Argument in Limbo (or, a note on the importance of feminism) – Nicholas McGinnis

2016-01-29T12:14:28+00:00March 29th, 2012|Philosophy of Ethics|

It is not usually within the aegis of a philosophy blog to comment on controversies within popular media; but in certain particularly illustrative cases, exceptions can be made. Here we are once again concerned with public policy, expertise, and argument: Sandra Fluke’s.

It might seem late to comment on an story that is already ‘old’ by the hummingbird wing-beats of the news cycle: as the Washington Post reports, advertisers are slowly returning to Limbaugh’s radio show now that the worst of the controversy has abated. The narrative is that Limbaugh’s comments, while perhaps deplorable, were in the end no worse than ‘similar’ remarks made by many of the left—thus packaging the entire affair as a case of liberal and conservative passions boiling over and subsequently exploited by opportunistic and hypocritical leftist apparatchiks aiming to silence a popular radio host on the ‘other side.’

(Bill Maher did, apparently, once call former Alaskan governor and vice-presidential candidate Sarah Palin a slur on stage as part of stand-up performance. I guess that settles it.)

I think this particular way of framing the issue is both false and troubling. In what follows I will give some reasons why this is so. They are basically as follows. First, Limbaugh’s comments (unlike, say, Maher’s) exemplify a certain contempt for truth (and audience) that poisons public discourse: call this ‘dialectical severance.’ Second, the political history of contraceptive access and sexual control looms large here: there is a definite continuity between the moral and legal battles of previous generations that can be found in the discourse and underlying ideology that supports it today (one of the reasons feminist scholarship is so crucial: as Milan Kundera wrote, “the struggle of man against power is the struggle of memory against forgetting.”)

Okay. Let’s give some context.

Georgetown law student Sandra Fluke appeared in unofficial capacity before congress (after an all-male panel officially appeared to offer their ‘expertise’)  to give a very straightforward medical necessity argument against concerns that contraceptive mandates included in the Patient Protection and Affordable Health Care Act would violate the freedom of conscience of religious employers. Writing in the Huffington Post, Cato Institute Senior Fellow Doug Bandow opines that

What makes the contraception (as well as sterilization and abortifacient) mandate especially ominous is the direct assault on basic religious beliefs. Devout Catholics and some fundamentalist Protestants believe contraception to be wrong. I happen to be part of the majority who don’t see such a problem, but that doesn’t matter. People should be forced to violate their deepest moral convictions only for a good reason. Making it cheaper for people, including law students, to have sex is not one.

Fluke’s statement takes this argument on its own grounds: it does not contest that freedom of conscience ought to be prima facie respected. Rather, she argues that it is simply false that the contraceptive mandate exists solely to enable “cheaper sex.” It is to the credit of her argument that she grants her opponent’s basic premise (meanwhile, in my view, I think there are compelling reasons not to accept that religious employers should get to decide what is ‘frivolous’ and what is ‘necessary’ medical coverage). But instead she concedes the point and argues that there are ‘good reasons.’ It is worthwhile quoting her at some length before proceeding:

“A friend of mine, for example, has polycystic ovarian syndrome, and she has to take prescription birth control to stop cysts from growing on her ovaries. Her prescription is technically covered by Georgetown’s insurance because it’s not intended to prevent pregnancy. “Unfortunately, under many religious institutions and insurance plans, it wouldn’t be. There would be no exception for other medical needs. And under Sen. Blunt’s amendment, Sen. Rubio’s bill or Rep. Fortenberry’s bill there’s no requirement that such an exception be made for these medical needs.

“When this exception does exist, these exceptions don’t accomplish their well-intended goals because when you let university administrators or other employers rather than women and their doctors dictate whose medical needs are legitimate and whose are not, women’s health takes a back seat to a bureaucracy focused on policing her body. “In 65% of the cases at our school, our female students were interrogated by insurance representatives and university medical staff about why they needed prescription and whether they were lying about their symptoms. For my friend and 20% of the women in her situation, she never got the insurance company to cover her prescription. Despite verifications of her illness from her doctor, her claim was denied repeatedly on the assumption that she really wanted birth control to prevent pregnancy. She’s gay. So clearly polycystic ovarian syndrome was a much more urgent concern than accidental pregnancy for her.

