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).
Katharine G. Young
“Other countries have social safety nets. The U.S. has women.” So quipped a sociologist during the COVID-19 pandemic, when millions of women lost or left their jobs to care for suddenly unschooled children and millions more (disproportionately women of color) continued as essential workers, often at minimum wage. Their unpaid or underpaid care work held society, the economy, and the nation together, at great personal cost. This reliance on women as crisis “shock absorbers” is a well-studied phenomenon under neoliberalism. But Julie Suk, in her excellent new book “After Misogyny”, points to its foundations in constitutional law. The U.S. Constitution, as currently interpreted by an renegade Supreme Court, interprets formal legal equality as anti-classification and gender-blindness. Suk argues that this legal choice – a legal misogyny – exacts distinctive costs from women and confers excessive entitlements on men.
That women are the peculiar bearers of America’s constitutional failings seems obvious after Dobbs v. JWHO. The Supreme Court’s majority opinion barely mentioned women’s lives and health in its support for “the unborn”. And it is everyone – not just those who hope to overcome binary sex and gender roles – that suffers from it. Yet this obviousness may have been lost on generations of constitutional drafters, scholars, and litigants, who have often cast “feminist” concerns in a marginal light (and who have more often than not been men). In a book that spans the globe, citing feminist constitutionalist movements in Europe and Latin America as its main comparators, Suk offers a new map of current inequalities and suggestions for constitutional change.
For Suk, such inequalities are derived
from law and institutions, not animus or ‘bad men’. And despite the insights of
#MeToo and #SayHerName that show violence, as well as care, are
disproportionately distributed, her reference points are not criminal law or
tort, but equity and public law. In parts of the book, she argues that the
doctrines of unjust enrichment and abuse of right should inform a new constitutionalist
recognition of care. Here, restitution should equalize the results of a
misogyny that is not woman-hatred but rather a too-comfortable sense of
entitlement to unearned riches and unpaid labor. In other chapters, Suk points
to comparative paradigms of public law that require parity of participation across
gender lines, and other forms of equal pay and status. These law reforms reset
the baselines that are patriarchy’s legacy.
There are notable comparative
lessons to be drawn. Like the sociologist’s quip above, Suk relies on comparators
as sources of internal rebuke and reimagination, not borrowing or transplant.
In this, she draws from a rich tradition of U.S. feminist engagement with the
world. From Ruth Bader Ginsburg’s early encounter with Swedish feminism, where
the emancipation of women from constrained gender roles led to the emancipation
of men from theirs’, she shows how the focus of U.S. constitutional reform has
been informed by changes elsewhere. In the long run, RBG’s male-plaintiff, anti-discrimination,
anti-stereotyping strategy may have misfired, undermined by legislative
inaction and the constitutional ideology of negative rights. Without a social
infrastructure of support and positive state duties – educational reforms,
child care subsidies, health care and labor market reform – a constitutional
doctrine requiring removal of classifications became grist for male grievance
in the U.S. Unlike in Sweden, Suk shows how U.S. equal protection has been used
to reclaim patriarchy rather than overcome it, with men’s rights activists
challenging state-supported domestic violence shelters for women and start-ups
favoring women in STEM fields. Comparison is not presented by Suk as an easy
case for transplant.
Similarly, Suk explores German
and Irish constitutional developments for reimagining our post-Dobbs
settlement. With the Supreme Court’s retrenchment of the constitutional right
of abortion, Suk points out that it is not only Roe v Wade, but the
complicated Roe/Harris compromise, that has been overturned. Harris
v McRae held that a ‘negative’ right to abortion required no positive
state funding, upholding the Hyde Amendment that excluded funding coverage for
medically necessary abortions from an otherwise comprehensive Medicaid program.
This settlement meant that Roe and Casey’s formal protections of
a woman’s freedom to decide whether to terminate a pregnancy were inaccessible
for many poor women in the U.S. In comparison, Suk draws from the “pro-life
jurisdictions” of Germany and Ireland, where the choice to terminate a
pregnancy has been formally condemned but where positive duties to provide
health care, and protect the life and health of the mother, ensure that access to
abortion is secure. Again, such compromises are not uncomplicated and have been
unappealing for many U.S. feminists – and yet Suk’s argument for a pro-life
settlement is granular and pragmatic, and cast in the paradigm of reproductive
justice, rather than reproductive choice, that Black feminists in the U.S. have
long called for.
