By REGINA LONCAREVIC
Liberal Supreme Court justices vote that bosses can take away birth control coverage from their workers, while conservative Chief Justice John G. Roberts voted against Louisiana abortion restrictions less than two weeks earlier. What’s going on?
On Wednesday, July 8, the Supreme Court voted to uphold the Trump administration’s regulation placed on the Affordable Care Act (ACA), allowing employers to restrict birth control coverage in employee health-care plans on the grounds of moral or religious objections.
With a 7-2 vote, only two of the four supposedly liberal justices voted against the birth-control restriction. Government estimates indicate that around 70,000 to 126,000 women (and transgender individuals) in the U.S. could completely lose their contraceptive coverage as a direct consequence of the ruling.
Stephen G. Breyer and Elena Kagan, often considered “progressive” by mainstream commentators, sided with the conservative justices, arguing that it’s a violation of an employer’s “religious freedoms” to play a role in securing birth-control coverage for workers.
Liberal organizations and media outlets have been using recent attacks on reproductive rights such as this as a call to action to elect more Democrats into office. Consider an email sent out by the Women’s March notifying their listserve of the recent ruling: “Make no mistake, this ruling was made possible because of Brett Kavanaugh’s vote and is just the beginning of his attacks against reproductive rights.” This is an absurd claim. Half the liberal bloc in the Supreme Court sided with the conservative majority for a 7-2 vote upholding the regulation.
Vote blue, no matter for whom?
This was essentially a bipartisan decision, and an unsurprising one at that. Consider that just two weeks ago, on Thursday, July 2, Politico reported that House Democrats ultimately decided to retain the Hyde Amendment, which prohibits the use of Medicaid funds to pay for abortions. Given that Democrats hold the House majority, this means that they did not even want to be associated with defense of the Hyde Amendment in a propagandistic sense.
The decision is framed as a strategic decision in anticipation of the upcoming presidential election. But when the vast majority of Americans support Medicare for All (70%) and even more support a woman’s right to an abortion (77%), why do the Democrats think an attempt to repeal the Hyde Amendment will lose them votes?
In fact, the decision by Democrats in the House to retain the Hyde Amendment is especially horrifying when considering how hard women, especially black women, Indigenous women, and other women of color, have been hit by the unemployment crisis triggered by the COVID-19 pandemic.
The acting president of Planned Parenthood, Alexis McGill Johnson, told NPR, “We felt like we can’t endure another four years of Trump; we have to do everything we can to get him out of office.” Following this, Planned Parenthood’s advocacy arm gave an official endorsement of Democratic nominee Joe Biden.
It’s pretty obvious by now that the Republican Party has no interest in pushing for reproductive justice, but we continue to be fed the narrative that the Democrats are. Actually, Democratic presidential nominee Joe Biden himself tried to undermine the ACA’s contraception mandate while he was serving as Obama’s VP. He worked in alliance with the U.S. Conference of Catholic Bishops to push for broad exemptions similar to the ones just voted on in the Supreme Court allowing employers to decline contraceptive coverage on religious or moral grounds. This recent restriction is being framed as something unique arising from the Trump administration, but in reality, Biden fought for nearly identical exemptions years earlier, making the same religious freedom arguments as Republicans are making now.
Further, Biden’s support of legal abortion is inconsistent at best, and he staunchly opposes Medicare for All even while we’re in the midst of public health crisis that is disproportionately devastating communities of color.
Liberals continue to push that we need to vote blue, no matter for whom. That is, we need to yield to the Democratic Party even if we do not support their proposed platform. Like Bernie, we need to drop Medicare for All and rally around whatever convoluted health-care plan Biden decides on. The logic goes that deference to the DNC is our only hope for reproductive justice.
Defending the Dems
The recent Supreme Court ruling doesn’t indicate that the two “liberal” justices have suddenly turned conservative. As one CNN opinion article states, “A close reading of Kagan and Breyer’s opinion in this case reveals they have not changed their positions on the fundamental underlying issues, they were just responding to the particulars of this case.”
