After Misogyny: How the Law Fails Women and What to Do about It

After Misogyny

After Misogyny

HOW THE LAW FAILS WOMEN AND WHAT TO DO ABOUT IT

Julie C. Suk

UNIVERSITY OF CALIFORNIA PRESS

University of California Press

Oakland, California

© 2023 by Julie C. Suk

Library of Congress Cataloging-in-Publication Data

Names: Suk, Julie Chi-hye, 1975- author.

Title: After misogyny : how the law fails women and what to do about it / Julie C. Suk.

Description: Oakland, California : University of California Press, [2023] | Includes bibliographical references and index.

Identifiers: LCCN 2022032720 (print) | LCCN 2022032721 (ebook) | ISBN 9780520381957 (cloth) | ISBN 9780520381964 (ebook)

Subjects: LCSH: Women—Legal status, laws, etc.—Social aspects | Women—Legal status, laws, etc.—Social aspects—United States.

Classification: LCC K644 .S85 2023 (print) | LCC K644 (ebook) | DDC 342.08/78—dc23/eng/20221201

LC record available at https://lccn.loc.gov/2022032720

LC ebook record available at https://lccn.loc.gov/2022032721

Manufactured in the United States of America

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For all the women of the world who struggle invisibly to make it better for us all.

Contents

Introduction: Legal Patriarchy and Its Aftermath

PART I HOW THE LAW FAILS WOMEN: MISOGYNY BEYOND MISOGYNISTS

1. The Equal Protection of Feminists and Misogynists

2. Overentitlement and Overempowerment

3. Misogyny and Maternity: Abortion Bans as Overentitlement

PART II WHAT TO DO ABOUT IT: REMAKING CONSTITUTIONS AND DEMOCRACY

4. From Patriarchy to Prohibition: Resetting Entitlements through Constitutional Change

5. Rebalancing Power through Parity Democracy

6. Building Feminist Infrastructures: The Constitutionalism of Care

Conclusion: Toward a Feminist Remaking of Constitutional Democracy

Acknowledgments

Notes

Selected Bibliography

Index

Introduction

LEGAL PATRIARCHY AND ITS AFTERMATH

Patriarchy is our judge

That imprisons us at birth

And our punishment

Is the violence you DON’T see.

Women chanted this anthem at protests throughout the world, beginning in Santiago, Chile, in the autumn of 2019. Pointing to the persistence of sexual violence and reproductive injustice, women around the world have been marching to end the violence that is often unseen, namely, the law’s active neglect of women’s full personhood. American women brought this anthem to New York outside the courthouse where the culminating event of the #MeToo movement was unfolding: the rape trial of Hollywood power broker Harvey Weinstein. From the #MeToo movement to demands for equal pay, abortion rights, childcare, and even brand-new constitutions, women in constitutional democracies throughout the world are remaking the law after patriarchy. Feminist protesters performed this anthem in Chile, Argentina, Colombia, Mexico, the United States, Ireland, South Korea, India, and points in between. They sought state responsibility for realities that they could only marginally control.

Patriarchy is our judge

That imprisons us at birth,

And our punishment

Is the violence you CAN see.

It’s femicide.

Impunity for my killer.

It’s our disappearances.

It’s rape.

Titled A Rapist in Your Path, it was chanted by a self-proclaimed feminist flash mob outside the Chilean Supreme Court during a wave of popular protests that culminated in the drafting of a new constitution for the nation. ¹ Femicide, impunity, disappearance, and rape are some of the manifestations of misogyny that raise the central questions of this book: Why does the law remain indifferent to women’s deaths, disappearances, and rape a generation after most constitutional democracies officially ended legal patriarchy and guaranteed women equal protection of the laws? Why does misogyny remain palpable within legal orders that have proclaimed gender equality? And what can feminists do to overcome these failures of law? This book examines the strategies, successes, failures, and challenges of feminist lawmaking after the laws of patriarchy have been repealed.

It’s the cops.

It’s the judges.

It’s the state.

It’s the president.

The oppressive state is a macho rapist.

The rapist is you.

