Importance of 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.”

 

Should We Put a Concerted Effort Behind the ERA Again? Yes! It May Be Our Only and Last Resort

The Supreme Court ruling on Dobbs isn’t only the end of constitutional abortion rights. It is the Court’s undermining of women’s constitutional equality rights. “A court that doesn’t feel like abiding by 50 years of precedent, doesn’t need to respect precedent…against sex-based discrimination and the fact that the Court doesn’t mention it is ominous,” says constitutional law professor Melissa Murray. “The Court seems to have no respect for the Constitution beyond what it was in 1868 and 1787,” said Murray. (The Supreme Court established 14th amendment  protections for women in a series of 1970s cases argued by Ruth Bader Ginsburg in such areas as marital property and unemployment benefits. (See Craig v. Boren and U. S. v. Virginia). The decisions confirmed that laws could not treat men and women differently.)

Yet in Dobbs the court cited an outdated case and ignored subsequent law using legal reasoning to eliminate equal protections for women altogether. The majority opinion argued that the 14th amendment protects only rights explicitly mentioned in the Constitution by the framers of the 14th Amendment in 1868 or rights “deeply rooted in the Nation’s history and traditions.” As abortion was not mentioned in the 14th Amendment, the 1868 framers did not intend to protect the right to abortion. The post-Civil War 14th Amendment focused on race discrimination not sex discrimination.

To justify its ruling in Dobbs, the Court presented a 30-page list of 19th century laws prohibiting abortion when women didn’t even have any rights they could secure. This completely consigns women to second-class citizenship. “There’s no doubt that if the Court is going to be originalist and stick to originalism, then there’s not protection for women under the equal protection clause,” says constitutional law scholar and Berkeley Law School Dean Erwin Chemerinsky. Chemerinksy believes that the conservative majority on the court is likely to uphold more laws that negatively impact women’s equality rights, especially within marriage. For example, Dobbs overruled the 1992 Planned Parenthood v. Casey decision which ended the requirement that wives must notify their husband to obtain an abortion.

If the court’s majority overturns or constricts the 14th Amendment sex equality precedents, women will be left with a patchwork quilt of federal statutes used in only some situations such as Title VII (employment) and Title IX (education). All of these legislative gains can be wiped out by Congress or the Supreme Court. Some states have no anti-discrimination laws at all (Georgia and Mississippi).

So, what can the ERA accomplish that law has not? An Equal Rights Amendment to the constitution would make it more difficult for conservative judges and politicians to say that women’s rights are not the will of the American people. Boston University professor Aziza Ahmed argues that the ERA would provide a backstop to the carnage. The ERA represents what the American people have long supported and decided—that “equality is a cornerstone of what it means to be an American.”

Where are we now? The ERA has passed both houses of Congress and, as of January 2020, has been ratified by 38 states, achieving all the requirements necessary to become an amendment. But at that time, then AG William Barr stopped the final step needed to make the ERA official—the U. S. archivist certifying that the amendment is valid. The House of Representatives has twice passed a resolution recognizing the ERA, in February 2020 and in March 2021. But Republicans have used the filibuster to block the measure in the Senate.

According to Carrie N. Baker, polls show massive public support for the ERA. Many are already under the impression that the ERA is already a part of the Constitution. “Getting an ERA,” says Ahmed, “is part of the big project to say, with clarity, that this is something that the American people believe is a cornerstone of what it means to be an American.” The current Supreme court with the latest Dobbs decision is doing its level best to undermine the rights of over 50 percent of the citizens of this country. If those rights were written explicitly into the Constitution, that would be almost impossible. It seems we may have to gear up once again and once more for our daughters and granddaughters!

Much appreciation to Carrie N. Baker, J. D, Ph. D., professor at Smith College for her legal knowledge and her writing about this issue. It has been of inestimable assistance in the preparation of this article. Ed.