I’m as thrilled as anyone that the country rejected the GOP’s army of what James Wolcott calls “rape philosophers” and birth-control McCarthyites. But let’s also remember what that means: in the 21st century, one of our two political parties mounted a serious national campaign, and came damn near close to winning, on the basis of a medieval ideology that we thought we had overcome a half-century ago. That we won this battle is good news; that we had to fight it is not.
Social conservatives are targeting the underlying framework of Eisenstadt v. Baird (1972). One of the less well known birth-control Supreme Court cases, Eisenstadt established that unmarried women and men have a right to use birth control. Jonathan Moreno and Francis Killing have a good analysis over at The Nation:
In Liberty and Sexuality, [historian David] Garrow quotes extensively from conservative commentators who claim that Eisenstadt was intended to legitimize sexual liberty and to extend separate the privacy right from marriage and family. Privacy, up to then, was essentially a patriarchal concept with the family as the property of the husband. Limbaugh expresses the same sentiment in cruder ways. Sexually active women who are freed from the fear of pregnancy are “sluts.” Had Sandra Fluke, the 30-year-old single Georgetown Law student, been married, would Limbaugh have ranted that she wanted us to “pay for her to have sex?” We doubt it.
(Just days later Limbaugh wondered about Tracie McMillan who had just won a literary prize: “What is it with all these young single white women? Overeducated doesn’t mean intelligent.”)
Indeed, the opposition to the Affordable Care Act’s no-cost birth control mandate is not actually about contraception or religious freedom but about sexual liberty. Garrow notes that several of the clerks for the Eisenstadt justices suspected sexual freedom was as much a part of the thinking of the justices as was the shadowy penumbra of privacy rights that were explicitly cited. It is about those whose consensual sexual unions are not legitimized by a state or sanctified by a faith. Today more women are simple eschewing marriage or postponing it, as well as postponing childbearing, than ever before, yet a simmering unease about unmarried sex remains.
h/t Sarah Posner
Climbing aboard the anti-birth control bandwagon, the Arizona Senate Judiciary Committee voted 6-2 on Monday to endorse legislation that would: a) give employers the right to deny health insurance coverage to their employees for religious reasons; b) give employers the right to ask their employees whether their birth control prescriptions are for contraception or other purposes (hormone control, for example, or acne treatment).
There are three things to say about this legislation.
The Private Life of Power
First, as I argue in The Reactionary Mind, conservatism is dedicated to defending hierarchies of power against democratic movements from below, particularly in the so-called private spheres of the family and the workplace. Conservatism is a defense of what I call “the private life of power.” Less a protection of privacy or property in the abstract, as many conservatives and libertarians like to claim, conservatism is a defense of the rights of bosses and husbands/fathers.
So it’s no surprise, as I noted in the conclusion of The Reactionary Mind, that the chief agenda items of the GOP since its string of Tea Party victories in 2010 have been to roll back the rights of workers—not just in the public sector, as this piece by Gordon Lafer makes clear, but also in the private sector—and to roll back the reproductive rights of women, as this chart, which Mike Konczal discusses, makes clear. Often, it’s the same Tea Party-controlled states that are pushing both agendas at the same time.
What I hadn’t predicted was that the GOP would be able to come up with a program—in the form of this anti-birth control employer legislation we’re now seeing everywhere—that would combine both agenda items at the same time.
Fear, American Style
Second, in a way, I should have foreseen this fusion because, as I argued in my first book Fear: The History of a Political Idea, in the United States, it has historically fallen to employers rather than the state to police the political opinions and practices of citizens. Focused as we are on the state, we often miss the fact that some of the most intense programs of political indoctrination have not been conducted by the government but have instead been outsourced to the private sector. While less than 200 men and women went to jail for their political beliefs during the McCarthy years, as many as 2 out of every 5 American workers were monitored for their political beliefs.
I’ve spoken about this issue on this blog before—my apologies to the old timers here; unfortunately, this point can’t be repeated enough—but recall this fascinating exchange between an American physician and Tocqueville during the latter’s travels to the United States in the early 1830s. Passing through Baltimore, Tocqueville asked the doctor why so many Americans pretended they were religious when they obviously had “numerous doubts on the subject of dogma.” The doctor replied that the clergy had a lot of power in America, as in Europe. But where the European clergy often acted through or with the help of the state, their American counterparts worked through the making and breaking of private careers.