A third set of comparisons provide
additional rebuke of the U.S. constitutional system. Parity is the state or
condition of being equal, and addresses the inherited inequalities of pay,
status, or political representation. In the mainstream U.S. constitutional
ideology of non-discrimination and negative rights, parity – along with quotas,
accommodations, and affirmative action policies – are considered suspect. Suk recounts
successful interventions in France, Germany, Iceland (and now Chile) that
require gender quotas on corporate boards, constitutional drafting bodies, courts
or legislatures. Far from the tokenism or stigma long assumed in U.S. debates,
Suk shows how decades of parity requirements have changed the rules of the
game, “tempering the power of overpowerful institutions” and shifting budgeting
and policy priorities. Just as she did in her earlier
book, documenting the century-old American struggle for an Equal
Rights Amendment, Suk takes a transgenerational view of feminist constitutional
politics aboard. In so doing, she argues (as Pauli Murray had done for the
U.S.) that the most significant achievements rely on equalizing power, not
equal rights.
Comparison as castigation informs
my own Feminist Legal Theory class – my students are often outraged to learn
how other democracies have guaranteed paid parental leave, childcare,
reproductive care, other social rights, and political equality. They are
surprised by the responsiveness of other constitutions, delivered through
amendment rules or the interpretive methodology of living constitutionalism. They
are also aghast at how gender inscribes burdens and opportunities in the United
States, even as they envisage distinctive gender identities and roles for
themselves. Some facts are truly alarming. The rates of maternal mortality are highest
in the United States among wealthy industrialized countries. Indeed, celebrated
declines in mortality were an almost worldwide feature in 2020, but deaths in
the U.S. increased. These risks, which fall heavily on Black and Native
American woman, tell of public health failures, but also constitutional ones. (The
Dobbs
opinion acknowledged this context only in its dissent, where it was noted a
ban in abortion could increase the numbers of people dying from pregnancy and
childbirth by 21 percent, and by 33 per cent for Black women (at 597 US ___, 29
(2022)). Comparison has a way of signaling what is grossly unreasonable and
unjust in this wealthy country and its creaking, dysfunctional constitutional
democracy.
But the U.S. is not always at
outlier, depending upon where one looks. The so-called Geneva
Consensus Declaration, an effort to galvanize an international movement to
remove abortion from women’s health rights and ‘strengthen the family’, isn’t
mentioned in Suk’s book. The 2020 Declaration was spearheaded under the Trump Administration,
and co-sponsored by Bolsanaro’s Brazil, as well as Egypt, Hungary, Indonesia, and
Uganda. Indeed, with a partnership that included some of the world’s worst
performers on the Women Peace and Security Index, the U.S. was happy to lead
a comparative trend in the direction of backlash. It is worth noting that this Declaration,
which appropriated
human rights arguments in an attempt to remove women’s reproductive rights
and LGBTQ+ rights from United Nations protection, has informed other
influential constitutionalist
arguments in the U.S.
These criss-crossing
trends lead to my only real quibble with this bracing study. In numerous
places, Suk suggests that we are beyond law’s patriarchy, even “post-patriarchy”.
Misogyny, in her telling, is the next staging for action and analysis – where
law becomes formally equal, the focus must shift to misogyny. I’m not exactly
sure why she stages her analysis in this way – my guess is that she wants to
inject present doctrines – unjust enrichment, natural justice and right – with a
duly post-patriarchal spirit. In her analysis of unjust enrichment, she
extrapolates from cases involving the division of assets between cohabiting
non-marital partners to the unequal distributions within society at large. In
so doing, the general entitlements that swing to men rather than women ––
through sex, pregnancy, reproduction, care and household work – become more cognizable
as remediable. Perhaps she also intuits that a renewed emphasis on positive
state duties – to protect women, children and families, through childcare,
health care, labor protections, paternal leave or parity – becomes more
trustworthy if we are assumed to be at patriarchy’s end.
Of course, feminists helped
overcome coverture and achieve suffrage, and the most overt features of
patriarchal rule are behind us in the U.S. But patriarchy continues to confer
benefits along gender lines, shorn up by religion, cultural traditions, and
baseline entitlements. Knowledge of the world, and of feminist struggles
elsewhere, may not, by itself, transform this fact. But comparative
constitutional analysis, with the institutional range and vision presented in Suk’s
book, is critical for understanding the U.S. predicament – and for reinforcing
just how unjust it remains.