II. Section I: Mackinnon and Exploding the Private Sphere

MacKinnon’s famous criticism of the private sphere comes through her criticism and discussion of the previous legal regulation of abortion in the United States, specifically the Roe v. Wade Footnote ⁴ decision and the subsequent Harris v. McRae Footnote ⁵ decision. She argues that the decision by the U.S. Supreme Court to grant the right to abortion as part of the right to privacy was not the feminist victory many thought. The justification for the decision was that the right to privacy protected women’s decisional right to choose whether or not to abort their fetuses. Before Roe, the concept of privacy had been used in the United States to decriminalize contraceptives between married couples, and privacy existed as a constitutional principle.Footnote ⁶ MacKinnon argues that one reason we can tell that the decision in Roe was not the feminist victory we wanted is partly because the later decision in Harris was, she contends, completely in keeping with the decision in Roe. And Harris in MacKinnon’s view is a clear loss for the feminists. So, if the decision in Harris is in keeping with Roe, then Roe cannot be a feminist victory. The Roe decision protected women’s right to choose abortion. However, in the Harris decision, the Supreme Court decided that the State did not need to provide funding through Medicaid for abortions. As MacKinnon points out, the decision in Roe is not based on women’s right to equality, and so abortion access is not recognized as fundamental to women gaining equality in the United States. And so, at least MacKinnon thinks, the court was destined to decide the way it did in Harris. The State, said Roe, needed to protect the privacy of women deciding, but did not need to help or support women in accessing abortion. And so came Harris.

But it is not just that Roe was decided on grounds of privacy rather than a more substantive understanding of equality or freedom. MacKinnon goes further in her criticism and seems to suggest that deciding abortion under the auspices of privacy actually benefits men (perhaps even more than women) because now powerful men can get women abortions. She situates the discussion of abortion access within the patriarchal context, claiming that most liberal discussions of abortion proceed “as if the woman just happened on the fetus” (MacKinnon 94). She wants us to see that sexual interactions between men and women do not happen on an equal playing field of power. Sex and abortion often occur in contexts where women feel coerced or pressured to have sex with men because, say, their dates bought them dinner or they went back to their date’s place after dinner.Footnote ⁷ This part of her analysis is important because she sees the privacy justification in the Roe decision as another way of making women available for sex. After all, men will not have to deal with the consequences of sex because the man can get the woman an abortion. Girlfriends and mistresses can access abortions via the wealthy and powerful men in their lives. This eliminates the consequences of sex for powerful men.

For MacKinnon ( Reference MacKinnon1987 ), the law of privacy protects “… the individual bodily integrity, personal exercises of moral intelligence and freedom of intimacy” (97) of men, but she stresses that no one seems interested in those guarantees for women. She continues, “the right of privacy is a right of men ‘to be let alone’ to oppress women one at a time” (102). Men’s privacy and men’s private sphere are in tension with women’s privacy and women’s private sphere. In many ways, this is similar to MacKinnon’s criticism of pornography—men’s and pornographers’ free speech is promoted and protected at the expense of women’s free speech. That’s why she says pornography silences women, literally.Footnote ⁸ In the case of privacy, she thinks, in a patriarchal society, women need to not be left alone.