If a minister, known for his piety, should declare that in his opinion a certain man was an unbeliever, the man’s career would almost certainly be broken. Another example: A doctor is skilful, but has no faith in the Christian religion. However, thanks to his abilities, he obtains a fine practice. No sooner is he introduced into the house than a zealous Christian, a minister or someone else, comes to see the father of the house and says: look out for this man. He will perhaps cure your children, but he will seduce your daughters, or your wife, he is an unbeliever. There, on the other hand, is Mr. So-and-So. As good a doctor as this man, he is at the same time religious. Believe me, trust the health of your family to him. Such counsel is almost always followed.
While all of us rightly value the Bill of Rights, it’s important to note that these amendments are limitations on government action. As a result, the tasks of political repression and coercion can often be—and are—simply outsourced to the private sector. As I wrote in Fear:
There is little mystery as to why civil society can serve as a substitute or supplement to state repression. Civil society is not, on the whole, subject to restrictions like the Bill of Rights. So what the state is forbidden to do, private actors in civil society may execute instead. “If there is any fixed star in our constitutional constellation,” Justice Jackson famously declared, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” But what star in our constitutional constellation forbids newspapers like the New York Times, which refused during the McCarthy years to hire members of the Communist Party, from prescribing such orthodoxy as a condition of employment? What in the Constitution would stop a publisher from telling poet Langston Hughes that it would not issue his Famous Negro Music Makers unless he removed any discussion of Communist singer Paul Robeson? Or stop Little, Brown from refusing to publish best-selling Communist author Howard Fast?
The Sixth Amendment guarantees “in all criminal prosecutions” that the accused shall “have the assistance of counsel for his defence.” But what in the Constitution would prevent attorney Abe Fortas, who would later serve on the Supreme Court, from refusing to represent a party member during the McCarthy years because, in his words, “We have decided that we don’t think we can ever afford to represent anybody that has ever been a Communist?”
The Fifth Amendment stipulates that the government cannot compel an individual to incriminate herself, but it does not forbid private employers from firing anyone invoking its protections before congressional committees. To the extent that our Constitution works against an intrusive state, how can it even authorize the government to regulate these private decisions of civil society? What the liberal state granteth, then, liberal civil society taketh away.
Let’s come back now to the birth control employer question. Thanks to the gains of the feminist movement and Griswold v. Connecticut, we now understand the Constitution to prohibit the government from imposing restrictions on access to birth control. Even most Republicans, I think, accept that. But there’s nothing in the Constitution to stop employers from refusing to provide health insurance coverage for birth control to their employees.
And here’s where the McCarthy specter becomes particularly troubling. Notice the second provision of the Arizona legislation: employers will now have the right to question their employees about what they plan to do with their birth-control prescriptions. Not only is this a violation of the right to privacy—again, not a right our Constitution currently recognizes in the workplace—but it obviously can give employers the necessary information they need to fire an employee. If a women admits to using contraception in order to not get pregnant, there’s nothing in the Constitution to stop an anti-birth control employer from firing her.
During the McCarthy years, here were some of the questions employers asked their employees: What is your opinion of the Marshall Plan? What do you think about Nato? The Korean War? Reconciliation with the Soviet Union? These questions were directly related to US foreign policy, the assumption being that Communist Party members or sympathizers would offer pro-Soviet answers to them (i.e., against Nato and the Korean War). But many of the questions were more domestic in nature: What do you think of civil rights? Do you own Paul Robeson records? What do you think about segregating the Red Cross blood supply? The Communist Party had taken strong positions on civil rights, including desegregating the Red Cross blood supply, and as one questioner put it, “The fact that a person believes in racial equality doesn’t prove that he’s a Communist, but it certainly makes you look twice, doesn’t it? You can’t get away from the fact that racial equality is part of the Communist line.” (Though Ellen Schrecker, from whose book Many Are the Crimes I have taken these examples, points out that many of these questions were posed by government loyalty boards, she also notes that the questions posed by private employers were virtually identical.) The upshot, of course, was that support for civil rights came to be viewed as a Communist position, making public support for civil rights a riskier proposition than it already was.
