MISOGYNY AND THE POLITICS OF WOMANHOOD

When a monograph entitled After Misogyny dropped in 2023, readers would be forgiven for expecting a very different book than the one Professor Julie Suk gave us.¹ “After” suggests a new phase of gender relations in a long history of sexism—and a book entitled After Misogyny could be introducing yet another wave in the many waves of feminism.² One could imagine at least three different books on the state of sex and the law that could be written at this moment.

First would be the progress narrative. In the last five years, women occupied the number two³ and number three⁴ spots in the federal government for the first time in history and a woman nearly occupied the highest office in the land.⁵ We have seated four women on the Supreme Court.⁶ The #MeToo movement raised women’s voices in protest against sexual assault and harassment.⁷ A recent book has catalogued the many ways in which women are outpacing men, especially in education and employment.⁸ On this view, women have caught up with men, we are living in a post-gender America, and we are already (largely) after misogyny.

Second would be the backlash narrative. Nearly as dominant a frame for understanding the trajectory of feminism as waves flowing in and out like the tides is the idea of backlash, of feminism ping-ponging between periods of widespread acceptance and reactionary retrenchment.⁹ Numerous commentators have suggested that we are in a period of feminist backlash against the moments of progress or near progress¹⁰ cited above.¹¹ We can see this first and foremost in the Dobbs decision, which overturned a half-century regime of a constitutional right to abortion;¹² in the support for a former President who bragged about assaulting women and who was held civilly liable for doing so;¹³ and in the “manosphere,” where popular commentators like Jordan Peterson and Andrew Tate spew antifeminist venom,¹⁴ to name just a few examples. While backlash isn’t new, what’s different today is how openly it is practiced, with misogynists “tak[ing] the gloves off and pursuing a scorched-earth campaign against women’s most fundamental rights.”¹⁵

Third would be the chaos narrative. In the almost decade since Time magazine proclaimed a “transgender tipping point,”¹⁶ questions of what it means to be a woman have reverberated from the headlines of major publications¹⁷ to state legislatures across the nation¹⁸ and even to the halls of Congress, where the most recent Supreme Court confirmation hearings featured a question to Justice Ketanji Brown Jackson about “what makes a woman.”¹⁹ There is now a pitched battle, confirmed by a daily drumbeat of news on the competing laws and court decisions defining sex in this new environment, between those who view sex as a matter of gender identity and those who view sex in traditional biological terms.²⁰ In other words, we are at a moment of intense contestation over the question of what sex even is.

Suk has written none of these books. Instead, Suk, one of the country’s foremost experts on the law of sex equality in the United States and abroad,²¹ has focused on how the law maintains misogynistic gender relations, even after formally unequal laws have been eradicated, and how we might go about changing this. “Misogyny, this book argues, is th[e] aftermath of patriarchy.”²² America was once under a regime of legal patriarchy, where the law of coverture granted male heads of household control over property and authority over children and denied women independent legal personhood.²³ Between the mid-nineteenth and late twentieth centuries, these rules were replaced with a regime of formal legal equality. As Suk argues, despite “a legal and social order that officially embraces gender equality rather than patriarchy,” a system of misogyny has remained, with a legal edifice premised on women “sacrific[ing] their own well-being for the benefit of husbands, children, and other family members.”²⁴

Suk begins by detailing the evolution of constitutional sex equality law in the United States, highlighting a dynamic of what Professor Reva Siegel has called “preservation through transformation”:²⁵ the more things change, the more they stay the same. Suk observes how decisions striking down sex-based rules in the name of equality might instead result in furthering misogyny. For example, the Court’s 1976 ruling in Craig v. Boren²⁶ holding that boys must be granted the same access to weak beer as girls also brings with it “the potential to nourish spaces of toxic masculinity.”²⁷ In contrast to the anti-stereotyping vision of the Court’s equal protection doctrine,²⁸ Suk’s is a feminism that wants to take account of sex difference and locates some of the law’s misogynistic tendencies in its failure to do so.²⁹

For Suk, the “the core problem of misogyny … is taking too much from women.”³⁰ She fleshes out the wrong of misogyny by way of analogy to the legal doctrines of unjust enrichment and abuse of right, explaining how misogyny is enacted by men’s over-entitlement and over-empowerment at the expense of women. On this view, women’s subordination stems from “organizing society around men’s entitlement to the value created by women, especially women’s unique and disproportionate contributions to human reproduction—both biological and social.”³¹

While borrowing from the theoretical underpinnings of private law doctrines, Suk makes clear that her purpose is broader than redistribution within the family and instead is for a “[l]aw and public policy” with a “restitutive approach to the benefits conferred on men and on society as a whole by women’s sacrifices.”³² She rereads Prohibition as a feminist movement to do just that, by using “constitutional change to reset the power of institutions and industries.”³³ And she powerfully applies these insights to the critical and never more timely issue of abortion, explaining that “[t]o get a better handle on the real misogyny of banning abortion,” we need to see it as “government underreach, not government overreach.”³⁴ As a number of other countries do, the state should take on responsibility for unwanted pregnancy to ameliorate the burdens it imposes on women.³⁵

Much of After Misogyny is about the politics of misogyny rather than its legal doctrines. Suk locates the root of misogyny in a battle of the sexes—in “men’s sense of entitlement to women’s sacrifices” and the outsize power of men in leadership positions to enforce this entitlement.³⁶ By so squarely representing misogyny as a matter of “us vs. them,” a book like this one asks its readers (and reviewers) to consider the status of gender relations and what it means to think of women (and men) as distinct political classes. This review takes up After Misogyny’s invitation to take stock of gender relations in America at a time when we might understandably be confused as to whether we are in a moment of progress, backlash, or chaos.

The first part of this review focuses on how Americans perceive (or do not perceive) the sort of misogyny that is at the center of Suk’s book. Suk largely assumes rather than proves the ongoing ubiquity of misogyny in law. Yet she does so at a time when readers might need a little more convincing. While the right never accepted the notion of women as a subordinated class,³⁷ this was once a mainstay of the left.³⁸ This view appears to be losing its grip, with multiple indications of the left’s uncertainty about the underlying fact of women’s disadvantage. This part considers the perception that we are after misogyny: that we as a society—including those on the left—no longer think of women as a political class facing subordination. If a law of misogyny persists but we no longer see it, it will be all the more difficult to combat.

