A host of women lawmakers is fervently working to add the Equal Rights Amendment (ERA) to the U.S. Constitution and make sure the dreams of suffragists who fought for women’s right to vote and have bodily autonomy actually comes to fruition over a century later.
“It’s one of the most important projects I work on,” U.S. Senator Kirsten Gillibrand (D-N.Y.) told the AmNews. “We’ve seen how the lack of equality in the Constitution has harmed women.”
The Supreme Court ruling in the Dobbs v. Jackson case in 2022—which overturned 1973’s Roe v. Wade—fundamentally dissipated any notion that a woman’s federal right to legal abortion was safe, immediately prompting a movement to recognize the ERA as the Constitution’s 28th Amendment. The amendment’s current language states that a person cannot be discriminated against based on their sex. That idea translates for many to protection of reproductive freedoms.
Republicans and conservative groups have positioned themselves to be ideologically against equality in order to limit access to abortion, Gillibrand said. “It’s become more urgent than ever and it’s become more relevant than ever. Women assumed they had equality. They assumed they had a right to privacy and they assumed precedent was enough to protect them,” the senator said. “But they’re not. So we need a constitutional amendment that guarantees equality for women.”
The suffragist movement began in earnest when activist Alice Paul, who founded the National Woman’s Party (NWP), and others lobbied and picketed the White House in 1917. Though the movement was not without its flaws—Paul and several early suffragists openly expressed anti-Black sentiments at the time— the overall goal to win social, political, and economic equality for women and be recognized in the Constitution as full citizens still prevailed, according to the Belmont-Paul Women’s Equality National Monument in D.C.
In 1923, the NWP proposed the ERA at a convention in Seneca Falls, New York. First called the Lucretia Mott Amendment, after abolitionist Lucretia Coffin Mott, it stated that “men and women should have equal rights in the U.S., and everywhere subject to its jurisdiction.” The language was rewritten in the 1940s and renamed the Alice Paul Amendment, said Belmont-Paul’s Parks Ranger Susan Philpott. By the 1950s, it was renamed the ERA.
To amend the Constitution, it must pass Congress with a two-thirds majority and subsequently be ratified by three-fourths of the states. The ERA passed Congress in 1972 but it was given a ‘time limit’ in its introduction for ratification. It was supposed to have at least 38 states ratify the amendment within seven years, but by 1977, it had 35 states. Congress then extended the time limit for another three years with a “simple majority” as opposed to the two-thirds majority needed, Philpott said.
No other states ratified the ERA until 2017, even though the extension expired in 1982. The 38th state to ratify the ERA was Virginia in 2020.
“While in the Virginia General Assembly, I was part of a multigenerational group of Black women lawmakers who came together to make Virginia the 38th and final state to ratify the ERA,” said U.S. Rep Jennifer McClellan, who is the vice chair of the first-ever Congressional ERA Caucus and the first Black woman to represent Virginia. “It was poetic justice that our Commonwealth—the birthplace of American democracy and the birthplace of American slavery—was the state to bring the ERA across the finish line. It was a historic moment and the culmination of centuries of work by thousands of women across the nation.”
McClellan noted that the fight for gender equality is an extension of a movement propelled by abolitionists, the Civil Rights Movement, the Suffrage Movement, and the Women’s Rights Movement, and Black women have a legacy of being on the frontlines of change despite often being the last to benefit from the work. In 2023, McClellan signed a discharge petition for H.J.Res.25 to remove the arbitrary ratification deadline for the ERA and enshrine it into law.
“Black women, including the founders of my sorority, Delta Sigma Theta, Inc., in their first public act in 1913, marched for the right to vote—even when told to march in the back. Black women marched for civil rights in1963 from the U.S. Capitol to the Lincoln Memorial—even when not given a speaking role,” McClellan said. “Throughout the course of history, Black women have been integral to the fight for equality. We laid the groundwork for progress while overcoming tremendous obstacles. We did our part and continue to do so.”
The timeline of Virginia’s ratification in 2020 opened up a can of legal worms. Conservatives have argued the deadline has long passed, while the liberal side has argued that the deadline has no legal standing because the seven-year time limit was in the preamble or “prefatory language” before the actual amendment. Historically, there have been amendments with timelines written in their language and outside of it, and others that have taken centuries to pass despite a ruling in 1921 stating that it should be done in a “timely manner.”
“We don’t believe that the Trump-era office of legal counsel memorandum is valid,” Gillibrand said. “That memorandum said it took too long for this Constitutional amendment to come to fruition. We don’t believe Congress has a right to set deadlines for Constitutional amendments. And if they did, at minimum it would have to go into the amendment itself.”
At present, national ERA advocates are calling on the federal government’s national archivist Colleen Shogan, an appointee of President Joe Biden sworn into office in 2023, to sign and publish the amendment so it can be added to the Constitution. Shogan’s office released a supremely legalese statement in 2022, basically citing the 2020 Trump-era opinion as the reason the ERA’s adoption couldn’t be certified and also acknowledging that Congress is “entitled to take a different view” so the legal opinion isn’t an “obstacle” for them to act.
“We do not have anything additional to add at this time beyond this previously issued statement,” the National Archivist media office in response to an AmNews inquiry.
Meanwhile, the state of New York has become somewhat of a battleground when it comes to passing the ERA at the state level.
For one, it’s much more robust in its language than the national amendment. The state constitution version of the ERA protects people based on “race, color, creed or religion” while the proposed federal amendment adds in protections against discrimination based on “gender identity, sexual orientation, gender expression, pregnancy, pregnancy outcomes and reproductive health care.”
The state legislature has to pass an amendment twice before it’s put on a ballot for voters. Support for the amendment picked up after 2022, and it was on the ballot for this year’s general election in November 2024.
However, State Supreme Court Justice Daniel Doyle threw cold water onto the plans when he ruled that state lawmakers failed to follow proper procedures. Then Republican Assemblymember Marjorie Byrnes, representing areas near Rochester, filed a lawsuit to keep the constitutional amendment off the ballot. As of May, the state constitutional amendment is in limbo until the case is heard by an appeals court.
“The ruling by Judge Doyle is a temporary setback. I am confident that the decision will be overturned on appeal and voters will have the opportunity to decide in November whether or not they want to protect reproductive rights in New York State,” Assemblywoman Latrice Walker said in a statement. “The consideration of this amendment to the state Constitution comes at a critical time. The Supreme Court overturned Roe v. Wade in 2022, setting off a domino effect of states proposing or passing legislation to restrict fundamental protections. At the same time, nearly a dozen states have introduced or successfully placed on the ballot similar amendments to protect abortion rights. I look forward to voting in the affirmative right here in New York in November.”
[updated May 18]
Ariama C. Long is a Report for America corps member and writes about politics for the Amsterdam News. Your donation to match our RFA grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.