Not going to go into the actual process in detail, what’s required in terms of fractions and votes. This is more about the idea of a movement to fix in the Constitution the right to choice in pregnancy and abortion. But it’s also about the movement that will be needed, and the ways to help that along.
If you want to amend the Constitution, state-level support is necessary. All amendments must be ratified by the states (at least three out of four). But if you want to amend the Constitution, that’s a feature! Yes, a number of states are domineered by anti-rights Republicans who hold power by a number of mechanisms including gerrymandering, voter suppression, lack of public-access laws, so the road to ratification has to drive through at least a few of those, requires their rectification.
But a campaign for the Constitution is an asset in building those roads! It draws media attention, and if done properly, it magnetizes different groups to pitch in. So let’s start with that second thought: this isn’t about an abortion amendment by itself. This is about renewal. It’s about taking up that mighty pen and fixing the holes that have developed over the past decades.
So in the states, you don’t only push an abortion amendment, you also push for gay marriage and civil rights for LGBTQ persons. Rally for the Equal Rights Amendment for women, for a piece to fix campaigns and gerrymandering. Update the second amendment! Term limits, number of seats in the House, abolish the filibuster, and so on. Whatever the mix. Not all of them will pass. But the commitment and the collaboration are important.
More important is many things deserve to be in the Constitution, if only to memorialize the struggles it took to make progress. The Constitution should be not just a record of the highest law, but it should be a teaching tool, a history of America’s progress toward liberty and justice. It was written “to form a more perfect Union,” and each major step we take to improving its perfection deserves to be added to that.
What can states do to help this along? They can signal willingness to ratify, they can push state-level amendments ahead of the effort for amending the federal constitution, and they can call for a constitutional convention to attempt to propose the amendments for ratification, going over the heads of Congress. They will also garner media attention, help spread the word.
The media attention is key. People need to know about the road to use it. It’s not a shortcut, it’s not a dead end, it’s the way forward. People need to know a road is being built to get our country back into the future. In some states, those which already will codify and protect their citizens’ rights, it will be an easy sell. They’ll pass state-level protections, pass a resolution calling for a convention, but some of them will also help organize neighboring states where the path for the road needs clearing, or where a bridge needs to be built.
We’ve never had a constitutional convention other than since the one that created the Constitution. That may be another amendment that’s needed: that we hold conventions every ten years, or every 20 years. It is a document that needs more tending than we have given it. The Constitution was written with an expectation that it would be amended over time, but perhaps they were too generous in expecting the convention mechanism would see some use by accord of the states rather than as a requirement. That is among the mistakes they made for which we owe our current crusty impasse on political progress.
There are risks to a convention, that conservatives want an amendment to require the federal budget be balanced in terms of revenue and spending. We’ve almost never had a balanced budget, going back to the founding. It’s a bad idea. But would it pass the states? If proposed, we’d find out. All the while, it would keep the other amendments in the news, for gay rights and abortion and all the others that might be proposed.
And in the worst case, that such a dumb amendment was to pass, the federal government’s hands unduly bound by its budget, it would surely be repealed as prohibition once was. The risks of conservative amendments being ratified simply does not rate against the need to protect our citizens and renew our Constitution to protect the nation’s future.
Or maybe the conservatives at a convention would rally for some other dumb idea. We cannot let fear of more bad law stop us from seeking good laws. We already have more than our share of bad rulings and laws, thanks to the conservatives. We already have failed in environmental protections, in education, in civil rights protections, in blocking corruption, in all these things, for the Republicans have used their fiats and their vetoes to see to it.
As women’s rights are stripped away in some states, as women suffer, the media will be covering that issue until the right is restored to the whole country. Advocates are already poised to use that attention to keep pressing the issue, but if they can wed it to the broader movement of constitutional reform, it will help people to understand the difference. We can no longer rely on statutory protections or precedents that may be gone by the end of the court’s next sitting.
The anti-abortion movement has not prepared for a post-Roe world. The things that a good government would have already done, regardless of abortion politics, have not been done. (On 18 May 2022, a mere dozen Republicans voted to spend $28 million to alleviate the baby formula shortage! See US House: 18 May 2022: Roll Call 220.) These include:
- Family leave
- Reducing poverty
- Clean air policies to reduce miscarriages and stillbirths
- Healthcare access, including Medicaid expansion (especially prenatal care)
Indeed, they would have long been done by empowered Democrats, but even as Republicans have agitated to ban abortions, they have sought to make abortions all the more attractive to those who are left unsupported, and their pro-pollution policies have resulted in large numbers of miscarriages and stillbirths.
The media hasn’t done enough to tell those stories, but in a post-Roe world, the media will start telling them, and it should relate them to women’s rights and the failures of the anti-abortion movement. At the same time, if the reform movement advocates for some change, it will do well to prepare by pushing for any laws or programs that would be needed should their goal be reached.
A constitutional reform movement will make it clear, as the robed Republicans would do in overturning Roe, that we must memorialize our nation’s progress in the Constitution. Nothing less will do. They will steal our rights away from us if we do not put them out of the reach of those spoiled children.
The Voting Rights Act—a statute, a codification—was constitutional until the court decided a Black president meant racism was through. And now the states are using their power to make voting harder, even banning handing out water to the thirsty people waiting to vote. Abortion was protected until Republicans stole enough seats to tear it away. It needs to go in the strongbox of the Constitution, where it can be amended out if need be, but it can’t be taken out by the black dresses.
There are those who say codifying Roe, much less amending the Constitution, is all but impossible. Today it is. Today we suffer under the regime of the past, under the shadows of bygone sins, the remnant pollutions of racism and sexism. But tomorrow? Are we forever stuck in this moment? Do our clocks no longer tick? I say they do.
If trampling rights signifies anything, it is that politics do change, and that we have the choice and the right to alter or abolish governments—through voting—that have become destructive to our liberty. Journalists and writers who don’t remind you of that do a disservice to the document protecting their right to write.