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What follows is the text of a letter
sent by NRLC to members of the U.S. House of Representatives on
March 28, 2007.
For a list of co-sponsors of H.
J. Res. 40, click
here.
To view or download a PDF copy of this
letter, click here.
March 28, 2007
Re: H.J. Res.
40 ("Women's Equality Amendment" or "Equal Rights Amendment")
and abortion
Dear Member of
Congress:
For the reasons
explained below, the National Right to Life Committee (NRLC)
urges you not to cosponsor or otherwise support H. J. Res. 40,
sponsored by Congresswoman Maloney, unless it is amended in the
fashion described below.
H.J. Res. 40
proposes a federal constitutional amendment that is now
apparently referred to by some as the "Women's Equality
Amendment," but which has long been known as the "Equal Rights
Amendment" (ERA). According to the Washington Post
(March 28), "House and Senate Democrats . . . vowed to bring it
to a vote in both chambers before the end of the session."
H.J. Res. 40
would add to the Constitution the following amendment:
"Equality of rights under the law shall not be denied or
abridged by the United States or by any State on account of
sex. The Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article."
Congress proposed the same language to the states in
1972, with a seven-year ratification deadline. H.J. Res. 40
contains no deadline for ratification.
THE
ERA-ABORTION CONNECTION
Leading
pro-abortion groups – including NARAL, the ACLU, and Planned
Parenthood -- have strongly urged state courts to construe state
ERAs to require tax-funded abortion on demand, and state ERAs
have been so construed in New Mexico and Connecticut.
The proposed
federal amendment is very similar to the language of the ERA
which New Mexico added to its state constitution in 1973, which
says, "Equality of rights under law shall not be denied on
account of the sex of any person." On November 25, 1998, the
New Mexico Supreme Court ruled 5-0 that such language prohibits
the state from restricting abortion differently from "medically
necessary procedures" sought by men, and the court ordered the
state to pay for elective abortions under the state's Medicaid
program. (NM Right to Choose / NARAL v. Johnson, No.
1999-NMSC-005) (You can read the ruling and related documents on
the ERA page of the NRLC website at
http://www.nrlc.org/Federal/ERA/Index.html)
In its ruling,
the court adopted the construction of the ERA urged in the case
by Planned Parenthood, the National Abortion and Reproductive
Rights Action League, the ACLU, the Center for Reproductive Law
and Policy, and the NOW Legal Defense and Education Fund. The
doctrine that the ERA language invalidates limitations on
tax-funded abortion was also supported in briefs filed by the
state Women's Bar Association, Public Health Association, and
League of Women Voters.
These briefs,
and a court's agreement with their argument, should not come as
any surprise to knowledgeable observers. During the 1970s and
1980s, many pro-ERA advocates insisted that there was "no
connection" between ERAs and abortion, but NRLC warned
otherwise. As we predicted, pro-abortion advocacy groups have
increasingly employed the ERA-abortion argument in state courts,
and in New Mexico we saw the devastating result of enacting an
ERA that does not include explicit abortion-neutral language.
Once a court
adopts the legal doctrine that a law targeting abortion is by
definition a form of discrimination based on sex, and therefore
impermissible under an ERA, the same doctrine would
invalidate virtually any limitation on abortion. For example,
under this doctrine, the proposed federal ERA would invalidate
the federal Hyde Amendment and all state restrictions on
tax-funded abortions. Likewise, it would nullify any federal or
state restrictions even on partial-birth abortions or
third-trimester abortions (since these are sought only by
women). Also vulnerable would be federal and state "conscience
laws," which allow government-supported medical facilities and
personnel -- including religiously affiliated hospitals -- to
refuse to participate in abortions. Moreover, the ACLU's
"Reproductive Freedom Project" published a booklet that
encourages pro-abortion litigators to use state ERAs as legal
weapons against state parental notification and parental consent
laws.
