What do the NFL and Trump’s Birth Control Mandate Have in Common? Fear, American Style

The Wall Street Journal reports that the NFL may adopt a policy to force football players to stand for the national anthem as a condition of employment.

It’s worth recalling that as a matter of constitutional right, a six-year-old student in this country cannot be required to stand for the Pledge of Allegiance or the national anthem. But a grown man or woman can be forced by their employer to do so. That should tell you something about the state of rights in the workplace. A state-run institution like the public school cannot stop you from sitting down during the pledge, but a private employer can.

The one factor that may stop the NFL from forcing the players to stand up during the national anthem? The players have a union.

It’s not just the NFL that’s confronting this issue of workplace rights. Late last week, the Trump administration decided to get rid of the birth control employer mandate. Employers now have the right, as a matter of religious freedom, to deny their workers insurance coverage for birth control. (Prior to this announcement, more than 50 million women had access to such coverage.)

As is true of the pledge and the national anthem, the state can’t deny you the right to use your insurance to buy birth control. Your employer can.

I wrote a long piece about that a few years ago: “Birth Control McCarthyism,” I called it. I charted there the long history of private coercion in this country, and how the right transposed that coercion into a matter of religious freedom.

Here it is in full:

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).

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 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.

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 fewer than 200 men and women went to jail for their political beliefs during the McCarthy years, as many as two out of every five American workers were monitored for their political beliefs.

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 U.S. 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.”

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, but the history of the Christian right provides perhaps the most important one of all. 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 America 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?


  1. Chris Morlock October 11, 2017 at 10:39 am | #

    There are similarities for sure. Also of note is the sudden silence of those on the right who have, of late, become the champions of free speech. Apparently nothing has domain over private ownership, however, and the bill of rights does not apply to the “boss” and “worker” dynamic. Another plain example of how simple truths brought up by conservatives only run skin deep. The government must be limited, but never the plantation owner.

  2. Geistesgeschichte October 11, 2017 at 4:26 pm | #

    What they have in common is Jeff Sessions and the ADF. If you were to make inquiries at the numerous “Christian colleges” involved in ADF and Beckett Fund’s litigation against the “contraceptive mandate” in Obamacare you would find some of their campuses have been or are currently involved in testing other “religious freedoms.” E.g., barring LGBTQ students from applying, barring employees from being or be/coming out as LGBTQ, and barring female employees from using (or their families using) certain prohibited contraceptive and reproductive products and services.

  3. Debra Cooper October 12, 2017 at 3:13 am | #

    You are right. The Bill of Rights applies not to private actions but to only actions by the state. I really appreciate your analysis of how employers have been the default mechanism for enforcement of conservative norms.

    Personally the right of an employer to impose his so called religious views on his employees who do not share those views is feudalistic. Employees have religious freedom as well and have the right to decide how to live their lives. Imposing yourself on your employees is not religious freedom but religious tyranny.

    But this statement of yours baffles me.

    “As is true of the pledge and the national anthem, the state can’t deny you the right to use your insurance to buy birth control. Your employer can.”

    The state or rather, at my last look, 26-28 states do forbid insurance companies to provide coverage for an abortion. And while they may not now forbid coverage for birth control, those states could do so in the future. Because something seems outrageous doesn’t mean the right has any hesitation to proceed.

    New York has the opposite. We mandate insurance coverage for abortion. This was done through a ruling by the Dept of Financial Services which regulates the insurance industry.

  4. Debra Cooper October 12, 2017 at 3:27 am | #

    i want to amend what I wrote about the DFS ruling. It also mandates contraceptive coverage as of January 2017.

    There is also a bill, introduced by AG Schneiderman, called the Comprehensive Contraception Coverage Act which is meant as bulwark to replace the birth comtrol mandate in the ACA. It has passed the Assembly, but not passed the NY State Senate because access to the floor is controlled by the Republicans due to a coalition with the 8 member IDC, the Independent Democratic Caucus.

    The state can give and it can take.

    The right can exploit the private arena through private actors like employers. You are right to highlight the role of unions as a countervailing force.


  5. mark October 12, 2017 at 5:20 am | #

    If I remember my Cambridge Companion to Edmund Burke correctly, Burke saw commercial society as unable to create a nobility or a clergy, both of which had been given to commercial society from its antecedent feudal society, with the idea that feudal culture is necessary to provide manners in a commercial age having been taken by Burke from Robertson and Ferguson.

    Hence Burke’s blaming of Adam Smith and his philosophe friends for the start of the French Revolution.

    Since the crash of 2008 (and the fall of the USSR) it feels to me in both the US and the UK the discourse which linked Conservatism to capitalism is much less secure, so a retreat to a language of values is being attempted by a Conservative elite while it attempts to repair that cleavage.

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