Misogyny, this book proposes, endures after patriarchy because patriarchy loses its force as law. People who embrace patriarchal gender relations maintain them through other legal means. Misogyny is conventionally understood as woman-hatred, but it is much more, and much worse for women, than hatred. Misogyny is the set of practices that keep women down in order to keep everyone and everything else up. Misogyny entails plenty of violence, much of it hateful, as unsavory men beat, rape, and kill women because they are women. But something about women’s disappearances points to what is often missing when we approach misogyny as synonymous with woman-hatred. In Latin America, women disappeared under military dictatorships like the one in Chile, and were subject to torture, often of a sexual nature, hidden from public view. But the defining feature of disappearance was not violence; it was violence for which the state held nobody accountable. Disappearances were not unique to women in authoritarian regimes—men disappeared too. Yet the state’s failure to prevent or respond to violence against women was not unique to military dictatorships or authoritarian government. Even in liberal constitutional democracies that celebrate the rule of law, enforce legal gender equality, criminalize violence against women, and prohibit sex discrimination in the workplace and schools, the state fails persistently to investigate, punish, eradicate, and prevent violence against women, from rape to femicide to workplace sexual harassment to campus sexual assault. The law enables men, and the society designed to fulfill their vision, to benefit from keeping women down, albeit in ways that are hidden from view.

It is this failure of law to which women in all corners of the world are saying No more. The law’s failure goes far beyond disappearances in distant lands. In the United States, a society controlled by men benefits enormously from women’s invisible reproductive work, which it extracts from women by failing to support mothers while increasingly restricting access to abortion.

Patriarchy was a set of legal rules that lost their validity when constitutional democracies committed to gender equality throughout the twentieth century. Yet after patriarchy, the harms women endure are still escaping legal notice or accountability, and women’s needs and contributions to society often remain invisible to the law. A range of expectations and entitlements maintain patriarchal gender relations, even after the laws that structured patriarchy as a legal system have fallen away. Misogyny, this book argues, is this aftermath of patriarchy. In a legal and social order that officially embraces gender equality rather than patriarchy, men’s sense of entitlement to women’s sacrifices is misplaced; it rests upon an illegitimate undervaluation of women’s worth and contributions to the common good. At the same time, women’s unpaid work remains essential to men’s continued survival and to the survival of their offspring. Men, and the society founded and framed to meet their needs, derive irreplaceable benefits from women when women bear the enormous burdens of biological and social reproduction. This book argues that continued enjoyment of these reproductive benefits is a form of unjust enrichment and that continued extraction of these benefits is an abuse of power. Misogyny is this engine of overentitlement and overempowerment that continues even after it is no longer driven by patriarchal legal rules. With this fuller definition and analysis of misogyny, this book examines how the law fails women after patriarchy, even under laws of gender equality, and what to do to remake the law after misogyny.

THE LAWS OF PATRIARCHY

There is no more thorough account of patriarchy as a legal system than Simone de Beauvoir’s founding text of twentieth-century feminism, The Second Sex, the French book that sparked an intellectual epiphany in American legal icon Ruth Bader Ginsburg. ² The late justice Ginsburg, now recognized as a founding mother of modern American legal feminism, pioneered legal strategies that were shaped by feminist thinkers and legal developments around the world.

This world has always belonged to males, and none of the reasons given for this have ever seemed sufficient, ³ de Beauvoir wrote in 1949. Patriarchy’s triumph was neither an accident nor the result of a violent revolution. ⁴ Rather, patriarchy emerged as a reaction against primitive practices regarding kinship, property, and matrilineal descent. ⁵ Because the mother was necessary for the birth of a child, whereas the father’s role in procreation was more difficult for early peoples to establish, communities produced children recognized as belonging to them through their association with the mother. ⁶ This account drew on Friedrich Engels, who in turn deployed the work of anthropologists Lewis Morgan and Johann Jakob Bachofen to depict a transition from matrilineal to patrilineal kinship orders that was driven by the rise of private property ownership and its protection by law. ⁷ Men could not accumulate property and increase wealth across generations by bequeathing their private property to their own children without some means of identifying children as their own offspring.

