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January 13, 2011
Re: the “Equal Rights Amendment” and abortion
On January 6, 2011, Senator Robert Menendez
participated in a press conference pertaining to the proposed “Equal
Rights Amendment” (ERA) to the U.S. Constitution, at which he and
others made statements indicating that this proposal might soon be
re-introduced in Congress. For the reasons explained below, the
National Right to Life Committee (NRLC) urges you not to cosponsor
or otherwise support such a resolution, unless it is revised in the
fashion that we propose below.
Senator Menendez and his 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
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
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
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 --
“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 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
At the January 6, 2011 press conference, Senator
Menendez said, “It’s time to finally pass in the House and the
Senate and then ratify the Equal Right Amendment.” Based on that
statement and others, it appears to us that Senator Menendez and the
other members of Congress who are preparing to re-introduce the ERA
do not embrace the notion that the 1972 ERA is still alive before
the state legislatures. After all, it would not make much sense for
Congress to begin again the entire arduous process of proposing an
amendment to the Constitution, if identical amendment language
really was still pending and available for ratification before the
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.
In summary: If the “Equal Rights Amendment” is
brought to the Senate floor, NRLC will urge adoption of the remedial
abortion-neutral amendment described above. If the revision 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.
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
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
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
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