2 - Inclusive Constitutionalism and Its Limits

Summary

Second-wave feminism was key to subverting the head-and-master regime, and constitutional sex equality provisions gave birth to an inclusive gender constitutionalism, which, by overcoming family exceptionalism, affirmed the need to produce gender-neutral legal orders and to suppress marital-status discrimination. Two variants of the inclusive paradigm were shaped: one, prevalent in the United States and with a focus on combatting gender stereotypes that limited women’s market options (assimilationist workerism), and another one (maternalist accommodationism), better suited for constitutional regimes combining sex equality with motherhood/family protection mandates and seeking not only to allow but also to accommodate women’s pregnancy and motherhood-related needs. In confronting women’s claims to reproductive autonomy, constitutional orders had to rely on constitutional interpretations and gave way to radically different constitutional architectures around abortion, with the right to abortion (based on privacy) appearing in one tradition (as exemplified in US constitutionalism) and the duty of motherhood (based on the protection owed to the fetus) being affirmed in the other (as exemplified in German constitutionalism).