In order for people of all generations to regain the permanent right to an abortion and the right to stop sexual violence — in all 50 states – and to keep equal rights in employment, education, marriage equality, health care, credit and more – the ERA must be added to the U. S. Constitution and clearly state women have the same legal rights as men.
When the ERA is added to the U.S. Constitution, there will be two sections:
Section One: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
- Would be a tool to eliminate existing discrimination such as the pink tax, the persistent wage gap and lifetime earning disparities, unjust veteran benefits, biases in social security and retirement programs, unequal insurance costs, and more.
Section Two: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
The language in Section Two is as important as the language in Section One because it:
- Provides guard rails against an extremist Supreme Court and other rogue federal judges who believe (like the late Supreme Court Justice Scalia) that the Constitution does not prohibit sex discrimination.
- Is a safety net to prevent the Dobbs and Chevron Supreme Court decisions from becoming a springboard to other issues and a guarantee that Congress can pass laws, including restoring abortion rights, that will work to end sex discrimination.
The American Bar Association’s (ABA) adopted a resolution in August 2024 that states:
To the extent that the Supreme Court’s recent decisions in Dobbs and elsewhere evince a Supreme Court majority’s embrace of originalism, longstanding interpretations of the 14th Amendment are in grave peril.
This is the current situation because much of what has been achieved over the last 50 years is the result of court rulings on sex discrimination that were based on the 14th Amendment. The ABA added the following wakeup call:
Specifically, the greatest legal protection afforded to women today rests on the Equal Protection Clause of the 14th Amendment.
However, the 14th Amendment was intended as a guarantee of equal citizenship to formerly enslaved persons after the Civil War, and later extended to include people of all races. Historically, it did not guarantee equality on the basis of sex.
By judicial interpretation, the 14th Amendment was read to cover sex discrimination for the first time in the 1970s.
Courts have continued to look to the 14th Amendment in sex-based cases for the past half century. But now all that is in jeopardy.
The hard-fought gains for both women and men over the past six decades can be bulldozed over in much the same way the Supreme Court reversed Roe v. Wade and washed away 50-years of reproductive rights.
A ruling from a strict constitutionalist judge in a lower federal court could erase regulations, and possibly statutes, related to equal education provisions of Title IX, equal pay, Title VII’s equal employment opportunities, marriage equality, and equal credit along with sections of laws prohibiting sexual violence and harassment.
Without the ERA in the Constitution, a situation could develop that Congress passes an abortion rights bill and the Supreme Court rules that Congress had no authority to pass such a statute since the Constitution does not prohibit sex discrimination.
The ERA passed Congress with a two-thirds vote in the United States House and Senate and has been ratified by the needed 38 states. The United States House and Senate are considering a Joint Resolution to eliminate any arbitrary time limit and validate the Amendment as ratified so that the ERA can be published in the Constitution.
Sources: Congress.gov, Government Printing Office/govinfo.gov, ProPublica, American Bar Association