How the Equal Rights Amendment Can Harm the Women It Aims to Help

Composed of three short sections, the Equal Rights Amendment, known fondly as the ERA by its supporters, can be summarized into a single sentence: after the amendment rolls out in two year’s time, Congress will have the power to administer equal rights throughout the nation, and these equal rights will not be denied to women.[1] For women in the modern day, equal rights means universal access to reproductive care, equal employment access, and freedom from gender discrimination in education.[2] In the past years, renewed support for the Equal Rights Amendment has made its ratification a genuine possibility, and as Virginia readies itself to vote on the amendment, potentially helping to fulfill the required number of states for ratification, concern has mounted over the backlash the bill could cause against women . While the Equal Rights Amendment poses a victory for women, it also does away with the legal protections they enjoy. Considering that separate state legislative initiatives can and already have created many of the benefits that the Equal Rights Amendment proposes, the question becomes whether women should sacrifice these valued legal protections in order to attain nation-wide equality with their male peers--equality they could instead achieve state-by-state. While national equality holds great value to women, the Equal Rights Amendment is not the catch-all amendment to preserve reproductive care, employment equality, and education parity for women. 

 Reproductive care is a large issue for gender equality, and the Equal Rights Amendment poses a safe haven for it. Abortion rights activists, fearful of a newly conservative Supreme Court, have begun to note the weaknesses of the landmark case Roe v. Wade. They are hyperaware of the fact that the Court could overturn Roe and invalidate all progress made on the abortion rights scene. Activists must also acknowledge the constitutional weaknesses of Roe. Harvard professor Laurence Tribe notes that “behind [Roe’s] verbal smokescreen, the substantive judgments on which it rests are nowhere to be found.”[3] Even liberal Justice Ruth Bader Ginsburg made the suggestion that the passage of Roe was motivated by underlying racist sentiments : “there was concern about population growth...particularly growth in populations that we don’t want to have too many of.”[4] With the addition of two conservative Supreme Court justices who show no issue with overturning decades-old legal precedent, abortion rights activistd have every reason to be concerned about the legal future of Roe.[5] Thus, the possibility for an overturn on Roe, the constitutionally weak arguments behind its decision, and the potentially racist implications of the case have pushed abortion rights advocates to look for other venues through which they can protect abortion rights. 

In recent years, activists have turned to the Equal Rights Amendment to protect abortion rights from the consequences of overturning Roe v. Wade. They cite former U.S. Representative Bella Abzug (D-NY) and her testimony before the all-male Committee of the Judiciary in 1971: “the amendment...eliminates all existing legal distinctions based on sex and rejects the assumption that sex is ever a reasonable legal classification.”[6] Roe v. Wade is based on privacy, and the Equal Rights Amendment can turn this argument on its head by claiming that, instead of the unsteady argument of privacy, laws restricting abortion violate the Equal Rights Amendment as they are restrictive laws geared towards one sex. In theory, it appears that the Equal Rights Amendment provides the legal ground that abortion rights activists are seeking in the event of an overturned Roe. 

However, even the most passionate of abortion rights activists cannot deny that abortion is not mentioned in a single word of  the twenty-two words of the Equal Rights Amendment. While the amendment can be applied to abortion, and is arguably a stronger argument for it than the unsteady “right to privacy” foundation upon which Roe v. Wade stands, it must not be conflated with an explicit endorsement of abortion. Without a clear-cut indication  as to whether or not the Equal Rights Amendment can be applied to legislation restricting abortion rights, judges and justices are free to make their own interpretations.  

Judges in leftist states, such as California, should have no problem interpreting the Equal Rights Amendment as conducive to a pro-abortion argument. California’s governor welcomes women coming into the state to receive abortion care,[7] and recently became one of the first states to allow abortion pill access on all of its public university campuses.[8]In solidly liberal states like California, abortion rights activists can rest easy that judges will favor an interpretation of the Equal Rights Amendment which allows for immediate access to abortions. 

