When Hillary Clinton was nominated at the Democratic National Convention, the party celebrated with a video of a glass ceiling being shattered, only to reveal Clinton emerging triumphantly from the shards.
Although her achievement is moving to me, a woman of a certain age, it is unclear how many younger Americans appreciate the profound—and rapid—revolution underwriting this moment. In an interview in New York magazine last spring, Clinton recalled an encounter she’d had many years ago, when she took the LSAT. A young man said to her, “If you get into law school and I don’t, and I have to go to Vietnam and get killed, it’s your fault.” The interview inspired a comment in which the writer complained: “I don’t believe for one second her story about the LSAT…. This is more of her play for sympathy and victimization.”
This is a bitter election, and there are those who will never believe that the sun is in the sky if Hillary Clinton says so. But I attended law school only a few years after she did, and her story is certainly exemplary of what my female classmates and I were told. And it’s more or less what Supreme Court Justice Ruth Bader Ginsburg and her eight other female classmates encountered in 1956, when Erwin Griswold, the dean of Harvard Law School, demanded to know how each of them justified taking the space of a presumably more productive man.
When I graduated from law school, women composed only 8 percent of my class of approximately 500. Those numbers improved rapidly during the activism of the 1980s. Today, women make up approximately 50 percent of the students at most American law schools. Yet many do not know that Hillary Clinton, Sandra Day O’Connor, and other icons of today’s legal landscape came of age in a time—again, not so very long ago—when most law schools struggled to find toilets that women could use. (Barbara Underwood, one of Yale Law School’s early female faculty members, was told to use the janitor’s closet.) We forget that the moral panic about bathroom access for transgender people has a direct precedent in the affective disgust that greeted the first generation of women—particularly pregnant women—who tried to use the toilets in formerly all-male bastions.
This amnesia about women’s history doesn’t mean that we have “overcome.” Indeed, such forgetfulness disguises the ways in which Clinton and other American women are still being subjected to debilitating disparagement and concrete limitations. President Obama’s election was so monumental and so unprecedented that it erased history in some quarters, particularly among the major media outlets who sold it as an unqualified feel-good story, and among well-educated, left-leaning whites, for whom he was something of a relief—“articulate and bright and clean,” as then-Senator Joe Biden once put it.
But that loss of the long view wasn’t shared by most African Americans, who anticipated and greatly feared a backlash, never having forgotten the post–Civil War reversals that quashed the electoral triumphs of the Reconstruction era and ushered in Jim Crow. Consider the trajectory of the so-called “Obama effect”: Gun sales jumped 90 percent in the month after the 2008 election, apparently thanks to right-leaning whites who thought that a black president effectively meant that a race war was upon us. That fear has been a constant ever since, intersecting with a form of backlash some have called the “Ferguson effect,” most recently invoked by Trump when he declared that the U.S. has “race riots on our streets on a monthly basis.”
Similarly, we must be on our guard against a “Hillary effect”— a powerful resurgence of sexism. Trump has become its current mouthpiece, placing Clinton’s iconic attainments on behalf of women’s and children’s rights on the same level as accusations that her going to the bathroom is “disgusting”; that she “got schlonged” by Obama during the last election; and that “if Hillary Clinton can’t satisfy her husband, what makes her think she can satisfy America?” (this last from a Trump fan’s tweet, shared by the candidate). After all, Trump has gone on record saying that he thinks women need to be treated “like shit,” and then lives precisely by that credo.
In his latest and most baffling attack, Trump has accused Clinton of marital infidelity. In his untethered opinion, “I don’t even think she’s loyal to Bill.” It’s like the unfunny version of Restoration-era comedy: accusing your opponent of having cuckolded and emasculated her husband and—somewhat confusingly in this context—of being too masculine to be feminine.
Trump’s scattershot broadsides—against women, men, cheaters, haters, Mexicans, Muslims, and crying babies—are crosshatched in ways that make pushback a challenge for many traditional pundits and advocacy groups. Trump possesses a singular ability to mix the poisonous waters of the culture wars into colorful new hybrids of exotic demonization. His words rain down like cluster bombs, exploding in so many pieces and directions that one scarcely knows how to assess the damage. His concept of civic worth is so exclusive that he enfranchises, privileges, and anoints no one but himself. “I alone,” he declared during the Republican National Convention, speaking as though he were an emperor. If there is hope to be found in this dismally divided insult-swamp upon whose edge America trembles, it may lie in this: Never have so many been so united in their marginalization.