“After months paying over $100 out-of-pocket, she just couldn’t afford her medication anymore, and she had to stop taking it. I learned about all of this when I walked out of a test and got a message from her that in the middle of the night in her final exam period she’d been in the emergency room. She’d been there all night in just terrible, excruciating pain. She wrote to me, ‘It was so painful I’d woke up thinking I’ve been shot.’ Without her taking the birth control, a massive cyst the size of a tennis ball had grown on her ovary. She had to have surgery to remove her entire ovary as a result. On the morning I was originally scheduled to give this testimony, she was sitting in a doctor’s office, trying to cope with the consequences of this medical catastrophe.

“Since last year’s surgery, she’s been experiencing night sweats and weight gain and other symptoms of early menopause as a result of the removal of her ovary. She’s 32-years-old. As she put it, ‘If my body indeed does enter early menopause, no fertility specialist in the world will be able to help me have my own children. I will have no choice at giving my mother her desperately desired grandbabies simply because the insurance policy that I paid for, totally unsubsidized by my school, wouldn’t cover my prescription for birth control when I needed it.’

Let’s take stock. We have a public policy proposal such that insurance plans would provide coverage for certain forms of contraception, and an objection that religious groups opposed to contraception would have their fundamental beliefs ‘violated’ as a result. The underlying premise seems to be that, barring ‘serious’ reason, the appropriate stance is to regard the assertion of offended religious conviction as prima facie compelling.

What counts as a ‘serious’ reason? Well, if an employer is a Jehovah’s Witness, presumably we would still mandate that blood transfusions be covered by their insurance plan. Fluke’s statement makes precisely this sort of move: contraceptives are medically necessary; they are serious. Failure to provide timely access to affordable medical care has irrevocably altered the life of her friend with polycystic ovarian syndrome. And the notion that women should be interrogated at length about their medical history by their employers to determine whether their medical care is permissible seems an equal violation of privacy and personal liberty, equal in importance to religious freedom of conscience—and moreover the kind of capricious bureaucratic and hierarchical control of health often decried with shouts of ‘death panels.’ Whether or not one finds Fluke convincing, at minimum it is clear that she is providing a definite and serious counter-argument that is relevant to the dialectic at hand.

(Now all this is all over and above the absurdity of religious exemptions from public policy generally—those that are externally directed, anyway. It is one thing to opt out personally. It is another to force other people to acquiesce to your opting out. One would think that acting in public capacity—as an employer, say— requires a certain measure of public attitude. To claim otherwise is to proclaim that any ‘private’ employer is not part of the public sphere of reasons at all, but acts within the realm of a sort of contractually-justified private tyranny, Womens Lowerbody Makeover, Proven Product + Hot Market = 75% Per Sale

com/article/The-Conservative-Mind/130199/”>which is of course the entire impetus behind reactionary politics. But that’s a matter for another post.)

One might think it is a little bit bizarre to be having this kind of conversation in the 21st century. But a conversation it is, however archaic. What happened next, however, was even more distressing: a popular radio demagogue spent several days on air saying, well, let’s just cut to the video—I myself can’t stomach any further repetition of this odious harangue:

As it should be obvious from the contrast with Fluke’s testimony, Limbaugh’s comments not only express hateful contempt for Fluke, they also do so for the very notion that arguments matter (especially those of single, educated women). Fluke’s medical necessity argument is ignored entirely and replaced with a misdescription of the medical facts about birth control coupled with  poisonous hyperbole about Fluke’s alleged sexual promiscuity—which, it need not be said, does not bear on the issue in the slightest. Except when it does: the sexual politics of a patriarchal society are such that the credibility of a woman can be easily destroyed by calling into question her private sexual life. Conformity to a set of pre-defined roles is then pre-requisite to dialectical credibility. Limbaugh’s vitriol did just this: ignored the argument, ignored the facts, and discredited the person on the basis of a radically reactionary view of women’s roles.

