Damn the Court; This Is Not What Democracy Looks Like

by | Jun 28, 2022 | Commentary, Featured

I could wait to fully try to clear my head and calm my heart but that might not happen soon enough, and this moment “we” are in is urgent. For friends who say they have lost hope I am reminded of what I have said too often in these last few years. Hope is not an abstract idea; it is a practice. By doing with others, we create the hope we need.

Neither the January 6 riot/coup — call it what you will — nor overturning Roe can dismantle the amazing progressive forces developed in our anti-racist feminist struggles of the past 50 years. Let us mobilize to end the fallacies of racist misogynist democracy and take our country elsewhere. Misogynist fascism has fully arrived so there is no choice or time left.


January 6 Hearings

I started writing this after the second day of the Congressional hearings investigating January 6. I was appalled at what the hearings were documenting — the complete lying and deceit and terror inflicted on innocent people by Trump and his entourage. I listened to the stories of Shaye Moss, a Georgia election worker, and her mother Ruby Freeman —black women being threatened with death and lynching, and a full onslaught of terror. Their lives were taken from them.

Rudy Giuliani and Donald Trump are gangsters. What happens when a liar and bully like Trump gets to be heard repeatedly as though it makes the process of evaluating him rational? What does it mean to hold hearings about the abuse of power when much of the power and its players are still in place?

And yet, it was not at all clear what was going to be done with this information. Would there be criminal charges? And I wondered, how could there not be? To even ask this question is to limit and contain what really had happened.

So, hypocrisy is normalized to the point that we do not even see it. Is this all just a democratic façade? Can these present hearings indict a failed democracy? Can you use the very system to indict itself? I would love a conversation with Audre Lorde just about now. Is this too dangerous to both Democrats and Republicans? I fear it is.

Is this why democracy as we know it just does not work so much of the time? Look at the last half-century of civil rights and women’s rights movement demands — equality and freedom remain elusive. So, we need new strategies for our demands. And a real democracy that cannot be attained in existing class, race, gender structures. When we are told to vote ourselves out of this dilemma it is both true and false. It might be necessary but not enough. (Let’s not even think about the newest redistricting and gerrymandering.)


Supreme Court Rulings

And then here comes the Court and its heinous decisions. First it undermines the separation of church and state in Maine, and then it invalidates a New York State’s gun safety law that limits the public carry of firearms. Really? In this country drowning in its own blood? And then it overrules Roe v. Wade as unconstitutional. And why? Because abortion is not mentioned in the Constitution. Are they kidding? This is an old thought that existed before Roe was established as the law of the land. And really? The constitution recognizes no bodies, and not women, white or Black or Brown or Yellow. Then why would it mention abortion?

And it is crucial that we also recognize that the initial legal standing of Roe has been whittled away for these last 50 years. Although abortion was established as a legal right for all women, a series of Court cases have narrowed and limited the scope and access to abortion. Many counties do not have more than one abortion facility. Although all women have had the legal right to abortion; many, and in most states most, women do not have access to them.

This whittling away of Roe is endemic and central to the whittling away of democracy in the U.S. — from voting rights to a fuller notion of reproductive justice. Attacks on Roe should have been our canary in the coal mine.

It is the trick of legal rights — there are a series of needs that must be met before a legal right becomes actionable, accessible. This reality of need has already necessitated an incredible network, often underground and unacknowledged, that assists women now. These routes are in place for the resistance that is already building.


The Morning After Roe

Abortion clinics have closed in states with trigger laws while abortion providers already are working on alternatives and workarounds. While writing this I got a call from my daughter Dr. Sarah that she is on her way to Planned Parenthood in Miami where abortion remains legal for a bit longer. Doctors and providers across the country are both mourning and raging along with the rest of us. The court has made a huge mistake and thinks it can erase 50 years of unbelievable antiracist feminist struggle with one stroke. It cannot. The issues and their movements that underly Roe are bigger than Roe. The Court says the Constitution cannot grow and adapt beyond its origin, BUT WE HAVE.

In the U.S., two-thirds of people support the Roe ruling legalizing abortion, and 57% support abortion for any reason. Yet 6 elite people, 5 male, 1 female, 2 of whom are known sexual predators, overturned Roe v. Wade.

Anita Hill warned us: Clarence Thomas did not belong on the Court. No one listened. And now this hateful angry man is destroying the self-determination of millions of people.

