Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This Amendment shall take effect two years after the date of ratification.
The ERA is now needed even more than when it was first passed in Congress in 1972. It is not just symbolic. The ERA would have a real impact on people’s lives.
The drive to ratify the ERA in the 1970s and 1980s helped to build a vigorous women’s rights movement that made impressive gains for women in education and athletics, employment and credit, reproductive health and rights yet these gains came under constant attack. Sex discrimination is systemic and cannot be eliminated law by law, state by state. Achieving equality requires that sex discrimination be explicitly prohibited in the highest law of the land, the U.S. Constitution.
Attacks by Congress and state legislatures are only one way in which people can lose protection from sex discrimination. The conservative majority of the Supreme Court has also limited or gutted federal statutes prohibiting sex discrimination, and the late Justice Antonin Scalia even stated in 2011 that nothing in the U.S. Constitution prohibits sex discrimination.
In June 2022, the U.S. Supreme Court overturned Roe v. Wade in their Dobbs v. Jackson Women’s Health Organization decision, and eliminated federally protected abortion access. The conservative majority dealt a significant blow to reproductive rights, endangering the bodily autonomy and futures of all people in need of legal abortion. Several states had trigger laws in place that immediately went into effect, creating near total abortion bans in over 14 states as of June 2023. Over half of all U.S. states are expected to try and place abortion bans or severe restrictions on legal access. Criminalizing abortion disproportionately affects those who are marginalized, with an estimated 75% of those seeking an abortion living below or near the federal poverty line, and drastically increases the maternal mortality rates of people of color.
In April 2023, a U.S. District Circuit of Appeals Judge, Matthew J. Kascmaryk ruled in favor of anti-abortion groups in a case threatening legal access to mifepristone. Mifepristone is one of two drugs in a regimen for medication abortion. In his ruling, he found that the FDA’s approval of mifepristone violated an archaic 19th century law, the Comstock Act. The Comstock Act bans the mailing of “obscene, lewd or lascivious” material including items for producing abortion. Judge Kacsmaryk’s interpretation of the Comstock Act is dangerous. A literal interpretation of Comstock could extend beyond blocking access to mifepristone, making anything used for an abortion such as basic medical instruments subject to potential restrictions or bans. While access to mifepristone is still legal, an ongoing court battle on the 5th Circuit Court of Appeals will determine the fate of this abortion pill.
The ERA would provide a strong basis for restoring federally protected abortion access. State level ERAs in Utah and Minnesota demonstrated successful challenges to abortion restrictions in their respective states. Adopting constitutional gender equality includes securing constitutionally protected abortion access and advancing reproductive rights.
The language of “on the basis of sex” also includes protections on the basis of gender. In 2020, the Supreme Court’s majority opinion ruled in Bostock v. Clayton County that sex-based discrimination includes gender-based discrimination. This precedent would allow for the ERA’s protections to include queer, nonbinary and transgender people.
The ERA would ensure the prohibition of sex discrimination in the highest law of the land, the U.S. Constitution. This would not only protect the gains women and queer people have won, but also provide a constitutional basis for proactive legislation and policies that would secure equality going forward. The ERA’s impact would deliver a basis for courts to secure substantive equality, expanding beyond the 14th amendment’s limited view of formal equality. This would allow lawmakers to usher in proactive legislation and policies that recognize systemic inequities across different groups of people and uplift historically marginalized people to achieve true equality and justice going forward.
ERA advocacy extends beyond amending the U.S. Constitution. Its effects would revitalize commitments to advancing gender equality in private sectors as well. The movement for equality will spread across public and private life, motivating pushes for laws and policies that advance gender equality in civil society.