Fear and the “War On Women”

by Christopher Arend

The very idea that the Republican Party and the conservative movement in general are engaged in a “War on Women” is laughable to anyone active in the Republican Party, yet in the 2012 election Mitt Romney got only 44% of the female vote compared to 56% for President Obama.[1]  Two conservative candidates for the Senate, Todd Aiken in Missouri and Richard Mourdock in Indiana, saw their very strong campaigns fizzle and finally fail after making clumsy mistakes on women’s issues.  Rick Santorum was clearly hurt by his comments on contraception, and those comments will continue to haunt him if he runs in 2016.  That should put a stop to any laughing.

The Democrats played on fear with the “War on Women” to great effect in 2012 and are obviously intending to do so again in 2014 and, of course, in 2016.  Just the words “War on Women” are designed to promote fear by demonizing conservatives as an enemy to be defeated on the field of battle.  The Democrats use the issues of abortion and mandatory health insurance for contraception as a basis for accusing conservatives of wanting government power to control women in the most intimate aspects of their lives, while trying at the same time to create the absurd impression that Republicans are somehow against equal pay for equal work.  It’s child’s play for the mainstream propagandists to direct the focus of female voters to such personal issues to curry favor for the Democrats.  This article addresses the three main current issues raised under the banner of the “War on Women”.

The “contraception mandate”: 

The Democrats and the mainstream media are well practiced in the art of “rope-a-dope”, as they so aptly showed in the Sandra Fluke controversy, the first battle in the 2012 edition of the “War on Women”.  This controversy started when the Department of Health and Human Services issued a regulation requiring virtually all health insurance plans to cover contraceptives and certain abortive agents (the “contraception mandate”).  No crystal ball was needed to see that this would immediately trigger a conflict with people of many faiths, especially the Catholic Church.  This case is now before the Supreme Court in the Hobby Lobby matter, and a decision is expected in about 3-4 months.

The Hobby Lobby case has nothing to do with denying women access to contraception or discrimination.  Nobody is arguing that Hobby Lobby has a right to prohibit its employees from using contraception or abortive agents or, for that matter, getting abortions.  The issue before the Supreme Court instead involves the fundamental question about the extent to which the government must make exceptions for religious beliefs: Does the government have a “compelling interest” that justifies forcing a corporation to pay for insurance coverage for contraception and abortive agents in violation of the religious beliefs of the persons who control the corporation.

The First Amendment recognizes the highly personal nature of religion by prohibiting Congress from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof”.  When a law conflicts with religious beliefs, freedom of religion trumps the law unless the government can show a “compelling interest” which cannot be met by a less onerous measure.[2]  It is likely that the Supreme Court will hold that the owners of Hobby Lobby do not lose freedom of religion just as a result of conducting a commercial business through a corporation and that the government has no “compelling interest” in forcing employers to cover contraception, especially since the government can fund contraceptives and abortive agents with general tax revenues without infringing on the religious freedom of the business owners.[3]

The mainstream media has tried to characterize the “contraceptive mandate” issue as a fundamental question of women’s rights and protection against discrimination.[4]  This broad brush approach completely misrepresents the issue and then plays on a deep seated fear in many women about the government interfering in their personal lives.  This deception then opens the way for an infinite amount of diatribe.  Just wait for the screaming this coming summer if, as is likely, the Supreme Court finds that the contraception mandate does not trump freedom of religion.

We cannot control how the Democratic Party and the mainstream media cast their arguments, but we can counter them effectively by following two basic rules.  First, focus discussion on the actual issue.  Rick Santorum was roped into going off point and discussing contraception in general at the beginning of 2012.[5]  His repeated references to his Catholic faith and his submission to the teachings of the Church also hurt him politically.  Americans view religion as a personal matter, and they understand that government is a secular institution.  Second, treat women’s issues with respect and sensitivity, just like any other issues having great impact on the individual.  Humor is not helpful and indeed often harmful.  Rush Limbaugh’s failed attempt at a joke with his convoluted “slut” comments about Sandra Fluke played right into the Democrats’ hands and hurt Republican candidates in 2012 even though they all quickly distanced themselves from Limbaugh’s remarks.



This is perhaps the most divisive issue in the country and has dominated the political debate for decades.  Every conservative politician dreads the question, “Are you pro-life or pro-choice?”  While virtually every Democrat will immediately respond, “I am pro-choice,” Republicans stammer and stutter, knowing that a simple “I am pro-life” can knock them out in the main election, while a simple “I am pro-choice” will knock them out of the primary.  The most common approach by our candidates is deflection, along the lines, “This is the law and we have much more important issues to discuss such as jobs and the economy.”  Failure to address such a major issue, however, is a clear sign of personal weakness.  What’s a conservative to do?

