We Must Now Work to Overturn the Court’s Undemocratic Attacks on the Rights of Women and Workers

DSA Statement on the End of June 2014 Supreme Court Rulings


Democratic Socialists of America (DSA) condemns three recent rulings of the Supreme Court of the United States (SCOTUS) as infringements on the rights of women and working people. The three rulings at the end of June threaten the rights of women to reproductive freedom and the rights of working people to form strong unions. Despite conservative claims to be “strict constructionists” who are opposed to “judicial activism,” the five Republican-appointed judges on the Court are increasingly enacting a reactionary policy agenda that enhances the power of elites at the expense of the vast majority.

1. Allowing “Corporations as Individuals” to Deny Reproductive Health Insurance Coverage on “Religious Grounds”

    In Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties v. Burwell, the Court ruled in a 5-4 decision that “closely held” for-profit corporations run on religious principles could drop contraceptive coverage from their health insurance plans if the corporate owners objected to contraception on religious grounds. This absurd ruling favors the fictive “individual rights” of corporations at the expense of human beings’ ability to control their reproduction. The decision also opens the way for corporate board of directors to claim on religious grounds that it opposes enacting federal legislation regulating corporate behavior. Even if the ruling is limited to health care regulations, under the logic of the ruling, why could not a corporate board of directors composed of Jehovah’s Witnesses refuse to cover blood transfusions? Why could not a Christian Scientist-controlled corporation completely deny on religious grounds the insurance coverage mandates of the Affordable Care Act? Politically, we should simply enact a national “single payer” health care system, putting everybody in, nobody out, and no employer between a woman and her doctor. Health care should not be dependent on one’s employment situation, but should be a universal human right.

2. Abolishing Buffer Zones in front of Reproductive Rights Clinics

    In McCullen v. Coakley, the Court struck down a Massachusetts state law creating a 35-foot “buffer zone” around reproductive rights clinics in which only patients and employees could be present.  The Court’s 9-0 decision held that the law too broadly restricted speech on public walkways and roads, but may still allow states to enact more narrowly tailored laws against harassing speech and actions within a clinic “buffer zone.” It is not clear, however, whether those few states that have enacted “buffer zone” legislation will reformulate them. Thus, the political battle in the coming days will be to enact legislation in every state possible that falls within the parameters defined by the Court decision and which also protect women’s rights to unimpeded access to reproductive services.

    Although the vote was unanimous, the minority concurrent opinion issued by Scalia, Alito, Thomas, and Roberts implied that those justices would vote against any state laws limiting in any manner anti-abortion “speech” in a “buffer zone.” If there is one more anti-abortion rights appointment to the Court, anti-abortion zealots may be able to harass, without any legal limitations, women seeking reproductive services and the providers of those services. As matters now stand, conservative legislation restricting abortion services and denying public funding for reproductive services for indigent women, combined with physical harassment and even the murder of reproductive service providers, has put reproductive rights (including, but not limited to, abortion services) out of the reach of millions of women in the United States.

    Those who cannot afford to pay for their birth control out of pocket if their employers deny coverage will face the biggest challenges in their lives. It is also worth noting that this far-right political movement that produced these judges gained support from  neoliberal Democrats who wanted to end “welfare as we know it.” This led to the leadership of both parties enacting “blame the poor” “welfare reform” policies that have led to 1.7 million children and 600,000 adults, mostly single mothers, living on only $2 per day per person.     

3. Imposing “Right to Work” Provisions Upon “Partial Government Employees”

    The Court’s conservative majority also continued its assault on the rights of workers to organize to improve their working conditions. The five-member majority in Harris v. Quinn ruled that “partial public employees” cannot be compelled to pay “agency fees” (the cost of the union negotiating their conditions of employment). This should be the case, the five-member majority argued, even if the contract has been freely negotiated between a private agency and a state, county or local government.

