What The Hell America!

In the states, equal rights amendments are protecting people where the federal government can’t—or won’t.

This story was originally published on The Contrarian.

As the Trump administration’s attacks on women’s rights, reproductive access and LGBTQ equality continue in force, state executive leaders have emerged as potent frontline responders.

Last month, Maine Gov. Janet Mills stood in opposition to the executive order banning trans athletes from women’s sports, informing Donald Trump that she’d see him in court. This past weekend, he took to Truth Social, still stewing apparently, to demand her personal “full throated apology” and statement to “never make such an unlawful challenge to the Federal Government again.” Meanwhile, the U.S. Departments of Education, Agriculture, and Health and Human Services have commenced multiple investigations that threaten denial of federal funding to the state.

New York’s executive leadership formed something of a firewall on access to healthcare. Gov. Kathy Hochul refused to extradite a New Paltz, N.Y.-based doctor to Louisiana charged with prescribing abortion pills online to residents there and signed legislation enabling physicians to withhold their individual names on prescription labels. Attorney General Letitia James put all New York hospitals on notice of their legal obligation under state law to continue offering gender-affirming care to minors.

State ERAs are a sleeping giant. By wielding them against the tide of diminishing rights and liberties, states have the power to reset and even raise the bar nationwide for establishing a strong legal foundation for fundamental equality.

Among the tools in states’ arsenals are often underused state-level equal rights amendments (ERAs). Even as the federal ERA remains in limbo, an unlikely bulwark for the next four years—see professor Laurence Tribe’s Contrarian piece explaining its legal status—29 states have some form of an ERA (e.g., broader sex equality language than the U.S. Constitution) written into their constitutions. Several have already been used to advance abortion rights (Pennsylvania, Connecticut and New Mexico); many are broadly worded and inclusive of protection against pregnancy discrimination, age, disability and immigration status. Issues such as pay transparency and addressing gender-based violence also could be bolstered by a state ERA.

New York is the latest state to pass an ERA; last November Proposal 1 won big at the polls. It is a national model given its expansive reach, which include protections on the basis of sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, reproductive healthcare and autonomy, ethnicity, national origin, age, disability and religion. Nevada’s ERA, passed in 2022, has similar language.

State ERAs are a sleeping giant. By wielding them against the tide of diminishing rights and liberties, states have the power to reset and even raise the bar nationwide for establishing a strong legal foundation for fundamental equality.

How might this work in practice? I turned to lawyer and expert Ting Ting Cheng, director of the ERA Project at Columbia Law School and featured in this weekend’s Axios explainer, “Equal Rights Fight Under Trump 2.0 Shifts to the States.”

First, she flags legislation recently proposed in the New York Senate that can lean heavily on its ERA to strengthen abortion rights and to ensure access to wide array of reproductive healthcare. Among some of the bill’s standout provisions: companies that collect and sell healthcare information would be required to receive affirmative consent by users to sell such information to third parties; pharmacists could administer contraceptive injections; any contractor in the state would be required to carry health insurance that covers breast cancer screenings; and educational and awareness programs around menopause would be established.

ERAs, like New York’s, can support immigrant rights policies—especially crucial as federal immigration enforcement grows increasingly aggressive.

Second, Cheng points to how ERAs, like New York’s, can support immigrant rights policies, which is especially crucial as federal immigration enforcement grows increasingly aggressive. New York has long been at the forefront of pushing back against federal overreach and protecting immigrant communities who contribute to our society and country. As worded, its ERA gives the state added leverage to support bills like the New York For All Act, which would limit the use of state and local law enforcement resources in cooperation with Immigration and Customs Enforcement. Creating a clear boundary among the agencies would go a long way toward promoting trust between immigrant communities and local law enforcement; it would also help safeguard personal data and sensitive information.

Finally, Cheng highlights practical outcomes of state ERAs for mandating hospital accountability. In New York, the Hospital Transparency Act would require hospitals to publicly report service limitations like restrictions on abortion, contraception, gender-affirming care and miscarriage management. Such transparency is critical for all patients, especially those in need of emergency treatment who often have no idea they will be denied care until they are already in the hospital.

According to Cheng, there is growing momentum for leveraging state ERAs across the country, mirroring reproductive rights strategy since the 2022 Dobbs decision. “State ERAs are a boon,” she notes, “not only for countering regressive federal policies, but for reimaging and reshaping legislative frameworks in ways that affirmatively advance equality.”

As state governments and leaders continue to play a crucial part in the defense of American democracy, 29 of them can leverage the ERA is a way to lead on behalf of their residents—and the entire nation.