Could an ERA save abortion rights? Don’t count on it

The leaked draft opinion in Dobbs v. Jackson’s Women’s Health Organization portends the Supreme Court will overturn  Roe v. Wade, leading to a renewed effort to adopt an Equal Rights Amendment (ERA) to the U.S. Constitution to protect abortion rights. But is that the case? Not necessarily so. State ERAs hardly have protected abortion rights — and, in fact, it is not clear they have done much for women’s rights in general.

In “The Failed Promise of State Equal Rights Amendments: How the Language of the Law Affects Women’s Rights,” recently published in the Women’s Rights Law Reporter, my co-author and I examine the impact of state ERAs on women’s rights. We identified 26 states that have ERAs, looked at litigation under them, and compared the status of women’s rights in these states to those lacking ERAs across several dimensions.

First, just consider some of the states that have adopted their own ERAs. These include California, Connecticut, Illinois and Massachusetts. All are liberal, Democratic states; no surprise there. But in this list, too, are states such as Louisiana, Texas and Wyoming — conservative, Republican states hardly favorable to abortion rights. And Minnesota and New York, liberal and Democratic states by most accounts, lack ERAs.

Our analysis looked at all the litigation brought under state ERAs between 1970 and 2020, a total of 703 cases. Of these, not all addressed gender or sex discrimination. Every ERA in the United States singles out gender (or “sex”) as a class; however, many states have decided to include more classes of people under ERA protection. We also identified and analyzed these cases. There were only 185 cases that did focus on sex discrimination in 50 years across 26 states — fewer than four cases per year. One of our conclusions is that state ERAs are significantly underutilized, in part because attorneys are not trained in state constitutional law, or the fees associated with state-level claims often do not make it worthwhile.

Among those 185 cases, we classified the litigation outcomes across eight dimensions, looking at whether the court decisions benefitted women’s rights, helped men, or produced other results.  Only 40 of those decisions favored women’s rights; 34 potentially harmed women’s rights. In some cases, male litigants brought cases that benefitted them. On balance, state ERAs barely benefitted or furthered women’s rights, and in many cases were counterproductive.

Turning specifically to abortion, we compared states with and without ERAs, in terms of how they protected reproductive rights. Of the 185 cases litigated under state ERAs, only 11 had to do with abortion and of those, only four supported or expanded abortion rights. More generally comparing states with ERAs to those without, there seems to be some connection between more restrictive abortion laws and the absence of an Equal Rights Amendment. However, we linked abortion policies to a measure of how liberal or conservative a state may be. We found that political ideology, and not the presence of an ERA, better explains restrictive abortion laws.  

Across many other dimensions, the research demonstrated that state ERAs have done little to address issues such as gender pay inequities. We found states that had ERAs generally had higher average incomes, education levels, and life expectancies than states without such amendments. But that pattern persisted well before the ERAs were adopted and, since 1990, the change across all three of these variables, and across all the states, followed the same pattern.

What the research shows, statistically and from a litigation standpoint, is that state ERAs really have not made much difference in protecting women’s rights, including abortion. At best, their adoption has been symbolic, not substantive. What this suggests is that efforts to protect women’s rights would be better spent on specific legislation, such as laws protecting the right to abortion. The efforts of women’s rights advocates who have committed themselves to passing state ERAs have failed to produce the results they likely wanted.

Of course, a national ERA might yield different results. Yet, if the analysis of state ERAs is any indication of what might happen nationally, there is little evidence that an equal rights amendment alone will protect abortion rights or other rights for women.

David Schultz is a professor of political science at Hamline University in St. Paul, Minn. Follow him on Twitter @ProfDSchultz.