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Liberty for Women: Freedom and Feminism in the Twenty-first
Century, by Wendy McElroy, ed. Ivan R. Dee, 2002. 353
pages.
Freedom, Not Protection
by Bettina Bien Greaves
Wendy McElroy knows a lot about the struggle of women to
remove legal obstacles to their freedom. She is a libertarian, an individualist
feminist (ifeminist), and has written extensively on the history of women's
struggle for rights, as well as on such provocative subjects as sex, rape,
prostitution, birth control, abortion, and pornography. In "Freedom and
Feminism," she has assembled a number of carefully chosen papers by authors from
widely varied backgrounds, ranging from law professors and economists to a former
call girl and a midwife. Each contributor discusses how best to enhance and
protect the freedom and rights of women.
| | Bettina
Bien Greaves is co-compiler of "Mises: An Annotated Bibliography."
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Women were legally discriminated against for centuries. For all practical
purposes, however, they now enjoy equality under law — at least in the
United States. They may own property, make contracts, vote, and engage in almost
any peaceful pursuit they wish. Yet radical feminists of the so-called "women's
movement" and the National Organization for Women (NOW) are not satisfied. They
view men and women as enemies, members of "separate and politically antagonistic
classes" (p. 14). When radical feminists notice unequal social and economic
outcomes, they refuse even to consider whether they could be the product of
natural differences between the sexes in interests, goals, and approaches to life
and work. Rather, they blame inequality of opportunity and push for government
coercion and privileges to even the score for women in the workplace, in
academia, and in society. McElroy and her fellow ifeminists see things
differently. "Ifeminism . . . champions free-market solutions rather than
governmental ones. . . . [I]t also defends every choice between consenting adults
. . ." (19). Women are self-responsible individuals, neither entitled to nor in
need of special protection or privileges of any kind, but simply equality under
law. "[A]ll human beings have a right to the protection of their persons and
property" (5). And this right to protection against aggression imposes an
obligation to respect the equal right of others.
Anti-discrimination regulation gained momentum in the United States with the
1963 Equal Pay Act and the 1964 Civil Rights Act. As Richard Epstein points out,
the prohibition against sexual discrimination was added to the Civil Rights Act,
almost as a joke, by "Southern senators determined to show the absurdity of
prohibiting private discrimination on the basis of race" (34). But its
consequences have been no joke.
I was shocked to learn that the U.S. Supreme Court cited the 1978 Pregnancy
Discrimination Act, in conjunction with the Civil Rights Act, to override the
constitutionally guaranteed right of contract. Johnson Controls, a manufacturer
of batteries, had sought to protect, by contractual agreement, the potential
offspring of its women employees from exposure to dangerous chemicals by
restricting the jobs available to fertile women. The Court overrode the right of
contract by finding "obvious bias in Johnson Controls' policy; men, but not
women, were given a choice about whether they wished to risk their reproductive
health for a job exposing them to high levels of lead, thus the policy
'explicitly discriminates against women on the basis of their sex' . . ." (140).
The Court, as Ellen Frankel Paul observed, "rather cavalierly, placed employers
in a Catch-22 situation where they were damned by the anti-discrimination law if
they restrict fertile women from jobs that expose them to hazardous chemicals or
possibly damned by the tort law if they do permit women to work around dangerous
substances and their fetuses are harmed."
(142–143). |
| Radical feminists are
not satisfied. They view men and women as enemies, members of "separate and
politically antagonistic classes." |
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The contributors to "Liberty for Women" show how various anti-discrimination
laws intended to benefit women have had the opposite effect. According to Paul,
determining women's salaries on the basis of comparable worth, as some have
recommended, would increase the cost of hiring women, make them less competitive
on the market, and reduce their desirability as workers. Economist Jennifer
Roback points out that if women's wages were artificially inflated, employers
would tend to substitute capital for labor. Comparable worth "exaggerates all the
problems the women's movement has been trying to change" (210). When it comes to
affirmative action, "using a quota system rather than merit to allocate jobs . .
. drives a wedge between individual worth and economic success" (184). Paul says
that laws to cope with charges of sexual harassment and discrimination on the job
lead to prejudice against hiring women out of fear of frivolous and costly
lawsuits. She favors the tort approach, under which the employer would only be
liable if the victim suffered "economic detriment and/or extreme emotional
distress" and the employer knew about the abuse but failed to stop it.
(201–202)
The most thought-provoking chapters in this collection are those dealing with
prostitution, midwifery, and new reproductive technologies. McElroy recognizes
that new reproductive technologies raise "vexing ethical questions" and "serious
questions about individual rights and contract law" (268). In her view, the
objections of the radical feminists to the "new reproductive technologies" stem
from their generally anti-science and anti-patriarchal positions (271). But the
principle of women's contractual rights is still pertinent. "The new reproductive
technologies, like effective contraception and access to legal abortion, seem to
provide women with the 'choice' central to virtually all brands of feminism"
(268). The radical feminist's position "is not simply a rejection of bad choices.
