As feminists fight to finally enshrine women’s equality in the U.S. Constitution, state-level ERAs are becoming powerful tools to defend abortion access, pregnancy justice and equal rights under the law.

This essay is part of FEMINIST 250: Democracy’s Feminist Future, a special Ms. series examining the next chapter of American democracy through a feminist lens. As the nation marks its 250th anniversary, the series taps the thought leaders of today to debut game-changing ideas for the next 250 years.

On March 31, 1776, Abigail Adams wrote a letter to her husband, John, beseeching him to “remember the ladies” as he and his peers were drafting the Declaration of Independence. She warned, “All Men would be tyrants if they could” and urged him to “not put such unlimited power into the hands of the Husbands.”

He ignored her warning when she wrote:

“If particular care and attention is not paid to the Ladies we are determined to foment a Rebellion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.”

Now, 250 years later—and on the eve of Women’s Equality Day—women are still fighting for inclusion.

The 28th Amendment

In 1923, feminists began advocating for a constitutional amendment to guarantee equality for women, but it was not until 1972 that Congress finally passed the Equal Rights Amendment, which provides:

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Under Article 5 of the U.S. Constitution, amendments require approval by two-thirds of both chambers of Congress and ratification by three-fourths of states (38). Congress approved the ERA on March 22, 1972, and Virginia became the 38th state to ratify the amendment on Jan. 27, 2020.

After the first Trump administration’s Justice Department blocked its certification and publication, the U.S. House twice passed joint resolutions declaring the ERA validly ratified—and both times Republicans blocked the measure in the Senate.

With November elections on the horizon, and the potential for pro-ERA candidates to win majorities in both chambers, final recognition of the 28th Amendment is within reach. Leading constitutional scholars argue the Senate filibuster does not apply to constitutional amendments, and the president and Supreme Court have no role in constitutional amendments. While it may be years before we have a Supreme Court that will robustly interpret the amendment, Section 2 of the ERA grants Congress the power to act now: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

A new Congress could use that power to address inequalities for women in education, employment, healthcare and safety. For example, the ERA would authorize Congress to pass the Violence Against Women Act with a civil rights remedy, so survivors of gender-based violence could sue perpetrators for compensation for the harms they suffer.

Once we have a Supreme Court willing to act, the ERA could be interpreted to prohibit not only explicit sex discrimination but any government action or inaction that harms women and girls.

The ERA could challenge the Hyde Amendment’s block on Medicaid coverage of abortion and fight Food and Drug Administration restrictions on mifepristone for abortion, enacted despite its strong safety record—while much less safe drugs used by men (like Viagra) are freely available.

The ERA could require equal research funding for women’s health, eliminate the discriminatory provisions in the Social Security system that reduce women’s payments, and challenge federal tax provisions that discriminate against women by favoring single-earner households and penalizing secondary earners—who have historically been women.

The ERA could even challenge the constitutionality of state abortion bans since the amendment prohibits gender discrimination not just by the U.S. government but by any U.S. state.

In the current political environment, the amendment could have provided a check on the Trump administration’s funding cuts to domestic violence shelters, rape crisis hotlines and sex trafficking survivor assistance programs; rollbacks of protections against sexual harassment and assault on college campuses; defunding of Planned Parenthood; and undermining and underfunding of Head Start childcare programs.

The ERA could stop the SAVE Act from restricting women’s access to the ballot and block policies promoted by the Heritage Foundation to fund patriarchal families and punish single mothers.

For all these reasons and more, feminists are fighting for recognition of the 28th Amendment. But as right-wing attacks on women and girls escalate, activists are turning to long-underutilized state-level ERAs to defend and advance women’s rights today.

With November elections on the horizon, and the potential for pro-ERA candidates to win majorities in both chambers, final recognition of the 28th Amendment is within reach.

Conditions for Equality

Looking to the next 250 years, feminists hope to build an expansive understanding of sex equality that will one day inform a future U.S. Supreme Court when the federal ERA is certified and published. Robust interpretations of state ERAs could provide the foundation for a strong federal Equal Rights Amendment.

“State constitutions offer an opportunity to build conceptual frameworks for affirmative rights—an affirmative equality—that it’s our government’s responsibility to ensure that the conditions for equality are created,” says Katharine Bodde, interim codirector of policy at the New York Civil Liberties Union.

According to the Brennan Center for Justice at NYU School of Law, 23 states have equal rights amendments and another six have limited gender equality provisions. Four states—Maine, Minnesota, Vermont and Ohio—have active campaigns to pass a state-level ERA. While many state ERAs date back to the 1970s, others are more recent, including Nevada’s (2022) and New York’s (2024).

Many blue states have ERAs, but they also exist in purple states like Virginia, Pennsylvania and New Hampshire, and even in some red states, such as Texas, Florida, Utah and Iowa. With a favorable state supreme court, feminists can use ERAs to make progress on women’s rights, even in purple states like Nevada.

The Silver State Hope Fund—which offers financial assistance for travel, lodging and childcare to access abortion care—challenged Nevada’s ban on Medicaid funding for abortion as a violation of the state’s ERA, which was overwhelmingly approved by voters earlier this decade. Building on precedents from two past state supreme court decisions that interpreted ERAs to protect public funding for abortion (in Connecticut in 1986 and New Mexico in 1998), the Nevada court ruled that the state’s ban on Medicaid coverage for abortion was sex-based discrimination.

