As Trump’s second term threatens progress, activists and lawmakers are using state constitutions to protect and expand women’s rights.
A fierce feminist resistance is ready to defend women’s rights at the federal level—and creatively expand equality protections in the states. This is the third in a four-part series on the steps activists are taking to fight for our rights amid Trump’s attacks on democracy.
Part 1 covered the organization Democracy Forward and its new initiative Democracy 2025, which is working to counter the Trump administration’s antidemocratic acts with swift legal challenges and other strategic responses. Part 2 discussed the Democratic governors and attorney generals who are working to “Trump-proof” their state’s existing laws and fight for legal protections for their residents. Part 3—below—will tackle more specifics of state law and advocacy, while Part 4 (Thursday) will get into the issue of federal funding under Trump.
After a narrow political victory in November, a second Trump administration is now threatening to reverse decades of hard-fought gains for women and girls. The Heritage Foundation’s Project 2025 calls for ending abortion; curtailing contraception; cutting programs supporting mothers and their children; eliminating Head Start childcare; rolling back women’s workplace rights and equal pay measures; undermining LGBTQ+ rights; gutting Title IX protections against sexual assault and harassment; investigating and prosecuting universities and other entities over the use of diversity, equity and inclusion policies; and so much more.
“Gender Justice Laboratory”
In anticipation of the rollback of federal rights, advocates are zeroing in on state-level law and advocacy.
While Project 2025 calls for weakening federal antidiscrimination laws under Title VII (employment) and Title IX (education) and eliminating the offices that enforce these laws, advocates note that many states have their own antidiscrimination laws governing employment, education, public accommodations and healthcare that are often stronger than federal protections.
“If there’s no Department of Education and no Office for Civil Rights to enforce Title IX, then we are deprived of a really powerful tool, but it’s not the only tool,” says Sue Frietsche of the Women’s Law Project. “In the years that we’re facing, we are going to have to find other tools, such as private lawsuits. States have departments of education, and they have laws prohibiting sexual harassment and sex discrimination.”
Frietsche notes that local governments can take progressive action as well. “For example,” she says, “in my hometown of Pittsburgh, we have enacted a paid sick day ordinance that requires private employers to give their workers paid days off for any medical reason. States can pass parental leave laws.”
Democratic attorneys general are also pledging to advance new state policies to protect women’s rights. “We are hopeful that the election of Donald Trump and the alignment of the start of the legislative session with his inauguration will energize conversations about how state policy can best protect the rights and freedoms of our residents,” Amanda Hainsworth, senior legal adviser to the Massachusetts attorney general, told Ms.
We’re looking at legal theories and concepts that perhaps we would not have before.
Sue Frietsche
Advocates like Frietsche are also looking to existing state laws to expand women’s rights, including using state equal rights amendments and state privacy provisions to challenge restrictions on abortion.
Frietsche’s organization won a case in January 2024 challenging the state’s ban on funding for abortion under the Pennsylvania ERA. The state’s Supreme Court reversed a 1985 ruling that the ERA did not apply to abortion.
“If you have a state constitution that is stronger and more protective of reproductive autonomy than the federal constitution, then develop it,” Frietsche urges. “Bring cases under it. Do whatever you can to remove whatever barriers exist at the state level.”
In a recent example, a Wyoming court struck down two abortion bans under a state constitutional provision protecting the right to make healthcare decisions.
“A state-based approach is very promising. And while it is true that federal law could supersede state law and deprive us of the benefit of state law, I don’t think it’s a foregone conclusion that that’s going to happen,” Frietsche says. “At the same time, we have to all be extremely loud and active in stopping federal policymakers from shutting down state initiatives.”
She believes that state ERAs might also be useful for challenging waiting periods and restrictions on telemedicine abortion. “We’re looking at legal theories and concepts that perhaps we would not have before,” she says. “We’re getting more creative, like using our state ERA to go after restrictions on abortion, despite the fact that until January of this past year, we had case law saying you absolutely couldn’t do that. I hope [the election] encourages progressive activists to think more creatively and take some risks.”
Frietsche notes that some state constitutions predate the federal Constitution and have stronger protections but have been under-leveraged. “That may be partly because there was a time when the federal Constitution was more vibrant than many state constitutions,” she points out. “That is no longer the case for many issues. It is time for us to develop these … sources of rights and leave no stone unturned.”
Ting Ting Cheng, director of the Equal Rights Amendment Project at Columbia Law School, agrees: “We have been interpreting state constitutions in lockstep with the federal Constitution, but we don’t have to do that. States actually offer an opportunity to go way beyond what is protected at the federal level. At a time when we see reproductive rights restricted in a way that’s unprecedented, even … pre-Roe, … the states can be like a gender justice laboratory.”
Twenty-eight states have ERAs or other gender equality provisions that state and local officials can use to issue advisory opinions, set up enforcement commission or study the gendered impacts of regulations or budgets.
In September 2024, Cheng’s ERA Project released a model policy agenda with recommendations on how state and local executives—governors, mayors, attorneys general, agency administrators—can use state ERAs to make sex equality a reality in their jurisdictions.
“The goal is to give people a road map to implement the ERA in ways that are much more affirmative,” Cheng says. She urges activists to inform elected officials that state ERAs are a grossly underutilized tool at their disposal.
If there’s a gap between laws mandating equality and inequality on the ground, then elected officials have an obligation to address that gap, Cheng asserts. “What do equal rights look like? With reproductive rights, it has to do with access. Reproductive rights are meaningless without access,” she says, adding, “What the ERA can do to address inequality has to do with how you distribute public resources in an equal way or with an eye toward achieving true equality.”
In the election this past November, more than 60 percent of New York voters passed an ERA ballot measure ensuring that people cannot be denied rights based on “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” New York is the first state to explicitly protect reproductive rights in its ERA.
“New York passed a broad equal rights amendment that is so visionary and can be used as a tool to advance our rights going forward in the face of restrictive federal policies,” Cheng asserts. Gov. Hochul and Attorney General James have pledged to use it to oppose Trump policies.
The Center for Reproductive Rights (CRR) is also focused on defending and expanding reproductive rights in the states. “We have a whole bevy of pro bono attorneys—something like 2,000 pro bono attorneys worldwide—who are ready to help us in combating Trump’s rules,” Martin says. “We’ve got a lot of troops in place.”
CRR lawyers plan to file lawsuits under the new constitutional protections for abortion passed in 11 states since the Supreme Court’s Dobbs decision. They have already filed suit in Michigan, where voters added abortion rights to the state constitution, challenging the state’s 24-hour waiting period and a requirement that only physicians can provide abortions—though other healthcare workers are qualified to prescribe abortion medications.
Autumn Katz, CRR’s associate director of U.S. litigation, says, “One way at the state level to increase access to medication abortion is by eliminating these kinds of unnecessary barriers to care.”
This article appears in the Winter 2025 issue of Ms., which hits newsstands Feb. 12. Join the Ms. community today and you’ll get issues delivered straight to your mailbox.
Dropping Thursday morning, Part 4 will get into the issue of federal funding under Trump.
