U.S. President Joe Biden’s overdue decision to suspend his reelection campaign and endorse Vice President Kamala Harris for the nomination has given the Democratic Party a decent shot at winning in November. It has also freed the Democrats to emphasize an issue they believe will drive voters to the polls: At its recent national convention, the party put reproductive rights and the “power of women” front and center, hoping to capitalize on voters’ very rational fear of a potential nationwide abortion ban if Trump is reelected.

But while the landscape for abortion rights will be less bleak if Democrats retain the White House next year, electing Harris alone will not be enough to restore these rights or prevent them from being ripped away again. Nor will it keep the far-right Supreme Court from laying the groundwork for the next Republican administration to implement the same reactionary social policies favored by the architects of Project 2025, the so-called blueprint for a second Trump term.

Aside from changing the composition of the Court, many advocates believe that passing the Equal Rights Amendment (ERA) is the best and possibly the only way to restore our abortion rights, and, more broadly, to protect the rights of millions of American women and LGBTQ+ people from current and future attacks. First proposed in 1923, the ERA would prohibit gender discrimination and ensure that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”—something our Constitution does not explicitly guarantee. Most crucially, it would also safeguard these rights no matter which political party is in power. Its passage has rarely felt so urgent; in the wake of Dobbs, Americans cannot afford to leave the ERA’s fate up to the leaders of either party. Congress has already repeatedly failed to pass federal legislation to protect abortion rights: With so much at stake, demanding that the Biden administration immediately publish this badly needed amendment, and, to a lesser extent, joining efforts to add gender equality provisions to state constitutions has become far more crucial to preserving our rights than voting alone.

According to the American Bar Association (ABA) and other experts, the ERA has already achieved the number of state ratifications required to add it to the Constitution. (Conservative activists argue that some states’ decisions to rescind their original ratifications means the ERA never met this threshold, but many legal scholars say those rescissions are legally invalid and can be ignored.) But while Biden has repeatedly affirmed his support for the ERA, he has, to the outrage of its proponents, resisted publishing it for years. Why he is so reluctant is anyone’s guess. Perhaps his administration is taking a conservative approach due to perceived legal issues and a general fear of rocking the boat, despite the ERA’s popularity and legal validity. Or maybe they think it’s in their best interest to preserve threats to equality that double as fundraising tools for the Democratic Party and its allies, which help them retain the support of voters who know today’s GOP will do nothing to publish the ERA or protect abortion rights, but still hold out hope that the Democrats might.

It could also be personal: Biden, who is technically pro-choice, is a notably poor advocate with an appalling record on the issue. By contrast, Harris speaks passionately about abortion and, in March, became the first sitting U.S. president or vice president to visit an abortion clinic in an official capacity. In her convention speech, she declared, “We trust women,” and vowed that when “Congress passes a bill to restore reproductive freedom” she would “proudly sign it into law.” Yet she offered no explanation as to why this didn’t happen when Democrats controlled Congress, no strategy for ensuring that it happens in the next Congress, and no reason why the Democratic administration she is currently a part of hasn’t yet published the ERA. There is also no reason to assume that if Harris wins in November, she will honor her 2019 presidential campaign pledge to pass the ERA in her first 100 days in office, either. In fact, she did not mention the ERA in her speech at all, despite the party’s promise in its official 2024 platform that “Democrats will fight to make the Equal Rights Amendment the law of the land.” Notably, this year’s platform also promised that “Democrats will work to pass the Paycheck Fairness Act”—something then President Obama promised to do over a decade ago—and repeal the Hyde Amendment, which bars federal programs like Medicaid from covering the cost of most abortions, and which Biden supported until June 2019. It did not explain how they plan to do so. (Neither the Biden administration nor the Harris campaign responded to my requests for comment by the time this was published.)

Nicole Vorrasi Bates, Executive Director of the pro-ERA organization Shattering Glass, did not mince words in a recent phone call. “Both parties are playing political football with the rights and lives of 187 million women, girls, and LGBTQ+ people,” she said. Regardless of who is in the White House, the Supreme Court will issue rulings in the next year that could further damage women’s legal standing for decades to come by subjecting claims of gender discrimination to a lower standard of judicial review—something that theoretically could not happen if we could point to language in the Constitution that explicitly guarantees sex equality, rather than relying on what many legal scholars consider an implicit guarantee under the 14th Amendment.

The quickest and most straightforward path to achieving that guarantee is to publish the ERA. As Mrinalini Sisodia Wadhwa explained in a 2020 Columbia Undergraduate Law Review article, “the Court has continually changed the test it uses to evaluate claims of sex-discrimination…Without [the ERA], the Court will continue to evaluate sex-discrimination cases without a steady metric, thereby leaving problems of inequality unsolved.” The fact that sex equality is not clearly guaranteed in the Constitution, Wadhwa wrote, gives the Court “a blank check to decide what test to use” and “how seriously to take challenges against statutes that discriminate on the basis of sex.”

Today, the vast majority of pro-ERA politicians are Democrats. But the ERA continues to enjoy broad bipartisan support among voters. A 2016 poll found that 90% of Republicans support it, which suggests that most non-elite Republicans favor basic equality—and GOP leaders are, on this issue, profoundly out of step with their base. A more recent 2022 poll shows that the vast majority of Americans still support the amendment—and gender equality—across party lines. Conservative activist Phyllis Schlafly derailed the ERA in the 1970s and left it for dead at the dawn of the Reagan era; decades later, fury at Trump resurrected it. Nevada ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, bringing the total number of state ratifications to the 38 required to make it part of the Constitution.

