The ERA Could Expand Abortion Rights

It’s been a century since the Equal Rights Amendment was first introduced in Congress and over 50 years since it passed. The bill then floundered for years, ultimately blowing past its seven-year deadline to be ratified in at least 38 state legislatures. But there’s new potential—and heightened necessity—for the ERA in a post-Roe v. Wade nation.

The proposed amendment isn’t just symbolic. “We need to use every tool at our disposal to protect and expand abortion access—one tool is the ERA,” Rep. Ayanna Pressley (D-MA), co-author of a new resolution to affirm the ratification of the ERA, told Jezebel. Pressley emphasized “it’s about outcomes,” meaning if passed, it could give two other bills she’s co-authored—one to codify the federal right to abortion (the Women’s Health Protection Act) and one to allow federal funding for abortion (the EACH Act)—a stronger chance at passing.

The ERA faces an uncertain path forward and an array of legal barriers. While its ratification is a big “if,” to Pressley’s point, there’s some precedent for the amendment’s powers to advance reproductive rights: In 1998, advocates in New Mexico successfully sued for the state to offer public funding for abortion, citing the state’s ratification of the ERA. An appeals court ruled in their favor, stating that the abortion funding ban “does not apply the same standard of medical necessity to both men and women.” The Pennsylvania Supreme Court is currently considering a similar case on Medicaid coverage of abortion, also weighing the state’s ratification of the ERA. Last summer, a Utah judge temporarily blocked the state’s abortion ban from taking effect to hear arguments from Planned Parenthood, which argues that the ban violates Utah’s ratified ERA.

The New Mexico ruling—and Pressley’s resolution—offer rare hope as abortion bans across the country subject women and pregnant people to distinctly gendered agony and medical discrimination. As one Texas woman put it this week, recounting her near-death experience as a result of her state’s ban: “Where else in medicine do we wait and see how sick a patient becomes before acting?”

Where the ERA stands

The ERA failed to pass in enough state legislatures following aggressive, 1960s fearmongering from conservative women that equality would harm women. Decades later, amid the emergence of MeToo, the amendment gained renewed traction through celebrity activism. But even when Virginia became the 38th state to ratify the ERA in 2020, nothing happened—the states had missed the ratification deadline specified in the original ERA bill by nearly 50 years.

Just last week, the U.S. Court of Appeals for D.C. determined the deadline is legally binding, and the ERA’s recent ratification in Virginia, as well as Nevada and Illinois, is invalid. Nevertheless, advocates claim the ERA should be adopted as the 28th Amendment, citing how other amendments weren’t held to a seven-year deadline—the 27th Amendment was added to the Constitution in 1992, 200 years after being introduced.

Kate Kelly, a human rights lawyer and author of Ordinary Equality, told Jezebel that “as far as [she’s] concerned, the ERA is the 28th amendment.”

Despite the recent court ruling, the resolution’s advocates in Congress—including Pressley—argue if Congress had the power to set an arbitrary deadline for the ERA in 1972, it has the power and moral obligation, today, to change that deadline.

Could the ERA save abortion rights?

The ERA is, in many ways, shrouded in ambiguity—not just around its future, but what it would or wouldn’t achieve for reproductive rights. Pressley acknowledges it wouldn’t replace the now-defunct Supreme Court decision in Roe. But her resolution faces an uphill battle this Congressional cycle precisely because Republicans fear its impact on abortion laws.

There’s a Republican majority in the House, and Sen. Lindsey Graham (R-SC) explained his party’s opposition during a Senate Judiciary Committee hearing for Pressley’s resolution earlier this month. Graham claimed the ERA would end “every pro-life measure in this country”—essentially, an admission that abortion bans are an affront to gender equality. Pressley’s response to Graham is simple: “I’m fighting for all the women in Lindsey Graham’s life, who I’m sure have experienced discrimination or injustice at some point,” she told Jezebel.

Even if the resolution is successful and holds up in court, it wouldn’t be a guaranteed win for reproductive rights. But, Kelly argues, it could offer grounds for a new, stronger legal argument against abortion bans in court. “We’ve seen those cases on abortion rights citing privacy laws in the Constitution, but not equality, because gender equality hasn’t yet been recognized as part of our Constitution,” Kelly explained. She notes the late Justice Ruth Bader Ginsburg criticized Roe for its basis in privacy rather than equality.

Kelly says the ERA could also provide a way for Congress to greenlight “federal protections for reproductive services, even federal funding” for abortion and related costs. “Congress is very limited in the types of provisions it can pass—they have to come in under specific areas of the Constitution. A gender equality provision in our Constitution could open a lot of doors,” she said.

The reversal of Roe, Pressley says, was a reminder that “gains aren’t guarantees,” and our rights necessitate proactive protection. (That protection needs to extend past Roe’s limitations, too.)

Pressley currently occupies the Congressional office once held by the late Rep. Shirley Chisholm of New York, the first Black woman elected to Congress, who gave an impassioned speech in 1970 advocating for the ERA’s passage. Carrying on Chisholm’s legacy in fighting for the ERA gives Pressley “a tremendous sense of responsibility.”

“Part of me is lamenting the fact that the fights remain the same,” she said. “My daughter’s eighth-grade graduation was the same day the Dobbs decision came out. I told her when we fight we win, and I’m not going to be a liar to my kid.”

There’s no clear line in the sand as to what federal ratification of the ERA would achieve from a legal standpoint. But it could certainly create new possibilities—for women, pregnant people, and queer and trans people whose rights are under siege.