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Equality too long denied: Ballot box best tool for women to gain rights not assured by Constitution

Published in Fort Wayne Journal Gazette 5/20/2023

Written by Laurie A. Gray, J.D.

Last Sunday was Mother’s Day. Though I was blessed to spend it with my own mother and daughter, for the first time in my 22 years of motherhood, every “Happy Mother’s Day” meme and message rang hollow. This was our first Mother’s Day after the U.S. Supreme Court’s decision last summer in Dobbs v. Jackson Women’s Health Organization.

Happy Mother’s Day to all the mothers whose children will grow up without them because their last pregnancy was ectopic or molar, and they traveled from hospital to hospital searching in vain for a doctor willing to risk criminal indictment to save their lives.

Happy Mother’s Day to all the children who have been sexually assaulted and forced to spend nine months of their childhood pregnant and giving birth to their molester’s child.

This Mother’s Day, the only Constitutional right guaranteed to my daughter according to the Supreme Court of the United States [SCOTUS] is her 19th Amendment right to vote. That is perhaps the most pernicious aspect of the Dobbs decision. With its “original intent” analysis, SCOTUS erased 123 years of progress toward equality for women.

Every right that women currently enjoy beyond the right to vote is “substantive due process.” In his concurring opinion in Dobbs, Justice Thomas repeated his mantra that substantive due process is an oxymoron that lacks any basis in the Constitution. The government need only create a “procedural due process” to deprive women of any civil right beyond the right to vote.

Original intent strictly adheres to the experience and expectation of our Constitution’s Framers. It limits “We the People” to white men, except for where the Constitution has been duly amended. After the Civil War, Congress passed the 13th, 14th and 15th Amendments abolishing slavery and guaranteeing equal civil and voting rights to all male citizens regardless of race. The original intent of these Amendments did nothing for women’s substantive rights.

Women suffragists did not just want the right to vote. They also wanted an amendment guaranteeing women equal rights and civil liberties. The 19th Amendment passed in 1920 granting women suffrage, but the Equal Rights Amendment (ERA) still has not been ratified. American women did not, and still do not, have the same constitutional rights to life, liberty, and property as American men.

In the 1940s, both the Republican and Democratic party platforms supported the ERA. Congress passed the ERA in 1972. Indiana ratified the ERA in 1977. Women gradually gained important rights, like the right to own property, to have their own bank accounts and credit cards, and to serve on juries.

But neither the text of the Constitution nor its Framers’ intent has changed. So, all of these rights that women have enjoyed in my lifetime are no longer guaranteed to our daughters after the Dobbs decision. Now, the only way to guarantee women any constitutional rights beyond the right to vote is to amend the Constitution.

The proposed ERA simply says, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." But just last month 47 Republican Senators, including Indiana’s own Senators Mike Braun and Todd Young, voted NO to the ERA. Why would we continue to elect representatives who insist women are not equal?

Indiana amended its constitution in 1984, changing those guaranteed inalienable rights from “men” to “people.” But our legislators wage cultural wars, depriving women, children, and already marginalized people of rights, resources, and access to voting. Soon, our Indiana Supreme Court must decide whether the Indiana Constitution protects women’s rights to full citizenship since the U.S. Constitution clearly does not.

This reduction of women’s substantive rights under the U.S. Constitution to a mere right to vote means every eligible citizen of the United States must register and VOTE this November. We must all vote in every national, state, and local election until democracy prevails and we are all guaranteed the same unalienable human rights to life, liberty, property, religion, and bodily autonomy throughout the U.S.A.

In the meantime, I’ll keep calm and carry on by singing to myself Jeremy Messersmith’s “We All Do Better When We All Do Better.” Mother, may we all do better.

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