To: Missouri Journalists and Legislators

From: Douglas Johnson, Legislative Director, National Right to Life Committee

Re: The ERA-Abortion Connection: A "Scare Tactic"?

Date: April 3, 2000

 The St. Louis Post-Dispatch editorialized on March 30 in favor of measures (SCR 32, HJR 42), pending in the Missouri legislature, which purport to ratify the "Equal Rights Amendment" to the U.S. Constitution proposed by Congress in 1972. (The congressionally dictated deadline for ratification of that proposal expired many years ago, but the pending state resolutions are based on a controversial legal theory that such deadlines have no force.) The Post-Dispatch said:

[T]he ERA and women’s equality should be about as controversial as apple pie and motherhood. Instead, the hoary, scare stories get trotted out: The ERA will lead to taxpayer-financed abortions and same-sex marriages. There’s no evidence that any of that is true, but that’s not the point anyway. Abortion and homosexuality are emotional buzzwords . . . meant to short-circuit rational debate.

We will leave it to others to debate the impact of the 1972 ERA wording on same-sex marriages. But regarding the legal link between the ERA and abortion, the Post-Dispatch editorial itself was surely no example of "rational debate," since it was entirely non-substantive and apparently written in ignorance of concrete evidence that the ERA indeed could have a sweeping impact on abortion-related laws.

In fact, many prominent pro-abortion organizations and attorneys have argued, for 15 years and more, that the proper legal interpretation of the language contained in the 1972 congressionally proposed ERA, and similar language in the ERAs adopted by some states, is to invalidate restrictions on tax-funded abortions -- and, indeed, to invalidate virtually any other law that distinguishes between abortion and other "medical procedures." For example, attorneys for the American Civil Liberties Union (ACLU) have long argued that state laws requiring parental notification for minors’ abortions, as well as restrictions on state-funded abortions, violate state ERAs. Their legal argument boils down to this: only females seek abortions, so any government policy that restricts access to abortion or that treats abortion differently from procedures performed on men is, on its face, an abridgement of "rights . . . on account of sex" – which is precisely what the ERA forbids.

A 1998 ruling by the New Mexico Supreme Court provides the clearest and most recent demonstration of the power of such ERA language as a pro-abortion legal weapon. In a case called New Mexico Right to Choose/NARAL v. Johnson, a coalition of major pro-abortion groups (including state affiliates of Planned Parenthood and the National Abortion and Reproductive Rights Action League) filed a lawsuit against the state of New Mexico, arguing that the state policy against state Medicaid funding of abortion (except to save the life of the mother, or in cases of rape or incest) violated that state’s ERA. (The New Mexico ERA says, "Equality of rights under law shall not be denied on account of the sex of any person." This language is very close to the 1972 federal proposal: "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 pro-abortion groups won a complete victory. Every justice agreed that the state's refusal to fund abortions violated the ERA. Moreover, this ruling was based entirely on the ERA. So much for the Post-Dispatch’s "no evidence" assertion.

Writing for the unanimous court, Justice Pamela Minzner wrote that the state's rule "undoubtedly singles out for less favorable treatment a gender-linked condition that is unique to women." She also wrote, "Under the Department's regulations, there is no comparable restriction on medically necessary services relating to physical characteristics or conditions that are unique to men. Indeed, we can find no provision in the Department's regulations that disfavor any comparable, medically necessary procedure unique to the male anatomy."

In evaluating the Post-Dispatch’s suggestion that the ERA-abortion link was fabricated by ERA opponents, it is worth noting the major national organizations that filed briefs urging the New Mexico Supreme Court to adopt the doctrine that the ERA mandated state-funded abortion: NARAL, Planned Parenthood, ACLU, Center for Reproductive Law & Policy, NOW Legal Defense and Education Fund. In addition, such briefs were filed by the state Women's Bar Association, Public Health Association, and League of Women Voters.

When questioned about the New Mexico ruling, some ERA proponents reply that the U.S. Supreme Court has previously reviewed abortion-related restrictions under a "privacy right" analysis, and ruled (5-4, in 1980) that this "privacy right" does not invalidate a law (the Hyde Amendment) restricting federal Medicaid funding of abortion. They go on to assert that the proposed federal ERA would not "change" these past "privacy" rulings. But this "response" is evasive, wholly begging the question. Obviously, past U.S. Supreme Court rulings on abortion issues have purportedly been based on the current U.S. Constitution – without the ERA’s absolute prohibition on abridgement of "rights" on the basis of "sex." Whatever one thinks of the Supreme Court’s "abortion privacy" doctrine, that doctrine is irrelevant to the question of what legal impact the ERA itself – as a new constitutional provision -- would have on future cases involving abortion-related laws, including laws dealing with state funding of abortions, partial-birth abortion, conscience rights of pro-life medical providers, parental notification laws, and so forth.

Since 1983, the National Right to Life Committee (NRLC) – recognizing the likelihood of judicial interpretations such as the New Mexico ruling -- has insisted on the need for adoption of an "abortion-neutralization amendment" to any federal ERA. Sponsored by Congressman James Sensenbrenner (R-Wi.), the amendment would add to any proposed ERA the sentence, "Nothing in this article [the ERA] shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof." NRLC and Missouri Right to Life oppose the Missouri ratification resolutions because they purport to ratify the 1972 proposal, which does not contain such abortion-neutral language.