Making Abortion Rights Real
The week began on a surprisingly strong note for reproductive justice advocates, as the US Supreme Court, by a 5–3 margin, overturned Texas’s draconian House Bill 2.
The law, which Wendy Davis famously filibustered in her pink tennis shoes, purported to protect women’s health by requiring that health clinics providing abortion services “meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing” and that “doctors performing abortions . . . have admitting privileges at a nearby hospital.” These regulations, which the Supreme Court found on Monday to be an “undue burden” for those seeking an abortion, would have shuttered half of the Texas facilities that perform abortions.
Activists are rightly celebrating the ruling as a win for abortion rights. In Texas and elsewhere, women seeking to terminate unwanted pregnancies likely won’t have to contend with the anti-abortion statutes passed since the 2010 Tea Party wave.
But the decision in Whole Women’s Health v. Texas, much like the 4–4 tie in the recent anti-labor Friedrichs v. CTA case, is more a reprieve than an absolute victory. Rather than overturn an earlier, poorly decided decision, the Court potentially locked in the justification for restricting the unalloyed right to an abortion by ruling that the Texas law was simply an overreach.
That earlier, poorly decided case, 1992’s Planned Parenthood v. Casey, represented the culmination of the Reagan-Bush-era legal drive to overturn Roe v. Wade. In a 5–4 decision, in which Anthony Kennedy cast the decisive vote, the Court upheld a Pennsylvania law that mandated a twenty-four-hour waiting period, parental consent for minors, and spousal notification before a woman could obtain an abortion.
While the ruling nominally rendered Roe v. Wade a settled precedent (Antonin Scalia and Clarence Thomas voted against it for that reason), it opened the door for state law restrictions, as long as they didn’t present a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In other words, Casey simultaneously protected the right to an abortion and gutted it.
This is strikingly similar to how the Supreme Court has handled labor rights. In 1937, Congress passed the National Labor Relations Act, which enshrined workers’ right to form unions and go on strikes, and gave the federal government the power to go after bosses who interfered with those rights.
But one year later, a key Supreme Court decision, which was similarly celebrated at the time, protected the right to strike while utterly gutting it. In Mackay Radio v. NLRB, the Court upheld the law and ordered the employer to reinstate four striking workers who had been fired.
Yet despite the statute’s guarantee that “Nothing in the Act should be interpreted to interfere with or impede or diminish in any way the right to strike,” as well as its explicit protection of striking workers against “discrimination,” the Court held that in order to “protect and continue his business,” the boss could permanently replace workers in the order of reserve seniority. Employers, in other words, could get rid of striking workers as long as it didn’t present a substantial obstacle to exercising their union rights.
Obsessive union-busters seized on the new precedent. In one important case, an employer tried to give its scabs “super-seniority” — workers who had gone on strike would get laid off first, even years after the job action. The Court struck down that action in 1963, ruling that it was too discriminatory and “not proper under Mackay.” But like Whole Women’s Health, the Court’s Erie Resistor decision further legitimized restrictions on a fundamental right by declaring that a certain set of actions simply went too far — not that the right was improperly restricted in the first place.
A ticking time bomb for decades, the so-called Mackay Doctrine was deployed by employers in the 1980s and 1990s as part of a broader union-busting campaign. Beginning with a strike at the Phelps-Dodge mining corporation in 1983, employers bargained hard for drastic concessions in pay, benefits, and working conditions; dared their unions to strike; hired scabs to take their jobs; and after twelve months encouraged the replacement workers to vote to decertify the union. This is the union-busting playbook that has decimated labor’s ranks and paved the way for massive income and wealth inequality.
Casey has worked out about as poorly for reproductive rights advocates.
The past quarter century has seen a sustained drive to place all kinds of limits on reproductive rights: waiting periods, forced “counseling,” trans-vaginal ultrasounds, burdensome zoning regulations. Already more than a third of women seeking an abortion have to travel at least twenty-five miles to find a facility. Add in mandatory waiting periods (still constitutional, alas), and you’re talking about entire days off from work, travel and motel expenses as well as the cost of the procedure itself, which is often not covered by insurance. (Now, as ever, is an excellent time to donate to your local abortion access fund.)
For far too many working-class women, the right to an abortion exists on paper, rather than as a genuine right — just as for many workers, the right to strike remains purely formal.
So by all means, let’s breathe a sigh of relief. Let’s take some time to celebrate. This was supposed to be a much worse Supreme Court term, and maybe, just maybe, we’re seeing the beginning of the end for constitutionally accepted restrictions on abortion rights.
But the labor movement’s experience with Mackay should give us pause. Even if the heat dies down on new anti-choice efforts, if the now-legitimized Casey precedent is not overturned, and soon, it could be used as legal ammunition in the next massive assault on reproductive rights.
The next president could appoint as many as three Supreme Court justices — totally changing the high court’s makeup and voting dynamics. We need to begin thinking beyond the defensive strategies of Friedrichs and Whole Women’s Health and start planning campaigns of judicial activism to overturn rotten Court precedents and put women’s fundamental rights on firmer legal footing.
[This article originally appeared at Jacobin.]
One Day Longer
As the massive strike at Verizon enters its second month with no end in sight, the stakes — for the workers, the company, and the broader labor movement — are rising. Even mainstream media outlets like the New York Times have taken note, casting it as something of an epochal battle over whether the economy can tolerate good jobs that actually deliver economic security and decent benefits.