It’s unclear what the future of Birth Control McCarthyism will be, but anyone who thinks the repressive implications of these bills can be simply brushed aside with vague feints to the religious freedoms of employers—more on this in a moment—is overlooking the long and sordid history of Fear, American Style. Private employers punishing their employees for holding disfavored views or engaging in disapproved practices (disapproved by the employer, that is) is the way a lot of repression happens in this country. And it can have toxic effects, as Liza Love, a witness before the Arizona Senate committee, testified:
“I wouldn’t mind showing my employer my medical records,” Love said. “But there are 10 women behind me that would be ashamed to do so.”
In the debate over the legislation, Arizona Republican Majority Whip Debbie Lesko (also the bill’s author) said, “I believe we live in America. We don’t live in the Soviet Union.” She’s right, though perhaps not in the way she intended: unlike in the Soviet Union, the government here may not be able to punish you simply for holding unorthodox views or engaging in disfavored practices (though the government can certainly find other ways to harass or penalize you, if it wishes). What happens instead is that your employer will do it for the government (or for him or herself). As the president of Barnard College put it during the McCarthy years, “If the colleges take the responsibility to do their own house cleaning, Congress would not feel it has to investigate.”
Third, the standard line from Republicans and some libertarians is that requiring religious or religion-related employers (like the hospitals and universities that are funded by the Catholic Church) to provide health insurance coverage for their employees’ birth control is a violation of their First Amendment rights to religious freedom. The same arguments have come up in Arizona. Just after she made the comparison above between the United States and the Soviet Union, Lesko added:
“So, government should not be telling the organizations or mom and pop employers to do something against their moral beliefs.”
“My whole legislation is about our First Amendment rights and freedom of religion,” Lesko said. “All my bill does is that an employer can opt out of the mandate if they have any religious objections.”
Father John Muir, a priest at the All Saints Catholic Newman Center on the Tempe campus, said the controversial issue is not about birth control, but religious freedom and the First Amendment.
“It’s not about birth control,” Muir said. “It’s about the right to live out your beliefs and principles without inference by the state.”
There are many reasons to be wary of this line of argument, which I won’t get into here. Instead, I’d like to recall some more history.
It’s often forgotten that one of the main catalysts for the rise of the Christian Right was not school prayer or abortion but the defense of Southern private schools that were created in response to desegregation. By 1970, 400,000 white children were attending these “segregation academies.” States like Mississippi gave students tuition grants, and until the Nixon administration overturned the practice, the IRS gave the donors to these schools tax exemptions. And it was none other than Richard Viguerie, founder of the New Right and pioneer of its use of direct-mail tactics, who said that the attack on these public subsidies by the Civil Rights Movement and liberal courts “was the spark that ignited the religious right’s involvement in real politics.”
According to historian Joseph Crespino, whose essay “Civil Rights and the Religious Right” in Rightward Bound:Making American Conservative in the 1970s is must reading, the rise of segregation academies “was often timed exactly with the desegregation of formerly all-white public schools.” Even so, their advocates claimed to be defending religious minorities—and religious beliefs—rather than white supremacy. (Initially nonsectarian, most of these schools became evangelical over time.) Their cause, in other words, was freedom, not inequality—not the freedom of whites to associate with other whites (and thereby lord their status and power over blacks), as the previous generation of massive resisters had foolishly and openly admitted, but the freedom of believers to practice their own embattled religion. It was a shrewd transposition. In one fell swoop, the heirs of slaveholders became the descendants of persecuted Baptists, and Jim Crow a heresy the First Amendment was meant to protect.
So it is today. Rather than openly pursue their agenda of restricting the rights of women, the GOP claims to be defending the rights of religious dissenters. Instead of powerful employers—for that is what many of these Catholic hospitals and universities are—we have persecuted sects.
Knowing the history of the rise of the Christian Right doesn’t resolve this debate, but it certainly does make you look twice, doesn’t it?
Update (March 15, 4:30 pm)
This post got cross-posted at Salon; check out the comments there. In a very smart piece, also at Salon, Irin Carmon looks at the evolution (and continuities) of the GOP position on this issue. Also check out this excellent piece by Sarah Posner, again at Salon, which looks at the contributions of the Democrats to this morass we’re in.
Also, on the question of whether the Arizona law allows employers to fire employees on the basis of whether they use birth control for contraception purposes or not, check out this.
