MacKinnon on Privacy vs. Equality

Posted: Thu, Sep 5, 2024

Privacy

The private/public split:

  • The private sphere: personal, domestic; the home; shielded from state power; immune to political critique; feminine (?)
  • The public sphere: social, political; outside the home; regulated by state power; subject to political critique; masculine (?)

The argument from Roe: To construe the right to abortion as a privacy right offers protection against state intrusion.

MacKinnon’s critiques:

(1) The private sphere is not a utopia either; it’s not the cavalier that will save us all.

  • Gender inequality in the private sphere: “Virtually every ounce of control that women won out of this legalization has gone directly into the hands of men—husbands, doctors, or fathers” (101).
    • Also racial politics (recall Murillo’s discussion): legalization protects white women from the specter of a “Mexican abortion.”
    • Facilitates sexual access to women’s bodies? taking away of an ultimate ground for refusing sex & Playboy’s advocacy for abortion legalization.
    • To control reproduction is itself a form of social/political power.
  • How one gets pregnant to begin with: there is a real danger in construing abortion as a private choice, which presumes agency, equality, freedom, dignity, material means, etc.

(2) Abortion understood as a privacy right has nothing to do with gender equality.

  • Abortion is such a uniquely controversy issue because it is women who get to make “life-or-death” decisions.
  • The unequal consequences of PIVI.
  • Control over reproduction is foundational to social and political equality.

(3) While privacy makes abortion permissible, it does not entitle one to public resources; indeed, public funding of abortion is an intrusion of privacy. “Women with privileges get rights” (100).

  • Maher v. Roe (1977): upholding Connecticut law affording Medicaid benefits to cover childbirth expenses in general but restricting such benefits only to first-trimester abortions deemed “medically necessary.”
  • Harris v. McRae (1980): upholding Hyde Amendment restrictions prohibiting the use of federal Medicaid funds for even most medically necessary abortions.
  • Rust v. Sullivan (1991): upholding federal statute prohibiting recipients of federal family planning funding from providing abortion counseling or referral.

Equality

The even trickier problem is we actually don’t have a workable way to think about abortion as a gender equality issue.

The prevailing understanding of gender equality is in terms of sameness and difference: treat women & men the same when they are relevantly the same; treat them differently when they are not [implicitly: social differences should match onto biological differences].

  • On this picture, almost always the question becomes: are you similar enough to a guy to be treated the same as him?
    • Men are taken for granted as the reference point.
    • Because pregnancy is a difference, it cannot raise a gender equality issue.
  • Surprisingly, recognizing that not only women become pregnant does not help: if people of all genders become pregnant, then surely this is not a gender equality issue?

MacKinnon’s proposal: ask not “are women treated differently from men?”; ask “are women treated as less than men?”

  • Still presumes some inherent connection between pregnancy and womanhood.
  • Still presumes some unproblematically biological conception of pregnancy.