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Birth Control McCarthyism

[ 30 ] March 15, 2012 |

Corey Robin has a very important post placing the rise of anti-birth control legislation within the context of the right to privacy and corporate control over our bodies and lives. Essentially, Robin’s argument here is that while Americans may be “free” in the sense that the state itself does not punish individuals for private beliefs and transgressions, under Republican rule, the state opens the door for employers to do the very same thing, as we are seeing with the tying of employer-provided health insurance and contraception.

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.

….

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.”

Frightening.

Comments (30)

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  1. Dirty Davey says:

    What I have not figured out about this Arizona law–it seems impossible for the employer to know whether contraception has been prescribed without a violation of current privacy laws (HIPAA in particular). Does the Arizona law presume that these existing laws can be ignored? Or is the presumption that the enforcement mechanism will be entirely via the insurance company and blinded to the actual employer?

    • Katya says:

      If I read the law right, the employer can instruct the insurance company not to cover birth control unless it is prescribed for non-contraceptive reasons, so there wouldn’t be a HIPAA violation.

      • efgoldman says:

        …the employer can instruct the insurance company not to cover birth control…

        Maybe. But the insurance company can’t tell the employer who tried to get a prescription for what.

        Supremacy clause, y’all.

  2. Katya says:

    “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.”

    I’m not ashamed of my medical records, and I would totally mind showing them to my employer. I absolutely object to the idea that if you don’t have anything to hide, you don’t mind other people looking. My privacy is valuable to me in itself, not merely as a means of concealing my deep, dark secrets.

    • Holden Pattern says:

      What, you don’t want to live in a Panopticon with various J. Edgars and pecksniffs acting the role of warden? You think that would somehow be threatening to your autonomy and the integrity of your personhood?

      Why do you hate America?

  3. Freedom for a boss is more important than freedom for 500 employees because a boss is inherently better.

  4. Rob says:

    In the real world women will more likely get fired for going off birth control because, hey no maternity leave!

    • catclub says:

      I also thought of this. This is the MUCH more likely result for most employers. I think Johnson batteries was made famous in the Supreme court on this issue.

      The operative phrase above is ‘real world’.

      Perhaps they are doing this on purpose, so that employers that used to be able to discriminate against women who _might_ get pregnant, will be again.

      If they are, it is very subtle.

  5. rea says:

    Note, too, that once there is a law in place allowing the employer to exercise its “conscience” in this way, the next step will be organized pressure on the employer to do so. “Boycott Acme–it employs sluts!”

  6. Steve LaBonne says:

    Excuse me, when does the next shuttle back to the 21st Century arrive?

  7. Davis says:

    Hey, here’s an idea. Let’s go back to company housing and company stores taking company money. Freedom! If you don’t like it, find another job.

  8. Davis X. Machina says:

    In the peculiarly crabbed version of libertarianism known as ‘libertarianism’, only coercion applied by state actors is actually coercion.

    Coercion appplied by other actors is called ‘freedom’.

  9. The logical thing here is to turn the argument around. If employers can fire you for using contraception, they can also fire you for NOT using contraception. And it seems to be in an employers interest to NOT have its female employees pregnant and racking up all that maternity leave and baby-birthing expenses.

    Just make THAT argument to Arizona legislators and see how fast this thing dies.

  10. Sebastian Dangerfield says:

    It just occurs to me that there is another ugly flipside to the mandatory disclosure as to whether or not one is using birth control as birth control. It doesn’t just give wingnut employers an opportunity to fire women for having non-procreative sex, it provides employers who are inclined toward pregnancy discrimination (which seems to me a larger group) with information from which they can determine which women are less likely to get pregnant so as to discriminate against against those who are less unlikely to get pregnant (i.e., those who aren’t getting birth control for any reason).

    • BigHank53 says:

      The far-right nutjobs have been fondling the idea of a “religious exemption” to obeying laws that contradict personal religious beliefs, and the birth-control debate is an attempt to get that camel’s nose into the tent. Please note that under such a religious exemption a business person wouldn’t have to employ or serve people who bear the mark of Cain, for example. Or Christ-killers. Or observe child abuse laws, or child labor laws, or age of consent laws.

      • Holden Pattern says:

        And would be eligible for government contracts paid for by our tax dollars. Which I find immoral, but since I don’t believe in the psychopath that the Christowingnuts do, my morality doesn’t count.

    • kerry says:

      Or maybe this is just the first step. Next step is rolling back laws against pregnancy discrimination. Then employers can fire women for using birth control, and also for getting pregnant. End result – no more women employees at all. Which of course is what they really want.

  11. El Cid says:

    I don’t know what you’re all whining about — we were all much better off when we lived in the company housing and shopped at the company store with scrip and the mill managers would tell the owners who was attending company church and who wasn’t.

    We didn’t worry about all this “privacy” back then, or, at least, we were vulnerable to threats of being thrown out of the only choice we had to survive and going back to starving on sharecropping failures.

    It was great, and if more of us lived like that today, we’d appreciate Freedom more.

    • rea says:

      People lived longer then, what with the employers’ primary lien rights.

      Saint Peter don’t you call me ’cause I can’t go
      I owe my soul to the company store

  12. muddy says:

    I think this rash of silly laws will make people eager for Medicare-For-All, leaving employers and their “beliefs” right out of it.

    • Njorl says:

      A lot of employers would probably be relieved. I think it is only corporate class loyalty which stops many corporations from lobbying for universal government healthcare. You never know when you’re going to need the healthcare and insurance industries to help you ram through some awful deregulation bill.

  13. Brian says:

    Fortunately, the AZ law won’t affect many people even if passed. It’s a clear violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees. If an employer covered by Title VII tried to raise the AZ law as a defense to its conduct, the Supremacy Clause of the Constitution would dispose of that nicely.

    Doesn’t mean the R’s in the AZ legislature aren’t disgusting, of course.

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