    In ruling that “partial public employees,” such as home care and health care aides funded by Medicaid to care for ill, elderly or disabled persons, cannot be required by collective bargaining agreements to pay “agency fees,” the Court struck a blow against the gains the labor movement has made recently in organizing home care workers, a workforce made up predominately of women of color and one of the fastest growing sectors of the economy. The ruling also threatens the union rights of other “partial public employees,” such as museum workers, librarians, and other employees whose wages are paid for by the state but who work for non-profits or other non-government agencies. The ruling could, for example, threaten the right of charter school teachers to build effective unions.

    Most of the gains in working conditions for home care workers in the past decade have come through state and county governments negotiating collective bargaining agreements with unions. These collective bargaining agreements require the private agencies that hire these workers to employ them according to the standards of a union contract negotiated with the government which then contracts with these private agencies. This is particularly justifiable given that the agencies receive public funding to pay these workers.

    These union contracts have lifted hundreds of thousands of low-wage workers out of poverty. They have also compelled the agencies employing these workers to grant their employees’ greater break and vacation time and more humane working conditions. They have also led to less turnover and higher quality care for the “clients” for whom these workers care. These gains are now threatened by the Court’s decision.

    The Court claims that “agency fees” impinge on the individual freedom of the workers subject to them. Yet, as all workers benefit from the provisions of the union contract, the Court has long recognized that states may choose to negotiate with unions “agency fee” or “union security” clauses. While these give employees the right not to contribute to the political activity of unions, the contract requires all workers covered by the contract to pay the per capita cost of the union representing them. For if workers are given the “right” to “free ride” on the cost of unions negotiating better working conditions for all workers, such free-riding can deny unions the revenue necessary to represent their workers in an effective manner. A proper analogy to “right to work” legislation would be a law allowing citizens to refuse to pay taxes for the services from which they benefit.

    The Court majority claims it will not revisit the 1977 ruling in Abood v. Detroit Board of Education that found legal “agency fee” provisions in collective bargaining agreements between public sector unions and government entities. But the four most conservative judges indicated that they would welcome further challenges to “agency fee” agreements by “directly employed” public employees and implied that they would likely rule that all such agreements violate the right of the individual to choose not to pay any funds to the union.

    Such “right to work” laws consciously aim to weaken union strength; they are the main reason why the “right to work” is, as Martin Luther King, Jr. put it, “the right to work for less.” The banning of agency fees in the 25 “right to work” states in the United States is a major reason why the percentage of workers in unions in “right to work” states is about one-fifth that of workers in states that allow “agency fees.” As unionized workers experience superior wages, benefits, and working conditions to non-union employees, working people in “right to work” states suffer lower wages and benefits than those with comparable jobs in non-right-to-work states.

How to Fight Back

    DSA recognizes that except for the Warren Court years of 1954-1970, the SCOTUS has largely served as a conservative institution of nine, usually white men that traditionally upholds property rights over human rights. DSA believes that the best way to limit the reach of this unrepresentative institution is to build strong and democratic social movements that both press the President and Congress to appoint progressive justices and push the judiciary to keep up with the democratic sentiments of the nation. For example, in the late 1930s the militancy of the CIO pushed the Court to abandon its practice of striking down government legislation regulating the power of corporations. And the militancy of the 1950s and ‘60s civil rights, feminist and anti-war movements created the preconditions for the liberal rulings of the Warren Court.  

    Thus, DSA’s primary strategy is to bring a socialist presence and analysis into the democratic movements fighting corporate power and racism, sexism and homophobia. DSA does recognize that Democratic SCOTUS appointees vote in a somewhat more progressive manner on issues regarding race, class and gender than do Republican appointees. DSA also notes that, in Michigan and Wisconsin, Republican rule in every branch of state government has brought about right-to-work legislation and the denial of collective bargaining rights to public employees. Thus, DSA takes seriously the need in the 2014 elections to defeat reactionary Republicans at all levels of government.

    But DSA also understands that unless the labor movement and the Left build the independent political capacity to challenge the mainstream leadership of the Democratic Party, from the inside and the outside, its embrace of pro-corporate, pro-austerity neoliberal economic and social policies will continue as well.