The United States was officially designated a backsliding democracy in late 2021—a full six months before the fall of Roe v. Wade. At the time, journalists warned that such a descent is precisely when “curbs on women’s rights tend to accelerate.” But can a country that has never truly addressed women’s equality ever be a thriving democracy? And are democracies that have abysmal records on gender equity destined to falter? Explore “Women’s Rights and Backsliding Democracies“—a multimedia project comprised of essays, video and podcast programming, presented by Ms., NYU Law’s Birnbaum Women’s Leadership Network and Rewire News Group.
This is an excerpted transcript from a panel discussion that took place on April 14, 2023 in New York City at the NYU School of Law symposium, “Women’s Rights and Backsliding Democracies.” On that date, the state of play for abortion, in particular, was chaotic; multiple rulings were being issued in real-time on mifepristone. So too were state legislatures roiling with controversy, from Tennessee to Florida to Texas.
The panel was moderated by Irin Carmon, senior Correspondent for The Cut covering gender, law and politics. Panelists who participated in the discussion include:
- Chisun Lee: director of the elections and government program at the Brennan Center for Justice
- Ria Tabacco Mar: director of the ACLU’s Women’s Rights Project
- Victoria Nourse: Ralph V. Whitworth professor at Georgetown Law and director of its Center on Congressional Studies
- Dr. Jamilla Perritt: president and CEO of Physicians for Reproductive Health
The full discussion can be heard on our corresponding video link.
Irin Carmon: You could say that opponents of women’s rights actually practice their own form of intersectionality— which is that they realize that these issues are deeply interconnected. And if they can control who can vote, who can make medical decisions, who has autonomy over their lives, if they can inject billions of dollars unaccountably into the political process, if they can rewrite the map literally to favor a minority interest—they will be able to prevail. And, here’s this phrase: We backslide.
There’s another related word: backlash. In listening to the international panel, I was thinking about how attacks on democracy and on women’s rights took place in response to increased autonomy of more people—especially women, but not only women—also Indigenous people and other minorities.
Ways in which people agitating for their progress, or the kinds of wins that we are familiar with as part of the American story, long have been met with this kind of fierce resistance.
If [opponents of women’s rights] can control who can vote, who can make medical decisions, who has autonomy over their lives … they will be able to prevail.Irin Carmon
Chisun Lee: Women’s power as decision makers in the political process does not reflect our numbers or our needs. Who holds legislative or executive office, and whether we do so in critical mass numbers and with agenda-setting authority, obviously matters tremendously to the design, the enactment, the implementation and the enforcement of laws that can help us or harm us. That includes, of course, the power to select the judges who interpret these laws.
Even with significant gains in the past 20 years, women remain vastly under-represented at all levels of elected office. We are more than half of the general population but hold less than one-third of seats in Congress, in state legislatures and in state executive offices; women of color are much more sharply under-represented compared to our numbers in the population. Meanwhile, white men are dramatically over-represented: As of 2020, white men held 62 percent, nearly two-thirds of seats in the House, even though they’re just 30 percent of the general population.
One of the pieces of the equation I look at is campaign finance. The ability to attract or self-finance enormous sums of money is a major factor not just to win elections, but also well before that to be on the radar of party leaders, as someone to recruit, to coach, to put up for primaries. And even after winning, campaign finance power is a prerequisite to being considered by party leaders for legislative leadership positions where you’re able to set the agenda.
The average cost of a U.S. Senate campaign in 2022 was $13 million—a House campaign nearly $2 million. Those are just averages in competitive races. The amounts are much, much more, and generally the bigger fundraiser wins the race in a competitive contest.
It’s not that women can’t raise competitive sums and win and attain legislative leadership—but the hill is much steeper for us. We need to collect money in much smaller increments from many more donors.
Dr. Jamila Perritt: I’m an abortion provider in Washington, D.C., the city that I grew up in, the city that made me, which is intentional, and I lead an organization called Physicians for Reproductive Health. I am frequently the only clinician, the only woman, the only Black woman in many spaces. Every time I open my mouth to speak, I know that it’s an opportunity to transform the world around me but also to radicalize folks in the room in the same ways that I have been in my life.
I’ve always wanted to be a doctor. I don’t ever remember wanting to be anything else. But I also grew up in D.C. and it is nearly impossible to not feel the weight and the specter of politics on your life. It is impossible, truly impossible, to be a young Black girl in D.C. during the war on drugs and not know who was destroying our communities by design. And so for me this connection between medicine and policy has been a necessity.
Something that I was really deeply grateful to hear this morning is an appreciation and acknowledgement and understanding of the role of Black feminism and womanism in this movement, the way that it has been undervalued, under-resourced, and how that is directly related to the moment that we’re in right now. There was also a comment made today that race-bound conditions cannot be changed with race-blind policies.