The legal protection of marriage fulfilled this function, insofar as marriage required the wife to limit her procreative activities, that is, sexual relations, to her husband. Hence, the legal protection of marriage enabled the legal recognition of paternity. ⁸ The legal inequality of the husband and the wife, achieved by the legal authority of the husband over the wife, and the economic dependence of the wife on the husband, enabled legal protection of private property and its intergenerational growth. Whereas in matrilineal communities child-rearing and the management of the household could be seen as public services with a public character, once the family became a legally protected social unit that maintained private property across generations, the wife became the head servant to the man who headed the household. ⁹

As Gerda Lerner has noted, Engels showed how men’s political and economic dominance was enabled by their control over female sexuality. ¹⁰ The German socialist thinker August Bebel built on Engels’s and Bachofen’s accounts of the transition to patriarchy in Woman under Socialism, an important intellectual source for women constitution makers on the left at Weimar in 1919 and Bonn in 1949. Bebel explicitly linked the rise of patriarchy to reproductive control: "The mother-right vanished; the father-right stepped into its shoes. Man now became a private property-holder: he had an interest in children, whom he could look upon as legitimate and whom he made the heirs of his property: hence he forced upon woman the command of abstinence from intercourse with other men." ¹¹

Patriarchy became a core feature of Western legal systems that defined families and protected private property. Patriarchy was established and enforced in Roman law, which shaped the Western legal tradition in the civil law systems of continental Europe and many bodies of law in the common law of England and America. Roman law established rights, obligations, and authority within the family—the most important social unit in Roman society. The family was the group of persons subject to the power of the male head of the household, the paterfamilias. ¹² The law was patriarchal in the sense that it legitimized the nearly absolute power of the paterfamilias over his children. Patria potestas included the right of life and death (ius vitae necisque) over the children, which appeared to allow the father to kill his own children at will, without facing legal punishment. ¹³ The law gave the paterfamilias a similar power—manus—over his wife. ¹⁴ Through various periods of Roman legal history, the status of women varied—from no legal personhood under the law to some legal rights independent of their husbands or fathers. Roman women, married or not, were generally subject to some limitation on their capacity for independent legal action; their authority to act was almost always derived from a man, such as a husband, father, or guardian. ¹⁵ Roman law criminalized adultery asymmetrically. A married woman was guilty of adultery if she had sexual relations with a man other than her husband, but a man was guilty of adultery only if he had sexual relations with a married woman, whether he was married or not. ¹⁶

The modern legal orders established in the eighteenth and nineteenth centuries in Europe and the United States adopted some of the legal features of Roman law that empowered men and disempowered women. Blackstone’s Commentaries famously articulated the doctrine of coverture: By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into her husband. ¹⁷ In other words, marriage made the woman disappear from legal personhood. Exclusive male entitlement to the control of marital property and undivided male legal authority over children of a marriage were features of the common law in most states throughout the nineteenth century. ¹⁸ Patriarchal law set this supreme male entitlement and empowerment as the natural and legitimate baseline distribution of entitlements. In the United States, before the law began to recognize the political and legal equality of women, patriarchy was enforced through various bodies of law, including common-law doctrines of coverture. ¹⁹ Married women had no legal personhood independent of their husbands; they were deprived of all civil and political rights on the assumption that every man represented his wife and children in the exercise of his own legal rights. ²⁰ In many states, any property that a woman owned prior to marriage came within her husband’s control. Women could not enter into contracts, sue, or be sued independently of their husbands. Even if a married woman engaged independently in market work, her earnings belonged to her husband, who exerted exclusive control over how they were spent. ²¹ From the eighteenth century or earlier, the common law, as described in Lord Matthew Hale’s treatise, entitled husbands to sexual intercourse with their wives at will by making marriage an exception to the criminalization of rape. ²²

In 1873, the US Supreme Court upheld a state’s decision to exclude women from the legal profession on the grounds that a person who was unable to enter into contracts on her own could not represent clients as a lawyer. ²³ In Bradwell v. Illinois, Justice Bradley famously justified the exclusion of women from independent rights to property, contract, and work in his concurring opinion, emphasizing that man is, or should be, woman’s protector and defender and that the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. ²⁴ Women bore and raised children, worked within the home to maintain the household to meet men’s and children’s survival needs, and cared for the family to enable it to be the fundamental unit of social reproduction. Men in power—including the justices of the Supreme Court—justified women’s exclusion from the public economic sphere by enforcing women’s role in the private nonmarket sphere of the home.

