent decades has been recycled. The rest gets incinerated, is buried in landfills or piles up as litter on land and in the water.

Today, it is widely acknowledged that everything about plastic — from extracting fossil fuels to make it, to manufacturing products that use it, to disposing of it — can seriously harm public health and the environment. Plastics are a growing driver of climate change. As growth in renewable energy threatens the rule of fossil fuels, that industry is clinging to the creation of new plastics as its Plan B.

Now, the plastics industry faces a new threat. World officials will gather at a United Nations meeting in November to start negotiating the text of the first legally binding treaty on plastics. A final version is expected next year. If the agreement limits plastic production or use, the implications for the businesses that rely on it could be enormous.

So it wasn’t a surprise when those businesses sought to influence the discussion. But what has been jarring to environmental advocates and scientific researchers is who has been there to boost the Big Plastic platform: the United Nations itself, along with other globally respected groups.

This dynamic is evident right now in New York City, as global leaders, business executives and climate activists convene for Climate Week, an annual gathering organized by the nonprofit Climate Group in partnership with the United Nations.

Event organizers granted an opening ceremony speaking slot to a senior partner at McKinsey & Company, the powerhouse consulting firm that has advised fossil fuel companies. Top event sponsors include major brands that rely on plastic packaging and associate members of the American Chemistry Council, a leading plastics lobby.

“Our position on climate change and the urgent need to reach net zero is unequivocal, and we have been backing up those words with action for decades,” a McKinsey spokesperson said in an email. The American Chemistry Council didn’t return requests for comment.

A Climate Group spokesperson defended the inclusion of McKinsey and major plastics brands. “We won’t tackle climate change by only speaking with businesses or governments who are top performers. We need to engage with those who have further to go still.”

To those hoping for a strong plastics treaty, one of the most disappointing developments came from a report published by the United Nations Environment Program this May.

Co-written with Systemiq, a consulting firm that has advised the fossil fuel and plastics industries, the report generated a flurry of media attention for the main takeaway: that the interventions it listed would reduce global plastic pollution 80% by 2040 compared with what otherwise would have happened.

But its authors did not consider feedback from a large group of independent scientists and suggested several solutions that are favored by industry.

The report was “written from a certain worldview” that reflects business interests, said Ewoud Lauwerier, plastics policy expert at the advocacy group OceanCare. He called the report “highly problematic” in a 33-point thread on Twitter (now X).

Critics say the United Nations report emphasized waste management over the most important intervention — limiting the creation of new plastic. It’s a tactic that oil-rich nations like the United States have used in efforts to weaken the plastics treaty.

Putting the focus on managing waste risks getting locked into a cycle where people have to keep producing plastic to feed those waste management systems, said Jane Patton, campaigns manager on the U.S. fossil economy at the Center for International Environmental Law. Some environmentalists have called for phasing out single-use plastics by 2040.

The report is “not a reflection of industry talking points and it did not involve industry players while formulating the narrative,” Llorenç Milà i Canals, the lead report author from the United Nations Environment Program, said in an email on behalf of his institution and Systemiq. Milà i Canals is an expert on assessing the environmental impacts of products from creation to disposal.

The report did not predict how total plastics production would change. It focused on “short-lived” plastic products like packaging, which make up about two-thirds of all plastic waste. The report said the listed interventions would decrease production of these plastics 9% by 2040 compared with 2020.

Much of the reduction would come through eliminating single-use plastic or using replacement materials like paper. But the report’s inclusion of other controversial solutions alarmed many advocates and scientists.

Chief among them is chemical recycling, which transforms plastic on a molecular level. Research has shown that the process sometimes requires more energy than making brand-new plastic. A Reuters investigation found the industry has struggled to make it work on a large scale. Baked into the report’s estimated reduction in plastic pollution is what it projected to be a massive expansion of the practice: a more-than eightfold increase over 20 years. That growth rate is based on work Systemiq did with The Pew Charitable Trusts that resulted in a peer-reviewed paper.

“There’s no evidence anywhere showing that chemical recycling is sustainable from an environmental perspective or an economic perspective,” said Bethanie Carney Almroth, an ecotoxicology professor at the University of Gothenburg in Sweden. She fears the report will encourage governments to invest in chemical recycling, locking them into a harmful practice.

Chemical recycling is “included only as a last resort” for situations where plastic waste can’t be eliminated or processed via traditional recycling, Milà i Canals said. Chemical recycling “may have a role to play,” but “of course reducing the size of the problem is the top priority.”

The Pew Charitable Trusts, in a statement, said that its study set out to analyze “all existing and emerging technologies” to “assess their maximum feasible growth over the next 20 years” The analysis acknowledged that chemical recycling is “controversial” and could only tackle 6% of the plastic waste by 2040, so it “certainly cannot solve the crisis on its own.”

Incineration is another point of contention. Some “sub-optimal solutions will be needed” for certain non-recyclable plastics, the United Nations report stated. One option is to continue the practice of burning plastic as fuel for cement kilns. Since many countries already have cement kilns, the authors wrote, it wouldn’t require new investment and could reduce reliance on fossil fuels.

“Plastic itself is a fossil fuel,” said Sedat Gündoğdu, a professor in the Faculty of Fisheries at Çukurova University in Turkey. He said the report didn’t pay enough attention to the toxic footprint of incineration, as there’s “no proper solution” for the dioxins and other carcinogens emitted by burning plastic.

Many countries will turn to this report as a basis for future policy, he said. If the United Nations Environment Program lists incineration as an option, the least it could do is describe minimum health and environmental standards, he added.

Milà i Canals said the report stated this method is “strongly discouraged” and the authors did not recommend building new kilns. “We accept that we could have been more explicit about the limits of this solution.”

The report also suggested some of the costs of incineration could be covered by plastic credits — programs where corporations can claim to neutralize some of their plastic use by paying people elsewhere to recycle, incinerate or otherwise clean up existing plastic pollution.

Experts accused United Nations officials of being naive for their endorsement of plastic credits, saying that such programs will only justify more production of plastic while at the same time harming residents near incinerators. They have “no idea what’s going on on the ground,” said Yuyun Ismawati, senior adviser of the Nexus3 Foundation, an environmental group in Indonesia.

Her organization worked with a community in Bali near a polluting plastic waste recovery facility. Waste processed by the plant was linked to plastic credits pursued by a subsidiary of Danone, the French yogurt brand. The advocates sent Danone letters in June describing “filthy acidic smells” from the plant and residents’ complaints of nausea and severe headaches. The letter also denounced Verra, an American nonprofit that registered the plastic crediting project. Verra has been repeatedly criticized for selling worthless carbon credits. ProPublica reported in 2019 on a Verra-managed carbon offset project where half of the forested area that was supposed to be preserved was cut down after a decade.

Representatives from Verra and Danone told ProPublica the Bali project never produced actual plastic credits, and they were working to address concerns on the ground. The Verra spokesperson said the nonprofit is updating its carbon offset rules in response to recent criticism.

The Danone spokesperson said more research is needed “to test the effectiveness of plastic credits, and we continue to explore various solutions for plastic recycling.”

Milà i Canals said his report “does not provide a blanket recommendation” for plastic credits and cited references that warned of risks.

The United Nations Environment Program received notes on all of these concerns before publishing. It invited comments.

Since last year, the Scientists’ Coalition for an Effective Plastics Treaty — a group of 280 scientists from 55 countries — has volunteered its time to provide technical assistance on the treaty. In early March, the United Nations Environment Program sent out a draft of the report to representatives of the group, giving them a week to review the 80-page document. Thirty scientists from different countries dove in. Carney Almroth, the professor from Sweden, spent the weekend typing at her kitchen table on a shared document.

Their final submission contained more than 300 comments about the report’s general framing and critiques of specific paragraphs. “Many solutions that have been presented (e.g. different forms of recycling) have failed, or are not scalable, or were pure greenwashing campaigns from the start,” she wrote in one comment.

Their feedback fell into a virtual black hole. The final report didn’t alleviate their main concerns, Carney Almroth said, even though it was published two months after the comments’ submission.

Milà i Canals said the email was filtered to a spam folder. Everyone was so busy that “nobody noticed” the “unfortunate mistake” until the report was published, he said.

They did take other people’s comments into account, Milà i Canals explained. In total, the authors received more than 1,000 comments from 75 external experts working for civil society groups, academia, industry and government, he said.

Our comments had the potential to “reshape the whole report,” and that’s “not something the industry wants,” Gündoğdu said. He and others said the United Nations program should have done more to vet Systemiq before hiring them.

Milà i Canals said Systemiq is a “mission-driven” company that was founded to help achieve the United Nations Sustainable Development Goals and the Paris climate agreement, “and it does this by transforming markets and business models.” He cited Systemiq’s “excellent track record” analyzing plastic, including the firm’s prior work with his institution, academic researchers and Pew.

According to its website, Systemiq is “a collaborative system designer, developer and disruptor” striving for “a thriving planet where sustainable economic systems drive prosperity for all.” It was founded in 2016 by consultants with decades of experience working for McKinsey.

