An Observation About Fertility, Reproduction and Gender Difference

This is a digression so I’ll keep it short.  

Some days I just think the world has gone slightly mad.   I’m feeling that way today as I read this.   New legislation in Arizona (that has actually passed one chamber of the legislature and is moving along in the other!) allows employers to ask for proof that women who are using contraceptives are doing so for non-contraceptive reasons.   It seems that it is possible that failure to produce such proof could provide justification for firing a woman.   In other words, if a woman is using contraceptives as contraceptives an employer have grounds to fire her.   There is apparently no parallel provision for men who use contraceptives.   

This is staggering to me.   But rather than simply let my jaw drop at the arrogance of legislators who would vote for this, I thought I’d think about what is going on these days.  Of course, many things are and there’s much to say.  But consistent with my focus here I had one thought I’d toss out.  (And here’s hoping this doesn’t lead to the entire conversation being hijacked.)

One of the problems I see consistently in the field of parentage law is gender difference.   We may be generally committed to ideals of gender equality, but the fact remains (at least for now) that vis-a-vis conception and birth men and women are differently situated.   I mean the obvious difference–women get pregnant and give birth while men to not.

You can consider this difference to be legally important or not.   If, for instance, you say that the key thing is genetics, then the difference between  men and women isn’t important (for parentage purposes).  If instead you say that the key thing is function/nurturing, then it might be important, at least for a time.  Since I prefer the latter approach this is something I think about.

That’s a bit of a problem for me.   I understand wanting to play up the equality between men and women.  In the large scheme of things, in the long run, I believe in it.   I think men can make fine nurturing parents and women can make terrific breadwinners.   I think the difference among men in parenting styles is at least as broad as the difference between the average male parenting style and the average female, and I’d say the same for the difference among women in parenting styles.  What that means is that if you have specific men and women to consider, as opposed to the mythical “average man” and “average woman” you cannot say much about who will be what kind of parent.   

I feel this even more strongly as you move away from issues directly tied to reproduction.  There’s no reason (apart from cultural practices) why women cannot excel in any profession.   The sooner we get to a place where women are welcome in all workplaces, the better (at least in my book).

But much as I would like the differences between men and women to fade away, they aren’t doing that.    And the current assertion of the importance of gender difference is particularly troubling because it is being used to justify regulating women in all aspects of life.        

That’s what the story from Arizona makes me think about.  And this one from Pennsylvania, too.   It seems that the unique reproductive capacity of women justifies all sorts of different/special treatment by the state.   Men don’t stand to get fired because they use birth control and men don’t have the state telling their doctors what they have to be showed/told before they make decisions about their care.  

Like it or not, the difference between men and women remains all important these days.  If anything it’s grown more important over the last months.  I don’t know exactly what this means for the issues I think about here–about who’s a parent and why.   But it seems to me that acting like there isn’t something going on out there isn’t the right choice.  

End of my little rant.  So next, back to unmarried fathers in Arkansas.       



14 responses to “An Observation About Fertility, Reproduction and Gender Difference

  1. this is sick.
    i also just read that in Kansas there is a pending legislation that allows a medical practitioner to LIE to a woman if her fetus has an anomaly that might lead her to have an abortion.
    So much for ultrasounds for “infomred consent’

    • What happens if the baby dies at birth as a result because it needed to be delivered somewhere with immediate specialized care available if carried to term?

      Do they even think these things through at all? So much for “pro-life.”

    • Wow! I’m hoping this wouldn’t possibly actually get passed in any state, but I’m quite shocked to hear that something like is even being debated. The US seems to be way more different from the UK even than I already realised.

      The only time contraception comes up as an issue here seems to be how to get teenagers to use it. There was a high profile case back in 1983 where Victoria Gillick ( went to court to try to prevent the local health authority from giving any of her daughters birth control without her consent, but it’s never really been an issue in the UK for adults.

  2. Kisarita – that is in either Texas or Arizona as well…nice eh…

    Julie, I read the Arizona proposed legislation yesterday and could not see where they had the ablity to fire the woman unless it fell under the services (exams) needed to obtain the BC were solely to obtain BC so allowing the insurance to pay was fraud. I saw the ACLU was saying that but I couldn’t see it in the legislation.

    I do think the first test case if the law goes into effect will have it overturned solely because of HIPPA, although I guess they could skirt around it saying it was voluntary submission to get it approved for payment. Also the admin fee on top of it without any type of cap is wrong. The final question is will they also come back at you for the screening/exam costs if you don’t submit proof you had them done for approved medical screening especially if you refuse to submit the receipts/documentation stating you have a condition that requires the meds.