MacKinnon has two types of criticisms against privacy. First, there is the concern that the existence of a private sphere brings with it the opportunity for and vulnerability to particular kinds of harm. This is the classic feminist critique of the private sphere, which recognized that the protection of privacy enables certain kinds of harms to women to occur.Footnote ⁹ Thus the assertion that the family belongs to the private sphere—meaning a space in which what happens is personal (the responsibility and interest only of the family), inaccessible to outsiders, and free from interference (both regulation by the State and accountability to the State and society generally)—has exposed women to particular harms, such as domestic violence, marital rape, and the costs of unequal domestic labor, and has left women with no obvious recourse in the face of such harms (“it’s a family matter—best not ask about it, best let them sort it out”). Consider domestic labor. Classifying domestic labor as a private matter or a public one does not necessarily entail a particular division of that labor—if the decision is a private family matter, an individual family may choose to divide the household responsibilities in a variety of ways. But if the decision is a private matter, outsiders (including the State) are less likely to interfere with it or hold the family accountable for it. The very nature of privacy makes private matters difficult to reform except on an individual case-by-case basis. The only way to address the unequal burden placed on women is to hope that individual persons will make different decisions. That, in turn, means that the same old gendered division of labor is often adopted (if only out of tradition or habit) and then (as a private decision) protected. If, in contrast, the division of domestic labor is a public matter, the unequal burden placed on women can be addressed by calling people to account for their division of domestic labor, by regulating to alleviate some of the burdens placed on women (e.g., by offering financial incentives to men to take paternity leave, a model adopted in Sweden), and by promoting public discussion, review, and criticism of the issue. The call to reclassify a private matter as public can be a powerful way of challenging the injustice of the status quo and makes good on MacKinnon’s criticism. The move from private to public forces a reckoning on a wider scale. That may stigmatize conduct that has hitherto been considered normal (such as the sexual harassment of women in the workplace), or it may normalize conduct that had been considered shameful (such as abortion). And so the push into the public forum can change society’s attitudes and approaches towards conduct once thought to be none of its business. Notably this concern applies however we define the content of the private sphere—that is, by designating a sphere as personal, inaccessible, and free from interference, it follows that persons’ conduct within that sphere will be unknown, unobserved, and invisible, and not controlled by, or accountable to, the State or public opinion.Footnote ¹⁰

The second concern is one about how we define the content of the private and public spheres and, specifically, a concern that the selection and presentation of the division between private and public is problematic. It has to do with the way we think and talk about the sort of thing the private sphere is and what is implied and communicated when someone says that abortion (or anything) is a private matter. Privacy is classically understood to protect our interest in controlling our image and the use of our property,Footnote ¹¹ and having our privacy protected ensures our ability to form intimate and trusting relationshipsFootnote ¹². And so what is private calls for a presumption of noninterference.Footnote ¹³ The choice between what belongs in the public sphere and the private sphere is often presented as carving nature at its joints (as though the private could be discovered at the end of our microscopes), which has the consequence that the division is not up for discussion (and thus it is not for us to decide what should be personal, inaccessible, and not interfered with, or not). But, of course, there is no natural and self-announcing division between public and private. This is what the famous feminist battle cry “the personal is political” means. Yes, the choices we make in our personal lives are political, and the personal is a matter of justice. For example, where we buy clothing from—shopping second-hand and participating in “no buy” months could be a protest against fast fashion, consumerism, bad labor practices, environmental degradation, and so on. We do not have to be in the public square to be engaged in politics. But perhaps more importantly, “the personal is political” reminds us that the choice about what is personal is political in that it reflects political values. Thus, the decision, for example, to characterize the allocation of domestic labor as private (one for individual families to make) reflects a political choice not to interfere with, observe, or hold to account matters that happen inside the family with a particular notion of the family in mind.Footnote ¹⁴

MacKinnon contends that the parts of our lives that are shunted to the private sphere are lost to secrecy, shame, and isolation. Women and pregnant people will not be able to get together and talk—discuss their experiences of pregnancy, abortion, and sexual assault, among other things. The private sphere keeps women from each other. It precludes women and pregnant people from having that “aha” moment with each other where they confirm each other’s experiences and validate their choices. “Yes, my abortion was good for me. I do not regret my decision.” Instead, women are left on their own to grapple with how they felt about their choices and what society seems to say about abortions: that they are immoral and shameful, perhaps sometimes permittable but always regrettable. This isolation not only prevents women and pregnant people who have had abortions from connecting, but it also prevents them from acting collectively to challenge the legal regulation and pernicious norms surrounding abortion. So, the private sphere lets the harms to women fester and remain out of reach for mutual aid and bonding. And it leaves them to the mercy of the men in their lives—the men in their private spheres. This is why MacKinnon says that the Roe decision only gives women what the men in their lives will give them. There is the assumption that relationships in the private sphere are founded on intimacy, and the intimacy is protective and means just, good, kind relationships.Footnote ¹⁵ But, of course, this is not necessarily the case.