Like McKinsey, Systemiq has advised the fossil fuel sector. Yoni Shiran, the lead Systemiq author of the United Nations report, said the firm has done so “very rarely” and only to “help them move away from fossil fuels.” A 2022 Systemiq report written for Plastics Europe, an industry trade group, described how to reduce the environmental footprint of the most commonly used types of plastic, which make up 75% of all plastic. Aggressive policy changes could keep the amount produced from rising between 2020 to 2050 in Europe, the report predicted. (A spokesperson for Plastics Europe said it was an “independent report” advised by a steering committee of experts working in the public sector, civil society and industry.)

The United Nations report lists 17 lead authors: eight from the United Nations program, five from Systemiq, and four from a university and another consulting firm. Two of the Systemiq authors previously worked for McKinsey.

On Tuesday, Systemiq will release a new report, titled “Towards Ending Plastic Pollution by 2040.” It was commissioned by the Nordic Council, a regional parliament. Many of these countries are part of a “High Ambition Coalition” that seeks aggressive terms on the plastics treaty.

A spokesperson for the Nordic Council said the group was “very aware” of the criticism received by the United Nations report, adding that “many of those concerns” were taken into account and “addressed more directly” in the new report.

An early copy provided to reporters shows that the report predicts total plastic production will increase by 9% in 2040 compared with 2019. Without the suggested interventions, the report said, production in 2040 would balloon by 66%. Shiran, one of the lead authors, said 9% “actually represents a pretty ambitious reduction” since the United Nations predicts world population will grow by 2 billion in 2040, with rising plastic consumption per capita.

The report didn’t mention plastic credits and presented scenarios with and without large growth in chemical recycling. Shiran was also a lead author on the Pew and Plastics Europe reports.

Experts said these repeat publications create a loop in which reports cite and legitimize one another.

If you have one consultancy that’s constantly self-referencing its own work, it doesn’t expand our knowledge or prove their case, said Patton, the Center for International Environmental Law advocate. If an environmental group had this much influence, she added, “I would absolutely have the same concerns.”

Shiran said the models underlying each report took years of work and took feedback from expert panels made up of academics, government officials and civil society groups. The reports are “intentionally linked to build on previous knowledge,” he said. “This is a strength of the work, not a weakness.”

Do You Have Experience in or With the Plastics Industry? Tell Us About It.

Kirsten Berg and Alex Mierjeski contributed research.

by Todd Wallack and Christine Willmsen, WBUR

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Deb Libby is running out of time to find a place to live.

Libby, 56, moved to Worcester, Massachusetts, four years ago, in part to be closer to the doctors treating her for pancreatic cancer. She rented an apartment — a converted garage — and spruced it up, patching the walls and repainting all the rooms.

But Libby’s landlord, who has been trying to get her to leave, now wants her out by the end of the month. She can’t find anything else she can afford. Libby earns only a little more than minimum wage working at a hardware store and often has to take unpaid time off when she doesn’t feel well.

She thought she found a potential solution nearly a year ago: She applied for state public housing, a type of subsidized housing that’s almost unique to Massachusetts. But she’s heard nothing since.

“It’s frightening,” she said. “I seriously don’t know what to do. It’s like the system’s broken.”

In a state with some of the country’s most expensive real estate, Libby is among the 184,000 people — including thousands who are homeless, at risk of losing their homes or living in unsafe conditions — on a waitlist for the state’s 41,500 subsidized apartments.

As they wait, a WBUR and ProPublica investigation found that nobody is living in nearly 2,300 state-funded apartments, with most sitting empty for months or years. The state pays local housing authorities to maintain and operate the units whether they’re occupied or not. So the vacant apartments translate into millions of Massachusetts taxpayer dollars wasted due to delays and disorder fostered by state and local mismanagement.

As of the end of July, almost 1,800 of the vacant units, including some with at least three bedrooms, had been empty for more than 60 days. That’s the amount of time the state allows local housing authorities to take to fill a vacancy. About 730 of those have not been rented for at least a year.

The vacancies are aggravating a statewide housing crisis. Massachusetts is spending $45 million a month to house people temporarily at hotels, shelters, college dorms and a military base. Gov. Maura Healey declared a state of emergency in August to deal with the wave of homelessness. Massachusetts reports that the number of families with children staying in emergency shelters has almost doubled in the past year to 6,386.

Our investigation found that one cause of the prolonged vacancies is the flawed online waitlist system the state rolled out four years ago. Massachusetts replaced town-by-town waitlists with a single pool of applicants that 230 local housing agencies draw from. But the state failed to implement an efficient system for selecting potential tenants. Understaffed and underfunded local agencies have to screen applicants for income, criminal background and other eligibility criteria. Apartments are left in limbo as some candidates turn out not to qualify. Applicants often indicate they would accept housing in many towns, but then reject offers from communities that are far away from their current location.

Deb Libby, a Worcester grandmother with pancreatic cancer, has been on the waitlist for state-funded housing for almost a year. (Jesse Costa/WBUR)

“I think it’s the most horrible, horrible, inefficient program,” said David Hedison, executive director at the housing authority in Chelmsford, a town 30 miles northwest of Boston. He said the agency spent six months contacting 500 people who were on the waitlist for a three-bedroom apartment, before it finally found one who responded and qualified for the unit. “The whole sense of helping residents in your community is gone,” he said.

Since the centralized waitlist went into effect, local housing agencies have increasingly told the state that they need extra time to fill vacancies, requesting more and more waivers to extend the usual 60-day deadline. The number of waiver requests has tripled since 2018, state data shows.

Massachusetts Public Housing Agencies Are Filing More and More Waivers to Keep Units Empty

In 2019, Massachusetts replaced local waitlists with a statewide system. Since then, the number of waivers that local housing authorities have filed because they couldn’t fill a vacancy in the 60-day time limit has more than tripled.

Source: Massachusetts Executive Office of Housing and Livable Communities (Data analysis by Todd Wallack/WBUR, chart by Jason Kao/ProPublica)

The state’s new secretary of housing, Ed Augustus, acknowledged that there’s no justification for having so many vacancies.

“I think it’s unacceptable,” said Augustus, who was sworn in less than four months ago. “I think that we need to do everything we can to make sure that every single one of our precious public housing units is filled and the amount of time between tenants is as short as is humanly possible.”

Zagaran, a small software developer in Boston, created the program that runs the state’s central waitlist system. Co-founder Josh Zagorsky put the responsibility on state officials, saying that complaints were about “matters of policy, not Zagaran’s software.”

In most states, low-income residents seeking affordable housing must rely on federal housing, vouchers for private housing and other assistance. But Massachusetts is one of four states — alongside New York, Connecticut and Hawaii — with state-funded housing. Massachusetts has more than twice as much state-subsidized housing as the other three states combined.

With tens of thousands of units, Massachusetts public housing is a linchpin of the social safety net for seniors, people with disabilities and families with limited resources. Adding in 31,000 federally funded units, Massachusetts has more public housing per capita than any other state, according to a WBUR analysis. But so many people are in dire need of housing that both the state and federal systems have lengthy waitlists.

The Massachusetts public housing system was originally established to accommodate low-income veterans after World War II. The state typically spends more than $200 million a year on operating expenses and renovations to keep rent affordable for low-income tenants. When units are empty, the local authorities miss out on rental income, but they generally continue to receive the state money.

Massachusetts ranks as the third-most-expensive state for private housing. But tenants in state-funded units typically pay less than a third of their household income in rent. That means a family earning $30,000 per year would pay a maximum of $800 a month for a two-bedroom, far below the state median of about $3,000 a month. And when families in state-funded housing don’t have any income, they only pay the $5 monthly minimum.

But actually landing one of those apartments is extremely difficult. Doris Romero, a housing coordinator at the Women’s Lunch Place day shelter in Boston, has helped dozens of women sign up for state-funded housing. But, she said, only one has actually moved into a state unit in the past year. She was stunned to hear about all the vacant apartments.

“Honestly, that’s a travesty,” Romero said. “The commonwealth should be ashamed.”

Brady Village, a state-funded family housing complex in the western Massachusetts town of Agawam, is a microcosm of a statewide problem. Barbecue grills and children’s bikes stand outside some of the units where families live. But Agawam Housing Authority Executive Director Maureen Cayer points out one vacancy after another. Ten of the 44 units were empty in July, including seven that had been unoccupied for more than a year.

“They’re clean. They’re bright. And they’re empty,” said Cayer, who is responsible for overseeing the buildings and filling the vacancies. “It’s not the way it’s supposed to be.”

Cayer blames the statewide waitlist for the vacancies in Brady Village. Historically, local agencies with state-funded housing each managed their own small waitlists for homes. But critics complained that some local housing authorities played favorites, and that the process was cumbersome for prospective tenants, who had to file separate applications, often in person, for every community where they were interested in living.