To address misogyny, we have to get to its source. The second part of this review turns to the cause of misogyny. Taking for granted Suk’s definition of misogynistic laws and policies and focusing primarily on care and abortion, as Suk does, I question Suk’s causal story—that these laws are a result of men oppressing women—and instead highlight partisan divides and societal ambivalence about the proper roles of government, women, and mothers.

The third part of this review turns to Suk’s proposals for combatting misogyny. Much of Suk’s focus is on empowering women: if men are the problem, women are the solution. But if the causal story behind misogyny is more complicated than a battle of the sexes, so too is the remedy. I discuss how putting women in positions of power will not lead to empowering women and explore some alternative paths.

Suk presents a totalizing view of sex as a form of social organization with great explanatory power for relative positions in society: “Misogyny is the set of practices that keep women down in order to keep everyone and everything else up.”³⁹ Suk’s rendition of misogyny shares a flavor of radical feminism, with the world divided up between men and women.⁴⁰ In Suk’s world, women giveth and men taketh away: “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.”⁴¹ While Suk discusses intersectionality within the class of women,⁴² she does not address how men are not a monolithic class.

Suk’s book arrives at a time when whatever societal agreement there ever was about women’s disadvantage relative to men shows signs of unraveling. There has long been dissension about this on the right,⁴³ but what is noteworthy are the indications that the left, and especially its youngest members, no longer share Suk’s view of misogyny.⁴⁴ This part looks at the (still modest) evidence of this shift to show how Suk might have more work to do to establish her central claim of misogyny, even among her fellow lefties.

A recent New York Times op-ed by columnist Michelle Goldberg catalogues indicators of the decline of feminist identification.⁴⁵ Last year, the left-wing literary journal The Drift published a series of essays around the notion that “feminism is in trouble,” especially among young people.⁴⁶ One of the editors noted: “We’re quite alarmed to see that the people around us, who are our age, are by and large quite disaffected and maybe considered themselves feminists five years ago, but now don’t want to anymore.”⁴⁷

Goldberg cites research that backs up this anecdotal telling from a 2022 poll of 1,500 Americans asking questions about the state of sex in society.⁴⁸ The poll asked whether “feminism has done more harm than good.”⁴⁹ Not surprisingly, a majority of Republicans agreed that “feminism has done more harm than good.”⁵⁰ What is more striking is the substantial numbers of young Democrats (under fifty years old)—46% of young men and 23% of young women—who shared this view.⁵¹ Note that as compared with the 46% of young Democratic men who agreed, only 4% of older Democratic men did.⁵² Even among Democratic women, nearly a quarter of those under age fifty thought feminism was harmful, as compared with only 10% of those fifty and older.⁵³ While the groups most aligned with feminism’s harmful impact were young Republican men (62%) and women (52%),⁵⁴ the age effect can outstrip the gender and partisan effects: among Democrats, older men (4%) held a less negative view of feminism than younger women (23%), and among men, older Republicans (42%) are less skeptical of feminism than younger Democrats (46%).⁵⁵

Polling on men’s roles in society echo the concern about a women-focused politics on the left, especially among younger Americans. A majority of Republicans polled agree that “[m]en should be respected and valued more in our society.”⁵⁶ The number of younger Democrats who joined them was substantial, with younger Democratic women (35%) agreeing more than older Democratic women (27%) and younger Democratic men (60%) agreeing more than older Democratic men (28%).⁵⁷ Among Democrats, younger women (35%) are more concerned with the state of men than older men (28%) are.⁵⁸

Beyond these numbers, the notion that being a woman is necessarily a subordinated identity is being called into question, especially with regard to white women. Since 2020, a deluge of books with titles like The Trouble with White Women and What’s Up with White Women have appeared.⁵⁹ In a 2019 conversation between Brown University economics professor Glenn Loury and author Meghan Daum about Daum’s book on the “culture wars,” Loury noted that it would be inappropriate for a man to critique a feminist perspective. Daum replied, “Well, increasingly, I think white women are the new white men here. So I’m not sure I can even say anything.”⁶⁰ For good measure, Loury responds: “White, cisgender, heterosexual woman, not to get too personal.”⁶¹ A pop icon no less than Taylor Swift provides another example. Last year, when author and model Emily Ratajkowski called out sexism against Swift, she explained that Swift is “another example of a woman who has been faced with such blatant misogyny and sexism,” but the public doesn’t see it “because she’s powerful and successful, and also she’s white.”⁶²

Consider the “Karen” as further evidence of the breakdown of assumptions of sexism. While the Karen meme had been kicking around the internet for years (and for many decades prior as “Miss Anne”), it breathed new life in the spring of 2020. Weeks into the COVID-19 lockdown, a white woman was nicknamed the “Central Park Karen” after she called the police on a Black man who asked her to comply with the park’s leashing requirement, invoking his race during the call.⁶³ A video of the incident went viral, sparking a national discourse about the dangers of Black people being falsely accused as well as a deluge of essays about white women’s exercise of racial privilege.⁶⁴ Some writers called out the sexism involved in the Karen meme, which placed a needed focus on racism wrought by white women but did so by relying on sex stereotypes about assertive women while simultaneously letting white men off the hook.⁶⁵ Others shot down notions of sexism and instead urged that the Karen meme be viewed as “part of a long tradition to use humor to try to cope with the realities of white privilege and anti-blackness.”⁶⁶

This may be rehashing an old debate that has migrated from the pages of the Yale Law Journal to the pages of the New York Times. In a 1991 essay prefiguring the notion of the white woman as the new white man, Catharine MacKinnon argued against the stereotype of the white woman as Karen—“effete, pampered, privileged, protected, flighty, and self-indulgent”—and “not poor, not battered, not raped (not really), not molested as a child, not pregnant as a teenager, not prostituted, not coerced into pornography, not a welfare mother and not economically exploited.”⁶⁷ Her point was that sexism is powerful, and even whiteness does not guard against it. A response to MacKinnon by the Yale Collective on Women of Color took issue with MacKinnon’s essentializing—her “universal concept of womanhood”—that failed to recognize how race and other identities intersected with and, yes, modified women’s experiences.⁶⁸ But this exchange differed in one important respect from the one we see today: even MacKinnon’s critics agreed that “any social privilege that is accessed by women is degraded in relation to that of men.”⁶⁹ Thirty years later, the left no longer seems to view women as universally oppressed by virtue of their sex alone.

