Now What?

  

“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Could Justice Samuel Alito be right, assuming that Roe vs Wade had never been decided, that an inferred “right to privacy” under the Fourteenth Amendment was not an ideal plank upon which to build such a momentous ubiquitous “right to abortion” constitutional decision? Even RBG agreed with that notion, but… Experts argue that the case is not appropriate for review as “unconstitutional,” since in fact a. it is within the clear prerogative of the Supreme Court to define broad sweeping provisions of the Constitution (thus, expanding the Fourteenth Amendment to embrace a personal and equal application of “privacy”) in its rulings. and b. it is a clear precedent of the Court that has overwhelming popular support, having given rise to practices and expectations of American women for almost half a century.

Yes, it would have been more efficacious for the Roe Court to have relied more heavily on the words “equal protection,” but that panel of justices was compelled in its decision by another, 1965 Supreme Court precedent (Griswold vs Connecticut). Justice William O Douglas wrote the majority ruling in that matter, where Connecticut had banned the distribution of contraceptives, and created a constructional notion of privacy, transmitted to the states under the equal protection clause of the Fourteenth Amendment but based on a mix of interpretations of provisions of the Bill of Rights. If Roe falls, are same sex marriages (Obergefell v. Hodges – 2015) and conception bans next to be reversed? Both have substantial “privacy” underpinnings.

While British common law had gently touched upon the question of a right of privacy over many decades earlier, there was no clear American right to privacy in any embodied American statutes. Indeed, the topic exploded as a Harvard educated Dean of the School of Jurisprudence at UC Berkeley, the author of a continuously updated “hornbook” (a basic expert text generally accepted by the legal community as a legal practice guide in the relevant field) – Prosser on Torts (which began publication in 1941, but truly began a more detailed examination of privacy in 1960) – tackled the notion in depth.

The expansion of tort law (civil wrongs other than a breach of contract) to create a right of “privacy” (as newspapers of the time were deemed to be unnecessarily personally intrusive) became the hot topic just as the Court was examining the Griswold case. Douglas embraced this new right of “privacy” and applied that notion to limit states’ impinging on individual personal matters… like contraception. So, the 1973 Roe court simply used the same reasoning to matters of abortion. It was the easy button. Roe without Griswold could just as easily have been decided on a pure “equal protection” basis.

Assuming Roe is reversed, 26 states with severe if not total abortion bans (many with automatic “triggers” the day Roe is reversed) are ready to take the abortion option off the table for millions of American women. There are no comparable statutory provisions for those unwanted children, many born to children in deep poverty, and the system is woefully unprepared for the resulting adoption necessity. So, what can the unradicalized women of America do – that over 70% segment who do not want Roe reversed? Kate Kelly (attorney and author of Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment), writing for the May 23rd Los Angeles Times, suggests that implementing the Equal Rights Amendment might be a concept whose time is right.

Kelly traces the history of that amendment… in very different times: “[In 1972,] The House approved the ERA [reproduced above] 354 to 23, and just eight senators voted against it. But it had still not been ratified by 1973 when Roe came down. With the Constitution still lacking an explicit right to equality, the Roe decision is a technical, medicalized one. It hyperfocuses on a pregnant person’s body and pregnancy timing rather than a right to equal citizenship and freedom from discrimination on the basis of sex…

“The ERA barreled through 30 of the 38 necessary state ratifications in the first year after its passage, and ratification seemed inevitable. But after the Roe decision, many conservatives channeled their opposition to abortion toward the ERA, launching a wider fight against women’s rights. Phyllis Schlafly’s STOP ERA movement was born.

“As the religious right’s political influence began to grow, this group of far-right activists chose abortion as a wedge issue to activate their base — but zeroed in on opposition to the ERA as the first concrete campaign to flex their newfound political power. Catholics, evangelicals and Mormons banded together against the amendment. In 1982, when the extended time limit on ratifying the ERA expired, STOP ERA declared victory.

“Many feminists gave up on the fight, falsely thinking at least access to abortion was secure. However, in recent years and with increasing threats to our basic liberties, the ERA has found new life. The amendment stands now as the most straightforward solution to current constitutional woes.

“The ERA has already met all the constitutional requirements for ratification. [see above map] In 2020, Virginia became the 38th and final state needed to satisfy the Constitution’s Article V, which governs the amendment process. With the amendment having passed in Congress by more than the two-thirds vote required, and being ratified by enough states, respected constitutional legal scholars agree that the ERA is now the 28th Amendment. The only step left required by statute says the national archivist has to certify the additional ratifications and publish the amendment in the Federal Register. We are literally one signature away from changing the Constitution.” The clock ticked passed the deadline, the national Archivist failed to certify the result, and the 28th Amendment (the ERA) sits… and sits. Kelly continues:

“Though two years have passed since Virginia’s ratification, the archivist has refused to act, saying a green light is needed from the White House. Yet Harvard professor Laurence Tribe wrote to Congress in March that his ‘conclusion as a constitutional scholar is that the ERA is currently a valid part of the United States Constitution,’ that Congress should recognize it as such and that ‘even if Congress takes no such action the Archivist should publish it as the Twenty-Eighth Amendment.’

“The states that have ratified in the modern era, Nevada, Illinois and Virginia, filed suit against the archivist in 2020 to compel him to recognize their ratifications. Though the states lost in federal district court, they have appealed to the D.C. Circuit, where the case now stands. Depending on the outcome, the case could end up before the Supreme Court. But a strict reading of Article V makes amending the Constitution a political question not for the courts to resolve.”

Does the ERA instead need a do-over with a perilous path in red states? How strongly do voters feel about treating woman equally? Arguments like exposing women to a military draft seem archaic as American women soldiers, sailors and air combatants are routinely deployed today in harm’s way. What are the real reasons woman should be second class citizens? Isn’t it time to fix that?!

I’m Peter Dekom, and I continue to be amazed that there still is resistance to making American women the full equals of American men.