THE BLOG
08/23/2012 06:27 pm ET Updated Oct 23, 2012

The Real Todd Akin Takeaway: We Need an Equal Rights Amendment Now

What we have here is a failure to communicate. We all know that Rep. Todd Akin (R-MO) has revealed a shocking ignorance about how babies are made. But more disturbing is the revelation that when we talk about reproductive rights, we don't have consensus on even the most basic principles. The takeaway from this whole brouhaha is not about abortion. It's about women.

You know what else people believed back when they believed a woman had to enjoy sex to get pregnant? They believed that women should not vote or go into a profession. Believe it or not, Todd Akin has singlehandedly demonstrated that we need the Equal Rights Amendment. You read that correctly. I am talking about your mom's ERA, and we need to ratify it. Now.

Before you can resolve a dispute, you need to start with the basic tenets on which the parties can agree. The abortion issue is particularly difficult because there is so little common ground. One side sees the issue as the commission of murder, the other sees it as the right of half the population to control their own bodies. Most people fall somewhere in the middle. But despite our disagreement about how to characterize what happens between conception and birth, at least we all agree on what conception is and how "that whole thing" works. Right?

Apparently, not so much. Despite the bipartisan show of dismay at Akin's statement that pregnancy rarely results from a "legitimate" rape, there are plenty of people out there who are saying his premise is absolutely correct -- including one 87-year-old gentleman who purports to be a GP. It seems that the folks who oppose sex education REALLY oppose sex education.

So if we don't have consensus on what happens at conception, what else don't we agree on? Any dispute needs ground rules. And the most fundamental ground rule in this dispute, which implicates women's bodies in a way that it does not implicate men's, has to be that men and women are equal citizens entitled to equal rights and protections under the law. This should not be a controversial proposition.

Except it is. The Constitution does not actually say that women and men have equal rights. The Equal Rights Amendment was three states shy of ratification when the deadline expired in 1982 -- it had been ratified by only 35 of the required 38 states. The complete text of the ERA, for those of you who didn't grow up with my mom, is:

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3: This amendment shall take effect two years after the date of ratification.

To many people, the ERA has a '70s era, radical feminist vibe that doesn't fit into our modern "post-feminist" world. Like bra burning, it is a relic of a different time. Yet the ERA has never died. It has been regularly reintroduced in Congress, most recently in the House and Senate in 2011. There have been sporadic calls to action, including in the blogosphere, and ERA ratification bills have been introduced in some of the non-ratifying states. The White House Council on Women and Girls currently has a post on its website recounting President Obama's (pre-presidential) "proven track record of supporting the ERA."

The standard argument is that as a practical matter the ERA wouldn't advance the ball for women's rights. We don't really need it. The Fourteenth Amendment, which guarantees every person equal protection under the laws, has been interpreted by the Supreme Court to mean that laws that discriminate based on gender are examined more skeptically than other laws. While this ad hoc "heightened scrutiny" does not subject gender discrimination to the more rigorous "strict scrutiny" standard applied to distinctions based on race, a different standard makes sense to many. After all, women are not the same as men.

But here's the thing: The Fourteenth Amendment was enacted in 1868, before women had even achieved the right to vote. It seems clear that it was not intended to protect women from discrimination on the basis of their gender. Why do we care? Because many people out there -- including Supreme Court Justice Antonin Scalia -- believe the constitution should be interpreted as it was "originally" intended. So in Justice Scalia's view, unless the Constitution specifically says "women and men have equal rights," well, they don't. Unless the legislature says they do. (Or as Scalia put it: "If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures...")

That's right: the "originalist" view of the Constitution is that it is up to the legislators to decide whether or not sex discrimination should be allowed. Legislators like Todd Akin, member of the House of Representatives and candidate for United States Senate. The guy who doesn't seem entirely clear on how the uterus works.

One argument against the ERA back in the 70s was that it would be too hard to figure out what it meant -- could we still have women's bathrooms? Girl scouts and boy scouts? We've worked a lot of those kinks out in the past 30 years, and that's no excuse not to recognize the equality of half the population.

Another complaint was that if the ERA were ratified, it would be used to support the argument that women have a constitutional right to abortion. Maybe it will. But is the worry that a recognition of equality will be used against your position a valid argument for denying that recognition? Because presumably we all agree with the underlying principle that women and men have equal rights.

Of course, a week ago I would have said that presumably we all know that a woman gets pregnant when a sperm fertilizes an egg.

So presumably is not good enough; we need to get this in writing. The 2012 Republican platform states: "We support a human life amendment to the Constitution, and endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children."

Before we start talking about a constitutional amendment to address the rights of the unborn, let's make sure that we have recognized that women are people entitled to the equal rights and protections of the law. Because if there is any disagreement on that point, Todd Akin is the least of our problems.