The decline of sex as a salient category can be felt close to home, in legal academia. Professor David Schleicher has suggested that the focus on structural bias against women has declined in law schools.⁷⁰ Consider one example: the study of student experiences by sex has been a staple of legal academia for over three decades.⁷¹ Professor Schleicher notes that “it’s a little hard to imagine that happening right at this moment.”⁷² The data largely back him up, with the last study of this kind having been initiated before 2020.⁷³ Yale Law Women conducted its first such study in 2002 and did an update ten years later in 2012.⁷⁴ No update was undertaken in 2022. Citations to MacKinnon, the most-cited feminist legal scholar and one of the most-cited legal scholars overall, are down.⁷⁵ Berkeley Law recently added a course requirement for graduation to promote learning on diversity, equity, and inclusion that can be fulfilled only by taking a class on race, not gender (or any other marginalized identity).⁷⁶

For one additional data point, compare the most recent volumes of the Harvard Law Review, volumes 135 and 136 (2022–23), and those published thirty years ago, volumes 105 and 106 (1992–93). Each of the older volumes had one major article focused on women’s subordination,⁷⁷ as well as several book reviews,⁷⁸ notes,⁷⁹ and case comments⁸⁰ so focused. These numbers do not include the many pieces related to gender inequality on topics ranging from family law⁸¹ to rape law⁸² to pornography⁸³ to domestic violence⁸⁴ to LGBTQ rights.⁸⁵ Though the recent volumes contain a few pieces on topics related to sex and gender—abortion,⁸⁶ family law,⁸⁷ and LGBTQ rights⁸⁸—there are no pieces focused exclusively or primarily on women, sex, or gender, even with the Dobbs decision arriving in their midst.⁸⁹

This review posits but does not claim to prove a decline in feminist or woman-focused orientation on the left. The methodology is admittedly loose, and the boundaries are intentionally fuzzy—for example, the time frame, scope, domain, or degree of any such shift. Exceptions and countervailing forces are readily available. Extensive media coverage of the Dobbs decision⁹⁰ and the #MeToo movement⁹¹ have brought plenty of focus on women as a political class. Richard Reeves, the author of a recent book raising concerns about boys and men, noted that he was warned not to write it because “[i]n the current political climate, highlighting the problems of boys and men is seen as a perilous undertaking.”⁹² Notwithstanding the tentative nature of the claims here, this review suggests three forces that might be at work in a decline in women-centered orientation on the left: (1) the shifting positions of women relative to men, especially in education and employment; (2) the rise of other identity-based movements on the left, namely racial justice and transgender rights;⁹³ and (3) the depoliticized nature of so-called “pop” feminism.

First, “the end of men” has been prophesied for decades,⁹⁴ first from the right⁹⁵ and then from the left.⁹⁶ While earlier attempts heralding the end of men and the rise of women have been roundly criticized⁹⁷ and substantially debunked,⁹⁸ no longer is the story a simple zero-sum game of men losing and women winning. Reeves’s book, Of Men and Boys,⁹⁹ and other recent work¹⁰⁰ detail various declines among men¹⁰¹ while retaining awareness of women’s struggles and intersectionality with race and class. A few facts that Reeves reports are rightly attention-grabbing: for every one hundred bachelor’s degrees awarded to women, seventy-four are awarded to men.¹⁰² This gender gap in college degrees is larger now than in the 1970s but favors women rather than men.¹⁰³ Most men’s wages are lower today than they were in 1979, while women’s wages have gone in the opposite direction.¹⁰⁴

We can understand these shifts as gender intersecting with changes in the economy and bedrock institutions, such as schools. An economy once dominated by manufacturing is now overflowing with service jobs, and perhaps schools have come to reward the traits favored by such an economy, which girls tend to possess more than boys.¹⁰⁵ These education and labor market gaps are particularly acute for Black boys and men.¹⁰⁶ It was always the case that women as a class, while subordinated, were not viewed in a uniformly negative way.¹⁰⁷ Rather, they were stereotyped as different than men in ways that society tended to value less.¹⁰⁸ In our current world, some stereotypically feminine traits are simply worth more.

But this is not to suggest a simple reversal of the fates of men and women. We see the continuing impact of gender expectations in ways that can both help and hinder girls and women. While girls are outpacing boys at university, they are still underrepresented among STEM graduates.¹⁰⁹ And, as Suk emphasizes, because women continue to bear the lion’s share of caregiving responsibilities, they still earn less than men¹¹⁰ and remain seriously underrepresented in the upper echelons of politics, business, and law,¹¹¹ notwithstanding their advances in education. For women without college degrees, the future may look just as bleak as it does for their male counterparts.¹¹²

We might use the gendered labor impact of caregiving to understand the data on feminist identification discussed earlier, and particularly the fact that younger women are less likely to be fans of feminism.¹¹³ The data are ambiguous as to whether this is an age effect or a cohort effect. In other words, will younger women increase their feminist identification as they age, or will this cohort retain their views? The wage gap data could indicate that it’s the former.¹¹⁴ It turns out that the wage gap does not come into play until around age thirty, when people have kids.¹¹⁵ Young women today who have not started families have not yet been exposed to the factor imposing the greatest gendered impact on their work and might sing a different tune about feminism when they are. If so, feminist orientation is less about cohort effects and more about age and family status. If a conservative is a liberal who’s been mugged,¹¹⁶ perhaps a feminist is a woman who’s had a kid.¹¹⁷

