An Essay by Jack Maier
Our Declaration of Independence is built on the idea of “inalienable” rights. That is, rights that can’t be stripped from us. Even if we’re prevented from exercising these rights, we don’t lose them. And whatever keeps us from exercising them is wrong. That is, we distinguished between having rights and using rights, and it’s through the narrow crack between these two ideas that freedom has expanded ever since.
When Jefferson wrote them, most Americans could not exercise many of these inalienable rights.
But our Constitution declared that we are bringing our country into being specifically to form a more perfect union, establish justice, and secure the blessings of liberty.
So we began with a goal, and a promise.
It’s taken a long time to get where we are now. A century to bring an end to slavery. Another century to expand the freedoms of nearly everyone – perhaps most notably of women, of people of color, and of everyone who works for a living.
It’s taken so long because as people become more free, many people see more disorder; as people become more equal, the wealthy see their privilege slipping away.
Now, in this election, this tension between freedom and disorder is playing itself out again, and the focus is on women. This election is about women. About women’s freedom, and women’s opportunities. About women’s agency, and women’s bodily autonomy.
Project 2025
The National Women’s Law Center in Washington, DC, has posted an analysis of this Project which you can read here.
Employment Discrimination
Discrimination based on sex is prohibited by Title VII of the Civil Rights Act of 1964. Provisions of Title VII are enforced by the Equal Employment Opportunity Commission (EEOC). The Department of Justice’s (DOJ) Civil Rights Division is also responsible for enforcing federal laws that protect against discrimination on the basis of sex in both schools and workplaces.
The implementation of Project 2025 would curtail women’s civil rights by limiting the activities of these two agencies.
It would block the EEOC from entering into consent decrees with employers to resolve discrimination cases. This would mean that women would have to file expensive and time-consuming lawsuits to defend their Title VII rights. Project 2025 also strips away the independence of the DOJ, and eliminates the civil rights offices of almost every federal agency. It is these offices that enforce protections against discrimination on the basis of sex.
Project 2025 also demands a reorientation of EEOC enforcement priorities away from sex and race discrimination to focus instead on claims of religious discrimination.”
Note that by attacking and reorienting the agencies that enforce women’s rights that are codified in the Civil Rights Act of 1964, the President could effectively curtail the rights codified in those laws without having to repeal them.
Abortion
Project 2025 does not call for a federal law making abortion illegal. It does, however, make obtaining an abortion far more difficult. Currently, the majority of abortions are accomplished using a pill, mifepristone. Under Project 2025, the Food and Drug Administration (FDA) would reverse its approval of mifepristone, and mailing of the pills would be banned.
Project 2025 also seeks to expand federal laws that allow healthcare professionals who are opposed to abortion to refuse to perform an emergency abortion on a woman experiencing dangerous pregnancy complications. Hospitals are required to provide pregnant women in distress an emergency abortion by the Emergency Medical Treatment and Labor Act (EMTALA). Project 2025 would instead use EMTALA to investigate doctors who provide emergency abortion care.
Democrats Work to Strengthen Women’s Rights
Opposing all this are proposals from Democrats to strengthen woman’s rights and opportunities. Two examples are the Women’s Health Protection Act, and the ERA amendment to the New York State Constitution.
Women’s Health Protection Act
The Women’s Health Protection Act (WHPA) was introduced in the House and Senate on June 8, 2021. If enacted, it would have provided legal protection to both the physician who performed an abortion and the patient who received it.
The U.S. House of Representatives passed WHPA on September 24, 2021, marking the first time in history that the House has ever passed legislation specifically designed to protect the right to abortion access nationwide. All 218 of the votes in favor of the bill were cast by Democrats. All but one of the 211 votes cast against the bill were cast by Republicans.
On February 8, 2022, the Senate voted on the WHPA. This was the first time the Senate had ever voted on legislation to establish the right to abortion in federal law. Under Senate rules, the bill could not proceed to a vote until 60 senators voted to do so. All the Democrats except one voted to proceed to a vote. All Republicans voted against doing so. So the vote on the bill itself did not take place.
We anticipate that the bill will be reintroduced in the 119th Congress, which will meet for the first time in January 2025. It is unlikely that this bill can become law until the filibuster is ended, which can be accomplished by a simple majority of Senators.
NY State Constitution Proposition 1 Extends Civil Rights Protections, Protects Abortion
The 10th Amendment to the Constitution (the last of “The Bill of Rights”) states that “The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.” The Constitution does not delegate to the federal government any authority over marriage, contraception, or abortion.
And yet over the last 100 years The Supreme Court has overturned state restrictions on contraceptive devices, abortion, and same-sex marriage. The rationale for overturning these laws varied, but was something along the lines of the Justices finding in the Constitution an implicit right to privacy (or agency or autonomy).
The current Supreme Court has now rejected its own precedent and overturned its ruling in Roe v. Wade. States are now free to restrict abortion. The right to marriage equality can as easily be withdrawn. And there is actually talk among Republicans about restricting contraception.
The aftermath of the overturning of Roe v. Wade is telling. Some states had already amended their state constitutions to preserve abortion. In others, new laws restricting abortion were overturned by state supreme courts, who declared the laws to be violations of the states’ constitutions. In several states citizens have organized to put on the ballot a state constitutional amendment to protect the right to abortion.
The point is that a protection for abortion or same-sex marriage in the state constitution provides a significant barrier to laws passed in Washington to restrict them.
It’s important to bear in mind that when a federal law conflicts with state law, the federal law prevails. But when a federal law conflicts with a provision of a state constitution, the law is subject to far higher legal scrutiny, and must clear a higher standard to remain standing.
“The ERA,” or Proposition 1, before voters in the November election amends the New York State Constitution. The NY Constitution now protects against unequal treatment based on race, color, creed, and religion. The proposal will amend the act to also protect against unequal treatment based on ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy, and pregnancy outcomes, as well as reproductive healthcare and autonomy. The ERA protection is broad, specifically stating that “No person [in the specified protected groups] shall be subjected to any discrimination in their civil rights.”
That is, the ERA is not only a protection for the right to abortion, but extends to protection for the LGBTQ+ population and the Trans community. Protection against discrimination on the basis of national origin may also become an issue should an Administration implement practices that threaten the immigrant community.