The crooked path from the ERA’s failure to Roe’s end

The overturning of Roe was the result of a process that started not in 2016, but more than 40 years ago.

Roe v WAde
Abortion-rights protesters regroup and protest following Supreme Court's decision to overturn Roe v. Wade, federally protected right to abortion, outside the Supreme Court in Washington, Friday, June 24, 2022 [AP Photo/Gemunu Amarasinghe]

In recent years, nearly everything in the US has turned like buttermilk under the hot summer sun. The US Supreme Court’s decision to overrule Roe v Wade and take away the constitutional right to an abortion is just the latest example.

A few days after the Court’s decision, the rape of a 10-year-old girl gained international attention. Gerson Fuentes, 27, who confessed to the crime, had raped the child on at least two occasions. As if the raping of a 10-year-old was not brutal enough, Ohio’s newly activated anti-abortion law made it so that this child could not seek an abortion in the state, all because she was more than six weeks into her pregnancy.

There is more than enough blame for America’s cultural decline to go around, especially with one-time Senate Majority leader Mitch McConnell and former President Donald J Trump stacking the Supreme Court with three misogynistic anti-abortion ideologues between 2017 and 2020. But the truth is, the US arrived at this precipice long before 2017. In fact, it reached it 40 years ago, when it failed to ratify an amendment to its constitution that would have codified women’s equality.

Demise of the ERA

In 1972, bipartisan majorities in the US House and the Senate passed what should have been the 28th Amendment to the US Constitution. By 1973, the Equal Rights Amendment (ERA) – the key passage of which is that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” – had been ratified by 30 states. In order to be adopted as a constitutional amendment, that number needed to reach 38 by 1982. It failed to do so – revealing both the US’s misogyny and unwillingness to protect the civil rights of half of its citizens and the limits of second-wave, white women’s “universal” feminism.

Although the ERA made no direct mention of reproductive rights, the failure to ratify it helped pave the meandering path to ripping them away. If women had been given equal rights to white men, as the ERA required, that would have included rights over their own bodies and would, therefore, have been the basis for codifying Roe v Wade into law. But thanks to far-right activist  Phyllis Schlafly and her “pro-life, pro-family” STOP ERA (Stop Taking Our Privileges Equal Rights Amendment) rallies, enthusiasm for ERA soon began to wane.

So what exactly was Schlafly’s argument against the Act? “Since the women are the ones who bear the babies … our laws and customs then make it the financial obligation of the husband to provide the support …. And this is exactly and precisely what we will lose if the Equal Rights Amendment is passed,” Schlafly said in a speech just weeks after the Supreme Court’s Roe v Wade decision in March 1973.

Her argument that the ERA would take away rights from (white) “housewives” or “homemakers” and allow (white) men to abandon their duties towards their (white) children gradually eroded support for the ERA. In 1977, Schlafly led a coalition of counter-protesters against the National Women’s Conference in Houston, calling it “the death knell of the women’s liberation movement.” Hers was a 15,000-person rally made up of mostly white families with young children, where the participants “unanimously passed resolutions against abortion, the proposed equal rights amendment and lesbian rights.”

Schlafly had caught on to a key weakness in second-wave feminism that meant that her supporters faced little resistance. As Time Magazine writer and editor Anastasia Toufexis explained in a 1982 article, in second-wave feminism “there was a failure to recruit nonworking and minority women”. For years there has been the assumption among white feminists that professional white women can ultimately represent the interests of all women. This is reflected in the use of “women” without a demographic qualifier, automatically leaving out Black women, women of colour, and working-class white women. The resulting lack of a broad and diverse movement left the door open for Schlafly to recruit stay-at-home mothers and other white women who may have agreed with second-wave feminist ideals, but otherwise felt excluded from the movement. That the feminist and the anti-feminist movements centred themselves on the needs and wants of the “universal” woman ultimately weakened all efforts to expand women’s rights and sealed the fate of the ERA.

In 1999, Schlafly said, “ERA means abortion funding, means homosexual privileges, means whatever else”. It was the “whatever else” that Schlafly and her army of anti-feminist activists focused on back in the 1970s. Their objections included white women serving and dying in military combat roles, unisex bathrooms in public places, and white women seeking full-time jobs.

While abortion would have also been an issue for many white conservative evangelicals, it was not the conservative movement’s main argument against the ERA until it was nearly completely dead. What was always a concern for anti-ERA advocates, though, was government intervention in areas they believed were outside the government’s purview. This included the ERA’s implications for same-sex marriage and the definition of gender itself.

The late televangelist and a founder of the moral majority, Reverend Jerry Falwell said as much in his takes on the ERA. Under the guise of “saving the family,” Falwell helped gather a coalition of white conservatives for a 1980 conference in Dallas to energise their members to vote for conservatives such as Ronald Reagan who later became president.

The key issue for the group was stopping the ERA. “As a matter of fact we believe in superior rights for women … I feel that if the Equal Rights Amendment is ratified, there will be a lot of sorry men off the hook because they have deserted their wives,” Falwell said in his double-talking interview with journalist Bill Moyers. Falwell also said the ERA contained “ambiguous wording – ‘there shall be no discrimination on account of sex’ – that would mean that homosexual marriages could not be disallowed anywhere … and that I feel would be a repudiation of our conviction that the traditional family role is right.”

There is nothing in the language of the ERA attacking the role of women as stay-at-home mothers, the role of fathers as patriarchal providers, or supporting the role of same-sex couples in parenting. But the ERA met its demise at the stroke of midnight on June 30, 1982, anyway.

Although the path from the demise of the ERA to the overturning of Roe is hardly straightforward, there is a nearly straight line between the ERA’s end and the enactment of the Defense of Marriage Act (DOMA) in 1996.

For 16 years, DOMA allowed states to deny marriage recognition to queer couples. With DOMA came another boost to the anti-abortion movement, especially the argument that “traditional homemakers” should be the ones bearing and raising America’s children. It was legislation Schlafly and Falwell wholeheartedly supported, an act President Bill Clinton signed without equivocation, and a measure Hillary Clinton indirectly supported for nearly 20 years.

With Donald Trump running on an anti-abortion platform, he gained the enthusiastic support of Schlafly in the months before her death in September 2016. She even wrote The Conservative Case for Trump with two other authors, released the week she died. Schlafly, along with the 47 percent of white women who voted for Trump in 2016, formed a plurality of this demographic voting bloc, mostly in favour of overturning Roe.

The glide path that has reproductive rights on a bed in an Intensive Care Unit in the US began when a once-no-brainer piece of legislation codifying women’s equality soured under the hot sun of institutional misogyny and whiteness. It is now why a 10-year-old rape survivor can be questioned for getting an abortion across state lines instead of receiving the care and sympathy any child victim of penetrable assault and potentially death-by-pregnancy deserves.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.