In light of the ways that men who are not at the top are struggling, readers of After Misogyny might wonder whether the class of men dominates the class of women or, rather, society and the state fail to value stereotypically feminine virtues, such as care, regardless of who manifests them, a topic to which I will return.¹¹⁸ Men of course have no monopoly on exploitation. With so many parents in the labor force, someone has to take care of the kids. This labor continues to be done primarily by women, disproportionately low-wage women of color, especially immigrants, and often women with fewer legal protections, for the benefit not only of men but also of women.¹¹⁹ Moreover, gender expectations are harmful not only to women but also to men. Men can’t have it all either.¹²⁰ Some men might want to do more care.¹²¹ Gender expectations pull women toward care and away from work while exerting the opposite pressures on men. And when men act “like women”—for example, when men seek workplace accommodations for caregiving—they too experience retaliation by their employers.¹²² In other words, the picture of gender relations today is hard to boil down to a simple story of misogyny.

Second, the left’s reduced focus on women might stem from an increased focus on other subordinated identities. In the wake of the killing of Trayvon Martin by George Zimmerman in 2012 and Michael Brown by Darren Wilson in 2014, the Black Lives Matter movement was born.¹²³ These killings sparked a wave of protests and the ignition of the Movement for Black Lives aimed at combatting racism in policing and the criminal justice system.¹²⁴ Among other changes, Black Lives Matter helped to make these forms of institutionalized racism more visible, both by “normalizing the filming of Black pain at the hand of individuals sworn to treat everyone equally” and with policy changes, such as routine use of body-worn cameras by police.¹²⁵

There is evidence that Black Lives Matter shifted public discourse and opinion on race and racism.¹²⁶ A Pew Study conducted in 2017 found that the proportion of Americans who see racism as a “big problem” in society had risen substantially since the advent of the movement,¹²⁷ with the number of Americans who agreed with this statement jumping from 28% in 2011 to 50% in 2015 to 58% in 2017.¹²⁸ The impact was even more dramatic on the left, with about three-quarters of Democrats seeing racism as a major issue.¹²⁹ In this period, far more people ranked racial justice (56%) as an important political priority, as compared to paid leave (35%), an issue traditionally associated with gender equality.¹³⁰ In fact, paid leave was ranked at the very bottom of a list of twenty-one policy items.¹³¹

Attention to transgender and nonbinary identity has also exploded.¹³² Since Time announced the arrival of a “transgender tipping point” in 2014,¹³³ the increase in visibility of transgender people and themes in media and culture, along with accompanying policy changes, have been stunning.¹³⁴ In response, the right has made combatting transgender rights the core plank of its anti-woke platform, with dozens of laws passed in recent years limiting transgender rights around bathroom use, athletic participation, medical care, and more.¹³⁵ By contrast, the left, and especially its youngest members, have embraced transgender rights,¹³⁶ with increasing numbers not only supporting transgender rights but identifying as transgender.¹³⁷

The notion that the left’s focus on racial justice and transgender rights has reduced its attention to women’s inequality relies on a zero-sum model of activism, where energy toward one cause subtracts from another. It is not clear that activism works this way. On the one hand, activism is probably a scarce resource. On the other hand, activism for various causes may operate synergistically, so that action for one cause may increase action for another. And forces behind various causes may join together to support each other. The limited resource here might be not activism but our own cognition. It might be hard for people to hold two seemingly opposing ideas in their mind: that women are both the oppressors and the oppressed.

But it’s not only that fights for racial justice or transgender rights have shifted the focus away from feminism or women. In the public imagination, these battles have sometimes made women the enemy and, in the process, divided women on the left.¹³⁸ Return to Karen. This meme places the blame for racism squarely on women, even though historically men have been the biggest transgressors of the rights of people of color.¹³⁹ So too with transgender rights. Pamela Paul of the New York Times has written: “Consider that in the real world, most violence against trans men and women is committed by men but, in the online world and in the academy, most of the ire at those who balk at this new gender ideology seems to be directed at women.”¹⁴⁰ Scapegoating is perhaps another tool of misogyny.

Third, it has been suggested that our current period of feminist retrenchment might be understood as a backlash,¹⁴¹ but one might ask: “Backlash to what?”¹⁴² Hostile reactions to feminist rumblings have swiftly extinguished them before they could even get off the ground.¹⁴³ Susan Faludi, the author who developed the backlash theory, has questioned the reading of the current moment as one of backlash, suggesting instead that feminism itself lost its way, imploding under the weight of its own choices.¹⁴⁴ We have been living in an era of performative feminism, marked by the “Girlboss” and “Notorious RBG,” where what passes for feminism is a $920 Christian Dior t-shirt emblazoned with “We Should All Be Feminists.”¹⁴⁵ According to Faludi, “[f]eminism made a Faustian bargain with celebrity culture. Now it’s paying the price.”¹⁴⁶

That this type of pop feminism might lead to feminist malaise is no surprise. In its effort to stand for everyone (or at least all women), it doesn’t stand for anything. When her original book on backlash was published in 1991, Faludi was asked how women might respond: “What unites women is the blatant, ugly evidence of oppression.”¹⁴⁷ But the modern, bland version of feminism has nothing to say about oppression and hides all the ugly evidence. There is no rage to harness. Instead, this feminism, like the neoliberalism in which it arose, emphasizes individual choice above all. We can see this in Sheryl Sandberg’s much maligned book, Lean In, which focused on the choices available to already privileged women rather than structural or policy changes that would help their less fortunate sisters. An exit poll from the 2016 election found that only one-fifth of millennial women disagreed that feminism “is about personal choice, not politics.”¹⁴⁸ As a keychain from the now defunct women’s co-working space The Wing puts it, this feminism stands for “girls doing whatever the fuck they want.”¹⁴⁹

If this review is correct about the decline of women-centered orientation on the left, Suk’s book could serve as a clarion call for those who fail to see how misogyny continues to operate. Racialized state violence can be—and now often is—captured on our phones and police bodycams. Viral video evidence has played a key role in the Black Lives Matter movement.¹⁵⁰ There is no comparable documentation of misogyny. The key sites of sex inequality—care, reproductive rights, domestic violence, and sexual abuse—are private.¹⁵¹ Misogyny thus remains safely ensconced behind the closed doors of the bedroom, the doctor’s office, the nursery. What you see is Karen’s public exercise of white privilege; what you don’t is Karen’s private experience of violence, exploitation, and lack of bodily autonomy.¹⁵² The point here is not to play Oppression Olympics but to recognize, with the help of Suk and others, that women can be both subjects and objects of oppression.

