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100 Years and Counting…

The 100-year effort to pass the Equal Rights Amendment gained new momentum this year with legislation proposed in the U.S. House and Senate and the first Senate hearing on the issue in decades.

U.S. Rep. Ayanna Pressley, D-Mass., and U.S. Sen. Ben Cardin, D-MD, introduced a joint resolution in January to affirm the ratification of the ERA, remove the ratification deadline, and recognize the amendment as part of the Constitution. On Feb. 28, the Senate Judiciary Committee held a hearing to discuss the proposal.

Suffrage movement leaders Alice Paul, founder of the National Woman’s Party, and Crystal Eastman originally wrote the Equal Rights Amendment after the 19th Amendment was enacted. Later revised, the ERA states: “Equality under the law shall not be denied or abridged by the United States or any state on account of sex.”

Although Congress passed the ERA in 1972, supporters failed to get 38 states to ratify the amendment by Congress’ seven-year deadline, which was later extended three years to 1982. In recent years, the last three states have voted to ratify the ERA -- Nevada in 2017, Illinois in 2018 and Virginia became the 38th state to ratify the amendment in 2020.

Supporters argue that the ERA is critical because of gaps in existing laws and Supreme Court decisions including those related to violence against women, sexual harassment and equal pay, and say it could provide a new basis for abortion rights. The National Organization for Women says the ERA “would guard against any rollbacks of women’s rights by legislation or court cases that are often politically motivated.”

Although early supporters focused on equal rights for women, many advocates now also see the ERA as critical for securing LGBTQ+ rights. Columbia Law School’s ERA Project wrote in 2022 that the ERA could “constitutionalize, and thus secure, rights enjoyed by LGBTQ people that are vulnerable to reversal by the Supreme Court in a future case.”

“For far too long, women and LGBTQ+ folks have been relegated to second-class legal status by the courts and in law, and it is long past time we do something about it,” Pressley and U.S. Rep Lois Frankel, D-Fla, chair of the Democratic Women’s Caucus, said in a statement.

Supporters face steep resistance, with opponents using scare tactics and spreading false information. Catholic Bishops, for example, wrote that passing the ERA would expand abortion access and require health care professionals to perform and employers to cover gender transition surgery – neither of which are included in the ERA. On March 15, Sen. Cindy Hyde-Smith, R-Miss, chair of the Senate Pro-Life Caucus, introduced a resolution that states that Congress has no authority to declare the ERA ratified as part of the U.S. Constitution.

The fact that women have had to fight for at least a century for an amendment to guarantee their equality in the Constitution might sound like a plot from dystopian fiction. Speculative- and science fiction is filled with stories of women who have been denied basic rights, with Margaret Atwood’s The Handmaid’s Tale, being one of the best-known examples. Atwood has said in interviews that she based the novels on true events and in recent years, many have worried that the real world has started to look more like her fiction.

Last year, after leaked documents revealed the Supreme Court’s plan to overturn Roe vs. Wade, Atwood wrote an article for The Atlantic: “I Invented Gilead. The Supreme Court is Making it Real.” She writes “the United States looks to be well on the way to establishing a state religion” and raises questions about the implications for women who could be accused of having abortions.

“It will be very difficult to disprove a false accusation of abortion. The mere fact of a miscarriage, or a claim by a disgruntled former partner, will easily brand you a murderer. Revenge and spite charges will proliferate, as did arraignments for witchcraft 500 years ago,” Atwood wrote.

This already is proving to be true. A South Carolina woman was charged this month and awaits trial after allegedly taking medication in 2021 to induce abortion at 25 weeks of pregnancy in violation of that state’s laws allowing abortion up to 20 weeks of pregnancy. A Texas man recently filed a lawsuit against three women under the wrongful death statute and alleging that they helped his ex-wife obtain pills to terminate her pregnancy in violation of the state’s prohibition on abortions after six weeks of pregnancy. And in 2015, an Indiana woman was sentenced to 20 years in prison on charges of causing the death of her fetus by taking abortion-inducing pills. Her case was later overturned on appeal.

In a warning against worshipping false idols, such as those who might use misinformation to attack the ERA, Atwood named the restaurant where the Aunts dine in her sequel, The Testaments, the “Schlafly Cafe” after the late Phyllis Schlafly, who led a successful campaigned against the ERA in the 70s and 80s.

Given the new round of opposition, it’s unclear what will happen next in Congress with the ERA. Multiple polls in recent years have found that a majority of voters support the amendment. A 2022 poll by Data for Progress found that 70 percent of likely U.S. voters mistakenly thought the Constitution already guaranteed equal rights to men and women. Meantime, books such as The Handmaid’s Tale remind us of what’s at stake when women’s rights are not protected.

This post is written by Kim Horner who is part of Femspec’s volunteer collective.

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