Abstract

Excerpted From: Naomi D.G. Franco, Women's Rights Are Workers' Rights: Protecting Access to Reproductive Health Through Organizing Labor Unions in the South, 45 Women's Rights Law Reporter 65 (Fall/Winter 2023) (184 Footnotes) (Full Document Requested)

According to the National Women's Law Center, “access to abortion enables women to complete high school and higher levels of education, improves labor force participation, and enables economic independence.” On June 24, 2022, the United States Supreme Court reversed more than 50 years of binding legal precedent that had protected the right to privacy and access to abortion care set out in Roe v. Wade and Planned Parenthood v. Casey. In Dobbs v. Jackson Women's Health Organization, the Court reversed and held that the U.S. Constitution does not confer a right to abortion. In doing so, the Court not only broke with well-established precedent on the rights of privacy and access to abortion care in the country but displayed a massive ideological shift on the Court. Even though the Court's opinion had been leaked by Politico more than a month prior, the decision sent shockwaves through the country where only 1 in 5 women have lived in a pre-Roe America. After the decision, new litigation and existing trigger laws burst into action in the States, attempting to both protect and, in others, diminish a woman's right to autonomy over her own body. Perhaps attempting to quell the expected outrage of this reversal of precedent, the Dobbs majority on the Court emphasized that the overruling of Roe and Casey “concerns the constitutional right to abortion and no other right” and that nothing in the opinion “should be understood to cast doubt on precedents that do not concern abortion.”

These promises felt hollow when just a few pages later, Justice Thomas clearly expressed the intention to do just the opposite. In his concurring opinion to Dobbs, Justice Clarence Thomas indeed did cast doubt on all substantive due process precedents that do not concern abortion. In his concurrence, Justice Thomas urged the Court to “reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is 'demonstrably erroneous'.” Justice Thomas would, if he had his way, do away with all substantive due process rights, eliminating hard fought for and essential liberties like the right to be intimate with whomever one chooses, the right to contraception, and the right to marry whom one loves.

Now, with an expanded conservative power gripping the Supreme Court, it is not out of reach for Justice Thomas and his colleagues to the right on the bench to accomplish this directive, and in doing so to shatter essential and lifesaving protections for millions in the U.S. Massive, and diverse groups could and likely would find themselves not only in an ideologically hostile country, but an increasingly dangerous one. After Dobbs, this has become a reality for all women and persons with childbearing ability, but perhaps none more so than for women in the South where, as discussed below, sweeping abortion restrictions have been enacted since Dobbs. Women in these Southern Prohibition Zones, particularly women of color, are now living without access to lifesaving care and face economic and social hurdles which have become more severe, more detrimental, and burdensome after the Dobbs decision.

Though democratic political leaders in Washington expressed outrage and deep concern after the fall of Roe, women in many states, including all of the states in these Southern Prohibition Zones, have and will continue to have their autonomy attacked and degraded by predominately white male state legislatures. As of July 28, 2023, in 10 states, abortion is banned with no exceptions for rape. There are 19 states that have enacted nearly complete abortion bans effective after 15 weeks of pregnancy. Of these states 13 of 19 are in the south. Though many political leaders aspire to pass federal legislation that would codify the protections of Roe throughout the U.S., until this occurs women in Southern Prohibition Zones will continue to face life threatening bans and restrictions. The health risks these bans pose on women, particularly women of color, are important, dire, and immediate. These risks are also inseparable from the systemic lack of health care for workers in the south, the effect these bans will have on women's economic participation, and how bans will negatively impact the economic mobility of pregnant people - especially people of color. As such women simply cannot afford to wait for an increasingly unlikely change to federal legislation. Instead, we can organize.

This article will argue that an important tool for women in Southern Prohibition Zones can be organizing and joining labor unions to bargain for more protective provisions in their contracts and also to build political power within their communities. The article explores the benefits unions can provide to women in Southern Prohibition Zones as a responsive tool against abortion bans while also building political power on localized levels. Building political power through unionization can work to dismantle these Southern Prohibition Zones and allow women access to economic mobility and better health care.

Part I will explore the history of the labor movement in the United States, how it became a tool for economic growth but often times in an exclusionary way, and how Southern politicians waged a successful war against unionism that sought to hinder its growth at every turn. Part II will examine the future of the labor movement in the United States. After struggling for decades, unions are making gains in less traditional spaces and are beginning to become more representative of the diverse workforce in the country. Part III will examine how restrictions on reproductive rights and personal autonomy in the south has created these Southern Prohibition Zones which degrade political power for women of color and hinder economic mobility. Part IV will consider how collective bargaining can be used to protect women's interests in the workplace, how unions can and should focus on promoting women's interests overall, and how unions can and should organize more in the Southern Prohibition Zones. Next, Part V will examine how unions can be used as a tool for building political power in the Southern Prohibition Zones through boosting economic growth and mobility in communities and by providing a collective voice for underrepresented workers, particularly women of color. Finally, the article proposes that women in the Southern Prohibition Zones and unions should seek to expand political power and worker protections to protect reproductive health access and abortion rights.

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Women in the Southern Prohibition Zones can work to protect against the further diminishment of substantive rights in the region. The modern United States labor movement, helmed more and more by women and people of color, is uniquely well equipped to support this work. Even if Justice Thomas succeeds in convincing the U.S. Supreme Court to continue diminishing substantive rights, women in the Southern Prohibition Zones can blunt these effects through unionization, political mobilization and by supporting laws that protect reproductive rights and abortion care. In the spirit of the USSW mission statement, even though women in the South face unique challenges, when they organize and take collective action, they can shift the balance of power and break down the barriers of the Southern Prohibition Zones.

Rutgers Law School, Class of 2024.