The overturning of Roe v. Wade was a wake-up call and the Equal Rights Amendment is needed now more than ever.
the majority decision in Dobbs v. Jackson Women’s Health Organization overturning the federal right to abortion, Justice Alito purported that the electoral and political process are a sufficient antidote to the Court’s stripping away of privacy rights. Women got the message, loud and clear. Despite warnings from mainstream pundits that outrage over the ruling and commitment to the cause would fade, voters indeed turned out in force in support of abortion rights – again and again, in the 2022 midterms, in judicial elections, and in ballot measure after ballot measure.
As executive editor of Ms. magazine, I have long known the centrality of abortion in U.S. politics. The inaugural issue of Ms. in 1972, for example, featured a group of influential women who signed a petition “We Have Had Abortions” — at great personal risk, as abortion was outlawed in many states at the time. This set the stage not only for Roe v. Wade a year later, but organizing strategies that are still employed today. The Washington Post reported last year that the Ms. petition “changed the course of the abortion rights movement,” as it made visible that which had been invisible — the women who had abortions and the benefits to their lives. The backstory on the petition along with decades of reporting on abortion are featured in a new anthology, 50 Years of Ms.: The Best of the Pathfinding Magazine that Ignited a Revolution(Knopf, Sept. 2023).
As the countdown to 2024 begins, candidates should take note and make clear their commitment to both abortion rights and the ERA.
Following the Dobbs ruling, polling conducted by Celinda Lake of Lake Research Partners, commissioned by Ms. and the Feminist Majority Foundation, showed that abortion would remain a top priority for voters in 2022. And now, looking ahead to 2024, our latest polling shows that not only will abortion spur strong turnout among Democrats, Independents, and young voters, among others, but it will be even more impactful when combined with support for the Equal Rights Amendment. Seven in 10 voters support the ERA being placed in the Constitution — and 74 percent support a person’s right to make their own reproductive decisions without government interference, including about abortion, contraception and continuing a pregnancy.
Candidates who thread the needle of abortion and the ERA, and talk about the two issues in tandem, will succeed in energizing voters. The overturning of Roe v. Wade was a wake-up call: now that women voters have experienced a fundamental freedom being taken away, they want the protection of an amendment to the U.S. Constitution guaranteeing that rights cannot be ‘denied or abridged on account of sex.
With the state of play for the ERA so inextricably connected to abortion rights, it is critical that advocates and candidates alike be well versed in and able to communicate clearly the status of the ERA and the steps needed to get it over the finish line. The ERA has been ratified, having met the only two requirements for an amendment set out in the Constitution: approval by two-thirds of both houses of Congress (that happened in 1972) and ratification by three-fourths of the state legislatures (the 38th and final state to ratify was Virginia in 2020). But meddling by the Trump Justice Department has delayed its formal recognition. Legal experts agree that the following three-pronged strategy will achieve its full and final recognition:
- a joint congressional resolution, crafted by constitutional law scholars, to remove the timeline and recognize the ratification of the ERA (House Joint Resolution 25 introduced by Rep. Ayanna Pressley (D-Mass.) and Senate Joint Resolution 4 by Sen. Ben Cardin (D-Md.) would accomplish this), bolstered by …
- a separate congressional resolution, called the “ERA Now” resolution, instructing the archivist to publish the ERA as the 28th Amendment (Rep. Cori Bush (D-Mo.), co-chair of the Congressional Caucus for the Equal Rights Amendment, and Sen. Kirsten Gillibrand (D-N.Y.) introduced the legislation), plus …
- a “discharge petition,” which compels the House to vote on H.J. Res. 25 to remove the arbitrary deadline for ratification (Under House rules, if a discharge petition to compel a vote on a particular piece of legislation is signed by 218 members, it must immediately be brought before the full chamber for a vote, regardless of any objections or attempts to block the legislation; now that Rep. Pressley has filed it, the petition will remain open until it garners the necessary 218 signatures necessary to be called for a vote.)
It is also crucial to make the case that the ERA could provide new ways to protect and advance abortion rights. For example, the ERA as a basis for challenging state-level bans on abortion access and other reproductive health services is currently being tested in Utah, under the argument that abortion bans exacerbate sex inequalities in educational, economic and political life caused by childbearing and childrearing. There is meaningful precedent: in 1998, the New Mexico Supreme Court ruled that an abortion funding prohibition violated New Mexico’s Equal Rights Amendment. A decade prior, a Connecticut court struck down a law that only allowed Medicaid funding for abortion when a pregnancy endangers a woman’s life. The court ruled that choosing to fund all medically necessary procedures except for abortion is sex discrimination in violation of Connecticut’s Equal Rights Amendment.As the countdown to 2024 begins, candidates should take note and make clear their commitment to both abortion rights and the ERA. It is not only a winning political combination, it is what women deserve.