Care and Equality (and Abortion), Redux: Constructing a Feminist Common Good Constitutionalism

Guest Blogger

For the Balkinization symposium on Julie Suk, After Misogyny: How the Law Fails Women and What to Do about It (University of California Press, 2023).

Linda McClain

Julie Suk’s call for a feminist constitutionalism that embraces both gender equality and care—as public values that government should promote—strongly echoes prior feminist calls while also speaking to the present moment. Her ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, significantly contributes to a large feminist literature on equality and care spanning decades (even centuries) and national boundaries, yet also offers all-too-timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four year into the COVID-19 pandemic and nearly one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. Further, at a time when the most hotly debated model of common good constitutionalism (“CGC”) in the U.S. is that of conservative legal scholar Adrian Vermeule, who proposes that “best way forward” for constitutional interpretation is to look “backward for inspiration” to “classical law,” Professor Suk looks to comparative constitutionalism for constructive models of an attractive alternative: a feminist CGC.  (I have critiqued Vermeule’s account of CGC in a prior book symposium on this blog.) Finally, that moment also includes a sense that transformative political and constitutional change are urgently necessary but very difficult because (as Suk and Kate Shaw recently noted) Americans have “lost the habit and muscle memory of seeking formal constitutional change” —and because of problems like polarization, gerrymandering, and restrictions on voting.

What are the prospects for a feminist CGC to provide tools and concepts to move beyond misogyny? Suk uses the term “misogyny” to describe what “endures after patriarchy,” when “patriarchy loses its force as law”—a “range of expectations and entitlements” that “maintain patriarchal gender relations” in ways that “keep women down in order to keep everyone and everything else up”? In this review, I will first address Suk’s pairing of gender equality and care, focusing primarily on Chapter 6 of After Misogyny, “Building Feminist Infrastructures: The Constitutionalism of Care.” I will then consider her analysis of abortion in the post-Dobbs landscape, engaging with Chapter 3, “Misogyny and Maternity: Abortion Bans as Overentitlement.”  In each of these contexts, I will explore the promising and possibly problematic aspects of Suk’s framework.

Gender Equality and Building a Care Infrastructure

Professor Suk persuasively argues that the COVID-19 pandemic made visible that “essential work is women’s work.” That is true in two sense: mothers disproportionately engage in caring for children, as compared with fathers (both as single parents and in different-sex households), and women are disproportionately among “essential workers.”  Moreover, as Catherine Powell has observed, essential workers are also disproportionately women and men of color. As many feminist scholars and organizations have argued, the pandemic revealed and exacerbated the care crisis in the U.S. and showed the urgent need for—finally—building a care infrastructure that is attentive to gender and racial equality. Naomi Cahn and I argued that this should be a vital part of a feminist (or gender equitable) recovery plan.

Suk helpfully refers to building a care infrastructure as part of the task of building “feminist infrastructures.” Addressing the perennial question about why the U.S. lags so far behind other countries with respect to elements of such an infrastructure—paid parental and family leave; affordable, accessible, and high quality child care; workplace flexibility, to name a few—Suk suggests one reason is the U.S. Constitution. She writes: “In many other countries, paid maternity leave is not only a long-standing public policy, like social security; it is often a constitutional entitlement.” Suk traces the evolution of “the special protection” of motherhood and the family in a number of constitutions, in particular, Germany, Italy, France, and Ireland.  She also notes that such clauses raise eyebrows for those concerned about gender equality and seem directly in conflict with both the formal equality and  anti-stereotyping jurisprudence associated with the Equal Protection Clause in the U.S. Constitution.

What I find most interesting in Suk’s historical account of feminist constitutional efforts in, e.g., Germany and Ireland is their insistence both on governmental support of care—and the work of social reproduction—and of equality.  Without a similar constitutional anchor, similar calls for a politics that embraces care and equality have sounded in the U.S. for decades. Building on strands of feminism, civic republicanism, and liberalism, I have argued both that care is a public value that government has a responsibility to support and that gender equality is a constitutional commitment and public value that government has a responsibility to foster. What gives me pause with Suk’s comparative constitutional examples is the repeated language about a certain degree of expected and beneficial maternal “sacrifice” that is for the “common good” and for which the state owes compensation. For example, Suk writes of the evolution—through judicial interpretation—in both Germany and Ireland of “the constitutional protection of motherhood” to support policies that “value mothers’ socially beneficial sacrifices and to mitigate the disadvantages that such sacrifices could cause.”  Fitting some of this jurisprudence within her framework of overentitlement and unjust enrichment, Suk quotes an Irish High Court judge reasoning about what seems to be a counterpart to equitable distribution of property upon divorce. The court bases such an award on a woman’s contribution in the home, which entails both “emotional and economic” sacrifice: “In return for that voluntary sacrifice, which the Constitution recognizes as being in the interest of the common good, she should receive some reasonable economic security within the home” (emphasis added). 

