By Antonia Kirkland, Global Lead on Legal Equality and Access to Justice, Equality Now
Today the Arizona State Senate will vote on whether or not to stop the reinstatement of an 1864 law that severely restricts access to abortion.
As an international human rights lawyer, US citizen, and New Yorker committed to advancing legal equality globally, recent developments regarding reproductive rights have both heartened and alarmed me.
In just a few short years, we have witnessed a tragic rollback of women’s hard-won human rights, exemplified by rulings like Dobbs, and the recent setback in Arizona, which stripped away how women across the country can equally access sexual reproductive health services and bodily autonomy.
Recent victories in Nevada and Pennsylvania, where limitations for state health insurance-funded abortion care were struck down, offer hope. They also underscore the urgent need for a comprehensive Equal Rights Amendment (ERA) at the federal and state levels to establish irrefutable protections for us all.
What is the ERA, and what does it have to do with abortion rights?
The federal ERA is a simple constitutional amendment, proposed to end sex discrimination and guarantee the rights of all people within the most important legal document in the United States.
The main text of the ERA simply and eloquently states, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Despite fulfilling the national requirement of 38 state ratifications, advocates are still having to call on the President and the Federal Archivist to incorporate and publish it as the 28th Amendment to the Constitution so that everyone can enjoy it its protections.
In light of the 2022 US Supreme Court decision in Dobbs v. Jackson, which overruled Roe v. Wade, the need for federal as well as state Equal Rights Amendments (ERAs) has become increasingly crucial. The decision emphasized that federal constitutional protections extend only to rights deeply rooted in the nation’s history and traditions.
By grounding reproductive rights in the right to equality, however, rather than privacy, the federal ERA’s incorporation into the Constitution would help protect these fundamental human rights from being denied.
The recent decision by the highest state court in Arizona allowing for the possibility of the reinstatement of a draconian law from 1864 severely restricting abortion access underscores the vulnerability of these rights without explicit legal protections. The court’s decision stated, “Because the federal constitutional right to abortion that overrode [this statute] no longer exists, the statute is now enforceable….”
There is hope
The positive application of state-level equal rights amendments has led to the protection of reproductive rights, including and particularly for economically vulnerable people, as well as state-level accountability.
Nevada’s recent judicial ruling striking down limits placed by the state on Medicaid for abortion provides reassurance, demonstrating the power of state constitutional equality provisions to serve as a defense against state agency overreach and limitations on reproductive rights. Similarly, Pennsylvania’s Supreme Court decision striking down the discriminatory legislation that restricted Medicaid coverage of abortion is a testament to the vital importance of state-level protections that can be derived from an equal rights amendment.
This election year, with just a handful more co-sponsors needed to bring the federal ERA to a vote in Congress affirming its validity and several states considering ballot measures on both ERAs and reproductive rights – including my home state of New York – it is time to take action to help secure reproductive rights and substantive equality. We also need to ensure that any sex discriminatory acts will be challenged and reviewed with more scrutiny at the judicial level.
Working as a lawyer across the globe has reinforced for me the simple fact that legal frameworks, from international treaties to national constitutions to customary law, play a crucial role in safeguarding fundamental rights. The protection of all women’s human rights, including the right to sexual and reproductive health and rights, requires a multi-faceted approach that encompasses both state and federal levels.
The US has international legal obligations to guarantee equality and reproductive rights
Women’s struggle for reproductive autonomy is not confined to any one nation, and constitutions must reflect international human rights law and standards, including the right to sex equality, broadly defined.
At the end of 2023, for example, the UN Human Rights Committee strongly recommended that the United States, which is a State party to the International Covenant on Civil and Political Rights, “should redouble its efforts to guarantee protection against sex and gender-based discrimination in its Constitution, including through initiatives such as the Equal Rights Amendment.”
The Human Rights Committee also strongly recommended to the US that it, “should take all measures necessary at the federal, state, local and territorial levels to ensure that women and girls do not have to resort to unsafe abortions that may endanger their lives and health.” The Committee elaborated that specific measures the US should take should include providing legal, effective safe, and confidential access to abortion throughout the US territory, ending the criminalization of abortion – including for medical staff, eliminating inter-state access bans on abortion, and expanding access to medication abortion.
It’s time to prioritize equality in the US
Every year, the United States hosts an annual international gathering at the United Nations to discuss the state of gender equality around the world. Ironically, without constitutional equality or full access to sexual reproductive health, the US is noncompliant with international standards and must implement these measures to finally be on par with 85% of the rest of the world where these measures already exist.
Next March at the 69th session of the Commission on the Status of Women (CSW), we should be able to proclaim to the world that the US Constitution, as well as the New York State Constitution, is finally compliant and that the US is no longer an outlier.
I urge lawmakers and advocates to prioritize the incorporation of the federal ERA and the adoption and implementation of state ERAs to help ensure that sex equality and reproductive rights as universal human rights are upheld, throughout the United States. Anything less would be a disservice to, and a violation of, the principles of equality, non-discrimination, justice, and human dignity that we strive to uphold on a global scale.
Learn more about why we need the Equal Rights Amendment