Still: nothing about this moment can be taken for granted. Glass ceilings, once broken, can be boarded back up. The very brief history of women and minorities on the national stage makes manifest the urgent necessity of reinvigorating the very notion of politics itself. Defending human, civil, and other democratic rights is an unending struggle. Only the most generous coalition of human and civil-rights activism will succeed in the project of creating a world we might one day describe as “post-racial,” “post-gender,” and (I pray!) “post-Trump.”
I was wending my way through the parking lot of a big-box store not long ago. A large, smoke-belching, unmuffled truck with the kind of mammoth tires one sees at demolition derbies hurtled into the lot and careened into a parking space some yards away. The sides of the truck were plastered with enormous political advertisements. “Make America Great Again,” the Trump banners read. (As the cloth furled and snapped and fluttered in the wind, however, it was “RUMP” and “RUM” whose guidance promised a return to gloryland.) The whole effect was bigger and more eye-catching than a float in a parade. The sight of it! The sound! Whether in approval or disapprobation, the entire geography of the parking lot reacted as one. Heads swiveled, eyes widened, mouths gaped.
The driver lumbered from his cab, sporting a long white beard stretching nearly to his navel. “What’re you staring at?” he snarled at a thunderstruck man of seemingly Asian phenotype, who was frozen in the act of unloading his groceries.
In many ways, this encounter was itself a pantomime of Donald Trump’s candidacy: unusual hair, dramatic arrival in clouds of smoke, spectacular parking job smack-dab on center stage—and then, with all eyes captured, the peevishly threatening demand not to be looked at so closely. Trump is the gilded monster truck of political ambition.
The scenario was also an enactment of Trump’s favorite precept: giving the finger to “political correctness” in the name of freedom of expression. I have the right to belch smoke in your face, call you a rapist or a murderer, and spatter you with mud. Now what’re you gonna do about it—cry like a baby? Freedom of expression is reduced to an arbitrary insistence upon one-way communication, a barked order. Making America “great again,” by this measure, is a command, not a hope. Get that crying baby out of the tent; move out of the way already.
This epitomizes one of the most tiresome assumptions that are insinuated into debates about freedom of expression: My right to call you a stupid monkey means that you have to shut up about it. If you don’t, you’re violating my free-speech rights.
This assumption—the belief that communication flows in one direction only, that it is the role of some to speak and others only to listen—is a paradox that stifles rather than encourages debate. “Get ’em outta here!” is literally the Trumpian cliché, tossed impatiently at any hint of dissent. This much is bad enough in a comic-book villain. But in an aspiring state actor, we must seriously consider the repercussions should he, as president, be endowed with the actual, not academic, executive power to censor.
Perhaps one reason Trump has been able to get away with being so absurdly vague, vulgar, and uninformed is that he has positioned himself squarely as a culture warrior, not as a politician. The culture wars aren’t about the specifics of foreign policy or climate change or budget concerns. They are waged as performative skirmishes—symbolic, visual, and visceral. In one corner are the send-ups of campus eggheads supposedly surrendering Western civilization to the people who “don’t belong”: women with “fat faces” bleeding from their “wherever,” unruly affirmative-action minorities, LGBTQ victimologists, job-stealing Asians, and a mushily defined remainder of soft equivocators and kale-eating “liberals.” In the other corner are the tough guys, the red-meat-eaters, real men who live in a “real world” of no rules but ruthlessness: plain-speaking, strong-jawed, put-up-or-shut-up cowboy entrepreneurs, unafraid to get their hands a little dirty in the service of building beautiful walls around the beautiful empire, the beautiful castle, and their bevy of beautiful ladies in skintight dresses.
For more than 20 years—thanks in no small part to the outsize influence of Trump surrogates and influential fear-mongers like Roger Ailes, Ralph Reed, Andrew Breitbart, Ann Coulter, Rush Limbaugh, and Steve Bannon—the two sides have hardened. There is no middle ground.
