The ERA is back. This time it’s in the form of a joint House and Senate resolution to dissolve the expiration date once and for all. On Tuesday, the Senate Judiciary Committee hosted a hearing on the Equal Rights Amendment. Individuals supporting the ERA argue it’s needed to ensure equal rights for women, but this ignores the fact that strong legislative action has achieved many of the ERA’s original aims since the 1970s.
The ERA views all forms of legal distinction between men and women as a form of discrimination. This is bad policy. Women are best protected and supported in society when the law recognizes legitimate distinctions between men and women. An Equal Rights Amendment to the Constitution would remove specific protections for mothers in the name of “sameness” between men and women.
So why do we need a constitutional amendment today? Instead of providing necessary legal protections to women, the ERA would strip women of essential protections and privileges — especially laws that relate to pregnancy and motherhood.
Take, for example, the Pregnancy Discrimination Act or paid maternity leave or the Women, Infants, and Children (WIC) program. Consider health insurance coverage specifically for pregnant women through Medicaid or the Children’s Health Insurance Program (CHIP).
The Pregnancy Discrimination Act protects mothers from employment-based discrimination. It ensures that employers don’t withhold benefits or limit work opportunities due to pregnancy or childbirth. It doesn’t stop there; it also provides additional benefits to mothers, like access to lactation rooms.
To survive under the ERA, employers would either expand these benefits to both men and women or remove them. The first approach creates new safety and privacy concerns if both men and women have access to lactation rooms. The second option harms mothers by making it harder for them to work and care for their children.
Or take paid maternity leave benefits. The United States does not have a federal paid leave plan, but some states and many private entities do. This allows employers to offer competitive maternity leave policies. These company policies provide women with job security, time off to bond with their new child, and full or partial pay for an extended period.
Even when employers offer new fathers leave time, it is usually not as long as what mothers receive. Why? Because employers, and the law, recognize that mothers bear a distinct childbearing burden. This includes everything from recovering from childbirth, breastfeeding, and adapting to a demanding new schedule.
If the ERA passed, state or mixed-sector employers (those who receive federal funding or government contracts) who offer more generous maternity leave benefits to women than men would likely be at fault for discrimination based on sex. Such employers would be forced to offer equal time for mothers and fathers alike. Mixed-sector jobs expand into many areas of society, from academia to health care and transportation. Additionally, in states where mandated maternity leave policies exist or have a high chance of passing, many private-sector employers could feel pressure to go ahead and change their maternity leave policies to avoid charges of discrimination.
Cost-wise, most wouldn’t be able to afford to offer fathers as much time as they may offer mothers. In the end, the Equal Rights Amendment could lead to a reduced leave period for mothers so state or mixed-sector employers could afford to offer the same benefit to men. Instead of helping mothers, it would harm them in the name of “equality.”
Another example is the Women, Infants, and Children program. Its expressed goal is to “safeguard the health of low-income pregnant, postpartum, and breastfeeding women, infants, and children up to age 5 who are at nutritional risk.” This program recognizes the procreative distinction between men and women and provides additional benefits that help mothers feed young children.
Laws, at their best, protect mothers with young children during these early, vulnerable years. WIC protects mothers and children from poor nutrition if they’re limited in their ability to work or make money. Still, the ERA would rule this program unconstitutional. Why? Because it distinguishes between men and women based on sex. Does this sound like something women want?
Medicaid and the Children’s Health Insurance Program provide health insurance for low-income women who are pregnant or have recently given birth. The best part is that mothers may qualify for Medicaid or CHIP even if they become pregnant before applying. Once the child is born, Medicaid or CHIP extend their benefits to both the mother and child for 60 days.
Some have argued that lawmakers should extend this period of coverage for up to a year. This could relieve undue stress and financial burdens placed on new mothers. It could also protect against postpartum depression, death, or unchecked medical problems for both the mother and baby. Yet no one argues that the best way to help mothers is to remove these benefits from them.
Under the ERA, this is exactly what could happen. Special coverage just for mothers would count as discrimination unless Medicaid or CHIP offered the same benefits to men. Again, this misses the point. Mothers who are pregnant or have small children bear additional childcare burdens, unlike men. Laws that distinguish between men and women help support mothers when they need it most.
Mothers endure a unique burden through pregnancy, childbirth, and caring for newborns. They deserve the protection and benefit of laws that recognize this. If Congress had passed the ERA before its expiration date in 1982, these narrowly tailored benefits for mothers would not exist as they do now. Instead, the ERA would strip mothers of additional support and protection in the name of “sameness.”
Emma Waters is a visiting fellow with Independent Women’s Forum.
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