The 28th Amendment Is Right At Our Fingertips

This Friday will mark 52 years since Congress approved the Equal Rights Amendment and sent it to the states for ratification. For more than half a century, the ERA has languished in political limbo — first as a backlash slowed the ratification process, then as states began withdrawing their approval, and then further as the time limit Congress placed on it elapsed, was renewed, and elapsed again. Despite the work of pro-equality activists and the numerous issues around women’s autonomy over the intervening decades, the ERA has rarely been raised as either a problem or a solution. But if we are brave enough and daring enough, this anniversary could see us recognize the ERA for what it is: the 28th Amendment to the Constitution.

There are many people who will say that this is impossible: too much time has passed, too many states have withdrawn; it’s too volatile or divisive to be politically viable. These people will bring up the unprecedented Congressional time limit, or the rescission movements of five authorizing states, or the fact that the Roberts Court is full of ideologues committed to dismissing anything that might let the majority of people run this country. They will ask us to give up before we even try. They are wrong.

There has never been a better moment to revive the ERA, to debate its value and merit, to tussle over what it means to amend the Constitution, or to challenge the corrupt Roberts Court over how this compact should be interpreted. In the almost two years since the Dobbs decision upended the safety and rights of reproductive freedom for more than half the country, activists have gotten victories protecting or enshrining the right to an abortion almost every time it has been on the ballot. It doesn’t matter if the state votes for Republicans or Democrats at the federal level or in presidential elections: Majorities everywhere want the decision of how or when to end a pregnancy to stay between the pregnant person and their healthcare provider. Full stop.

In an attempt to tap into this energy, the octogenarian Catholic white man who leads the Democratic Party has offered the restoration of Roe through Congressional majorities. It’s a nice appeal, but a hollow one: Not only does such legislation have to contend with the Senate filibuster, the conservative judiciary has already signaled that they will ignore or nullify that law by granting “personhood” to zygotes, as has happened in Alabama, shutting down IVF clinics in the state. Further, Republicans are already lining up legislative and legal attacks on contraceptives, fertility treatments, and other reproductive health decisions. Even if the Supreme Court doesn’t find a way to put a hold on the federal codification of Roe, the law will simply replicate the reality of the status quo ante: Some people get reproductive rights if they live in the right places. Everywhere else will loophole and deny and dismantle any effort to let people choose when, how, or if they will reproduce — and prevent them from anything that would let them leave.

So we need to go above the courts and put explicit protection into the Constitution itself. The state has no right to interfere in the bodily autonomy of its citizens — a truth known and acknowledged for cisgender men but denied to every other sex. If we confirm the ERA as ratified, we have secured for everyone the assumptions that cisgender men have always taken for granted. Even more compelling, the Roberts Court already ruled in Bostock v. Clayton County that discrimination against LGBTQ+ individuals is a form of sex discrimination. Confirm the ERA, and we confirm protections for gender expression and sexual orientation beyond the bitching of Sam Alito and Clarence Thomas.

But okay, that’s the effect; it will still probably be hellacious to get it implemented, right? Well, here is where the call to confirm the ratification becomes essential to actually having it hold up. At this moment, it is entirely and completely up to Congress whether any of the complicating factors around the amendment are valid. It was Congress who passed the legislation adopting a time limit; it was Congress that extended that time limit; it’s Congress that would have to acknowledge the rescissions of the states; it’s Congress that would have to pass legislation to affirm the 2020 ratification with the acceptance of Virginia’s paperwork. And wouldn’t you know, Congress is up for election this year.

As the first branch of government, Congress is supposed to represent popular will more than any other, and if Democrats campaign on the ERA, any questions about its validity will be solved by whether they get the majorities necessary to affirm it. Over and over again, the courts have said that discrepancies in the amendment process are a political question, so we have the power to provide a political answer. Right now, people assume that Congress is bound by the time limit — but that limit was never placed in the text of the amendment, like it was for the 18th and 22nd Amendments, so there’s no reason Congress can’t simply pass a new time frame for ratification at will. Right now, people assume that states can withdraw their ratifications — but such a thing has happened before, and those withdrawals were simply dismissed by a majority of Congress when they affirmed the 14th Amendment to the Constitution. Moreover, there are no unilateral powers in the Constitution; Congress requires a two-thirds majority to send an amendment to be ratified, so a two-thirds majority should be required to acknowledge a rescission — and that if it’s even valid through state law. If we, the people of the United States, elect a Congress for the purpose of confirming the Equal Rights Amendment, then it will be very hard and dangerous for the dwindling legitimacy of the Roberts Court to argue otherwise.

But for this to work, Democrats have to ask us to make it happen. They have to affirm the importance of the Equal Rights Amendment; they have to claim the power to validate it. This can’t be a line at the bottom of some campaign literature, or a throwaway in a popular speech, or buried deep in the party platform. The ERA has to be the issue that every single Congressional race — House and Senate — focuses on. It has to be on airwaves and across the internet constantly. The benefits need to be touted and shouted and emblazoned in so many places and in so many ways that people know exactly what the costs of voting otherwise will look like. There can be no question that one party will fight for the equality of everyone, while the other will demand the subordination of the many to the few.

This Friday marks 52 years that the ERA has been waiting. Maybe, if we’re willing, it will be the last.