In Pursuit of Collective Liberation in Feminist Constitutionalism

Yvette Butler* April, 2024

After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk. Oakland: University of California Press. 2023. Pp. 326. $29.95.

Introduction

Diary Entry—May 2, 2022

At 9:15 p.m., I was laughing with my friends on a big, comfy couch, watching The Courtship, a dating game show set in the Regency-era. A mere five minutes later, we were all glued to our phones as the harsh reality set in. A tornado of thoughts tore through my mind. The Dobbs opinion was leaked. Was this real? It overturned Roe. This was expected. This was devastating. Finals were right around the corner—how would my students study for exams? What do we do now?

My phone chimed. A text from my research assistant echoed one of my other thoughts, “My country doesn’t even see me as equal, Professor Butler.” How does one even respond to that? I invited her to grieve with us. There we were. Four professors. One student. Five women. Five people with the capacity to get pregnant. Two of us actively trying for pregnancy. Three who would be devastated at the loss to our careers, freedoms, and physical and emotional wellbeing if we were to become pregnant. The feeling that we all shared that evening continues to this day. We are not equal under the eyes of the law.

* * *

How is it that cisgender women¹ in the United States could think they are unequal in 2022 and beyond? The Fourteenth Amendment, ratified in 1868,² stated that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”³ At the time of my student’s comment, it had been 154 years since ratification. Moreover, women obtained the right to vote in 1920: a full 102 years before my student’s comment.⁴

And yet, the existence of the Fourteenth Amendment has never translated to full and equal citizenship for women. Under explicitly patriarchal laws like coverture, women lacked full ownership over their bodies. A woman’s labor and resulting wages “belonged to her husband.”⁵ Women had no legal identity of their own.⁶ A single woman was “covered by her father’s identity, and then, when she married, by her husband’s.”⁷ Supporters of coverture argued that “a woman’s proper role was that of wife and mother, with the sort of weak nature such that women could not be trusted to act in their own best interest or to make good decisions on their own.”⁸ Women could not even obtain credit or open bank accounts into the 1970s.⁹

This socio-legal arrangement also meant that, at one point, women could be excluded from the practice of law.¹⁰ One rationale is related to coverture. Without a legal identity of her own, how could a woman hope to properly represent the interests of her clients? Although states could issue law licenses to women, the denial of a license on the basis of sex was legally permissible.¹¹ In 1869, Myra Bradwell was the first woman to pass the Illinois bar exam.¹² She applied for a license to practice law. After Illinois denied her the license because she was a married woman, she sued. When Bradwell v. Illinois made it to the U.S. Supreme Court, the majority ruled that a law license was not a privilege or immunity of U.S. citizenship and that the Fourteenth Amendment did not protect state regulation of the practice of law.¹³ “[T]here are privileges and immunities belonging to citizens of the United States . . . it is these and these alone which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them.”¹⁴ The Court did not consider whether the law violated the Equal Protection Clause.¹⁵

While the Court’s decision to decide the case using the Privileges and Immunities Clause may seem like a perfectly neutral way to go about resolving the issue, it is willfully ignorant to ignore the impact of the sexism of the day. The dominant narratives of women’s proper role in society almost certainly influenced the outcome of the case.¹⁶ Women were seen as inherently domestic. Justice Bradley’s famous concurrence (joined by Justices Swayne and Field) espoused this view. “The paramount destiny and mission of woman [sic] are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things.”¹⁷ Thus, this case not only highlights the paternalistic sexism of several justices on the highest court of the land, but it also demonstrates how law perpetuates misogyny, even without any explicit misogynistic intent.

In the abortion context, one can conceptualize how this commitment to women’s “natural role” of motherhood could be maintained within the law. In Planned Parenthood v. Casey, Justice Blackmun famously remarked that:

By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course.¹⁸

In his view, the “assumption[] that women can simply be forced to accept the ‘natural’ status and incidents of motherhood[] appears to rest upon a conception of women’s role” and “place in society,” which are inconsistent with the Constitution.¹⁹

The current Court’s reliance on “history and tradition”²⁰ is a prime example of how the Court maintains misogyny without explicit bias. The history or tradition of women’s equal status under law is spotty at best. If the Court looks to “history and tradition” as beginning in 1788 or 1868, women were not even considered “full members of the community embraced by the phrase ‘We the People.’ ”²¹ The framers of the original Constitution, as well as the Reconstruction Amendments, “did not perceive women as equals.” ²² Therefore, any commitment to reviewing the constitutionality of any law under a “history and tradition” methodology “consigns women to second-class citizenship.”²³ My student’s claim that she is not equal is consistent with the course of history.