Maureen Cayer, executive director of the Agawam Housing Authority, discovers that birds have been nesting in the exhaust vent of a long-unoccupied unit in Brady Village. (Jesse Costa/WBUR)

To address the concerns, the Legislature ordered the state in 2014 to create a statewide online system, called the Common Housing Application for Massachusetts Programs, or CHAMP. The system was supposed to make it easier for people to find housing by allowing them to apply anywhere in the state with a single form. Each housing agency receives a state-generated list of people who indicated an interest in that area.

The system, which has cost the state $6.8 million, ran into problems as soon as local housing authorities began using it internally in the fall of 2018. In January 2019, a state housing official sent a memo to all local agencies alerting them that they might need additional staff to screen applicants. The memo said that the new system created an “acute administrative challenge” to determining who qualifies for priority placements. The state gives priority to people whom it considers homeless through no fault of their own, due to reasons like a natural disaster or domestic violence. As a practical matter, it’s almost impossible for families to obtain state housing without priority status.

When the new system launched for the public that April, more than three years behind schedule, housing authorities immediately complained it made it harder to sift through the flood of applications and find tenants who qualified for the units. “The system is not working,” the housing authority in Warren, a town in central Massachusetts, told the state in November 2019.

Despite these shortcomings, Massachusetts officials hailed the new statewide waitlist as a success. At a formal celebration at the Statehouse in December 2019, complete with a reception and appetizers in the marbled Great Hall, then-Gov. Charlie Baker honored the development team with an award for “excellence in public service.”

In the four years since, complaints from local housing officials have only grown louder. Under the old system, it would take the Agawam Housing Authority a couple months to find a new tenant, Cayer said. Now, it takes years. Baker did not respond to a request for comment.

The first problem is that the application is lengthy and complicated. Agawam’s old form was eight pages long. The new statewide form is 26 pages. There is no initial screening or check to see if applicants have the paperwork they need, so housing agencies generally can’t identify problems until late in the process — when an apartment is available and someone’s name comes to the top of the list.

Cayer recalls a two-bedroom unit in Brady Village that was empty for two and a half years before finally getting a tenant this past February. Agawam housing officials went through roughly 600 names, grabbing a batch from the waitlist almost every week and mailing out letters with a 15-page supplemental form to determine eligibility. Applicants had 10 business days to reply.

Most never responded. Or it turned out they weren’t eligible for public housing. Or they had to be moved down the list because they didn’t qualify for priority status as they contended they did. Or, when they were finally offered a home, they turned it down because they had competing offers or they decided Agawam was too far away from their work or family. The typical applicant seeks housing in 20 communities, according to the state.

“It’s an exercise in futility,” Cayer said. “We have people calling or applying from the Cape or from Boston. They can’t reasonably live here.” (The largest town on Cape Cod, Barnstable, is 150 miles from Agawam.)

The state revamped the applicant form in December, adding a map of the 14 counties in Massachusetts in hopes of dissuading people from signing up for housing in communities they have no intention of living in. So far, Cayer said, the map has not been effective in deterring far-flung people from applying to Agawam.

And since people often apply to multiple towns, it’s common for them to be contacted by many housing authorities at once. As a result, multiple agencies simultaneously hold units open for the same applicant, who can choose only one place. Meanwhile, Cayer said, some waitlisted families are stuck in shelters or sleeping in their cars.

“I think it’s criminal,” Cayer said. “Criminal.”

Public records show that local housing authorities have regularly told the state they need more time to fill vacancies because of problems with the CHAMP waitlist, as well as a lack of staff to comb through applications.

A page from the application for state public housing in Massachusetts. The state’s online system for selecting tenants has been plagued by problems. (Jesse Costa/WBUR)

The state has received so many complaints about the CHAMP system that it has hired a Boston marketing firm, Archipelago Strategies Group, to take over some of the screening of public housing applicants, starting this month. Archipelago referred questions to state officials.

A state housing official said Archipelago will be paid $3.3 million to go through the backlog of applicants requesting priority status for housing assistance. But local housing authorities will still be responsible for some of the vetting, such as background checks. The secretary of housing said he expects improvements soon but doesn’t know when the problems will be fully resolved.

“This is an iterative process,” Augustus said. “We’ll continue to make changes as necessary.”

The state also significantly reduced the size of the waitlist for state-funded public housing this spring — but not by placing people in apartments. Instead, it dropped tens of thousands of people who did not respond to a letter in the mail asking them to confirm that they were still interested in housing.

The waitlist is a mystery to people who are desperate for housing. They don’t know where they stand in the line of applicants or when they will find an apartment.

After applying for state-subsidized housing in January, Konstantinia Gountana, 41, of Arlington, and her family are living with these unknowns.

During the pandemic, Gountana’s husband lost his job as a barber in Harvard Square and three of her family members died, including her only relative in Massachusetts.

“Anything that could go wrong went wrong,” she said. “It was a disaster.”

To make ends meet, she and her husband started to drive for Uber on alternating shifts, with Gountana looking after their infant and 5-year-old during the day, and her husband handling child care in the evening. But their Toyota Prius broke down and they had to quit.

The Gountanas are facing steep odds. They limited their application to one town: Arlington, where more than 25,000 families are on the waitlist. They didn’t want to uproot their older son, who has symptoms of autism and attention-deficit/hyperactivity disorder. His therapist had recommended against changing his school and schedule. The family also applied for housing vouchers, but there’s a long wait for those, too.

The Gountanas were evicted in June. They were forced to toss most of their belongings and squeeze into a friend’s spare room with their two kids. But they aren’t sure how long they can stay.

“Everything got destroyed,” Gountana said, bouncing her now 21-month-old son on her knee to keep him quiet. “I’m embarrassed. I’m sad. All these feelings.”

The executive director of the Arlington Housing Authority, Jack Nagle, said that filling vacancies is a challenge because of the state’s online waitlist system. Twenty of Arlington’s 700 state-funded units sat empty as of the end of July.

Gountana is still hoping to move into a state-funded apartment. “Honestly, I did not expect it to be so, so long,” she said.

The waitlist woes are one of several reasons for the glut of vacancies. Hundreds of apartments across Massachusetts can’t be filled because they’re undergoing renovation, or because local housing authorities lack the staff or funding for vital repairs.

Why State Public Housing Units Sit Vacant in Massachusetts

Local housing authorities submit a waiver and an explanation to the state if they expect that a unit will need to be vacant for longer than 60 days. For apartments that were vacant as of July 31, 2023, the following reasons were given.

Note: This data excludes any units that stand vacant but that housing authorities had not requested a waiver for. To simplify this chart, similar reasons were combined into a few groups. Source: Massachusetts Executive Office of Housing and Livable Communities (Data analysis by Todd Wallack/WBUR, chart by Jason Kao/ProPublica)

Units in the town of Adams, in the Berkshires near the New York state border, have been condemned as the problems piled up. And housing officials have razed other dilapidated apartments in cities such as Lowell, northwest of Boston, and Fall River, near the Rhode Island line. About 70 apartments across Massachusetts have been demolished or sold in the last dozen years, according to the state housing agency.

“We need a long-term plan,” said Rachel Heller, of the Citizens’ Housing and Planning Association. “We can’t lose these homes.”

For decades, advocates have warned that the state public housing system needs billions of dollars in funding for additional staff and renovations, including new roofs, plumbing and heating systems. A 2006 audit called the situation a “state of emergency.”

But those alarms weren’t heeded. In 2018, the Legislature allocated $600 million over five years for capital expenditures for public housing — not enough to catch up with all needed repairs. Today, local authorities have a $3.2 billion backlog for renovations, by the state’s estimate. Augustus, the state housing secretary, said the state is working on a new bond bill, but it was too early to provide details.

Advocates pushed for $184 million this year for operating and maintaining the units day to day, but Healey’s proposed budget allowed for only half that amount.The Legislature ultimately allocated$107 million, an increase of 16% from last year. Healey, House Speaker Ron Mariano and Senate President Karen Spilka declined to be interviewed.

In the meantime, the state public housing stock is suffering. Take the housing authority in Watertown, a Boston suburb, which has six maintenance workers. Patrick Breen, the maintenance supervisor, said that’s not enough to care for the agency’s 589 units, many of which were built 60 to 70 years ago.

Breen said his crew must focus on emergencies, like broken cast-iron pipes and electrical outages. Often, no one is available to prep empty units for new families. Some longtime tenants just abandon the apartments, forcing the maintenance crew to haul out their belongings and repair walls, floors and counters. The units sit for months before they are ready to lease.

“It’s a nightmare,” Breen said. “There’s not much more you can do really, when you don’t have enough staff.”

The kitchen of a unit that needs renovation in the Lexington Gardens public housing complex in Watertown. (Jesse Costa/WBUR)

Some apartments across the state stay in limbo even longer while housing authorities plan major renovations or redevelopment projects. That’s what happened in the city of Somerville, where units in the Clarendon Hill complex sat empty for as long as six and a half years before work began in March on a new $200 million private development of affordable and market-rate housing at the site. During that time, the state continued to pay Somerville to manage the vacant units.