While this is true, the piece doesn’t note this as a mark against our current legal system. Rather, the author somehow uses this observation to reassure readers that we can vote this threat out. “Thankfully, an election is coming,” she concludes, as if this couldn’t happen under a Biden presidency. In reality, this Supreme Court case indicates a structural issue in the U.S. judicial system, especially when it comes to reproductive justice.
The US Constitution protects an individual’s “negative” rights from the state. That is, freedom from, not freedom to. Further, the Constitution does not protect you against private institutions, and adhering to this often means protection to those private institutions. Reproductive justice advocate Dorothy E. Roberts writes in her book “Killing the Black Body,” “The Constitution, then, does not obligate the government to ensure the social conditions and resources necessary for individual liberty or to protect the individual from degradation inflicted by social forces other than the state.”
Through this lens, the Supreme Court’s ruling on the ACA’s contraception mandate restriction is obvious. Similar to the Hyde Amendment, both allow for “access” to reproductive care (birth control, sterilization, and abortion). Of course, this is not real access unless you have the means, and reproductive care behind a pay wall doesn’t really mean anything if you’re poor.
Capitalism relies on the oppression of women
Reproductive justice is simply not achievable under our current judicial system, based on a Constitution written by white land-owning men following a bourgeois revolution aimed at creating a bourgeois state. Or as Democratic Speaker of the House Nancy Pelosi bluntly put it, “We’re capitalists, and that’s just the way it is.”
Capitalist profits rely on cheap social reproductive labor—cooking, cleaning, child care, and of course, bearing children. After all, without baby-making, there wouldn’t be a next generation of laborers.
But as noted in the book “Feminism for the 99%” (by Cinzia Arruzza, et al), social reproductive labor doesn’t just create and sustain labor in the biological sense: “It also creates and sustains our capacity to work—or what Marx called our ‘labor power.’” Capitalism separated vital social reproductive labor from productive labor, relegating women to the former. While some make the argument that this is “natural,” pointing to a woman’s biological ability to become pregnant, it is not true that only women are capable of social production. This isn’t a mere physical observation, but a historical one—prior to the development of class society, social production was organized communally.
In modern capitalist societies, women are capable of entering into the productive workforce, but the sentiment remains: a woman’s “natural” place is in the home. This effectively allows for the super-exploitation of women in the workplace. Women tend to hold less secure jobs, earn low wages, and receive few benefits. The “women belong at home”’ sentiment makes this seem more acceptable to society at large; however, a large pool of people seeking work allows for the reduction of wages for both men and women.
There is a contradiction here. Women are pushed into the workforce because this reduces the cost of productive labor (women receive lower wages, and a larger pool of “job-seekers” reduces wages across the board). This also means they are less capable of performing the social reproductive labor capitalism relies on. Social programs can replace some of this, such as the public education system providing some degree of child care; however, providing such services cuts into capitalist profits.
Since women make up a reserve pool of labor, when capitalism is expanding and more labor is needed, women are sent to work. When capitalism is in recession, women are often the first to be laid off. The historic women’s liberation resolution by the Fourth International observes: “The dilemma that the growing employment of women creates for the ruling class becomes clearest in periods of economic crisis.” The recent economic crash initiated by the COVID-19 pandemic has seen more women lose their jobs than men, even within male-dominated industries.
Whether women are exploited for their productive or their reproductive labor, the unifying feature is the desire to control reproduction according to economic need.
Landmark Supreme Court victories despite conservative majority
On Monday, June 29, a Louisiana abortion law was struck down by the Supreme Court in a 5-4 vote. The law sought to add further restrictions on abortion clinics that would have led to the closure of a large number of abortion clinics within the state. Conservative Chief Justice John G. Roberts Jr. added the fifth vote to the liberal wing of the court opposing the Louisiana law. This is actually the third time within two weeks that Roberts sided with liberals on a significant court case.
The state of Louisiana asserted that these restrictions would promote women’s health and safety, but the Supreme Court determined this was not the case at all. In fact, the law would create unnecessary obstacles for many clinics to remain open, placing an undue burden on women seeking abortion.