Twenty-nine states already explicitly guarantee sex or gender equality in their constitutions, which offers stronger and more durable protections for abortion rights than state laws banning discrimination. The ERA would guarantee these protections at the federal level. Such protections are necessary even in blue states with strong anti-discrimination laws for two main reasons: (1) laws are much easier to change and/or repeal than constitutional text and (2) gender discrimination claims are usually subject to intermediate scrutiny, which is a lower standard than the one applied in cases involving explicitly protected categories like race. This is because a minority of Americans with outsized power do not consider abortion a right and do not want U.S. courts to treat gender discrimination as seriously as other forms of prejudice. Once courts are required to apply the same standard to sex-discrimination cases, abortion restrictions, which apply almost exclusively to women, will be much harder to defend.

This is already clear at the state level. In Connecticut and New Mexico, the constitutions of which prohibit sex discrimination, courts have upheld public funding of abortion. The New Mexico Supreme Court is considering striking down abortion restrictions passed by conservative localities because they violate the state’s constitution. The Pennsylvania Supreme Court recently ruled that abortion providers can challenge Pennsylvania’s ban on Medicaid coverage for abortion as sex discrimination under the state’s Equal Rights Amendment and constitutional equal protection provisions. Even in blood-red Utah, the state Supreme Court recently upheld a suspension of the state’s abortion ban, keeping the procedure legal while the ban is being challenged in court. In suing to block the Utah ban, Utah Planned Parenthood argued that it violated several provisions in the state’s constitution, including the right to gender equality.

But as Wendy J. Murphy explained in a recent law review article, amending state constitutions is an imperfect strategy for reasons similar to those put forth by Wadhwa. According to Murphy, only thirteen states enforce their own constitutional gender equity provisions under the highest standard of judicial review. In Texas, for example, the state constitution’s sex equality provision failed to protect Texas women when the state Supreme Court concluded that abortion-related funding restrictions do not deny equality “‘because of’ sex, even though only women [can] become pregnant.” As Murphy argued, “without the ERA, States are free to apply their State constitutional equality guarantees unequally to women.”

This doesn’t mean that states’ efforts are futile. A year ago, abortion rights supporters had reason for cautious optimism: Ballot measures designed to enshrine abortion rights in state constitutions passed, and those intended to restrict such rights failed in all seven of the states, including red states like Kansas, Kentucky, and Ohio, that voted on these measures in the aftermath of Dobbs. In November, New Yorkers will vote on whether their constitution should guarantee equality regardless of gender and reproductive status. (New York’s constitution currently prohibits discrimination on the basis of “race, color, creed or religion,” but not “sex.”) Floridians, too, will have the opportunity to enshrine abortion rights in their constitution. Abortion-related state constitutional amendments are also on the ballot or under consideration in Arizona, Arkansas, Colorado, Maryland, Missouri, Montana, Nebraska, Nevada, and South Dakota.

Yet some recent efforts to protect abortion and other rights via state constitutions have stalled. Despite having approved a resolution calling on Congress to ratify the federal ERA in 2023, Minnesota was unable to pass a state ERA in 2024. Minnesota’s proposed amendment did not include the word “abortion,” but it would have protected Minnesotans’ right to make “decisions about all matters relating to one’s own pregnancy or decision whether to become or remain pregnant.” An effort to enshrine abortion rights in Maine’s constitution similarly failed in April after lawmakers voted against putting the proposal on the November ballot. The Maine proposal, which would have asked whether Mainers wanted their state constitution “to declare that every person has a right to reproductive autonomy,” also omitted the word “abortion,” though supporters did not avoid the word in promoting it.

Even states that have managed to get reproductive rights on the ballot have had to fight to include the word “abortion.” In New York, pro-choice advocates and legislators attempted to revise the language of the upcoming ballot measure to make its primary purpose—protecting abortion rights—clear, after the state board of elections voted to exclude the word “abortion” from the initiative’s description. Democrats challenged that decision on the grounds that the state is obligated to provide easy-to-understand explanations of ballot proposals to voters. A judge recently upheld the vague language, and state Democrats are now squabbling over whether to keep fighting for the broadly popular initiative or retreat in hopes of neutralizing bad-faith GOP attacks on Democrats in swing districts. But allowing an abortion-rights initiative to fail in deep-blue New York would have serious implications for women’s and LGBTQ+ rights nationwide.

Gender equality as a concept is broadly popular in the United States, whether or not it always exists in fact. And as we’ve seen many times in the wake of Dobbs, abortion rights are popular and restricting them is not. That’s why the GOP is working so hard to keep abortion off of state ballots and overrule the will of the voters, and why New York Democrats belatedly tried to tie the word “abortion” to the state’s upcoming ballot proposal: Both parties know that opportunities to defend abortion rights drive voter turnout. But whatever happens in November, our rights would be better protected if Biden simply published the ERA today.

Despite her frustration with the two major parties, Bates remains hopeful that the tide is beginning to turn. “In light of recent events, and given all that’s at stake, the momentum for ERA publication is growing exponentially,” she recently said. Whoever our next president is, one thing is clear: Actions speak louder than words, and we will need to do more than vote to take back our rights.