It amounts to a denial of women's ability to choose anything at all" (274). "The
most dramatic expression of radical feminists' contempt for individual choice is
their passionate rejection of surrogate motherhood" (275). "The feminist
rejection of surrogacy, then, is just another assault both on women's right to
make 'wrong' choices and on the free market, which is the arena of her choices"
(277). "The true issue surrounding the new reproductive technologies remains 'a
woman's body, a woman's right'" (278).
| Freedom and Feminism
assembles carefully chosen papers by authors ranging from law professors and
economists to a former call girl and a midwife. |
|
Prostitution is dealt with from two radically different viewpoints — that
of a law professor and that of a prostitutes' rights activist and former call
girl. According to University of Chicago professor of law and economics Martha C.
Nussbaum, "what seems right [with respect to prostitution] is to use law to
protect the bodily safety of prostitutes from assault, to protect their rights to
their incomes against the extortionate behavior of pimps, to protect poor women
in developing countries from forced trafficking and fraudulent offers, and to
guarantee their full civil rights in the countries where they end up — to
make them, in general, equals under the law, both civil and criminal." (109)
"[W]here the woman's entry into prostitution is caused by some type of conduct
that would otherwise be criminal: kidnapping, assault, drugging, rape, statutory
rape, blackmail, or fraud . . . the law should take a hand in punishing her
coercer" (110). However, we should realize that "there is nothing per se wrong
with taking money for the use of one's body. That is the way most of us live and
the formal recognition of that fact through contract is usually a good thing for
people, protecting their security and their employment conditions" (112).
Prostitutes' rights activist and former call girl Norma Jean Almodovar
maintains that no voluntary activity among consenting adults should be criminal.
"So long as the sex is consensual it should not matter to anyone outside the
relationship how many times the sexual activity occurs, or with how many sexual
partners, or for whatever mutually agreed upon price. If mutual agreement is not
present in any relationship, there already exists an abundance of applicable laws
specifically relating to coercion" (76).
"Prostitution is a business, a service industry. It should be run as a
business, subject only to the same kinds of business laws and regulations as
other businesses.
"Decriminalization would allow this to happen. It would repeal all existing
criminal codes from noncoercive adult commercial sex activity, and related areas,
such as management and personal relationships. It would involve no new
legislation to deal with prostitution per se, because there are already plenty of
laws which cover problems such as fraud, force, theft, negligence, and collusion.
Those laws could be enforced against anyone who violated them, just as they are
now, when force or fraud is used in any other profession." (86–7)
| Liberty for Women is an
important book. It points out that "all human beings have the same interest in
life, liberty, and the pursuit of happiness." |
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Community midwife Faith Gibson presents a fascinating history of midwifery
from 1899 to 1999, documenting the contributions of midwives to the safety of
childbearing women and their babies, and the medical profession's attempt to
develop obstetrics as a medical specialty by eliminating, or at least
suppressing, the practice of midwifery. Midwifery has been defined as the
"illegal practice of medicine" (307), subjected to special regulations and
educational requirements, and at times declared illegal (310). Gibson maintains
that it is the "child-bearing woman's right to choose among all the 'safe'
options" (321) in childbirth, including midwifery.
It isn't possible to cover all the issues of special interest to women
discussed in this volume by McElroy and her ifeminist associates. Suffice it to
say that they approach them from a point of view that differs from that of NOW's
radical feminists. They stress, in Joan Kennedy Taylor's words, "[wo-man's]
economic self-sufficiency, psychological independence, and 'realistic attitudes
toward female competence, achievement, and potential'" (279). They recommend
solutions based on markets, not on government coercion. Cathy Young sees
increasing "support for the view that an individual's noncoercive sexual behavior
is no one else's business" (202). Camille Paglia, self-styled "equity feminist,"
considers anti-pornography legislation "inherently infantilizing" (28). Because
an inordinate number of women become victims of crime and violence, ifeminists
argue that they should have the right to armed self-defense; their freedom to own
guns should not be restricted (231 –57).
"Liberty for Women" is an important book. It points out that "all human beings
have the same interest in life, liberty, and the pursuit of happiness. All human
beings share the same natural rights just as they share a basic biology" (18).
Yet there are some issues that hold special interest to women. With respect to
them, the contributors to "Liberty for Women" agree with University of Chicago
law professor Richard Epstein that to protect women's rights and freedom of
opportunity, one need only remove legal restrictions and allow everyone, men and
women alike, the freedom to enter into contracts, "the capacity to move about
freely . . . also the capacity to better oneself through voluntary transactions."
The simple removal of legal restrictions will open up opportunities to women
everywhere and "enhance the vitality of the social system as a whole." As editor
McElroy says, she considers "voluntary cooperation as the proper basis of
society" and "defends every choice between consenting adults" (19).
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