Whither Liberalism After Misogyny?

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).

Deborah Dinner

Julie Suk begins her provocative and erudite book with an accounting of how misogyny persists after patriarchy. The rise of sex equality under law in the late twentieth century eroded coverture, extended the franchise to women, limited state action on the basis of sex, and guaranteed equal opportunity in employment, education, and other market and civic spheres. Yet men continue to commit violence against women in the home and workplace, often with impunity. Society continues to extract women’s unpaid social reproductive labor, without either compensation or adequate welfare state supports. Suk argues convincingly that we should understand this regime as an example of what Reva Siegel calls “preservation-through-transformation.” The law continues to tolerate and, in some instances, facilitate women’s subordination, exploitation, disadvantage, injury, and even death, after the rise of formal sex equality. To this point, the critique is a familiar one to students, scholars, and practitioners of feminist legal theory. Yet Suk quickly takes us to a theoretical account and constructive vision that is strikingly original.

In a creative and incredibly interesting chapter, Suk examines the doctrines of unjust enrichment and abuse of right. Tracing these doctrines from Roman law through their elaboration in European civil law, Suk sheds new light on why several forms of misogyny, from abortion restrictions to sexual harassment, constitute injuries and are normatively wrong. In reformulating how to think about both gender injustice and gender justice, After Misogyny upends several principles taken for granted in U.S. liberal legal theory. In this blog, I focus on two of the most significant: reproductive privacy and sex equality.

Building on the scholarship of Robin West, Dorothy Roberts, and Khiara Bridges, Suk argues that privacy provides neither a desirable political nor sound legal foundation for abortion. Democracies must guarantee abortion access precisely because of the public, rather than the private, dimension of childbearing. By transforming fetuses into born children, pregnant persons perform the biological reproduction of the next generation. To extract the value of gestation and childbirth, without supporting the people who perform this labor, unjustly enriches the broader society. This service generates a set of duties on the part of the state toward pregnant women – obligations that begin but do not end with allowing abortion.

I am deeply sympathetic to Suk’s argument for the public nature of reproduction. As West argued nearly fifteen years ago and, more recently, the historian Sara Matthiesen has elucidated, the privacy framework for abortion legitimated minimal state support for children, parents, and care workers. Suk draws lessons from Germany and Ireland’s constitutional trajectories, which both affirmed a state interest in protecting the fetus and provided public funding for first-trimester abortions. In addition, we might also consider the Latin American movement for reproductive rights, named for the color of the handkerchiefs symbolizing abortion which women waved in mass protests. As Verónica Gago explains, the green tide connects the struggles for sovereignties over individual bodies and over land. This highlights the class dimensions of clandestine abortion and the experiences, especially, of indigenous women in Latin America. By contesting the ideological boundaries between production and reproduction, public and private, abortion rights activists expose the political economy that yields both neoliberal fiscal policies and neofascist regulation of sexuality and pregnancy.

Suk reaches a position in her conclusion that I think is somewhat at odds with her analysis. She argues that the pregnant woman provides “rent-free housing” to the fetus who, under safe haven laws, belongs to the state. As a consequence, “the Takings Clause obligates the state to compensate [the pregnant woman] for the public use of her womb.” I found this discussion jarring because anti-egalitarian opponents have long mobilized private property rights to suppress Black and socialist feminism as well as labor organizing. The takings doctrine may undermine the labor theory that is core to Suk’s understanding of both biological and social reproduction. Recasting pregnancy in a property framework threatens to reinforce the individual rights and privatization that After Misogyny interrogates. Certainly, the turn to takings doctrine might have reflected Suk’s effort to proffer a constitutional theory that had legs in the courts, given the political constraints the abortion rights movement faces in state legislatures and Congress. In my view, however, Suk’s broader account better supports Andrew Koppelman’s Thirteenth Amendment theory, which she also references. The argument that abortion restrictions impose involuntary servitude recognizes childbearing as a form of socially and economically valuable labor.