One might argue that times have changed. The year is not 1873 or even 1973. Cisgender women have rights. They have made great strides in law and politics. Women are congresspeople and Supreme Court justices. They can often decide whether they want to stay home and raise children or pursue high-level careers. Sure, there is sexism—individuals can be sexist against other individuals. Men or women can be violent or hateful toward other men or women. But when women today make statements like “my country does not see me as equal,” they are taking on a victimhood narrative, as opposed to being agents of their own lives.²⁴

Julie Suk’s²⁵ book, After Misogyny, responds to this conundrum. She does this by explaining that misogyny is not merely about physical violence toward women or hatred of women (pp. 10, 23). Instead, she reframes misogyny as societal overentitlement to women’s labor and men’s overempowerment in the eyes of the law (pp. 10–11).

Overentitlement stems from the substantial benefits individual men and society reap from women—including their reproductive labor—without just compensation (pp. 10–11). Overempowerment is about the explicit legal enforcement of that entitlement (p. 11). Suk explores overentitlement through the legal claim of unjust enrichment to describe how men and society have benefitted from women’s labor (pp. 64–74). She then ends on a recommendation to use the Takings Clause to remedy the use of women’s reproductive capacities without compensation (p. 215).

Throughout the book, Suk uses a variety of stories to illustrate her concepts. As someone who writes about epistemology²⁶ within the critical race theory tradition, in particular, I found this use of narrative particularly enjoyable. Narrative is a particularly important and powerful way to understand how constitutional theory and law are shaped.²⁷ The goal of reframing narratives and reinterpreting a constitution is to transform the rights and duties between people and the state.²⁸ According to Suk, such a transformation is necessary to remedy societal overempowerment (ch. 6). The result of that transformation: misogyny collapses and becomes democracy.²⁹ Only through this transformation do women become equal citizens.

Particularly for those who are focused on transformative justice and penal abolition, the goal is an overhaul of the patterns that fail to address the root causes of both interpersonal and state harm.³⁰ This overhaul involves avoiding reliance upon “reformist reforms,” which merely maintain the status quo, and, instead, seeking “non-reformist reforms,” which “aim to undermine” the current social order and “build democratic power toward emancipatory horizons.”³¹

In this vein, Suk makes some mention of the insufficiency of criminal penalties in addressing misogyny.³² If the definition of misogyny is limited to only violence and woman hatred, then the root causes of those violent expressions of misogyny elude us. Limiting our understanding of misogyny to only expressions of violence misses the point because, as explored in Part II, “[v]iolence and discrimination against women are neither the necessary nor the core dynamics by which patriarchy is enforced” (p. 63). As such, any definition that encourages “solutions” in the form of arrest and incarceration fails to remedy root causes of violence and woman hatred. Solutions dependent on the criminal legal system also fail to be properly intersectional—thus disproportionately harming marginalized groups by placing women of color, as well as low-income, GNC, and criminalized people, at greater risk of state violence.³³ Throughout the book, Suk returns to the core of her argument: A societal transformation that resets baseline entitlements and rebalances power can appropriately address misogyny (p. 26).

Although I enjoyed Suk’s book and these transformative goals, portions of it gave me pause. Suk’s suggestions fall short of the radical transformations required to truly advance Collective Liberatory goals. As discussed in Section III.B, Collective Liberation seeks to avoid viewing justice as a zero-sum game. Instead, Collective Liberation acknowledges the interconnectedness of struggles against subordination. In my view, it counsels striving for the best version of justice—one that is truly transformative and does not merely shift scraps of rights between groups through reformist reforms. This issue will be the focus of this Review. Suk’s work is helpful for articulating reforms, but her recommendations could go even further. She seems to fall into the same trap of proposing reformist reforms that have the potential to perpetuate, rather than help address, gender injustice.

