Last Monday at least 180 subcontract workers manning five entrances of the Hualpén oil refinery and the San Vicente maritime terminal in the Bíobío region, 500km south of Santiago, were attacked by dozens of riot police with shields, water cannon, pepper spray and tear gas. Eleven workers were arrested. The recently elected Chilean pseudo-left administration of ex-student radical Gabriel Boric ordered Carabineros Special Forces to break up the picket line at one of Chile’s main oil refineries.
Carabineros attack striking ENAP refinery subcontract workers on May 9 (Credit: Cristofer Espinoza, Cooperativa)
Preparations for the repression were made by the government over the weekend after the state-owned company, the National Petroleum Company (ENAP), falsely claimed on May 6 that southern Chile from Biobio to Araucania regions would suffer supply shortages of gasoline, diesel and kerosene in less than a week if the strike continued.
In a communiqué, ENAP said it was obliged to stop “100 percent” of logistical operations and fuel distribution in the southern part of the country and claimed that it had been pushed into “the extreme situation” by the “unwillingness of [the union] FENATRASUB to engage in dialogue…”
Only weeks before, however, Julio Aranis, the newly appointed general manager informed the media of programmed maintenance to be carried out at the more than 20 plants at the Hualpén refinery in Biobio. In other words, the planned disruptions obliged the refinery to stockpile several months worth of fuel.
“This is the largest and most necessary maintenance that ENAP has carried out in its more than 70 years of life,” Aranis explained, adding that the US$87 million two-month operation “will generate, at its peak, a job opportunity for close to 2,000 external workers.”
The scaremongering provoked panic buying and queues at service stations several blocks long in the south of Chile over the weekend.
Knowing full well that there wasn’t a remote possibility of shortages, Minister of the Interior and Public Security Izkia Siches nonetheless took up the refinery’s talking points. She declared fuel transportation a “strategic” area for the country, vowing to take whatever measures necessary to “maintain supply and keep the roads clear for ENAP which is a strategic industry.”
“Our delegate has been in talks with the different teams of contract workers (and) we hope that this has a prompt solution,” she continued, “but undoubtedly our government has the duty to ensure free transit and obviously supply for the whole country.”
This was reported in the media as meaning that the pseudo-left Stalinist government would apply the State Security Law, a police state instrument closely identified with the military dictatorship to criminalize all manner of social opposition to its rule.
Boric answered that this was precisely what he was threatening: “We are working first on the path, which is the spirit of our government, which is precisely dialogue,” he said.
“But, of course, as a State, we have the duty to guarantee the supply of, in this case, fuel, to all areas of the country. I hope that through dialogue we will reach an agreement, otherwise the government, of course, will have to proceed accordingly.”
In his two months in office, it has become clear to masses of people that Boric’s endless appeals for “dialogue” is a euphemism for suppressing the class struggle. The working class, youth, indigenous peasant communities and popular sectors, mistakenly believed that the election of a front of supposedly left-wing parties—Frente Amplio, the Communist Party and others that make up Apruebo Dignidad— would welcome and even encourage an active fight to improve their social position.
This was the illusion sold to them in this case by FENATRASUB (the National Federation of Subcontracted Workers), which last September invited the then-presidential candidate Boric to speak to the workforce and requested his commitment to intercede on their behalf in return for their vote.
“This is how the government pays us,” said Victor Sepulveda the president of the union. “The same government for which you voted today is paying us with this, with repression. All those who voted for Boric today are receiving this in return so that they will have it in the memory of the workers of Chile. This is the payment of this government. A government of workers with a false discourse, instead of supporting us, represses them.”
Yet in the same breath the union continues to make appeals to the government to participate in tripartite negotiations.
Despite the crackdown, the workers have refused to back down and remain on strike.
Workers on picket line before police repression (credit: FENATRASUB)
The thrust of their demand is to eliminate the gap between subcontracted and plant workers through the renegotiation of a framework agreement, which stipulates the benefits that contractor companies have to include at the beginning of the bidding process. In 2021, the refinery imposed an agreement that froze existing conditions indefinitely.
Like so many other free market policies that stripped the working class of its rights and conditions, the military dictatorship opened the door to subcontracting in 1975. But it was under the center-left governments of the Concertación that this form of employment became ubiquitous in all areas of the economy including mining, agriculture, fishing, construction and retail.
Some subcontracted employees have been at the company since the 1980s, and incomes, benefits and conditions have not improved in 15 years. They even lack comprehensive health insurance coverage, grants for schooling, adequate Christmas bonuses and vacation leave.
This was made worse during the pandemic when ENAP, citing financial difficulties, furloughed subcontractors for three months, forcing these workers to live off their own savings. Moreover, the entire workforce was denied Christmas bonuses, an indispensable payment that gets them through the holiday period.
The unions however, have done everything in their power to keep the strike isolated.
The National Federation of Subcontracted Workers is an umbrella of several unions representing hundreds of subcontracted workers in ENAP, which, besides Hualpén, has refineries in the Magallanes and Valparaíso regions. Yet these workers have not been called out.
Nor have the unions representing permanent employees at ENAP supported the strike. After remaining silent for the first few days of the strike, which was called on May 2, Nolberto Díaz, president of the National Federation of Petroleum Workers' Unions (FENATRAPECH), all but condemned the picket on the grounds that it “put at risk the delivery of the fuels that the population needs…” A more right-wing argument could not be found.
Since the police crackdown, in an act of cynicism, the government’s own coalition, Apruebo Dignidad, composed of the pseudo-left Broad Front and the Stalinist Communist Party, have issued various statements condemning the action. The union bureaucracies have similarly come out to make mealy-mouthed statements supporting the workers, knowing full well that remaining silent would constitute consent to police repression by a government they promoted.
Yet neither the official Central Unitaria Trabajadora (CUT) nor the anarcho-syndicalist opposition union bureaucracy, the Central Clasista de los Trabajadores y Trabajadoras (CCTT), has called out their members to defend their class brothers and sisters. To do so would be to jump out of their own skins.
It has taken two months for the Boric government to virtually rip to shreds not only an agreement, but its political credibility among increasing sections of the working class.