Classifying abortion as a private matter—one that is not to be interfered with by the state—protects the right to choose, but it does so in a very specific (and limited) sense. The treatment of abortion as a private matter has also had other effects. Abortion has long been surrounded in secrecy, not least because of the shaming, criticism, and dehumanization of women and persons who have chosen to speak out about their experiences of abortion. The same is true of sexual harassment and assault. Many women refrain from sharing their experiences in these areas publicly (or even amongst friends). That silence is understandable, but it has allowed many pernicious views to persist or go unchallenged—that only careless or loose women need abortions; that only easy women get assaulted; that those who complain about sexual harassment are uptight and cannot take a joke. And so the feminist critique and even the more radical claim of explosion from MacKinnon is powerful. In what follows, I aim to bolster those claims.

It is important to be precise about the aspects of MacKinnon’s argument against privacy I want to bolster and how I see MacKinnon and Gavison as not in tension. I take it that part of MacKinnon’s project is to make a legal argument about using the right to privacy to ground abortion access in the United States.Footnote ¹⁶ Specifically, she seems to be contending that had the courts made their decision based on equality, then abortion would have had better legal protection in the United States rather than the flimsy protection offered by privacy. So, legally speaking, abortion rights would have been better off in the United States if the court had gone another way, specifically via equality, and seemingly, Harris would have been decided differently. As Gavison (Reference Ruth1992) points out in her analysis of MacKinnon, it seems unlikely that basing abortion protection in equality rights would have offered more protection. Here, I agree with Gavison in her criticism—it was not exactly privacy’s fault that abortion got such feeble protection; it seems almost inevitable in the context of the United States. A large issue seems to be that abortion is not an enumerated right and is a highly political issue.Footnote ¹⁷ But MacKinnon is also making a moral/political point about privacy and the private sphere, which justify her claims that we ought to explode it. It is this aspect of MacKinnon’s argument that I want to support. I want to show that this part of her argument is not in tension with Gavison’s claim that privacy is important for women, and—moreover—that MacKinnon’s argument relies on the value and importance of privacy for women. That is, if privacy were not valuable for women, we could not explode the private sphere.

III. Section II: #MeToo, #ShoutYourAbortion, and Standing

In this section, I argue that part of what the #MeToo and #ShoutYourAbortion campaigns did was set out to debunk the view that women did not have standing with respect to matters concerning sexual harassment and assault and abortion. This section uses the campaigns to demonstrate how standing norms have been used to oppress women. By thinking about standing in relation to the myths and the campaigns, we can make sense of why the campaigns appeared to have had more impact than the statistics surrounding these matters did. And so this analysis has explanatory power. Now, it may also be the case that these sorts of stories just in and of themselves have more political purchase and that, given the type of beings we are, stories from people we know do more to move and motivate us. Moreover, #MeToo, in some of the more high-profile cases, resulted in multiple complaints against the same man, for example, Harvey Weinstein. Repeated complaints make each complaint more credible, which makes each woman more likely to be believed and less likely to face retaliation. It also increases the likelihood that third parties will take action against these men and has even resulted in the charge and conviction of a few men. However, the convictions of WeinsteinFootnote ¹⁸ and Bill CosbyFootnote ¹⁹ have recently been overturned.

#ShoutYourAbortion was largely a Twitter campaign led by the journalist and political commentator Lindy West and activists Amelia Bonow and Kimberly Morrison.Footnote ²⁰ The campaign, as one might guess, asked women to publicly acknowledge—shout—that they had had an abortion and to provide some details of the experience. The motivation behind the campaign was, in large part, an effort to normalize abortion and to undermine the stigma and shame that still largely surrounds the procedure.Footnote ²¹ The campaign also set out to undermine the idea that only a certain kind of woman chooses to have an abortion and that their experiences of abortion are largely negative. The tactics of this campaign were a positive attempt to change the way the public regards and how the State regulates abortion.

The phrase “Me Too” was first used on social media by activist Tarana Burke in 2006 to empower women, particularly women of color, who were victims of sexual violence and assault.Footnote ²² In 2017, #MeToo became a viral hashtag when it was tweeted by Alyssa Milano and other women. It asked women to identify themselves as “MeToo” insofar as they had experienced sexual assault and harassment, particularly in the workplace. Much like the #ShoutYourAbortion campaign, the #MeToo movement aimed to alter society’s perception, in this case of sexual harassment and assault, including its perception of the types of women who are harassed or assaulted and the frequency of these experiences, and to shift that perception to better reflect reality.

