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