THE REMEDY: AN
ABORTION-NEUTRAL AMENDMENT
All of the
pernicious results outlined above could be avoided if the
following "abortion-neutral-amendment" -- originally proposed by
Congressman Sensenbrenner in 1983 -- is added:
"Nothing in
this Article [the ERA] shall be construed to grant, secure, or
deny any right relating to abortion or the funding thereof."
This proposed
revision would not change the current legal status of abortion,
nor would it permit the ERA itself to be employed for
anti-abortion purposes. Rather, the revision would simply make
the ERA itself neutral regarding abortion policy.
NRLC
will
withdraw its opposition to the proposed federal ERA if this
abortion-neutral amendment is added.
THE THEORY THAT
THE ORIGINAL 1972 ERA
IS STILL ALIVE
BEFORE THE STATES ("THREE-STATE STRATEGY")
Curiously, at the same time they are urging Congress to
approve a new federal ERA, many ERA proponents insist
that the ERA which Congress approved in 1972 is still
eligible for ratification by state legislative bodies.
They also insist that only three more ratifications are
needed to make the 1972 resolution part of the
Constitution. The legal reasoning behind this
"three-state strategy," originally set forth in 1994, is
quite unpersuasive -- so much so, that not a single
state legislature has passed a ratification resolution
in the 13 years since the theory was concocted. The most
recent such attempt, just last month, was voted down in
a committee of the Arkansas House after 20 House members
withdrew their cosponsorships. Details on the
recent events in Arkansas, and other information on the
"three-state strategy," are available on the NRLC
website at
http://www.nrlc.org/Federal/ERA/NRLNthreestateArkansasMarch2007.pdf
It appears that
the architects of H.J. Res. 40 must be doubtful about the claim
that the 1972 ERA is still alive before the state legislatures.
After all, it would not make much sense for Congress to send to
the states a proposed constitutional amendment, beginning the
entire ratification process from square one, if the
identical language really is still pending before the state
legislatures.
Additional
information on the status of the 1972 ERA, and on the last vote
that occurred in Congress on an ERA (in 1983), appears below our
signatures in this letter.
CONCLUSION
In summary: If
H.J. Res. 40 is brought to the House floor, NRLC will urge
adoption of the remedial abortion-neutral amendment. If the
amendment is not adopted, NRLC will oppose passage of H.J. Res.
40, and will include the roll call on passage in its scorecard
of key pro-life roll calls of the 110th Congress.
Thank you for
your consideration of NRLC's position on this important issue.
Sincerely,
Susan Muskett,
J.D.
Congressional
Liaison
National Right
to Life Committee
ADDITIONAL INFORMATION ON THE 1972 ERA
The 1972 ERA
was ratified by 35 legislatures before the seven-year
ratification deadline expired. (Of these, 26 explicitly
referred to the deadline in their resolutions of
ratification.) However, five of these 35 states withdrew
their ratifications before the deadline arrived. The only
federal court to consider the issue ruled that these
rescissions were valid.
In 1978,
Congress passed a controversial bill, by majority vote, that
purported to extend the ratification deadline for 39
months. During this disputed "extension," no new states
ratified or rescinded.
In 1981 a
federal court ruled that the rescissions were valid, and
also ruled that the purported deadline extension was
unconstitutional. In 1982, the Supreme Court declined to
review this case, holding that the issue was moot because
the ERA had failed ratification with or without the
rescissions and with or without the purported extension.
Documentation is posted on the NRLC website at
http://www.nrlc.org/Federal/era/Index.html
In 1983, the
House majority (Democratic) leadership also recognized that
the 1972 ERA was dead. They brought to the House floor,
under suspension of the rules, a new resolution containing
the same proposed constitutional amendment, again with a
seven-year deadline -- an effort that, if successful, would
have begun the entire ratification process anew.
However, the resolution was defeated on the floor of the
House (278-147, November 15, 1983). Among those voting "no"
were 14 co-sponsors, most of whom were among the majority
who wanted to add the abortion-neutral amendment. Neither
house of Congress has voted on an ERA since that day.
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