In October 1972, Birch Bayh published an article in the Notre Dame Law Review entitled “The Need For the Equal Rights Amendment.” Note the date. This was after the ERA was sent to the states for ratification but before Roe and Frontiero. What you see through this window is a different view of what constitutional law could have looked like.
While Senator Bayh repeated many of the standard arguments for the ERA, he made two points that startled me. Here is #1:
“[A] law which bases legal consequences on a characteristic unique to only one sex (e.g., the ability to bear children) would be fully constitutional.”
This was saying that state abortion bans would be valid under the ERA, though Bayh never used the word “abortion” in the article. T
#2 involved “the rights to privacy established in Griswold v. Connecticut. As the House and Senate Committee Reports on the Amendment both stated, ‘[T]his right [to privacy] would . . . permit a separation of the sexes with respect to such places as public toilets, as well as sleeping quarters of public institutions.”
This right to privacy is very different from the one that we learned in school. Abortion is not included, but other issues that are still considered valid sex distinctions (bathrooms in public buildings) are. It’s not hard to see how Roe pulled the rug out from under Bayh’s arguments. I don’t know, though, to what extent he anticipated Roe. The Bayh Subcommittee did hold many hearings on that case (more than on any other, which is telling) but the ERA rarely came up.