Ultimately, I see Suk’s book as an important contribution because her concepts of overentitlement and overempowerment can easily be applied to other issues. I have already recommended her book to several people when I have noticed that an entitlement/empowerment framing may be useful to their analysis. Although prospective readers should not glean too much hope from the title—misogyny and the patriarchy are still alive and well—Suk’s book provides important guidance as to what misogyny really is and how to address it more effectively.

I. Overentitlement and Overempowerment Sustain Misogyny
and the Patriarchy

At its worst, patriarchy authorizes male entitlement over women’s bodies and receives explicit legal enforcement of that entitlement, such as through coverture laws (p. 73). Feminist theorists have defined patriarchy as a system in which men are dominant and superior.³⁴ This is not to say that all men are dominant all of the time or that all men are superior all of the time. The key point is the systemic entrenchment of the expectations on men, women, and everyone to conform to certain standards that maintain the patriarchy. Patriarchy is a “political-social system” that requires that men assert dominance over “everything and everyone deemed weak, especially females, and [are] endowed with the right to dominate and rule over the weak and to maintain that dominance through various forms of psychological terrorism and violence.”³⁵

Even those who may theoretically want to end the patriarchy maintain it because of the benefits they receive—and burdens they avoid—by adhering to patriarchal mandates.³⁶ Patriarchy promotes heterosexism: A man is not a real man if he does not marry a woman.³⁷ Patriarchy promotes market labor over emotional connection: The ideal man works and relinquishes familial responsibility to the domestic sphere that his wife (theoretically) controls.³⁸ Patriarchy promotes cisgenderism: A man is not a real man if he does not express his masculinity in the right way.³⁹

Misogyny is traditionally understood as animus, woman hatred, and violence against women (p. 2). Expressions of violence against others—including, or especially, women and children—protect the patriarchal social order by putting subordinates back in their place.⁴⁰ Under explicit patriarchal law, men could expect women to “play the ‘giver’ role that men could expect the law to enforce under patriarchy” (p. 10). In our current system, men acting as “enforcers” are no longer authorized by law to dish out “social punishment” but do so anyway (pp. 10–11).

Kate Manne’s research is particularly helpful in identifying the differences between patriarchy, misogyny, and sexism, as well as for providing concrete examples for how the system of patriarchy is maintained through misogynistic acts and sexist beliefs: “[M]isogyny upholds the social norms of patriarchies by policing and patrolling them; whereas sexism serves to justify these norms—largely via an ideology of supposedly ‘natural’ differences between men and women with respect to their talents, interests, proclivities, and appetites.”⁴¹

Thus, sexism is the belief that women are natural mothers and should act as the nurturing mothers they are expected to be. Misogyny enforces that narrative by forcing women into that role through abortion bans and other laws meant to limit women’s opportunities to take on other roles for which sexist narratives deem women unfit. These laws strengthen the patriarchy—the system of male dominance—even though they are not explicitly patriarchal.

Suk agrees with Manne that misogyny does not require hatred of women. “Violence and discrimination against women are neither the necessary nor the core dynamics by which patriarchy is enforced” (p. 63). She argues that misogyny persists today, even if it is less egregious than it once was, through overentitlement and overempowerment. Because of this persisting misogyny, the patriarchy continues to thrive through legally supported expressions of misogyny, such as abortion bans, the rejection of quota systems that would ensure women’s representation in legislative bodies,⁴² and other avenues.

Just as one might not understand why my student thinks that women are not equal under the law, one may ask how the patriarchy can be strengthened in the absence of explicit patriarchal law. The answer is that entitlements and duties are two sides of the same coin.⁴³ Even though the United States is, for the most part, no longer guided by explicit patriarchal law, the law continues to facilitate misogyny.

One example of entitlements is street harassment. Men who catcall women implicitly assert an entitlement to a woman’s attention. When men get angry that women are not sufficiently receptive to their advances (usually calling her a “bitch” or telling her to smile), they evince an implicit expectation that women owe them something.⁴⁴ If women fail to fulfill this duty by giving men what they feel they are owed—what they are entitled to—consequences follow. Those consequences may be as “simple” as being told to smile or as great as physical violence,⁴⁵ but these are the everyday interactions that demonstrate the patriarchy lives on, despite the death of explicit patriarchal laws like coverture.⁴⁶