The arrival of a female candidate has seen a turn to scorched-earth tactics. “Girly-men!” said Arnold Schwarzenegger of his Democratic rivals back in 2004. It led to a stream of similarly misogynistic Republican invective, effectively setting the stage for Trump’s performative attacks on Hillary Clinton. He doesn’t even have to put it in words at this point, because she has been reduced at every turn to a physically unhealthy yet nut-crackingly strong, pantsuit-wearing, man-hating closet lesbian, a castrating shrewish fish-without-a-bicycle.
There are no words that Hillary can ever speak to change this caricature. Endless invocation of the First Amendment notwithstanding, these constructions play less upon the right to speak than upon how things are said. Thus, Trump’s talent for passionate spectacle vaulted him through the initial debates, largely because he wasn’t really debating. Instead, he’s been signifying in a wordless contest of manners, mores, images, accent, etiquette, and idiom.
Once we’ve been lured onto this emotionally charged field of rational bypass, words stop working.
And though we have plenty of words to describe the “coddling” of college students who seek “safe spaces” in campus settings, we have fewer popular terms to describe Trump’s bid to make the entire United States a walled-off “safe space” from global exchange. We hear a lot about who is “silencing” whom whenever those effervescent Code Pink ladies pop up, faithful as flamenco-pink-wigged whack-a-moles, to be dragged from Trump rallies. Much less is spoken about the chilling effect of campus open-carry laws in classrooms where the expressive power of the First Amendment and the Second seem to have become perilously confused.
So… what’re you staring at?
published in The Nation Magazine, August 15, 2016
He looked dangerous. He looked like a suspect. He looked like he was reaching for a weapon. The officer feared for his life. This familiar litany was recited on the news more than once over the course of this vexed summer—a time weighted with foreboding, anxiety, and grief. We are all afraid of something: terrorism, random outlaws with PTSD, ominous political forces. As a result, gun sales have soared. Paradoxically, rising gun sales mean that it’s increasingly reasonable to suspect that someone pulled over by police to the side of the road will have one. Writes Ted Shaw, director of the Center for Civil Rights at the University of North Carolina, “in a society that worships gun culture and advocates the right to carry weapons, it cannot be that the fact that an individual has a gun automatically justifies shooting him.”
Yet it’s also true that the history of the right to bear arms is shaped by exclusionary privilege based on race and gender. It is almost exclusively white men who may “reasonably” carry firearms to protests outside Target or political conventions. It is almost exclusively white men who do not need to retreat from domestic disputes while on ground deemed “theirs.” Nonwhites and women, however, are much less likely to be able to walk through the world with assault rifles (or toy guns, or the shadow of anything that might resemble a gun) and not be mowed down for that reason alone—either by police or the idealized citizen-savior.
Harvard professor Caroline Light has traced the history of our romance with legalized vigilantism. She dates it to the Reconstruction era, “when post-war political and economic turmoil and the enfranchisement of African American men fed late-19th-century gender panic, and the legal terrain shifted to characterize a man’s ‘castle’ and the dependents residing therein as an extension of the white masculine self.” Light (whose excellent new book Stand Your Ground: A History of America’s Love Affair With Lethal Self-Defense is forthcoming from Beacon Press next spring) asserts that current policies, including defunding basic public services, have led to a situation in which “the state’s retreat from the protection of its citizens creates a perceived need for (do-it-your)self-defense.” The supposedly race-neutral idea of “reasonable threat” actually encourages a “lethal response to black intrusions into spaces considered white.”
Recently, an officer from the North Miami Police Department shot and wounded Charles Kinsey, a black therapist trying to help a severely autistic patient who had wandered away from a mental-health center and into traffic. Pictures taken by passersby showed that neither the patient nor Kinsey was armed. Indeed, Kinsey had identified himself, explained the situation, and was lying on the ground with his hands in the air when the police shot him. Such a twitchy hair-trigger response reminded me that the North Miami Police Department had been chastised just last year for using African-American mug shots for target practice. Is it unreasonable to wonder if such “practice” trains the eye toward what to fear and whom to kill?
Against this already charged backdrop, a judge recently extended Florida’s “stand your ground” law to protect police officers. The case at issue involved the death of Jermaine McBean, a 33-year-old black man who was shot three times after being spotted walking on a busy street carrying what turned out to be an unloaded Airsoft rifle. A judge dismissed all charges against Broward County Sheriff’s Deputy Peter Peraza, based on his assertion that he had no duty to retreat because he believed that McBean was trying to kill or seriously harm him.