I have never been a fan of the term democracy. For me, it always needs an adjective — what kind of democracy? Liberal, bourgeois, misogynist, racist? The more I taught and wrote over the past 40 years the more problematic the term became, but maybe never as much as right now, (except for chattel slavery) when I think it may be time to drop the term all together and have a new imagination.

This Court, with its newest readings of the Constitution, has fully established a misogynist fascism. Democracy in any of its limited legal forms is done, at least until we recognize that it is fully captured and claim it back. Decades ago, Bertram Gross coined the phrase friendly fascism, the form he said fooled people in the U.S. — it didn’t look like Nazism nor was it violent enough, but this is what white misogynist fascism looks like.

Political language and practice matter because it is through language that we see and think and dream. It constrains us and it can free us too. It is time to realize that we must take back white misogynist fascism parading as democracy and make it friendly to all bodies of every color.


Demanding Full Democracy

Jamelle Bouie suggests that The Constitution provides several paths by which Congress can restrain and discipline a rogue court. It can impeach and remove justices. It can set up new restrictions that limit their purview.

So let us put pressure on the Democrats to stand up for democracy for women of every sort — color, class, sex, gender, ability. Meanwhile as I learned long ago from Rosa Luxemburg: extra-legal power struggles must also define the day. Progressive anti-racist feminists of every sort must mobilize our power wherever it already exists.

As we strategize our next steps to fight again for our right to abortion and reproductive justice let us use our 50 years of anti-racist feminist struggle and growth to see all the intersections of our lives so we can lift each other up together.

That means seeing abortion and reproductive justice as a fundamental demand for full democracy.

There is nothing new here. After the revolutions of 1989 and the fall of the Soviet Union, East and West Germany had one last issue they could not agree upon: abortion rights. Women’s bodies — with or without a uterus — are always up for power grabs.

In these 50 years of living with Roe women’s struggles and feminist solidarities have morphed and been made more inclusive and radical. Black women have led the fight to broaden and encompass the complexity of these needs and demands. The right to abortion is about the right to control our bodies and what they will and won’t do and it is about everything that defines and structures women’s — trans, non-binary, cis, in all colors and abilities — lives.

As Kimberle Crenshaw, co-founder of the African American Policy Forum reminds us: “The consequence of our society’s failure to see coerced pregnancy as a legacy of enslavement has descended once again upon Black women and pregnant people. If the project of liberation from enslavement had been rooted in this recognition, then coerced childbirth would have been prohibited as a foundational principle of freedom.”

Our bodies are multiple and complex and borderless with the world they inhabit. So, abortion is a specific, but not single, issue. It is central and intimate with its surround. It is why support for it is so deep and wide.

Gun violence, and the war in Ukraine, and COVID, and sexual assault, and #MeToo, and Afghan women, and the detainees still in Guantanamo are about all our bodies.


Camaraderie, Chaos, and Hope

In sum: Roe has been overturned. Abortion and our reproductive rights have been taken from all of us against our will. But we are stronger than the law that narrows us. And we have learned so much. We know how to fight, and together, we have the power of community and camaraderie. And it must be used to deny illegitimate power. It is time to disobey. For a start we must organize to impeach the 3 judges that lied about Roe. And impeach Clarence Thomas for sexual harassment.

This Court has forced our hand. We are at the point where we have nothing to lose but our chains, and we have the strength to make claim to a revolutionary democracy once and for all.

We will create sanctuary communities and cities, we will continue the underground networks to transport women to the care they need, we will impeach the judges, we will indict the violators of democracy with refusal to support the regimes in power through strikes, through continual disruptions of everyday life. We will create democratic chaos. This is already in process, and it will become more visible and more organized and more impactful in the coming weeks and months. And with this process we will make our revolution, even if we do not know what it looks like in advance.

Ending Roe does not end the 50 years of organizing in multiple ways for anti-racist feminist abolition that went along with it. Just because these judges cannot see us does not mean we are not here. So let us all take this knowledge and energy to finally demand the world we must have. This is where our hope lies.


Zillah Eisenstein is a noted international feminist writer and activist and Professor Emerita, Political Theory, Ithaca College.  She is the author of many books, including “The Female Body and the Law” (UC Press, 1988), which won the Victoria Schuck Book Prize for the best book on women and politics; “Hatreds” (Routledge., 1996), “Global Obscenities” (NYU Press, 1998),  “Against Empire” (Zed Press, 2004), and most recently, “Abolitionist Socialist Feminism” (Monthly Review Press, 2019).


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