Somerville Housing Authority interim director Joe Macaluso explained that the agency hadn’t wanted to spend money maintaining aging buildings that it planned to demolish, even though they were still livable. “We would have had to inject capital — good money after bad money — just to get them ready,” he said.

The state’s executive housing office rarely questions these long vacancies, approving 92% of requests to keep units empty past the 60-day deadline. But advocates for homeless people say they wish agencies would let someone live in the empty apartments — even if it’s only temporary.

“If you were to ask me or ask our clients, they would say, that’s four or five years I’m not in a shelter or out in the street,” said Mike Libby, executive director of the Somerville Homeless Coalition. He’s not related to Deb Libby, who’s seeking housing.

Across the state, housing authorities have also converted at least 121 state-subsidized apartments for uses including office spaces, storage areas and laundry rooms — further shrinking the pool of units available for families and seniors.

The Boston Housing Authority converted 11 units to offices for employees and tenant organizations and set aside another for a children’s program. Nearby, the Somerville Housing Authority repurposed 10 apartments, including a two-bedroom unit that was turned into office space for the agency’s police department.

A public housing unit at the Green Acres development in Fitchburg (first image) is used for an after-school program, while another in Somerville (second image) provides space for the local housing authority’s police department. (Jesse Costa/WBUR)

Beverly, Fall River and Quincy turned units into laundry rooms. And the housing authority in Salem took four apartments in a downtown tower for seniors and converted them into offices, including a break room and space for file storage. After the president of the tenants’ association stumbled onto two of the repurposed units last year in the building he lives in, the housing authority launched eviction proceedings against him. The agency said he was trespassing. He said there was no indication that the offices were off limits. The case is pending.

One social services executive was astonished to hear about all the apartments converted to offices and storage.

Housing “seems like a bigger priority than a break room or storage facility,” said Laura Meisenhelter, executive director of North Shore Community Action Programs, which runs a family shelter. “You know, you can get sheds at Home Depot.”

Augustus, the state housing secretary, said there are often good reasons to repurpose units, such as to provide a library or a laundry room in a complex for seniors. He said the state has to sign off on the conversions, but it generally defers to local officials. “There’s always going to be unique circumstances,” Augustus said.

At least one agency hopes to switch its converted units back soon. The Fitchburg Housing Authority plans to build a $12 million community center with plenty of office space, enabling it to convert seven offices back to their original purpose: housing.

Fitchburg Housing Authority Executive Director Doug Bushman in an office that was converted from an apartment. (Jesse Costa/WBUR)

Deb Libby, the Worcester woman facing eviction at the end of the month, never worried about becoming homeless. She’s worked at Lowe’s for two years, doing everything from fielding questions to moving supplies in the garden section. But it’s been harder to work a full schedule since she was diagnosed with pancreatic cancer five years ago. Her job is physically demanding — she walks six to eight miles a day — and the disease has weakened her immune system, forcing her to take frequent days off without pay.

She said surgery removed the cancerous tissue in November 2018 and after that she’d been in remission. But an MRI recently found the cancer has spread to the liver. “We’re still trying to figure out what to do with that.”

Libby has struggled to keep up with the $1,450 monthly rent for her one-bedroom apartment near the College of the Holy Cross.

For a while, pandemic relief funds helped her pay the rent. Then a friend pitched in. But the building was sold, and she didn’t have a long-term lease.

Last October, after her landlord began the formal eviction process, Libby signed up for state public housing in Worcester. Libby managed to stave off the eviction in housing court for a year with help from an attorney from a legal aid nonprofit. As part of an agreement to settle the case, the landlord acknowledged Libby was not at fault, promised to provide a good recommendation, and cited “economic reasons” for the eviction. The building’s owner did not respond to an email asking for more specificity.

Libby prefers to remain in central Massachusetts, close to her mother, three children and three grandchildren. Her family doesn’t have room for her, she said, and she’s willing to move anywhere in the state to find an affordable apartment. Early this year, she expanded her search for public housing to 30 additional communities — from Chicopee in western Massachusetts to Provincetown on the tip of Cape Cod.

In June, she applied for priority status for state housing on the grounds that she is losing her housing through no fault of her own. But Libby said she hasn’t received any response. When she called some housing authorities, she said, they wouldn’t tell her where she stands on the waitlist.

“I just really need something,” she said. “I really need help.”

Libby said she has no idea where she will live — maybe in her truck or a friend’s garage. She was surprised to hear about all the units sitting vacant across the state.

“It’s frustrating,” she said. “It’s maddening.”

Beth Healy and Paula Moura of WBUR contributed reporting.

by ProPublica

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Looking to deepen relationships with local newsrooms, ProPublica has opened up applications for five new two-year partnerships that would focus on abuses of power in their communities.

Since 2018, ProPublica’s Local Reporting Network has supported individual projects over the course of a year. We’ve worked on 90 projects with more than 70 newsrooms.

This new group of partnerships will be different. We are seeking to build sustained relationships with reporters and newsrooms that have a proven track record of investigative reporting and impact.

Successful applications will demonstrate past ability to execute investigative stories, strong reporting ties to the community and a range of story ideas that the reporter might take on over the two-year partnership. The new partnerships are supported by a grant from the Abrams Foundation and will begin on Jan. 2, 2024.

The Local Reporting Network is part of ProPublica’s local initiative, which includes offices in the Midwest, South, Southwest and Northwest, plus an investigative unit in partnership with The Texas Tribune.

As part of the program, ProPublica will pay each full-time reporter’s salary (up to $80,000), plus an allowance for benefits. We will also provide extensive support and editorial guidance, including collaboration with a senior editor and access to ProPublica’s expertise with data, research, engagement, video and design. Local reporters will work from and report to their home newsrooms; their work will be published or broadcast by your newsroom and simultaneously by ProPublica.

Applications are due Nov. 1, 2023, at 9 a.m. Eastern time.

Since its founding, several reporters have partnered with the Local Reporting Network for multiple years. Those sustained relationships have allowed us to deliver high-impact reporting to communities that urgently needed journalistic attention.

Since 2019, Kyle Hopkins at the Anchorage Daily News has delivered a stunning range of stories: His stories on the lack of law enforcement in rural parts of Alaska prompted a national emergency declaration from the U.S. attorney general; his reporting on the actions of two state attorneys general prompted their resignations; and his coverage of the work environment at the Anchorage library system was followed by the resignation of the library’s deputy director. Hopkins’ law enforcement coverage was recognized with the Pulitzer Prize for public service and other major journalism awards.

Molly Parker, reporting in southern Illinois, joined the program in 2018; her most recent project looked at deplorable conditions at a remote state facility for people with developmental disorders and mental illnesses. Documenting abuse and neglect of residents, the reporting also showed how staff had covered up their actions and continued to work with relative impunity. Since the reporting began, the state announced its intention to remove half of the residents from the facility, passed a new law increasing penalties for staff who cover up abuse and replaced the facility’s director. The project, done in collaboration with Lee Enterprises Midwest and Capitol News Illinois, received a Robert F. Kennedy Human Rights Award in 2023.

Applications should be submitted by newsroom leaders and will ask for the following information:

• The reporter whom you envision spearheading the work and the annual salary you would need to pay them. (Please provide an exact figure, not including benefits.) This could be someone on staff or a freelancer with whom you hope to work. (Freelancers must submit a joint application with an eligible news organization willing to publish their work.) The person must have an investigative track record to be considered for this position.
• A personal statement by the reporter explaining their interest in and history with investigative reporting.
• Three clips and an accompanying explanation of the backstory: particular challenges or successes; the role the reporter played; any impact; and journalistic lessons learned.
• A resume.
• A memo of stories you’d like to pursue during two years of intensive partnership with ProPublica. These should be stories that would benefit from a collaboration, potentially including data, research and engagement reporting resources we can provide. These may include big stories, an ongoing series of shorter stories, text, audio, video or something else. All of them should have the potential to resonate with both local and national audiences. We recognize these may shift over the two-year program: The point is to get to know your reporter, their interests and how they approach their work. But we would like to know at least one story that seems like a solid starting point for the partnership.

ProPublica editors are available to answer questions or to give you feedback on your application before you submit it. Please reach us at Local.Reporting@propublica.org.

Please submit your proposal by Nov. 1, 2023, at 9 a.m. Eastern time. Entries will be judged principally by ProPublica editors. Selected proposals will be announced by early December.

by Caleb Bedillion, Northeast Mississippi Daily Journal

This article was produced for ProPublica’s Local Reporting Network in partnership with the Northeast Mississippi Daily Journal and The Marshall Project. Sign up for Dispatches to get stories like this one as soon as they are published.

In 2017, the Mississippi Supreme Court’s then-Chief Justice William Waller Jr. helped mandate that judges throughout the state explain in writing how they deliver on their duty to provide poor criminal defendants with a lawyer.

