The overturn of abortion rights by the Supreme Court's far-right majority rightfully triggered widespread outrage and protests. This decision violates what should be the most basic of human rights – the right to control one’s own body and make one’s own personal healthcare and child-bearing decisions. It sets up a new era in which pregnancy is subject to police surveillance: in some states that ban abortion, for example, miscarriages will be investigated as homicides. And it sets the stage for new attacks on contraception rights, same-sex marriage and more.
This arrogant seizure of political authority was carried out by a cabal of right wingers who were appointed by presidential losers of the popular vote, who lied under oath to win Senate approval, and who are virtually immune from impeachment. Thus they were empowered by the most undemocratic institutions of “American democracy,” and are using that power to thwart and further eliminate democratic rights and legal protections.
The justices’ decision expresses their backward, patriarchal perspective that men – religious leaders, judges, husbands and even rapists – should control women’s reproductive rights and sexuality, that women are meant to be mothers above all else, and that LGBT+ people are deviants behaving against the natural order of things. All the gains in legal protections that have been won by women and LGBT+ people are under threat. But the far-right’s despots-in-robes plan to go far further.
The Constitution devised by the “Founding Fathers” defined the United States as a democratic republic for white men of property. And now, under the banner of “originalism” – the idea that the Constitution should be understood as its authors did at the time they wrote it – the Court is determined to return the laws of the land to a state closer to that original order.
The Court expressed the vision underlying its overturn of Roe v Wade by insisting that it can only uphold rights that satisfy two standards. One is that constitutional rights must be “deeply rooted in the Nation’s history and traditions,” to which the dissenting justices responded by rightly warning that it means “all rights that have no history stretching back to the mid-19th century are insecure… additional constitutional rights are under threat.”
Specifically, the Court majority is determined not only to continue its evisceration of the civil rights gains that were won from the 1960s on – but also to overturn the union rights and other labor, social-welfare and environmental protections that were embodied in the National Labor Relations Act and New Deal “administrative state” won in the 1930s. The Court has already acted to weaken the Environmental Protection Agency’s ability to control the carbon emissions that contribute to the planet’s looming climate disaster. Its agenda puts the profit interests of fossil fuel capitalists ahead of the needs of every living being.
Toward those ends, these justices and their co-thinkers in the Republican Party want to end the constitutional order of “co-equal” branches of government – the Presidency, Congress and Supreme Court operating to “check and balance” one another. Instead, they intend to impose an openly authoritarian regime where the president rules as a “unitary executive” above all other branches, which would effectively place the president above the law. As Justice Brett Kavanaugh once wrote, that would leave the president free to “decline to follow” the law as he sees fit, accountable only to the threat of impeachment.
The second standard cited by the Court majority is that a constitutional right must be consistent with “ordered liberties,” a legal concept that means freedoms that do not threaten social order. By this, they no doubt had in mind the deeply-rooted traditional order of men’s authority over women and of church and state over all, not to mention demonizing and criminalizing gender non-binary people and “non-traditional” sexual practices.
The insistence on the necessity of maintaining social order above all else does, however, inadvertently point to how our democratic rights can be reconquered and expanded. The Supreme Court only conceded rights to working-class and oppressed people when massive social struggles demanding equality and justice threatened to challenge the capitalist social order if they were denied. And it is just such mass action in the streets, combined with political action in elections, that can reclaim and extend our democratic rights today.
Democratic politicians and the liberal media have responded to the Court’s decision by calling on people to “vote harder” to preserve the shaky Democratic majorities in Congress in the face of Biden’s unpopularity. The leaders of the Democratic party call for electoral support to avoid taking action now. But protesters in Texas showed how to avoid that trap, responding to Democrat Beto O’Rourke’s presence by chanting “Democrats we call your bluff, voting blue is not enough!” Indeed understanding how political action in elections can be combined with mass action in the streets is key to beating back the far-right menace.
The Democratic Party needs the votes of women and people of color if it is to have a chance of holding power in Washington. It is also more attuned to the strategy of granting or maintaining limited rights in order to prevent mass unrest. So Democrats are generally opposed to the reactionary overturn of democratic rights that the Republicans are pursuing. When electoral choices are reduced to the two major capitalist parties at times of powerful right-wing threats, in most cases it is therefore in the interests of all working-class and democratically-minded people to vote Democrats into office to keep Republicans out.
Electing Democrats can thus stall some right-wing attacks, but is far from a satisfactory answer. For one thing, the Democrats share responsibility for empowering this rampant right-wing Supreme Court majority. Yes, they voted against Trump’s three appointments. But they enabled the previous reactionaries: Thomas, Roberts and Alito. And even when they had a strong majority in the Senate under Obama, they didn’t even try to strengthen abortion rights by enacting them into law as they promised. Likewise with labor and other rights.
Moreover, many prominent Democrats, including Bill Clinton and Joe Biden, rewarded the anti-abortion-rights movement by supporting the Hyde Amendment that bans federal funds for abortions (except in cases involving rape or incest or the need to save a mother’s life). And the leadership of the Democratic party has long promoted their own anti-abortion candidates – Hillary Clinton, for example, chose anti-abortion Democrat Tim Kaine as her running mate in 2016. And as recently as this year’s congressional primaries, House Speaker Nancy Pelosi, Representative James Clyburn and other prominent Democrats backed the last anti-abortion Democratic member of the House, Henry Cuellar, in order to defeat left-wing candidate Jessica Cisneros.