MacKinnon observed that the #MeToo campaign had achieved what sexual harassment laws had thus far failed to.Footnote ²³ According to MacKinnon, the #MeToo campaign worked to wear down two big barriers in “life and law” to ending sexual harassment: “the disbelief” and the “trivializing dehumanization of its victims.”Footnote ²⁴ How did the campaign do this? By forcing society to confront the experiences of women en masse in respect of a matter that hitherto had largely been regarded as private, and in doing so, attempt to debunk myths that denied women standing on these matters.

What is it to say that women do not have standing? What is standing? Questions about standing are, roughly, about which persons occupy the correct position to perform some act rightfully or make some judgment of another’s action.Footnote ²⁵ Such questions arise in law, philosophy, and everyday life. The law asks who has the standing to bring a constitutional challenge. Moral philosophers ask who is in a position to blame or forgive. A person may reply to their judgmental friend, “Look who’s talking. Are you really in any position to criticize me?” These issues of standing are separate questions from whether or not the challenge has merit, whether the action is blameworthy or forgivable, or whether the friend’s criticism is valid. Questions about standing are not concerned directly with such matters but with the speaker’s right to speak to such matters. The point of questions about standing is that not just anyone can bring the claim, or blame, or forgive, or criticize. We need to find the right person, the person with standing.

The philosophical literature has examined standing to blame, criticize, call to account, as well as standing to praise and forgive. What I have in mind here is a similarly capacious category of action that seems to require standing. Women—so the myths imply—do not have standing to blame their assaulter, do not have standing to criticize legal regulation of abortion services, do not have standing to ask the state to intervene, do not have standing to criticize rape culture, and so on.Footnote ²⁶ Standardly, philosophers argue that someone loses standing to blame or criticize for these reasons: (1) One’s blame would be hypocritical. (2) One was involved in the person’s wrongdoing. (3) The person’s wrongdoing is none of one’s business.Footnote ²⁷ As we will see, all three standing norms have been used against women. The myths paint a picture of women as hypocrites or codefendants such that they do not have standing. Moreover, the myths suggest that things are not morally straightforward, and so the public should stay out of it—it is not our business. The precise version of the claim will depend on the specifics of the case. For example, someone who insists that a woman who accuses her boss of sexual harassment continued to work for him and accept raises as a way to undermine the woman implies (among other things) that the women benefitted from the attention she received at work and so cannot complain about it now. That woman’s criticism would be hypocritical, and so she does not have standing. The myths say: Only sluts and women of a certain type need abortions.Footnote ²⁸ Women dress provocatively at work and like the attention. Women use their sexual power to get ahead. The body will shut down pregnancy if it is a “legitimate” rape.Footnote ²⁹ What these myths accuse women of is being somehow complicit in any wrongdoing that may have happened, responsible for whatever situation they find themselves in, and of being hypocrites with questionable moral records.Footnote ³⁰ Therefore, they are not in a position to rightfully complain about it. The #ShoutYourAbortion and #MeToo campaigns attempted to undo these myths—with personal stories from all sorts of women in all sorts of situations—and thereby set out to debunk the view that women do not have standing.Footnote ³¹