He hoped the rule would spur improvements in Mississippi’s patched-together public defense system, regarded by many legal experts as among the worst in the country.

Now, six years after the rule went into effect, only one of the 23 circuit court districts in the state has responded. The 22nd Circuit Court in southwest Mississippi became the first to comply this summer, according to the Supreme Court’s docket.

The requirement was part of a push to move “toward a statewide system,” said Waller, who retired a couple of years after it went into effect. He said he’s partly responsible for not enforcing it. “We should have started going court by court and asking them to show us their plans.”

Public defense systems across the country are overburdened and underfunded, but Mississippi stands out. Nationally, it ranks last in how much money it spends per capita on public defense, according to the Sixth Amendment Center, a nonprofit that advocates for a robust defense for the indigent — those who can’t afford their own lawyer. Mississippi is one of only eight states that rely on local officials to fund and deliver almost all public defense for people facing trial, according to the center.

Mississippi has long failed to monitor or evaluate local courts to see whether they’re delivering that defense, which is guaranteed by the Sixth Amendment of the U.S. Constitution. Without such oversight, no one knows whether all the state’s courts, especially smaller ones in the vast rural stretches of the state, are doing the job that’s required of them.

The Northeast Mississippi Daily Journal, ProPublica and The Marshall Project have identified courts that aren’t following the state Supreme Court’s rules on public defense, including judges who fail to appoint lawyers as early as required, or who deny counsel to defendants for inappropriate reasons. Even once appointed, some lawyers say they do little for defendants and that local judges know this.

Such problems show why it’s important for courts to explain how they provide public defense, said André de Gruy, who runs Mississippi’s Office of State Public Defender and has written a model plan for local courts that they could adapt to meet their needs. Without these plans, he said, “we can’t say whether we are in compliance with the Constitution.”

André de Gruy, head of Mississippi’s Office of State Public Defender, says that unless judges file indigent defense plans with the state, it’s hard to know whether courts are meeting constitutional standards. (Imani Khayyam for ProPublica) “Not Much Lawyering Going On”

In the last three decades, there have been repeated efforts to overhaul Mississippi’s public defense system, including four state committees or commissions, two major reports by outside legal experts and numerous pieces of legislation. They’ve been largely unsuccessful.

There’s widespread agreement about the systemic problems: Defendants can sit in jail for months at a time without a lawyer. The way that many lawyers are paid gives them an incentive to cut corners. There are few full-time public defenders in the state.

“There is not much lawyering going on. I get them through the system and get them out of here,” an unidentified, part-time public defender bluntly told consultants for the Mississippi Bar Association as part of a state government effort to reform the public defense system in the 1990s.

Shortcomings in Mississippi’s Public Defense Persist Over 20 Years

• 1995: “There is no statewide oversight of indigent defense in Mississippi, which leads to a hodge podge, county-by-county approach to providing defense services,” wrote the Spangenberg Group, a consulting firm hired by several legal groups to evaluate the state’s public defense system.

• 2003: The right to counsel is “functionally meaningless in Mississippi, a state which provides almost no regulation, oversight, or funding for indigent defense,” said the NAACP Legal Defense and Educational Fund.

• 2018: “The state of Mississippi has no method to ensure that its local governments are fulfilling the state’s constitutional obligation to provide effective assistance of counsel to the indigent accused in felony cases in its trial courts,” according to the Sixth Amendment Center.

In a 2003 study, the NAACP Legal Defense and Educational Fund reported that a lawyer on the Gulf Coast said that he never tried to locate or interview witnesses because by the time he’s been appointed, nine months to a year have typically passed since the crime.

“By then,” researchers wrote, recounting what the lawyer told them, “crime scenes have changed, witnesses have moved, and memories have faded.”

That study highlighted the case of a man arrested in the northeast Mississippi city of Tupelo for possession of crack cocaine. The court appointed three different lawyers in succession. The first two never spoke with the defendant and did not respond to his phone calls or letters. On the day before the trial, the third lawyer told the court that he had not prepared for his client’s case. The evidence against the man was so weak that he was acquitted by a jury after less than 15 minutes of deliberation. He’d spent eight months in jail.

From 2000 to 2011, several task forces successfully pressed for a series of reforms, including the creation of a state office to handle death penalty defense and indigent criminal appeals. That’s the office de Gruy now runs.

But reforms to public defense in local courtrooms remained out of reach. “I remember being very frustrated,” said Waller, who was part of those efforts after joining the state Supreme Court in 1998.

The sheer number of courts across the state, and the lack of coordination among them, is a factor in why it’s so hard to reform the system.

“In other states, any discussion of policy change takes place at one or two systems,” said David Carroll, director of the Sixth Amendment Center. “There are nearly 500 indigent defense systems in Mississippi.”

New Rules for Public Defense

In 2009, Waller became chief justice and went on to play a key role in an ambitious effort to create rules of criminal procedure that would be shared by all courts in the state.

Eight years later, those statewide rules went into effect. For the first time, judges were required to write down exactly how they delivered on their obligation to provide lawyers for defendants who couldn’t afford one. The courts were then required to send those plans to the Mississippi Supreme Court for approval.

“The intent of the rule was, as much as possible, to have consistency across the state,” Waller said. “A lawyer would be able to look at the rules and know what the practice is, and it would be fairly consistent, and he wouldn’t be memorizing the Magna Carta every time he went into a new court.”

Former Mississippi Supreme Court Chief Justice William Waller Jr. said he’s partly responsible for not ensuring that courts around the state followed through on a requirement to develop public defense plans. (Bruce Newman for Northeast Mississippi Daily Journal)

Waller knew it was a limited effort. But in the absence of legislation to create a statewide system for public defense or a movement by counties to hire full-time lawyers, the Supreme Court could at least encourage uniformity among courts and reject inadequate plans.

In combination with other new rules, including measures to make bonds less onerous and give defendants more opportunities to argue their case before a judge, he hoped counties would move to create full-time public defender offices.

That didn’t happen. To date, just seven counties have full-time public defender offices, and only the 22nd Circuit Court has filed the required paperwork laying out its indigent defense system. The Mississippi Supreme Court approved the plan last month.

The plan is not lengthy, but it shows that the 22nd Circuit’s lone judge knows what’s required by the Sixth Amendment and that she has developed a process for how she fulfills that duty. It says when appointed counsel should be provided to poor defendants, it directs judges to monitor attorneys’ performance, and it outlines a procedure to ensure that defendants don’t lose representation as their case moves from one court to another.

The Northeast Mississippi Daily Journal, The Marshall Project and ProPublica asked the court administrators in all 23 circuit court districts, as well as the county-level clerks in all 82 counties, if they have a written plan for indigent defense. Many would not comment, but clerks in nearly 20 counties said they don’t.

Waller called on the current justices to remedy the failure to enforce the public defense rule. Chief Justice Michael Randolph and Justice Jim Kitchens, who heads the court’s criminal rules committee, declined to comment.

“I’m Not Too Quick to Pull the Trigger on a Public Defender”

At least a few judges aren’t only ignoring the requirement to write down how they provide lawyers for poor criminal defendants. They’re not following state rules on providing those lawyers in the first place.

The Daily Journal, ProPublica and The Marshall Project identified two courts that aren’t properly appointing lawyers for indigent defendants, according to Waller, legal experts and the rules of criminal procedure.

A lawyer who acts as a part-time judge in the small northeast Mississippi city of Guntown told a reporter that he usually handles defendants’ first appearances over the phone and doesn’t ask if they can afford a lawyer. This contravenes Mississippi’s criminal rules, which require that during a defendant’s initial court appearance, a judge should find out if that defendant can afford a lawyer and appoint one if not.

“They hear their charges and get a bond if they deserve one,”said Harry Sumner, the part-time judge. “I do not appoint a public defender at the initial [appearance] at that time.”

Told that this practice doesn’t meet the state standard for an initial appearance, Sumner said he believes that defendants waive those requirements when they agree to appear before a judge by phone. If someone wants a lawyer, he said, one could be appointed at a preliminary hearing, although he acknowledged that those hearings are rarely requested.

The state’s rules, however, are clear that while defendants held in jail may agree to appear before a judge by audiovisual means, the requirements of an initial appearance still apply.

In nearby Yalobusha County, a judge said he doesn’t move quickly to appoint a lawyer if a defendant posts bond and is released from jail.

“If they’re arrested on a felony and they’ve made bond, I’m not too quick to pull the trigger on a public defender, particularly if they’ve made a high bond,” said Yalobusha Justice Court Judge Trent Howell.

The rules, however, instruct judges not to base their decision about whether to appoint a lawyer on the ability of defendants or their friends or family to pay money to get them out of jail. Pressed on why he doesn’t abide by that instruction, Howell defended his approach. “It’s just human nature” to consider whether someone has been able to raise money for a bond, he said.

Even as courts have ignored the requirement to file their public defense plans, the Mississippi Supreme Court recently issued another rule to improve public defense. It’s supposed to eliminate what critics call the “dead zone” — the practice of withdrawing legal counsel from poor defendants after their initial appearance, leaving them without a lawyer as they wait to be indicted.

