By Julie C. Suk, author of After Misogyny: How the Law Fails Women and What to Do about It

May 25th marked the fifth anniversary of the vote in 2018 to repeal Ireland’s constitutional ban on abortion. At the time, women in the United States exercised a constitutionally protected right to abortion, which the U.S. Supreme Court ended last year in Dobbs v. Jackson Women’s Health. Dobbs led rapidly to near-total abortion bans in several American states as well as a national women’s health crisis occasioned by federal judges questioning the legal framework by which medication abortion can be dispensed. Meanwhile, abortion became legal in Ireland in the first trimester, and accessible thereafter if necessary to save a woman’s life or health.

After Misogyny: How the Law Fails Women and What to Do about It was written amid these shifting transnational landscapes of abortion law and other legal regimes that determine the fate of women’s bodies and women’s lives. Banning abortion in the United States in 2023 is a form of misogyny, and the processes of constitutional change in Ireland and several other countries around the world involved a range of different political and legal strategies to overcome abortion bans. After the rise of Donald Trump, followed by the #MeToo movement, there was a need to explore what misogyny really is, and why it persists in legal systems that proclaim women to be equal citizens with equal rights.

Why has women’s pursuit of legal gender equality fallen so short?   

After Misogyny posits that misogyny in the law is not exactly the law’s hatred of women. Rather, misogyny is a range of legal practices and norms that enforce patriarchy as a system of reproduction even after the formal rules of legal patriarchy that discriminated against women have fallen away. Legal patriarchy deprived women of equal status as persons under the law, rendering women unable to vote, hold property, work in most professions, or refuse to have sex, to enable patriarchy as a system of reproduction. Depriving women of legal rights went hand in hand with the expectation that women’s primary function was the biological and social reproduction of the next generation of society. Legal patriarchy extracted disproportionate contributions from women to further the public good of reproduction. Even after women were permitted by law to vote, hold property, work outside the home, and consent to sex (legal patriarchy), society’s overentitlement to women’s sacrifices for the public good (reproductive patriarchy) was enforced through other bodies of law. Women have formal legal status as equal persons, but modern abortion bans force them to stay pregnant, give birth, and become mothers in the name of achieving the public purpose of protecting life.  Women’s formal legal status as equal persons is invoked as a reason why the law can do nothing special to protect them from sexual violence or overcome their severe underrepresentation in decisionmaking institutions of power.

That is what misogyny is: Women are expected to endure sex, pregnancy, motherhood, caregiving, and work to sacrifice their own lives for the benefit of others.

Misogyny encompasses the overentitlement of society to female sacrifices, and the overempowerment of men in institutions that define entitlements, where excessive power is prone to abuse. Furthermore, what the state does when it bans abortion is much worse than the privacy violation identified by Roe v. Wade; it allows the overempowered men who control society to extract sacrifices for the public good from women, without properly valuing or compensating female contributions.  In constitutional democracies around the world, women have notably pursued constitutional change, including by formal amendment, to reset baseline entitlements in the law, to empower women, to reduce male abuse of power, to establish gender parity in collective decisionmaking, and to build modern non-patriarchal infrastructures of care by which the society reproduces across generations.

The Irish constitutional amendment that repealed the constitutional abortion ban in 2018 is significant, not only because of what it achieved, but because of how it came to be.  In Ireland, the process of constitutional democracy was renovated in the 21st century through citizens’ assemblies that deliberated to work through the complex issues raised by abortion.  The citizens’ assemblies agreed that the constitution should not protect unborn life without coalescing on a constitutional commitment to protect abortion rights. The amendment in 2018 thus left it to the democratically elected legislature to protect or restrict abortion.  A randomly selected citizens’ assembly – with gender balance and demographic representation—democratized the process of constitutional change that ended society’s overentitlement to women’s reproductive sacrifices. Towards the end of this year, it is expected that a new referendum will revisit the Irish Constitution’s recognition of the “common good” achieved by women’s work in the home, particularly as mothers.  The 2021 Citizens’ Assembly on Gender Equality raised the important question of whether and how women’s disproportionate contributions to the public good of reproduction can be valued in constitutional law without reinforcing a patriarchy as a reproductive infrastructure.

Beyond abortion, overcoming misogyny will require tackling all the bodies of law that enable a society controlled by men to benefit from women’s unpaid caregiving.  After Misogyny approaches the caregiving crisis as a problem of unjust enrichment. A new infrastructure by which government fully internalizes the costs of raising and educating the next generation of citizens and workers is essential to constitutional democracy.  Getting past misogyny will require structural interventions to reshape the unequal distribution of power, rather than litigation asking judges to remedy discrimination.