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  • Writer's pictureNicole Vorrasi Bates

Can't "Codify Roe" Without The ERA

June 20, 2023. As we approach the one-year anniversary of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, there will be increased calls to “codify Roe.” Pay attention.

Why? Roe cannot be codified in a post-Dobbs world without the Equal Rights Amendment (“ERA”) enshrined in our Constitution. Even if the Democrats could abolish the filibuster and find the votes needed to pass legislation, it would be struck down by the current Supreme Court, which said there is no federal constitutional right to an abortion and that it is up to the states to decide.

Congress may only enact laws pursuant to powers set forth in our Constitution. The Congressional Research Service, which provides objective, legal analysis to members of the House and Senate and committees, has not identified such powers and has questioned Congress’s ability to act.

Most federal politicians have stopped saying that they will “codify Roe.” Sadly, not all have. We continue to receive emails and texts from these politicians saying they will “codify Roe”, while at the same time asking for donations and our votes and not mentioning a word about the ERA. We implore you to take note of who says “codify Roe in the days, weeks and months to come!

But all is not lost. The outcome is drastically different with the ERA in our Constitution because the ERA expressly authorizes Congress to enact laws necessary to enforce the amendment. This would include protecting reproductive rights. And the ERA is ratified and ready! All we need is for President Biden to publish the ERA as the 28th Amendment and stop blocking and fighting against it just like President Trump.

Just last month, the Illinois State Legislature joined Hawaii, Michigan, Minnesota, Colorado, and California in affirming that the ERA is the 28th Amendment and calling for President Biden to publish it immediately. California is already repairing its laws to comply with the ERA.

ERAs and related equal protection provisions in state constitutions have been used to defeat abortion restrictions in New Mexico, Connecticut, Alaska, Arizona, and, post-Dobbs, in Indiana, Michigan, Utah, and Iowa.

Just last week, the Iowa Supreme Court prohibited an abortion ban from taking effect; Iowa has an ERA in its state Constitution. Three justices from this conservative court, drove home the point that Dobbs is about way more than abortion, noting “It would be ironic and troubling for our court to become the 1st state supreme court in the nation to hold that trash set out in a garbage can for collection is entitled to more constitutional protection than a woman’s interest in autonomy and dominion over her own body."

That’s right. Trash. This is where we are. Women, girls and LGBTQIA+ people need the ERA more than ever. To stop the ever-increasing attacks, to protect reproductive rights, and to guarantee our equality, ensuring we are not treated as less than full persons in the eyes of the law. Clearly, we deserve more rights than trash. Long past time for President Biden to publish the ERA.

To learn more, see our written testimony to the Senate Judiciary Committee on the ERA and our Blog “The ERA – How to Save Roe For All Americans.

And visit to join the movement!!!

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