As the Supreme Court is poised to overturn Roe v. Wade, the push to pass the Equal Rights Amendment is taking on new urgency as an avenue for shoring up women’s rights, especially reproductive rights.
On May 2, a draft opinion overturning constitutional abortion rights established almost 50 years ago in Roe v. Wade was leaked from the Supreme Court. In the opinion, Alito dismisses the idea that denying access to abortion violates women’s constitutional equality rights. He argues, “a State’s regulation of abortion is not a sex-based classification,” citing a controversial 1974 Supreme Court decision—Geduldig v. Aiello.
In that case, the Court ruled that a policy excluding pregnancy from a disability insurance program is not sex discrimination in violation of the equal protection clause because it does not discriminate between men and women, but between “pregnant and non-pregnant persons.” Geduldig’s interpretation of the equal protection clause has never been overruled. In fact, the Court has never interpreted the equal protection clause to provide full equality for women.
Alito’s draft opinion would be nullified if there were strong, explicit language in the U.S. Constitution protecting women’s equal rights. A final push for the ERA would establish definitively that women are fully equal citizens before the law.
The ERA—which both houses of Congress passed and 38 states ratified—was blocked by the Trump administration in 2020. The U.S. House of Representatives has twice passed a bipartisan joint resolution declaring the ERA validly ratified—in February 2020 and March 2021—but Republicans have used the filibuster to block the measure in the Senate. To overcome the filibuster, Democrats must either convince 10 Republicans to vote to end the filibuster or carve out an exception to the filibuster rule for the ERA joint resolution.
So far, the only Republican senators supporting the ERA joint resolution are Lisa Murkowski of Alaska and Susan Collins of Maine. Not one male Republican senator has indicated support and Minority Leader Mitch McConnell (R-Ky.) has pledged to block the measure. Meanwhile, Democratic Senators Manchin (W. Va.) and Sinema (Ariz.) have refused to support lifting the filibuster.
An ERA could provide a new basis for abortion rights in the United States—a theory currently being tested in the state of Pennsylvania under their ERA.
Pennsylvania-based abortion providers and reproductive rights lawyers led by the Women’s Law Project (WLP) and Planned Parenthood Federation of America have sued Pennsylvania asking the state’s Supreme Court to strike down the Pennsylvania ban on Medicaid funding for abortion as a violation of the ERA and equal protection provisions of the Pennsylvania Constitution.
Advocates argue the state’s refusal to cover abortion in its Medicaid program is sex discrimination because the policy excludes “funding for an extremely common, sex-linked medical need of women while funding all reproductive medical needs for men.”
There is some precedent for the principle that abortion restrictions violate women’s equal rights. In 1998, the New Mexico Supreme Court ruled that an abortion funding prohibition violated New Mexico’s Equal Rights Amendment. The Court declined to give the government “the power to turn the capacity to bear children, limited as it is to one gender, into a source of social disadvantage” and noted that “women’s biology and ability to bear children have been used as a basis for discrimination against them.”
In a similar 1986 case, the Connecticut Supreme Court struck down a law that only allowed Medicaid funding for abortion when a pregnancy endangers a woman’s life. The Court ruled that choosing to fund all medically necessary procedures except for abortion is sex discrimination in violation of Connecticut’s Equal Rights Amendment.
In his draft opinion, Alito argues that the people and their representatives should decide the rights of people.
In fact, polls show massive public support for the ERA. The vast majority of respondents—men and women; Republicans, Democrats and Independents—want the ERA, and most think the ERA is already a part of the Constitution. Nearly two-thirds believe that the ERA would have a positive impact for women.
Similarly, a large majority of Americans support abortion rights: Overall, 64 percent oppose overturning Roe v. Wade and 61 percent of Americans think of themselves as mostly supporting abortion rights. More than one-third (34 percent) of Republicans oppose overturning Roe.
Abortion barriers deprive women of bodily autonomy and control over the timing of childbearing, and predictably exacerbate the inequalities in educational, economic and political life caused by childbearing and childrearing. In order to codify women’s equality and abortion rights, Democrats need to win 52 Senate seats in the fall elections. From there, they can lift the filibuster to pass both the ERA resolution and the Women’s Health Protection Act, which would protect abortion rights in all 50 states.
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.
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