The second liberal value that Suk interrogates is that of legal equality, adjudicated in courts. Suk’s analysis echoes an older insight of Peter Westen that the ideal of equality has malleable substantive content. Suk observes the emptiness of equal protection for male intoxication, suggesting that it might have had more sinister than banal consequences for toxic masculinity on college campuses. Equal protection on the basis of sex doctrine, Suk shows, may be used to advance misogynistic goals: men’s rights suits alleging “paternity fraud” and seeking to dismantle single-sex institutions, including domestic violence shelters, that help women. In addition, as I write about elsewhere, remedies for unequal treatment might either extend or vitiate protective standards. Equality requires a prior determination of the baseline for comparison. Suk offers the example of selective service registration. A legal remedy here would turn on whether the privilege sought is male eligibility for the draft or female exemption from it.

                Instead of equality as a narrow legal goal, Suk argues that eradicating misogyny will require a focus on structural constitutional change. Suk’s book and, indeed her scholarship and advocacy more broadly, demonstrates an inspiring faith in democracy and commitment to the hard work of advancing it. As a historical model, Suk offers a revisionist account of the temperance movement’s successful struggle for the Eighteenth Amendment. Notwithstanding historians’ account of Prohibition’s multiple failures, Suk argues persuasively that we should also understand as the successful culmination of feminist mobilization for constitutional change. Temperance activists targeted the liquor manufacturers, distributors, and sellers that contribute to men’s abuse of women and deepened the vulnerability of economically dependent wives and mothers. Suk’s point is not to valorize temperance, itself, but rather to show that substantive feminist goals require attention to constitutional procedure. I am also convinced by her historical argument that the movement for Prohibition nurtured women’s political organization.

                Suk set her sights on women’s empowerment, today. She suggests this goal must entail collective entitlements and institutional transformation, rather than solely individual rights and adjudicated remedies. Suk advocates, for example, gender parity on corporate boards, discussing the litigation that threatens a California law establishing modest representation rules. She argues for a constitutionalism of care, building on the comparative example of the Citizen’s Assembly in Ireland. The Assembly produced constitutional and legislative recommendations to support gender egalitarian care within families – expansively defined to include non-marital households. I have to admit to some lingering skepticism about whether constitutionalism is the best site for gender justice, given the risks of “constitutional veneration” that Aziz Rana outlines. In Suk’s hands, however, the Constitution is what Dirk Hartog calls a “constitution of aspiration.” It is not a set of doctrines, manipulated by experts, but a site of political imagination. Furthermore, Suk’s proposals begin with a transformation of the Constitution to make it more democratic, beginning with changes to the amendment process itself.

                I read Suk’s book as a legal historian. In this capacity, I have to emphasize that U.S. feminists have long been fighting for a welfare state supportive of care. This is an alternate feminist legal history to the one most often told in standard law casebooks. To sketch a few examples: In 1970, marking the fiftieth anniversary of the ratification of the Nineteenth Amendment and the distance yet to travel to equal citizenship, feminists organized a Women’s Strike for Peace and Equality. The demands included universal childcare, as well as abortion on demand and equal employment opportunity. In public schools, labor feminists used the EEOC guidelines interpreting Title VII as an organizing tool to advocate goals beyond mere nondiscrimination, including paid parental leave. National Organization for Women activists argued for Social Security credits for homemakers, as a means to realize economic citizenship. I point this out to suggest that there might be lessons to be learned from the history of why these goals did not come to fruition – lessons that might inform how to arrive at the vision Suk articulates. The history of why misogyny persisted is one about the transitions from liberalism to neoliberalism. After reading Suk’s book, I am left still pondering the question posed by feminist scholars and in the title of this blog. The current crises in care, constitutionalism, and politics have the potential to be productive. These ruptures open up new ways of thinking and doing, and Suk’s voice is one that offers considerable guidance.