Democrats are not defending women and children
Make no mistake, the upcoming Supreme Court decision overturning Roe v. Wade is a part of a larger war on women and children, particularly poor women, and no national party — including the Democrats — is prepared to defend us.
At the start of the Biden administration, the Senate passed an emergency package supporting refundable child tax credits for lower-income families. These credits are no longer fully refundable and therefore only largely affect those with higher incomes. Approximately 3.7 million children who were taken out of poverty with these credits have returned to poverty in January 2022.
With the overturn of Roe v. Wade, many states will now require women to have children they do not want and cannot financially support. Many of these women already cannot access birth control as a result of the Hobby Lobby decision in 2014 which allowed private companies to operate as individuals with religious liberty to decide not to provide birth control pills as a part of employee health coverage. As a result of states rejecting federal support for Medicaid extension, many of these women also lack health insurance after the birth of their children or after their children’s first year which causes untold numbers of women to avoid life-saving medical treatment or to be stuck with medical bills that further impoverish poor women. Others are impoverished as a result of high co-pays and deductibles. As a result, we have the highest maternal mortality rate of any industrialized country.
No national laws have been passed to address women’s reproductive rights other than the Hyde Amendment which specifically limits spending federal money on abortion care. Roe v. Wade was 50 years ago and since that time, the Democrats have never prioritized legislation that would cement the principles in this decision. In 1992, Casey v. Planned Parenthood (1992) enabled states to restrict abortion practices at the state level if the state policy did not create “an undue burden.”
Overturning Roe is not changing practice in many states where abortion has become totally inaccessible based on an increase in restrictive state-level policies such as waiting periods, the requirement that abortions be completed in a hospital, the requirement that medical doctors provide all abortion services, state-mandated counseling, the requirement that there is parental involvement for those under 18, the restrictions on private insurance coverage for abortion and more.
I went to law school in 1993 and now, the legal world is a much different place. I learned that the 14th Amendment protects the individual rather than corporate rights but the 2010 decision in Citizens United v. Federal Election Commission turned that idea on its head. It was then relied upon to allow privately held corporations to limit the coverage of birth control, in Burwell v. Hobby Lobby (2014) to poor women, limiting the power of Congress to mandate access to birth control. The idea that the 14th amendment provides a liberty interest and that privacy is a part of this liberty interest is about to be overturned.
In law school, I was taught about protected classes of people and how constitutional scrutiny would be held to a higher standard if laws disproportionately impacted certain classes of people based on race, color, gender, religion or national origin. Court arguments provided a vast array of evidence that overturning Roe v. Wade would disproportionately impact women, predominately low-income minority women. In her argument, Rikelman provided evidence that abortion rights had “had large effects on women’s education, labor force participation, occupations and earnings.” The liberty rights or higher level of scrutiny that the court might have been expected to provide were seemingly dismissed from the majority decision without much thought.
I also learned about stare decisis, the idea that the courts, particularly the Supreme Court, builds on precedents or preceding case law and does not simply overturn decisions for political gain. The decision in Dobb’s v. Jackson Women’s Health to overturn Roe v. Wade suggests that this too is no longer how the law works in the United States.
Eighty percent of voters support increased public funding for child care. Nearly eighty percent of Americans support birth control as a basic health care right for women. A majority of Americans also believe that abortion should be legal in most or all cases. The Senate just failed to support the Women’s Health Protection Act. Democrats also failed to extend the refundable child tax credits. All of these issues hurt women, particularly low-income vulnerable women.
The Democratic Party needs to do more than give lip service to a pro-women, pro-child agenda, they need to be willing to use every piece of leverage they have to pass legislation. Lyndon Johnson was able to get the support of conservative Democrats during the Civil Rights Era and Biden needs to follow his lead. Without a clear agenda and the ability to make changes to support the majority views, it is unlikely that the Democrats will be in the majority in a few months … Now is the time.
Elizabeth Palley is a former disability rights lawyer and a professor of social work and social policy and Director of the Doctoral Program at the Adelphi University School of Social Work.
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