For 250 years, women have been fighting for inclusion in the nation’s founding promise of equality. The Equal Rights Amendment would finally guarantee that equality under the U.S. Constitution—and could give Congress and the courts powerful new tools to address discrimination in education, employment, healthcare and safety. It could also provide a constitutional basis for challenging abortion bans and restrictions as forms of sex discrimination.
But feminists do not have to wait for federal recognition of the ERA to put equality guarantees to work. State constitutions are already providing a path forward.
In Nevada, advocates successfully challenged the state’s ban on Medicaid funding for abortion under its Equal Rights Amendment; in Pennsylvania, courts have opened the door to treating restrictions on abortion funding as sex discrimination; and in Colorado, feminist lawyers are arguing that parental-notification requirements impose unequal burdens on young women while placing no comparable restrictions on young men.
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 stereotypes and unequal burdens beneath them. Building strong interpretations of equality at the state level can protect women now while laying the groundwork for the expansive vision of sex equality a federal ERA could one day deliver nationwide.
(This essay is part of FEMINIST 250: Democracy’s Feminist Future, a special 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.)