And so as we move through this panel, I want to offer for you to racialize every single thing that is said. We cannot invoke Black feminism and the organizing from the margins, and then continue to have a conversation in a race-blind way. Those things are misaligned. We are talking about intersectionality. We’re talking about oppression. We’re not talking about identities. We all have a thousand intersecting identities. That is not the point. The point is that some of us experience unique oppressions along those lines of identity and that is the point of leverage when we’re thinking about what solutions look like.
Maybe this is an unpopular opinion, but there is an undeserved allegiance to democracy. This democratic process was not written with me in mind, so the ideas that me, my community, the folks that I love and care for in the city that I grew up in, in the community that I serve, would then hold democracy and the democratic process in such high esteem to me is a foreign notion and is deluded. And so we also have a lot of work to do to understand how we can engage many communities in conversation about the backsliding of democracy. Is it a backslide if it never belonged to you? How can you lose what you never had? That is the question I brought to the stage with me—to think about what it means to create a new system.
It is truly impossible to be a young Black girl in D.C. during the war on drugs and not know who was destroying our communities by design. … Is it a backslide if it never belonged to you?Dr. Jamila Perritt
Ria Tabacco Mar: Thinking about the connection between the founder of the program I lead, Ruth Bader Ginsburg, and the political process: One of RBG’s most famous quotes was in response to the question, “When will there be enough women on the Supreme Court?” And we all know she said, “When there are nine.” There have been 116 justices on the Supreme Court and 108 of them have been white men.
Since you did ask me to talk not just about the Court and abortion, I want to dive in on pregnancy, because we did have a major legislative victory last year, the passage of the Pregnant Workers Fairness Act. It is a really big deal, the first federal law that protects pregnancy since 1978.
What is interesting to me about the Pregnant Workers Fairness Act is it’s the first time we’ve seen Congress address pregnancy from an equity perspective and not just from an equality frame. Before the Pregnant Workers Fairness Act, we had the Pregnancy Discrimination Act of 1978, which essentially told employers you can’t treat pregnant workers worse than you treat anyone else. You were still, however, free to treat everyone poorly—and if we know anything about this country, it’s that those in power will destroy public goods rather than share them with anyone.
The Pregnant Workers Fairness Act adopted an equity frame in the sense that it requires employers to actually ask what do pregnant workers need to be able to keep working—and in most cases they’re now going to have to provide that. In some ways, this got buried in the terrible news of 2022 and I want to lift it up because when we talk about abortion, we also have to address pregnancy. We have to normalize pregnancy. We have to normalize the fact that pregnant people work and parent and do all kinds of things. We vote. We could sit on the Supreme Court. Let’s have a pregnant justice! The Pregnant Workers Fairness Act in some ways has been a fight since 1978 but really coalesced in the last decade or so.
I don’t think it’s a coincidence that it finally passed in the same year we got the Dobbs decision, and maybe it’s because we’re talking about pregnancy. Maybe it’s because some folks felt guilty that if we’re going to force somebody to continue a pregnancy, we can’t also force them out of a job. Maybe it was just that folks who support reproductive autonomy felt like they had to stand up and actually do something to support pregnant workers and this was the thing that advocates said is going to be critical, particularly for low-wage workers, particularly for Black workers, particularly for people who are in the kinds of jobs where they can and routinely are denied things like the ability to carry a water bottle with them at work, the ability to sit down on a stool when working behind the cash register. These are the kinds of accommodations we’re talking about, and these are the kinds of accommodations that employers in America have had the legal right to simply deny to everyone.
When we talk about abortion, we also have to address pregnancy. We have to normalize pregnancy. We have to normalize the fact that pregnant people work and parent and do all kinds of things. We vote. We could sit on the Supreme Court.Ria Tabacco Mar
Victoria Nourse: My very depressing take is that authoritarianism thrives on violence. I knew based on my work on the methods that Dobbs was going to come down the way it would. And I agree entirely with Dr. Perritt that lawyers idealize democracy in a way we shouldn’t.
There’s a connection between an authoritarian idea of the presidency and the power of the elite on the Supreme Court. We need the rule of law. We need an honest Supreme Court but Sen. Sheldon Whitehouse (D-R.I.), if he were here, would say it has been bought—and bought based on a theory that I believe is at its core anti-democratic. So, I think we need to fight on all fronts.
Irin Carmon: I want to engage in a conversation that plays off something Dr. Perritt said: “How did we get here? What were some of the mistakes that were made and how in this particular era can people with the values of democracy, or at least political participation, equality, gender justice, how can we avoid making these mistakes again?”
Jamila Perritt: We often conflate unity and uniformity. The idea that if we had more women on the Supreme Court or more women in power or more women in leadership that it would necessarily mean that we were moving toward a more equitable world. I take issue with that. We’ve seen the election results. We saw how white women voted. The idea that I should put my faith in that as an opportunity for change does not ring true for me. When we think about mistakes, not just mistakes but what a way forward looks like, for me it is deeply disconnecting that conflation.