The Daily Journal, The Marshall Project and ProPublica found that many courts are not prepared to implement that rule either. That suggests that poor defendants will remain deprived of meaningful legal assistance as they wait months or years, often in jail, for prosecutors to decide whether to pursue felony charges.

De Gruy said the recent mandate to eliminate the dead zone offers courts an opportunity to grapple with much larger problems with public defense in Mississippi. “I was hoping,” he said, “this would be a reminder to the courts that they’ve got unfinished business.”

by Adriana Gallardo, ProPublica, and Jessica Miller, The Salt Lake Tribune

This article was produced for ProPublica’s Local Reporting Network in partnership with The Salt Lake Tribune. Sign up for Dispatches to get stories like this one as soon as they are published.

As journalists, we often talk to people about difficult things. We listen for themes and systemic issues that tie their stories together. Both of us have spent years hearing from those who say they were sexually assaulted — most recently dozens of women who told us about alleged misconduct by their Utah OB-GYN. These are not easy conversations to have, but they are important. They also teach us a lot about what women knew at the time of their appointments and what they wish they had known.

“I wish I would have known that I could speak up, say that I am uncomfortable or just ask him to stop,” said Ashton Sorenson, who is one of more than 100 women who have come forward in various lawsuits to accuse the OB-GYN of sexual assault. “I wish I knew that I could ask for a nurse to be present. I wish I could have known that I could challenge and question a doctor even though he was in an authority position.” The doctor’s lawyer has declined an interview request but has said they believe the allegations “are without merit.” Next month, the Utah Supreme Court is set to hear an appeal in a civil case brought by his patients.

Some told us they knew right away that the way their OB-GYN had touched them during their exam felt wrong — but they pushed off that gut feeling because he was a doctor or they were new to pelvic exams. Others thought the pain they felt during and following those exams was normal. Many women only started to characterize their experience as sexual assault after reading and hearing stories from other women who made similar claims.

In another recent story, women who saw an OB-GYN in New York City over decades related a similar pattern of disbelief and reckoning after he sexually assaulted them during exams — and a sense, as one victim said, that “I’m alone here.” When one survivor, Evelyn Yang, began to realize she was not the only one, she turned to Google to search for the doctor. “The next thing she put into the search bar,” ProPublica fellow Bianca Fortis and co-reporter Laura Beil wrote, “was ‘What to do if you’re assaulted by your doctor.’” (The doctor is now serving 20 years in prison for his actions.)

We want to help fill this information gap. We went to experts including an OB-GYN, a medical ethics professor and researcher, plus several of the patients in Utah who sued their doctor for sexual assault. We asked them to answer key questions that could help others interpret what is normal, and what’s not, during a visit to the OB-GYN.

To be clear, a victim is never at fault for sexual abuse. This guide does not provide medical or legal advice, and we encourage you to seek out other reliable resources and consult with people you trust.

What to Expect at Your Gynecologist’s Office

Your first meeting with your doctor should be about getting to know each other and building trust, according to Dr. Kavita Arora, an OB-GYN with the University of North Carolina’s Department of Obstetrics and Gynecology and the former chair of the national ethics committee for American College of Obstetricians and Gynecologists. You may talk about your overall physical and mental well-being and any history of women’s health issues in your family.

Typically, you will meet with a nurse or medical assistant before the gynecologist enters the room. The nurse will likely check your weight and blood pressure and ask general questions.

“The important thing is that everyone be on the same page before the exam,” Arora said.

At an OB-GYN visit, Arora said, you should always:

• Know who is going to be doing the exam.
• Know who else will be in the room.
• Know what parts of your body they plan to examine.

She said that information can help you decide what you are and are not comfortable with, and give you an opportunity to speak up. You can continue to ask questions throughout the visit and exam.

You can ask:

• What are the goals for today’s visit?
• Which exams are we going to do and why?
• What is the best way to let you know if I’m uncomfortable?
• Can I have a friend or family member in the room for an exam?
• How should I contact you with follow up questions? Do you prefer calls, texts, email or a patient portal?

What You Can Do if You Feel Uncomfortable During an OB-GYN Visit

If you have a question or something feels off, the medical experts and patients we talked to said it’s OK to ask the OB-GYN to stop no matter where you are in the process of the exam or the visit.

When in doubt, trust what you feel, said James M. DuBois, the director of the Bioethics Research Center at Washington University in St. Louis. “People are much better at recognizing what’s odd [or] what makes them feel uncomfortable than recognizing, ‘Oh, this meets the definition of sexual abuse.’”

If you are uncomfortable, in pain or confused about what is happening, Arora suggested saying:

• “Can you please stop?”
• “Let’s talk about this.”
• “Can you explain why we’re doing this?”

“It’s better to simply ask to stop and then give the OB-GYN the ability to answer that question,” Arora said. “At the end of the day, if the patient says stop, the clinician needs to stop.”

The experts and patients we’ve talked to said: If you are uncomfortable, take it seriously.

“If you feel something isn’t quite right, then go with your gut!” said Jackie Colton, who is among the 94 women who sued an OB-GYN in Utah.

How often does sexual misconduct happen in medicine?

DuBois says no one knows how often sexual misconduct happens in medicine. Official records only include cases people report, and research shows there are many reasons patients and providers choose not to tell officials.

To learn more about a specific physician, DuBois and his team put together a set of resources patients can use to look up their doctors and see if there have been complaints in the past.

What ethics codes are in place for doctors?

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The medical profession follows a range of ethics codes established in part by medical schools, membership associations and hospital systems. The Hippocratic oath is a commonly known pledge that defines the core values for the profession. Among the many values the oath inspires, a doctor vows to respect the anatomy and dignity of their patients.

Every state has a law called a Medical Practice Act laying out what is and isn’t considered professional.

What is considered sexual misconduct by an OB-GYN?

The American College of Obstetricians and Gynecologists is the lead professional organization for OB-GYNs in the U.S. It provides guidance and recommendations for care and patient interaction. ACOG’s Committee on Ethics defines sexual misconduct as “an abuse of power and a violation of patients’ trust.”

The Federation of State Medical Boards put out guidelines to define what counts as inappropriate behavior. Some examples include:

• Making inappropriate comments about a patient’s body.
• Joking about a patient’s sexual orientation.
• Flirting.
• Watching a patient undress.
• Performing an intimate exam without a valid medical reason.
• Inviting medical students into the room during an exam without asking the patient for permission.
• Bringing up the physician’s own sexual likes or dislikes.
• Unwanted touching or fondling.
• Asking the patient to masturbate.

Physicians may not participate in any kind of romantic or sexual relationship with a current patient, even if the patient appears to initiate or agree to it. The Federation of State Medical Boards says this is because physician misconduct often begins with manipulation tactics called “grooming” behaviors. Even if comments may not meet the definition of misconduct at first, anything that eventually escalates to sexual contact is considered unethical.

ACOG’s Committee on Ethics explains: “Such interactions may exploit patients’ vulnerability, compromise physicians’ ability to make objective judgments about patients’ health care, and ultimately be detrimental to patients’ long-term health.”

What to Do if You Think Your OB-GYN Has Acted Inappropriately Talk with someone you trust.

Adhis Boucha, who is among the 94 women who sued their former OB-GYN in Utah, suggested talking with someone as soon as possible. “You don’t need to be embarrassed by something that was someone else’s fault,” she said.

If you’re not sure where to start, you can speak with someone who is trained to help at the National Sexual Assault Hotline at 800-656-HOPE (4673) or chat online at online.rainn.org.

Many hospitals work with patient advocates who can guide you through their institution’s code of ethics and suggest practical next steps. If your hospital or health care facility does not work with patient advocates, the Patient Advocate Foundation may be able to connect you with support.

Take notes and save records.

If you suspect that something went wrong during your visit, DuBois suggests telling someone else, such as a family member or spouse. He also recommends keeping notes.

Though it can be difficult for some patients, DuBois said, “courts trust memories more when they are documented soon after the event with names and dates.”

Keeping other records, such as medical documents, bills and emails may also help in making a report.

You have options when reporting sexual misconduct by an OB-GYN.

If you decide to take further action, there are a few options to report sexual misconduct by a doctor.

• State medical boards give doctors a license to practice and punish physicians who break the rules. According to the Federation of State Medical Boards, the committees are usually made up of volunteer doctors, other health care providers and members of the public appointed by the governor. You can find your local medical board’s contact information here. If the board finds that a doctor has behaved inappropriately, it can take away a physician’s license to practice, impose fines or put them on administrative probation. In many states, a medical board is not required to forward a complaint to law enforcement, meaning police won’t automatically be involved. You may want to ask your state’s medical board about whether it is a mandatory reporter to the police.
• Law enforcement can investigate allegations of sexual abuse. This is typically done by local police. A police detective may ask you to describe what happened more than once. If they find enough evidence, there may be a trial and you may be asked to testify. If the physician is found guilty in a criminal court, they could be ordered to pay fines or sent to jail or prison.