II. Wrongful Entitlement to Women’s Reproductive Labor

Gender equality may require abortion access so that women can pursue economic opportunities unimpeded by unwanted motherhood. But this should not hide the misogyny of a world that makes abortion necessary for women to achieve the same economic opportunities that men enjoy, because the law dooms women who stay pregnant and become mothers to a life of economic hardship and professional inferiority. (p. 119)

Similar to men’s implicit assertion of entitlement to women’s attention and romantic or sexual receptivity, Suk argues that women’s reproductive labor is expected (p. 9). The patriarchy is upheld through misogynistic laws that enforce sexist notions of women as most suited for their “natural” role of mother. In other words, men and society feel entitled to women’s fulfillment of their “natural” role (p. 115). Suk argues that this feeling is a form of overentitlement: a wrongful expectation that women have a perceived duty to meet (p. 114).

Reproductive labor is broadly understood as the varied activities (“emotional, physical, and spiritual”) bound up with bearing, raising, and caring for children and other dependents.⁴⁷ Feminist legal thinkers have argued for generations that women’s economic and political subordination “is reproduced by devaluing” their labor in both household and market spheres.⁴⁸ As critical scholars have noted, care labor, sexual labor, reproductive labor, and other non-market-based work tends to be devalued and even not treated as work.⁴⁹ Instead, reproductive labor is considered “part of the gift of marriage, akin to affection, and not an object to be negotiated.”⁵⁰ Thus, in intimate relationships, reproductive labor is societally expected.

This expectation remains alive and well as conversations that have become embedded in the public consciousness have evidenced through terms like “second shift,” ⁵¹ emotional labor, and “mental load.”⁵² Studies demonstrate the ways in which women retain a socially expected responsibility for reproductive labor and general household management.⁵³ This expectation has real effects on their ability to enter and succeed in the workplace.

During the pandemic, particularly due to a loss of childcare and schooling outside of the home, mothers were at greater risk of voluntary and involuntary loss of employment.⁵⁴ Some studies show that, in the early days of the pandemic, fathers took on greater childcare and household responsibilities,⁵⁵ but mothers “retained primary responsibility for domestic labor in most families.”⁵⁶ At least one study argues that these effects were felt the most by “[w]omen who have no education beyond high school” as they “exited the labor force in greater numbers than similarly educated men.”⁵⁷

In her book, Suk reframes the abortion debate to focus on why reproductive labor is valuable work deserving of compensation (ch. 3). This reframe is meant to accomplish a few things. First, a labor focus centers women’s contributions to society in the language of entitlement:⁵⁸ what men and society expect from women and how the law enforces those expectations. Second, discussing abortion in terms of labor makes other avenues for strategic advocacy possible. Suk argues that, by presenting reproductive labor as an uncompensated taking, Takings Clause litigation can become a new avenue to pursue gender justice (pp. 215–21). Consequently, this reframe is an important step toward creating the resources and language⁵⁹ necessary to communicate why women are not currently equal citizens. While this Review finds Suk’s concepts valuable for understanding the enduring nature of patriarchy and the ways in which the law enforces sexist narratives through misogynistic laws, the Review takes issue with Suk’s Takings Clause proposal because it is a reformist reform that maintains—if not opens the door to worsening—the status quo.

A. Suk Makes a Takings Clause Argument Possible

By fully articulating the “state’s interest in pregnancy and parenthood,” Suk argues that new constitutional arguments protecting abortion could be made using “the Takings Clause of the Fifth Amendment, or the Thirteenth Amendment ban on involuntary servitude” (p. 215). A takings argument could facilitate legal claims that would provide compensation to women shouldering the “burdens of unwanted pregnancy” (p. 215).

The Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.”⁶⁰ This protection has been incorporated through the Fourteenth Amendment Due Process Clause, meaning it applies to the states as well as the federal government.⁶¹ If wombs are conceptualized as private property,⁶² then “a state that bans abortion uses an individual’s womb for a public purpose” (p. 216). That public purpose is reproductive labor, whereby the pregnant person births “future members of the community who cannot survive without access to a receptive womb” (p. 216).

