Dear Meteor readers,

How many times are we going to write to you with, “It’s been a tough week,” or “We’re totally out of words,” or “What else is there left to say?” But here we are, again. We’re in the unfortunate business of expressing ourselves with words, and yet we have run out of them.

When the news hit over the weekend that an armed gunman had walked into a grocery store in Buffalo, NY, and opened fire on the patrons, shooting 13 of them and killing 10, I’m sure, you, like us, were wordless too. What is there to say when you hear that Andre Mackniel was shot dead while picking up a birthday cake for his young son? Or that long-time community activist 72-year-old Katherine Massey—who had written an editorial just last year urging more federal firearms legislation—was among the victims?

And before we could even process it—there was another shooting. And then another. Since the start of this year, there have been 200 mass shootings.

Disgust. Anger. Despair. Fear. These were all the feelings—especially after it was reported that the Buffalo shooter had written a manifesto and had intentionally targeted Black people. White supremacy—not just hatred, but an organized strategy, rooted in the myth of the Great Replacement Theory—is revealed over and over again.

We are so far from a solution to gun violence and to a solution to white supremacy. But as Meteor founding member Treasure Brooks put it in her beautiful monologue, “it ain’t going to go away unless we make it go away.”

Now back to that other ongoing disaster, in today’s newsletter, Sarah Leonard, writer and founder of Marxist feminist publication Lux, considers another possible strategy in the fight to defend our abortion rights.

But first, some news.

Trying to keep it together,

Samhita and Shannon

WHAT’S GOING ON

#WeAreBG: WNBA star Britney Griner has been wrongfully detained in Russia since February—for allegedly possessing hashish oil. The consensus among sportswriters and athletes has been to not make much noise about the arrest in the United States in the hopes that silence would somehow keep her safe. The choice to remain silent was also an economic one, many WNBA players travel overseas during their off-season to make additional money. Speaking out against BG’s detainment could put their second jobs on the line and even WNBA leadership encouraged discretion. But now it’s been months—and keeping quiet hasn’t done jack. On Tuesday, NBA Commissioner Adam Silver explained that his league is now working in concert with the WNBA to bring BG home. Silver told ESPN. “Our No. 1 priority is her health and safety and making sure that she gets out of Russia.” Say it louder.

USWNT: Hey! It’s something good! The U.S. Women’s National Team has achieved equal pay for the first time in its history. Earlier this year, players came to a settlement with their employers over a longstanding pay discrimination suit; that was a victory but didn’t quite make it to the back of the net if you will. The money promised to the players in the settlement earlier this spring was contingent on the ratification of a new collective bargaining agreement that would provide a structure for equal pay and equal treatment between the men’s and women’s teams. Well, now, that agreement has been reached, and to quote one of my favorite announcers we’ve got ourselves a GOOLLLAAZZOOOOOO! Going forward, the two teams will be receiving equal pay for games, equal accommodation, and the one thing everyone thought was impossible: equal World Cup Prize money. Which certainly the men’s team must be extra excited about considering they haven’t been serious contenders for the World Cup since *checks calendar* 2002. Now at least we can really mean it when we say, One nation, one team.

AND:

• An unprecedented investigative report was published this week, looking into the previously obscured deaths of Native children in boarding schools. The Federal Indian Boarding School Program took Native children from their homes, and in some cases caused their deaths—but the extent of the atrocities had not been documented to date.

• If you ever wondered how people fed babies before the invention of formula, a food historian has the answer.

• A town in France voted to allow women to wear burkini (a full coverage bathing suit)—but the French government is scheduling a new vote to shoot that decision down.

BLAST FROM THE PAST 

Could the ERA Get Us Out of the Abortion Rights Disaster?

It’s complicated.

BY SARAH LEONARD

Y’ALL REALLY BEEN FIGHTING OVER THE ERA LONGER THAN SOME OF US HAVE BEEN ALIVE (PHOTO BY PATRICIA SULLIVAN VIA GETTY IMAGES) 

You know the deal—the looming overturn of Roe v. Wade means that trigger laws restricting abortion are likely to go into effect across the country, and a nation already suffering from a dearth of abortion clinics and radically unequal access—will become a much more dangerous place for anyone who can get pregnant.

The release of a draft SCOTUS opinion has sent us into a terrifying scramble for new tools to protect abortion rights. But some legal scholars argue that the Equal Rights Amendment (ERA)—the constitutional amendment guaranteeing sex equality—could be a powerful one.

I remember, shortly after the 2016 election, being approached by an ERA activist at an event and finding myself a bit baffled. What was the likelihood of Americans getting really jazzed around a long-ignored legal reform when women were taking to the streets, organizers were standing in front of deportation buses, and the newly named alt-right was holding rallies with openly carried firearms? And doesn’t the 14th amendment guarantee equal protection under the law anyway?

After the leaked opinion, I was moved to dig deeper when I heard that scholars were developing an argument to use the ERA to protect our rights. What if an old idea could offer the key to undoing new abortion restrictions?