By subsuming married women under the legal personhood of their husbands, the laws of patriarchy enforced men’s expectation that women provide sexual and reproductive services according to men’s will. The law entitled every husband to sexual intercourse, the bearing and care of his children, and household work from his wife on demand. It also entitled the husband, as master of the household, to secure his wife’s obedience by subjecting her to corporal punishment or chastisement should she defy his commands. ²⁵ In exchange, the law obligated husbands to support their wives and to represent them in the legal system, and married women remained economically and legally dependent on their husbands. While the law imposed duties on men to represent their wives’ and children’s interests, it respected men’s significant, nearly unlimited discretion in carrying out these responsibilities.

FROM PATRIARCHY TO GENDER EQUALITY UNDER LAW

From the mid-nineteenth century, the movement for women’s rights fought to eradicate each of these common-law rules. The 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton and presented at the first Woman’s Rights Convention at Seneca Falls, characterized these male prerogatives as tyranny, noting specifically men’s legal ability to deprive wives of the wages that they earned and the law’s empowering of husbands to administer chastisement. ²⁶ But the demand for which Cady Stanton and the nineteenth-century women’s movement is most known is suffrage for women. To exemplify the absolute tyranny of man toward woman, the Declaration of Sentiments included He has never permitted her to exercise her inalienable right to the elective franchise. ²⁷ After decades of effort across generations, the Nineteenth Amendment became part of the US Constitution in 1920, proclaiming that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. ²⁸

By then, some, but not all, of the legal rules of coverture had been repealed or reformed one by one, state by state. To abolish all of the legal rules that enforced men’s tyranny over women in one fell swoop, some suffragists proposed another constitutional amendment, the Equal Rights Amendment (ERA), in 1923. ²⁹ By the time Congress finally adopted the ERA nearly fifty years later in 1972 and sent it to the states for ratification, the US Supreme Court had begun to rely on the Equal Protection Clause of the Fourteenth Amendment to strike down the legal rules that enforced patriarchy. For example, Reed v. Reed invalidated a state law that automatically preferred a father over a mother as the administrator of their deceased son’s estate. ³⁰ The Supreme Court concluded that the law’s preference for males over females was arbitrary ³¹—it empowered men without a rational basis, contrary to the constitutional guarantee of equal protection of the laws. Put another way, we can see how gender equality under the law transforms a power authorized by patriarchal law into an overempowerment. Additional cases litigated by Ruth Bader Ginsburg throughout the 1970s consolidated constitutional law against any patriarchal legal rules that presumed or enforced the dependent status of married women or the family caregiving obligations of women. ³² These Supreme Court decisions invalidated patriarchy as a legal system, citing Bradwell v. Illinois with unequivocal disapproval and repudiation. ³³ But the court could not end patriarchy as a set of social norms.

Thus the legal system still enabled and tolerated various social practices that produced benefits for men—and the society they still controlled—at women’s expense. From unwanted sexual relations to the lion’s share of the risks and burdens involved in reproducing the next generation, women continued to be expected to sacrifice their own well-being for the benefit of husbands, children, and other family members. This collective overentitlement to women’s forbearance results from laws that effectively concentrate decision-making power in men, locking in their power to control collective institutions. The powers of these institutions can be abused to extract disproportionate work from the less powerful to serve the public good, resulting in the unjust enrichment of those who hold power and the society they control. These dynamics of overentitlement and overempowerment are the core engines of misogyny. Hateful violence against women in the form of rape, femicide, and disappearance are only misogyny’s most visible manifestations. Other, less visible manifestations are no less pernicious.

American legal feminists pursued reforms toward gender equality that focused on the violence you CAN see, to quote the protest anthem, namely male perpetrators’ wrongful and injurious acts harming female victims—from outright exclusion of women from full citizenship status, to sexual violence. Ruth Bader Ginsburg’s trailblazing work to eradicate patriarchal law through constitutional litigation (discussed in more detail in chapter 1) took down laws that excluded women from the opportunities that marked men’s status as full citizens. Decades later, the #MeToo movement has also gone after the violence you CAN see, namely women’s experiences of sexual assault and harassment at the hands of powerful, often famous men. The #MeToo movement has focused on identifying rapists and predators to hold them accountable under the law, criminally or otherwise.