Eleven people died and at least 38 have been rescued after a boat carrying migrants capsized on Thursday about 10 nautical miles north of Desecheo Island and northwest of Puerto Rico, the US Coast Guard reported on Friday. The group was spotted Thursday morning by a US Customs and Border Protection (CBP) helicopter.
This photo released by the Seventh U.S. Coast Guard District shows people standing on a capsized boat, left, as some of its passengers are pulled up on to a rescue boat, top, in the open waters northwest of Puerto Rico, Thursday, May 12, 2022. [AP Photo/Seventh U.S. Coast Guard District]
Although search and rescue operations were ongoing as of this writing, authorities have indicated that the death toll could rise higher as it is not immediately clear how many people were in the boat. The passengers had been spotted in the water and did not appear to be wearing life jackets, the Coast Guard reported.
Rescue crew members had initially pulled 31 survivors from the water after the boat tumbled over, a spokesperson with the US Coast Guard's 7th District told CNN. The Coast Guard increased the total number of survivors to 38 in a Friday update. 'We always look for the possibility of finding survivors,' said Coast Guard spokesman Ricardo Castrodad, adding that crews worked through the night.
A CBP spokesman said 36 of those rescued are Haitian nationals, while the remaining two were from the Dominican Republic. The boat had reportedly departed from the Dominican Republic and was traveling across the tumultuous stretch of water in the Mona Passage, a strait that lies between Puerto Rico and Hispaniola, the Caribbean island that includes the Dominican Republic and Haiti. At least eight Haitian nationals have been hospitalized.
According to CBP spokesman Jeffrey Quiñones, the boat was taking on water and the occupants were trying to shovel water from the boat. Quiñones noted this was not uncommon for such voyages since the unsafe ships are often not built for tumultuous seas. “It appears that the boat broke because it’s not a boat that’s made for such a voyage,” Quiñones said. “With a lot of people inside the boat, of course this could happen.”
An autopsy performed by Puerto Rico’s Forensic Science Institute found that all 11 victims were female. The institute announced it was forming a special team to perform autopsies Friday on the bodies recovered. María Conte Miller, the institute’s executive director, said her agency has been talking with Dominican consular officials to the family members of the deceased.
Authorities in recent months have noted a sharp increase in migrants from Haiti and the Dominican Republic making dangerous voyages aboard makeshift boats that are often overturned or drop people off on uninhabited islands. Despite the perilousness of the journey, these trips are the cheapest methods for migrants to flee from countries that are seeing soaring costs in basic goods, double-digit inflation and severe gas shortages.
Gang violence in Haiti has shuttered hundreds of schools and businesses and prompted some hospitals and clinics to temporarily close. Dozens of gangs now occupy the country’s capital, Port-au-Prince, forcing many to flee in search of safety and stability.
Almost the entire political and social fabric of the country has been upended since the assassination of President Jovenel Moise in July of last year. A flood of evidence has emerged implicating powerful sections of the country’s venal ruling elite, and many of those that now occupy positions in government and police posts were involved in the plot to murder Moise, including incumbent President Ariel Henry.
The social and economic crises wrecking the Caribbean nations have spurred a massive surge in migration, particularly over the past two years as a result of entrenched food insecurity and joblessness that have accompanied the coronavirus pandemic. From October 2021 to March 2022, 571 Haitians and 252 people from the Dominican Republic were detained in waters around Puerto Rico and the US Virgin Islands, according to CBP. The majority of those Haitians, 348 of them, landed in Puerto Rico’s uninhabited Mona Island and had to be rescued.
According to the US Coast Guard, the fiscal year that ended September 30 saw state officials apprehend 1,527 Haitians, 838 Cubans and 742 people from the Dominican Republic in the region, which includes Florida and the Caribbean. In January, the Coast Guard searched for at least 38 people missing off Florida’s coast after a suspected human smuggling boat that had left the Bahamas capsized in a storm, with one survivor reported.
Recently, as many as 68 migrants were rescued Saturday along the Mona Passage. One woman believed to be from Haiti died. Earlier this month, CBP detained 60 Haitian migrants that the agency said had traveled through southwest Puerto Rico. On May 4, another 59 Haitian migrants were detained in northwest Puerto Rico. In late March, officials said they detained more than 120 migrants in three separate maritime smuggling incidents.
These marine disasters come amid a surge in seaborne migration on both coasts and expose the hypocrisy of the Democratic Party and the Biden administration, which campaigned on promises for a softer approach to immigration than Trump and Obama. In fact, the Biden administration has upheld and argued in court for the continuation of the most inhumane Trump era immigration policies: pandemic-related border restrictions and the separation of migrant families at the border.
Central responsibility for the crisis in immigration lies with the barbaric and criminal policies of the Biden administration, which has maintained Trump era immigration policies of rejecting asylum cases and repatriating migrants on bogus pandemic-related health restrictions and separating children from their families. More than 20,000 Haitian immigrants have been deported in recent months.
The Democrats have made no serious attempts to rescind the Trump’s Title 42 restriction, a section of the Public Health Service Act that allows the US government to ban noncitizens from entering the country in the interests of public health.
A coalition of Republican-led states have filed a lawsuit against any lifting of the pandemic-related restrictions. Lawyers for the 24 states have argued for a nationwide injunction to maintain the swift expulsion of migrants under the pandemic-related public policy, and a federal judge said he planned to issue an order before the policy is set to be rescinded on May 23.
While Judge Robert R. Summerhays of the US District Court for the Western District of Louisiana has not said explicitly how he would rule, he has previously been supportive of the arguments brought by the states to force Title 42 to remain in place. Scott St. John, Louisiana’s deputy solicitor general, said after the hearing that he was “confident” based on the judge’s comments during the hearing that the states that had sued were “in a good position.”
The reactionary Title 42 measure is in defiance of the health recommendations of public health experts, who have repeatedly argued against the policy and said there is no scientific reason for its implementation. Proper safety precautions make it entirely possible to process asylum seekers at the border without spreading COVID-19 and other communicable diseases. The Biden administration, however, has capitalized on Title 42 and the fascistic politics of the Republican Party to justify the continued rounding-up and expulsion of immigrants while doing nothing to actually confront the pandemic.