However, such an example does not hold sway for the rest of the country. In May 2019, Alabama passed a controversial bill banning abortion except in cases of rape or incest.[9] Shortly after, Georgia became the fourth state to pass a “heartbeat bill” which bans abortion after a fetal heartbeat is detected.[10] Missouri is currently deadlocked over the fate of its last abortion clinic.[11] Not every state is inclined to approve of abortion, and their judges will undoubtedly make these opinions and views clear if and when the time comes to interpret the Equal Rights Amendment.

Such conservative judges may choose to not strike down abortion laws, citing that the Equal Rights Amendment does not mention abortion a single time in its entire phrasing. However, these judges may decide to interpret the Equal Rights Amendment in a way that would be extremely harmful towards women--specifically, mothers.

Women win child custody cases nearly ninety percent of the time, and win thousands of dollars in divorce and child custody settlements.[12] This is possible because of laws which argue for decisions to be made “in the best interest of the child”, which often translates to giving the mother of the child the majority of custody and child support victories.[13] It should not come as a surprise that women are the usual victors in such cases, considering that mothers are primary caregivers and often have deeper bonds with their children.[14] However, judges may feel pressured by the presence of the Equal Rights Amendment to give more leniency towards absent or neglectful fathers who may not have the best interests of their children at heart. Women will suffer more because of this ruling, which may also lead judges to award less child or spousal support to women in divorce cases because of the Equal Rights Amendment. Thus, single mothers looking to the Equal Rights Amendment to help them could instead be betrayed because of the Equal Rights Amendment’s promise to bring “equality of rights under law.”[15] The Equal Rights Amendment is not the protector that its supporters would have voters believe.

This is due to a fundamental misunderstanding of the Equal Rights Amendment. While activists favoring the passage of the Equal Rights Amendment argue that it exists to protect and uphold equality to both sexes, it does no such thing. All that the Equal Rights Amendment does is do away with legal distinctions between the sexes, which may do much more harm to women than help.[16] For example: the draft. While men are required to sign into the Selective Service at the age of eighteen in order to avoid penalties and receive federal funding for college and healthcare, women face no such obstacle. This legal protection--the ability to choose whether or not to enlist in conflict--is one that would be stripped if the Equal Rights Amendment were to take effect.[17] As the protection marks a legal distinction between the sexes, as males must sign up for the draft and women do not, the Equal Rights Amendment would force women to sign up for the draft, even if they are mothers, college students, or simply pacifists who do not wish to participate in war. 

While some hardline activists may argue that being drafted is a small sacrifice to pay for equality, the truth is that many women do not wish to relinquish their exemption from the draft. In a sex-blind study on injuries sustained by men and women in combat, it was found that women were likely to suffer injuries seven point five times more than their male counterparts.[18] Women also tend to be physically are more overweight and obese, thus being less combat-ready.[19]PTSD, long-lasting injuries, and forcibly participating in such a violent act as war should not be on the minds of young women; rather, it should be the furthest thing from it. In spite of this, legislators remain poised to use the Equal Rights Amendment to promote a sex-blind draft that would force women into situations that will be irrevocably damaging towards their mental and physical health in the name of equality. 

Women’s physical safety is also threatened in terms of public funding. Women receive the majority of federal funding for domestic violence aid after the 1994 Violence Against Women Act, and rightfully so: rates of sexual assault, rape, and domestic violence against American women remain embarrasingly high.[20] However, the Equal Rights Amendment may enforce a new standard that funding for domestic violence must be split equally between men and women, thus lessening the quality of care for female sexual assault and domestic violence victims. While it is true that male victims of sexual assault and domestic violence are underserved (the first men-only domestic violence shelter opened in Arkansas a scant two years ago),[21] ensuring that they are treated well should not come at the detriment of care for women. As it stands, sexual assault and domestic violence rates against women show no signs of steadying, and help must be available for victims suffering from physical, emotional, or pscyhological injury. The Equal Rights Amendment threatens the quality of care that can be made available for female victims who are already marginalized by those who abuse them. Thus, the Equal Rights Amendment continues to strip away legal protections that women enjoy and provide no support for battered women who are in need of help.

