Indeed, in all three states that recently ratified the E.R.A., ratification debates emphasized the continuing need for law and public policy to address remaining manifestations of gender inequality — even before Dobbs. These include pay inequity, often attributable to workplace disadvantages women face because of pregnancy, motherhood and caregiving obligations, and the persistence of sexual assault and harassment.
The Dobbs decision effectively exposes millions of American women to laws that force them to bear children, even those conceived through sexual assault, in states that do nothing to alleviate the burdens, disadvantages and risks stemming from both pregnancy and motherhood. It demonstrates the Supreme Court’s pinched view of the 14th Amendment’s commitments — essentially freezing the amendment’s meaning at the moment of ratification in 1868, before women could vote. Dobbs has further emboldened some judges to revive enforcement of 19th-century laws including the Comstock Act, which were intended to control women’s bodies before the law regarded women as equal citizens.
Congress has already begun to carve a path in response to Dobbs in the context of ordinary legislation. In December 2022 it passed the Respect for Marriage Act to protect same-sex and interracial marriage following Justice Thomas’s ominous Dobbs concurrence suggesting that some constitutional protections for marriage equality should be re-examined. Congress also enacted the Pregnant Workers Fairness Act, requiring employers to provide reasonable accommodations to pregnant workers.
A forceful push for the E.R.A. is critical not just for the values it would confirm in our Constitution. It could also give Americans a taste for the constitutional amendment process, which has come to feel much too out of reach and would enable the people through their elected representatives to challenge the constitutional direction taken by the Supreme Court.
Congress should activate its full powers as the director of the amendment process and, in the name of both sex equality and the possibility of making “a more perfect union,” reacquaint Americans with the possibility of changing the Constitution.
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Julie C. Suk, a law professor at Fordham, is the author of “After Misogyny: How the Law Fails Women and What to Do About It” and “We the Women: The Unstoppable Mothers of the Equal Rights Amendment.”