On May 9, some 10,000 workers in New Zealand’s public healthcare system began two weeks of work-to-rule industrial action. This limited action includes a ban on all overtime and on working during breaks. The Public Service Association (PSA) members are also preparing to hold a 24-hour strike on Monday May 16, after last minute negotiations failed to avert it.
Nurses march through Wellington during June 9, 2021 strike.
The allied health workers are employed in dozens of professions, including anaesthetic technicians, audiologists, occupational therapists, dental technicians, social workers and physiotherapists, and workers who process COVID-19 tests.
They are demanding increased pay and better conditions, especially safe levels of staffing, and an end to grueling workloads. The PSA has been in contract negotiations with the District Health Boards (DHBs), which manage the public health system, since September 2020. In February, the union rejected an offer of pay increases ranging between $1,800 and $4,200 over a 27-month term—which would not have kept pace with inflation.
The soaring cost of living is driving workers into struggle, as is the case internationally. New Zealand’s annual inflation rate is 6.9 percent, while in the 12 months to March wages on average increased by only 3 percent—in other words, workers have had a pay cut of 3.9 percent.
Many allied health workers earn little more than the minimum wage of $21.20 per hour. A PSA press release last month quoted a sterile services technician, Steve, who had been forced to take on a second job to make ends meet. “There is nothing to encourage us to stay in our work and we are constantly short-staffed due to people leaving for higher-paying jobs at places like Bunnings and KFC,” he said.
A dental assistant, Raewyn, told Stuff that she had been forced to rely on charity to survive. Despite 16 years of experience, she made just $25.50 an hour. “It’s demoralising, it’s demeaning, it’s… embarrassing. It makes me feel like a lower-class citizen… not worthy enough to be paid properly,” she said.
Healthcare has been underfunded and under-resourced for decades, and has been pushed to the breaking point by the COVID-19 pandemic. The Labour Party-led government has lifted most public health restrictions, allowing the virus to spread largely unimpeded. The country’s COVID death toll has soared from 59 at the end of last year to more than 900.
Thousands of people have missed out on essential treatment as hospitals have been flooded with COVID patients, and large numbers of hospital workers have caught the virus. According to official figures, 27,000 people have been waiting longer than four months for surgery—three times the number before the pandemic.
This week, Wellington Hospital reported that it is about 90 percent full on any given day. According to Stuff, “nursing vacancies in Wellington had almost doubled in 12 months, sitting at 450 in March,” or 15 percent of the workforce.
The 10,000 allied health workers had previously voted to hold two 24-hour strikes in March, but the PSA called off the actions after they were banned at the last minute by the Employment Court. The court’s extraordinary intervention pointed to the increasingly anti-democratic measures being used by the state to suppress any movement in the working class against the government’s austerity measures.
The government will once again be relying on the union to limit the impact of the strike as much as possible, if it cannot be called off. The ruling elite undoubtedly fears that a powerful nationwide strike could set an example for other workers in the healthcare sector, and the entire working class, which is being made to bear the burden of the worsening economic crisis.
The unions have worked to keep the allied health workers separate and isolated from parallel disputes involving 30,000 nurses and healthcare workers, who went on strike in June 2021. There is considerable anger among nurses over the government’s so-called “pay equity” deal with the New Zealand Nurses Organisation (NZNO), which does not keep pace with living costs and fails to address the crisis in public hospitals.
Despite the rank-and-file opposition to the agreement, NZNO leader Paul Goulter insisted to Newshub on May 10 that “there won’t be and can’t be any strikes about this.” Instead, the union appealed to the state’s Employment Relations Authority (ERA) to resolve the dispute.
Similarly, in an attempt to call off the May 16 strike, the PSA had urged the DHBs to adopt the recommendations of the ERA, which were made after the cancellation of the strike in March, to settle the dispute. The recommendations have not been made public and PSA members are being kept in the dark about what the union and DHBs are discussing.
PSA organiser Will Matthews told Radio NZ on May 9 that the strike action “can all be called off tomorrow if the DHBs get us an offer today” based on the ERA’s proposal. On Friday, the PSA rejected a last-minute offer from the DHBs, saying it disregarded the ERA’s recommendations.
Matthews told Newshub: “Several Government Ministers have said publicly that they saw a resolution to the dispute through the recommendations of the Authority.” This indicates that the secret proposed deal from the ERA is a sellout that will maintain the government’s austerity measures.
The Socialist Equality Group warns that no confidence can be placed in the trade unions to undertake a real fight for decent wages and conditions. The PSA, having presided over stagnant wages for years, has dragged out the latest pay negotiations for 18 months while preventing workers from fighting back.
The unions have helped to create the unprecedented crisis in hospitals by supporting the Ardern government’s criminal decision to reopen schools and non-essential businesses this year and let COVID-19 tear through the country, killing hundreds of people and making thousands more sick.
The unions represent a well-heeled, middle class bureaucracy, which supports the Labour Party, and is wedded to the capitalist system. The PSA, New Zealand’s largest union, collected over $30 million in revenue last year alone, mostly from membership dues, of which more than $16.5 million was spent on officials’ salaries. The union also owns $22.48 million in shares and bonds. Just $1 million was set aside for an “industrial fund.”
The situation facing workers calls for a rebellion against the unions and the formation of new workers’ organisations, independent of the Labour Party and the whole political establishment. The SEG advocates for building rank-and-file committees in hospitals, laboratories and other healthcare workplaces.
These committees, controlled by workers themselves, would need to forge links with other sections of the working class—in New Zealand and internationally—to organise a political and industrial fight against austerity, and for a fully-resourced policy to eliminate COVID-19 and save thousands of lives.
Sri Lankan President Gotabhaya Rajapakse swore-in Ranil Wickremesinghe as prime minister on Thursday to enforce the International Monetary Fund (IMF) austerity dictates. Wickremesinghe has assumed office after weeks of anti-government protests and strikes fueled by soaring inflation, acute shortages of essential foods, fuel and medicines and lengthy daily power outages.
Sri Lankans protest demanding president Gotabaya Rajakasa resign and decrying the appointment of Prime Minister Ranil Wickeremesinghe in Colombo, Sri Lanka, Friday, May 13, 2022. [AP Photo/Eranga Jayawardena]
Wickremesinghe is now desperately trying to appoint a cabinet and cobble together enough MPs to assemble a parliamentary majority. He is the sole parliamentarian for the United National Party (UNP). His appointment has been opposed by protest leaders and the largest opposition party, the Samagi Jana Balawegaya (SJB), which split from the UNP in 2020.
