Although women have had the right to vote for 100 years, thanks to the 19th Amendment, that hasn’t stopped state legislatures and Congress from chipping away at our freedoms.
Last year alone, nine states passed laws that restrict abortion, some prohibiting it after six to eight weeks of pregnancy, which is about how long it takes most women to realize they’re pregnant in the first place. Access to birth control is also at risk after President Trump made it possible for employers to apply for a religious exemption to deny contraception coverage through their insurance plans.
The list goes on. Congress failed to pass the Violence Against Women Act in 2019 because Republicans opposed a provision that would have prohibited some stalkers and abusers from owning or buying firearms. Meanwhile, the Trump administration has weakened protections against domestic abuse by diluting its definition to only include physical harm that constitutes a felony or misdemeanor. This means all other forms of domestic violence, including psychological abuse and financial abuse, no longer fall under the Department of Justice’s definition.
It’s clear that, in many cases, the courts will ultimately decide what can be enforced under the US Constitution. But our rights should not be subject to the changing whims of judges. That’s why we need to finally ratify the Equal Rights Amendment, something we’ve been fighting for since the early 1970s. Without it, the Constitution does not explicitly guarantee the same rights to men and women. In fact, the only equal right currently guaranteed to both sexes under the Constitution is the right to vote.
The ERA’s aim is simple and straightforward: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It was passed by Congress in 1972, but that wasn’t enough: Constitutional amendments require approval by three-quarters of the states — or 38 out of 50 — before they can take effect. Congress set a deadline of 1979 for meeting that goal, then later extended it to 1982. The ERA failed to gain enough support by that year, in part due to an aggressive Republican opposition campaign led by activist Phyllis Schlafly, and then lay dormant for decades. (Massachusetts ratified it three months after Congress passed the ERA in 1972.)
But the amendment got a third chance in 2017, when a record number of women ascend-ed to Congress and state legislatures, and #MeToo exploded into the national conversation. Nevada unexpectedly passed the measure in 2017. A year later, Illinois passed it with bipartisan support. In January 2020, in a big victory, it passed in Virginia, the 38th state, seemingly paving the way for adoption to the Constitution.
Nevada, Illinois, and Virginia continued pushing for ratification despite ERA opponents insisting that it could no longer be legally ratified because not enough states signed on before the 1982 deadline. Opponents are also quick to point out that five states — Idaho, Kentucky, Nebraska, Tennessee, and South Dakota — have rescinded their ratification, although the question of whether that is legally binding is under debate.
Even before Virginia passed the measure, opponents began taking legal steps to block its adoption. Attorneys in several states filed a lawsuit in December contending that those five states should not be counted in the 38 states needed for ratification. The National Archives and Records Administration asked the Justice Department to issue an opinion on whether the ERA can be ratified, and it concluded that no state can ratify after the congressional deadline. The NARA has indicated it won’t certify the amendment “unless otherwise directed by a final court order.”
Now Massachusetts women are fighting to push the ERA forward in a lawsuit filed in US District Court in Boston. Wendy Murphy, an adjunct professor of sexual violence law at New England Law Boston, filed suit January 7 on behalf of state resident Katherine Weitbrecht, nonprofit Equal Means Equal, and a group of teenagers in Quincy who call themselves The Yellow Roses. They argue that the 1982 deadline is unconstitutional and that states cannot rescind their ratifications. A response from the government is expected in early March, Murphy says. Their lawsuit could be the catalyst for a court ruling that the ERA should be ratified.
The lawsuit highlights the fact that women suffer disproportionately higher rates of violence because we do not enjoy full constitutional equality. One of the plaintiffs, Weitbrecht, was allegedly choked by a man with a history of making derogatory comments about women, Murphy says. But sex is not a protected class category in hate crimes.
This is concerning because nearly 1 in 2 women experience some form of sexual violence other than rape in their lifetime. Yet fewer than 1 in 4 sexual assaults are reported to police, according to the Rape, Abuse & Incest National Network, often because women fear retaliation or believe the police won’t do anything to help them.
Opponents of the ERA say the only reason advocates are pushing for the amendment now is to safeguard abortion rights. But they’re wrong. The ERA would likely protect Roe v. Wade, yet provide additional, essential protections for women, including safeguards against workplace discrimination and real defense against sexual assault and domestic violence.
Women deserve better from the Constitution that’s supposed to protect our rights.
Lisa Rabasca Roepe is a journalist who writes about women in the workplace. Send comments to email@example.com.