In formulating her theory of misogyny, Suk suggests that she is borrowing from the writings of philosopher Kate Manne. According to Suk, Manne treats “[m]isogyny [a]s the vigilante punishment of women who challenge male power and endeavor to reset the presumed entitlements of a patriarchal society.”¹⁵³ Suk suggests that Manne is focused on “overentitled men trying to control women directly,” whereas she will attend to “the collective overentitlement of society designed and controlled by overempowered men to the benefits and enrichments that flow from women’s losses and sacrifices.”¹⁵⁴

Yet it appears that Manne is the author who places more emphasis on misogyny as a general force, describing it as “a property of social environments in which women are liable to encounter hostility due to the enforcement and policing of social norms,”¹⁵⁵ whereas Suk more often understands misogyny as something done by men to women.¹⁵⁶ For example, she explains that the “collective overentitlement by society to women’s forebearance flows from men’s overempowerment,” and that this is functionally put into place with “laws that effectively concentrate decision-making power in men, locking in their power to control collective institutions.”¹⁵⁷ Rather than a force field of gender relations that we are all stuck in and unconsciously enforce, Suk’s account places the blame on men: “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.”¹⁵⁸

Suk assumes that the key divides on the laws and policies that enforce misogyny—with the lack of support for care and limits on reproductive rights as two prime examples—are between men and women and thus that women are basically united on these issues. But the legal scaffolding upholding the societal arrangements of misogyny she critiques are not a result of sex-based splits in the polity, nor are women (or men)¹⁵⁹ by any means a politically united group.

Women have always been on both sides of the key issues affecting women’s lives. In a foundational study of the politics of abortion from which this review borrows its title, Professor Kristin Luker argued that the politics of abortion are the politics of motherhood.¹⁶⁰ In other words, fights over abortion were one of the original “mommy wars,” with those favoring abortion rights in support of expanding women’s roles in public life and those favoring abortion restrictions in support of limiting women’s role to the home. Women straddled both sides of these debates.¹⁶¹ The extent to which sex ever drove policy preferences on issues like abortion and care is contested.¹⁶²

If it was unsettled whether sex ever played a substantial role in American attitudes on matters of care and abortion, it is now clear that partisanship trumps all.¹⁶³ Consider views on abortion. Recent polling shows that 61% of Americans believe that abortion should be legal in most or all cases.¹⁶⁴ Views on this issue are far more sharply divided by party (with 80% of Democrats and 38% of Republicans expressing this view) than by gender (63% women and 58% men).¹⁶⁵ So too with paid leave. Seventy percent of all voters are in favor of some form of paid leave.¹⁶⁶ But again, views track party (82% of Democrats in support as compared with 58% of Republicans) far more than sex (72% women and 67% men).¹⁶⁷ It’s not that there is no difference by gender; women in both parties tend to be more supportive of progressive policies on issues like care. But partisan difference dwarfs the gender divide.¹⁶⁸

One of the most obvious ways to observe partisanship as the driving force behind misogynistic laws is in the divide between red and blue states on these issues. States with more progressive laws on abortion and care are states that lean left; states with less progressive laws on abortion and care are states that lean right.¹⁶⁹ One upshot of this is that misogynistic laws vary quite considerably across the country, with some left-leaning states providing paid family leave and guaranteeing the right to abortion with no cutoff, and many right-leaning states providing no paid leave and banning abortion.¹⁷⁰

So far, I have focused on partisan divides. But there are rifts among women on the left, too. Suk studiously avoids these. In her discussion of #MeToo, she focuses on Harvey Weinstein, an obvious villain,¹⁷¹ rather than edge cases, like Aziz Ansari,¹⁷² or any of the due process or other concerns raised by some feminists.¹⁷³ Transgender rights too have divided feminists.¹⁷⁴ It’s not that major cleavages within feminism are new.¹⁷⁵ Yet Suk’s avoidance of the fissures among feminists and within feminism maintains an illusion of feminist unity. In reality, there is an unavoidable trade-off when it comes to the politics of womanhood: make it about all women and it stands for everyone but not much; make it about the issue and it stands for something but not everyone.¹⁷⁶

If it’s not (just) men who are at the root of the misogynistic laws and policies that Suk identifies, then what is? I would proffer that it has something to do with intersecting ideologies of the proper role of government and the proper role of women.¹⁷⁷ We can see these ideologies playing out in the polling and politics of the law and policies of care. While Americans show wide levels of support for paid leave,¹⁷⁸ there is also wide disagreement about how to pay for it.¹⁷⁹ Republicans are wary of a new government program and prefer employers to foot the bill.¹⁸⁰

Opposition to government-funded care programs (either paid leave or childcare) reflects in part the fundamentally different role of the state in the United States as compared with the European countries that Suk highlights, such as France and Germany. The lack of state support for care that Suk identifies is part of a broader phenomenon in the United States, where we lack a range of social programs that require redistribution.¹⁸¹ Suk speaks of the need for legal and policy “translation” in migrating laws and policies from Europe to the United States.¹⁸² But it’s hard to translate these types of policies when our language of social welfare is so distinct from these social democracies; you wind up with gibberish. In a country of “pull yourself up by the bootstraps,” those who are unable to help themselves don’t get much help.¹⁸³

