What
follows is a letter sent by the National Right to Life
Committee (NRLC) to members of the U.S. Senate, dated
March 29, 2007. For a current list of co-sponsors of S.
J. Res. 10 (the ERA/Women's Equality Amendment),
arranged by state, click
here.
For a list of co-sponsors of the companion resolution in
the U.S. House of Representatives, H. J. Res. 40, click
here.
To read a similar letter sent to members of the House,
click
here.
Re: S. J. Res. 10 ("Women's Equality Amendment" or
"Equal Rights Amendment") and abortion
Dear
Senator:
For
the reasons explained below, the National Right to
Life Committee (NRLC) urges you not to cosponsor or
otherwise support S. J. Res. 10, sponsored by
Senator Kennedy, unless it is amended in the fashion
described below.
S.
J. Res. 10 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."
S. J. Res. 10 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. S.J. Res. 10
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 S. J. Res. 10 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 S. J. Res. 10 is brought to the
Senate
floor, NRLC will urge adoption of the remedial
abortion-neutral amendment. If the amendment is not
adopted, NRLC will oppose passage of S. J. Res. 10,
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.
