By Mike Dorf
My latest Verdict column enters the fray over Rep. Todd Akin's comments about rape and abortion. After briefly delving into the science of traumatic insemination--including links to a picture of a duck penis and a Daily Show segment on bedbug sex--I explain that Akin's comments may be most significant because they undermine a claim that the pro-life movement has been making in various forms for a number of years now: that pro-life = pro-woman. Although I do not use the term "war on women," other commentators have, as have Democratic politicians, seizing on Akin's comments to reinforce a view of the Republican Party as hostile to the interests of women.
Here I want to interrogate the metaphor of a "war on women," using as my point of comparison the claim by FoxNews and other conservative pundits that liberals have been engaged in a "war on Christmas."
We can begin by dividing "war on" usages into two categories: those that have some literal truth and those that are meant purely metaphorically. Both the "war on drugs" and the "war on terror" fall into the former category. The "war on drugs" has used increasingly militarized armed force as a means of attempting (mostly without success) to disrupt the supply of illegal drugs. The "war on terror" is barely a metaphor at all, as it has been used to denote actual military force, albeit supplemented by the curtailment of civil liberties far from any battlefield. The wars on Christmas and women, by contrast, are like the "war on poverty." They are meant entirely as metaphors.
Some metaphors are more apt than others. In the past, I have noted that while I think the notion of a war on Christmas is undoubtedly silly, it reflects real anxiety on the part of religious people that secular types want the religious folk to keep their religion in the closet, as it were. What makes the metaphor inapt, in my view, is its extremity. There is, at most, an insensitivity to the inadvertent hurt caused by justifiable insistence on secularity as a means of promoting equal liberty among citizens.
No doubt social conservatives could argue that the "war on women" is a similarly misguided metaphor. They are not hostile to women, they will say; they simply favor policies--anti-abortion; pro-religious-conscience; etc.--that have the collateral effect of limiting the freedom of some women to do some things they want to do. But, the conservatives will and do say, they do this out of respect for women, or at least out of motives--such as the protection of fetal life--that infringe women's liberty only as a collateral effect. And thus, the argument goes, if the war on Christmas is a misguided metaphor because it mistakes collateral harm for intended harm, then so is the war on women.
There is undoubtedly something right about the foregoing objection. For my part, I dislike martial metaphors generally. But I also think that the (hypothetical) response I have given on the part of social conservatives misses three important disanalogies between the wars on Christmas and the war on women.
First, although one can, in principle, oppose abortion or birth control without bearing any animosity towards women, it is difficult to see how anything other than hostility towards women and their interests could underwrite an effort to make it easier for women to be raped. Perhaps the best thing that can be said in defense of this effort is that it is not an across-the-board effort to redefine down the definition of rape, but only such an effort in the context of abortion. This "defense" would say that the people like Rep. Akin and Rep. Paul Ryan who tried to redefine rape as "forcible" rape in the context of abortion funding are simply doing so as a means of limiting abortion funding because they think abortion unjustifiable in all cases, including when a pregnancy results from rape; however, it is politically impossible to ban abortion funding without a rape exception, so they compromise by defining rape narrowly. I suspect that is in fact what's going on, but this is nonetheless a pretty tepid defense of the claim that the narrow definition of rape is not hostile to women.
Second, religious Christians are not in any sense an oppressed minority. They are a numerical majority of the population with enormous political influence at every level of government. Many of the complaints about "discrimination" against religious Christians in fact complain about the loss of privilege, not disadvantage relative to those of other faiths or no faith. (Props to my former student Caroline Corbin, whose work has noted this point.) By contrast, women are a historically oppressed group. Although they are also a numerical majority, measures of political influence and economic power still show them faring worse than men. Women do live longer on average, to be sure. But it strikes me as nonetheless deeply correct that laws throughout the developed (and much of the developing) world treat discrimination against women as especially problematic. And, to return to the main point, we have greater reason to be concerned about insensitivity to the sensibilities and interests of oppressed groups than we have to be concerned about insensitivity to the sensibilities and interests of dominant groups.
Third, just about any group can feel disrespected by policies adopted without regard to their interests or even with regard to their interests but based on the calculation that some other interest is weightier. So it's a standard defense for the group accused of insensitivity to say something like "we have nothing against you." That defense may or may not be genuine in any particular case, but it is especially weak when the charge is sexism, because of the nature of patriarchy. Sexism can take the form of hatred of women but it often works through solicitude. Or, as the California Supreme Court put the point more poetically in a 1971 case: "The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage."
So bottom line: The charge of a "war on women" is overheated political rhetoric but not as overheated as the charge of a "war on Christmas."