On Women’s Equality Day, feminist attorneys are trying past abortion to think about how state and federal ERAs might remodel being pregnant, maternal well being, work, caregiving and household life.
This essay is a part of FEMINIST 250: Democracy’s Feminist Future, a particular Ms. collection inspecting the subsequent chapter of American democracy by way of a feminist lens. As the nation marks its 250th anniversary, the collection faucets the thought leaders of right now to debut game-changing concepts for the subsequent 250 years.
On Women’s Equality Day, the unfinished combat for constitutional equality extends far beyond abortion. State equal rights amendments—and, finally, a sturdy federal ERA—might reshape how the regulation treats being pregnant, motherhood, work and household life.
Ming-Qi Chu, deputy director of the Women’s Rights Project at the ACLU, says state ERAs might be used to counter discrimination in opposition to pregnant girls. Chu makes use of the instance of a Tennessee case final 12 months the place a pregnant lady was denied prenatal care as a result of she was single.
“If they’re only asking about marriage in the specific context of pregnancy, then they’re treating pregnancy differently from other medical conditions,” she says. “And the other theory [of discrimination] is that they’re asking this question because they want women to be married before getting pregnant, enforcing the stereotype that only married women should receive prenatal care or should have pregnancies that are recognized.”
University of California, Berkeley, regulation professor Khiara M. Bridges believes the federal ERA might be used to pressure states to handle excessive charges of maternal mortality.
The U.S. has the highest rate of maternal deaths of any high-income nation, and Black girls have the highest maternal demise fee of any group, three to 4 instances the fee of white girls.
States that ban abortion have the highest charges of all.
Lack of entry to medical insurance and high quality medical care drives these numbers, compounded by the undeniable fact that in contrast to most different international locations, the U.S. doesn’t assure postpartum care, the interval when the majority of pregnancy-related deaths happen.
Additionally, all different high-income international locations assure paid go away for brand new moms, and many European international locations present in-home visits from nurses or midwives in the first weeks after start to examine for postpartum despair and breastfeeding points. France even offers new mother and father a grant of greater than 1,000 euros for preliminary prices of diapers, garments and child components.
The U.S. offers none of those vital helps, leaving girls to navigate the stress and isolation of recent motherhood alone.
“I can imagine a robust ERA that says that it is a violation of our equality rights to die or to face the risk of dying from something that one of the wealthiest nations in the world should have rendered as an anomaly, as an exceptional circumstance that just doesn’t happen here anymore,” Bridges says, including, “The ERA can give us a real basis for making more intersectional arguments about equality, and pushing courts to consider the intersection of sex discrimination and race discrimination in ways that they have been unwilling to do until now.”
Using state ERAs, feminist attorneys might problem many state insurance policies that drive maternal mortality and morbidity, together with refusals to develop Medicaid underneath the Affordable Care Act and restrictions on reproductive healthcare and abortion that endanger girls’s lives.
Some state ERAs, like these in New York and Washington, go additional than others by making use of not solely to legal guidelines that explicitly discriminate primarily based on intercourse but in addition to insurance policies that disproportionately hurt girls and women. In these states, ERAs might be used to problem a variety of insurance policies, from drug testing pregnant girls with out knowledgeable consent to criminally prosecuting pregnant girls, says Jenna Lauter, coverage counsel at the New York Civil Liberties Union.
In the first two years after the Supreme Court overturned constitutional abortion rights, not less than 412 girls have been criminally prosecuted nationwide for the outcomes of their pregnancies, principally underneath non-abortion-related legal guidelines, based on the nonprofit Pregnancy Justice. Most circumstances concerned substance use throughout being pregnant. Others hinged on prosecutors’ after-the-fact opinions on when and how girls sought medical care, together with allegations of insufficient prenatal care, noncompliance with a supplier’s beneficial remedy, or failing to hunt assist throughout or after start.
“In our work at the NYCLU and with the Equal Rights Amendment, we are really trying to broaden the aperture on what sex and pregnancy discrimination means, thinking much more about how we can support pregnant people, including their bodily autonomy and decision-making, while moving away from surveillance, control and punishment during pregnancy,” Lauter says. “The assumption is that society at large and the state are somehow entitled to information about women’s bodies while they’re pregnant to control their conduct during pregnancy and then to punish them if they’re making decisions that society disagrees with.”
