In case you were wondering why I spent so much time nattering on about Ludwig von Mises’s retrograde views of women—and a great many libertarians did—here’s why: Those views haven’t gone away.
Responding to the Virginia legislation that requires all women seeking an abortion to get an ultrasound—as Dahlia Lithwick points out, because most abortions occur in the first 12 weeks of a pregnancy, most of the women affected by this bill would be forced to have a probe stuck up their vaginas, as that’s how ultrasounds in the first trimester are done—libertarian luminary Tyler Cowen tweeted the following:
All of a sudden requiring consumers to be informed is extremely unpopular on the “pro-regulation side.”
Is Cowen serious? If he is, he’s radically uninformed about the basic facts of biology and women. It’s not like women don’t know what’s going on inside of their uteruses; they are, after all, getting an abortion. Or perhaps Cowen, like many in the anti-abortion movement, thinks women don’t know what they’re doing when they abort their fetuses. Either way, it’s paternalistic.
But ah, my libertarian friends will say, that’s the point: we on the left make similar paternalistic assumptions about consumers all the time. Cowen’s just making a joke to point out our hypocrisy.
But if that’s the joke, it doesn’t quite work. Even if we assume that informing consumers is the purpose of the legislation—all the evidence, as Lithwick points out, suggests that women don’t need the information; nor are their choices influenced by the information when they get it—there’s the tricky matter of the “instruments”: Is the left really in the business of forcing consumers to get information by sticking probes up their various orifices?
Whether he’s serious or not, Cowen’s tweet suggests that when it comes to the specifics of women’s autonomy—not generic autonomy, but women’s autonomy—he doesn’t quite get it. And in not getting it, as I suggested in my post on Mises, he shows that his is not a project of universal liberty.
In response to my Mises piece, several libertarians said to me: Who cares what Mises thought about women? Those are just the views of everyone’s crazy uncle. We care about Mises—if we care about him at all—because of what he said about markets, not women. And today’s libertarian is just not like that.
Well, my friends, sometimes he is.
(h/t Elias Isquith for pointing me to the original Cowen tweet.)
This bit from Lithwick’s piece caught my eye:
During the floor debate on Tuesday, Del. C. Todd Gilbert announced that “in the vast majority of these cases, these [abortions] are matters of lifestyle convenience.” (He has since apologized.) Virginia Democrat Del. David Englin, who opposes the bill, has said Gilbert’s statement “is in line with previous Republican comments on the issue,” recalling one conversation with a GOP lawmaker who told him that women had already made the decision to be “vaginally penetrated when they got pregnant.” (I confirmed with Englin that this quote was accurate.)
That notion “once-probed, always-probed” sounds an awful lot like the notion of implicit sexual consent that dates back to the 18th century and that justified marital rape in this country until the 1980s. As I write in my book:
Until 1980, for example, it was legal in every state in the union for a husband to rape his wife. The justification for this dates back to a 1736 treatise by English jurist Matthew Hale. When a woman marries, Hale argued, she implicitly agrees to give “up herself in this kind [sexually] unto her husband.” Hers is a tacit, if unknowing, consent “which she cannot retract” for the duration of their union. Having once said yes, she can never say no. As late as 1957—during the era of the Warren Court—a standard legal treatise could state, “A man does not commit rape by having sexual intercourse with his lawful wife, even if he does so by force and against her will.” If a woman (or man) tried to write into the marriage contract a requirement that express consent had to be given in order for sex to proceed, judges were bound by common law to ignore or override it. Implicit consent was a structural feature of the contract that neither party could alter. With the exit option of divorce not widely available until the second half of the twentieth century, the marriage contract doomed women to be the sexual servants of their husbands.
Resonances like these are why I sometimes suggest that modern conservatism is just a neoliberal gloss on medieval domination.
Update (February 21, 10:45 am)
Folks have been posting about this issue all weekend. Turns out a lot more libertarian types are willing to go where Cowen goes—and then some. Check out Scott Lemieux’s take on Megan McCardle. And though Dana Loesch is not, as far as I know, a self-identified libertarian, she is quite tight with the Tea Party, which styles itself as libertarian. Here’s what she said (in keeping with the once probed, always probed theme):
LOESCH: That’s the big thing that progressives are trying to say, that it’s rape and so on and so forth. […] There were individuals saying, “Oh what about the Virginia rape? The rapes that, the forced rapes of women who are pregnant?” What? Wait a minute, they had no problem having similar to a trans-vaginal procedure when they engaged in the act that resulted in their pregnancy.