Conservative Chief Justice John G. Roberts Jr. added the fifth vote to the liberal wing of the court in opposing the Louisiana law, allowing for the law to be struck down despite conservatives holding a majority within the Supreme Court. While we might expect Roberts to have sided with the conservative majority, Roberts would have been embarrassed to support this law, as the Supreme Court struck down a nearly-identical Texas law in 2016.
On Monday, June 15, Justice Roberts similarly voted alongside the liberal wing of the Court, this time upholding the opinion that the 1964 Civil Rights Act protected LGBTQ+ employees from workplace discrimination. According to Justice Neil Gorsuch, appointed to the Supreme Court by Trump himself, “We must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.”
The answer, for Gorsuch, was that they cannot. Gorsuch joined Roberts in supporting protections for LGBTQ+ workers, leading to a 6-3 vote, despite the Trump administration’s open attacks on transgender rights.
This isn’t unprecedented. Consider that in the 1973 Roe v. Wade decision, abortion was legalized in the U.S. with a 7-2 vote in the Supreme Court. Six of the seven judges in the majority vote were appointed by conservative politicians, while one of the dissenting judges was considered to be liberal. What’s going on here?
Mass actions drive progress, not voting for “liberals”
For many people, change is something that happens at the ballot box. However, history tells a different story, one that favors the current wave of Black Lives Matter protests as a far more effective conduit for the change needed to overthrow deep-rooted systemic oppression.
We are facing a severe economic crisis. The Republicans reached for the stick. Economic relief was below minimal, alongside a push to “reopen the economy” on the grounds that people ought to be honored to sacrifice themselves. Policing became even harsher, with promises to proceed with mass evictions amid calls for a rent freeze. This bubbled over, and mass protests broke out across the country, rallying around the Black Lives Matter movement.
While Trump boasted that he was going to stamp out these protests with the military, the reality was clear to less-delusional conservatives: the rank and file of the military would revolt before they began brutalizing American citizens. The stick was cracking, forcing many conservatives to reach for the carrot. This is the real motivation behind conservative justices siding with the liberals on some of these significant court decisions.
This was also the case in 1973, when Roe v. Wade came to the Supreme Court. Mass protests were breaking out across the country, not just for women’s rights. Mass mobilizations against the war in Vietnam and against racial segregation in schools were growing. Again, the state was not in the position to use the military as their stick, and they didn’t have the police force to crush these movements. Keep in mind that brutalization of protesters by the police often causes movements to grow.
The Democrats too rely on “the carrot and the stick” tactic, though it is more often that they pitch themselves as the “good” capitalists compared to the Republicans. They stifle the growth of any independent parties representing the working class by romanticizing the “popular front.” According to socialist commentator Les Evans, the popular front “seeks to mobilize the working class not to break with capitalist politics, but to support one capitalist politician against another in the hope of being paid off in minimal concessions after the ‘good’ capitalist is elected.”
Workers are meant to give up certain political principles in order to gain these concessions. For example, we may be told to dismiss the Democratic House making no attempt to repeal the Hyde Amendment, and in return, the Democrats will fight to maintain other reproductive rights.
It’s not merely that this is unprincipled, but that it’s not effective. Without an independent party of their own to challenge the Democrats, the workers have no leverage. Amid calls that everyone rally around Biden, the Biden campaign boasts that he plans to lower the Medicare-eligible age to 60. Four years ago, Democratic presidential nominee Hilary Clinton suggested lowering it to 55. This is what deference to the DNC actually gets you.
Further, reproductive justice extends beyond the right to not have a child. Reproductive justice includes the right and material ability to raise children. Looking back to the fight for abortion before Roe v. Wade, Loretta J. Ross and Rickie Solinger note in “Reproductive Justice: An Introduction,” “Women of color sought to put an end to the political culture that had defined their babies as ‘unwanted’ and made their own bodies into targets for sterilization.” While some liberals defend a woman’s right to an abortion and birth control, socialized child care isn’t even entered into the discussion.
If we want reproductive justice, we need organizations that are independent from the capitalist parties.