 In municipalities, women face another obstacle if the Equal Rights Amendment should pass. Detractors of the amendment claim “it would make it illegal to separate the sexes in bathrooms, college dormitories or school sports”.[22] While these implications are hypothetical and may seem absurd, the recent revival of bathroom bills by transgender activists which would allow for unisex bathrooms in public spaces “sacrifices female safety” and would be further empowered by an Equal Rights Amendment that is interpreted as stripping away differences between the sexes.[23] Women, who by facts of biology are frequently physically outdone by men, value the sanctity of female bathrooms as “safe spaces” that protect them from harm. Women’s bathrooms should be protected and not threatened because for women, “it isn’t a matter of mere discomfort. It’s a matter of safety.”[24] Women’s colleges are also under threat. Colleges such as Barnard and Wellesley with historically all-female admissions would come under scrutiny if the Equal Rights Amendment were to pass. Because of the end of legal separation between the sexes, males would be within their full right to sue schools such as Barnard and Wellesley in order to gain admissions access, thus destroying the sanctified spaces for women that the colleges have attempted to maintain. School sports, which receive federal funding and thus subject to the Equal Rights Amendment, could also come under attack; the separation of sports such as volleyball and tennis into boys’ and girls’ teams could be demolished under the Equal Rights Amendment because of its segregation. 

While these scenarios appear to be wildly hypothetical, they are legally possible if the Equal Rights Amendment is passed. Despite the benefits that the Equal Rights Amendment would confer onto women--like the symbolic status of equality in citizenship enshrined in the Constitution--the amendment is dangerous and unnecessary.[25]

Activists for the Equal Rights Amendment overlook the importance of feminism’s most powerful constitutional weapon: the equal protection clause of the Fourteenth Amendment. In the peak of second-wave feminism, Ruth Bader Ginsburg--then a passionate and empowered lawyer--presented the argument to the Supreme Court that the equal protection clause applied to women, specifically in terms of sex discrimination. Essentially, under the equal protection clause, discrimination on the basis of sex was unconstitutional. The Court agreed, and since then federal mandates like Title IX have upheld that sex discrimination in the workplace, in schools, in the United States was a violation of the Constitution.[26]

Since then, the equal protection clause has been extended to protect women from disparity with their male counterparts. A woman doing the same job as a man cannot have a lower salary; they cannot be excluded from employment because of their sex; and they are entitled to the same education as men. Throughout the 1970s, numerous cases were brought to the court emphasizing the equality of men and women. Reed v. Reed established that preference for men over women in estate administration was unconstitutional.[27] Stanton v. Stanton declared that a Utah state law requiring parents to care for a son under the age of twenty-one and a daughter only up until age eighteen unconstitutional.[28] These cases have cemented the status of women as equals to men; the equal protection clause provides all the protection that women need in order to be truly equal citizens of the United States. 

Clearly, the Equal Rights Amendment is not the safe haven its supporters would have it appear. While at first glance, it appears to be a safe haven and protector of abortion rights, it falls short of its supposed status guardian of reproductive choice; not once does the word “abortion” appear in its three sections. Furthermore, the amendment proposes more harm to women than good, threatening their benefits in selective service, child custody and divorce settlement cases, domestic violence shelters, and legal separation from men in bathrooms, colleges, and sports. Finally, the equal protection clause of the Fourteenth Amendment does a world of good for women in the sense that it affirms women’s status as citizens of the United States and equal members of society, entitled to all the protections of the law. The Equal Rights Amendment poses a threat to women’s benefits while failing to deliver on the rights its supporters claim it ensures; thus, the Equal Rights Amendment should not be brought to the ratification table.

[1] "FAQS." Equal Rights Amendment. https://www.equalrightsamendment.org/faqs.

[2] “Women's Rights.” American Civil Liberties Union, www.aclu.org/issues/womens-rights#current.

[3] Charlotte Lozier Institute. "Reviving the Equal Rights Amendment to Keep Abortion Legal." Charlotte Lozier Institute. https://lozierinstitute.org/reviving-the-equal-rights-amendment-to-keep-abortion-legal/#_edn2.

[4] ibid.

[5] Lemieux, Scott. "Yes, Roe Really Is in Trouble." Vox. May 15, 2019. https://www.vox.com/2019/5/15/18623073/roe-wade-abortion-georgia-alabama-supreme-court.

