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February
15, 2003
Re:
"Equal Rights Amendment" and Abortion
Dear Member of Congress:
According
to a recently published report, Congresswoman Carolyn Maloney and
Congressman Jim Leach are seeking cosponsors for a new resolution to
add the "Equal Rights Amendment" to the Constitution. For the
reasons explained below, the National Right to Life Committee (NRLC)
urges you not to cosponsor or otherwise support the Maloney-Leach
resolution in its current form. [Note: the same resolution will
be introduced in the Senate by Senator Kennedy.]
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. They have had some
successes, most recently in the New Mexico Supreme Court, which
ruled unanimously that the state ERA requires tax-funding of
abortion. You can read the New Mexico Supreme Court ruling and
other documentation on the ERA-abortion connection on the NRLC
website at
www.nrlc.org/Federal/ERA/Index.html.
The
Maloney resolution would add to the Constitution the following
prohibition, "Equality of rights under the law shall not be denied
or abridged by the United States or by any state on account of
sex." This 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 -- by a vote of 5-0 -- ruled 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)
In its
ruling, the court merely adopted the construction of the ERA urged
upon it 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 polemicists 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 see the devastating result of enacting an ERA that does
not include explicit abortion-neutral language.
If any
law that treats abortion any differently from any other "medical
procedure" is deemed to violate the "standard" ERA language, such as
that proposed by Congresswoman Maloney, then no significant
limitation on abortion would survive under such an ERA. 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.
All of
these results could be avoided if the following
abortion-neutralization 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 would
withdraw its opposition to the proposed federal ERA if this
abortion-neutral amendment was added.
Finally,
for the same reasons that we oppose the Maloney-Leach resolution, we
ask you not to cosponsor H. Res. 38, an odd measure sponsored by
Congressman Robert Andrews.
H. Res.
38 expresses the view that Congress should declare the original ERA
submitted to the states in 1972 to be ratified, if three more states
now declare it to be ratified -- even though the legal deadline for
ratification passed without ratification by the required 38 states.
Sincerely,
Douglas
Johnson
Legislative Director |