Suk argues that reproductive labor is a contribution to the country: It is work that provides an uncompensated benefit to the state. Women create and raise new citizens and workers (pp. 217–18). She argues that “[a] law banning abortion effectively extracts physical and mental labor from women for the benefit of others, often for the collective public good” (p. 216). States banning abortion also assert an interest in potential life, which the U.S. Supreme Court has ruled is a legitimate state interest.⁶³ Moreover, when states like Texas provide an individual right to sue (Senate Bill 8) in order to stop an abortion from occurring, this evinces an “implicit assumption that everyone is injured when . . . unborn lives are prevented from developing into born persons” (p. 217). Thus, Suk argues that the states’ interest in potential life combined with the “collective benefits” of “the gestation, birth, and raising of a new generation of citizens and workers” demonstrates a clear benefit to society (p. 217).

As such, when abortion is banned and women receive no compensation for their reproductive labor, the state’s interest in unborn life “overrides the pregnant woman’s interest in her own health and well-being in determining the course of her life” (p. 217). Pregnancy involves taxing changes on the body that often prevent women from pursuing or continuing employment (p. 217). For Black women, in particular, remaining pregnant could mean the loss of life, given the significant and disproportionate risks of maternal mortality (p. 217).

The remainder of this Review lays out the theoretical framework I use to challenge Suk’s assertion that the Takings Clause provides a suitable avenue for challenging abortion restrictions. As Suk recognizes, the Takings Clause mandates only compensation after a taking and does not foreclose a taking altogether. “Abortion bans enforce society’s entitlement to women’s sacrifices as childbearers for the public benefit of reproducing the community, without sufficient governmental restitution for this unjust enrichment” (p. 88). Despite its coherence as a legal claim, relying on the Takings Clause would further a system that would leave pregnant people no better off—and likely worse off—if the state were allowed to pay for access to their wombs. Ultimately, a theory of Collective Liberation lights the way to gender justice.

B. Collective Liberation is the Lodestar

Until we are all able to accept the interlocking, interdependent nature of systems of domination and recognize specific ways each system is maintained, we will continue to act in ways that undermine our individual quest for freedom and collective liberation struggle.

—bell hooks⁶⁴

To communicate what justice looks like, I speak in terms of liberation instead of liberty. Liberty often presumes a negative rights philosophy, as opposed to a positive rights philosophy. A negative rights philosophy asserts that government may not only infringe upon one’s rights but also has no obligation to facilitate an individual’s ability to exercise their rights. For example, before the Dobbs opinion, the ability for a pregnant person to get an abortion was constitutionally protected. “The right to abortion established in Roe, based on a right of personal privacy, was a negative right to be free from state intrusion” (p. 90). However, this right did not mean that states would help pregnant people in need of an abortion actually obtain one. The Supreme Court in Harris v. McRae held that states did not have to permit the use of Medicaid funds to allow a Medicaid recipient to obtain a medically necessary abortion.⁶⁵ “Roe protected abortion access only for those who could afford it, and not for indigent women who depended on the state for health care” (p. 90).

When critical race feminists argue that women are not equal under the eyes of the law, they often refer to the reality that many are unable to exercise rights that theoretically exist (pp. 90–91). Even before Dobbs, the McRae line of precedent made it impossible for low-income women to exercise their right to an abortion if they needed to tap into public funds to do so. This is also why a “rights” framework—while important to marginalized groups—is not sufficient for equality under the law. If one is unable to exercise their rights, it is almost as if their rights do not exist.

Collective Liberation may or may not always counsel positive over negative rights in any given situation. The goal is to recognize that our many struggles, while unique, are interrelated. The hope is that acknowledging that relationship will foster creative and transformative interventions. In a seminal article, Patricia Williams describes her interactions with a transgender student facing discrimination at her law school. She came to the realization, upon the transgender student seeking her out for solidarity and comfort:

[T]hat a discursive property of [B]lack somebody-ness was being part of a community of souls who had experienced being permanently invisible nobodies; that “[B]lack” was a designation for those who had no place else to go; that we were both nobody and somebody at the same time, if for different purposes. . . . [M]y difference was in some ways the same as her difference; and that simultaneously her difference was in some ways very different from my difference, and that simultaneously we were in all ways the same.⁶⁶

Collective Liberation is realizing that many struggles for justice are different and yet the same. The “Mississippi Appendectomies” that plagued impoverished Black women in the Deep South⁶⁷ are connected to the sterilization of women of Mexican descent in California,⁶⁸ which is connected to the removal of Indian children from their families.⁶⁹

