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March 5, 2015
RE: the “Equal Rights Amendment” and abortion
Dear Member of Congress:
In a “Dear Colleague” letter dated February 27, Congresswoman Carolyn Maloney announced that she will soon reintroduce the proposed “Equal Rights Amendment” (ERA) to the U.S. Constitution. The National Right to Life Committee (NRLC) opposes the language proposed by Rep. Maloney, and urges you not to cosponsor or otherwise support her resolution, unless it is revised in the fashion that we propose below.
The key operative language of Rep. Maloney’s proposal is as follows: “Women shall have equal rights in the United States and every place subject to its jurisdiction. 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 and the several States shall have the power to enforce, by appropriate legislation, the provisions of this article.” This proposal is similar to the Equal Rights Amendment that was proposed by Congress to the states in 1972, which contained a seven-year ratification deadline. That deadline passed without ratification by the required number of states.
The proposed language predictably would be construed to invalidate virtually all limitations on abortion, including late abortions, and to require promotion and funding of abortion in all government programs on the same basis as any other “health” service.
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 www.nrlc.org/federal/era/)
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 by the addition of the following “abortion-neutral-amendment” to the ERA, as was 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.
As we have stated consistently since 1983, NRLC will withdraw its opposition to the proposed federal ERA if this abortion-neutral amendment is added. Tellingly, leading pro-ERA advocacy groups have adamently refused to accept such a revision.
REGARDING THE THEORY THAT THE ORIGINAL 1972 ERA
IS STILL ALIVE (“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 additional state legislatures. They also argue 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. Among other difficulties, the U.S. Supreme Court in 1982 recognized that the ratification period was definitively expired. It is perhaps not surprising, then, that not a single state legislature has passed a resolution to ratify the 1972 ERA in the 21 years that have passed since the “three-state” theory was concocted.
Nevertheless, in a “Dear Colleague” also circulated on February 27, Congresswoman Jackie Speier invited Members to join as original cosponsors on a resolution “that advocates for the ‘three-state’ approach – eliminating the timeline and gaining the ratification of three more states to pass the ERA once and for all.” Because the 1972 ERA did not contain an abortion-neutral clause, NRLC opposes Rep. Speier’s “three-state” resolution and urges you not to cosponsor it.
It should be obvious that the Maloney resolution and the Speier resolution rest on incompatible premises. If, as Ms. Speier and other “three-state” advocates argue, the 1972 ERA remains alive and available for ratification by additional state legislatures, then why would Congress relaunch the entire arduous constitutional amendment process, as Ms. Maloney proposes?
Additional information regarding the history of the 1972 ERA, and regarding the last ERA vote in the House of Representatives (in 1983), appears after our signatures in this letter.
If the “Equal Rights Amendment” were again to reach the House floor, National Right to Life will urge adoption of the remedial abortion-neutral amendment (Sensenbrenner Amendment). If that revision is not adopted, NRLC will oppose final passage of the ERA, and will include the roll call on passage in its scorecard of key pro-life roll calls of the 114th Congress. Thank you for your consideration of NRLC’s position on this important issue.
Douglas D. Johnson
Susan T. Muskett, J.D.
Senior Legislative Counsel
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 www.nrlc.org/federal/era/
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 www.nrlc.org/federal/era/