March 6, 2024. It was hard to miss the decision issued three weeks ago in Alabama, which ruled that an embryo is a child. A tragic decision that effectively brought in vitro fertilization (“IVF”) care in the state to a screeching halt. Even abandoning some women in the middle of a grueling IVF cycle.
There has been a large public outcry following the Alabama decision. Many asking how is eliminating IVF, an agonizing process used by people desperate to have a baby, consistent with reproductive rights opponents’ alleged pro-family, pro-life position.
It isn’t. And that is not what the attacks on access to reproductive healthcare, including abortion, IVF, contraception, and mifepristone efficacy (which is little more than an attempt to secure a national abortion ban through the courts) are about. They are all about controlling women, and the hypocrisy of the Alabama decision drives home that point.
The use of IVF has increased in recent years as women are waiting until later in life to start families. Eliminating IVF is the means to force women who want families to become pregnant earlier, possibly foregoing career aspirations, but certainly triggering the motherhood penalty (decreased wages and advancement opportunities, etc.) sooner.
We saw this coming. There is little doubt that the Dobbs decision, which overturned Roe, paved the way for the Alabama decision. And it is clear restrictions on access to contraception are forthcoming. All of this is part of the well-funded, anti-equality, Christian Nationalist agenda, led by organizations such as the Heritage Foundation and Federalist Society, to bring women back to the 1800s. That’s right, the final step will be deny women any enforceable equal protection under the 14th Amendment.
In response to the public outcry, anti-equality lawmakers are backpedaling in fear of losing women’s votes. Some even going so far as to propose legislation protecting IVF. Make no mistake, this is pure politics. Any reprieve is temporary, at best. They will be back at stripping away rights as soon as the heat dies down, likely after the next election cycle. And more states, those without an Equal Rights Amendment (“ERA”) in their state constitutions, will follow suit.
Why only states without state ERAs? As we have seen time and time again, and just weeks ago in Pennsylvania, state ERAs defeat restrictions on access to reproductive healthcare, which includes abortion, IVF, and contraception.
The Pennsylvania Supreme Court recently held, in Allegheny Reproductive Health Center v. PA Department of Human Services, that restrictions on reproductive healthcare constitute sex-based discrimination and are presumed to be invalid under the Pennsylvania ERA. The Pennsylvania ERA is nearly identical to the federal ERA, so this decision makes clear the federal ERA would protect reproductive rights for all Americans. So much so that the decision has triggered the Heritage Foundation and the National Right to Life Committee to go on the offensive, attacking the ERA as a backdoor attempt to restore reproductive rights.
Former President Trump recently admitted that he was responsible for overturning Roe, which he accomplished by blocking the federal ERA at a time when there was a conservative US Supreme Court majority. Alabama was leading the charge then too, suing for a declaration that the US Archivist could not publish the ERA as the 28th Amendment. The Trump Administration agreed with Alabama and interfered with the constitutional Amendment process – ordering the US Archivist not to publish the ERA and taking it out of the hands of the courts.
As set forth in our December 5th letter to President Biden, we need him to direct the US Archivist to fix this by publishing the ERA. The ERA will give us the tool necessary to stop the ever-increasing attacks on equality and fundamental rights and restore those already lost. Tragically, instead of publishing the ERA to put an end to this, Democrats are leveraging the attacks on women’s rights hoping to drive up voter turnout. Instilling fear when they control the solution. Worse yet, they know they cannot restore Roe without the ERA.
And the major national women’s rights organizations are providing cover for the politicians, refusing to publicly speak about the ERA as the solution. The very organizations making the arguments in state courts across the country that state ERAs protect reproductive rights.
On a call last week, one such organization privately admitted that, without the ERA, it will be decades before we can restore women’s reproductive rights to what they were before Dobbs. They know that, after the Dobbs decision, Roe cannot be restored without the ERA, yet they say nothing as politicians make empty promises.
Playing politics with women’s rights is unacceptable. And both political parties are guilty of this. We need to have the courage to say “Enough! No more political games with our rights and lives.” If we fail to meet the moment, generations of women and girls will pay the very steep price.