Wickremesinghe told the media that to return to a nation enjoying three meals per day, we “need help from other countries and institutions such as the IMF.” The next day he held talks with the foreign envoys of India, the United States, China and Japan. Wickremesinghe, who has held the post of prime minister previously, is notorious for his implementation of IMF austerity and his pro-US orientation.
Facing acute foreign shortage shortages, the Central Bank last month declared a temporary default on its huge foreign debt. The previous government, headed by the president’s brother Mahinda Rajapakse, had already initiated talks with the IMF to obtain an emergency bailout loan.
A second-round of discussions at the technical level with the IMF began on Monday. The IMF had insisted earlier that because there is no “debt sustainability” in Sri Lanka, its immediate policy initiatives were crucial to enter into a bailout loan agreement.
Wickremesinghe will have to continue these talks and implement the austerity program outlined by the IMF to obtain any funding. This program includes:
A sharp reduction of the fiscal deficit which rose to 12 percent of the gross domestic product last year.
The further extensive privatisation or commercialisation of state-owned enterprises.
Increases in the Value Added Tax (VAT) and direct taxes and a widening of the tax net. The aim is to double the state revenue proposed from the current 8 percent to 14 percent of GDP.
Fixing fuel prices to reflect the market price of oil and increases to and water tariffs as a step towards transforming the related state-owned bodies into profit-making corporations in preparation for their commercialisation and privatisation.
These measures will translate into deep cuts to state sector jobs, wages and pensions, further increased prices of essentials and the slashing of public services, including education and health care.
Underscoring the draconian nature of the IMF’s demands, former Finance Minister Ali Sabry told parliament on May 4 that the “country’s economy is at a critical level” and warned that “painful reforms lie ahead irrespective of who is in power.”
Sabry claimed that it will take two to three years for Sri Lanka to recover from the economic turmoil. What is taking place in Sri Lanka, however, is simply a very sharp expression of the worsening global crisis of capitalism intensified by the COVID-19 pandemic and now dramatically escalated by the US-NATO proxy war against Russia in Ukraine.
Sabry declared that the country’s usable foreign currency reserves are less than $US50 million—not even sufficient for day-to-day imports. He further indicated the government’s economic measures and austerity budget had to keep in step with “the new ground realities.”
Wickremesinghe’s declaration that he wanted to create the conditions for people to eat three meals a day reflects the depth of the social crisis in Sri Lanka. Many working people are unable to provide enough food for themselves and their families, cannot afford to use public transport and cannot obtain the medicines they need.
The imposition of the IMF measures will not alleviate this immense social disaster but only intensify it.
A Guardian comment on May 9, entitled “Sri Lanka is the first domino to fall in the face of a global debt crisis,” quoted World Bank President David Malpass who referred to the deep crisis facing developing countries. “They are facing sudden price increases for energy, fertiliser and food, and the likelihood of interest rate increases. Each one hits them hard.”
Wickremesinghe has been insisting for months that Sri Lanka had no alternative but to beg for IMF assistance. Speaking to university students in early March, he said: “When the economy collapsed in 1977, we went to the International Monetary Fund and sought their assistance to create an open economy. It was only after [IMF] aid was received that other countries assisted.”
The reference to 1977 is significant. The UNP government of President J.R. Jayawardene was one of the first in the world to turn to the ruthless open market policies espoused by the IMF and international finance capital. It opened the door for foreign investors to exploit cheap Sri Lankan labour and began the process of corporatising and privatising state-owned enterprises. It presided over the destruction of tens of thousands of jobs and the slashing of social subsidies.
These policies generated widespread opposition in the working class which the Jayawardene government ruthlessly suppressed. In 1980, it crushed a public sector general strike by sacking 100,000 employees. As class tensions increased, the UNP resorted to anti-Tamil chauvinism to divide the working class, provoking the protracted communal war against the Tamil minority that killed hundreds of thousands and devastated the island before its bloody conclusion in 2009.
Wickremesinghe was a minister in the Jayawardene government and fully supported its reactionary policies. Forty years later, he has been appointed as prime minister to unleash the IMF program that will devastate the lives of working people in order to defend the profits of big business, foreign investors and creditors. He will not hesitate to use police-state measures against any opposition.
Whether or not Wickremesinghe is able to form a government, the entire political establishment, including the opposition Samagi Jana Balawegaya (SJB) and the Janatha Vimukthi Peramuna (JVP), is committed to this anti working-class agenda.
The SJB, like the UNP, repeatedly called for President Rajapakse to initiate talks the IMF. The JVP in 2004 entered the coalition of President Chandrika Kumaratunga and its ministers helped implement the IMF’s program. Both parties have offered to form an interim government, pending early elections.
Supreme Court justice Samuel Alito’s draft ruling in Dobbs v. Jackson Women’s Health Organization, leaked and published on May 2 in Politico, would abolish the federal right to abortion for 175 million women in all states and US territories, overturning the landmark Roe v. Wade decision in 1973 that recognized abortion as a constitutional right.
The proposed ruling by Alito, who was appointed to the Supreme Court by president George W. Bush in 2005, purports to represent the decision of a majority of the nine justices. Chief Justice John Roberts has confirmed the authenticity of the draft, calling for an investigation to determine who leaked it.
Asserting that the prerogative to prohibit or regulate abortion is being “returned” to the state governments, Alito’s draft decision opens the floodgates not just for state and local laws banning abortion, but for laws prohibiting women from traveling to obtain abortions and laws that would jail doctors, nurses, friends, and family members who “aid or abet” an abortion. At least 13 states have already passed so-called “trigger laws,” designed to go into effect after the Supreme Court hands down its final decision.
Notwithstanding Alito’s invocation of states’ rights, the abolition of the federal constitutional right to abortion would remove the only legal obstacle to Congress passing a federal law banning abortion in all 50 states—not just criminalizing abortions in Florida and Texas, but in California and New York as well. Republican senate minority leader Mitch McConnell already indicated that such a law is “possible.”