First, some context. If you watched FX’s miniseries Mrs. America, you may have gotten a snapshot of how the ERA looked poised for an easy victory in the mid-1970s before careening off a cliff by the end of the decade. (If you haven’t, I highly recommend it as a tutorial–it shows the strategic fights within the women’s movement and the rise of Phyllis Schlafly–plus it’s got Cate Blanchett and a trippy hazy sequence at the 1977 National Women’s Conference!) The ERA had been first proposed in the 1920s, but gained momentum during the women’s liberation movement of the 1960s. It read, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

NATIONAL ERA MARCH, 1978. (PHOTO BY ANNE E. ZELLE VIA GETTY IMAGES) 

The amendment quickly became a bipartisan cause—with support that spanned the political spectrum from Gloria Steinem to Richard Nixon. By 1972, it had passed both houses of Congress. (Mrs. America features a charming scene in which supporters like Congresswoman Shirley Chisholm and feminist Betty Friedan lift champagne in paper cups to celebrate). It was then sent to the states for ratification; 35 out of the necessary 38 states passed it by 1977.

But the fight wasn’t over. Conservative cold warrior Phyllis Schlafly made her contribution to a rising right-wing movement by turning the ERA into a subject of high partisan drama, rallying overwhelmingly white housewives to denounce the amendment and defend the privileges it would supposedly strip from them, like exemption from the draft. States began rescinding their support and progress halted. The unbeatable amendment looked dead, and the champagne went flat. The ERA went from bipartisan to no-partisan, and its remains were swept into the dustbin of 1970s history by the Reagan revolution. A deadline, imposed by Congress and the president, for the amendment to be ratified came and went in 1982—although it was never clear if that time limit was legal to begin with.

The nearly-passed amendment moldered in limbo for nearly forty years. It took another conservative revolution to revive interest in it: Donald Trump’s presidency.

This time, it had legs, and between 2017 and 2020, the remaining three states ratified the ERA, meaning that, if one viewed the deadline as illegitimate, the amendment should now be the law of the land and be certified by the Archivist of the United States. But the Department of Justice under Trump advised the archivist to reject the amendment in deference to the deadline and the result has been another extended limbo.

As two legal scholars explained in detail in the Washington Post, the passage of constitutional amendments has always been messy, and today, experts disagree on whether the ERA is already part of the Constitution (and if not, what to do about it). You can be mad at the Trump DOJ, at the archivist, or at the ghost of Schlafly—any of whom bear some responsibility for our current position. But the murky legality of the ERA makes it especially hard to know how to fight for it.

MRS. PHYLLIS STOP THE ERA SCHLAFLY (PHOTO BY BETTMANN ARCHIVE VIA GETTY IMAGES)

To figure this mess out, I called Katherine Franke, a Professor of Law at Columbia University, and Director of the Center for Gender & Sexuality Law, where she launched the ERA Project to study and develop policy in relation to the amendment. You must be busy, I told her. “We’re all busy!” she responded. I got down to business.

In short, Franke believes that the ERA has the potential to protect abortion on grounds of sex equality, instead of on privacy grounds, as put forward in Roe v. Wade. SCOTUS’s draft opinion rejects the notion that any existing Constitutional provision protects abortion, including the 14th amendment from which the notion of a right to privacy emerges. (It should be noted that the grounds on which Roe was decided have long been controversial even among liberals; Justice Ruth Bader Ginsburg believed that privacy was a weak basis for protecting abortion.)

The ERA Project has laid out a number of arguments about how the ERA’s more explicit language about sex equality could render abortion restrictions unconstitutional, including that such restrictions “single out abortions for more onerous treatment than other medical procedures that carry similar or greater risks.” At the moment, the Supreme Court of Pennsylvania is hearing a case about whether the state’s ban on Medicaid funding for abortion violates the state’s ERA (they instituted their own in 1971). The ERA Project has submitted an amicus brief arguing that it does; the outcome has the potential to demonstrate that an equal rights amendment would render abortion restrictions unconstitutional.

Franke notes that with SCOTUS now including several justices who emphasize adherence to the literal text of the Constitution, having an explicit requirement for sex equality could prove decisive. So while the ERA wouldn’t literally insert the word “abortion” into the nation’s governing document, one could argue it does the next best thing.

Some have cautioned that the ERA runs the risk of being interpreted by SCOTUS as a requirement for “sex-blindness,” thereby blocking measures that single out women–even to help them. Franke argues the opposite, saying that adding sex explicitly to the Constitution would make quite clear the type of discrimination that needs to be eliminated.

She also points out that the amendment wouldn’t just affect abortion. The ERA, Franke says, would require that “federal, state, and local government take measures to eradicate structural sex discrimination from their policies and laws.” The Center is developing a slate of policy options for local and state officials touching on everything from pregnancy provisions to employment law. The amendment could also have important anti-discrimination benefits for queer and trans people.

So: how do we get an ERA victory?

Franke says there are a couple of paths. A case is currently working its way through the DC Circuit Court challenging the archivist’s decision. At the same time, the Senate is about to vote on lifting the time limit (the House has already voted to do so). Should that measure win bipartisan support, even if it fails to pass due to a filibuster, Franke argues that this offers sensible grounds for Biden to declare the ERA valid.

There’s no one simple trick to undoing abortion restrictions, and fighting back will require a mass movement of folks who protect clinics, help pregnant people get the health care they need (legally or not), and fight for measures like court reform and an end to the filibuster. But one thing is clear—the work that second-wave feminists did to get the ERA passed hasn’t been in vain. Building a movement around a constitutional amendment privy to judicial interpretation may not feel exciting—but I’m starting to think it should.

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