Brooklyn, NY – There’s recently been an eruption in the United States over the question of birth control. The controversy was initially prompted by the passage of the Affordable Care Act (ACA), which mandates that employers provide insurance that covers birth control prescriptions. Earlier this year, right-wingers began to charge that that provision of the ACA threatens religious freedom – the freedom of employers, like universities and hospitals that are run by the Catholic Church, not to be compelled to pay for their employees’ birth control. A compromise was quickly reached.

But that didn’t stifle the controversy. It has continued to play a major role in the Republican primaries, and states like Arizona are now moving toward legislation that would not only exempt employers from having to provide birth control if they have religious or moral objections to it, but would also allow those employers to interrogate their employees about why they use birth control.

If employees submit birth control prescriptions for insurance coverage, their supervisors will have the right to ask them if they intend to use the birth control for health-related reasons (such as hormone control) or for contraception.

Mises on women and feminism

This whole debate recently led Mike Konczal, a blogger at the Roosevelt Institute, back to Ludwig von Mises’ classic 1922 text Socialism. Mises was a pioneering economist of the Austrian School, whose political writings have inspired multiple generations of libertarian activists in the US and elsewhere.

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Mike took a special interest in the fourth chapter of Socialism, “The Social Order and the Family”, in which Mises has some retrograde things to say about women and feminism. This led Mike to conclude – prematurely, it turns out – that Mises was against birth control, which he wasn’t, but as I made clear in the comments thread to Mike’s post, Mike’s larger point – that Mises was neither in favour of women’s sexual autonomy nor was he in favour of other kinds of autonomy that would free women from the dominion of their husbands – still stands.

All this back and forth about the text prompted Brian Doherty, author of a wonderful History of Libertarianism, to waspishly comment that, well, who really cares what Mises may or may not have thought about women and birth control. Libertarians care about liberty; all the rest is commentary.

Mises does go on to address “natural barriers” that socialists want to overturn, and doubtless some of his own personal opinions about what those natural barriers might be would differ from moderns, liberal or conservative, which is exactly why [Konczal’s] entire implied point doesn’t make any sense to begin with.

Those concerns are far more matters of opinion, not political philosophy, and in no sense should bind even those who have sworn fealty to Mises’ general views on economics and liberty.

(For example, I’m quite the Misesian in most questions of politics and economics, but can imagine an intelligent conservative argument that the “rationalisation of the sexual passions” is in some sense harmed by birth control, though not in the specific procreational sense he is addressing specifically.)

But let’s address the larger point, if there is one, besides that atop all of our heads for even talking about this: That polemical points can rightly be earned laying some judgment, whether real or imagined, of an intellectual founding father or influence on a political movement or tendency on to the backs of its younger followers – either to mock them or to insist that, no, this is really what their intellectual mission is: not to promote liberty, but to work for whatever Ludwig Von Mises liked or didn’t like.

It is interesting, for those interested in intellectual history, that Mises saw free love as part of some larger socialist mission to destroy the family. But for the libertarian the relevant question is, is this voluntary or not, does this infringe on anyone’s life, liberty, or property or not? “Anything that’s peaceful,” baby, as Leonard Read, one of Mises’ great popular disciples in America, wrote.

Thus, there’s a libertarian case to be made against forcing anyone to cover any specific medical care, birth control or whatever, in the insurance deals they make with their clients. But it has nothing to do with whether Ludwig von Mises was comfortable with free love, or birth control, or with catheters, or blood transfusions, or any other specific medical procedure that might or might not become a political controversy when the government tried to force people to sell insurance only on the condition that that insurance cover that procedure or medication’s use.

Intellectual histories of libertarianism

Let’s set aside the strangeness of someone who’s written – for what were obviously more than antiquarian reasons – one of the best intellectual histories of libertarianism, in which Mises plays a not insignificant role, telling us that intellectual history, and Mises’ role in it, doesn’t much matter.

“Libertarianism is not about liberty at all, or at least not about liberty for everyone. In fact, it’s the opposite.”

Let’s also set aside Doherty’s declaration by fiat that Mises’ views on women are just “matters of opinion”, which can be discarded as so much ancient prejudice, rather than genuine “political philosophy”.

(This chapter on Robert Nozick in Susan Okin’s Justice, Gender, and the Family should make any reasonably literate political writer leery of the notion that a libertarian’s views on women are somehow contingent or incidental and separable from their larger worldview. In Mises’ case, it’s doubly important to remember that he saw his chapter on women as one part of his campaign against socialism, an effort in which he styled himself the lonely leader of a small, heterodox band.

Socialism is the watchword and the catchword of our day. The socialist idea dominates the modern spirit. The masses prove of it. It expresses the thoughts and feelings of all; it has set its seal upon our time. When history comes to tell our story it will write above the chapter “The Epoch of Socialism”.

Mises did not think his views on women were refractions of the age; he thought they were the dissonant wisdom of someone who had thought long and hard, against the dominant view, about such issues. And given that many socialists were making feminist arguments and gaining ground across Europe – Remember Red Vienna? It wasn’t all economics, you know – I’m not sure Mises was entirely wrong in his self-understanding.)

The real reason Mises’ arguments about women are so relevant, it seems to me, is that in the course of making them, he reveals something larger about the libertarian worldview: Libertarianism is not about liberty at all, or at least not about liberty for everyone. In fact, it’s the opposite.