But “stand your ground” laws are a subspecies of self- defense. The idea is that “ground” is jurisprudentially defined as a space from which one has the reasonable expectation of excluding others—i.e., one’s property. What makes the idea of standing one’s ground so troubling is precisely the question of whose ground it is anyway—yours or mine? What, indeed, of “our” ground? Law-enforcement officers, after all, are charged with a duty to serve and protect public, collective geographies, not just “their” ground.
“Stand your ground” laws have extended the older defense of one’s “castle” beyond the walls of one’s home to one’s subjectively determined comfort zone—which, in effect, allows a public street to be turned into conceptually private space. However problematic this may be in citizen encounters, judging police by this measure would represent a seismic shift in accountability. It is a cornerstone of our legal system— and of international law—that police, as state actors, respond to objective standards, not fleeting emotions. Our expectation is that they will be well-trained in techniques of defusing confrontation, and that they will deploy force only as a last resort.
If the mere experience of fear justifies violence anyplace, anytime, we have set a dangerous precedent regardless of race, gender, or occupation—but especially in the case of police. As Nakia Jones, a black police officer in Ohio, stated in an impassioned video on YouTube, we must also look at the tension between the call of duty—which is one of public service, even self- sacrifice—and the unmoored fears harbored by those who don’t know anyone in the neighborhoods they’re assigned to patrol. There are at least some who, in the absence of training, experience, self-restraint, and proper support, may fill that void with assumptions and panic—who would place self-protection so far ahead of the duty to protect the community that they succumb much too easily to an ethic of “Shoot first, ask questions later.”
Nikki Giovanni’s poem “Allowables” has gone viral of late, and perhaps it bears repeating as a counter-litany in these times of edgy stand-off: I killed a spider / Not a murderous brown recluse / Not even a black widow /And if the truth were told this / Was only a small / Sort of papery spider / Who should have run / When I picked up the book / But she didn’t / And she scared me / And I smashed her / I don’t think / I’m allowed / To kill something / Because I am / Frightened.
By Patricia J. Williams
published in The Nation Magazine, JUNE 27, 2016
Donald Trump’s 70th birthday was June 14. One of its stranger celebrations took place in New Delhi, India, where members of the far-right Hindu Sena party made offerings of cake to a life-sized poster of the billionaire, praising him as the anti-Islamic messiah. “Trump has said Muslims should be banned from entering America. Everyone should support that,” said their organization’s president, Vishnu Gupta. “Trump is about to become the king of the world.”
Most media response rightly focused on Hindu Sena’s application of Trump’s xenophobic rhetoric to India’s boundary disputes with largely-Muslim Pakistan. But I was intrigued by how much easier it is to imagine Trump as king rather than as “presidential.” Trump certainly surrounds himself with more filigreed trappings than Louis the XIV. And with followers lauding his purity solely because he’s rich, he has magically succeeded in branding himself as America’s official golden calf. Perhaps it’s not a surprising leap that he would somehow be able to pass as Hindu Sena’s sacred cow as well. But I think that Donald Trump’s peculiar combination of crude yet imperial appeal is rooted in his personal appropriation of powers that legally belong to the state. He speaks not of government of or by the people, but only of “my” people.
Take just one well-worn example: “The people, my people, are so smart…they say I have the most loyal people, did you ever see that? Where I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters, OK? It’s like incredible…” Delivered as a brief, apparently careless throwaway, this soliloquy was nevertheless a masterpiece of well-practiced theatrical force, a “shot” taken gesturally as well as verbally. It’s worth having a close look at the video. If you pause it at just the moment when he says the word “shoot,” you’ll see that for a second or two, his entire body language changes—drawing himself up to full height and looking directly into the camera with sudden, bracing dead-seriousness. (Indeed, he adopts the exact posture of Uncle Sam in James Montgomery Flagg’s 1917 US Army recruitment poster. It is almost impossible to see as accidental—right down to the color scheme—impossible to look at without hallucinating the familiar caption “I want you”….)