It is worth pausing here and reflecting on why it might be beneficial to deny that women have standing on these matters. Remember, when someone’s standing is questioned, one is able to skirt the discussion of the substance of the debate.Footnote ³² Undermining and questioning standing can be a useful strategy in moral and political arguments and debates. To begin with, it tends to be far easier to attack a political opponent’s standing to speak than it is to disprove or discredit their claims.Footnote ³³ This can be a particularly valuable tool where there is deep and divisive disagreement and where it seems futile to try to convince dissenters and even good faith opponents that their position is incorrect or based on a mistake. Attacking the standing of those on the opposing side, however, offers a different strategy and a different kind of critique. One can ignore the substance of the question or debate, call into question some advocate’s standing, and thereby attack the speaker’s right to speak and undermine whatever they might say or even have said in the past.Footnote ³⁴ An example of a debate that seems characterized by this sort of polarization is abortion access and reproductive rights. Those on the pro-choice side may never convince some antichoice believers that abortion is permissible, but we may be able to dismiss, undermine, and even silence, a conservative politician who condemns abortion—including in the eyes of the politician’s supporters—by exposing that politician’s hypocrisy (say, by revealing that they recently paid for a girlfriend’s abortion) and thereby attacking their standing to speak. The thought is that while we may never agree about the moral permissibility of abortion, we can all agree that hypocrisy is intolerable and the hypocrite has no standing to tell us what to do. Another strategic benefit of merely questioning someone’s standing is that we do not engage with the substance of what is being said and can therefore stay at arm’s length from it and not commit ourselves to any particular view on the matter and maintain plausible deniability should some unsavory view be attributed to us.Footnote ³⁵ The benefit of this type of criticism is perhaps especially valuable with respect to matters of sexual assault, harassment, and abortion access. One need not reveal that one has perhaps extremely misogynistic views about rape or abortion. Rather, one can just point out that we all agree that if you are a hypocrite—like the woman who dresses “provocatively” at work for advantages and then complains when she gets unwanted attention—you cannot rightfully complain. True, this is also a sexist view, but its antihypocrisy flavor makes it more palatable.Footnote ³⁶ There is surely a spectrum of out-and-out sexist views to the more subtle ones. There are perhaps some views that even seriously regressive groups would not publicly endorse, but there are others—like the versions of these myths I have been discussing—that people will publicly endorse.

In politics and in daily life, we are familiar with criticisms that question standing—accusations of hypocrisy and/or complicity (surely part of what some of these myths did) and claims that the topic is none of our business are all claims that call into question the target’s standing. And when our standing is questioned, a potentially successful reply is to demonstrate that one does, in fact, have standing. I with Whelan (2023) discuss this aspect of standing in the context of the accusation of hypocrisy to support a feminist case against attacking a supposed hypocrite’s standing. Consider our example: Imagine a woman who publicly advocates for the normalization of abortion and the breakdown of secrecy around abortion. Is she required to disclose her reproductive history in order to make this claim? If she refuses to do so, she may well be accused of hypocrisy. Thus, her standing to advocate for reproductive rights may be impugned.Footnote ³⁷ In order to prove that she has standing, she would have to reveal what she had kept private, namely her reproductive history. The point is more general: when our standing is questioned—say because we are accused of hypocrisy—a way to regain our standing or prove that we never lost it is to make some personal revelation that responds to the accusation or acts as an explanation. When we consider how being candid or making public revelations is often a way to demonstrate that we have standing, we can see better how #MeToo and #ShoutYourAbortion are partly responses to having women’s standing questioned. The parallels between the individual case and the collective case should become apparent.

Sometimes, revealing what was private to prove one has standing is not that difficult, but other times, it can be quite onerous. The #MeToo and #ShoutYourAbortion asked women to reveal what was previously private in an attempt, I argue, to prove women had standing. And this was an onerous ask. Indeed, undoubtedly, the collective action aspect of the campaigns was intended to protect the women and people who participated. There is safety in numbers. I am suggesting that many of the myths surrounding abortion and sexual harassment had a similar effect to an accusation of hypocrisy in that they undermined women’s standing. And the campaigns involved women collectively revealing what was private to prove their standing. But the point is broader—women are often called upon, or required, to give up their privacy and expose themselves in ways that make them more vulnerable even where there is no valuable political movement. They are required to expose information that is typically regarded as personal and intimate so that we can decide if they are trustworthy, reliable, and worthy of respect. This is often reflected in the way the media approaches politicians’ “family lives.” A female politician who does not have children (surely a private matter) is called to account for this; a male politician with many affairs and heirs does not have to answer for this because it is a private matter.Footnote ³⁸ A female politician with children is asked how she will handle her childcare arrangements, whereas no inquiries are made into a male politician’s arrangements. Privacy is a privilege and one that women are often pressured to give up. Thus, women are forced to forgo the protections that privacy can offer.

The myths that #MeToo and #ShoutYourAbortion set out to dislodge from public consciousness painted women as complicit and hypocritical, and thereby questioned women’s standing to blame and criticize with respect to issues of sexual harassment and assault and abortion access. The tweets of #MeToo and #ShoutYourAbortion aimed at exposing them for just what they were—pernicious myths. And they set out to prove that women had standing, just like an individual woman who advocates for abortion normalization may have to reveal her reproductive history to prove she has standing.

