On Women’s Equality Day, feminist lawyers are looking beyond abortion to imagine how state and federal ERAs could transform pregnancy, maternal health, work, caregiving and family life.
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 Women’s Equality Day, the unfinished fight for constitutional equality extends far beyond abortion. State equal rights amendments—and, ultimately, a robust federal ERA—could reshape how the law treats pregnancy, motherhood, work and family life.
Ming-Qi Chu, deputy director of the Women’s Rights Project at the ACLU, says state ERAs could be used to counter discrimination against pregnant women. Chu uses the example of a Tennessee case last year where a pregnant woman was denied prenatal care because she was unmarried.
“If they’re only asking about marriage in the specific context of pregnancy, then they’re treating pregnancy differently from other medical conditions,” she says. “And the other theory [of discrimination] is that they’re asking this question because they want women to be married before getting pregnant, enforcing the stereotype that only married women should receive prenatal care or should have pregnancies that are recognized.”
University of California, Berkeley, law professor Khiara M. Bridges believes the federal ERA could be used to force states to address high rates of maternal mortality.
The U.S. has the highest rate of maternal deaths of any high-income nation, and Black women have the highest maternal death rate of any group, three to four times the rate of white women.
States that ban abortion have the highest rates of all.
Lack of access to health insurance and quality medical care drives these numbers, compounded by the fact that unlike most other countries, the U.S. does not guarantee postpartum care, the period when the majority of pregnancy-related deaths occur.
Additionally, all other high-income countries guarantee paid leave for new mothers, and many European countries provide in-home visits from nurses or midwives in the first weeks after birth to check for postpartum depression and breastfeeding issues. France even provides new parents a grant of more than 1,000 euros for initial costs of diapers, clothes and baby formula.
The U.S. provides none of these critical supports, leaving women to navigate the stress and isolation of new motherhood alone.
“I can imagine a robust ERA that says that it is a violation of our equality rights to die or to face the risk of dying from something that one of the wealthiest nations in the world should have rendered as an anomaly, as an exceptional circumstance that just doesn’t happen here anymore,” Bridges says, adding, “The ERA can give us a real basis for making more intersectional arguments about equality, and pushing courts to consider the intersection of sex discrimination and race discrimination in ways that they have been unwilling to do until now.”
Using state ERAs, feminist lawyers could challenge many state policies that drive maternal mortality and morbidity, including refusals to expand Medicaid under the Affordable Care Act and restrictions on reproductive healthcare and abortion that endanger women’s lives.
Some state ERAs, like those in New York and Washington, go further than others by applying not only to laws that explicitly discriminate based on sex but also to policies that disproportionately harm women and girls. In these states, ERAs could be used to challenge a wide range of policies, from drug testing pregnant women without informed consent to criminally prosecuting pregnant women, says Jenna Lauter, policy counsel at the New York Civil Liberties Union.
In the first two years after the Supreme Court overturned constitutional abortion rights, at least 412 women were criminally prosecuted nationwide for the outcomes of their pregnancies, mostly under non-abortion-related laws, according to the nonprofit Pregnancy Justice. Most cases involved substance use during pregnancy. Others hinged on prosecutors’ after-the-fact opinions on when and how women sought medical care, including allegations of inadequate prenatal care, noncompliance with a provider’s recommended treatment, or failing to seek help during or after birth.
“In our work at the NYCLU and with the Equal Rights Amendment, we are really trying to broaden the aperture on what sex and pregnancy discrimination means, thinking much more about how we can support pregnant people, including their bodily autonomy and decision-making, while moving away from surveillance, control and punishment during pregnancy,” Lauter says. “The assumption is that society at large and the state are somehow entitled to information about women’s bodies while they’re pregnant to control their conduct during pregnancy and then to punish them if they’re making decisions that society disagrees with.”
“The assumption is that society at large and the state are somehow entitled to information about women’s bodies while they’re pregnant to control their conduct during pregnancy and then to punish them if they’re making decisions that society disagrees with.”
Katharine Bodde, interim codirector of policy at the New York Civil Liberties Union, says state ERAs might be useful to challenge state hospitals that force pregnant women to undergo cesarean sections against their will—like in the recent case of a Florida woman, who was made to defend her decision, virtually, before a judge and without representation, while she was in active labor.
“We have to be working toward an equality framework that means pregnant people have full medical decision-making authority, just as everyone else does,” Bodde says.
Chu argues that ERAs could be a powerful tool to advance the rights of pregnant women in other spheres: “If a school is not letting someone reschedule their exam because they have to go to a prenatal appointment, not giving any form of accommodations, that could be encompassed by state ERAs.”
Under a robust federal ERA, no state could allow these discriminatory actions against women.
New Frontiers
In brainstorming how ERAs could advance women’s rights in the future, feminist lawyers note how laws and government policies often center the lives and needs of men, leaving women at a disadvantage. Chu hopes to use state ERAs to expand protections for women in the workplace, addressing a broad range of inequities, including lack of paid leave and childcare, the wage gap and employers’ failure to integrate women into male-dominated jobs.
“Domestic workers are excluded from most federal and state labor and employment laws as a direct legacy of slavery,” Chu notes. “The vast majority are women, primarily women of color, and so it is really ripe for an intersectional claim.” A case could argue the exclusion has a disparate impact on women of color and is rooted in sex stereotypes that devalue their labor.
At a recent ERA conference at NYU Law School, scholars and litigators explored how the ERA could require the government to take affirmative steps to improve women’s lives. One issue that came up was childcare.
“The argument would be, women are not on equal footing with men unless they have access to childcare, and so providing childcare is something that the government would have to do,” Chu explains.
State ERAs might also be used to challenge family regulatory systems—the network of government agencies, laws and policies that investigate and intervene in families under the guise of child protection.
Lauter notes, “This system overwhelmingly surveils and punishes women of color, especially Black women, and scrutinizes their parenting based on very deeply rooted, prejudiced narratives about Black women’s capacity for motherhood.”
ERA advocates have looked abroad for strategies on how to use constitutional equality provisions in innovative ways.
Aleta Sprague of Equal Futures, a nonprofit research and advocacy organization, says Zimbabweans have challenged child marriage using constitutional gender equality provisions because “child marriage deprives girls of their autonomy and really changes the trajectory of their lives.”
In the U.S. as of September 2025, child marriage is legal in 34 states, while 16 states have banned marriage for anyone under 18 with no exceptions. Kansas and Hawaii allow 15-year-olds to marry, and four states—Mississippi, Oklahoma, New Mexico and California—have no minimum age requirements for marriage. Child marriage is much more likely to happen to girls (86 percent) than to boys (14 percent).
According to the organization Unchained at Last, which advocates against child marriage in the U.S., this practice disempowers women and girls in particular and hinders gender equality. Those married before age 18 report high rates of physical, sexual, financial and emotional abuse as well as unwanted or unplanned pregnancies. Child marriage destroys nearly every aspect of a person’s life, including her health, education and economic opportunities. According to Unchained at Last, child marriage undermines statutory rape laws, and can amount to forced marriage.
While Unchained at Last is working to pass legislation in many states, Sprague believes that court challenges using ERAs could provide another fruitful avenue for changing child marriage laws.
The potential for state ERAs to advance the rights of women and girls is tremendous, but only if we have the will—and the resources—to push for favorable state supreme courts and to use ERAs to challenge discriminatory government policies.
While we fight for a Congress that will publish the federal ERA and a U.S. Supreme Court that will robustly interpret it, feminists are building an ERA jurisprudence that will one day achieve Abigail Adams’ dream: for women to finally, truly, be equal citizens and live freely, safely and empowered throughout the United States.
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.