Trump then cocks his thumb, points his forefinger, and air-fires.
The next instant he’s back to the dance, the boasting jabs and jutting jaw, shoulders slanted, eyes off to the side, head lolling to all four winds. A roar of amusement rolls through the audience like a thunderstorm.
But in that one freeze-framed flash of his taking aim, his cocked body—that moment unleavened by jocular performativity—there is the tyrant’s invitation to join the army of “my people,” or else. His direct eye contact with the camera makes clear that he talking to you. In that quiver-pulsed moment of dark equivocation, you are invited down one of two paths: either that of the dumb sucker who goes limp and paralytic, the easy mark, a deer in the headlights of an unforgiving fate; or else leap aside, to his side, the good side, riding Trump’s triumphalist surf. The candidate’s rhetoric invites us into a world of magical realism, where a self-anointed good guy like Donald Trump can ride back in time to perform miracles: He would’ve cut short the carnage in Orlando, prevented 9/11, San Bernardino, and countless trade deals. He abides in a warrior world of redemptive vigilantism, where frightened psyches thrum to the drama of the OK Corral, now positioned squarely in the middle of Fifth Avenue. And Trump will be the savior of his people.
L’état, c’est moi.
In L’Eloge Historique du Roi Louis XIV, the great poet and tragedian Jean Racine wrote of the king’s power: “There is a continuous series of miraculous deeds that he himself initiates, that he completes, deeds as clear, as intelligible when they are carried out as they are impenetrable before they are carried out.”
In an ordered society, the state consigns to itself a monopoly of power over bodies and, in a well-ordered society, is held accountable for judicious exercise of that power through regulatory constraints like due process, habeas corpus, and civil-rights laws. In traditional models of European monarchy, by contrast, the king was anointed, in a way that combined both absolute physical as well as spiritual—or messianic—power. This is the most important distinction between power accorded to systems of governance such as ours and the rule of kings. The restrained ideal of civil society is the direct, unpanicked polar opposite of “you’re fired” efficiency or “off with your head” fiat.
Nicholas Mirzoeff, in his very lucid media manual, How to See the World, writes that the corruptible humanity of royal individuals was disguised, shielded, enrobed in “the concept known as the body of the king, which we can call majesty. Majesty does not sleep, get ill, or become old. It is visualized, not seen.” This implied immortality of the embodied state is of course why the accession of monarchs was—still is—hailed with, “The king is dead, long live the king!”
“Long live Donald Trump,” shouted members of Hindu Sena, whose brand of fundamentalist nationalism has been linked for years to lethal riots against Muslims.
Donald Trump invokes “people” with every breath. But that invocation never encompasses the complex humanity of the people he marks as “his” (as in: “Oh, look at my African American over there…”). There is little acknowledgment that it is citizens themselves who hold power to govern. In his reductions of democracy to lone-wolf appropriation, his campaign has been one long pantomime of a corporate takeover: l’état, c’est Trump. Vive le moi. That “efficiency-of-me” bodes poorly for polity, for fairness, for justice, for us.
published in The Nation Magazine, May 9-16,
“I don’t know. What do I know? All I know is what’s on the internet,” said Donald Trump on Meet the Press last March. He was attempting to excuse his false assertion that a protestor at one of his rallies “had ties to ISIS.” It was certainly a startling assertion, at least to me, bookish woman of writerly profession that I am. Of course everything that man says startles me; this time it made me think about the general status of knowing, knowledge and its online production.
The internet is hardly the first technology of information transmission to be suspect. In Phaedrus, Plato described the Egyptian king Thamus’ suspicion of the written word. Thamus feared that writing was untrustworthy, because it “will create forgetfulness in the learners’ souls, because they will not use their memories…you give your disciples not truth, but only the semblance of truth; they will be hearers of many things and will have learned nothing; they will appear to be omniscient and will generally know nothing; they will be tiresome company, having the show of wisdom without the reality.”
I was thinking about all this because I was sitting on a train not long ago amid a group of exuberant young millenials. They were discussing religion, and the election and the influence of evangelicism in American politics. There was general consensus that none of them could understand what motivated people to attend a mega-church whose minister owned private jets. Then one young man piped up: …”but it’s the head of the Roman Catholic Church who makes more money than any of them.” Really? “Oh yes—the pope makes $200 million annually as his personal salary.” Really? Not the church? “Nope,” he said confidently: “It goes into his personal bank account and he can do with it exactly as he wants. He’s got all these homes and palaces, and he’s invested in all kinds of real estate….”
