| To view or download this letter in PDF format,
click here
June 22, 2011
Re:
the “Equal Rights Amendment” and abortion
Dear Member of Congress:
We understand that Congresswoman Carolyn Maloney (D-NY) will hold a
press conference today to announce reintroduction of the proposed
“Equal Rights Amendment” (ERA) to the U.S. Constitution. The
National Right to Life Committee (NRLC) urges you not to cosponsor
or otherwise support this resolution, unless it is revised in the
fashion that we propose below.
Rep. Maloney and her allies wish to add to the U.S. 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. This Amendment shall
take effect two years after the date of ratification.”
Congress proposed the same language to the states
in 1972, with a seven-year ratification deadline. The deadline
passed without ratification by the required number of states.
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 constitutional 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 F. James 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.
REGARDING 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 resolution, many ERA proponents insist that the ERA
that Congress approved in 1972 is still eligible for ratification by
state legislatures. They also insist that only three more state
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 far-fetched -- so
much so, that not a single state legislature has passed a
ratification resolution in the 17 years since the theory was
concocted. However, it should be obvious that if the theory is valid
– if the original 1972 ERA is still alive and available for
ratification by additional state legislatures – then it makes no
sense for Congress to re-start the entire constitutional amendment
process (with identical amendment language), as Ms. Maloney
proposes.
In a July 2009 “Dear Colleague” letter, Ms.
Maloney herself asserted that “the deadline passed” on the 1972 ERA
without ratification being achieved, and that “Congress should give
the states another chance” (by passing her new ERA). Nevertheless,
on March 8, 2011, Congresswoman Tammy Baldwin (D-Wi.) introduced a
resolution (H. J. Res. 47) endorsing the three-state theory – and on
June 15, Rep. Maloney cosponsored that resolution, even though it
rests on premises that are clearly incompatible with her proposal to
re-start the amendment process.
Additional information on the status of the 1972
ERA, and on the last vote that occurred in Congress on an ERA (in
1983), appears after our signatures in this letter.
CONCLUSION
In summary: If the “Equal Rights Amendment” is brought to the House
floor, NRLC will urge adoption of the remedial abortion-neutral
amendment (Sensenbrenner Amendment). If the amendment is not
adopted, NRLC will oppose passage of the ERA, and will include the
roll call on passage in its scorecard of key pro-life roll calls of
the 112th Congress.
Thank you for your consideration of NRLC’s position on this
important issue.
Sincerely,
Douglas Johnson
Legislative Director
National Right to Life Committee
512-10th Street, Northwest
Washington, D.C. 20004
Susan Muskett, J.D.
Senior Legislative Counsel
National Right to Life Committee
http://www.nrlc.org/Federal/era/Index.html
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 cosponsors, 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.
Further documentation on these events is posted at
http://www.nrlc.org/Federal/ERA/index.html
To return to the "ERA" index, click
here.
To return to the NRLC homepage, click
here. |