It may be that there is, not blanket opposition to government spending (think the military) or even spending that entails redistribution (think Social Security), but an aversion that can be primed with the right message from the right messenger.¹⁸⁴ We can see this time and again when it comes to the politics of care. A half century ago, universal childcare had strong bipartisan support when it was proposed in the Comprehensive Childhood Development Act.¹⁸⁵ But Richard Nixon vetoed it for its “family-weakening implications” and concern about “communal approaches to child-rearing over against the family-centered approach.”¹⁸⁶ Fifty years later, the same talking points are still in play. In 2021, Senate Minority Leader Mitch McConnell stoked fears of an intrusive (and incompetent) nanny state, calling the proposed childcare plan in Build Back Better a “toddler takeover.” “Buckle up, parents. What could go wrong?”¹⁸⁷

So if we’re willing to spend big on some things, why not care? Democrats passed several large spending packages with a redistributive component¹⁸⁸ but could not manage to include care, even after the country experimented with its first ever national paid leave program during the COVID-19 pandemic.¹⁸⁹ In Suk’s discussion of Prohibition, she notes the political benefits of universal programs.¹⁹⁰ But policies like paid leave and early childcare that benefit young families are used only by a subset of the population and thus are not political priorities for most Americans.¹⁹¹ Moreover, it’s not clear that well-off families with young children or expecting them would have sufficient incentives to support these policies.¹⁹²

And then we return to misogyny. Our nation’s policies on childcare are, like abortion, about the politics of motherhood.¹⁹³ Americans have long been ambivalent about mothers’ roles, including whether mothers should work in the market.¹⁹⁴ Despite majority support for gender-neutral paid leave for newborns, there is more support for maternity leave than paternity leave.¹⁹⁵ The majority of Americans believe that a household with two working parents is not the preferred family structure.¹⁹⁶ Less than 20% of Americans think it is ideal if both parents work full time, and nearly half—including one-third of Democrats—think it best if one parent is a full-time caregiver.¹⁹⁷ Of that latter group, half think the stay-at-home parent could be a mom or a dad.¹⁹⁸ But given ongoing inequality in the distribution of reproductive labor, a wish for a stay-at-home parent is most often fulfilled by a stay-at-home mom.¹⁹⁹

Turning to reproductive rights, they might not seem to fit neatly with this story. The lack of support for reproductive rights easily tracks ambivalence about the role of mothers.²⁰⁰ The intersection with an aversion to big government is harder to see. In the United States at least, reproductive rights have been framed as a freedom from government intrusion into a woman’s right to control her body.²⁰¹ In a country where for some segment of the population big government is the death knell of a policy position, framing abortion this way might have been politically savvy.

But as Suk’s description of the German approach to abortion makes clear, this libertarian approach is not inevitable. In Germany, the constitutional status of abortion implicates several elements of German Basic Law: equality between men and women, women’s entitlement to care of the community, and the state’s duty to protect life.²⁰² To fulfill its duty to unborn life, the state has an obligation to “confront the dangers attached to the existing and foreseeable living conditions of the woman and the family which could destroy the woman’s willingness to carry the child to term,” which would include “attend[ing] to the problems and difficulties, which the mother could encounter during pregnancy,” and “viewing motherhood and childcare as work.”²⁰³

A more robust conception of reproductive rights—and a more robust conception of freedom in general—often requires support, especially for the most vulnerable.²⁰⁴ The right to an abortion “on demand” might be thought of not as the apex of reproductive freedom but merely its beginning. A substantial reason for abortion is lack of resources.²⁰⁵ Real reproductive choice means not only having the right to terminate a pregnancy free from government interference, which is of course essential, but also the right to continue the pregnancy with the resources needed to do so. As Suk explains, “the full range of reproductive activities” runs from “begetting and bearing a child to birthing and raising one.”²⁰⁶ Post-Roe America marries twin goals of the right: moms at home without the government footing the bill. The states that haved moved to restrict abortion the most are the very same ones that support women and children the least, with predictable consequences for low-income women and their families.²⁰⁷

As this part has suggested, many factors go into explaining the misogynistic laws and policies in the United States that fail to support reproductive rights and care. Gender is a big part of this story. But it’s not that men support misogynistic laws and women oppose them. Views about the proper role of mothers undergirding the politics of both abortion and care track partisan identification far more closely than sex.

This all might be changing. There has long been a gender gap in partisan identification, with women tending to vote more Democrat and men tending to vote more Republican.²⁰⁸ This gender gap is widening among young people, with the number of both young female liberals and young male conservatives growing.²⁰⁹ If these trends continue, we might see a world that looks more like the one that Suk envisions. But we’re not there yet.

Suk has a number of ideas for changing misogynistic laws. One of her central proposals is to empower women, placing them in more leadership roles in all branches of government and in important roles in the private sector. However, just as men are not at the root of the political problem behind misogynistic laws, women are unlikely to be the solution. Because women are not a cohesive political class that uniformly supports the types of changes Suk envisions, empowering women is more symbolic than material. And because women are not united in their material interests, empowering some relatively privileged women is unlikely to meaningfully change misogynistic laws in a way that helps all women. Finally, because women do not represent a coherent political group, there has to be some other political constituency that would create the change she wants, and this review suggests where we might find it.

Suk argues that women are a solution to the laws of misogyny. Get more women in power, and this will get more women empowered. I am skeptical of both the means and the ends of her proposals. First, the means. Suk suggests that we embrace gender-conscious policies to promote women’s representation, like the gender quotas in political positions and corporate boards that are found across the globe.²¹⁰ I fear that the idea of gender-based quotas common in other countries does not translate so well here. In a racially pluralistic society like the United States with a history of de jure and de facto racial oppression, it is hard to imagine getting political support for gender quotas without also implementing racial quotas. This is what we’ve seen in California, which passed gender and race diversity requirements for the boards of public companies based there.²¹¹ Because sex classifications are subject to a lower level of scrutiny, the gender requirement has so far withstood a federal constitutional challenge, but the race requirement has not.²¹² Given the politics of race and gender at this moment,²¹³ it is hard to imagine a constituency that would support a gender quota without a race quota.

