The following letter was sent by NRLC to members of Congress on March 22, 2001.
Re: "Equal Rights Amendment" and Abortion
Dear Member of Congress:
Today, Congresswoman Carolyn Maloney and others intend to reintroduce the proposed "Equal Rights Amendment" to the Constitution. The National Right to Life Committee (NRLC) urges you not to co-sponsor or otherwise support this measure in its current form. Recently courts in two states have construed state ERAs to require tax-funded abortion on demand B rulings that demonstrate the absolute need to attach an "abortion-neutral amendment" to any such resolution.
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 B by a vote of 5-0 B 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 without restriction under the state=s Medicaid program. (NM Right to Choose / NARAL v. Johnson, No. 1999-NMSC-005)
In its ruling, the New Mexico Supreme 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 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.
In addition, on December 7, 2000, the Texas Court of Appeals (Third District) ruled that the state=s prohibition on tax-funded elective abortions violated the Texas ERA. That ruling is on appeal to the Texas Supreme Court. The Texas ERA reads, "Equality under the law shall not be denied or abridged because of sex . . ." (Low-Income Women of Texas v. Bost, No. 03-98-00209-CV)
None of this comes 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 and Texas 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" violates traditional ERA language, then no significant limitation on abortion could 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.
NRLC would withdraw its opposition to the ERA 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.
Please contact the NRLC Federal Legislative Office (202-626-8820, Legfederal@aol.com) to obtain a copy of the New Mexico Supreme Court ruling, the Texas court of appeals ruling, or other documentation on the ERA-abortion connection.