A propos our discussion of libertarianism, birth control, and women’s autonomy, this, from Benjamin Franklin (A Conversation About Slavery), seems relevant:
You Americans make a great Clamour upon every little imaginary Infringement of what you take to be your Liberties; and yet there are no People upon Earth such Enemies to Liberty, such absolute Tyrants, where you have the Opportunity, as you yourselves are.
It’s hardly unprecedented in the American experience for the greatest cries of liberty to be heard among those who would most deny it to others.
*Freedom Is, Freedom Ain’t is the title of a wonderful book about jazz and the civil rights movement by my friend Scott Saul. It’s got no real connection to the theme of this post; I just liked the title and wanted to plug Scott’s book. And plug Scott, too: he’s currently working on a biography of Richard Pryor, which is going to blow your mind. If you want to get a taste of Scott’s writing, check out this essay he did in Book Forum on the Jonestown tragedy in Guyana in 1979. I’ve read it about ten times; every time, I see something in it I hadn’t seen before.
In On the Jewish Question, Marx famously critiques liberal theorists of religious freedom on the grounds that they merely wish to emancipate the state from religion. Assuming—wrongly, it turns out—that the 19th century state, or at least the American state, had indeed been fully emancipated from religion (e.g., there was no official state religion, no specific confessional requirement for the exercise of political rights, etc.), Marx notes that the American people are nevertheless quite religious. This leads him to the observation that “to be politically emancipated from religion is not to be finally and completely emancipated from religion, because political emancipation is not the final and absolute form of human emancipation.” We may be free of religion at the level of the state, but we are not free of it in our everyday life (like most Enlightenment thinkers, Marx thinks of religion as a defect). To be truly free of it, we need to emancipate ourselves from religion, to shift our focus from the state to society itself, to get past the distinction between our public lives and private selves. Not just in matters of religion, as it turns out, but in other areas as well.
President Obama’s recent “compromise” over contraception—where religious-based employers like Catholic universities and hospitals are required to provide insurance coverage that includes free birth control but are not required to pay for it, leaving insurers to eat the costs; churches and other explicitly religious institutions will remain exempt from the provision—makes me wonder if we’re not moving in the reverse direction.
98% of sexually active Catholic women essentially reject the Church’s position on contraception. In this respect at least, society has emancipated itself from religion. Even so, the state allows its policies to be dictated by the Church elders. And judging by the growing Republican discontent with even this compromise, the state’s capitulation to religion and religious sensibilities could get worse. Keep in mind, as Katha Pollitt points out, that we are not talking about isolated sects like the Amish, which don’t depend on all manner of tax subsidies and public monies for their operations; these are large-scale institutions that would not exist in their current form were it not for the state’s ongoing support.
Speaking of conservatives, the birth control debate recently led Mike Konczal back to Ludwig von Mises’ classic 1922 text Socialism. Mises was a pioneering economist of the Austrian School, whose political writings have inspired multiple generations of libertarian activists in America and elsewhere. Mike took a special interest in the fourth chapter of Socialism, “The Social Order and the Family,” in which Mises has some retrograde things to say about women and feminism. This led Mike to conclude prematurely that Mises was against birth control, which he wasn’t, but as I make clear in the comments thread, Mike’s larger point—that Mises was not in favor of women’s sexual autonomy; nor, for that matter, was he in favor of other kinds of autonomy that would free women from the dominion of their husbands—still stands.
All this back and forth about the text prompted Brian Doherty, author of a wonderful history of libertarianism, to waspishly comment that, well, who really gives a shit what Mises may or may not have thought about women and birth control. Libertarians care about liberty; all the rest is commentary.
Mises does go on to address “natural barriers” that socialists want to overturn, and doubtless some of his own personal opinions about what those natural barriers might be would differ from moderns, liberal or conservative, which is exactly why [Konczal’s] entire implied point doesn’t make any sense to begin with. Those concerns are far more matters of opinion, not political philosophy, and in no sense should bind even those who have sworn fealty to Mises’ general views on economics and liberty. (For example, I’m quite the Misesian in most questions of politics and economics, but can imagine an intelligent conservative argument that the “rationalization of the sexual passions” is in some sense harmed by birth control, though not in the specific procreational sense he is addressing specifically.)