Theorists like Angela Y. Davis are known for making concrete the connection between racism, patriarchy, and state oppression. These systemic issues highlight how the “bombing of abortion clinics, loss of federal subsidies to obtain an abortion, sterilization abuse, [and] prohibition of lesbian parentage”⁷⁰ are all forms of “violence aimed at our reproductive choices and our sexuality.”⁷¹ Due to the many points of connection between reproduction, labor, the environment, and more, sexual violence can be truly eliminated only when every other form of oppression is eliminated as well.⁷² This is not to say that sexual violence will be the last form of violence to be eliminated but that we often have blinders on that prevent us from interrogating how dominance manifests itself.⁷³ Removing those blinders highlights the connection between multiple forms of subjugation: A daunting task, but one that gets at the point of Collective Liberation—all struggles are inextricably intertwined.

This concept is also grounded in coalition. Working in coalition requires thinking about causes and groups other than one’s own. Similar to feminist theory, other critical or “outsider” theories seek to learn of and engage with other’s experiences to build “a theory of subordination.”⁷⁴ By examining patterns of oppression, one can see “that all forms of subordination are interlocking and mutually reinforcing.”⁷⁵

We imagine law to uplift and protect the sixteen-year-old single mother on crack rather than law to criminalize her. We imagine law to celebrate and protect women’s bodies; law to sanctify love between human beings—whether women to women, men to men, or women to men, as lovers may choose to love; law to respect the bones of our ancestors; law to feed the children; law to shut down the sweatshops; law to save the planet.⁷⁶

Like Patricia Williams, Mari Matsuda argues that “all forms of oppression are not the same.”⁷⁷ However, she identifies “certain predictable patterns”⁷⁸ underlying all forms of oppression. Of particular relevance to this Review is the first in her list: “All forms of oppression involve taking a trait, X, which often carries with it a cultural meaning, and using X to make some group the ‘other’ and to reduce their entitlements and power.”⁷⁹ The way individuals with intersecting identities experience subjugation is unique and cannot be disaggregated into component parts.⁸⁰ To end subjugation, we must listen “with special care to those who are actively involved in knowing and ending the systems of domination that touch their lives.”⁸¹

Reproductive justice necessarily fits within Collective Liberation. “The [B]lack women who were the architects of the reproductive justice framework recognized that abortion rights were essential to racial justice and reproductive freedom.”⁸² A reproductive justice framework contains three “prongs” that are equally important: (1) the right not to have a child, (2) the right to have a child, and (3) the right to parent a child with dignity.⁸³ Reproductive justice often “emphasizes an affirmative government role ‘in ensuring that all women have the social, political, and economic power and resources to make the best decisions for themselves and their families.’ ”⁸⁴ Reproductive justice and Collective Liberation are concerned with going beyond merely adopting rights, seeking holistic approaches that would address systems of domination and subjugation. Furthermore, if rights are at stake (such as a right to terminate a pregnancy), then addressing systemic inequality will enable people to actually exercise those rights.⁸⁵

Importantly, scholars also argue that reproductive justice fits with an accurate understanding of what the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) were designed to achieve.⁸⁶ The Reconstruction Amendments were created to abolish slavery and its vestiges, and facilitate full citizenship for freed Black Americans.⁸⁷ Full citizenship rights are contained in the text of the Constitution, as well as in unspoken entitlements protected by courts, such as the breadth of our equal protection and due process jurisprudence.⁸⁸ The goal of all three Reconstruction Amendments was to “completely restructure the nature of freedom and citizenship in a society that had recently thrown off the yoke of slavery.”⁸⁹ The Thirteenth Amendment prohibited “involuntary servitude and the badges and incidents of slavery,” thus making it “clear that the defining features of slavery would no longer be tolerated” under slavery or “some new iteration.”⁹⁰

As such, the Reconstruction Amendments do not just forbid an unpaid labor force. They also forbid state-facilitated coercion and the denial of intimate relationships and childrearing.⁹¹ Enslaved people were forced to reproduce with “very little agency in these decisions.”⁹² The economic life of the nation depended upon this forced reproduction.⁹³ Physicians and slave owners joined forces to quell any use of contraception and abortion by enslaved women.⁹⁴ They also curbed the ability of white, middle-class women to use contraception and abortion in the pursuit of racial dominance, ensuring that “native-born, middle-class, white” women were reproducing at a pace that would not be outpaced by others.⁹⁵ Control over reproduction was necessary to maintain “the social order.”⁹⁶

