Wanna Save Roe v. Wade? Don't Look To The Courts
Could the Equal Rights Amendment be the key to saving legal abortion in the United States?
With the political balance of the Supreme Court now in the hands of anti-choice conservatives, reproductive rights advocates across the United States are bracing for a future without Roe v. Wade. But what if there were another way to protect abortion rights, this time in the Constitution?
Roe v. Wade, the judicial cornerstone of abortion rights, was not decided as a grand gesture towards women’s equal rights. In fact, the decision was based largely on the right to privacy, and the rights of doctors to treat patients as they saw fit.
“Both the basis of the privacy argument and even the technical, technological underpinnings of [Roe] always seemed likely to expire,” said Jennifer Weiss-Wolf, Women and Democracy Fellow at NYU’s Brennan Center for Justice. “Technology was always going to move us to a place where the trimester framework didn’t make sense.”
“If you were rooted in an equality argument, those things would not matter,” she said.
The Equal Rights Amendment, which would prohibit sex discrimination the way the Constitution currently prohibits discrimination based on race, religion and national origin, could do just that. The ERA would provide the framework for an equality argument: Women’s equality necessarily requires reproductive and bodily autonomy, and without control over our bodies, women cannot participate as full and equal citizens in this country.
After decades of political dormancy, the ERA has recently come back into play. The amendment, which was passed by Congress in 1972, stalled after proponents were only able to get 35 of the required 38 states to ratify it by a 1982 deadline. The effort picked up steam in the 1990s, when a plausible argument emerged that the deadline wasn’t constitutionally mandated and could therefore be changed. Since then, Nevada and Illinois have ratified the ERA. (There are some hurdles: Once a 38th state ratifies the amendment, we can expect contentious legal battles over whether the deadline can be moved, and whether the five states that have rescinded their ratification were actually allowed to do so.)
The text of the ERA itself doesn’t itself mention abortion. It reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” A right to abortion based on an Equal Rights Amendment wouldn’t be about the abortion procedure itself. It would be about women’s ability to live equally as full citizens under the law.
Several state equal rights amendments have already interpreted this way, and could point the way forward. In 1986, the Connecticut Superior Court struck down an abortion restriction using state’s ERA, ruling that “discrimination against pregnancy by not funding abortion when it is medically necessary and when all other medical expenses are paid by the state for both men and women is sex oriented discrimination.” In 1998, New Mexico’s high court ruled that a policy to restrict funding for medically necessary abortions violated New Mexico's Equal Rights Amendment “because it result[ed] in a program that does not apply the same standard of medical necessity to both men and women.”
To be sure, a conservative Supreme Court that’s willing to strike down Roe v. Wade isn’t necessarily going to interpret the ERA as mandating abortion specifically. But the second article of the ERA grants Congress the “power to enforce this article by appropriate legislation,” and legislation written specifically to protect abortion rights on the grounds that they enforce the equal protection guaranteed by the ERA might stand a better chance.
“In many other countries, abortion rights have come not through the judiciary but through the legislature,” said Julie C. Suk, a professor at Cardozo Law who teaches constitutional and equality law. “If the people who are really advocating for reproductive rights in America realize they can't trust the judiciary to protect those reproductive rights, then they have to create a legislative politics around reproductive rights, which I think is feasible.”
“You could get a very conservative judge who is willing to say, the Constitution does not protect a woman’s right to choose explicitly,” said Suk. “It would take a special kind of extra anti-abortion zeal for that same judge to say, if the legislature passes legislation protecting abortion rights, that’s unconstitutional.”
Suk believes the legislative history of the ERA has always included reproductive rights, but that “we can make it more clearly include reproductive rights by being as loud as possible.”
But that’s exactly the opposite of what has happened.
ERA advocates are torn between conflicting strategies. They can assert that the ERA has nothing to do with abortion in order to win over skeptical conservative legislators now -- but thereby setting themselves up for contradiction if and when the ERA is later needed to preserve abortion rights. As Cardozo Law professor Julie Suk put it, “If you get your victory by not bringing in the divisive issues, it's not as big a victory.”
Alternatively, advocates can assert those abortion rights now, galvanizing the support of young women who fear a post-Roe future but potentially firing up the conservative critics that could block ratification.