    It is all very scary.

    • That proposed Arizona law has gotten quite a bit more publicity–turned up on the front page of my local paper today. I haven’t looked at it carefully enough to figure out if it could be constitutional or even to figure out what it does. I gather it would strike a provision that says employers cannot discriminate against women who use contraception. I suppose as much as anything, though, the willingness of various legislatures to consider pieces of legislation like this and the ultrasound bills is just a sign of the times.

  3. Prescription plans often don’t cover drugs for elective procedures. Preventing pregnancy in a normal healthy reproductive system is clearly an elective treatment. Why would a woman’s employer feel the need to underwrite elective medical care? The employee’s plan would reimburse a woman the cost of Orthonovum 28 if it were prescribed to treat a medical problem like chronic acne or debilitating menstrual cramps. If the drug was not prescribed to treat a medical problem she would not be reimbursed. The reason for prescribing the drug is relevant to determining whether or not she qualifies to be reimbursed for it.

    Your point about employers not enquiring about their male employee’s contraceptive use is peculiar. What birth control? Prophylactics? Those are available over the counter. They are not prescribed by physicians therefore the employee would not be requesting reimbursement for the cost, so the question would never need to be asked or answered. You can bet that if a male birth control pill were invented, employers would be no more interested in underwriting the prescription cost than they are now with women’s birth control. We don’t have to worry about that of course because men don’t care enough to bring a drug like that to market or it would have happened by now.

    • I think the picture is not quite as simple as you paint it. First off, the specter raised here is that employers can ask women about whether they are using birth control and, if they are, then they could possibly fire the woman. There is apparently nothing similar to men–that is, they cannot ask the man if he is using birth control. Or if his partner is. Or whatever. The general point here is two-fold–it’s no business of the employer and, to the extent you think it might be, it’s no more so for women than for men. It’s a private choice.

      And how to think about birth control? I think this depends on how you think about sex, which is part of why it is so controversial. If you think engaging in non-reproductive sex is a part of a healthy life, then birth control is one of the things that allows women to do that. (It’s like I need glasses to drive or read. Under these circumstances most people seem to think glasses are a legitimate measure. But if you didn’t think reading or driving were legitimate/important activities, you might decide that my glasses were a ridiculous luxury that I could indulge in on my own should I choose to.)

      The thing is, in the absence of birth control men are far more free to engage in sex than are women–because women bear the risk of becoming pregnant. The advent of the pill–birth control women could control–allowed women to control their destiny in a variety of ways.

      You can say that birth control isn’t treating an illness because pregnancy is a perfectly natural consequence of sex, and that’s true. But the health care we get isn’t only defined along the lines of what’s an illness. It’s defined as what we need to allow us to lead healthy lives. Why, after all, does health care pay for viagra?

      It’s the underlying biological difference between men and women that makes this all so loaded. Restricting access to contraceptives is something that doesn’t have a direct impact on men but does no women. It is a basic part of well-woman care as long as women have any right at all to be sexually active.

      • because viagra treats a body part that is not operating fully functionally

        • I might buy that if viagra was only used by couples who were using intercourse for conception. But of course, it isn’t. It’s used so that men can enjoy recreational sex. If women have the same entitlement to enjoy recreational sex, then they need birth control. If enjoying recreational sex isn’t part of basic health, then men don’t generally need viagra.

          There’s a larger difference in how we are framing things here. Is the basic care we perhaps should be entitled to that designed to fix things that aren’t working right (in which case we’ll focus on what “working right” means and how “fixed” things need to be) or is the basic care that designed to allow us to live our lives with some level of basic confidence and control. Ideas about preventative medicine generally fits better with the latter view, I think.

          I’m not sure there’s any objective way to prove that one view is better or more right than the other. But I think the logical consequence of the first view is to deprive women of the same right to enjoy a sexual life that men have. There’s nothing new in that–it was true for hundreds of years. But it isn’t a view I’m eager to return to.

  4. Still waiting for the legislation that requires single men to prove that they are using viagara for non sexual purposes….

  5. Julie said: “I gather it would strike a provision that says employers cannot discriminate against women who use contraception.”

    Apparently this was/is in the prior code and has been struck OUT of the code in the new proposed legislation…

    • Right–that’s at least what I meant to say. The new law strikes a non-discrimination provision, which I think means the new law allows discrimination. I think we agree? Or am I confused.

  6. Yes we agree…horrible they did that.

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