But much more attention must be given to the violence you don’t see, namely the underlying economic and legal conditions that set the terms of interaction between empowered men and the females they feel entitled to dominate. This book broadens the lens by putting American legal feminism in conversation with a century of feminist legal theory and constitution making outside the United States. Legal remedies for sexual violence and gender-based discrimination redress some harms to women, but they do not address the undeserved benefits that accrue to men (including to men who have never committed any sex crimes) and to a society corrupted by such injustices. De Beauvoir’s account of patriarchy reveals it to be a legal system aimed at aggrandizing men’s property and power. Logically, then, restitution of the unjust enrichment of men and reduction of men’s abuse of power should be the starting points for patriarchy’s abolition. Discrimination on account of sex, the inequality of legal rights, and violent attacks on women’s bodies are merely symptoms of the overentitlement and overempowerment that constitute misogyny.

THE TRANSITION TO MISOGYNY AFTER PATRIARCHY

Dubbed the philosopher of the #MeToo movement, ³⁴ Kate Manne has insightfully argued that the conventional account of misogyny as woman-hatred is incomplete and misguided. Rather, twenty-first-century episodes of violence against women are misogynist not primarily because they reveal woman-hatred but because they are efforts to control women after the law has stopped embracing male supremacy. Manne depicts misogyny as the social, not legal, punishment of women who depart from their role in the patriarchal script. Women who do not play the giver role that men could expect the law to enforce under patriarchy are thus subject to vigilante enforcement of patriarchy. ³⁵ These enforcers—the rapists, the woman-killers—accord with our conventional image of misogynists. While this social punishment is no longer authorized by the laws of a constitutional democracy committed to gender equality, it is enabled by the law insofar as the legal system fails, perhaps willfully, to investigate, punish, remedy, or prevent violence against women. Even while the law enforces gender equality and nondiscrimination, some men continue to feel entitled to women contributing willingly what they were coerced by law to contribute under patriarchy: sex, pregnancy, motherhood, and housework.

This sense of entitlement does not necessarily stem from hatred; it stems from a comfort with the social arrangements enforced by patriarchal law that enabled the flourishing of men and their communities, as well as the transmission of that flourishing across generations through biological and social reproduction. Without women willing to give freely what law extracted from them under patriarchy, the comforts of human flourishing as men defined it begin to unravel. ³⁶ Misogyny is the vigilante punishment of women who challenge male power and endeavor to reset the presumed entitlements of a patriarchal society. Even when law stops enforcing these entitlements, it can enable the vigilante enforcement of patriarchal norms. There is a legal dimension to the postpatriarchal engine of misogyny.

In a legal and social order fully committed to the equal legal personhood of women and men, indeed, of all persons of all genders, it would be unjust to entitle men to women’s acquiescence to unwanted sex, pregnancy, motherhood, and household work. We might refer to any such expectation as an overentitlement, one that depends on a gross underestimation of the burdens that these expectations impose and an inequitable undervaluing of women’s essential contributions to the survival of men, children, and the community. This overentitlement is not eradicated as long as empowered men who benefit from women’s forbearance continue to regard it as their natural set of baseline entitlements. In a legal order thoroughly implementing the equal legal personhood of all persons of all genders, anyone who used their decision-making power to enjoy these unfair benefits instead of compensating or redistributing them could be described as abusing their power. We might refer to any such abuse as overempowerment. Whereas philosophers like Manne focus on overentitled men trying to control women directly, any strategy for overcoming misogyny must take on an equally pernicious and perhaps more widespread manifestation: the collective overentitlement of a society designed and controlled by overempowered men to the benefits and enrichments that flow from women’s losses and sacrifices. That collective overentitlement is enabled by legal rules that appear on their face compatible with legal gender equality. Men’s overempowerment is perpetuated by legal rules that are distinct from the staples of patriarchy. As a project of law, moving the legal order past patriarchy, past the transition of misogyny, toward feminism and real equality requires attention to this manifestation of law’s misogyny.