[6] Equal Rights for Men and Women 1971: Hearings, Ninety-Second Congress, First Session, on H.J. Res. 35, 208, and Related Bills ... and H.R. 916 and Related Bills .. U.S. G.P.O., 1971.

[7] "Newsom to Women Seeking Abortions: California Welcomes You." Los Angeles Times. May 31, 2019. https://www.latimes.com/politics/la-pol-ca-gavin-newsom-california-abortion-restrictions-20190531-story.html.

[8] Mosley, Tonya, and Allison Hagan. "California Passes Bill On Public Universities And Abortion Pills." California Passes Bill On Public Universities And Abortion Pills | Here & Now. September 20, 2019. https://www.wbur.org/hereandnow/2019/09/20/california-public-colleges-abortion-pills.

[9] Ibid.

[10] Ibid.

[11] North, Anna. "Missouri Could Lose Its Last Abortion Clinic. Its Fate Will Be Decided This Week." Vox. October 28, 2019. https://www.vox.com/identities/2019/10/28/20932235/planned-parenthood-missouri-abortion-clinic-roe-wade.

[12] ""An Amendment That Requires Both Sexes to Be Treated Equally": A Men's Rights Activist Voices Support for the ERA." HISTORY MATTERS - The U.S. Survey Course on the Web. http://historymatters.gmu.edu/d/7028/.

[13] ibid.

[14] Nolo. "Divorce For Men: Why Do Women Get Child Custody More Often?" www.divorcenet.com. July 12, 2016. https://www.divorcenet.com/resources/divorce/for-men/divorce-for-men-why-women-get-child-custody-over-80-time.

[15] ibid.

[16] "10 Reasons to Reject the Equal Rights Amendment." Illinois Family Institute. October 30, 2017. https://illinoisfamily.org/uncategorized/10-reasons-reject-equal-rights-amendment/.

[17] ibid.

[18] Dickstein, Corey. "Should Women Register for the Draft? Experts Debate as Trump Administration Challenges Court Ruling." Stars and Stripes. https://www.stripes.com/news/us/should-women-register-for-the-draft-experts-debate-as-trump-administration-challenges-court-ruling-1.578544.

[19] "Overweight & Obesity Statistics." National Institute of Diabetes and Digestive and Kidney Diseases. August 01, 2017. https://www.niddk.nih.gov/health-information/health-statistics/overweight-obesity.

[20] "Federal Funding to Address Violence against Women." Womenshealth.gov. April 01, 2019. https://www.womenshealth.gov/30-achievements/12.

[21] "The Country's First Shelter For Male Domestic Violence Survivors Sheds Light On Dangerous Misconceptions About Abuse." Bustle. https://www.bustle.com/p/the-countrys-first-shelter-for-male-domestic-violence-survivors-sheds-light-on-dangerous-misconceptions-about-abuse-66995.

[22] Chira, Susan. "Do American Women Still Need an Equal Rights Amendment?" The New York Times. February 16, 2019. https://www.nytimes.com/2019/02/16/sunday-review/women-equal-rights-amendment.html.

[23] Shrier, Abigail. "Opinion | The Transgender War on Women." The Wall Street Journal. March 26, 2019. https://www.wsj.com/articles/the-transgender-war-on-women-11553640683.

[24] Triller, Kaeley. "A Conservative Defense of Women's Rights." National Review. January 06, 2017. https://www.nationalreview.com/2017/01/conservatives-should-defend-women-oppose-transgender-bathrooms-showers/.

[25] ibid.

[26] Salam, Maya. "What Is the Equal Rights Amendment, and Why Are We Talking About It Now?" The New York Times. February 22, 2019. https://www.nytimes.com/2019/02/22/us/equal-rights-amendment-what-is-it.html.

[27] "{{meta.pageTitle}}." {{meta.siteName}}. https://www.oyez.org/cases/1971/70-4.

[28] "Stanton v. Stanton, 421 U.S. 7 (1975)." Justia Law. https://supreme.justia.com/cases/federal/us/421/7/.