In this same spirit of appeasement (politely labeled “bipartisanship”), Biden and Pelosi have both called for a “strong Republican party” that they can compromise with. And Democratic Party leaders across the nation have been encouraging the current campaigns of some far-right Republicans, believing they will be easier to beat in elections – an idea that backfired catastrophically when Democrats like Hillary Clinton encouraged Trump’s 2016 campaign for the Republican nomination.
Not all Democrats are so pathetically capitulatory. Senator Elizabeth Warren and Congresswoman Alexandria Ocasio-Cortez, for example, have called on the administration to open women’s health clinics on federal lands and make widely available pills that enable self-managed abortions. They and others have called for Congressional measures like repealing the Hyde Amendment and enlarging the Supreme Court so that the reactionaries can be outvoted. Such demands are a start, but the White House has already indicated that it is not considering them. The only thing that could shake the Democratic establishment into action would be the pressure of mass action in the streets and workplaces.
Another avenue of struggle has been inadvertently pointed to by some companies’ announcements that they will cover the costs of travel, accommodation and healthcare in the cases of employees and family members who need or choose to have an abortion but are prevented from doing so by state laws where they live. Unions should demand that such clauses be included in the contracts covering all their members, and they should be prepared to strike if necessary to win such accommodations.
Massive public protests and actions by the organizations that claim to speak for working-class and oppressed people – civil rights groups and unions especially – is what we need. But for such mass action to become a reality, in most cases we’ll have to overcome the resistance of those organizations’ leaders who are generally tied to the Democratic leadership and its strategy of downplaying protest in favor of voting.
While Republicans are willing to mobilize their reactionary supporters to prevent vote counting – as they did in Florida in 2000 to get Bush II elected, and as they tolerated on January 6, 2021 – the Democratic leadership is loathe to encourage their working-class and people-of-color supporters to take action. One reason is their desire to avoid alienating moderate voters. More broadly, if their voting base senses its full power it could move beyond getting out the vote and mobilize in struggles that endanger the capitalist profit-system that the two parties take turns in defending. That is why Biden demands that protests be “peaceful, peaceful, peaceful” – to avoid the slightest show of militancy and tighter organization. Likewise Pelosi read a poem and House Democrats sang “God Bless America” on the Capitol steps rather than calling people into the streets. The electoral strategy of the Democrats and their allies is designed to contain mass militancy.
The huge and militant Black Lives Matter protests that erupted after Minneapolis cops murdered George Floyd in 2020 were inspiring examples of what Biden and the Democrats fear more than Republican reaction. Such massive mobilizations – but with far greater organization, support and participation from unions and civil rights organizations, and with focused demands – are essential to pushing back the right-wing assault. For starters, a mass protest should be organized in Washington to protest the Court’s decisions and to place demands on the politicians who claim to oppose them, from the president on down. We note that there are powerful women-majority unions, especially in health care, that could take the lead. All activists belonging to these organizations should be pressing their leaderships to mobilize and act.
In addition to the demands outlined above, other reform demands should include demanding that the Senate abolish the filibuster, which would enable Congress to codify abortion rights (and others, like voting rights) into law. Democratic politicians who protect the filibuster should be made to fear the likelihood of being primaried out of office. Adding more justices to the Supreme Court so that the far right could be outvoted should also be fought for. Mass protests could also demand the resignation of Justice Thomas, whose complicity – and whose wife’s active participation and leadership – in Trump’s attempt to retain office through mob violence is now even more apparent. And investigations into Brett Kavanaugh should also be demanded, since the highly credible allegations of sexual assault were never looked into by the FBI, and since evidence likely exists that he lied under oath when denying any involvement in authorizing the use of torture against terrorism accusees during the George W. Bush presidency.
At the same time, working class and oppressed people need to challenge the Democratic Party’s status as the sole alternative to the Republicans. Revolutionary socialists support all struggles for equality, justice and democratic rights. But we also make use of every opportunity to inform and argue for the political independence of the working class – specifically, the creation and building of a party that challenges the two capitalist parties and fights for the needs of working and oppressed people.
The present constitutional crisis is such an opportunity. It is becoming increasingly obvious that the right-wing drive for minority rule that overturns our rights rests on the most undemocratic institutions of the U.S. constitutional structure: the Electoral College, which allows the presidency to be handed over to the loser of the popular vote, as has already happened twice in this short century; the Senate, which gives low-population and therefore mostly rural, white and conservative states equal representation with the large and urban states; and the federal courts filled with unelected lifetime appointees. It is effectively impossible to eliminate or reform these features through amendment: the Constitution needs to be replaced by that of a genuinely democratic republic. That means a socialist state run by the working class.
The Supreme Court’s arrogant seizure of power has awakened the consciousness of millions of people about the need to resist reactionary oppression. Mass struggles can win needed reforms. But to hold and expand them, working-class-led revolutionary change is necessary.