The Dobbs Decision Could Erode Other Women's Rights--Making the ERA More Important Than Ever
(lengthy, frightening article)
The Dobbs Decision Could Erode Other Women’s Rights—Making the ERA More Important Than Ever
4/25/2023 by Carrie N. Baker
Six of the nine justices on the Supreme Court are current or former members of the Federalist Society, which advocates the idea that the Constitution is a fixed document, whose meaning may not evolve from what its 18th-century authors intended. (Kent Nishimura / Los Angeles Times via Getty Images)
When the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization overturning the long-standing constitutional right to abortion established in Roe v. Wade, for the first time in its history it took away a fundamental constitutional right. While most commentary following the decision focused on how the Court ended constitutional privacy protections for abortion, a shocking part of the opinion—and one that received barely a mention—was the Court’s undermining of women’s constitutional equality rights. It’s a clear indication that the Court will allow states broader latitude to pass laws that discriminate against women. This new reality makes final recognition of the Equal Rights Amendment more important than ever. In a single paragraph buried deep in the opinion, the Court summarily dismissed the idea that denying abortion access violates women’s constitutional equality rights.************ “A State’s regulation of abortion is not a sex-based classification,”******** wrote the Dobbs majority, citing a controversial 1974 Supreme Court decision—Geduldig v. Aiello—that many constitutional law scholars believe no longer holds legal weight. In the Geduldig case, the Court argued that a policy excluding pregnancy from a disability insurance program was not sex discrimination in violation of the 14th Amendment’s equal protection clause because it did not discriminate between men and women, but only between “pregnant and nonpregnant persons.”
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Rights Not ‘Deeply Rooted’
In Dobbs, not only did the Court cite an outdated case and ignore subsequent law, but it also used legal reasoning that could be deployed by conservative justices to eliminate equal protection clause protections for women altogether and refuse to expand them to LGBTQ people. The majority opinion argued that the 14th Amendment protects only rights explicitly mentioned in the Constitution, those intended to be protected by the framers of the 14th Amendment in 1868, or rights “deeply rooted in the Nation’s history and traditions.” Using this approach, the Court overruled Roe v. Wade by arguing that the right to abortion met none of these tests: Abortion is not mentioned in the 14th Amendment, the 1868 framers did not intend to protect the right to abortion and such a right is not “deeply rooted in the Nation’s history and traditions.”
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The Equal Rights Amendment has passed both houses of Congress and, as of January 2020, been ratified by 38 states, finally achieving all the requirements necessary to become an amendment. But that same month, then-Attorney General William Barr halted the final ministerial step to make the ERA official—the U.S. archivist certifying that the amendment is valid. The House of Representatives has twice passed a resolution recognizing the ERA, in February 2020 and again in March 2021. But Republicans have used the filibuster to block the measure in the Senate. “Dobbs taught us that even after 50 years of precedent, we don’t have [firm] ground to stand on,” Ahmed said. “When it comes to the right to abortion, the rug can be pulled from under our feet at any moment. And here we are in a freefall, essentially, while we’re waiting to see where the bottom is. States are using this as an opportunity to experiment on women and people who are getting pregnant. Can there be a backstop? I think that the Equal Rights Amendment at least provides the opportunity.”
Polls show massive public support for the ERA. The vast majority of respondents—men and women; Republicans, Democrats and Independents—want the ERA, and most are under the impression that it’s already a part of the Constitution. Nearly two-thirds believe that the ERA would have a positive impact for women. “The Court should not be able to get away with saying that the people have not spoken on this issue when clearly they have,” Ahmed said. “Getting an ERA is part of the big project to say, with clarity, that this is something that the American people believe is a cornerstone of what it means to be an American.” With the current Supreme Court and the Dobbs decision’s erosion of equal protection rights, that cornerstone is now more necessary than ever before.
https://msmagazine.com/2023/04/25/dobbs-roe-supreme-court-women-equal-rights-amendment/