The U.S Supreme Court building is seen at dusk in Washington on Oct. 22, 2021. [AP Photo/J. Scott Applewhite]
If the far-right majority on the Supreme Court were to stop there—at abolishing the federal constitutional right to abortion—that would already constitute the most reactionary decision since the Supreme Court’s 1944 Korematsu v. US decision upholding internment camps for Japanese Americans during the Second World War.
But Alito’s draft opinion goes much further. Echoing the phony “originalist” arguments of the late arch-reactionary Supreme Court justice Antonin Scalia—according to which the interpretation must be made according to its supposedly “original,” eighteenth century meaning—Alito’s draft decision goes on to deny the validity of “rights that are not mentioned in the Constitution.”
Virtually all modern civil rights are not “mentioned in the Constitution,” for the simple reason that modern society did not exist when the Bill of Rights was ratified in 1791. However limited and belated, the expansion of constitutional rights in the US—from the aftermath of the American Revolution and Civil War to the period of the Civil Rights movement—took the form of recognizing in the essential principles of the founding documents new implications for democratic rights in modern society.
Alito’s formulas provide a framework not just for dismantling the right to abortion, but for putting all modern civil rights on the chopping block.
1. Alito’s concept of “rights not mentioned in the Constitution.”
To appreciate the reactionary implications of the draft decision, it is necessary first and foremost to address its fundamentally fraudulent claim to “heed” some kind of original historical understanding of the Constitution. For all of Alito’s reverent invocations of “our founding document” and “this Nation’s history and tradition,” the draft decision turns the historical conceptions of democratic rights advanced in the American Revolution and Civil War upside-down.
“The Constitution makes no reference to abortion,” Alito writes. “The Court has long been reluctant to recognize rights not mentioned in the Constitution.” The premise is that rights only exist that are expressly referenced in the Constitution, or which are later (reluctantly) recognized by the Supreme Court. If the Constitution does not expressly mention a right such as abortion, according to Alito, then by default the right does not exist.
This is, in fact, precisely the opposite of the essential and “original” conception of the Constitution, which the American Revolutionaries designed to confer only those specifically enumerated powers on the government that are listed in the Constitution, reserving all rights by default to the people.
American revolutionary James Madison, who drafted the Bill of Rights, was initially opposed to the idea on the grounds that any list of rights would be inherently limiting, and that it would be better to proceed with the conception that all rights are retained by the people except to the extent powers were specifically and necessarily granted to the government.
The Ninth Amendment addressed this concern by providing: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Standing Alito’s logic on its feet, one could just as well argue that abortion is a right that is retained by the people because the Constitution does not expressly grant the government the power to ban it.
At the time of the American Revolution, as a matter of fact, voluntary abortion was generally not penalized before the “quickening,” or the time at which the fetus could be felt to move, after which killing the fetus fell into a vague and indeterminate category of criminal offense located somewhere between a misdemeanor and a murder. (Frederick Engels, in Socialism: Utopian and Scientific, remarked that jurists “cudgeled their brains in vain to discover a rational limit beyond which the killing of the child in its mother’s womb is murder.”)
The American revolutionaries did not alter this legal framework, which they inherited from English common law. It goes without saying that at the time, women did not enjoy anything resembling modern liberty. In addition to the roughly quarter-million women who were enslaved, together with those indentured and bound to labor for landlords and aristocrats, all but the wealthiest women lived under a form of domestic servitude, expected to perform household labor for their entire lives, shut indoors and excluded from public life.
While the revolution radically democratized American society and culture and laid the foundations for great advances in social progress, it would be more than a century before women could vote, and two centuries before the last vestiges of women’s inferior legal status were finally swept out of the legal system.
The authors of the Constitution and Bill of Rights obviously did not have the benefit of the tremendous advances in scientific and medical knowledge that would be made over the intervening centuries, not to mention all the subsequent advances in social practices and human culture in general. Modern medical procedures, and the religious fundamentalist movement to ban them, likewise did not exist.
All this underscores the tendentious, arbitrary, and illegitimate character of Alito’s method, which involves searching the writings of people living in the eighteenth and nineteenth centuries for the meaning of “liberty” for women in twenty-first century American society.
In 1876, for example, eight years after the ratification of the Fourteenth Amendment, chief justice Morrison Waite denied a woman’s application to appear before the Supreme Court, stating that “none but men are permitted to practice before it as attorneys and counselors.” He continued: “This is in accordance with immemorial usage in England, and the law and practice in all the States.” Applying Alito’s method, this historical episode could be cited as definitive proof that the constitutional guarantee of “liberty” was never “intended” to abolish the inferior legal status of women.
Refuting Alito’s phony brand of “originalism” requires only a citation to American revolutionary Thomas Jefferson. In a letter in 1816, Jefferson remarked: “Some men look at Constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human ...”
Laws and institutions, Jefferson continued, “must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace ... we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
Alito’s “originalism,” while it reverently invokes the “founders,” in fact tramples on the memories of the American revolutionaries, whom he conscripts into the roles of “barbarous ancestors,” whose dead hands would block all progress and enlightenment for centuries to come.
2. The legal significance of the Fourteenth Amendment’s guarantee of “liberty”
Alito’s method lacks roots in the Supreme Court’s own traditions of constitutional interpretation.
The police in their modern form, for example, did not exist at the time the Constitution was ratified, and so the word “police” does not appear anywhere in the text of the Constitution or the 1791 Bill of Rights. No powers are expressly conferred on police officers, and no rights are recognized against police officers, for the simple reason that the modern institution of the police—SWAT teams, batons, and tasers—did not exist at the end of the eighteenth century. For the same obvious reason, the Constitution does not mention wiretapping and electronic surveillance.
The police appeared on stage later in American history, in response to the emergence of a powerful labor movement in the late nineteenth and early twentieth centuries. The Supreme Court belatedly (“reluctantly,” to use Alito’s word) recognized rights against the police in the period following their appearance on the historical stage. This process culminated in the right to the famous Miranda warning (“you have a right to remain silent, you have a right to an attorney”) in 1966, together with cases establishing the right against “excessive force,” false arrests, and frame-ups by police in a series of decisions from the 1960s to the 1980s.