"I think whether or not judges have an obligation to read abortion rights into an ERA that may pass really depends on how loud we are as those who advocate and help get the ERA ratified today,” said Suk.
There’s a case to be made that loud, abortion-based ERA advocacy could speak to the multitudes of women fired up by Trump’s presidency, the threats to Roe v. Wade, and the resurgence of the #metoo movement. Many abortion advocates have already distanced themselves from Hillary Clinton’s refrains of keeping abortion “safe, legal, and rare,” arguing instead that abortion can in fact be a positive thing in a woman’s reproductive life. The #shoutyourabortion social media campaign, launched by activists in 2015, has encouraged women to speak about their abortions openly and without shame.
In the meantime, ERA advocates have their sights set on Virginia and North Carolina, the two states that have been deemed most likely to ratify the ERA in the near future.
The ERA-North Carolina Alliance, a group of advocacy organizations, is pushing state legislators and midterm legislative candidates to declare their support for the ERA. Their goal is to achieve critical mass by the next legislative session in 2019.
“We haven’t really figure out what our plans are should Roe be overturned,” said Audrey Muck, vice president of communications for the alliance. “But at the moment, with Roe being the law of the land, we can focus on what the ERA says, which is strictly about equal rights for men and women under the Constitution.”
During the fight for ratification in the 1970s, the pro-ERA campaign was plagued by infighting over whether to prioritize abortion. ERA advocates consciously left ambiguous the amendment’s potential implications for a woman’s right to choose.
“People said the ERA will be like a super-Roe and that’s the reason it had to be defeated,” explained Amy Myrick a lawyer at the Center for Reproductive Rights who studied the ERA for her sociology PhD (who stressed that she was not speaking on behalf of the Center). “That partly feeds into reluctance to say that the ERA is going to do all these things when we know that they’re divisive. Rhetorically, that might not help its chances.”
Anti-ERA advocates have always argued that the amendment would lead to fully legalized abortion. Phyllis Schlafly, the conservative leader often credited with derailing the ERA’s political momentum in the 1970s, railed against the amendment by insisting it would legalize abortion on demand, force women to serve in the military, and validate same-sex marriages.
Several advocates and scholars told me that the old strategy is still in play. Some said off the record that they don’t want to lend credence to the conservative right’s attack, and are therefore focusing their ERA messaging on other, more palatable equality issues like equal pay and pregnancy discrimination. In a way, they’re keeping mum on abortion so as not to tip their hands.
When I asked them about what the ERA could do for reproductive rights, other advocates simply demurred. “We are not focused on that issue right now,” Carol Robles-Román, Co-President and CEO of the ERA Coalition, told me via email. She declined to say why. A representative for NARAL Pro Choice America declined to comment on whether or how the organization is thinking about the ERA’s impact on reproductive rights.
Congresswoman Carolyn B. Maloney (D-NY), who is leading the effort in Congress to revitalize the ERA, said she believes reproductive rights are integral to women’s equality. But, she added, “I think that the ERA is about more than just reproductive rights and that women’s equality is about more than just our bodies. I would not want to limit the way people look at the ERA by tying it too closely to any one issue.”
“I understand the hangups and concerns of leading with abortion rights,” said Weiss-Wolf. “It feels like you’re walking into Phyllis Schlafly's trap.”
In November, Weiss-Wolf and the Brennan Center will hold a day-long “convening” of academics, advocates and experts to discuss the future of the ERA. The ultimate goal, she said is “to look at [the ERA] in a broader way so that it’s not just igniting the abortion wars.” Rather than leading with abortion specifically, advocates might call for a reproductive justice framework that includes economic and civic equality, she said.
“I think that we all have to accept the fact that there are going to be multiple strategies we’re going to have to advance at the same time,” Weiss-Wolf added. “With regard to abortion rights, the demise of Roe seems imminent, and I think that we’re going to have to be multifaceted.”
Toni Van Pelt, president of the National Organization for Women, questioned the effectiveness of leaving abortion off the discussion table. “I don’t think we should remain silent because maybe they’ll use it against us,” she said. “Are you kidding? They do use it against us, every chance they have.”
Van Pelt said the ERA is “hugely important for reproductive rights, for birth control, for abortion, for the right not to be sterilized, to have autonomy and be treated as the adults we are.”