The Reconstruction Amendments acted as a way—and could be interpreted more powerfully—to transform baseline entitlements, redistribute power, and pursue Collective Liberation. By recognizing this racialized history of reproductive control due to the interconnectedness of capitalism, the patriarchy, and white supremacy, we can ensure that freedom from badges and incidents of slavery for Black Americans means freedom for all Americans.⁹⁷

C. Taking Issue with the Takings Clause

For a while, I did not interpret Suk to be arguing that compensation would make the compelled use of one’s womb acceptable. In fact, I actively resisted this conclusion. She questions whether “compelled and compensated motherhood” would be an improvement on the status quo where motherhood is “uncompensated, severely unsupported, and neglected by public policy” (pp. 94–95). She asks this question—I thought—not to advocate for compensated, possibly compelled, usage of one’s womb but to argue that “[a]bortion bans misapprehend the state’s role” in the abortion debate (p. 95). She argues that “the battle against misogyny should not resurrect privacy rights in pregnancy but rather pursue laws that fully recognize the public value of the sacrifices pregnant women endure for the benefit of others” (p. 95). Unfortunately, however, it seems the logical conclusion to Suk’s argument is that it would be acceptable for the state to compel a pregnant person to bring a pregnancy to term as long as it compensates that person.

First, classifying wombs as private property (owned by the womb bearer) is attractive because typically such a right includes the “right to control its use, including excluding use by others” (p. 219). However, the Takings Clause overrides this right to exclude as long as the state provides just compensation. ⁹⁸ Therefore, pregnant people would have very little right to exclude the state from paying for their capacity to carry a fetus to term. As long as the state is ready to cut a check, people with the capacity to get pregnant may have little legal ability to resist. The state could force pregnant people to carry a fetus to term by paying them for it.

Some may argue that, if women are being compelled to carry their pregnancies to term anyway, wouldn’t compensation be helpful? That argument is exactly the point of interrogating “reformist reforms” and “non-reformist reforms.” Reformist reforms are so attractive because they suggest some improvement over no improvement at all.⁹⁹ However, a theory of Collective Liberation makes clear how takings litigation would not result in gender justice. In fact, takings litigation would be a “reformist reform” that maintains the status quo or could even worsen the status of women.¹⁰⁰

Second, while I am partially receptive to Suk’s arguments that public use acknowledges the benefits that flow from women’s reproductive labor, I cannot remain on board with the logical conclusions of her argument in a takings context. Historically, the creation of new citizens and workers was linked to white supremacist entitlement to Black bodies and their reproductive capacities.¹⁰¹ Moreover, history also shows patriarchal entitlement to women’s bodies and reproductive capacities, often in service of the aforementioned white supremacist ends.¹⁰² In a takings context, where the state’s desire for the creation of new citizens and workers (pp. 21–27) can be facilitated by overcoming an individual right to reproductive self-determination, such public use and public benefit arguments are extremely dangerous.¹⁰³

Relatedly, would takings litigation disrupt the narrative of women being suited for the role of motherhood if the state can cut a check and ensure their role is fulfilled? The question is: How does the law help or hinder women’s equal place in society? Abortion bans are a hindrance because they limit pregnant peoples’ opportunities and their ability to self-determine their lives. If states with abortion bans are serious about women’s equality and being pro-life, then it seems they could accomplish both of those goals through policies that reduce unwanted pregnancies and support women’s self-determined goals. These are policies that do not enforce a sexist conception of cisgender women as naturally made for a mothering role. A takings theory maintains women as natural mothers who give birth and, in doing so, fulfill their “paramount destiny and mission . . . to fulfil the noble and benign offices of wife and mother.”¹⁰⁴

In her concluding chapter, Suk notes that other scholars have presented Thirteenth Amendment arguments for challenging abortion bans. (p. 221). She correctly notes that a Thirteenth Amendment challenge “would likely lead to [the abolition of abortion bans], whereas a successful takings claim could leave the abortion ban intact as long as the state compensated women for the use of their wombs” (p. 221; emphasis added). She notes, optimistically, that “requiring the state to fully cover the significant expenses of every pregnancy and parenthood[] might well lead states to rethink the economic viability and political wisdom of banning abortion” (p. 221).