But let’s address the larger point, if there is one, besides that atop all of our heads for even talking about this: That polemical points can rightly be earned laying some judgment, whether real or imagined, of an intellectual founding father or influence on a political movement or tendency on to the backs of its younger followers–either to mock them or to insist that, no, this is really what their intellectual mission is: not to promote liberty, but to work for whatever Ludwig Von Mises liked or didn’t like.
It is interesting, for those interested in intellectual history, that Mises saw free love as part of some larger socialist mission to destroy the family. But for the libertarian the relevant question is, is this voluntary or not, does this infringe on anyone’s life, liberty, or property or not? “Anything that’s peaceful,” baby, as Leonard Read, one of Mises’ great popular disciples in America, wrote.
Thus, there’s a libertarian case to be made against forcing anyone to cover any specific medical care, birth control or whatever, in the insurance deals they make with their clients. But it has nothing to do with whether Ludwig von Mises was comfortable with free love, or birth control, or with catheters, or blood transfusions, or any other specific medical procedure that might or might not become a political controversy when the government tried to force people to sell insurance only on the condition that that insurance cover that procedure or medication’s use.
Set aside the strangeness of someone who’s written—for what were obviously more than antiquarian reasons—one of the best intellectual histories of libertarianism, in which Mises plays a not insignificant role, telling us that intellectual history, and Mises’s role in it, doesn’t much matter.
Also set aside Doherty’s declaration by fiat that Mises’s views on women are just “matters of opinion,” which can be discarded as so much ancient prejudice, rather than genuine “political philosophy.” (This chapter on Robert Nozick in Susan Okin’s Justice, Gender, and the Family should make any reasonably literate political writer leery of the notion that a libertarian’s views on women are somehow contingent or incidental and separable from their larger worldview. In Mises’s case, it’s doubly important to remember that he saw his chapter on women as one part of his campaign against socialism, an effort in which he styled himself the lonely leader of a small, heterodox band.
Socialism is the watchword and the catchword of our day. The socialist idea dominates the modern spirit. The masses prove of it. It expresses the thoughts and feelings of all; it has set its seal upon our time. When history comes to tell our story it will write above the chapter “The Epoch of Socialism.”
Mises did not think his views on women were refractions of the age; he thought they were the dissonant wisdom of someone who had thought long and hard, against the dominant view, about such issues. And given that many socialists were making feminist arguments and gaining ground across Europe—Remember Red Vienna? It wasn’t all economics, you know—I’m not sure Mises was entirely wrong in his self-understanding.)
Finally set aside, as one commenter on Mike’s thread pointed out, the fact that many of Mises’s views persist in later libertarian arguments.
The real reason Mises’s arguments about women are so relevant, it seems to me, is that in the course of making them he reveals something larger about the libertarian worldview: libertarianism is not about liberty at all, or at least not about liberty for everyone. In fact, it’s the opposite.
Here’s Mises describing the socialist program of “free love”:
Free love is the socialists’ radical solution for sexual problems. The socialistic society abolishes the economic dependence of woman which results from the fact that woman is dependent on the income of her husband. Man and woman have the same economic rights and the same duties, as far as motherhood does not demand special consideration for the women. Public funds provide for the maintenance and education of the children, which are no longer the affairs of the parents but of society. Thus the relations between the sexes are no longer influenced by social and economic conditions….The family disappears and society is confronted with separate individuals only. Choice in love becomes completely free.
Sounds like a libertarian paradise, right? Society is dissolved into atomistic individuals, obstacles to our free choices are removed, everyone has the same rights and duties. But Mises is not celebrating this ideal; he’s criticizing it. Not because it makes people unfree but because it makes people—specifically, women—free. The problem with liberating women from the constraints of “social and economic conditions” is that…women are liberated from the constraints of social and economic conditions.
Now Doherty will reply, well, that’s just Mises’s view of feminism, who cares, we libertarians stand for freedom. But the underlying logic of Mises’s argument—in which the redistributive state is criticized not for making men and women slaves or equals but for making them free—cannot be so easily contained. It can easily be applied to other realms of social policy—labor unions, universal health care, robust public schools, unemployment benefits, and the like, which the left has always seen as the vital prerequisites of universal freedom—suggesting that the real target of the libertarian critique may be the proposition that Mises articulates here so well: that all men—not just the rich or the well born—and all women will in fact be liberated from the constraints of their “social and economic conditions.”