What if I Want to Report an Incident That Happened Long Ago?

Some states have a limited amount of time to bring charges and prosecute a physician. These are called the statute of limitations. RAINN, a national anti-sexual-violence organization, put together a guide to help people understand the rules. As the guide puts it: “You can think of a statute of limitations like a timer: the clock typically starts when the crime occurs; after time runs out, a perpetrator cannot be charged for the crime.”

You can use RAINN’s state law database to find out what the statute of limitations are in your state.

If the statute of limitations has passed in your case, RAINN says you may still file a police report. According to the organization, for some survivors making a report is an important step in regaining control over their lives. Your report could also be informational for police or prosecutors if other people come forward with similar allegations.

OB-GYN Glossary

Undressing

Undressing from the waist down or fully is common for general exams. The doctor’s office should provide you with a gown or sheet to wear. Staffers should give you time to change before and after the exam. The doctor should only ask that you expose the area relevant to the exam. They should also ask for your consent when draping or lifting your gown or sheet during the exam.

Chaperones

Chaperones are health care professionals who have been trained to be in the exam room as observers during a patient’s gynecological exam. They are there to take notes about the meeting, to enforce boundaries between the doctor and the patient and to make sure body parts are appropriately covered. If they witness misconduct, they know how to report it.

A chaperone’s role is to act as a witness in case of wrongdoing for both the patient and the health professional during a procedure. Generally, partners, family members and friends of patients should not serve as chaperones, but they can stay in the room during the visit if the doctor and the patient agree.

ACOG recommends having a chaperone in the room for sensitive procedures such as breast, pelvic or rectal exams.

Gloves

A gynecologist is expected to wear gloves anytime they will be in contact with blood, bodily fluids, bodily tissues or mucus. Not all clinicians use gloves for breast exams or abdominal exams, though many do.

Gynecologists are expected to wear gloves for all genital and rectal exams. Arora said patients can always ask a doctor to put on gloves. “The physician should respect that request,” she said.

Pelvic Exam

A pelvic exam is a routine procedure used to check for signs of disease in female organs. The provider will check the vagina, uterus, ovaries, fallopian tubes and cervix. The exam happens while you lie down on the exam table with your legs raised in footrests or stirrups.

According to the Cleveland Clinic, pelvic exams typically only take a few minutes. Doctors say you can expect to feel a little discomfort, but you should not experience severe pain.

Pap Smear

Pap smears are a screening tool for cervical cancer, potential cervix cancer and human papillomavirus, a common sexually transmitted infection. According to the Cleveland Clinic, the screening involves “a gentle scrape” of the cervix for cell samples, which are then sent to a lab for examination. Doctors say Pap smears should not hurt.

Breast Exam

Breast exams can be part of a routine gynecological check up. Doctors use their fingers to check the breasts and under arms for changes in lumps, dimples or redness of the skin. They will look for changes in size and shape.

Rectal Exam

Rectal exams are no longer recommended for routine gynecological appointments. Arora shared a few exceptions.

Rectal exams “can help with examining the uterus or the ovaries depending on that patient’s anatomy,” she said. “If I’m worried about endometriosis, it can be relevant.”

To do this exam, a doctor inserts a finger into a person’s anus. Their hands should be gloved and their finger should be lubricated for this exam. According to the Cleveland Clinic, the process may feel uncomfortable but should not hurt or last for very long.

by Aliyya Swaby

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

In the spring of 2022, Hann Henson accepted a job as a communications specialist for a North Carolina school district. Not long after his insurance kicked in, he pored over the hundred-page booklet outlining the state health plan for district employees.

When he came to the list of services that aren’t covered, he paused at a tiny footnote: North Carolina’s plan did currently pay for gender-affirming care — but only because of a temporary federal court order.

Henson’s heart rate rose as he considered his options. Since he was a child, he’d been burdened by a sense of deep distress about the mismatch between the gender he was assigned at birth and the gender he knew himself to be.

Henson had grown accustomed to state leaders and insurance plans playing political tug of war with his rights. In 2016, early in his transition, a Republican governor signed into law the country’s first statewide ban on transgender people using the bathroom aligned with their gender — forcing Henson to worry about violence from strangers when entering public restrooms. A Democratic governor largely scrapped it a year later. Henson spent the next several years jumping through every hoop his insurance company required before it would cover one of his transition-related surgeries, with a representative at one point telling him the company didn’t cover “tranny health care.”

Now, yet again, he faced obstacles to health care access because of his gender identity. As Henson found out after he started his new job, North Carolina had been fighting a legal battle since 2019 against transgender people on the state’s health plan, some of whom had sued the state for coverage of transition-related care. In 2022, a judge ordered the state to cover the care while the fight dragged on. But any moment, another court ruling could whisk it away.

Henson relaxes with his dog, JoJo, before leaving for work. (Annie Flanagan, special to ProPublica)

As Henson had become more confident as a transgender man, the world around him seemed to grow increasingly hostile, with conservative rhetoric against transgender people accelerating an avalanche of restrictive laws. In the last year, state lawmakers across the country have considered nearly 500 proposals targeting transgender rights, and more than 80 became law — both unprecedented numbers. This legislative session, North Carolina passed laws banning gender-affirming care for youth, limiting instruction in elementary schools about gender and sexuality, and preventing transgender girls from playing on girls’ sports teams. A Republican supermajority in the legislature overrode the Democratic governor’s vetoes on all three.

In May, Dale Folwell, North Carolina’s state treasurer, sat for an interview with a far-right activist to explain his decision to keep fighting the lawsuit filed by transgender people over the state health plan. North Carolina is one of more than a dozen states with a health plan that explicitly denies coverage for gender-affirming care, and this lawsuit — one of several arguing that states cannot block access to the coverage — is the first to make it to a federal appeals court. Folwell, who is running for governor, argued that the state health plan’s board of trustees should have the authority to determine the scope of employee benefits — echoing the argument North Carolina makes in court documents that covering gender-affirming care would be a financial burden.

“When you have a plan this large,” Folwell said in the interview, “you have to focus on doing the most good for the most number of people. That’s how you set benefits.” He did not respond to ProPublica’s questions or interview requests.

Lawyers and experts for the transgender plaintiffs have pointed to evidence showing that covering the care would likely cost the state very little — and have argued that withholding it is discriminatory.

For several weeks this spring, Henson repeatedly checked the federal court website for an update on the lawsuit, gripped by a feeling of panic, “like somebody has got their hands around my neck.” One more major surgery separated him from the relief of his body fully matching his gender, and he wasn’t sure when the court would make a decision.

A few days after Folwell’s interview, Henson learned that the 4th U.S. Circuit Court of Appeals, based in Virginia, would hear arguments on the case in late September. It was far from the ideal time: His surgery was scheduled for late November, and he’d need a follow-up surgery about six months later.

The tight legal timeline has made the waiting period for the surgery almost unbearable for Henson: “You’re on the highway in the car and you’re driving and you’re like, ‘I’m gonna make it, I’m gonna make it.’ And then your gas starts running out.”

A 28-year-old self-described nerd with a youthful face and quiet voice, Henson distracts himself with his hobbies: playing video games with friends and attending anime conventions in costume. He regularly visits his parents in rural North Carolina and talks on the phone daily with his fiancee, who lives a few hours away. He has a calm demeanor, except for the nervous giggles that punctuate his speech, especially when he describes his darkest moments.

Henson and his fiancee, Aly Young (Annie Flanagan, special to ProPublica)

As the last academic school year came to a close, Henson stayed late to take photos at a school board meeting, sporting a blue suit jacket and hefty camera as he herded together groups of students and teachers who had won awards. He headed down the hall to his office to upload the photos. The live video of the board meeting played on the computer in the background.

Several minutes into the public comment period, a man approached the podium, introducing himself as a clergy member and a parent. His voice grew louder as he questioned whether board members were “perverts” and “child molesters.” He listed children’s books featuring transgender or gender-nonconforming characters and insisted they would be used to groom children, “push down their throat puberty blockers or move them towards mutilation.” As he began to read a passage from the Bible, his mic turned off. His time had run out. The audience applauded him.

Henson watched the screen, horrified. He felt like the man was speaking specifically about him. Few of his co-workers attending the board meeting knew he was transgender. He had cautiously told only his boss and closest colleagues, nervous about gossip or uncomfortable questions. Alone in the room, the office door ajar, he began to cry.

In recent months, Henson had often considered where he would be if the attacks on transgender people had been as aggressive when he first came out a decade ago as they are now. “I probably would be dead,” he said.

During Henson’s senior year of college, North Carolina passed House Bill 2, a prototype for the state bathroom bills that conservatives across the country stamped into law this year. HB 2 prohibited transgender people from using the public bathroom aligning with their gender and stripped the ability from cities and counties to pass local nondiscrimination policies. On the floor of the state House in late March of 2016, Republican lawmakers emphasized that the bill would help people travel more freely across the state, knowing each business would have the same policy.

