Could the ERA help the Reproductive Healthcare Crises?

Could the ERA help the Reproductive Healthcare Crises? By Liz Jordan

AAUW Position on the Equal Rights Amendment: To guarantee equality, individual rights, and social justice for a diverse and inclusive society, AAUW advocates the passage and ratification of the Equal Rights Amendment.

When we look at the issues developing around the crises in reproductive healthcare, we must ask: Could the Equal Rights Amendment be important to finding solutions?

My thinking is “yes!” Why?

  • Because the simple language in Section 1. says “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex. “

Specifically, the Dobbs decision in 2022 says that states can decide if their citizens have a “right to privacy in their personal decisions.”  So, a woman living in New York has a right to privacy in her personal decisions that she makes for herself, but a woman living in Idaho does not have that right to privacy.

Individual states would not be allowed to decide a woman’s rights.   The women in Texas, and in other restrictive states (see the Guttmacher Institute interactive map) have fewer rights than women living in California.

  • The equal protection of the 14th Amendment protects people from discrimination based on race, religion or nationality. Gender is not a protected class and therefore not entitled to “strict judicial scrutiny.”  This results in a lower success rate when bringing gender discrimination suits before the Supreme Court.

The late Justice Antonin Scalia said in 2011 that there is nothing in the US Constitution that protects women against gender-based discrimination.  For women to become a “protected class” under the Constitution, we must be added, specifically and clearly, to expect constitutional protection.

Yearly, thousands of women swear an oath to protect and defend the Constitution, but nowhere in the Constitution is a woman protected by the Constitution.  Gender should also be a protected class entitled to “strict judicial scrutiny.”

Women living in every state should have equal access to all reproductive healthcare, and their lives and liberty should be protected by the US Constitution.

Why should the Archivist publish, or be told to publish, the ERA as the 28th Amendment to the US Constitution?

  • Because the only two requirements for an amendment, stated in the US Constitution, have been met for the 28th Amendment (ERA).
  • 2/3 of both houses passed in 1972.
  • Ratified by 3/4 of 50 states, 38 states, in 2020.
  • Because the issue of the seven-year deadline, or three-year extension to 1982, is without merit.

The deadline is arbitrary.  Deadlines for ratification have been applied only in the last 100 years.  The deadline for the ERA does not appear in the text.  It appears only in the Preamble to the Amendment.

The 27th Amendment became part of the US Constitution in 1992.   It was sent out for ratification in 1789, just after the Bill of Rights was ratified, and was lost in the process.  The 27th Amendment governs how Congress may vote itself a raise in compensation but may not receive it in the same Congressional session.  This amendment was quite popular, when it was finally ratified 203 years after it started the ratification process, because Congress was very unpopular with the electorate in the 1980s.

There were questions raised about its legality, but Congressional leadership believed it was not politically smart to delay publication.  The 27th Amendment was published immediately, without ceremony but with certification, into the Constitution.

Why does an amendment that governs congressional pay compensation get swift treatment, while the amendment protecting equal treatment for more than half the population of the country must satisfy an arbitrary deadline that does not appear in the language of the amendment itself.

  • Because Congress is incapable of removing the deadline. For four years, over three successive Congressional sessions, they have attempted to remove the deadline by joint resolution.  Yet women wait.  And wait.  And wait.  For over 100 years we have waited.

President, Joe Biden, campaigned on a promise to get the ERA/28th Amendment into the US Constitution.  He has, also, publicly supported all congressional resolutions that nullify the arbitrary deadline. 

  • Because no state has ever successfully rescinded its ratification after it voted for an amendment.

More than one state attempted to rescind it’s vote for the 14th Amendment, the amendment that provided the rights of citizenship to “formerly enslaved persons.”  Some states were compelled to ratify the 14th Amendment as a requirement to be accepted back into the Union.

I propose that we ask some hard questions. 

  • Let us ask every politician holding federal office, from the President to your local senator and member of House of Representatives, what she or he has done, is doing, will do to secure equal protection for women in the Constitution?
  • Let us write to every woman working for a major television and/or radio news channel to ask when will they do programing about the conundrum of the Equal Rights Amendment, especially as it relates to the unequal access to healthcare?

Questions we could ask:

Why isn’t the 28th Amendment part of the US Constitution? 

  • Why doesn’t President Biden tell his new Archivist, Colleen Shogan, to publish the amendment?
  • Would we have the Dobbs decision with the Equal Rights Amendment as a part of our Constitution?
  • Why don’t national news reporters ask Biden about the ERA at news conferences?
  • If women political leaders and military members swear to protect the Constitution, why aren’t they protected by it?
  • Is there a political agenda preventing the certification and publication of the Equal Rights Amendment?

Write letters and/or emails to:          

Women in News Media

–Margaret Brennan, Face the Nation, CBS, 2020 M Street NW, Washington, DC 20036; (202) 457-4481; facethenation@cbsnews.com

–Rachel Maddow, The Rachel Maddow Show on MSNBC, Rachel@msnbc.com; *Jen Psaki, Inside with Jen Psaki on MSNBC; *Joy Reid, The Reidout on MSNBC; *Nicole Wallace, Deadline Whitehouse on MSNBC; *Alex Wagner, Alex Wagner Tonight on MSNBC; *Stephanie Ruhle on 11th Hour on MSNBC.

The news women listed above may all be emailed at MSNBCTVinfo@nbcuni.com

–Lindsay Davis, ABC News Live Prime, https://www.linseytdavis.com/contact/

Political leaders

For our California senators:

Alex Padilla                                                                 Laphonza R. Butler

112 Hart Senate Office Bldg.                                      G12 Dirksen Senate Bldg.
Washington DC 20510                                                 Washington DC 20510
501 I Street Ste 7-800                                                  https://www.butler.senate.go
Sacramento, CA 95814
https://www.padilla.senate.gov/contact/contact-form

For Your House of Representatives:

Find your representative: www.house.gov/representatives/find-your-representative