//  4/4/17  //  Commentary

You’ve probably heard by now about the “Pence Policy”—Vice President Mike Pence’s statement, which he made when he was a congressman, that “he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side, either.”

The Washington Post story that reported Pence’s 15-year-old statement does not provide Pence’s explanation for his dining practices. But Twitter and various commentators, including people who defended Pence, were quick to provide one—the Pences’ religious beliefs, and specifically their desire to preserve the sanctity of their marriage.  Some representative statements include:

Although it’s driven by good faith religious beliefs, the Pence policy is illegal, as I’ve explained in another post.  In this post, I wanted to juxtapose the reasons that apparently motivate Pence’s policy against dining alone with women with the recent tie-breaking vote that Pence cast in favor of a bill that would allow states to deny federal grants to women’s health care programs. 

I don’t doubt that Mike Pence has a policy of not dining with women because of his sincerely held religious beliefs, or that his policy is motivated by the entirely noble purpose of honoring his marriage.  But while Pence’s policy of not dining alone with women is designed to serve a noble purpose, it appears to rest on a belief about how women interact with men and men interact with women—that, on some level, a lot of people just can’t move beyond sexual attraction. That every male-female interaction, even in very professional settings, is always on the brink of being sexualized, if it’s not there already.  That there is an ever-present risk that when you interact with a colleague, co-worker, employee, or employer of the opposite sex, you can’t help yourself from sexualizing them, or perhaps from acting on your sexual desires.  That rather than put yourself in a position where you will inevitably fall prey to your sexual desires, it’s better to avoid the situation altogether. That rather than put yourself in a position where people might think you’re about to act on your sexual urges—since that’s what always happens when men and women are together—it’s better to avoid the situation altogether. (I’m glossing over the heteronormativity here, since there’s only so much I can cover in a single post.)

Now compare these views with the vote that Pence cast in support of the bill that would allow states to refuse to provide family planning grants to health care providers for any reason, including because an eligible recipient performs abortions or counsels women about abortions.  The bill would allow states to terminate family planning grants to organizations that are “focused on reproductive health”—i.e., those organizations that provide access to certain forms of contraception and those organizations that provide access to or counseling related to abortion.

I think that most people (reasonably) assume that Pence voted for the bill in part because of his religious beliefs about when life begins, and his religious beliefs about the (im)morality of certain kinds of contraception and pregnancy prevention. Those religious beliefs, like the ones that animate his policy against dining alone with women, are undoubtedly sincerely held and held in good faith.

But take a step back and consider Pence's positions together--his vote to reduce access to reproductive health services and his apparent views about the inevitability and power of sexual attraction and the nature of male-female interactions.  Pence’s policy against dining with women rests on the view that all interactions between men and women (or an awful lot of them) are driven by sexual attraction, and that those interactions are always at risk of resulting in some kind of sexual intimacy.  In this view, sexual attraction and sex are something that just happens, and are part of human nature.

Now layer that on top of Pence’s vote on family planning services. In Pence’s view, everyone wants to have sex, and they can’t help themselves from having those feelings and maybe even from acting on them.  But a person’s eminently natural desire to be intimate with someone else has to come at a price—when you have sex, you must accept the possibility that you will have a child, because the state can limit your access to pregnancy prevention services (contraception) and pregnancy termination services (abortion).

The reasons that drive Pence’s policy against dining with women (the natural human desire for intimacy with another person) are part of what has led the Supreme Court to recognize a constitutional right to contraception, a constitutional right for adults to engage in consensual sex, and a constitutional right to marriage. As the Court has explained, “sexuality finds overt expression in intimate conduct with another person,” and the resulting intimacy is “one element in a personal bond that is more enduring.” Or, put another way, because individuals have a constitutional right “to engage in intimate association,” their exercise of that right must be “free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 

In plain English:  Humans have sex, and adults have a constitutional right to be sexually intimate with another consenting adult.  Therefore, the state cannot condition adults’ decision to have sex on their willingness to have a child.  A state can’t force you to have a child if you choose to have sex; it can’t make your choice to be intimate with another person carry with it the consequence of bearing a child.

That is obviously not the inference that Pence has drawn from his apparent recognition that human beings experience sexual attraction.  Rather, Pence believes that if you act on those feelings (perhaps because you were silly enough to allow yourself to dine with someone of the opposite sex), then you have to accept the possibility that you will have a child.  Because in Pence’s world, it is okay for states to limit your ability to prevent a pregnancy when you act on your reasonable, natural, ever-present sexual urges; and it is okay for states to deny you the ability to terminate a pregnancy when you act on those reasonable, natural, ever-present urges.  Pence’s vote will substantially reduce the availability of means to prevent or end a pregnancy.  And without the means to prevent or end a pregnancy, sexual intimacy is inextricably yoked to having a child.

At least for women it is. It feels pedantic to say that the policy Pence has chosen to support will have different (and more significant) consequences for women than for men.  But it does, and Pence’s positions underscore the concerns about inequality that motivate a lot of the support for family-planning and reproductive health services. When men have sex, and act on the sexual desires and sexual attraction that Pence realizes they have, men don’t undertake the risk of “bear[ing] … a child.”  A man may beget a child, but he will not experience all that carrying and bearing a child entails.  A woman will.  If you think that bearing a child just means a pleasant, easy, and wondrous nine months with no other consequences within or beyond those nine months, I’d encourage you to read some more on the topic. The important point, however, is that denying access to contraception and reproductive health services results in a basic inequality—it creates a disparity in the kinds of consequences that men and women face when they have sex. 

The next four years look pretty bleak for reproductive justice.  That’s partially because there’s a man in the White House who refuses to meet with women alone.  But it's also because of something that Pence's policy reveals to be a deeper problem with this administration: When someone such as the Vice President views all women as either mother/daughter saints or potential sex objects, that's also how that person may treat all women, and thus will force them to choose between having a child or abstaining from sex entirely (perhaps by avoiding men altogether).  

Writing in Frontiero v. Richardson, a case argued by Justice Ginsburg, Justice Brennan wrote:  “Traditionally, [sex] discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”  That was 1973 (the year Roe v. Wade was decided).  It's 2017, and we are still waiting to be free.

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On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

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