Any conservative confronted with the question, “Are you pro-life or pro-choice?” should immediately respond that the abortion issue is much more complex than the slogans “pro-life” and “pro-choice”.  No sane person would say that they are “pro-death” or that they favor a woman having “no choice” when it comes to pregnancy.  Just demonstrating an appreciation of the complexity of the abortion issue goes a long way towards defusing the emotion in the discussion.

The abortion issue is intensively emotional on both sides of the debate, and an emotional discussion gives a liberal Democrat a home field advantage since they can then play to the fears about the horrors of back alley abortions.  The more dispassionate and rational the conservative analysis, the more receptive people will be to a relatively conservative position.  Regardless of whether a conservative is a candidate or a private person discussing politics with friends and family, being a good advocate is essential in politics.  A good advocate, just like a good lawyer, never loses sight of the objective, namely, communicating the own position with as much effect on the jury as possible.

The abortion issue should not be addressed in the secular game of politics by simply appealing to religion.  The political debate about abortion is by nature fundamentally a secular issue about the circumstances, if any, under which the state should punish abortion.  Many conservatives have strong religious grounds for opposing abortion, but Americans are loath to pass laws based primarily on appeals to religion.  Arguments derived from a set of religious beliefs also completely fail to reach people who do not share the same religious beliefs.  The abortion debate often turns into a discussion about when “human life” begins, with both sides couching their arguments in terms of science, but this discussion about the beginning of human life quickly turns into a debate about when the developing baby has the start of a “soul” or the ability to develop mental activity or other more or less intangible circumstance.  Finally, focusing on religious arguments detracts from substantial secular arguments that support a conservative position on abortion.

The discussion below briefly outlines the main aspects which are relevant in a secular analysis.  The reader may not agree with the conclusions, especially if the reader is of the view that the government should extend its protection back to the time of conception, but in any event the reader should understand the main parameters for any secular analysis.

The abortion issue involves the interests of the woman who has become pregnant, the interests of the potential baby (both as fetus and embryo[6]) and the question about when the government should use its police powers to extend its protection to the developing baby by punishing a woman and medical personnel involved in an abortion.  The complexity of the abortion issue becomes readily apparent upon looking at some typical circumstances in which abortion occurs.  There are situations in which virtually all Americans give priority to the woman’s choice.  For example, nobody would dream of punishing a woman who aborts a pregnancy because her life is at risk.  It is exactly this priority given to a woman’s choice that also justifies a woman having an abortion when she finds out that she has become pregnant as a result of rape.[7]

Ideally, every pregnancy would be the result of an informed choice by the woman, but this is often not the case.  Despite all our efforts to educate about how to avoid unwanted pregnancy, many especially younger women unintentionally become pregnant and only realize a few weeks later that they are pregnant.  The issue is then: When a woman has chosen to engage in sexual intercourse and willingly or unwillingly become pregnant, when must she make up her mind about keeping the child?  Is America willing to allow a woman to change her mind after she has already gone into labor?  How about until one week before the anticipated birth?  Perhaps until the baby can already survive outside the womb (approximately after the end of the 20th week of pregnancy) or perhaps until the end of the first trimester?  How far back do we go before we say that the woman has made her decision and must stick with it?

The point in time by when a woman must make her decision and finally stick with it logically defines the time after which the State would impose punishment for obtaining or providing an abortion.  The argument could be made that any woman voluntarily engaging in sex willingly accepts the risk of pregnancy so that any abortion, even immediately after conception, would be punished.  Yet past history shows that very restrictive anti-abortion laws will be massively ignored and are unenforceable in practice.  Adopting laws which are disobeyed by large portions of the population and which are very difficult if not impossible to enforce weakens respect for law in general.  Thus, the State has an interest in having viable laws that meet with broad approval.  In any event, it appears that a roll-back of abortion to the 20th week of pregnancy has a good chance of succeeding under the present law now that the U.S. Court of Appeals for the Fifth District has just recently upheld a Texas abortion law that generally prohibits abortions after the 20th week of pregnancy.[8]

There are also tragic situations in which a pregnancy initially appears normal and a major problem is only noticed relatively late, for example, upon testing the amniotic fluid or as a result of an ultrasound examination.  Must the woman then still carry the baby to term?  The common law has long recognized the general doctrine of “necessity”.[9]  This concept recognizes the fact that there are situations in which a person cannot reasonably be expected to make a decision against their own interests, even if this means that the interests of another person are hurt.  Although we might find the choice that is made to be morally reprehensible (for example, survivors adrift at sea deciding to kill and eat one of the weaker occupants of the lifeboat to stay alive[10]), we refrain from using the power of the State to punish the person who has to make such a difficult choice.  We marvel at the courage of a woman such as Sarah Palin who willingly decides to give birth to and then care for a special needs child, but the question arises whether the State should refrain from punishing a woman who makes a different choice in such a difficult situation.

