The One Thing Congress Can Do Today to Preserve Abortion Rights

In the recent leaked decision in the Dobbs v. Jackson Women’s Health Organization case pending before the Supreme Court, Justice Samuel Alito began a campaign to completely eliminate unenumerated rights. Ignoring the Ninth Amendment, Alito bemoans in the leaked draft:

Roe … was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which the Constitution does not mention, is part of a right to privacy, which is also not mentioned.

The leaked draft goes on to directly criticize two pivotal LGTBQ rights cases: Lawrence v. Texas and Obergefell v. Hodges. Alito states that, as with abortion, these decisions protect rights that are not “deeply rooted in history” and are the legal equivalent of fake news.

The unenumerated right specifically under attack—the right to privacy—was first articulated in Supreme Court jurisprudence that preceded Roe v. Wade called Griswold v. Connecticut, which made contraceptive access a constitutional right in 1965. To establish a right not found in the words of the Constitution, Justice William O. Douglas borrowed a scientific term derived from how the light of the sun interacts with the moon and earth. He said that the right to use birth control, while not directly in the text, was found in the shadows or “penumbras” of the law. Amici in the Griswold case argued based on equality, not privacy, but Douglas skirted the issue entirely.

Roe has collapsed in Texas, and that’s just the beginning.

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When Roe came down in 1973, the decision was similarly rooted in rights that flow from privacy, not equality. Roe is a highly technical, medicalized decision that hyper-focuses on a pregnant person’s body and the timing of pregnancy rather than autonomy or right to equal protection under the law. Many, including Ruth Bader Ginsburg, have criticized the decision to base the right to abortion on privacy, not equality. But, privacy was invented, at least in part, because an equality amendment to the Constitution—the Equal Rights Amendment—was pending at the time, but it was still not ratified.

Just a few months after the Roe ruling, the Supreme Court explicitly acknowledged in another landmark gender equality case, Frontiero v. Richardson, that in light of “the fact that the Equal Rights Amendment has been submitted to the States for ratification, it is inappropriate to decide at this time whether” gender-based discrimination should receive the highest level of judicial review. In other words: Equality, if it actually becomes enumerated in the Constitution, could be very powerful, and the Court was waiting for the ratification results.

The Equal Rights Amendment passed in Congress the previous year with virtually no opposition from either party. The House approved the ERA with a 354-23 vote, and then only eight senators voted against it. That level of congressional consensus on any issue related to gender is hard to imagine today.

Feeling powerless after the Roe decision and anxious about the Court’s signaling that the new amendment would improve outcomes for cases of discrimination on the basis of sex, many conservatives sought to channel their opposition to Roe into a referendum on the ERA.

As the burgeoning religious right’s political influence began to grow, they intentionally chose abortion as a wedge issue to activate their base but used opposition to the ERA as the vehicle to flex their power. Catholics, evangelicals, and even Mormons banded together against the amendment. In 1982, the once-extended time limit on the ERA expired, and they declared themselves victorious.

However, in recent years, the ERA has emerged from the Phyllis Schlafly-induced ashes and has found new life. Nevada ratified it in 2017, followed by Illinois in 2018, and, in 2020, Virginia became the 38th and final state needed to meet the requirements of Article V, which governs the ratification process. Having been passed in Congress by over the two-thirds vote required and ratified by the requisite states, advocates and respected constitutional legal scholars alike agree that the ERA is now the 28th Amendment to the Constitution.

With the ERA in place, we no longer have to rely on the now shaky and unenumerated right to privacy—equality is now legitimately enumerated.

Even ERA opponents agree that it has the potential to save Roe and go even further to protect abortion access. They call it the “Everything Related to Abortion” amendment, and constantly decry its enormous potential to protect reproductive rights and freedom. And, they are not wrong.

In New Mexico, which has a state ERA, the state Supreme Court struck down a law (akin to the federal Hyde Amendment) that prohibited government-funded coverage of abortion. Other states have had similar successes under their state-level ERAs, and this is a good sign for future abortion litigation on the federal level with the ERA in place. In addition to completely changing the landscape for abortion access in the courts, a federal ERA would also provide a constitutional hook for Congress to pass more progressive laws that not only “codify Roe” but also move beyond the limited privacy framework to make abortion more accessible nationwide.

With five proven anti-abortion justices currently on the Supreme Court, the only thing we can do is change the document they are charged with interpreting. Even originalists have to concede that Article V exists and the “founding fathers” made a way to edit the text of the Constitution. If we succeed in finalizing the ERA and enumerate equality, penumbral rights will be a thing of the past, and we can achieve abortion access based on equality of citizenship.

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