Please Stop Talking About the Equal Rights Amendment
by Sherry F. Colb
I have lately heard a tremendous amount of commentary about how, if we were to recognize the Equal Rights Amendment (ERA) as law, women could wrest their right to control their most intimate bodily autonomy from the creeps that currently dominate the Supreme Court. One commentator in particular explained in an LA Times op-ed and then again on the NPR podcast/radio show On The Media that the reason the ERA would be so effective in protecting the right to abortion is that the Court had, up until this most recent benighted Term, identified the right as one of "privacy." Privacy, she explained, does not expressly make an appearance in the Constitution. But the ERA would "explicitly" protect women's entitlement to equality with men. Therefore, she said, President Biden could instruct the Archivist of the United States to carry out his statutory responsibility to certify the ERA's ratification, and that would "cement" and "finaliz[e]" the right to abortion in a way that "privacy" could not.
Perhaps I am missing something, so I acknowledge that there might be something to this argument that I do not see. But from where I stand, I think the argument is so completely lacking in substance that I am rather stunned that a major American newspaper and an excellent show like On The Media would have given such nonsense a platform. The one correct statement by the commentator was that lacking an express enumeration of a constitutional right renders the right vulnerable to misogynists who choose to turn to folks like Sir Matthew Hale from the seventeenth century for guidance on women's status in the twenty-first century. If the ERA said explicitly that women (and trans men and nonbinary people) have a right against forced pregnancy and birth, then the ERA would be the perfect response to the 70-page sick bag that Sam Alito (SA) just handed to half the population. But it does not. The ERA says nothing explicit about abortion; it speaks only about equality.
Well, the commentator might have been thinking, equality between men and women necessarily means that the government cannot force women to create children inside their bodies and then birth them or endure major surgery. I agree. That is why I think that the Fourteenth Amendment's Equal Protection Clause protects women from the assaults that SA authorized on their uteruses and vaginas. The problem is that SA and his band of religious fanatics--robbing from the pregnant and redistributing to the malapportioned legislatures--already considered and summarily rejected the Equal Protection argument against reproductive servitude.
The "Equal Protection" Clause, just to state the obvious, is enumerated in the Constitution, just as enumerated as the ERA would be. While the ERA expressly mentions sex, the Court has long held that laws that discriminate on the basis of sex must survive intermediate scrutiny (a standard far more demanding than SA's "rational basis" standard that he applies to laws forcing women to be pregnant and give birth against their will). Indeed, in United States v. Virginia in 1996, the Court held that sex-based classifications require an "exceedingly persuasive justification," a standard that seems close to strict scrutiny. It may be that this Court will cut back on its precedents finding that the Equal Protection Clause presumptively bars sex discrimination, but I suspect it will instead define the problem away through the sort of ipse dixit to which SA treated readers in Dobbs v. Jackson Women's Health Organization.
Why do I say this? Because SA dedicates two little paragraphs to the argument that forcing women to endure nine months of pregnancy followed by forced birthing violates the Equal Protection Clause. He does not engage on the merits with the argument, instead citing the stupidest opinion ever delivered by an all-male Court, Geduldig v. Aiello, holding that discriminating against pregnant women is not sex discrimination because many women are not pregnant. He also cites Bray v. Alexandria Women's Health Clinic, which held that having to endure harassment in front of an abortion clinic as one is attempting to enter and receive medical treatment is also not sex discrimination, even though all of the people getting abortions were women and all of the harassment was directed at women patients. SA actually had the nerve to say that Geduldig "foreclose[s]" consideration of the sex equality argument for abortion. How is it that this Court that just uprooted and shredded a half century of precedent protecting the right against forced pregnancy and birth can feel so bound by a moronic decision from 1974 that it cannot even offer a defense of the poorly reasoned joke that is Geduldig but just relies on and feels "foreclosed" from revisiting the judicial embarrassment? The answer is clear, of course. The 50-year-old precedent protects women. The slightly younger case throws women under the bus.
Back to the ERA, then. So long as the Court continues to uphold the cases applying heightened scrutiny to laws that discriminate on the basis of sex, the ERA does very little to further the cause of reproductive freedom. Like the ERA, the Equal Protection Clause "enumerates" the right to equality. The fact that Roe v. Wade and Planned Parenthood v. Casey relied on privacy is irrelevant. Indeed, the language of Casey goes beyond privacy and speaks in terms of protecting women as the individuals who make the sacrifice that keeps our species going, a sacrifice that no one should force them to make against their will. But perhaps more importantly, the ERA speaks of equality and not of reproductive rights or abortion.
If the ERA were law, people challenging the pro-forced-pregnancy-and-birth laws that blight much of our country now would have to go to court to seek redress from the biggest fans of woman-hating legislation. Upon reaching the U.S. Supreme Court, SA would likely grace us again with his reasoning-free approach. This time, he probably could not cite his hero Sir Matthew Hale (lover of marital rape, disbelieving all rape victims, and executing witches), though he might. I predict he would say that because those who wish to force women to remain pregnant against their will are simply aiming to protect the "babies" (undifferentiated tissue colonizing a woman) from "killing," the challengers fail the purpose prong of any proper equality analysis. The "pro-life" community that passes these laws, then, really do not see the woman in whose body the clumps of tissue exist but only the "babies" that such clumps signify (in some people's religious view). Et voilà. No discrimination on the basis of sex.
A truly principled originalist would perhaps note that because the ERA would have become law more recently--with initial state ratifications occurring just before Roe and the final ones coming as abortion rights had begun to contract--the ERA therefore protects such rights. But SA is no principled originalist. In this post alone, I have highlighted his unprincipled approach to stare decisis. And in other opinions, SA mocks the idea of looking to original public meaning.
SA is an opportunist and a liar. He composes an entire opinion allowing his religious views to dictate women's reproductive lives, but he does not mention religion. He drowns a half century of precedent while expressing powerlessness in the face of the dumbest opinion ever published. And he cites a man who hated women long before the American Revolution in the guise of consulting the public meaning of liberty in 1868. If the ERA said "abortion is protected" and then defined abortion, I agree that the fanatical five would have a hard time ignoring it. But the ERA says only that discrimination on the basis of sex is impermissible. So let us please stop thinking that the ERA is the solution to The Handmaid's Tale into which SA and his perjurious disciples have placed the People.