None of these rights are expressly and specifically “enumerated” in the Constitution, but notwithstanding this fact, the Supreme Courts of earlier decades recognized them as implicit in the fundamental democratic guarantees contained in the Bill of Rights and Civil War Amendments.
At their best, this category of Supreme Court decisions recognizes the founding documents as containing essential democratic principles that each generation must put into effect under new and unforeseen circumstances, following advances in scientific knowledge and in light of historical experience.
The high-water mark of these conceptions was the period of civil rights reforms lasting from roughly the 1940s to the 1970s, including the period during which Earl Warren, appointed by president Dwight Eisenhower, served as chief justice from 1953 to 1969, known as the Warren Court Era.
This was a period of the post-war boom, a relative and temporary capitalist stabilization in the US in the wake of the devastation of the Second World War. The period was marked by mass civil rights struggles demanding legal equality for women and minorities, a powerful social movement against the war in Vietnam, and the strike wave of the late 1960s and early 1970s. During this period, the Russian Revolution remained a powerful and fresh living memory, which inspired masses of people and gave pause to the reactionaries.
While it has served for the most part as an essentially reactionary institution throughout its history, the Supreme Court during this limited historical window produced a body of democratic jurisprudence that has been a source of bitter disgruntlement for “originalists” and reactionaries ever since.
Instrumental in the concrete development of civil rights law during this period was the text of the 1868 Fourteenth Amendment, passed in the aftermath of the Civil War along with the Thirteenth Amendment, abolishing slavery, and the Fifteenth Amendment, extending the right to vote to former slaves. Together, these amendments effectively overturned the Supreme Court’s notorious Dred Scott decision, which had helped galvanize mass opposition to slavery in the period immediately before the Civil War.
The most important clause of the Fourteenth Amendment provides that state governments may not “deprive any person of life, liberty, or property, without due process of law.” This protection of “liberty” was the key legal mechanism for the entire edifice of civil rights law established by the Supreme Court in the twentieth century.
The Supreme Court, interpreting this clause, indicated that it did not just guarantee the right to formally correct legal procedures (“procedural due process”), but that the term “liberty” necessarily included all fundamental rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” This meaning of the “due process clause” was described as “substantive due process.”
In the twentieth century, the Supreme Court decided that the Fourteenth Amendment had “incorporated” many essential rights and conceptions from the Bill of Rights, such that they could be applied against state governments, including the rights to freedom of speech (1925), freedom of the press (1931), freedom of assembly (1937), free exercise of religion (1940), freedom of expressive association (1958), freedom from unreasonable searches and seizures (1961), freedom from “cruel and unusual punishments” (1962), the right against self-incrimination (1964-66), and the right to a speedy trial (1967), among others.
It was because of this guarantee of “liberty” that the Supreme Court decision in Griswold v. Connecticut (1965) included a right to privacy that prevented a state government from outlawing contraception. In 1973, in Roe v. Wade, as part of this line of cases, the Supreme Court decided that “liberty” included the right to abortion. As recently as 2015, in Obergefell v. Hodges, the Supreme Court determined that it included the right of same-sex couples to marry.
Given this context, Alito’s attack on “unenumerated rights” triggers alarm bells for all of the rights that the Supreme Court recognized under the Fourteenth Amendment’s guarantee of liberty.
3. The Roe v. Wade decision
The language Alito’s uses to denounce the Roe v. Wade decision is remarkable for a Supreme Court justice nominally adhering to the doctrine of stare decisis, which requires deference to prior decisions. “Roe was egregiously wrong from the start,” Alito fumes. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
The landmark Roe v. Wade case was brought on behalf of women led by Norma McCorvey, an unmarried pregnant woman who challenged Texas laws prohibiting doctors from performing abortions except where the woman’s life was in danger. To protect her privacy (and the stigma against “unwed mothers”), McCorvey filed the lawsuit under the fictitious name of “Jane Roe,” a variant on “John Doe.” Henry Wade was the district attorney of the county of Dallas, Texas.
In upholding the constitutional right of “Jane Roe”’s right to abortion, and by extension the right of all women to obtain one, the Supreme Court in Roe v. Wade considered what Alito does not: modern conditions facing women, including a “distressful life and future” for the woman denied an abortion, together with “psychological harm” and the “distress, for all concerned, associated with the unwanted child.”
The Supreme Court reasoned in Roe v. Wade that privacy is a “personal right that can be deemed fundamental or implicit in the concept of ordered liberty.” The decision whether to terminate a pregnancy, the Supreme Court concluded, is under modern conditions a private one—between a woman and her doctor—such that it falls within a woman’s right to privacy and outside the government’s ability to ban it outright.
The Supreme Court concluded: “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
This is the decision and reasoning that Alito arrogantly attacks as “egregiously wrong” and “exceptionally weak.”
4. Alito’s attack on the “workability” of Roe v. Wade
A major theme of Alito’s draft decision is that Roe v. Wade has not proved “workable” in practice.
Alito attacks the Roe v. Wade decision where it is weakest. The 1973 decision did not, contrary to popular misconceptions, uphold the right to abortion as unconditional and absolute.
Writing for the majority in Roe v. Wade, Blackmun actually took up arguments that “the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” Writing for the Supreme Court majority, Blackmun responded: “With this we do not agree.”
Meeting the reactionary advocates of “states’ rights” halfway, Blackmun acknowledged that “some state regulation in areas protected by that right is appropriate” where it is based on “safeguarding health, in maintaining medical standards, and in protecting potential life.”
“The privacy right involved, therefore, cannot be said to be absolute,” Blackmun wrote, rejecting the assertion that “one has an unlimited right to do with one's body as one pleases.” He continued, “The Court has refused to recognize an unlimited right of this kind in the past.”
While it was rooted in important democratic legal conceptions, these compromises gave the partial victory in Roe v. Wade a bitter aftertaste. While it upheld a qualified right to privacy that includes the right to abortion, the Supreme Court declined to strike down all anti-abortion laws in principle. Nor did the Supreme Court strike down anti-abortion laws on the legitimate ground that they constitute an illegal state attempt to impose religious beliefs on the population, which is prohibited by the First Amendment.