“The assumption is that society at large and the state are somehow entitled to information about women’s bodies while they’re pregnant to control their conduct during pregnancy and then to punish them if they’re making decisions that society disagrees with.”
Katharine Bodde, interim codirector of coverage at the New York Civil Liberties Union, says state ERAs may be helpful to problem state hospitals that pressure pregnant girls to bear cesarean sections in opposition to their will—like in the current case of a Florida lady, who was made to defend her resolution, just about, earlier than a decide and with out illustration, whereas she was in energetic labor.
“We have to be working toward an equality framework that means pregnant people have full medical decision-making authority, just as everyone else does,” Bodde says.
Chu argues that ERAs might be a strong device to advance the rights of pregnant girls in different spheres: “If a school is not letting someone reschedule their exam because they have to go to a prenatal appointment, not giving any form of accommodations, that could be encompassed by state ERAs.”
Under a sturdy federal ERA, no state might permit these discriminatory actions in opposition to girls.
New Frontiers
In brainstorming how ERAs might advance girls’s rights in the future, feminist attorneys word how legal guidelines and authorities insurance policies usually heart the lives and wants of males, leaving girls at an obstacle. Chu hopes to make use of state ERAs to develop protections for ladies in the office, addressing a broad vary of inequities, together with lack of paid go away and childcare, the wage hole and employers’ failure to combine girls into male-dominated jobs.
“Domestic workers are excluded from most federal and state labor and employment laws as a direct legacy of slavery,” Chu notes. “The vast majority are women, primarily women of color, and so it is really ripe for an intersectional claim.” A case might argue the exclusion has a disparate impression on girls of coloration and is rooted in intercourse stereotypes that devalue their labor.
At a current ERA convention at NYU Law School, students and litigators explored how the ERA might require the authorities to take affirmative steps to enhance girls’s lives. One difficulty that got here up was childcare.
“The argument would be, women are not on equal footing with men unless they have access to childcare, and so providing childcare is something that the government would have to do,” Chu explains.
State ERAs may also be used to problem household regulatory techniques—the community of presidency companies, legal guidelines and insurance policies that examine and intervene in households underneath the guise of kid safety.
Lauter notes, “This system overwhelmingly surveils and punishes women of color, especially Black women, and scrutinizes their parenting based on very deeply rooted, prejudiced narratives about Black women’s capacity for motherhood.”
ERA advocates have seemed overseas for methods on how one can use constitutional equality provisions in modern methods.
Aleta Sprague of Equal Futures, a nonprofit analysis and advocacy group, says Zimbabweans have challenged youngster marriage utilizing constitutional gender equality provisions as a result of “child marriage deprives girls of their autonomy and really changes the trajectory of their lives.”
In the U.S. as of September 2025, youngster marriage is authorized in 34 states, whereas 16 states have banned marriage for anybody underneath 18 with no exceptions. Kansas and Hawaii permit 15-year-olds to marry, and 4 states—Mississippi, Oklahoma, New Mexico and California—don’t have any minimal age necessities for marriage. Child marriage is more likely to occur to women (86 p.c) than to boys (14 p.c).
According to the group Unchained at Last, which advocates in opposition to youngster marriage in the U.S., this observe disempowers girls and women particularly and hinders gender equality. Those married earlier than age 18 report excessive charges of bodily, sexual, monetary and emotional abuse in addition to undesirable or unplanned pregnancies. Child marriage destroys practically each facet of an individual’s life, together with her well being, schooling and financial alternatives. According to Unchained at Last, youngster marriage undermines statutory rape legal guidelines, and can quantity to compelled marriage.
While Unchained at Last is working to go laws in lots of states, Sprague believes that court docket challenges utilizing ERAs might present one other fruitful avenue for altering youngster marriage legal guidelines.
The potential for state ERAs to advance the rights of ladies and women is great, however provided that we have now the will—and the assets—to push for favorable state supreme courts and to make use of ERAs to problem discriminatory authorities insurance policies.
While we combat for a Congress that can publish the federal ERA and a U.S. Supreme Court that can robustly interpret it, feminists are constructing an ERA jurisprudence that can sooner or later obtain Abigail Adams’ dream: for ladies to lastly, really, be equal residents and stay freely, safely and empowered all through the United States.
This article initially seems in the Summer 2026 print difficulty of Ms. journal. Join the Ms. community today and you’ll get issues delivered straight to your mailbox.
