Law Prof: Securing Abortion Rights Means Finalizing the ERA

When Roe vs. Wade was decided in 1973, it was rooted in rights that flow from privacy — not equality. As the country has now seen in the leaked Supreme Court draft ruling, that right to privacy is about to be demolished.

Justice Samuel A. Alito Jr. bemoans in the draft opinion that Roe “was remarkably loose in its treatment of the constitutional text,” basing the right to abortion on the right to privacy when neither is “mentioned” in the Constitution. While we can’t change the composition of the court poised to overturn Roe, we can change the text they are charged with interpreting. It’s time to finalize the Equal Rights Amendment and enshrine gender equality.

The right to privacy was first articulated in a 1965 Supreme Court case, Griswold vs. Connecticut, concerning the state’s decades-old law banning contraception. Lawyers defending married couples’ use of contraceptives argued that the right to reproductive healthcare existed under equality in the Constitution.

But, in part because there was no explicit equality guarantee in the Constitution, Justice William O. Douglas instead cobbled together guarantees within the Bill of Rights (the 1st, 3rd, 4th and 9th Amendments). The court ruled to permit contraception, affirming that while privacy was not an explicit constitutional guarantee, it is found in the penumbras, or shadows, of other existing rights.

Less than a decade later, in 1972, the ERA passed in Congress with little opposition from either party. The House approved the ERA 354 to 23, and just eight senators voted against it. But it had still not been ratified by 1973 when Roe came down. With the Constitution still lacking an explicit right to equality, the Roe decision is a technical, medicalized one. It hyperfocuses on a pregnant person’s body and pregnancy timing rather than a right to equal citizenship and freedom from discrimination on the basis of sex. Many, including Ruth Bader Ginsburg, have criticized the decision to base the right to abortion on privacy, not equality.