This recognition in Roe v. Wade of legitimate “state interests” in the regulation of abortion subsequently prompted decades of trench warfare in American courts, with well-funded reactionary lawyers claiming endlessly and disingenuously that their state’s anti-abortion laws were grounded in the state’s supposedly legitimate concern for “the health of the mother.”
The Supreme Court’s decision in Planned Parenthood v. Casey (1992), which was intended to be a final compromise settlement of this relentless and obnoxious litigation, only made matters worse. The Supreme Court upheld Roe v. Wade, but abandoned privacy as a justification for the ruling, indicating that going forward laws would only be struck down that create an “undue burden” on a woman seeking an abortion of a “nonviable fetus.”
In his draft decision, Alito ridicules these tortured compromises, arguing that as a practical matter these formulations proved arbitrary and inconsistent in practice. What “burdens” were “undue” was a standard that was impossible for different judges to apply with any uniform objectivity, and efforts to define those terms only prompted further litigation as to the meaning of those definitions. Alito cites former chief justice William Rehnquist, who once wrote in a dissent that these terms seem “calculated to perpetuate give-it-a-try litigation.”
Alito attacks five decades of liberal compromises from the right, but the accusation that these frameworks proved “unworkable” is essentially true. These compromises, which may have been intended by the liberal justices to partially secure a democratic right by achieving a stable “settlement” with the reactionaries, only proved in time to be the mechanism for the reactionaries’ efforts to abolish the entire right at issue.
The ”unworkability” of these compromises, contrary to the reactionary conclusion drawn by Alito, underscores why abortion is a right that must be upheld—and can only be upheld—as unconditional, unqualified, and absolute.
5. The right to abortion
The first government in the world to fully recognize the right to abortion was the workers’ government established after the October Revolution in Russia.
The Decree on Abortion, published on November 18, 1920 decriminalized abortion to the fullest extent in any country. It was part of a series of revolutionary decrees freely allowing divorce and decriminalizing homosexuality, which were combined with aggressive efforts to alleviate the burden of household labor on women. Soviet society opened public laundries, kitchens, and nurseries with the aim of freeing women to participate in public life, permitting women to obtain educations, develop professional careers, and participate equally in all aspects of politics and culture.
Trotsky, writing in 1936, characterized these early efforts:
The October revolution honestly fulfilled its obligations in relation to woman. The young government not only gave her all political and legal rights in equality with man, but, what is more important, did all that it could, and in any case incomparably more than any other government ever did, actually to secure her access to all forms of economic and cultural work. …
The revolution made a heroic effort to destroy the so-called “family hearth” – that archaic, stuffy and stagnant institution in which the woman of the toiling classes performs galley labor from childhood to death. The place of the family as a shut-in petty enterprise was to be occupied, according to the plans, by a finished system of social care and accommodation: maternity houses, nurseries, kindergartens, schools, social dining rooms, social laundries, first-aid stations, hospitals, sanatoria, athletic organizations, moving-picture theaters, etc.
Trotsky and the Left Opposition opposed the subsequent efforts by the Stalinists, after they usurped power, to undermine the right to abortion. In The Revolution Betrayed, Trotsky denounced one Stalinist jurist on the highest Soviet court, who stupidly opined that a woman has no right to decline “the joys of motherhood.”
Defending the right to abortion that had been unequivocally recognized in the early period following the October Revolution, Trotsky wrote, “revolutionary power gave women the right to abortion, which in conditions of want and family distress … is one of her most important civil, political and cultural rights.”
This conception of the absolute right to abortion in modern society is linked to the principle of equality, and of a woman’s right to participate equally in civil, political, and cultural life, which in light of human biology as a practical matter in modern society requires free and unrestricted access to reproductive health care.
6. The end of the USSR and collapse of democratic rights in the US
In the postwar period, the Supreme Court, as Alito writes, “reluctantly” recognized an important series of modern civil rights, belatedly taking aim in particular at racial apartheid and the unequal status of women, which persisted well into the second half of the 20th century in America.
While these cases were being argued, American civil rights advocates frequently pointed to the embarrassment that these unequal and discriminatory practices caused to the United States internationally, under conditions where citizens of the Soviet Union had long enjoyed equal legal status regardless of race or sex.
During this period, the Supreme Court ruled segregation unconstitutional in Brown v. Board of Education (1954), going on to strike down Jim Crow laws such as Virginia’s prohibition on interracial marriage in Loving v. Virginia in 1967 (about which an interesting film was recently made).
In addition to Roe v. Wade, in Kirchberg v. Feenstra (decided in the shockingly late year of 1981), the Supreme Court struck down Louisiana’s so-called “head and master” law, which gave the husband unequal control over marital property.
How would Alito’s “originalist” method operate in those cases? “The Constitution does not specifically mention a right to interracial marriage,” Alito would write. “Nor does it say anything about a woman’s right to marital property or the right to attend a desegregated school. Therefore, we must examine eighteenth and nineteenth century attitudes to determine the meaning of the Constitution on these questions.”
The “originalist” school of thought espoused by Alito has its roots in resistance to desegregation. A chief proponent of “originalism” was Ronald Reagan’s rejected Supreme Court nominee Robert Bork, an open opponent of the entire framework of reforms erected in the civil rights period.
The liquidation of the USSR in 1989-1991 removed an important brake on the abrogation of democratic rights in the US. In the 1990s, Supreme Court justice Antonin Scalia, a Regan appointee who revealed himself to be an “originalist” of the same type as Bork, became a rallying point for the efforts to roll back the civil rights reforms.
Scalia, it should be remembered, was confirmed by a unanimous 98-0 vote in the Senate, including current president Joe Biden, who commemorated Scalia as “one of our most influential justices,” to be remembered as “a mentor, dear friend, and a man devoted to his faith and his family.”
Scalia went on to participate in the Supreme Court’s infamous decision in Bush v. Gore, which was instrumental to the theft of the 2000 elections. Applying the same “originalist” method that Alito now employs, the Bush v. Gore decision included the extraordinary formula that an “individual citizen has no federal constitutional right to vote for electors for the President of the United States” independent of the voting procedure the state government imposes, because no such right is specifically enumerated in the Constitution. The Supreme Court halted the counting of votes in Florida, effectively handing the presidency to George W. Bush, who had lost the popular vote.