Henson had moved cautiously through his college experience. Years earlier, as a freshman, he came out as transgender to his new group of friends. It was the first time he had been so widely open about his gender identity, and he hoped they would understand. Instead, they told him he was just looking for attention.

Already burdened by feelings of shame and low self-worth, Henson tried to kill himself. His resident assistant rushed him to the emergency room, where he told a doctor that he’d been stressed about chemistry class and a recent medication change, and had fought with a friend about “some kind of gender identity issues,” according to his medical notes.

Henson never spoke with those friends again, but their comments looped in his mind after he returned to school and continued to move forward in his gender transition.

In his senior year, after several months on testosterone, his beard had begun to grow in, and though it was patchy, he wore it like armor to shield himself from strangers’ scrutiny. It didn’t always work.

He remembers walking into one of the men’s bathrooms on campus the first week after the law passed. A man standing at the urinal turned and asked, “Are you allowed to come in here anymore?”

Henson frequently experienced panic attacks, fearful of potential assault and furious at public policies that restricted his rights. He recalls standing in the middle stall at school and sending an angry email from his phone to then-Gov. Pat McCrory: I’m a transgender man in a public men’s room. Come and get me.

Henson is counting down the days until his final set of surgical procedures. (Annie Flanagan, special to ProPublica)

In the months after the law passed, when he and his sister, Ashlee Park, ran errands at the suburban Walmart near her home, she stood outside the men’s bathroom protectively while he was inside. Park knew her brother was struggling. He had recently seen a therapist who waved away his gender dysphoria as a “pathological need to be different,” Park recalled. Since then, he had stopped mental health treatment and continued to spiral.

“He would say things that were just like: ‘I shouldn’t be alive. I’m an abomination,’” Park said. She would respond, “There’s nothing wrong with you. There’s something wrong with the world. You need to get out of your head.”

Henson couldn’t absorb her words. “It just felt like my state had said: ‘I don’t want you. You don’t deserve to be here,’” he said. “And when you’re told you don’t deserve to be here, you sort of feel like, ‘Where is there to go?’”

One day in the spring of 2016, Henson was visiting Park at her home. Park and her mother were about to leave the house, when Park suddenly felt uneasy. She went back inside to look for her brother and found him in her husband’s closet, looking at the collection of firearms in his gun case.

Henson immediately grew ashamed and pleaded with them not to tell anyone that he’d considered killing himself. “He was begging. I remember him standing on the landing in the studio and looking at me with these incredibly brown eyes,” his mother, Kim Crenshaw, recalled. “And telling me how hard it was for him to be in his body and to feel like such a freak.”

He asked his mother and sister not to take him to the emergency room. They agreed, under the condition that he find a good therapist, and they began calling him every week to ensure he was searching for one. Crenshaw thinks back on the effort it took to bring her son back up from his lowest point. “That scares me so badly for all the kids out there that are going through this now,” she said.

With his family’s encouragement and support, Henson began regular therapy after graduating from college and started to feel more comfortable in his identity. He decided to move forward in his medical transition, wanting chest reconstruction surgery so he could stop binding his chest flat every day. But the prospect of engaging with the health care system was daunting.

His medical records from past emergency room visits provide some insight into his experiences: Several times, doctors incorrectly referred to him as “female” (or, in especially erroneous language, as a “transgendered female”), at times using his previous name and alternating between pronouns.

In 2016, the Obama administration prohibited medical facilities and insurance companies from categorically refusing to cover all health services related to gender transition. But despite the new federal rule, his insurance company at the time, Blue Cross Blue Shield of North Carolina, threw up barrier after barrier.

Henson recalled that on one occasion, while on the phone with the claims department, the person on the call threw out a transphobic slur: “We don’t do tranny health care.” He hung up the phone and burst into tears.

At the time, Blue Cross Blue Shield of North Carolina required transgender patients seeking gender-affirming surgery to provide a supportive letter from a doctoral-level mental health professional — an incredibly high hurdle given the shortage of those providers across the country. After an exhaustive search, Henson found one in 2018 and later that year was able to get chest surgery. He remembers the surgery practice’s billing department filing an appeal with his insurance to get the procedure covered. Doctors there told him he was one of their first patients who received insurance approval for chest surgery related to a gender transition.

Blue Cross Blue Shield of North Carolina broadened its policy in 2020 to allow any licensed mental health professional to provide letters for transgender patients seeking gender-affirming care. In response to questions from ProPublica, spokesperson Jami Sanchez said the company provides training on gender identity to its customer service team to “ensure members are treated with dignity and respect.”

As the years passed, Henson found that more and more doctors understood how to treat transgender patients. After he took the job at the school district, he spoke with his general practitioner, Sydney Hendry, about getting a hysterectomy to treat the severe uterine spasms and cramps that can sometimes accompany testosterone therapy.

Henson visits with his doctor, Sydney Hendry. (Annie Flanagan, special to ProPublica)

Hendry had to write a letter to the University of North Carolina Health surgical team verifying that Henson met the criteria for a gender dysphoria diagnosis and that a total hysterectomy would improve his quality of life. It was the first letter she had ever written for gender-affirming surgery. UNC Health provided a template that eased the process, avoiding the frustrating series of appeals and revisions that plagued Henson’s previous surgery.

Because of the federal court order, his state employee insurance agreed that it would cover the procedure. Henson had the surgery this March. But Hendry’s other transgender patients have told her that they’re scared about North Carolina limiting gender-affirming care for adults in the next year. “I tell them that they are my priority and that I will advocate for them,” she said.

“It feels like through my transition, there was this shift, where people became more educated about it and more knowledgeable,” Henson said. “And then in the past year or two, it’s starting to go back rapidly at a pace that is kind of scary.”

Henson feels that most people walking by him on the street see his full beard and stocky frame and don’t assume he is transgender. His fiancee, Aly Young, appreciates the sense of safety that comes with Henson “passing” but hates feeling like they’re hiding their true selves. “I don’t have thoughts in the back of my head like: ‘Should I be kissing him in public? Should I be holding his hand in public? Are people looking at us? Are we in danger?’” she said. “But at the same time, it makes me really sad. Because I don’t feel authentic. I don’t think Hann feels authentic.”

Henson and Young at a record store (Annie Flanagan, special to ProPublica) Henson and Young at Henson’s home. The two live several hours apart and visit each other when they can. (Annie Flanagan, special to ProPublica)

The two met when Henson began attending her small charter school in 11th grade, after years of home-schooling. One day, Young was hanging out in the hallway, when a math teacher called her over and asked her to comfort the new student crying in the bathroom. Young slowly coaxed Henson out and started to pursue a friendship. When Young moved away the following year, she kept in touch, writing letters that Henson now keeps in a box under his bed.

The pair talk often about moving away from North Carolina, even leaving the South altogether.

The South goes back generations in both their family lines, but this home feels increasingly hostile. Henson’s parents live in Sanford, where the Proud Boys showed up to a local brewery to protest a drag brunch. On the drive to Sanford, he passes by a supersized Confederate flag, which the Sons of Confederate Veterans erected in 2020 to protest the removal of Confederate memorials.

Looking forward, Henson counts down the days until his final set of surgical procedures, a genital reconstruction process commonly called bottom surgery. He had used up all his paid sick leave recovering from the hysterectomy, so he scheduled this next surgery for November, letting him use winter break to recover. Even if he is able to get the surgery before a ruling in North Carolina’s favor, the procedure requires a revision surgery about six months later, and Henson worries about being stuck with it incomplete.

On the morning of Sept. 21, all the active judges on the 4th U.S. Circuit Court of Appeals will preside over a second-floor courtroom in Richmond, Virginia, and listen to arguments from lawyers on both sides.

They will hear North Carolina’s case on the same day that they hear a similar one out of West Virginia that will determine whether that state’s Medicaid program must cover gender-affirming surgery. In both cases, federal judges in lower courts have already found the states’ policies discriminatory.

Recently, more than 20 conservative states filed an amicus brief in support of North Carolina, calling gender-affirming care “at best experimental and at worst deeply harmful” — a characterization that contradicts the consensus of major medical associations. More than 15 Democratic-led states wrote a brief in favor of the transgender plaintiffs, citing their own regulations that prevent insurance companies from “discriminating against medically necessary, transition-related care.”

In late August, Henson learned that the pastor who had railed against the school board back in June would soon be meeting privately with district leaders. He realized the man would be coming into the administration building where he works, meaning he could run into him face-to-face.

He thought about the benefits and drawbacks of not being immediately recognized as transgender: feeling safer but also forced underground, in a way, having to hear the vitriol against his community but powerless to stand up to it. He thought about how tired he was of feeling helpless and invisible.

That morning, he got dressed deliberately. Dress pants. A short-sleeved button-down shirt. And on the collar, a heart-shaped symbol of defiance — a pin in the colors of the transgender flag.

Henson’s trangender pride pin (Annie Flanagan, special to ProPublica)