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The ERA and Abortion: Not So Simple

Apr 4, 2000 | Equal Rights Amendment

By Douglas Johnson


Douglas Johnson is legislative director for the National Right to Life Committee (NRLC), a federation of 50 state right-to-life organizations, including Missouri Right to Life.

Editorializing in favor of a resolution in the Missouri legislature that would attempt a legal resurrection of the “Equal Rights Amendment” proposed by Congress in 1972, the Post-Dispatch [March 31, 2000] referred to “hoary, scare stories,” among these the argument that the “ERA will lead to taxpayer-financed abortions.” The Post-Dispatch editors asserted that there is “no evidence” for such an “emotional” claim, and suggested that it was invented by ERA opponents “to short-circuit rational debate.”

That is a serious charge. But the editorial itself was no example of “rational debate,” since it entirely ignored substantial and concrete evidence that the specific ERA language under consideration could indeed have a sweeping pro-abortion impact.

In fact, many prominent pro-abortion organizations such as the ACLU have argued, for 15 years and more, that the proper legal interpretation of the language contained in the 1972 ERA, and similar language in the ERAs adopted by some states, is to invalidate all restrictions on taxpayer-funded abortions — and, indeed, to invalidate virtually any other law that distinguishes between abortion and other “medical procedures.”

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 very real power of this legal argument. New Mexico adopted an ERA to its state constitution that is very similar to the 1972 federal proposal. The New Mexico ERA says, “Equality of rights under law shall not be denied on account of the sex of any person.” The 1972 federal proposal reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Every justice on the New Mexico Supreme Court agreed that this classic ERA language mandates taxpayer-funding of abortions. The unanimous court held that a state ban on tax-funded abortions “undoubtedly singles out for less favorable treatment a gender-linked condition that is unique to women.”

The lawsuit that urged the court to adopt the doctrine that the ERA mandated state-funded abortion was filed by the state affiliates of the National Abortion and Reproductive Rights Action League (NARAL) and Planned Parenthood. Briefs supporting the successful argument were filed by major national groups such as the ACLU, the Center for Reproductive Law & Policy, and the NOW Legal Defense and Education Fund, and by the state’s Women’s Bar Association, Public Health Association, and League of Women Voters. So much for the theory that the ERA-abortion connection is a mere invention of ERA opponents.

When questioned about the New Mexico ruling, some ERA supporters respond that the U.S. Supreme Court has previously reviewed abortion-related restrictions under a “privacy right” analysis, and has ruled (5-4, in 1980) that this “privacy right” does not invalidate a law (the Hyde Amendment) restricting federal Medicaid funding of abortion. The proposed federal ERA would not “change” these past “privacy” rulings, they assert.

This response entirely begs the question. Obviously, past U.S. Supreme Court rulings on abortion-related issues have purportedly been based on the current U.S. Constitution – without the ERA’s absolute prohibition on abridgement of “equality of rights . . . on account of sex.” Whatever one thinks of the Supreme Court’s “abortion privacy” doctrine, that doctrine is simply 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 (such as Missouri’s) restricting state taxpayer funding of abortions, banning partial-birth abortion, protecting conscience rights of pro-life medical providers, requiring parental notification for minors’ abortions, and so forth.

That’s why 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. The amendment would add to the 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.”

Pro-abortion and pro-ERA advocacy groups strongly oppose this simple revision. It is pretty clear why.