The Constitution is the best and most difficult way to protect abortion rights 

In March, France’s parliament enshrined abortion rights in its constitution, becoming the world’s first nation to do so. The measure, introduced in 2022 and supported by President Emmanuel Macron, passed with a huge majority of the assembly and overwhelming support among the French people. The action was spurred in large measure by the shocking reversal of the Roe v. Wade decision in the U.S. 

As one French woman told NPR, “I’m sad for American women and I hope France can be a model for the world, especially the U.S.”

Just as Americans followed the French and embraced democracy nearly 250 years ago, the time has come for us to again follow their example and amend our constitution to enshrine abortion in the name of liberté and egalité (liberty and equality), if not fraternité (brotherhood).

The abysmal state of abortion access and the catastrophic consequences of the Dobbs decision on women’s health and well-being are coming into focus, and already, the picture is grim. Millions of American women live in states with such extreme abortion restrictions that they must carry unwanted pregnancies to term or face life-threatening consequences when critical abortion access is denied. 

Recent arguments before the Supreme Court lay bare just how dire the situation already is. Take, for example, the Idaho law the Biden administration is challenging — so extreme that it prevents doctors from providing emergency abortion, even in life-and-death situations.

Legal fights like these, stories of child rape victims forced to become mothers, the fight over a now-repealed 1864 Arizona ban and threats of prosecution for seeking abortions if Trump becomes president have rewritten the political landscape and galvanized women across the political spectrum to act.  

Florida and Arizona will both put abortion access to voters with referenda this fall. Activists in North Dakota and Missouri are working toward the same. And despite what once might have seemed long odds, advocates have reasons to be optimistic. Not one statewide referendum to protect abortion rights has failed since Dobbs, even in red states such as Kentucky and Ohio. 

Democrats are counting on widespread support for abortion access to help propel their victories in the fall, and President Biden has promised that if Democrats win, his top priority will be to pass federal abortion protections.

Still, even if Democrats regain the House and hold the Senate, the path to legislative progress is not assured. Filibuster rules in the Senate require 60 votes for cloture, a bar that could be impossible to meet, given the slim margins likely to result even if Democrats sweep. And of course, all legislation is subject to repeal by future majorities or could be mired in endless court challenges.  

Given these realities and lifetime Supreme Court appointments, the only long-term guarantee for rights and access is to amend the Constitution. That seems more urgent now than ever.

Unfortunately, the American Constitution is among the most difficult in the world to amend. It has just 27 amendments, the first ten of which are the Bill of Rights, established in 1791. Compare that to India, where more than 100 amendments have passed since its constitution was ratified in 1949. The last time Americans ratified an amendment was 32 years ago, and that amendment (concerning congressional pay) had been first proposed in 1789. 

Just proposing an amendment to our system is difficult, and ratification is even harder. One option is by a two-thirds majority vote in both the House and the Senate, something impossible given the current Congressional divide. 

But another solution exists. Amendments can also be proposed if a national convention is called by two-thirds of state legislatures. Once proposed, amendments can be ratified either by three-fourths of state legislatures or by conventions in three-fourths of the states. Unfortunately, none of the 27 amendments ratified to date were proposed by a national convention. All have followed congressional votes. 

Today, Republicans control 28 state legislatures — 59 percent of all states, excluding Nebraska, whose legislature is nominally non-partisan. Democrats control only 40 percent of state legislatures. So it is highly unlikely that the three-fourths bar will be cleared in the near future.

Further, because of gerrymandering, state legislatures are inaccurate representations of American political ideology. Most Americans support legal abortion, even in states that have banned it. 

If given a chance and a strong continued campaign, it seems possible that Americans in at least two-thirds of the states could eventually flip their majorities and come out in support of a constitutional abortion rights amendment. The hard part will be giving them that chance.

Kitty Kolbert, a reproductive rights attorney who argued Planned Parenthood v. Casey before the Supreme Court in 1992, told me an amendment will take at least 50 years to achieve. Still, Kolbert and other activists recognize that only an amendment can fully and permanently restore abortion rights and protect other rights under assault, including birth control and in-vitro fertilization. 

It is unclear whether even reviving the long-dreamed Equal Rights Amendment would resolve key questions of abortion rights. In the Dobbs decision, the justices made it clear they didn’t see gender equality as relevant to their ruling on abortion access.

It took abortion opponents 50 years to overturn Roe. Millions of women in states like Florida and Idaho can’t wait that long to address the pressing healthcare emergency they face. With obstetricians fleeing states with abortion bans, and women facing harrowing medical crises daily, the idea of waiting an entire generation for remedy is hardly reassuring.  

That may be why the Biden administration and activists have focused squarely on the here and now, emphasizing the urgency of Democratic victories this November to turn the tide on abortion access. Clearly, a Democratic majority is essential to preventing the national abortion ban and further erosion of abortion rights and access promised by the right.  

Still, a long-term vision for a transformative political goal is exactly what kept the anti-abortion forces focused like a laser over the last 50 years until they achieved their ultimate victory. And while the system is unquestionably hard to reform, the challenge of making right the terrible wrongs of the Dobbs decision is worth the long-term vision and commitment.  

Every ratified amendment, from the 19th Amendment giving women the right to vote and the 14th Amendment ending slavery, was decades, even centuries in the making. The long arc of the moral universe was worth bending toward justice for the millions that helped make those essential changes to our Constitution possible.  

The French were right about the fundamental human need for freedom when they inspired American colonists to overthrow oppressive English rule. Perhaps they will inspire Americans again to overcome a new kind of oppressive rule abridging human rights and freedoms today. 

Lauren Leader is co-founder and CEO of All In Together, a women’s civic education organization and host of Majority Rules on 2Way.  All opinions are her own.