As a US citizen, New Yorker, and international human rights lawyer committed to advancing legal equality globally, I have found recent developments regarding reproductive rights both heartening and alarming.

In light of the 2022 US Supreme Court decision in Dobbs v. Jackson, which overruled Roe v. Wade, the need for federal and 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.

However, by grounding reproductive rights in the right to equality rather than privacy, the federal ERA’s incorporation into the Constitution would help protect these fundamental human rights from being denied. Using the 14th Amendment and its substantive due process clause, which has traditionally been used to argue for privacy rights, including reproductive rights, has proven to be precarious. This approach relies on the often-debated and fluctuating interpretation of substantive due process by the Supreme Court. By instead anchoring reproductive rights in the federal ERA, which explicitly prohibits discrimination based on sex, these rights would be more robustly protected as fundamental aspects of equality.

There has been a distressing regression in women’s rights in recent years. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade, eliminating the federal constitutional right to an abortion. In Arizona, a long-dormant restrictive abortion law was reintroduced and then reversed, leaving women and girls uncertain about their reproductive health rights. These decisions have eroded women’s ability to access sexual reproductive health services and maintain bodily autonomy equally across the nation.

In 2024, women’s rights activists had some victories in Nevada and Pennsylvania, where limitations for state health insurance-funded abortion care were struck down by district and state supreme courts, respectively, offering hope. 

These developments underscore the urgent need for Equal Rights Amendments (ERA) at the federal and state levels. Only constitutional entrenchment of gender equality will 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. It seeks 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.”

The initial 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 constitutional 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….”  

The positive application of state-level equal rights amendments has led to protecting reproductive rights, particularly for economically vulnerable people, and to 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, 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 my understanding that legal frameworks, including international treaties, national constitutions, and 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 worldwide. 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 global community that the US is moving towards compliance. This includes states considering measures on Equal Rights Amendments (ERAs) and reproductive rights, such as my home state of New York, where the ERA will hopefully remain on the ballot this November. These strides will bring the US closer to meeting international standards and shedding its outlier status.

I urge lawmakers and advocates to prioritize the incorporation of the federal ERA and adopting and implementing 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 globally.

[Tara Yarwais edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.