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.