“We are excited about this victory and the court’s affirmation that Nevada’s Equal Rights Amendment prohibits discrimination on the basis of sex, including discrimination based on pregnancy and abortion,” says Rebecca Chan, a staff attorney from the ACLU Reproductive Freedom Project, who argued the case.

“The court made clear that the state cannot withhold coverage for essential, sex-linked healthcare from low-income Nevadans.”

The court’s order required the state Medicaid program to cover abortion care.

“There is enormous opportunity under state ERAs,” says Ming-Qi Chu, deputy director of the Women’s Rights Project of the ACLU. “Nevada has a brand-new ERA, which was very clearly in response to Dobbs [v. Jackson Women’s Health Organization], but there’s the success of Pennsylvania, too.… There’s reward to being bold and pushing the envelope.”

In 2019, the Women’s Law Project filed a lawsuit in Pennsylvania under the state ERA to challenge a long-standing ban on using state funds for abortion.

In January 2024, the state Supreme Court ruled abortion providers can challenge the state’s ban on Medicaid funding as sex discrimination, overturning a 1985 decision that the ERA did not apply to abortion.

The Pennsylvania Supreme Court declared that the Medicaid exclusion was “presumptively unconstitutional” and sent the case back to lower court. Two of the five justices argued the state Constitution “secures the fundamental right to reproductive autonomy, which includes a right to decide whether to have an abortion or to carry a pregnancy to term.” They added: “Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience. Any self-determination is dependent on the right to make that decision.” A third justice said the state had to prove “a compelling state interest” for the funding ban and that “no less intrusive methods are available.”

On April 20 of this year, the Pennsylvania Commonwealth Court struck down the Medicaid funding ban, ruling the state had not met this burden.

“Today the court recognizes that the right to reproductive autonomy is the right to self-determination,” declared Susan J. Frietsche, executive director of the Women’s Law Project and lead litigator on the case.

In Colorado, feminist lawyers are challenging a law that in most cases requires girls under 18 to notify a parent 48 hours before having an abortion—or navigate the courts to obtain this basic care. The lawsuit argues the requirement strikes at the heart of two constitutional protections: the state’s equal rights provisions, including the ERA adopted in 1972, and its newly adopted constitutional right to abortion, passed by ballot referendum in 2024.

“The law violates the Colorado ERA because it requires young women to involve a parent or judge in their decision to end a pregnancy while placing no comparable burdens on their partners, who are young men,” says Rupali Sharma, codirector of litigation at the Lawyering Project, which represents Dr. Rebecca Cohen, the plaintiff in the case.

Sharma argues that the requirement reinforces the stereotype that women’s primary role is to bear and raise children irrespective of their individual circumstances, needs, talents and aspirations. The double standard is stark: Young women in Colorado who choose to continue a pregnancy need no parental involvement, but those who choose to end one must navigate a punitive court process.

“Not only is the state trying to coerce you to carry your pregnancy to term,” Sharma says, “but it’s treating you fundamentally differently than your male partner, who has also participated in bringing this pregnancy along.”

Sharma also argues that the law is rooted in a paternalistic stereotype that young women cannot make rational decisions about their healthcare and their own lives. The law assumes young women “need someone overseeing [their decisions] and second-guessing them,” Sharma says.

The state filed a motion to dismiss the case; both parties are now awaiting the court’s decision.

Beyond parental involvement requirements, advocates believe ERAs could be used to challenge other kinds of abortion restrictions.

Chu of the ACLU believes that waiting periods for abortion care are a form of sex discrimination that violate equal rights amendments for three reasons.

First, she says, they are based on sex stereotypes by assuming women are “feeble-minded” and “have to be afforded this period of reflection—that is not imposed for any other condition—because they’re so emotional or just so overwhelmed that they have to be given time before making this decision about their own bodies.”

Second, waiting periods apply only to pregnancy, which is sex-based, and not to other kinds of conditions. “If you break your foot, you don’t have to go through a waiting period,” Chu points out.

And third, waiting periods for abortion care disparately impact women.

ERAs could potentially be used to challenge any harmful policy related to abortion or contraception, such as telehealth abortion bans, requirements of biased counseling, bans on private health insurance coverage, parental consent mandates for contraception, or even failure to regulate antiabortion crisis pregnancy centers. States would be forced to show a compelling government interest to justify their actions.

At a moment when abortion rights no longer have federal constitutional protection, state ERAs offer feminists another constitutional path—not only to challenge abortion restrictions, but to confront the sex stereotypes and unequal burdens underlying them.

(This article originally appears in the Summer 2026 print issue of Ms. magazine. Join the Ms. community today and you’ll get issues delivered straight to your mailbox.)

Look to these trusted groups if you or a loved one needs to know more about reliable abortion care:

• A one-stop-shop for abortion seekers: I Need An A
• Other websites to explore all your options for abortion care: Plan C Pills, Abortion Finder
• Safe websites to buy abortion medication: Aid Access, Massachusetts Medication Abortion Access Project, Hey Jane
• If you need help affording abortion care, tell your telemedicine provider or contact an abortion fund near you.
• To protect your digital privacy when planning your abortion, click here.
• For free legal help as a patient or doctor, call If/When/How’s Repro Helpline—844-868-2812—or contact Pregnancy Justice.
• For medical advice, contact the Miscarriage & Abortion Hotline: 833-246-2632.
• If you need to know the abortion law in your state, look to the Center for Reproductive Rights. or Guttmacher Institute.