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.