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Why We Need a Constitutional Amendment for Abortion Rights

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As the ominous march to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization continues, and as Texas and Oklahoma both have strict abortion bans in effect, the end of Roe v. Wade seems inevitable. While some states have passed bills to protect access, others seem to be just counting down the days until their “trigger” laws can take effect with the overturning of Roe.

It didn’t have to be like this. For decades, legal experts and abortion rights advocates have opined on what Roe got wrong and bemoaned the subsequent cases that weakened access. And while many people are convinced the Equal Rights Amendment would enshrine abortion access in the Constitution, it would still fall short of the protections required to realize full reproductive rights. Instead, we need a constitutional amendment with ambition, like Vermont’s Prop 5.

While the ERA would prohibit denying or abridging equal rights on account of sex, a reproductive liberty amendment cannot be prohibitive. The Supreme Court’s interpretation and application of the equal protection clause and the privacy doctrine fail to address women’s inequality and oppression. An affirmative right is necessary.

Antiquated cultural norms around gender have shaped the expectations of women’s roles in society, influenced the legal framework of their rights, and resulted in discriminatory legislative restrictions on reproductive autonomy, ultimately denying them same rights as men. Roe’s future is tenuous—particularly in light of the leaked draft opinion Politico published earlier this month that indicated the Supreme Court plans to use the Dobbs v. Jackson Women’s Health decision to overturn Roe. And Planned Parenthood v. Casey’s “undue burden” standard is inadequate. Attacks on reproductive health care—which are not limited to abortion and affect anyone who can become pregnant—will endure without an explicit constitutional guarantee.

We need constitutional foundations

Human rights and our entitlement to equal........

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