Still further, a law that makes it easier to pursue sex-based affirmative action, as Suk suggests,²¹⁴ without doing the same for race-based affirmative action, could lead to unintended, and undesirable, consequences.²¹⁵ While Suk does not address education, it is worth dwelling on that context for a moment. Because of the current gender gap in higher education, boys are now frequently benefitting from affirmative action by colleges seeking to maintain a gender balance.²¹⁶ It is perhaps no coincidence that most of the plaintiffs in the Court’s biggest university admissions cases in the last two decades were white women.²¹⁷ With direct reliance on race in admissions now verboten,²¹⁸ and with Black boys lagging white boys in school,²¹⁹ we will be left with affirmative action for (mostly white) boys and men.

It is also unlikely that gender quotas would bring about the results Suk desires. As Professor Kyla Schuller argues, proposals to ease feminist woes by putting more women in power are based in “delusions that Girl Power will solve inequality, that if the investment bank Lehman Brothers were instead Lehman Sisters we would have a better kind of capitalism and that putting a woman in the White House will create a more moral empire.”²²⁰ There may be other reasons to increase women’s representation in the areas of public life where they are so seriously underrepresented, such as democratic legitimacy, role modeling, or productivity, but the connection to combatting misogyny is tenuous at best.

Suk relies on examples of gender quotas in politics from Europe, for example, France, where a 2008 constitutional amendment to promote women’s representation in elective offices and positions of responsibility was followed by laws requiring gender quotas on corporate boards, political parties, and other decision-making bodies, a 2014 comprehensive gender equality statute, and 2018 law requiring an equal pay index.²²¹ Suk writes, “With women now constituting more than one-third of the legislature, the French Parliament adopted new legislation in 2018 creating an ‘equal pay index.’”²²² But it’s not clear that it was getting more women in power that brought about these legal changes. Whatever social and political forces existed to support increasing women’s representation might also be behind support for other measures to help women.

In the United States, studies show that women do not govern differently than men.²²³ So too generally for judges and judging.²²⁴ For just a few illustrative examples, consider that the most female Supreme Court was the one that issued Dobbs and Kyrsten Sinema was one of two Democratic holdouts in the Senate on Build Back Better’s care provisions and on eliminating the filibuster to pass more Democratic legislation,²²⁵not to mention all the Republican women in Congress who shared these positions.²²⁶ Women are not the key to undoing misogyny.

Consider corporate boards. To the extent that the use of quotas is a remedy for discrimination against women in board selection, a reason that Suk cites,²²⁷ a quota can be justified as an anti-misogyny measure. Yet Suk also argues that a gender quota is a remedy for “excessive concentration of power in men,” citing research showing how companies perform better when their boards include women.²²⁸ However, other research calls into question the connection between women board members and corporate performance,²²⁹ and to the extent any correlation has been found, there is no evidence of a causal effect.²³⁰ But even conceding a causal connection, enhancing corporate performance is about productivity, not combatting misogyny.

Returning to Lehman Sisters, research shows that women investors tend to outperform men; this has been explained as resulting from women’s average lower risk tolerance.²³¹ Suk writes about the 2008 financial collapse in Iceland, which she says “was largely understood to be caused by overempowered men who had enriched themselves by taking excessive risks, and whose costs were eventually borne by the rest of the nation.”²³² But is this an example of misogyny or of class conflict and lax financial regulation?²³³ Promoting more women into leadership as a response might be more about combatting bad governance than combatting misogyny.²³⁴

There is a mismatch, then, between Suk’s diagnosis and this part of Suk’s prescriptions. Whereas the diagnosis is material, the prescription is symbolic. Whereas the diagnosis is structural, the prescription is individual. Here, Suk’s critique, which could be a critique of a social order that fails to provide state support in a way that largely falls on the backs of women, winds up catering to a neoliberal feminist vision focused on elites.²³⁵ This is especially so if what Suk identifies as the core legal regime of misogyny has a lot to do with class, with wealthy women able to afford both childcare and access to reproductive care, while poor and middle-class women bear the brunt of these misogynistic laws.²³⁶ On this view, a solution premised on elite women and elite institutions is a particularly ill fit.²³⁷ Focusing on sex alone lets capitalism off too easy.

Suk concludes her book by arguing for procedural overhauls in our democracy, such as moving to unicameralism, correcting Senate malapportionment, and eliminating the filibuster.²³⁸ This is premised on the view that the problem of misogynistic laws is a problem of misalignment.²³⁹ The people want to get rid of misogyny, but our undemocratic institutions don’t effectively translate these popular preferences into matching policies. This may be true on some laws of misogyny, such as those governing abortion.²⁴⁰ But this is not true of all of these issues. I fear that at least on some policies, misogyny, or at least ambivalence about laws that support women and the things associated with them, like care, may run deeper.²⁴¹ Changing misogynistic laws might require not only changing government structures but changing hearts and minds.

Changing hearts and minds might sound like a tall order, but it’s probably more feasible than changing the Constitution, and parties could provide a path forward. In an era of partisan divides, parties play the central role in translating the meaning of policies for citizens.²⁴² In other words, if your party supports a policy, you likely will too. Is there any hope of getting Republicans to shift on some of these misogynistic laws and policies? The possibilities seem dim, and out of the question on abortion, but let me suggest one area where we have already seen some bipartisan support and we might be able to get more. The left and the right have occasionally come together on care.²⁴³

While some of the right’s views of women (best at home) and views of the state (best kept small) are in obvious tension with robust state support for care, aspects of the right’s ideology are compatible with such policies. Foremost is the idea of limiting abortion. State support for parenting reduces one of the main reasons for abortion: a lack of resources to support a child.²⁴⁴ In Germany, for example, the state’s duty to protect unborn life has been interpreted to include an obligation by the state to ensure that pregnancies are not terminated due to material hardship.²⁴⁵ As Suk writes of the German approach, “there are many ways that a state can be pro-life, including by investing in a “‘child-friendly society.’”²⁴⁶

