Passing the Equal Rights Amendment Can Save Roe, Says Activist Kate Kelly
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Exactly 50 years ago today—March 22, 1972—women in Congress achieved something many thought was impossible. They passed the Equal Rights Amendment (ERA) in both houses by a nine-to-one margin, far more than the two-thirds vote the Constitution requires. It was a landslide victory for equality.
When the ERA was sent to the states for ratification in 1972, it was on both the Republican and Democratic national platforms. It zipped through 30 state legislatures with ease in the first two years. But near the end of the decade, anti-equality activists like Phyllis Schlafly used scare tactics to slow progress in the remaining states. The ERA fell three states short of ratification when the time limit Congress inserted in its proposing clause lapsed in 1982, and what had been a tidal wave of momentum ebbed away.
Fifty years after its triumphant bipartisan passage in Congress, the ERA still has support from Republican and Democratic legislators across the country and is wildly popular with the public. A recent poll found that three-quarters of Americans back the ERA, including 90 percent of Democrats and 60 percent of Republicans. In 2017, rebuilding on the momentum of the Women’s Marches across the country, the modern push for the ERA was resurrected. That year, it was ratified in Nevada—then Illinois followed suit in 2018, and Virginia ratified it in 2020. Now, many argue, all it lacks is the stamp of approval of the Archivist of the U.S. To equality advocates, the path to victory is clear, though not without obstacles.
In each of the three branches of government—executive, judicial and legislative—there is a clear path to get the ERA over the finish line. President Biden could simply instruct the national Archivist to certify and publish it. In the judicial branch a case on the ERA is currently pending in the United States Court of Appeals D.C. Circuit and the court could decide with the plaintiff states and finalize it. Or, the Senate could vote on the bipartisan ERA bill the House already passed last year, and eliminate the original time limit the 92nd Congress attached to it. Any of these three options could be the final step, so we are very much on the precipice.
Most of the arguments against the ERA employed by Schlafly-ites in an attempt to defeat the amendment are now moot. But there are two issues the current STOP ERA movement still clings to: abortion and trans rights. Though some ERA advocates have shied away from making the connection between these issues in the past, they should be touted as the main reasons we still need the ERA today.
In 1965 in the case Griswold v. Connecticut, which granted married people the right to legally access birth control, the parties filing amicus briefs argued that the right to reproductive healthcare existed under equality in the Constitution. Instead, since the ERA had not yet been passed, the Supreme Court ignored those equality arguments and ruled that various guarantees within the Bill of Rights (First, Third, Fourth, and Ninth Amendments) combined together in a constitutional hodgepodge to create a shiny new right—privacy.
The Court also adopted this privacy argument in its decision in Roe v. Wade on January 22, 1973, which legalized abortion nationwide. However, many have argued that the right to abortion should be a matter of equality, not privacy. In 1985, Justice Ruth Bader Ginsburg, then an appellate level judge, openly expressed her disappointment in the Roe v. Wade decision because it failed to acknowledge how limits on abortion access discriminate against all women. Or, as she wrote, it violates a woman’s “ability to stand in relation to men, society, and the state as an independent, self-sustaining equal citizen.”
We are now seeing the fruits of the decades-long strategy anti-choice extremists have doggedly employed to demolish Roe. Once thought impossible, “privacy” is now under attack, and Roe is on the brink of falling. So what is the comprehensive fix that can save Roe and perhaps even expand access to abortion?
It’s the Equal Rights Amendment.
ERA opponents know this and refer to it as the “Everything Related to Abortion” amendment. In the contemporary fight for the ERA, proponents have also begun to speak with candor about its potential to save abortion access. The House Committee on Oversight and Reform is chaired by longtime ERA champion in Congress Carolyn Maloney. Now holding the gavel, she held a hearing on the ERA in October. At the hearing, Representative Ayanna Pressley said, “[The ERA] can help protect our right to bodily autonomy and advance reproductive freedom, especially for the most vulnerable and marginalized.”
We do not have to speculate on whether a fully ratified federal ERA could protect the right to access abortion. The New Mexico Constitution protects the right to choose to a greater extent than the U.S. Constitution does, because it already has a state-level ERA. In the case New Mexico Right to Choose/NARAL v. Johnson, under the state ERA, the New Mexico Supreme Court struck down a law that prohibited medical coverage of abortion. Other states have had similar successes under their state-level ERAs, and this has positive implications for abortion litigation on the federal level with an ERA in place. In addition to shoring up abortion access in court, the federal ERA would also provide a constitutional hook for Congress to pass more progressive laws that not only codify Roe but move beyond the limited privacy framework to make abortion more accessible to all.
As is so often the case, what happens to abortion is the harbinger of things to come for other rights. In the oral arguments in Dobbs v. Jackson Women’s Health Organization, the case currently pending before the Supreme Court about Mississippi’s 15-week abortion ban, Justice Sonia Sotomayor said that if we lose Roe, all other cases similarly falling under the right to privacy are also potentially on the chopping block because “none of those things are written in the Constitution.” The death of Roe could signal a loss of all the hard-won rights found in the structure, not the text, of the Constitution: access to contraceptives (Griswold), legal LGTBQ relationships (Lawrence), and same sex marriage (Obergefell), in addition to abortion rights.
In April 2019, the House Judiciary subcommittee held a congressional hearing on the ERA, and GOP opponents of the ERA railed against two things ad nauseam—abortion and trans rights. But those testifying in support of the amendment did not flinch. Distinguished constitutional scholar and former dean of Stanford Law School Kathleen Sullivan testified, “The ERA will prohibit discrimination on the basis of sex…If there’s discrimination against LGBTQ people on the basis of sex, then it’ll be covered. I believe the textual reading of the amendment does apply to sexual orientation and gender identity.”
Just over a year later, the Supreme Court gave additional reason to believe Professor Sullivan is right. In the case Bostock v. Clayton County, the Supreme Court decided that the inclusion of “sex” in Title VII of the Civil Rights Act protects employees against discrimination because of their sexual orientation and gender identity. The simple language of the ERA, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” likewise holds ample potential to protect all marginalized genders and those discriminated against on the basis of sexual orientation. Legislative fixes like the currently pending Equality Act, while important, cannot provide constitutional equality.
Two of the most important gender issues of our day have one simple solution—and delivery has been delayed for half a century. Representative Martha Wright Griffiths, a no-nonsense Congresswoman from Michigan who got the ERA to a floor vote in 1972 famously said, “All I want to be is human and American and have all the same rights and I will shut up.” The fights for women’s equality and queer liberation have always been inextricably tied. We cannot shut up until equality is written into the text of the U.S. Constitution, cementing permanent protection for both groups into our most foundational document.
To learn more about the ERA, visit the ERA Coalition.
Kate Kelly is the host of Ordinary Equality, a podcast about the past, present, and future of the ERA, and author of Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment.
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