So while the controversy and boycott was well-deserved, I have a deep problem with the subsequent ‘horse-trading’ of insults (and, thus, attempts at deflection via tu quoque) and the dominant media narrative that the primary problem with Limbaugh’s comments was that he used a pejorative term to refer to a woman: this simplifies and makes anodyne a long and heinous tirade, one situated in a historical, political and rhetorical context to a single, emotionally charged word (‘slut’) which can be de-contextualized and measured against any other equally de-contextualized assertion ever. Preferably one which can play into political identity retrenchment: the ‘other side’ is just as bad, so the trumped-up ‘controversy’ is just more partisanship.

One could be more charitable and perhaps argue that Limbaugh simply did not understand that Fluke’s argument specifically contended that access to contraceptives was medically significant enough to override conscientious objection (as, e.g.  a blood transfusion would). Thus he merely attempted to underscore the so-called ‘absurdity’ and ‘triviality’ of sexual activity as compared to religious belief with some poorly-chosen ‘humour’ (this is what he attempted to suggest in his apology; in return, a case could be mounted that freedom of choice in sexual activity is a significant good in itself, comparable to religious choice, but that is another matter).

Such a ‘charitable’ reading, apology or not, is not charitable at all to Limbaugh: instead of a reactionary misogynist, it makes him an incompetent and an idiot, commenting on public affairs without the slightest analytical ability (to understand Fluke’s argument) or background knowledge (about hormonal contraception; he argues that Fluke’s quoted birth-control cost implied an abnormally high level of sexual activity, as if hormonal birth control was to be used on a per-act basis—how could a grown man not know this?). Perhaps he is that stupid—or perhaps he knew he could dismiss Fluke easily with some well-chosen invective, knowing his audience agrees with his underlying patriarchal assumptions and that he could always backpedal later.

Thus, as I said earlier, Limbaugh’s comments are particularly distressing as they exemplify an utter contempt for truth (and audience): call this ‘dialectical severance’, the abrupt termination of an argumentative process by refusal to care about truth or inference, typically by the replacement of ‘alethic’ concerns within the dialectic by emotive, histrionic, paternalistic or authoritarian themes. In this case, the severance was deployed in support of very old and unashamedly reactionary attitudes towards women— the very same that were deployed during the battle over the very legality of contraception a generation ago: as a recent article in The Nation notes

But it is [the legal precedent] Eisenstadt—which created the right of unmarried people to use contraception—that social conservatives are now attacking. It is sexual activity by certain groups that is unacceptable. […] Limbaugh … represents the ongoing fear of liberated women, uncontrolled by the civilizing aspect of marriage and husband. In Liberty and Sexuality, 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.

This notion of women as property is still with us and remains, active and resentful, in the minds of many yet, who hope it will return to be enshrined once again into law. It is impossible to understand the current Republican ‘war on women’—and this specific offensive against Fluke and the right of access to contraception—outside the larger historical context of women’s right to sexual autonomy. For some perspective on  how fresh this really is, recall that just over 30 years ago,

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.

The deployment by Limbaugh of a tactic of dialectical severance with regards to Fluke’s argument can only be understood within the context of a very long battle with reactionary forces for domination and control of women’s sexuality. Otherwise the tactic would not have worked. The audience has to agree that a woman’s private sexual activity is relevant to a public discussion and that sexual conduct outside a set of restrictive limits is proper grounds for de-legitimization: from then on, all you need to do is shout ‘whore’ often enough to win. Which is precisely what Limbaugh did.

Limbaugh’s comments were troubling not because they were ‘insulting’ to Fluke, but because they were such a brazen exemplar of patriarchy at work—and, controversy aside, more troubling still is that there is little indication that his core audience was discomfited by his assertions or indeed disagreed at all—and, manifest in this particularly transparent and grotesque form revealed to even the most ‘liberal’ of liberals that, yes, there are some out there who actually work for explicit subjugation, using whatever means necessary, including the week-long defamation of a private citizen appearing before Congress. Here the argument from religious freedom can only be understood as yet another mutation of the very old ‘argument’ for the sexual control of women. And this can be clearly seen from a historical perspective—one afforded particularly well by careful feminist scholarship, which is still relevant and vital today.