The Equal Rights Amendment gets a new life in the fight for abortion access

For decades, feminists worked to have the Equal Rights Amendment (ERA) added the U.S. Constitution. But now, 50 years after it was first drafted, and despite the fact that the required 38 out of 50 states have ratified it—Constitutional amendments require an approval of three-quarters of the states, a lot of those same advocates have given up on adding an Equal Rights Amendment to the U.S. Constitution.

They are instead focusing efforts on passing state Equal Rights Amendments that they say could be used to protect reproductive rights, including the right to have an abortion, the use of contraception and marriage equality, as well as protect against workplace discrimination. Currently 21 states have ERAs, which have been used in some states to block trigger abortion bans from going into effect this summer.

Advocates are now reluctant to have the Supreme Court decide the fate of the ERA given the court’s recent Dobbs v. Jackson Women’s Health Organization ruling that overturned Roe v. Wade, says Ting Ting Cheng, director of the ERA project at Columbia Law School Center for Gender and Sexuality Law.

The focus has shifted to the state courts, in part, because the Supreme Court ruling on Dobbs indicated it’s up to states to make these decisions, Cheng says. Now several states are working to amend their state constitutions to include an ERA while in other states, plaintiffs have cited the state’s ERA in lawsuits opposing abortion bans and restrictions, Cheng says.

However, some ERA advocates are more cautious about using state ERAs to protect reproductive rights. Rather than focusing on reproductive rights when talking about the ERA, advocates should be explicit about the advantages an ERA would offer all women; otherwise “it becomes a fight over abortion and the ERA becomes a sideshow,”  says Joan C. Williams, professor of law and director of the Center for Worklife Law at the University of California Hastings College of Law in San Francisco. State ERAs have the potential to trigger an even wider divide between college and non-college-educated women, she says.

Williams believes there is a diploma divide between Americans with college degrees and those without. “Non-college-educated voters of every race support abortion rights at lower rates than same-race college-educated voters do,” Williams says. College-educated women tend to focus on gender equality, getting good jobs, and moving up the corporate ladder, while non-college-educated women tend to work in lower-wage jobs with less of a chance for advancement, and as a result, rest their identity with their family roles, she says.

Creating more inclusive constitutions

New York and Nevada are working to add ERAs to their constitutions in upcoming elections. Voters in Nevada will be asked during the midterm elections this November whether they would like to add new language to the state constitution at the end of Article 1 that states: “Equality of rights under the law shall not be denied or abridged by this State or any of its political subdivisions on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.”

The Nevada legislature started working on its proposed ERA amendment in 2019 and it passed the proposal for a second time in March 2021—more than a year before Roe v. Wade was overturned. To place an amendment on the ballot, Nevada requires a majority vote in two successive legislative sessions, Cheng says.

Although the language of the proposed Nevada amendment is inclusive, it is not nearly as inclusive as the proposed New York state amendment, Cheng says. “New York is proposing the most inclusively worded ERA of any state constitution in this country,” she says. If adopted, the amendment would protect reproductive rights and marriage equality as well as protect against workplace discrimination.

The New York State legislature took up its proposed amendment shortly after the Supreme Court’s Dobbs ruling. It states: “No person shall be denied the equal protection of the laws of this state or any subdivision thereof; provides no person shall, because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity or expression, pregnancy, pregnancy outcomes, reproductive healthcare and autonomy, be subjected to any discrimination in their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.”

While Roe v. Wade focused on the right to privacy, state ERAs can focus on the right to equality, Cheng says. “The right to privacy feels paternalistic, as if you’re protecting a weaker person,” she says. “The equality argument is more robust and can open up a larger conversation to ensure equal citizenship to everyone. It’s about your right as a full citizen to participate in the democracy, economy and education in this country.”

Similar to Nevada, New York state requires a majority vote in two successive legislative sessions to place an amendment on a ballot. If the amendment is passed during the next legislative session, which begins in January 2023, it will be on the ballot for the 2024 election.

Using existing Equal Rights Amendments to block trigger bans

Existing state ERAs are being used by plaintiffs to block abortion trigger laws from going into effect in some states.

Although Utah’s ERA dates back to 1896, Planned Parenthood Association of Utah successfully used the state constitution’s equality provision when it filed a lawsuit in Utah state court in June requesting a temporary restraining order against the state’s ban on abortion. In July, a judge blocked the state’s trigger law from going into effect until that lawsuit is resolved.

“The court in that state is using the ERA to take a real stand on restrictions on fundamental bodily autonomy,” Cheng says.

Meanwhile, a judge in Minnesota used the equal protection clause of its state constitution to strike down several state laws restricting access to abortions, Cheng says. The judge issued a permanent injunction in July blocking a 24-hour waiting period and a requirement that only doctors perform the procedure.

“State ERAs are an underused provision and they mandate more equality and create more equitable actions than most people realize,” Cheng says.

However, the push to pass state ERAs to provide protections for reproductive rights doesn’t help women in the 18 states that don’t currently have ERAs or any legislative plans to introduce a state ERA. “It takes political will, capital, and the resources to make it happen,” Cheng says. At the state level, she says, it depends on who has the power in the state legislature.