The period following the stolen election of 2000 was marked by the explosion of US militarism, the establishment of a police-state apparatus under the new Department of Homeland Security, as well as an assault on democratic rights across the board under the framework of the “war on terror,” which was announced in the aftermath of the September 11, 2001 attacks.
Memos circulated in the White House regarding torture practices to be authorized, the American president signed secret death warrants for “terrorists,” and American assassins and kidnappers scoured the globe for victims to abduct, torture and murder. American spies eavesdropped on the private conversations, messages, and internet browsing of millions, and military tribunals were established for the prosecution of so-called “illegal enemy combatants.” These practices escalated under the Bush administration and under the subsequent Democratic administration of Barack Obama.
The Supreme Court, which would have been in any healthy democratic society a key institutional bulwark against the flood of these tyrannical and authoritarian practices, completely failed in its institutional purpose. Its legitimacy shattered by the corrupt 2000 decision installing Bush as president, and increasingly stacked with ultra-right judges, the Supreme Court—including both Democratic and Republican nominees—fully endorsed the “war on terror” that was, in reality, a war on democratic rights.
An unrelenting two decades of assaults on democratic rights paved the way, in the midst of the global coronavirus pandemic, for Donald Trump’s violent coup attempt on January 6, 2021—in which Trump envisioned the Supreme Court reprising its role from 2000, halting the counting of votes and stealing the election in his favor. Announcing his victory on November 4, 2020, Trump told a rally of his supporters. “We’ll be going to the US Supreme Court! We want all voting to stop!”
The six justices that evidently constitute the majority behind Alito’s draft include three Trump appointees: Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch. Two more—Chief Justice John Roberts and Alito—are appointees of George W. Bush, the same president that the Supreme Court installed in a stolen election in 2000. Finally, there is Clarence Thomas, whose wife Virginia “Ginny” Thomas served as a key advisor to Trump and a conduit for the recruitment of far-right extremists into the Trump administration. Clarence Thomas recently voted against allowing the congressional committee investigating the coup attempt to access his wife’s correspondence, in a flagrant breach of judicial ethics.
With this far-right bloc at the helm, the Supreme Court is a massively discredited institution. Over the last 20 months, according to a poll published Friday in the New York Post, respondents expressing “some” or “a lot” of confidence in the Supreme Court plummeted from 70 percent to 51 percent. Those expressing “a lot” of confidence dropped from 20 percent to just 14 percent—or less than one in six Americans.
The Warren Court period, during which the Supreme Court “reluctantly” acknowledged basic democratic rights under specific historical conditions, is an exception to the generally reactionary history of this institution, which, after all, upheld slavery and segregation, resisted the New Deal, signed off on internment camps for Japanese Americans, stole the 2000 elections, and endorsed the Guantanamo Bay military tribunals. Its members are not elected, but are appointed for life through the US Senate, the very existence of which was an anti-democratic concession, and in which today a rural state like Wyoming (population 580,000) is still allocated the same number of votes as California (population 40 million).
This “originalist” school championed by Alito is not a principled or coherent jurisprudential framework. Alito has no problem discovering new constitutional rights for corporations, such as the right to bribe politicians, recognized in the 2010 case of Citizens United v. FEC. It did not trouble Alito and his colleagues that corporations, much less their right to buy off politicians, were not “enumerated” in the Constitution.
Their reverence for the “original” meaning of the Constitution also has not stopped the “originalists” from constantly expanding the reactionary and authoritarian doctrine of “qualified immunity” for police, which provides legal cover for the cops who gun down and asphyxiate over one thousand people on America’s streets every year. Like constitutional rights for corporations, there is no mention of the phrase “qualified immunity” anywhere in the Constitution or Bill of Rights.
For its part, the Democratic Party and its satellites, notwithstanding their feeble protests to the publication of Alito’s draft, offers no perspective for the defense of democratic rights against the far-right assault. The Democratic Party had a half-century within which to codify the right to abortion in federal law, refusing repeatedly to do so while at the same time failing to block nominations that have stacked the Supreme Court with right-wing extremists. Biden, invoking his Catholic background, voted in 1981 for a failed constitutional amendment that would have overturned Roe v. Wade.
Moreover, with its embrace of the 1619 Project, which falsifies and denigrates the genuine democratic legacies of the American Revolution and Civil War, the Democrats have effectively ceded the Constitution to the “originalists,” opening the door for far-right hooligans like Alito to posture as defenders of its “true” and “historical” meaning.
Alito’s declaration of open warfare on civil rights takes place in a specific historical context. This decade opened with the outbreak of the coronavirus pandemic, to which the political establishment in the US responded with callous indifference, preferring to speculate and profiteer on Wall Street rather than prevent hundreds of thousands of deaths.
The largest protests in American history erupted that same year in the wake of the killing of George Floyd. The Trump administration orchestrated a brutal crackdown, mobilizing far-right militias against the protesters that he would go on to use the following year in an attempt to storm the Capitol. The eruption of the US-NATO war with Russia in 2022, together with spiraling inflation, coincides with growing numbers of strikes, demonstrations, and other symptoms of insubordinate moods in the working class internationally which the American ruling class hates and fears.
The Supreme Court is now poised to tear up democratic rights like a collection of corrupt corporate executives who, in a final act of wild desperation, feed all of their files into the office shredder at midnight—getting rid of anything that might be used against them.
But the far-right bloc on the Supreme Court is playing with fire. In 1857, the Supreme Court’s arrogant determination that people of African descent like Dred Scott were “not included, and were not intended to be included” as citizens under the Constitution radicalized anti-slavery sentiment throughout the North, including the views of future president Abraham Lincoln, and helped precipitate the Second American Revolution. That Supreme Court decision was effectively overruled on the battlefields of Gettysburg and Antietam.
The decision to reinstate what amounts to de jure discrimination against 175 million women, a half-century after such discrimination was ruled unconstitutional, will have a similarly radicalizing effect on American society. The reactionary judges on the Supreme Court will find that they cannot so easily, with the stroke of a pen, eliminate rights that have been won in struggle and firmly established in mass consciousness for multiple generations.
For millions of women as well as men in the US, a woman’s right to bodily autonomy is a settled question, and any attempt to turn back the clock will be regarded as outrageous and obscene.