We can see hints of a shift in embracing this type of thinking on the right. Parts of the pro-family wing of the Republican party have gotten behind the state’s role in supporting care to promote family health and reduce abortion,²⁴⁷ just as parts of the business wing of the Republican party have gotten behind the state’s role in supporting care to make work and family more compatible.²⁴⁸ A more economically populist Republican party may be more open to these types of policies.²⁴⁹ Post-Dobbs, Republicans are facing pressure to move in this direction.²⁵⁰ As one Republican advisor has argued, “[a]s a result of that ruling, millions more babies are going to be born, especially in red states, and, morally and economically, the GOP must demonstrate its commitment to caring for those babies and their parents.”²⁵¹

Consider the Pregnant Workers Fairness Act, passed in late 2022 with remarkable bipartisan support, ten years after it was introduced in Congress but just months after Dobbs came down.²⁵² The law, which requires employers to provide reasonable accommodations to pregnant workers, was supported by some unlikely allies: the U.S. Chamber of Commerce, the ACLU, and the U.S. Conference of Catholic Bishops, as well as significant numbers of Republicans in both houses of Congress.²⁵³ Senator Bill Cassidy (R-La.), no feminist stalwart, described it as “a bipartisan bill”²⁵⁴ that is “pro-family, pro-mother, pro-baby, pro-employer, and pro-economy.”²⁵⁵ Another example of post-Dobbs bipartisanship on care is the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).²⁵⁶ The law, passed in December 2022, expands rights around expressing breast milk at work. It passed the House with 276 votes and the Senate nearly unanimously.²⁵⁷ To be sure, neither the Pregnant Workers’ Fairness Act nor the PUMP Act required new government programs; they simply placed rather modest obligations on employers. Still, bipartisan support for these laws might be read as evidence of the potential for the left and the right to come together on care.

While the possibilities for more coming together on care seem (somewhat) plausible, on abortion, this seems like a pipe dream. Let us consider one possible framing—suggested by Suk’s telling of the German approach to abortion—that might move us forward. Recall that the German doctrine of abortion is guided by balancing three interests: the state’s obligation to unborn life, the state’s obligation to the care of mothers, and the state’s obligation to sex equality. Because of the burdens of pregnancy and parenting, the state may limit abortion only if it sufficiently supports pregnancy and parenting.²⁵⁸ “If the state proclaims an interest in transforming unborn lives into born children, the state has duties to the person who makes that process possible and carries it out. … In some situations, permitting abortion may be the only way for the state to fulfill its duty.”²⁵⁹

In Suk’s translation of the German approach to abortion to the United States, she argues for applying the Thirteenth Amendment and especially the Takings Clause to abortion regulations.²⁶⁰ Suk hopes that such approaches would change people’s understanding of reproductive rights so that they would better appreciate how limits on such rights are extractive of women’s labor. Yet a takings approach would allow the state to restrict abortion so long as it compensates for it, thus missing one of the key ingredients of reproductive choice. And the takings theory as Suk tells it is premised on compensation for renting the womb during the pregnancy. This property-based framework not only misses the crucial need for support after the child is born but, as Professor Deborah Dinner has noted, risks reinforcing a notion of pregnancy as an individual private affair—precisely what Suk argues against.²⁶¹

I would turn to a different and quite unexpected place to see at least inklings of a German-type approach to abortion right here in America. One of the most commented-upon aspects of the Dobbs oral argument was Justice Amy Coney Barrett’s question about “safe haven” laws that permit parents to leave newborns at hospitals or fire stations to be placed for adoption.²⁶² Commentators on the left rightly pilloried Justice Barrett for suggesting that a pregnancy is costless so long as there is a way to part with the resulting child.²⁶³ But there might have been something important lurking in Justice Barrett’s question: she ties abortion rights to the legal infrastructure surrounding pregnancy and parenting. While her view of adequate state supports is woefully incomplete, conditioning the state’s ability to regulate abortion on the state’s provision of related support echoes the German approach.

Could this be a place where the right and the left can see eye to eye on abortion? Even this suggestion is mighty optimistic, to say the least. Maybe there is little to no political constituency for an approach where everyone loses. For the left, there is no absolute right to abortion, but rather mothers’ interests gain more weight when the state fails to provide adequate supports. For the right, there is no absolute government power to restrict abortion, but rather the state can place more restrictions on abortion the more support it provides.²⁶⁴ Such an approach may also require a substantial overhaul in how we think about rights, shifting away from rights as trumps and toward interests that must be weighed and balanced.²⁶⁵ We are probably a long way away from a politics of abortion that aims to reduce it rather than to ban abortion or to permit it in more absolute terms.²⁶⁶ Still, perhaps both sides can agree that no one wins when a pregnancy is terminated solely for a lack of resources that the state could provide.

Even if we achieve the seemingly impossible and get federal laws like paid family leave passed, a final question is whether even that is enough to combat the type of deeply rooted gender attitudes at the heart of the inequality Suk highlights. Law can do a lot, but it may still fall short. In Sweden—often depicted as the land of feminist fairy tale—laws like those that reserve two months of baby leave for dads²⁶⁷ and insist on gender-neutral preschools²⁶⁸ have made huge inroads on traditional gender roles, for example, dramatically increasing the amount of time dads take off from work after a baby is born.²⁶⁹ Yet even there, moms continue to take the vast majority of leave (almost four times as much as dads), and the main reason, after finances, is the mother’s preference.²⁷⁰ It may be that law is necessary but not sufficient to get us beyond misogyny.

After Misogyny provides an opportunity for much-needed reflection on the state of feminism and women in a time of uncertainty over feminist progress, backlash, and chaos. By sidestepping these preoccupations of the day, Suk returns us to one of the perennial questions of feminism: whether women make up a coherent class, in perception and in reality. These core questions of feminism need to be asked and answered again and again, as our world—and our understandings of it—continue to change. Taking stock of the idea of women as a political class, as this review has endeavored to do, is a substantial undertaking, and one that this review just begins. It may raise more questions—about sex, gender, race, class, identity, and politics—than it answers. Suk’s important book invites readers to take up these questions and more, all while reminding us of the all too unfortunate reality that the law of misogyny is still with us.