Conservatives can only succeed in a discussion of the abortion issue by analyzing their own position in relation to the interests of the woman, the developing baby and the State.  Just as in mathematics, their own position should be found in the area where the three sets of interests overlap.  In any event, an ability to calmly and rationally address the abortion issue counters the emotion of fear that the Democrats love to exploit.

Equal pay for equal work – 77 cents:

President Obama used this aspect of the “War on Women” in the 2012 campaign and also flagged it as a Democratic issue again in his most recent State of the Union speech:

“Today, women make up about half our workforce.  But they still make 77 cents for every dollar a man earns.  That is wrong, and in 2014, it’s an embarrassment. A woman deserves equal pay for equal work.”[11]

This is an obvious play on the fear of being treated unfairly.  Every conservative must forcefully counter this fear by unequivocally supporting “equal pay for equal work”.  This issue is also a prime example of how Democrats exploit a “non-issue” in an attempt to cast conservatives in a bad light by using an outrageous deception.  Federal law has expressly prohibited discrimination against women in employment since the Equal Pay Act of 1963.[12]  An employer in America would be a fool to discriminate against women in the workplace in light of the risk of litigation.

Although it is correct that women on average earn approximately 77 cents for every dollar men earn on average, empirical studies have shown that this is not the result of discrimination.  A leading study for the U.S. Department of Labor in 2009 found that the gender gap in pay is instead a result of other factors such as men and women choosing different occupations, women taking longer interruptions to have children and other life choices.[13]  Another recent paper by the American Association of University Women (AAUW), a relatively liberal organization, also found that most of the gender pay gap among college graduates “reflect[s] men’s and women’s choices, especially the choice of college major and the type of job pursued after graduation.”[14]

The 77 cents discussion involves an abstract number which, although saying nothing about discrimination, upsets the self-proclaimed “intellectual” elite on the political left who, due to their ideological, authoritarian approach to society, fail to realize that social engineering is best left to the hundreds of millions of individual members of society rather than allowing academic elitists to treat society as an experimental laboratory.


[2]      The “compelling interest” test was expressly established for the federal government in the Restoration of Religious Freedom Act of 1993.

[3]      A detailed discussion of the Hobby Lobby case goes beyond the scope of this article.  The arguments are discussed in detail in Hobby Lobby’s brief of 10 February 2014 at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-354-bs-1-copy.pdf .  Links to all of the filings in the Supreme Court case are at http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/ .

[4]      See e.g., NY Times article “Ruling Could Have Reach Beyond Issue of Contraception” at  http://www.nytimes.com/2014/03/25/us/contraception-ruling-could-have-reach-far-beyond-womens-rights.html?_r=0

[5]      See the abc news article in Feb 2012 recalling Santorum’s comments in 2006 at http://abcnews.go.com/blogs/politics/2012/02/rick-santorum-declared-contraception-harmful-to-women-in-2006/

[6]      I prefer to use the legal term word “nasciturus“, i.e. Latin for “that which shall hereafter be born as distinguished from “nutus”, a child already born.” http://thelawdictionary.org/nasciturus/#ixzz2lEXLRzeM

[7]      Most pregnancies, of course, are not the result of violent rape.  Todd Aiken destroyed his 2012 campaign for US Senate in Missouri by carelessly using of terminology (“legitimate rape” when he meant “violent rape”) and demonstrating ignorance about biology when he stated that women often naturally self-abort after being raped.  Richard Mourdock in Indiana crashed his Senate campaign in Indiana when he stated that pregnancy in the case of rape is “is something that God intended to happen” (http://www.slate.com/blogs/the_slatest/2012/10/24/richard_mourdock_rape_comment_gop_senate_hopeful_says_rape_is_something.html )

[8]      Decision of 27 March 2014 available at http://www.ca5.uscourts.gov/opinions/pub/13/13-51008-CV1.pdf .

[9]      “Almost all common-law and statutory definitions of the necessity defense include the following elements: (1) the defendant acted to avoid a significant risk of harm; (2) no adequate lawful means could have been used to escape the harm; and (3) the harm avoided was greater than that caused by breaking the law. Some jurisdictions require in addition that the harm must have been imminent and that the action taken must have been reasonably expected to avoid the imminent danger.”  (http://legal-dictionary.thefreedictionary.com/necessity)

[10]     See, e.g., the English case: R v Dudley and Stephens (1884) 14 QBD 273 DC

[12]     Text of the EPA available at http://www.eeoc.gov/laws/statutes/epa.cfm .

[13]     ” Although additional research in this area is clearly needed, this study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action.  Indeed, there may be nothing to correct.  The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers.” pg. 2 of the study at http://www.consad.com/content/reports/Gender%20Wage%20Gap%20Final%20Report.pdf

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