Ordinarily I’m very reticent to intrude upon conversations among strangers, but for once I couldn’t restrain myself. “Ahem?” I offered by way of introduction. “The pope takes a vow of poverty. He arrived at the job with two pairs of shoes. He does not receive a personal salary of $200 million a year.”
The young man’s response was: “Google it. I’m telling you the truth.”
I did not doubt my memory. I do not doubt myself. Yet…I did Google it, and he was right. Still wrong, but also right, in that it was the first thing that came up on Google when I entered a search for “pope’s salary”: “Pope’s personal income: $200 million annually.”
I had to ask myself how it came to pass that the first result was from 2011 on opentabernacle.wordpress.com. One has to assume that it has received more hits than any other site when it comes to the personal profit and salarial concerns of the papacy. (Google-truth is highly situational and epistemically fluid, however; for it came up as the second entry when I looked two weeks later.) Perhaps it’s a reflection of crowd-sourced belief. Or it could be as simple as a bot, or some troll conniving to push it to the top of the list. But whatever the motive or cause, it is an algorithm that ultimately decides placement—and it has been able to erase in some people’s minds the entire history of the Roman Catholic Church.
There has always been that possibility, of course. Tabloids and Fox News do something of the same thing every day. As Neil Postman points out in his wonderful book, Technopoly, King Thamus feared that writing will “change what is meant by the words ‘memory’ and ‘wisdom.’ He fears that memory will be confused with…’recollection,’ and he worries that wisdom will become indistinguishable from mere knowledge. This judgment we must take to heart, for it is a certainty that radical techonologies create new definitions of old terms and that this process takes place without our being fully conscious of it.”
All this makes me think of Microsoft’s recent attempt to launch a chatbot on Twitter, Kik and GroupMe that would sound like a teenager. Named “Tay,” it was created to “experiment with and conduct research on conversational understanding,” but quickly “turned from a nerdy attempt at reaching teens, into the racist, Holocaust-denying, Hitler-loving AI of all our nightmares.” As Peter Bright wrote in Ars Technica, Tay doesn’t understand what the Holocaust was: “She just knows that the Holocaust is a proper noun or perhaps even that it refers to a specific event. Knowing what that event was and why people might lie to her about it remain completely outside the capabilities of her programming.” Peter Lee, the corporate vice president of Microsoft Research apologized, saying “To do AI right, one needs to iterate with many people and often in public forums.” In other words, if we are going to craft an AI chatbot free of biases, we have to include everyone in the conversation. Microsoft, oddly, didn’t seem to anticipate that Twitter isn’t about “everyone,” in some happy, kumbaya way. It’s about a technology that’s proved capable of holding up a mirror to our darker realities—a space in which women regularly receive anonymous rape threats and people of color receive racist diatribes from strangers. It’s a problem of having built our prejudices into the machine, so that they take on new life, reproducing, generating, mirroring, magnifying, and ultimately ruling us in the great singularity of our robotically simulated kingdom come.
This brings us back to Donald Trump, who lays claim to knowledge but still doesn’t know. As Neil Postman observes: “technology imperiously commandeers our most important terminology. It redefines ‘freedom,’ ‘truth,’ ‘intelligence,’ ‘fact,’ ‘wisdom,’ ‘memory,’ ‘history’—all the words we live by.”
All the internet knows is what’s a proper noun, after all. “We’re going to build a wall, and Mexico is going to pay for it,” opined Tay, before Microsoft finally killed her.
On May 16, the Supreme Court issued a terse per curiam opinion deferring resolution in the case of Zubik v. Burwell. The petitioners were nonprofit employers who argued that federal rules requiring employee health benefits for birth control were contrary to their religious beliefs. They maintained that even merely requiring employers to opt out by formally asserting a conscientious objection substantially burdened the free exercise of their beliefs. For now, the justices chose not to decide that issue, instead remanding it back to the Court of Appeals level, requesting further briefing as to “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” This deflection has postponed a contentious showdown pitting reproductive rights against religious rights—a contest that has become all too familiarly fraught in recent years.