AFTER MISOGYNY: TOWARD FEMINIST LAWS AND DEMOCRACY

The persistence of patriarchal gender relations after the advent of legal gender equality has been a theme of feminist legal theory and scholarship over the last fifty years, including significant work by Black feminists seeking to unlock the intersecting race and gender hierarchy of white male supremacy. After Misogyny builds on this work by putting American legal feminisms in conversation with the recent and ongoing work of feminist constitutional movements outside the United States. In the United States, feminist legal theory since the 1980s pointed to the persistence of male supremacy, evidenced by the survival of patriarchal norms in liberal equality law. Catharine MacKinnon, for instance, wrote: The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender, through its legitimizing norms, relation to society, and substantive policies. It achieves this through embodying and ensuring male control over women’s sexuality at every level, occasionally cushioning, qualifying or de jure prohibiting its excesses when necessary to its normalization. ³⁷

For MacKinnon, the laws of rape and sexual assault in a liberal regime of gender equality exemplified how male power still continued to define state power. The law nominally respected women’s personhood by treating them as capable of consenting. The line between rape and intercourse came down to whether a woman consented. Criminal law has long defined rape as intercourse with force or coercion, and without consent. ³⁸ This definition hides the persistence of patriarchal control of women’s sexual activity: When sex is violent, women may have lost control over what is done to us, but absence of force does not ensure the presence of that control. ³⁹

Women endure sexual violations that would not be recognized under the criminal law as rape, because the level of acceptable force is adjudicated starting just above the level set by what is seen as normal male sexual behavior, including the normal level of force, rather than at the victim’s, or women’s, point of violation. ⁴⁰ The male perspective and experience define the baseline expectations from which rape is adjudicated. By contrast, a feminist distinction between rape and intercourse, MacKinnon proposed, would arrive at the meaning of the sexual act in question from the woman’s point of view. It is not lack of consent that should define the violation, or the degree of force utilized in coercing sex, but whether the act is one of female subordination under male control. From Roman law to common law, patriarchal law protected men’s control over women’s sexual activities, whether by criminalizing adulterous acts by a married woman or by decriminalizing the husband’s rape of his wife. In late twentieth-century legal regimes after patriarchy, "When a rape prosecution is lost on a consent defense, the woman has not only failed to prove lack of consent, she is not considered to have been injured at all. . . . Because he did not perceive she did not want him, she was not violated. She had sex. Sex itself cannot be an injury. Women consent to sex every day. Sex makes a woman a woman. Sex is what women are for." ⁴¹

Extending this logic, MacKinnon urged lawyers and jurists to challenge sexual harassment in the workplace as sex discrimination. Because the exchange of sex for survival has historically assured women’s economic dependence and inferiority as well as sexual availability to men, so that women’s sexuality largely defines women as women in this society, it should follow in a legal regime prohibiting discrimination because of sex that violations of [women’s sexuality] are abuses of women as women. ⁴² Nonetheless, even when a legal order repudiates patriarchy by prohibiting discrimination and requiring the equal treatment of women as independent legal persons, MacKinnon’s account suggests a dynamic that Reva Siegel has termed preservation through transformation. ⁴³ The rules and rhetoric of rape law after patriarchy has been repudiated look entirely different from the Roman law of patria potestas and the common law of coverture, but the legal system still plays a significant role in maintaining male control over female sexual activity. It deploys legal standards that appear to vindicate the free and equal status of all persons regardless of gender, namely consent.

The dynamics of preservation through transformation come into sharper focus if we expand the frame of misogyny beyond woman-hatred, so as to define the overentitlement and overempowerment of men as the core function of patriarchal legal rules. With this reframing, the prescriptions for overcoming patriarchy are different from nondiscrimination and legal equality. After misogyny, the new dynamics of overentitlement and overempowerment must be identified, often beyond the areas of law that currently proscribe antiwoman bias and violence. Other bodies of law regulate gender relations, directly or indirectly, by assuming or enforcing overentitlement and overempowerment.

MacKinnon’s groundbreaking work proposed that the law of sexual assault and sexual harassment recognize the gendered concentration of power as discrimination, rather than normal sexual relations, ⁴⁴ as they were under patriarchal law. Similarly, feminist legal theorists developed the female perspective on other dimensions of patriarchal power over women’s bodies also stemming from patriarchal control of procreation. Robin West observed that many women and no men experience pregnancy. Many women and no men give birth, menstruate, and lactate. Many women and fewer men perform the bulk of childcare and elder care around the world for either no or very low wages. ⁴⁵ The formal equality achieved by the Supreme Court’s invalidation of laws that treat women and men differently, on equal protection grounds, is inadequate because it does not address the invisible harms women sustain, . . . harms that, by virtue of past and present practice, have not registered as worthy of regulation or eradication or deterrence or compensation by traditional patriarchal regimes. ⁴⁶

