In their recent and compelling contribution to the LPE blog, Amna Akbar, Sameer Ashar, and Jocelyn Simonson push us to consider how a left political agenda ought to be crafted. They aim to give specific content to Jedediah’s Purdy’s observation that the Constitution’s core principles have been interpreted to entrench current power structures, thus undermining progressive efforts at redistribution. And, they seek to provide a path for those who agree when Sam Moyn claims that it is not courts but legislatures that will help realize a progressive vision. But how? The answer, they argue lies in turning to social movements. A left legal agenda must, they argue, “be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces.”
The idea that social movements should be central to progressive agendas is appealing; I respond with two questions that aim to push this discussion further. First, it is important to explicitly consider what constitutes a social movement – which voices rise to the top, who sets the agenda, and who garners resources? These questions emerge from my own work on legal reform efforts by feminist social movements where the question of who can speak for women, how left legal activism ought to take shape, and what redistributive goals should take priority over others has splintered feminist organizations and has had material consequences, often negative, on the lives of very girls and women they purport to support. Second, and relatedly, legal realism teaches us that law exists in the foreground and background to shape our capacity to bargain, strategize, and organize. I wonder how lawyers and legal strategy constitute the redistributive imagination of left organizations?
To respond to the first question, I’ll turn to the reproductive rights movement, which is often referenced in progressive reflections on law reform. The movement serves as a useful example of how an expert-based, elite lawyering and litigation model of social reform can generate tensions within a movement and, eventually, spark sub or parallel movements.
Possibilities for redistribution through courts in the context of reproductive rights litigation died early. Take the 1977 Supreme Court case Maher v Roe. The Plaintiff in the case challenged a Connecticut law that banned use of Medicaid funds for non-medically necessary abortions. The court held that a state is not obligated to pay for non-medically necessary abortions simply because it paid for pregnancy related services. In other words, Connecticut was under no obligation to pay for the abortions of poor women because the ban was rationally related to the “’strong and legitimate interest in encouraging normal childbirth.’”
The anti-redistribution element of this decision was further emphasized with the 1980 case Harris v. McRae which relied on Maher. The Plaintiffs sought to challenge the application of the Hyde Amendment – the ban on federal funds to reimburse the cost of abortions under Medicaid. In finding that the Hyde Amendment served a rational governmental purpose – to preserve the life of the fetus – the Court held that states participating in the Medicaid program are not obligated to fund those medically-necessary abortions where federal monies are not permitted for reimbursement. In doing so, the court explained that as articulated in Maher
Although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category. The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.
In other words, the government does not cause poverty, women are poor of their own making. When a woman is poor of her own making, the government has no obligation to pay for her abortion.
Despite these early signs that redistributive possibilities (i.e. access to abortion for poor women) would likely be unsuccessful, lawyers pushed forward. Constitutional litigation became synonymous with reproductive rights advocacy. While it was necessary to fight constitutional battles in court, new feminist movement actors, many of whom felt that a lawyering strategy focused on abstract concepts like choice or privacy would not increase access to relevant health services, developed new strategies for left lawyering.
One site of this, that I am documenting in my forthcoming book, was through AIDS organizing. In the late 1980s, women’s advocates, including lawyers, borrowed from the strategies of the powerful AIDS activist group, ACT-UP, and drew on their own organizing experience to disrupt, call-out, and alter administrative rules that were impeding access to benefits for people diagnosed with AIDS. By the early 1990s, women’s health advocates came together with a new goal of rewriting the script on reproductive health organizing. Turning towards socio-economic, racial, and legal drivers of poor health (i.e. immigration, employment, and criminal law), a sub-set of feminists working on women’s health founded the reproductive justice movement. It was a direct challenge to the abstract constitutional doctrines that were disconnected from the lives of poor women and women of color. On one hand, AIDS and reproductive justice advocates have been successful in changing the larger movement: almost all reproductive rights organizations have adopted the language of reproductive justice and at least acknowledge issues of race and class. Yet, the pull towards mainstream issues and constitutional doctrine prevails. In turn, issues like HIV that continue to disproportionately impact largely poor, Black, and Latina women are left off of the mainstream reproductive rights agenda.
This prompts my second question – what is the role of law in shaping how social movements imagine a redistributive agenda? Akbar, Ashar, and Simonson’s blog post suggests that the answer is in the background rules that produce particular social conditions, and, that while invisible in spaces of “formal legal and elite academic spaces” are obvious to those whose lives are structured by them. This might be best illustrated by the lives of the Black and Latina women living with AIDS in the late 1980s and early 1990s in Bedford Women’s Prison who went undiagnosed due to federal agency definitions of AIDS that excluded gynecological illnesses. They inspired a movement to alter a complex set of administrative rules that would allow women to be tested and diagnosed – with protest and litigation. Yet their struggle remained relegated to the sidelines in the broader push for reproductive rights.
As Aziz Rana argues on this blog, a radical democratic agenda requires the recognition that American constitutionalism is tied to a specific type of racial capitalism. Akbar, Ashar, and Simonson take this one step further in beginning to articulate what making a radical agenda should look like by turning our attention to social movements. Yet many questions remain when social movements themselves reproduce legal hierarchies. The history of feminist organizing teaches us this much.