The US has the highest maternal mortality rate among other high income countries. And now that Roe v. Wade has been overturned, it is crucial to reflect on all current forms of reproductive care, as well as an urgent constitutional path to improvement: Publishing the Equal Rights Amendment (ERA). 

Race has historically shown to be a strong factor in pregnancy outcomes. While the maternal mortality rate in 2020 was 23.8 deaths per 100,000 live births (regardless of race), the maternal mortality rate for non-Hispanic Black women was 55.3 deaths per 100,000 live births, almost three times the rate for non-Hispanic white women. 

The correlation between race and infant health is similarly concerning. The National Partnership for Women & Families recently found that one of the most common causes of infant death—preterm birth—is more likely if the carrying parent experiences interpersonal racism or has chronic anxiety about racial discrimination. Recent data from the Center for Disease Control (CDC) supports these findings, citing the overall infant mortality rate at 5.4 per 100,000 live births, and as high as 10.6 for Black infants.

These conditions beg the question: How can the U.S. government ensure that quality of care will be equally provided to all people who are pregnant, while specifically addressing racial inequity? Carrie Baker, an attorney and professor of gender studies at Smith College, provides an answer: “Recognizing the ERA is more urgent than ever.” 

The ERA can enact change both through litigation and legislation. Specifically, the legislative channel is promised by Section 2 of the ERA, since it allows Congress to enforce Section 1’s prohibition on sex-based discrimination. Reflecting further on how publishing the ERA can impact maternal health, Ting Ting Cheng, the Director of the ERA Project at Columbia Law School, says, “A lot of those deaths were preventable and the result of institutional behavior, neglect, oversight, and ignoring the pain of pregnant people. Congress has a duty to change this.”

Fortunately, pressure on the US government to act is building. Recent research has revealed disproportionate mistreatment in the healthcare system while offering extensive policy recommendations. “Science is catching up to the truth communities of color have known for generations: that experiencing racism throughout ones life course damages ones long-term health,” says Sinsi Hernández-Cancio and Venicia Gray of the National Partnership for Women & Families. 

The Momnibus Act provides one way for the government to effectively address this intersectional problem. Assembled by the Black Maternal Health Caucus, the Act’s twelve proposals advocate for comprehensive efforts such as investing in housing, diversifying the perinatal workforce, supporting mothers who are incarcerated, and working with community-based organizations. One of its proposals, the Protecting Moms Who Served Act, was signed into law in 2021. Similar to this, the Birth Equity Bill Package, also known as Colorado’s Momnibus, was pushed into law by the Elephant Circle, an organization working for birth justice. This is the type of legislation that passage of the ERA will support, and Cheng believes the Amendment can provide substantive equality, recognizing, “Where we are in society informed by history, the institutions we live in, and the laws that govern us.”

These new forms of legislation can further build upon our current national healthcare programs. Both Momnibus and Biden’s original Build Back Better Bill aspired to expand Medicaid’s postpartum coverage from 60 days to a full year. (For reference, 52 percent of deaths occur postpartum, 19 percent occur between one and six days, 21 percent occur in one and six weeks, and 12 percent occur in the remainder of the first year; these last two figures are most often due to a chronic heart disease called cardiomyopathy: the leading cause of maternal death for Black and Native women.)

With Section 2 of the ERA (“Congress and the several States shall have the power to enforce, by appropriate legislation, the provision of this article”), Baker believes Congress can challenge the states that have banned abortion which also have had the country’s highest maternal mortality rates. Five states that have banned abortion since the overturning of Roe (Louisiana, Arkansas, Alabama, Missouri, and Texas) are among the ten states that rank worst in maternal mortality. Louisiana’s rate (58.1) is the highest and is four times higher among Black women than white women. “The failure to address civil rights goes alongside failure to address maternal mortality, poverty and women’s rights,” Baker continues.

Both experts stress that adding the ERA to the Constitution is a crucial step, even if it is only the beginning. Congress must be willing to find partisan solutions to longstanding issues in reproductive health, and any new congressional laws can still be struck down by the Supreme Court. Cheng reminds us that the Court, particularly the conservative-leaning judges, are “looking for opportunities to completely dismantle civil rights in this country,” adding, “when I read their decisions, when I listen to their oral arguments, it’s so abstract and never about people’s lives.” 

For example, Baker cites the Dobbs decision where Justice Alito uses Geduldig v. Aiello (1974)—a case that allowed California to deny women disability benefits if their employment disabilities were pregnancy related—to argue that restrictions on abortion do not threaten equality because they discriminate between people who are pregnant and people who are not pregnant, rather than between women and men. To this, Baker responded, “I have no faith in the current court, but the court will change over time, and it’s a long fight.” 

Fortunately, appeals to publish the ERA at both the federal and state levels continue to make headway. This June, New York passed an amendment, which prohibits discrimination by its government based on ethnicity, age, disability, national origin, sexual orientation, gender identity, or pregnancy. This coincides with a maternal health package passed by the New York City Council in August, which explicitly cites racial disparities in maternal health as motivation for change. Regardless of legal challenges, working toward publishing the ERA at all levels must continue since people who are unintentionally pregnant or choose to be pregnant need it to guarantee their rights by restructuring failed healthcare systems. 

About the author: Caitlin Rich is a 2022 fellow in the Sy Syms Journalistic Excellence Program* at Women’s eNews, funded by the Sy Syms Foundation. The Sy Syms Journalistic Excellence Program at Women’s eNews fellowship supports editorial and development opportunities for editorial interns in the pursuit of journalistic excellence.

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