These invisible harms include, as MacKinnon detailed, forced sexual intercourse, but West also emphasized unwanted pregnancy, sometimes forced and sometimes consensual. ⁴⁷ Both sex and pregnancy can be consensual and unwanted at the same time. Women consent to unwanted sex out of a sense of duty, or out of a need for material support if they are economically dependent upon the relationship for their own or their children’s survival. Sometimes, women consent to unwanted sex out of fear of future violence; this sex is patriarchal but not rape even in a liberal legal order that no longer enforces patriarchal law. Should law or public policy intervene to change the power dynamics that shape unwanted but consensual sex, pregnancy, motherhood, or other gendered situations? Women have sex, get pregnant, give birth, breastfeed, and care for children, all of which can be a source of meaning as well as a source of oppression. ⁴⁸ Patriarchal laws made these functions obligatory for women. But even after patriarchy, under liberal gender equality, pregnancy and motherhood can remain oppressive because they often involve relationships of economic dependence on others, and/or because the state strenuously neglects mothers’ needs. Overcoming patriarchy may require reducing the negative effects of caregiving on other important dimensions of an autonomous person’s life. Legal feminism of the 1970s enlarged women’s opportunities within the workplace; at the same time, West notes, We need to take care not to negate . . . the vision, the moral perspective and the political sensibility that accompany immersion in a world of caregiving, of relationality, and of kinship. ⁴⁹ Women’s immersion in the world of social reproduction is undervalued when caregiving is valued far less than market work, in ways that negatively affect the subsistence and flourishing of those who need care and those—often women—who provide it.

Proposing a reconstructive feminism to direct the reform of law, Joan Williams embraced this proposition at the dawn of the twenty-first century in a game-changing book, Unbending Gender: How Family and Work Conflict and What to Do about It. ⁵⁰ Williams shifted the focus of legal feminism from sexual violence and harassment to the design of (market and family) work and the entitlements that flow from it. ⁵¹ Without diminishing the significance of MacKinnon’s work on sexual violence, Williams pointed out that if we woke up tomorrow and found a society where dominance was not eroticized, people still would be thwarted in the dreams they hold for their children and for themselves. ⁵² Discrimination against workers —often working mothers— because of their caregiving responsibilities perpetuated gender stereotypes and expectations. These expectations diminished women’s ability to enjoy the autonomy in life pursuits that our liberal constitutional commitment to liberty and equality purports to guarantee.

The undervaluing of women’s disproportionate contributions to reproduction, both biological and social, has animated feminist legal thinking outside the United States about the law’s protection of motherhood. Indeed, the duty of the state to protect mothers was a common feature of European constitutions adopted in the twentieth century, along with explicit constitutional provisions guaranteeing the equal rights of women and men and the equality of the spouses in marriage. The notion that mothers should be protected by the community and by its political and legal institutions was developed in the writings of Swedish, German, and Russian feminists in the late nineteenth and early twentieth centuries.

In an essay entitled Motherliness that was translated into English and published in the Atlantic Monthly in 1912, the Swedish feminist Ellen Key acknowledged that the women’s movement enabled women to assert their full humanity, all the attributes, independent of sex, which she shares with man, and applauded women’s participation in trades to earn their livelihoods if they did not have children, or when their children were older. But for most women it ought still to be the dream of happiness, some time in their lives, to have fulfilled the mission of motherhood, and during that time to have been freed from outside work in which they, only in exceptional cases, would be likely to find the same full outlet for their creative desire, for feeling, thought, imagination, as is to be found in the educative activity in the home. ⁵³ The law had a role to play. Key demanded, on behalf of Motherliness, all the legal rights without which woman cannot, in the fullest sense of the word, be either child-mother or community-mother. ⁵⁴ She called on women to demand "the state-given mother-stipend without which she cannot be at the same time child-bearing, child-rearing, and self-supporting." ⁵⁵

Ellen Key’s provocative work on motherhood influenced some German feminists to form a league for the protection of motherhood. The Mutterschutz League, led by Helene Stöcker, demanded the legal equality of man and woman in marriage (and, by implication, reform of