#MeToo and #ShoutYourAbortion also gave the public standing. Traditionally, reproductive choices and sexual activity were and often still are considered private matters. As we saw in Section I, what is private is often considered out of bounds for strangers and state intervention. This is famously what kept the state and criminal law from intervening in cases of domestic violence. It was a matter between a man and his wife to sort out. It was their private business. Now, we might all agree that violence where a wrongdoer physically harms their victim is a clear case where the state should intervene, and so insofar as women were experiencing violence, then it is not a private matter, and so everyone has standing. But we have to remember the work of these myths is to muddy the water so it does not seem so straightforward. Sometimes, the myths work to highlight all sins and missteps of the victim so we care less about them or think the perpetrator may have been justified. And so we might come to conclude that any particular situation is too complicated for us to assess one way or the other, so we will just stay out of it. And so, the myths themselves use the shield of the private sphere to keep intervention and questioning at bay. But when these campaigns put a spotlight on the issues and put personal stories in the public square, they made them everyone’s business. And they thereby gave everyone standing. Women were thought to lack standing because they were thought to flunk the nonhypocrisy and/or noncomplicity conditions, and the public lacked standing because they were thought to flunk the business condition (but now they explicitly satisfy it).

I want to return now to the relationship between the credibility tactic of the myths and the standing tactic of the myths that I briefly mentioned in the introduction. Certainly, part of what the myths around sexual assault and harassment and abortion did is contribute to a culture in which women will not be believed should they speak up about their experiences and/or assault and generally undermine women’s credibility. My arguments here about standing should not be understood as challenging this view. Rather, examining the role of suppressing women by attacking their standing is complementary to examining how the myths undermine their credibility. Perhaps the latter is/was the main goal, so to speak, of these myths. But I would press that much of what these myths did was victim-blame, and part of what we do when we victim-blame is say that what happened is the victim’s fault—and hence that they lack the standing to blame or criticize the person who wronged them. Consider some victim-blaming responses to a report of a sexual assault: “Why did you go back to his apartment?” “Had you been drinking?” “Why were you alone with him?” “What did you do to get him to stop?” One interpretation of these questions seems to be that the inquirer is suggesting via their question that they suspect that the woman really did consent, and so there was no assault. This interpretation claims that the questions go to the truth of the woman’s accusation. There is, however, another interpretation of the questions where they do not so much go to the truth of the woman’s testimony but rather the role the woman played in the events. For example, the questions might be suggesting that because, say, the woman went to his hotel room, it was reasonable for the man to think that the woman was consenting. And so, his actions, while regrettable, are actually her fault, and she, therefore, cannot now rightfully blame him or ask for legal intervention. Another plausible interpretation of the question is that they see the woman contributing to the man’s actions, although perhaps not making it reasonable for him to think she consented, but that she engaged in risky behavior herself and so now has to deal with the consequences. The idea seems to be that “you’ve been playing with fire and so cannot complain about getting burnt.”Footnote ³⁹ It would be hypocritical for you to now object to the man’s behavior. One can see how the strategy of undermining a woman’s credibility and denying her standing work together to silence her. This reiterates the importance of my project, which sets out to show how undermining women’s standing and denying women’s credibility work together to undermine women’s capacity as testifiers, which silences and excludes them.

IV. Section III: Exploding the Private Sphere

The previous section argued that the pernicious myths surrounding sexual harassment and assault and abortion were an obstacle to the recognition of women’s standing. And that one of the aims of the #MeToo and #ShoutYourAbortion campaigns was to quash the idea that women did not have standing. The first half of this section argues that women’s collective revelation of personal experiences was a form of exploding the private sphere. The second portion of the section contends that advocating for the explosion of the private sphere, like I and MacKinnon have done, does not entail denying the value of privacy. In fact, it is because privacy is valuable that the explosion worked! In making this argument, this section shows that MacKinnon ( Reference MacKinnon1987 ) and Gavison (Reference Ruth1992) are not in substantial disagreement about the value of privacy for women.