Here’s Mises describing the socialist programme of “free love“:

Free love is the socialists’ radical solution for sexual problems. The socialistic society abolishes the economic dependence of woman which results from the fact that woman is dependent on the income of her husband. Man and woman have the same economic rights and the same duties, as far as motherhood does not demand special consideration for the women.

Public funds provide for the maintenance and education of the children, which are no longer the affairs of the parents but of society. Thus the relations between the sexes are no longer influenced by social and economic conditions… The family disappears and society is confronted with separate individuals only. Choice in love becomes completely free.

Paternalistic assumptions

Sounds like a libertarian paradise, right? Society is dissolved into atomistic individuals, obstacles to our free choices are removed, everyone has the same rights and duties. But Mises is not celebrating this ideal; he’s criticising it. Not because it makes people unfree, but because it makes people – specifically, women – free. The problem with liberating women from the constraints of “social and economic conditions” is that… women are liberated from the constraints of social and economic conditions.

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Now Doherty will reply, well, that’s just Mises’ view of feminism, who cares, we libertarians stand for freedom. But the underlying logic of Mises’ argument – in which the redistributive state is criticised not for making men and women slaves or equals but for making them free – cannot be so easily contained.

It can easily be applied to other realms of social policy – labour unions, universal healthcare, robust public schools, unemployment benefits, and the like, which the left has always seen as the vital prerequisites of universal freedom – suggesting that the real target of the libertarian critique may be the proposition that Mises articulates here so well: That all men – not just the rich or the well born – and all women will in fact be liberated from the constraints of their “social and economic conditions”.

What’s more, Mises’ views haven’t gone away.

Responding to legislative proposal in Virginia that would have required all women seeking an abortion to get an ultrasound – as Slate writer Dahlia Lithwick pointed out, because most abortions occur in the first 12 weeks of a pregnancy, most of the women affected by this bill would be forced to have a probe stuck up their vaginas, as that’s how ultrasounds in the first trimester are done – libertarian luminary Tyler Cowen tweeted the following: All of a sudden requiring consumers to be informed is extremely unpopular on the “pro-regulation side”.

Was Cowen serious? Hard to say. If he was, he’s radically uninformed about the basic facts of biology and women. It’s not like women don’t know what’s going on inside of their uteruses; they are, after all, getting an abortion. Or perhaps, Cowen, like many in the anti-abortion movement, thinks women don’t know what they’re doing when they abort their foetuses. Either way, it was a paternalistic comment.

But ah, my libertarian friends will say, that’s the point – we on the left make similar paternalistic assumptions about consumers all the time. Cowen’s just making a joke to point out our hypocrisy.

“The notion ‘once-probed, always-probed’ sounds an awful lot like the notion of implicit sexual consent that dates back to the 18th century and that justified marital rape in this country until the 1980s.”

But if that’s the joke, it doesn’t quite work. Even if we assume that informing consumers is the purpose of the legislation – all the evidence, as Lithwick points out, suggests that women don’t need the information and their choices influenced by the information when they get it – there’s the tricky matter of the “instruments”: Is the left really in the business of forcing consumers to get information by sticking probes up their various orifices?

‘Once-probed, always-probed’

Whether he was serious or not, Cowen’s tweet suggests that when it comes to the specifics of women’s autonomy – not generic autonomy, but women’s autonomy – he doesn’t quite get it. And in not getting it, he shows that his is not a project of universal liberty. (Also check out Scott Lemieux’s take on libertarian blogger Megan McArdle; you’ll find a similar pattern.)

One final note on this Virginia legislation and how it fits with a larger pattern on the right. As Lithwick noted in her piece:

During the floor debate on Tuesday, Delegate C Todd Gilbert announced that “in the vast majority of these cases, these [abortions] are matters of lifestyle convenience.” (He has since apologised.) Virginia Democrat Delegate David Englin, who opposes the bill, has said Gilbert’s statement “is in line with previous Republican comments on the issue”, recalling one conversation with a GOP lawmaker who told him that women had already made the decision to be “vaginally penetrated when they got pregnant”. (I confirmed with Englin that this quote was accurate.)

The notion “once-probed, always-probed” sounds an awful lot like the notion of implicit sexual consent that dates back to the 18th century and that justified marital rape in this country until the 1980s. As I write in The Reactionary Mind:

Until 1980, for example, it was legal in every state in the union for a husband to rape his wife. The justification for this dates back to a 1736 treatise by English jurist Matthew Hale. When a woman marries, Hale argued, she implicitly agrees to give “up herself in this kind [sexually] unto her husband”. Hers is a tacit, if unknowing, consent “which she cannot retract” for the duration of their union. Having once said yes, she can never say no.

As late as 1957 – during the era of the Warren Court – a standard legal treatise could state, “A man does not commit rape by having sexual intercourse with his lawful wife, even if he does so by force and against her will”. If a woman (or man) tried to write into the marriage contract a requirement that express consent had to be given in order for sex to proceed, judges were bound by common law to ignore or override it.

Implicit consent was a structural feature of the contract that neither party could alter. With the exit option of divorce not widely available until the second half of the twentieth century, the marriage contract doomed women to be the sexual servants of their husbands.

Resonances like these are why I sometimes suggest that modern conservatism is just a neoliberal gloss on medieval domination.

Corey Robin teaches political science at Brooklyn College and the CUNY Graduate Center. He is the author of The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin and Fear: The History of a Political Idea. His articles have appeared in the New York Times, Harper’s, the London Review of Books, and elsewhere. He received his PhD from Yale and his A.B. from Princeton. You can read Corey’s blog here.

Follow him on Twitter: @CoreyRobin