That is why we are in theory a movement—not because we are all the same, doing the same thing, coming from the same place, going in the same direction. As Loretta Ross told me, that’s a cult. A movement is people who are approaching the work from different angles, who are showing up in different ways, with different experiences, but our end goal, our North Star, is the same. I don’t know how convinced I am that everybody’s North Star is the same, but I do think if we can align ourselves around this goal, understanding what liberation looks like, I think that brings us closer.
White supremacy is good at doing a number of things. We often think about in terms of the impact on Black folks and folks of color in particular, but it has a deep impact on everybody. One of the greatest challenges and problems that white supremacy has created, is it has robbed people of their imagination. You can’t even dream of a world that looks like anything other than the one where you remain at the top.
Victoria Nourse: There’s an old saying on Capitol Hill, “Liberals eat their own.” I have no faith that women who are not aligned on an intersectional basis are going to do anything. Look at the votes. But I do think we have to align with men who understand our vision. I think we need to know who our allies are.
Democracy is like a boat—one with a hole in the bottom built on slavery—and you’ve got to constantly keep reconstructing that while it is sailing. The Constitution, it’s not a democratic Constitution. Look at the U.S. Senate. We’ve made the mistake of pinning too much faith on the Supreme Court. (I love RBG but she was a dissenter, people, a dissenter!). The Supreme Court does not control democracy. Democracy has often roared back.
Ria Tabacco Mar: I am going to offer a much more literal answer to the question. I’m bringing it back to the Court’s decision in Shelby County [v. Holder], the elimination of the preclearance provision of the Voting Rights Act. To be clear, this idea of the backslide, it’s not just that those who seek to constrain and shrink democracy see the connection between patriarchy and non-representative government. Rather that is the whole point.
The whole point of ending pre-clearance—and blessing ever greater restrictions on the ability to vote, greenlighting partisan gerrymandering, all of that—was to get us to this moment where we would have these profoundly undemocratic state governments that we could then say are going to have the ability to decide about abortion. We’re going to give that decision back to the very states that we have gerrymandered and allowed to be so unrepresentative.
Irin Carmon: Happy anniversary, 10 years since Shelby County. It’s also 10 years since Mississippi voted simultaneously on ballot measures for fetal personhood and voter ID. The fetal personhood measure failed and voter ID passed, and Mississippi of course goes on to pass the law that overturns Roe. It took less than 10 years.
I know there were many people who fought hard to stop it and noted the inability of these campaigns to work together. It was one nail in the coffin—and there were many nails—but I think about the moment where they happened to be on the same ballot, and what could have been. How can we avoid making the same mistake again?
Chisun Lee: I’m going to drill down into a microcosm building on what Dr. Perritt was really opening us with: an advocacy campaign in New York State.
In 2020, we got a law passed to create a public campaign financing program for state legislative and executive offices, and it is currently in effect for the 2024 state legislative cycle. In a nutshell, public campaign financing is a voluntary program where the small contributions from constituents will be multiplied by a match of public money to candidates who choose to participate in this program.
The coalition that won this law against a powerful incumbency was multi-issue and multi-racial. What seemed a very obscure issue—campaign finance and public financing—brought together heads of reproductive rights groups, criminal justice reform groups, major labor unions, who came to see it as a primary issue because it is a reform that will open up the political process to more of us, to community leaders.
Jamila Perritt: I love this conversation about systems. I think that we spend a lot of time thinking about individual bad actors. We can point to Trump. We can point to Kavanaugh. We can point to these individuals but they flourish only because they are enabled by a system that occurs—and when we think about the origins story of reproductive justice in particular, we know that it was designed and the intent behind it was for community organizing that would lead to public policy change. And that’s exactly what you’re talking about now. So, when we think about this mistake in this moment around abortion in particular, it is in fact the primacy of abortion in the reproductive rights movement that has allowed the system to continue.
Victoria Nourse: If you’re interested in gender and race work, that’s democracy work. And democracy work is race and gender work. So, I am heartened to hear what’s happening in New York and also developments with ranked-choice voting, which is how we had the first Native American Congresswoman elected from Alaska.
Irin Carmon: Change the system. I’m glad you organically came to what I wanted to conclude with: What gives you all hope?
Jamila Perritt: Young people give me so much hope! They are bold and brave and do all the things and will push and pull.
Do you want to build power? Yes, we should build power in community, but power is like pie, and so, you have to give up some of your slice in order to make sure that other folks have it and that’s what young people are calling for. That’s what they’re demanding in a way that is braver than I have seen in generations and I’m here for all of that.
Ria Tabacco Mar: I’m jumping in to say “we” give me hope! All of us give me hope. We actually have made progress as much as we see this backslide. Nothing absolves us of the moral duty to keep trying and to keep pushing forward and that’s what we’re all doing in this room.
Chisun Lee: It’s hard to imagine one person can do anything big in a lifetime to move the needle by themselves. I do think that we need to create and find our connections and communities.
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