It is possible Suk is right: Takings Clause litigation could challenge the status quo. After all, desegregation efforts pre-Brown were designed “not to challenge the ‘separate’ in separate-but-equal, but to try to make officials live up to the ‘equal’ requirement. The hope was to make the cost of a dual school system prohibitive by challenging each instance of unequal funding.”¹⁰⁵ At the same time, that strategy was scrapped, in part, due to the extreme burden that flows from bringing hundreds, if not thousands, of individual lawsuits. I suspect such a burden would be present in abortion cases as well.

The Thirteenth Amendment argument that Suk appears to reject is more suited to Collective Liberation. A takings claim would strengthen private property rights,¹⁰⁶ but it would also allow the state to rent wombs and possibly exert some legal status over those fetuses¹⁰⁷ for payment. A Thirteenth Amendment argument, on the other hand, would provide an opportunity to disrupt the status quo through litigation, overcome abortion bans, and do so according to Reconstruction’s goals, which made it “clear that the defining features of slavery,” including forced reproductive labor, “would no longer be tolerated” under slavery or “some new iteration” of slavery.¹⁰⁸

Conclusion

“My country doesn’t even see me as equal, Professor Butler.” While I still don’t know how best to respond to statements like this from students of mine (I can’t help but want to comfort them), the sobering, honest answer is: “No. It doesn’t.”

Julie Suk’s book does the legal community a great service through her efforts to make the legal system’s perpetuation of misogyny coherent. The law has embedded sexist narratives that paint cisgender women as natural mothers. To police their “natural” role, legislatures pass laws banning abortion and fail to pass laws facilitating self-determination, and courts interpret the law to protect negative rights instead of positive rights. In several places, Suk offers important recommendations to redefine the public responsibility for unwanted pregnancy that, if used responsibly, could be transformative. If our justice system was responsive to arguments for liberation and positive rights, some of the non-reformist reforms that would address misogyny would include Suk’s care infrastructure suggestions (p. 208). This infrastructure would ideally follow programs implemented by “several European nations” by “explicitly recognizing the public value of [women’s] sacrifices and entitling mothers to the protection of the community in return” (p. 208). While critical scholars question the feasibility and wisdom of relying on the state for liberatory purposes, a care infrastructure that promotes pregnant worker protections, guarantees paid parental leave, provides more financial support for childcare workers, expands Medicaid to reduce maternal mortality, and implements other measures that were temporary pandemic relief measures (p. 208) would go a long way toward expanding women’s opportunities beyond a dominant, sexist narrative.

These suggestions are in line with other leading critical race feminist scholars, who recommend the use of federal funds to facilitate access to contraception and comprehensive sexual education, expand Medicaid to increase low-income folks’ access to health care, increase public benefits access and amounts, improve childcare assistance, and provide workplace protections and accommodations.¹⁰⁹

Throughout her book, Suk challenges the reader to think creatively about possible avenues to transform society, such that men are not overentitled to women’s labor and overempowered by misogynistic laws. (pp. 13, 22). Unfortunately, that challenge is why her suggestion that the Takings Clause is a good avenue to pursue gender justice falls so flat. I take issue with her argument to use the Takings Clause to obtain compensation for pregnant people’s forced labor because I see it as falling into a non-or-even-anti-liberatory trap. However, in several places, her book is otherwise in line with more radical theorists who argue for the necessity of social transformation to address gender inequality.

By considering who benefits from women’s labor, the un-or-undercompensated sacrifices women make for those who benefit, and the role the law plays in maintaining that status quo, Suk’s theories of overentitlement and overempowerment contribute to a better understanding of the ways in which the law maintains misogyny.

APPENDIX

Butler-Appendix-1 Download

Butler-Appendix-2 Download

* Associate Professor of Law, Indiana University Maurer School of Law. Thank you to Leigh Goodmark, Marissa Jackson Sow, and the AALS Jurisprudence Virtual Scholars Workshop (Chad Flanders, Robert Leider, Stephen Galoob, Charles Capps, Alex Sinha, Johnathan Gingerich, and Brenner Fissell) for helpful questions and feedback. Thank you also to Michigan Law ReviewBook Review Editors Benjamin D. Marvin-Vanderryn and Nethra K. Raman for your hard work and excellent suggestions while editing this piece.