Interview: Catharine MacKinnon on Abortion and Misogyny

We know that opposition to abortion was, for some on the right, a political strategy to manufacture an issue that would mobilize religious voters. What is the interrelationship between the use of abortion as a means to mobilize voters and a deeply embedded misogyny?

Abortion as an issue is available to mobilize some voters due to the misogyny it taps into, including by sexualizing women through attributing promiscuity and sexual irresponsibility as the reason abortion is needed. Abortion can also be supported by those who buy into the notion of “sex positivity” that in reality gives women no control over access to their intimate space, requiring abortion to eliminate its reproductive consequences for women, keeping them sexually available. 

Over the last decade, we have witnessed the growth of new misogynistic movements, e.g., so-called “men’s rights activists” and incels. Indeed, this has had far-ranging appeal, including in India. In what relation does this seemingly new misogyny relate to older forms of misogyny? Is this, in fact, something new?

This misogyny is not new at all, although the internet has enabled it to be newly widespread and effective. Incels, for example, resent women’s sexual unavailability to them – that we make our own choices of sexual partners, them not included – and make it their defining cause, as if they have a pre-existing entitlement to sexual interactions with women simply by virtue of being men. Presuming this traditional male entitlement to sexual access, they are outraged, sometimes murderously, at being denied it. This sense of entitlement, which is not new, has metastasized with the exponential growth and spread of the pornography industry, and been made to seem all the more voluntarily acceded by women by the genre of online pornography that purports to be of women volunteers. Some may be; many, we know, are not. Along the same lines, “men’s rights” activists have long pushed the “family values” that are, in essence, male dominance in the family.

I’m interested in your thoughts on placing the overturning of Roe in the context of a broader tradition of legal theory that has revolted against interpretations of the Fourteenth Amendment, the current manifestation of which goes at least as far back as Raoul Berger’s work. Do you see the overturning of Roe as part of a broader ideological agenda that seeks to overturn a whole swath of rights that have been enshrined via the interpretation of substantive due process?

Without purporting expertise on Raoul Berger’s federalism and anti-“interpretivism,” it seems obvious that the rights that have been granted under substantive due process appear newly vulnerable. Myself, I have always disagreed with the moralism involved in the substantive due process approach, finding it vulnerable and often beside the point. Those extensions of rights could have been more solidly grounded as substantive equality, with a foundation in the Fourteenth Amendment’s text as well as much of its original thrust. Of course, sex was not originally intended to be covered by the Fourteenth Amendment’s requirement of equal protection of the laws. But a substantive approach to equality arguably was. My casebook, Sex Equality, has spelled this out since its publication in 2001, in the approach I have taught since 1977. It seems to me outrageous that due process, which Is fundamentally procedural, has been granted a substantive component (the content of which is morality, meaning endlessly debatable values), while equality, which was originally intended to be substantive, and has real substance, has effectively been reduced to a procedural abstraction. 

Does thinking about about the loss of a woman’s right to choose in the context of broader right-wing strategies and theories of constitutional interpretation distract from misogyny as a discrete, but nonetheless, foundational issue?

Not if that thinking is properly grounded in an argument for the abortion right as a substantive equality right, it doesn’t. It makes the right-wing approach irrelevant. 

You have long warned that the justification for Roe in a right to privacy rendered it vulnerable from the start. Has the Court’s ruling exploited the weaknesses you recognized? If so, what are your current thoughts on alternative means for protecting abortion rights?

See above. The question is not whether “life” is involved, but why the pregnant woman/person should be the one to make this life and death decision. Sex inequality is the answer. The reason women must be able to protect our fertility is that, to date, we have not been allowed to protect our sexuality. Sexual coercion, which is endemic under gender inequality, is gender-based, resulting in the vast quantity of abortions that are needed, because sexual intercourse with men occurs under conditions that women are not permitted to control.  

Many scholars have tracked the right’s long-term strategy of cultivating generations of lawyers to combat, not just Roe, but a host of progressive reforms. To what extent was the success of the right a product of an unjustified complacency, even as we knew the conservative legal movement was gaining ground?

It was more than complacency. The white liberals have prevented any argument except theirs from being made on this subjet. They silence any substantive arguments on the ground that if we use substance, we open the door to the other side’s substance. Well guess what. These cases (and many others as well) have been decided on substance all along, previously covert. We’ve spent our time demystifying that, exposing their substance as the real driver behind their rulings. Now the right’s substance is out in the open; their position of hegemony means they can afford it to be. The question is whether anyone will ever argue the substance of our side, if by now they even know what it is, having been disabled all this time, and excluded from legal teaching except, say, in my courses. 

How much of Dobbs is a product of a resistance to bolder feminist thinking of the kind that you have encouraged? Why has that resistance been so entrenched?

Honestly, I don’t think the Dobbs opinion is a product of resistance to feminist thinking so much as that any such thinking is irrelevant to the Dobbs majority. Women do not matter to them because we do not matter to power.

Some immediate responses to the Court’s decision have ranged from focusing on winning Senate seats for Democrats to bringing cases on the basis of religious freedom. What should be the short-term strategy for winning back women’s access to abortions? What is the long-term strategy for protecting them?

Some of the current strategies using state law, including state ERAs, should make substantive sex equality arguments along with anything else that might win. Long-term, we need the federal ERA for this and many other reasons. ERA is actually now part of the Constitution, having met all the constitutional requirements, although that recognition will undoubtedly be contested in courts and needs to be established. 

Already in the 1980s, deep rifts within feminism became visible. In some scholarly circles, feminism became grounded in theories that owed more to literary analysis than political or legal analyses. How might this shift in the theoretical groundings of feminism have contributed to a loss of focus on practical political concerns?

I think the real problem has been the failure to address sexual abuse in any meaningful way due to the continued hegemony of what is euphemistically called “sex positive” politics, which actually cedes power to define and use female and feminine people sexually by anyone who has more power than we do. The current version of the rift within feminism involves trans politics, in which a biological essentialism is substituted by trans-negative feminists for the long-recognized social basis of the dominance of masculinity. Some attempt to attribute this to the literary analysis to which you refer. In fact, it seems instead that many who have long done good feminist work never took in the clear recognition with which contemporary feminism began that biology is not destiny: sex is equal but gender is unequal. Women’s problem is not our sex but gender socially defining it as inferior, and masculinity as superior. This was not a literary theory but a political one, and long preceded postmodernism’s simultaneous theft and denial of its politics. Once the social foundation of women’s subordination Is grasped, trans women – who, for instance, are routinely sexually abused as women — are women and no rift is possible.

At the level of popular culture, feminism has lost much of the stigma that its opponents tried to brand it with. Given the real consequences of Dobbs, what, if any, were the practical political gains of the popularization of feminism? Was this a feminism without any real content? If so, how can we correct this situation?

The #MeToo movement, in which women in the millions went public with their sexual abuse, had real content. It built on the laws against sexual harassment and the resistance to workplace and campus sexual violation that preceded it. The consequences are ongoing, reverberating.