 Nonetheless, Suk’s is a narrative of constitutional evolution to embrace care and equality. With respect to the Irish Constitution, she traces a journey from the constitutional recognition (in Article 41.2) of women’s work—specifically—as a “sacrifice that is essential for the common good” to concern over the Article’s gender essentialism to a proposed revision to adopt “gender-neutral language protecting all parents and carers.” Suk praises as a constructive model for possible transplanting that of the Citizens’ Assembly that convened to address both abortion and the language of Article 41.2.   The COVID-19 pandemic (as the Assembly recognized in its report) “shone a strong spotlight on care, its importance in our society, and the gendered nature of its provision.” 

Of course, one could point to similar political rhetoric in the U.S., including from the Biden presidential campaign and the American Rescue Plan. Early on, the Biden/Harris Administration created a Gender Policy Council and announced commitments both to gender equity and equality and to racial equity. As Suk notes in her book, the most robust public policies that would instantiate a care infrastructure and advance gender equality have often failed in Congress (particularly, in the Senate, due to the filibuster and other factors). An important victory, nonetheless, is the Pregnant Workers Fairness Act, signed by President Biden on December 29, 2022 and which (like many comparable state laws) requires “reasonable accommodation” and adopts the inclusive language of pregnant “workers.” Would there be more such legislative victories if the Senate stopped impeding recognition of the Equal Rights Amendment? In her conclusion, Suk, whose last book chronicled the generations of women who were constitutional actors in the struggle for the ERA, suggests some possible innovations along the lines of Ireland’s Citizens’ Assembly even as she candidly recognizes the “American resistance to constitutional change.”

Abortion Bans

Professor Suk evocatively discusses abortion bans as “overentitlement.”  Suk aptly argues that Dobbs makes possible a landscape— in the many states that have either banned or severely restrictive access to abortion—in which motherhood is compelled but uncompensated: “Abortion bans enforce society’s entitlement to women’s sacrifice as childbearers for the public benefit of reproducing the community, without sufficient governmental restitution for this unjust enrichment.” By comparison, Suk points to different legal regimes in which there are restrictions on abortion to protect potential life (particularly after the first trimester), but also public funding of abortion and public policies that support pregnancy, childbirth, and parenthood. Using the example of Germany, Suk traces how constitutional commitments both to a right to life and to the right to “free development” of one’s “personality” eventually led to such a regulatory scheme. Once again, the language of “sacrifice” by women and compensation for their labor are pertinent: how much may a pregnant women be expected to sacrifice and what is the state required to do to relieve the costs and burdens of pregnancy and parenthood?

Suk argues: “After the demise of Roe, the battle against misogyny should not resurrect privacy rights but rather pursue laws that fully recognize the public value of the sacrifices pregnant women endure for the benefit of others.” This is sobering. As she notes, the Casey joint opinion aptly discusses the constitutional wrongness of compelled maternity in the language of the “sacrifices” that pregnancy entails. In his partial dissent, Justice Blackmun, as Suk quotes, explicitly spoke about abortion bans as conscripting women’s bodies into the state’s “service.” Justice Blackmun continued:  “The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course.”

The language of overentitlement and a lack of compensation do have some power here. Post-Dobbs, states may ask for quite a bit of sacrifice but with no obligation to provide any “compensation.” It is hard to imagine a status quo more at odds with a vision of reproductive justice, with its commitment to human rights to bodily autonomy, to have children, to not have children, and to parent children in safe and sustainable communities (as in Sister Song’s Visioning New Futures for Reproductive Justice Declaration). States with the most restrictive laws have some of the weakest laws and worst outcomes with respect to supporting pregnant persons, parents, and children.

In such circumstances, does a legal regime that combines a “robust conception of the state’s positive duties, not only to the unborn fetus, but to women facing unwanted pregnancies” look more attractive? What is the promise and peril of rhetoric about pregnancy and childbirth being a sacrifice that is for the “common good”? Does such rhetoric of pregnancy benefiting others miss the significance of pregnancy to the individual pregnant person or what childbearing and rearing mean to a person’s conception of their own life?

