All it takes to dismantle Dobbs is an Equal Rights Amendment

January 31, 2024 3:14 AM

Pennsylvania has an equal rights amendment. Its supreme court just used that fact to dismantle the forced-birth logic of Dobbs (ungated). The decision (PDF).
posted by clawsoon (22 comments total)

I just worked on a play where the two main characters were a couple in their 80s, and two younger actors occasionally played younger versions of the couple. One of our rehearsals with the younger actors was a bit of a talkthrough of "what was life like in the 70s and 80s, when this couple was younger"; both the director (a woman in her 60s) and I (a woman in her 50s) weighed in.

At some point we had to discuss the big push around the Equal Rights Amendment in the 70s to them both (our actors were in their 20s). Our poor actress had never heard of that, nor of the pushback Phyllis Schlafly led against it. I don't even know how to describe the look on her face.
posted by EmpressCallipygos at 3:52 AM on January 31 [62 favorites]

"All it takes..." reminds me of the 70's radio commercials for the back to the land movement (of which I was a part) put on by Mother Earth News. Each one would feature a different project that could so easily be done if only you have 12 friends with nothing better to do all summer, access to free lumber, and a trust fund.. "All you gotta do is ..."
"...and you, too can have your own home in the woods for $200.00"
All we gotta do here in New Hampshire is vote out all the old white conservative men to get this done. They are busy right now curtailing women's rights even further and being sure that transgender children have an even worse life.
Signed, Old White Liberal
posted by Hobgoblin at 4:14 AM on January 31 [16 favorites]

You’ve Got a Friend in Pennsylvania
posted by Tomorrowful at 4:20 AM on January 31 [6 favorites]

Egads. That's just beautiful.
posted by chasles at 4:28 AM on January 31 [1 favorite]

Beautiful indeed.

Although we are remanding for the development of the state’s interest, I observe that, by design, the Coverage Exclusion coerces women who cannot afford private health care into carrying pregnancies to term. Any interest advanced by the Coverage Exclusion, therefore, can be understood only as an interest that is advanced at the cost of forcing women to bear children against their will. It will be DHS’s unenviable burden on remand to establish that a state interest that is advanced through the coercive use of women’s bodies is constitutionally compelling and that the Coverage Exclusion is narrowly tailored.


When it develops its interest, the state cannot rely upon any notion of enforcing sex roles, as any interest that relies upon sex-based stereotypes will run afoul of the ERA.⁶¹ The provision of unequal health care and the coercion of women to give birth against their will would seem to serve archaic and stereotypical notions about women, rooted in beliefs about the primacy of childbearing and the disapproval of women who feel compelled to discontinue their pregnancies. To manifest respect for a woman as a mother while manifesting disrespect for a woman’s health care decisions is to perpetuate a value-laden, sex-based stereotype. Women’s reproductive capacity and their ability to become mothers traditionally has long been used as justification for perpetuating distinctions between the sexes.⁶² The state may not constitutionally advance its purported interest in promoting motherhood by pre-ordaining that role for all women.

posted by mikelieman at 4:34 AM on January 31 [54 favorites]

Love it. Powerful arguments. Well done.
posted by Dashy at 4:54 AM on January 31 [2 favorites]

This is encouraging. Thank you for posting it. Definitely wasn't national news I saw like it should be.
posted by tiny frying pan at 5:05 AM on January 31 [7 favorites]

Thank you so much for posting this.
posted by greenwitch at 5:05 AM on January 31 [2 favorites]

As a Pennsylvanian, I'd like to note that our state supreme court justices are elected and this result is the result of a LOT of work getting people registered and getting them to vote. I know that the "voting is the only thing that matters" message can be reductive and tiresome but, as part of other efforts, it does really make a difference.
posted by mcduff at 5:10 AM on January 31 [92 favorites]

tell her about the Equal Credit Opportunity Act of 1974!
posted by Clowder of bats at 5:52 AM on January 31 [19 favorites]

Things seem to have shifted somewhat: Before Dobbs, it was ERA opponents who focused on abortion; for example, Phyllis Schlafly said, "if the Equal Rights Amendment is ratified, ERA will repeal all and every kind of anti-abortion laws that we now have." In 2019 Rep. Carolyn Maloney, argued that "The Equal Rights Amendment has absolutely nothing to do with abortion,” and Jessica Neuwirth, co-founder and co-president of the ERA Coalition, said “They are trying to make this about abortion when it never has been about that.” Of course, before Dobbs, abortion access was a constitutional right, so it wasn't necessary to provide them through the ERA.
posted by Mr.Know-it-some at 6:30 AM on January 31 [6 favorites]

Phyllis Schlafly said, "if the Equal Rights Amendment is ratified, ERA will repeal all and every kind of anti-abortion laws that we now have."

Kind of amazing when you think about it. "If women have equal rights then they could have abortions!" So...you're admitting abortion rights are kind of essential to equality, yes? And that women are not equal without them? Thanks, Phyllis, you've been very helpful today.
posted by We put our faith in Blast Hardcheese at 6:45 AM on January 31 [58 favorites]

THIS.IS.SO.GREAT.

now do the whole country!
posted by supermedusa at 8:27 AM on January 31 [12 favorites]

All it takes is control of the judiciary.
posted by constraint at 8:57 AM on January 31 [11 favorites]

People ask me sometimes, when — when do you think it will it be enough? When will there be enough women on the court? And my answer is when there are nine.

—Justice Ruth Bader Ginsburg

posted by kirkaracha at 10:24 AM on January 31 [15 favorites]

It is a familiar tactic of courts that are about to deny the existence of a civil right to
define the right so narrowly that the right, so defined, will not be found in the applicable
constitution.
...
In Dobbs, the Court likewise reduced the issue before it to the narrowest possible
articulation: the right to abortion, rather than the broader right to personal autonomy.26
Such thin constructions of rights myopically disregard the broader guarantees within
which they sit.

It's so well written. I'm so glad we have these judges at this time.
posted by Wilbefort at 10:30 AM on January 31 [21 favorites]

It is a familiar tactic of courts that are about to deny the existence of a civil right to
define the right so narrowly that the right, so defined, will not be found in the applicable constitution

And never forget that the "there is no right to privacy in the Constitution" argument always was bad faith nonsense. The Ninth Amendment declares that rights do not have to be enumerated in the Constitution for people to have them.
posted by Gelatin at 10:43 AM on January 31 [19 favorites]

I've used the Ninth Amendment argument before, and people keep telling me "no one cares about that".

More jurists should use it because it's the complete antithesis of Alito's shit-flinging conceptualization that led to his opinion on Dobbs.
posted by mephron at 11:52 AM on January 31 [12 favorites]

I've used the Ninth Amendment argument before, and people keep telling me "no one cares about that".

Well, maybe, but no one has to respect the so-called "originalist" protestations of anyone who doesn't actually care about the plain text of the Constitution.
posted by Gelatin at 12:03 PM on January 31 [3 favorites]

You know what it doesn't say in the constitution? That you should only use what it says in the constitution. Therefore, since the Originalist position can not be found in the constitution, it is self-contradictory. (Thanks, Tim!)
posted by I-Write-Essays at 1:14 PM on January 31 [13 favorites]

Or, you know, the 13th amendment, which, in addition to barring outright slavery, has been used as a basis for courts to refuse to enforce personal service contracts (e.g. if you agree to sing in that opera and change your mind, the court won't order specific performance)
posted by mabelstreet at 10:30 PM on February 1

This is so very very smart.
posted by bluesky43 at 1:23 PM on February 7