What makes Zubik particularly important is the precariousness of the constitutional principles at stake. In an earlier challenge to the Affordable Care Act, Burwell v. Hobby Lobby, the Court held that a family-owned corporation could refuse to pay for insurance under the ACA, based on the owner’s belief that contraception is a sin. Hobby Lobby, in other words, invited the current impasse about the degree to which businesses and other organizations may pick and choose—that is, discriminate—among the laws they will respect.
The ultimate outcome in Zubik will also shape public accommodation as a component of basic public health for years to come. Lack of access to gynecological and obstetrical services hobbles not only women’s personal “choice” but also public policies having to do with familial well-being and overall social welfare. Public health is hardly best served by allowing its administration to rest with the whimsical gods of one’s employer. (Dionysius doesn’t believe in blood-pressure medication. Baal has a thing about vaccines.)
In any event, Zubik’s petitioners represent but one strand of a peculiarly American brand of antigovernmentalism, some strands of which can be traced back to Reconstruction-era theologies of states’ rights. Other sources include antitax revolts, the racialization of welfare benefits, and the rise of Ayn Rand–style libertarianism. Over time, these forces have led to reductions in Medicare, the disappearance of all manner of maternal and child healthcare, attacks on Head Start, the virtual nonexistence of mental-health infrastructure, the reluctance to fund studies of gun violence as a health issue, and the erosion of air and water-quality controls. In an era when climate change, industrial toxins, and global migration combine to increase exponentially the odds of mass contagion, pollution, and bioterrorism, the purposeful impoverishment of collective response has put us all at grave risk.
Consider one example: With the rise of the Zika virus, some public-health agencies have advised women to delay pregnancy, given its link to microcephaly in fetal development. This has overlapped in predictable if incoherent ways with already vexed debates about sexuality, gendered poverty, and access to contraception, abortion, and healthcare. It remains to be seen whether the “best interests” of encephalic children born during an epidemic will be left to the private decision-making of families, or if we might expect the intervention of some broader programs of support. Says Tarah Demant, senior director of Amnesty International’s Identity and Discrimination Unit, “It’s putting women in an impossible place, by asking them to put the sole responsibility for public health on their shoulders by not getting pregnant, when over half [in Latin America] don’t have that choice.”
While Zika’s greatest risk is to fetuses, the virus is correlated with other potentially devastating conditions such as Guillain-Barré syndrome. Moreover, what may seem to Americans like its sudden prevalence is related to the slow encroachments of global warming—and we who are not to the tropics born should know that the same mosquitoes which carry Zika also carry dengue hemorrhagic fever. This alone poses the threat of skyrocketing emergency-room costs, well before we get to the question of long-term care for the permanently disabled. Public health’s main mission is prevention; that mission is unrealizable if we understand disease only as the personal responsibility of those individually afflicted.
This is not a narrow question of risk-benefit analysis. If, as a legal matter, we assign the burden of control to the nonscience of individual or religious choice, we create a vacuum in which the politics of fear may overtake us in the event of an actual (or just a threatened) pandemic. When the Ebola crisis was at its peak, there were hyperbolic calls for walled borders and the quarantine of those who posed no medical risk. At the height of the HIV epidemic, moral panic far outstripped the actual risks of transmission, stigmatizing gay men as untouchables. The lead-poisoned water supply in Flint, Michigan, wasn’t merely the result of bureaucratic inattention, but also of a widespread and long-term affective aversion to the ethnically and racially marked humanity of its residents.
Everywhere and always, disaster narratives of invasion by contagious bodies inflect immigration policy, educational access, employment opportunity, rights to movement, and public accommodation. Such narratives draw lines; they reinforce circles of identity; they monsterize and idealize; they underwrite superstition as well as forge truths. We know that resource allocation crossed with sacralized belief can structure better or worse social responses not just to birth control, but also to outbreaks of syphilis, tuberculosis, cholera, malaria, poisonings from toxic spills, putative invasions of “Africanized bees,” and leprosy. The imagination of disaster only goes so far in the preparations for an actual disaster. But the meta-knowledge of how ideologies of calamity, contamination, and cleanliness intersect with law, politics, and public health just might bridge the gap.