One of my first encounters with a comparative constitutional analysis of abortion law was Mary Ann Glendon’s Abortion and Divorce in Western Law, published in 1987, where she praised both the French and German models as better than that of the U.S. in Roe. Like Suk, Glendon quotes from the decision of the Federal Constitutional Court of West Germany that the 1974 West German abortion law was unconstitutional. But Glendon also quotes a passage that Suk does not and which has stayed with me since first reading it:

“In this context it will be principally a matter of strengthening the willingness of the person about to become a mother to accept the pregnancy with responsibility to self and to bring the fetus to full life. For all the State’s duty to furnish protection, one may not lose sight of the fact that the developing life has, first of all, been entrusted by nature to the protection of the mother. It should be the most eminent purpose of government efforts on behalf of the protection of life to reawaken and, if necessary, strengthen the maternal protective will [in cases] where it has been lost.” (Emphasis added.)

This language of the lost “maternal protective will” sounds a lot like arguments that pregnant women inevitably should become mothers and that no woman who understood what abortion was would have an abortion because it goes against their nature. As Reva Siegel has written, this is the “woman protective antiabortion argument” sounded in the report of the South Dakota Task Force to Study Abortion back in 2005 and also in Gonzales v. Carhart, in 2007.

Glendon also wrote, of the 1975 German Constitutional Court decision: “In the hierarchy of constitutional values, the court held that human life is a central and supreme value of the constitutional order, to which the woman’s acknowledged right to self-determination and privacy is subordinate.” This “hierarchy” is all too evident in the post-Dobbs landscape, with harrowing stories of pregnant women’s health and sometimes life subordinated. Most chillingly, this is true even in instances where a pregnancy will not result in a live, healthy fetus, but doctors fear prosecution for providing help before a statutory threshold of danger is met.

Suk’s comparative constitutional law survey ends with a more recent iteration of German abortion law, post reunification, that protects life “by supporting mothers and gender equality.”  Once again the Constitutional Court struck down an abortion law, with reasoning similar to its 1975 opinion. However, Suk finds it instructive and encouraging that the Court expanded its discussion of the state’s duty to protect life to link that duty both to the constitutional entitlement of “mothers to the special protection and care of the community” to the guarantee of “equal rights between men and women.” Her point to U.S. readers, confronting the Dobbs scenario of compelled maternity without compensation, is that the Constitutional Court offered a more robust idea of the “care” the community owed to mothers (and parents) in terms of addressing “problems and difficulties” that a pregnant person would encounter during pregnancy as well as creating a “child-friendly society” that addresses material hardships and disadvantages from becoming a parent. The Court uses language of “compensation” of parents for financial disadvantage for giving up work or devoting “herself or himself to raising a child.” Suk finds encouraging that, two decades after its earlier decision, the Court has moved from assuming it was “reasonable” to expect pregnant women to “bear the ‘normal’ burdens of motherhood” to acknowledging “that even normal motherhood exacts heavy burdens unless the state intervenes to promote a ‘child-friendly society.’” Further, the court also stressed the futility of “criminal sanctions,” compared to “preventative means” to help a pregnant woman “overcome her conflict and meet her responsibility to the unborn.” However, the underlying premise is still of a “responsibility” to continue the pregnancy.       

In 1987, Glendon wrote: “An important segment of the prolife movement has already recognized that those who would restrict or deny abortion should be prepared to give the pregnant woman every possible form of assistance. If the state is once again to restrict the availability of abortion and to affirm the value of unborn life, it should in all fairness strive to help those who bear and raise children, not only during pregnancy but also after childbirth.” With a more explicit commitment to gender equality and with the additional concepts of “overentitlement” and unjust enrichment (or a lack of just compensation), Suk reaches a similar conclusion about the post-Dobbs U.S.  

Both Glendon and Suk critique “privacy” as a foundation for abortion rights, and stress the public dimension of human reproduction (as well as public duties to support such reproduction). I continue to believe that privacy, better understood as autonomy with respect to significant personal decisions (as in Casey), is a critical constitutional value, even if the Dobbs majority decimated it in the context of decisions about whether or not to continue a pregnancy. But I also join Suk in believing that, post-Dobbs, it is critical to argue for the public dimension of human reproduction and to explore arguments about how compelled pregnancy unjustly conscripts the bodies of, and demands sacrifices from, pregnant persons (as Justice Blackmun argued in Casey). Such unjust conscription hinders rather than furthers the “common good.” Whether or not comparative constitutional models make those arguments more persuasive or reinforce notions about women’s natural responsibilities remains to be seen. In the meantime, After Misogyny offers a set of innovative arguments and concepts aimed at ending misogyny and advancing care and equality.

Linda C. McClain is Linda C. McClain is Robert Kent Professor of Law at Boston University School of Law. You can reach her by e-mail at lmcclain@bu.edu.