The anti-abortion movement is freaking out about Virginia lawmakers passing the Equal Rights Amendment (ERA) last week, making it the 38th state to endorse adding explicit protections against sex discrimination to the U.S. Constitution.
First introduced in 1923, the ERA reads, in part, “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.”
Students for Life of America—whose board is made up of a collection of right-wing pooh-bahs, such as Federalist Society co-chair Leonard Leo and former Wisconsin Gov. Scott Walker (R)—has put together a frantic Expose ERA petition signed by women associated with anti-abortion groups. Among them is the leader of the March for Life, an annual anti-abortion march around the United States Capitol timed both for the actual anniversary of the Roe v. Wade decision and to create a mandatory weekday field trip up and down the Eastern Seaboard for young people attending Catholic schools, MAGA hats and all.
The theme of this year’s show for the news cameras? “Life Empowers: Pro-Life Is Pro-Woman.”
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Believe what they do and not what they tell you. But when they tell you who they really are, believe them. In a press release, Students for Life of America president Kristan Hawkins vowed an “organized and litigious” response to the prospect of bringing the ERA into the U.S. Constitution, which I’ll go out on a feminist limb and say is the most pro-woman and gender-empowering thing ever suggested for people living in the United States.
The ERA is not a magic wand. Even when an explicit prohibition against sex discrimination is put into the Constitution, we will need to fight for pay equity and paid leave, combat rampant rates of sexual harassment and sexual assault, and demand that state and federal legislators take action to increase access to abortion and advance reproductive justice. Eliminating sex discrimination will remain a work in progress, and it will remain especially challenging where it intersects with other oppressions, including racism, ableism, and transphobia.
So what does the ERA say about abortion? Well, it says nothing directly, but you’d have to ignore the obvious to believe that equality on the basis of sex and reproductive rights have nothing to do with each other. Whether it’s restrictions on abortion and birth control, failure to provide accurate sexual education, or discrimination against pregnant workers, reproductive oppression is one of the primary ways sex discrimination rears its ugly head. And discriminations on the basis of sex are often tied to assumptions about female reproductive capacities, such as the history of denying athletic opportunities to women and girls out of erroneous fears that fitness harms fertility.
Abortion restrictions amount to sex discrimination because they single out people for unfair treatment on the basis of sex, and a federal ERA could provide a backstop to fight the wave of restrictions on abortion. In a 1986 case in Connecticut and a 1999 case in New Mexico, ERAs adopted into state constitutions were cited when striking down restrictions on funding for abortions. However, it’s important to note that a number of states that have ERAs or explicit protections against sex discrimination in their state constitutions continue to trample on abortion rights.
A 2019 Guttmacher Institute ranking found 29 states to be hostile toward abortion rights, and eight of those states have ERAs: the “very hostile” Louisiana; the “hostile” Pennsylvania, Texas, Utah, and Virginia; and the “leans hostile” Florida, Iowa, and Wyoming. While the importance of a constitutional prohibition on sex discrimination in the struggle for abortion access shouldn’t be dismissed, the claim of abortion rights opponents that the ERA is “not about equal rights—it is about ensuring abortion is legal” is both histrionic and untrue.
Now that Virginia’s Democrat-controlled legislature has ratified the ERA, the next step is the courts. While 38 states are required to adopt an amendment to the Constitution, Congress imposed a deadline on the states to ratify the ERA by 1982. ERA supporters argue this is not binding, and often cite the 27th Amendment, which was proposed by founding father James Madison with the Bill of Rights and adopted more than 200 years later, in 1992. Conservatives may also bring challenges based on a few states that have rescinded their passage of the ERA, although precedent suggests that once a state has ratified, lawmakers can’t go back. The Trump administration has weighed in, issuing an opinion from the U.S. Department of Justice saying it’s too late for the ERA to be ratified.
This is a thrilling fight, and one worth having. It is especially revealing that, in 2020, abortion rights opponents have decided to openly attack gender equality as they embrace the deeply problematic man they call “the most pro-life president in American history.”
All these abortion restrictions have never been about being “pro-life,” or making sure babies and families are healthy and thriving, or anything but warping sexuality into a weapon of the state to control the means of reproduction and protect the white male dominance this country started with.