The strike began on April 13, when forty thousand Verizon landline workers, represented by the Communications Workers of America (CWA) and the International Brotherhood of Electrical Workers (IBEW), walked out after nine months of contentious and fruitless contract negotiations. The unions are fighting employer demands to make outsourcing and offshoring jobs easier, as well as cutbacks in health benefits.
Verizon isn’t budging. It opened the month of May by canceling striking employees’ health insurance — an action that was technically legal, but union officials say represents a departure from the past. In the meantime, unions have been helping members patch together emergency health coverage.
These days, a strike of the Verizon action’s scale and duration is exceedingly rare. That’s largely because the stakes for workers are so high. Strikers don’t just lose their pay and benefits — they risk losing their job entirely.
When Congress passed the National Labor Relations Act in 1935, their explicit purpose was to encourage collective bargaining, restrict interference with unions’ right to strike, and prohibit discrimination against workers for union activity. (They were also hoping that by providing an orderly process for union recognition, workers would stop physically occupying corporate property and disrupting commerce.)
But almost immediately after the NLRA’s passage, the courts got to work gutting union rights. In 1939, the Supreme Court decided that “of course” Congress didn’t mean to curtail capitalists’ right to keep their businesses open, and so “of course” employers could hire new workers to permanently replace striking workers. Being replaced, they reasoned, wasn’t the same as being fired or discriminated against.
In the 1980s and ’90s, employers began using this legal precedent in earnest. They’d bargain unions to an impasse, dare them to go out on strike, and then replace workers with scabs. The tactic worked, successfully decertifying much of the unionized industries in the US.
Unions still have limited legal recourse. In the current dispute, the CWA has filed an unfair labor practice charge with the National Labor Relations Board over Verizon’s bargaining conduct — a move that could provide strikers with a measure, but far from a guarantee, of protection against permanent replacement.
Verizon’s machinations underscore workers’ vulnerability. The company is placing full-page ads in newspapers seeking out “temporary full-time technicians” (it claims to have recruited “thousands” of scabs, a figure so vague that even Fortune magazine put it in scare quotes) and attempting to lure workers across the picket line. So far, Verizon boasts, one thousand union members have scabbed. But even if that number is accurate, it would amount to less than 3 percent of the workforce.
One of the reasons the Verizon workers are striking when few other unions are willing to take the leap is that their skills and experience are not easily replaceable. As social media sites like the Stand Up To Verizon Facebook page show with aplomb, scabs are bumbling through their repair work, with often dangerous consequences.
Verizon is willing to cope with the temporary ineptitude because it is intent on facing down the unions. With cell phones supplanting landlines and fiber-optic cables becoming a more lucrative market than Ma Bell’s legacy copper wires, the company wants to quarantine the unions from its growth divisions.
To that end, Verizon has vigorously resisted union organizing attempts at its wireless division — and with much success. While the staff at a handful of wireless stores have organized, none have won a contract.
For their part, the striking unions have extended their picket lines to as many Verizon Wireless storefronts as possible. Any dent they can put in the wireless division’s market share, the unions recognize, is collateral damage for Verizon.
They’ve also fanned out to the legal and political front. Earlier this month, the unions filed federal communications charges against Verizon for its strong-arm tactics in pushing traditional telephone customers to switch to the company’s more modern (and more expensive) fiber optic system.
And they’ve applied carrot-and-stick pressure around the company’s high-speed Fios service, which is in high demand among residential customers — and therefore popular with local politicians — but remains a lower investment priority for Verizon than its non-union wireless division.
In other activity off the picket line, union activists and supporters disrupted Verizon’s May 5 shareholders meeting in Albuquerque, New Mexico. Two hundred and fifty activists protested the confab, including fifteen who engaged in civil disobedience. Union pension voters, representing $1.3 billion in Verizon stock, also forced an ultimately unsuccessful vote on a resolution to curtail executive compensation.
To some extent, workers have benefited from striking in a presidential election year. Bernie Sanders, whose insurgent campaign received its most prominent union endorsement from the CWA, was on the picket line the first day of the strike and has been doing solidarity work ever since. Even Hillary Clinton — no doubt pressured by a surprisingly competitive primary — found a comfortable pair of shoes and joined a picket line.
The optimistic view is that this indicates the resurgence of a long-moribund labor movement.
Last year, the federal Bureau of Labor Statistics, which keeps track of “major work stoppages” (those involving more than one thousand workers), reported a 400 percent uptick in lost working hours over the previous year. The increase represented the high-water mark for strike activity over the past half-decade — and the Verizon strike alone blows that record out of the water.
Yet the strike is also a major test of whether relatively well-positioned workers can withhold their labor and win.
A common chant on picket lines is “One day longer, one day stronger.” That is particularly true of a strike like this one, which is by design and circumstances a war of attrition. The company budgeted for first quarter strike-related profit losses, but admits that a protracted strike could impact the entire year’s bottom line.
The striking workers, of course, face far worse privation. They don’t have shareholders to underwrite their losses. They just have a strike fund (and a solidarity fund). But most workers, unionized and non-unionized, are in even direr straits.
The outcome of the Verizon workers’ strike will therefore be taken as a labor bellwether — for good or ill.
[This article originally appeared at Jacobin.]