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Planned Parenthood, Women’s Law Project file lawsuit arguing Equal Rights Amendment invalidates abortion limitations

Jan 18, 2019 | Equal Rights Amendment

Memorandum to Interested Parties

January 18, 2019, 10 AM EST

From:

Douglas D. Johnson
Senior Policy Advisor
National Right to Life Committee
(202) 626-8820
federallegislation@nrlc.org

PLANNED PARENTHOOD, WOMEN’S LAW PROJECT FILE LAWSUIT
ARGUING EQUAL RIGHTS AMENDMENT INVALIDATES ABORTION LIMITATIONS

On Wednesday, January 16, 2019, a lawsuit was filed in the Commonwealth Court of Pennsylvania, arguing that the Pennsylvania Equal Rights Amendment prohibits that state from restricting the use of public funds for elective abortions.

A Pennsylvania law, enacted in 1982, prohibits the use of state “Medical Assistance” (Medicaid) funds for abortion, except to save the life of the mother, or in cases of rape or incest. (Most states have similar policies.) This week’s lawsuit challenging this policy was filed by attorneys representing the Women’s Law Project (a prominent national liberal litigation organization); attorneys representing both the Planned Parenthood Federation of America (PPFA) and three Planned Parenthood affiliates in Pennsylvania; and attorneys representing certain other abortion providers. The Women’s Law Project press release announcing the filing of the lawsuit (Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services) can be viewed here. A copy of the complaint in PDF format can be opened or downloaded here.

The Pennsylvania Equal Rights Amendment (Pennsylvania Constitution, Article I, Section 28, adopted in 1971) states, “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” This language is very similar to the Equal Rights Amendment that Congress in 1972 proposed should be added to the U.S.Constitution (“Equality of rights under the law shall not be denied abridged by the United States or by any State on account of sex.”).

In a 1985 ruling in Fischer v. Department of Public Welfare, the Pennsylvania Supreme Court (made up of elected justices) ruled that the Pennsylvania ERA did not invalidate the state law forbidding the use of public funds to pay for elective abortions. Since then, some pro-ERA groups have cited the Fischer ruling as evidence that there is no ERA-abortion connection (despite many other evidences to the contrary, such as a unanimous New Mexico Supreme Court ruling in 1998, New Mexico Right to Choose/NARAL v. Johnson, holding that a policy against funding abortions violated that state’s ERA).

The new Pennsylvania lawsuit explicitly seeks the reversal of the Fischer ruling, arguing, “That case was incorrectly reasoned at the time . . . and is contrary to a modern understanding of the ways in which the denial of women’s reproductive autonomy is a form of sex discrimination that perpetuates invidious gender and racial stereotypes.” (p. 2) The complaint expands on this position at length, noting, “There is no parallel coverage ban for men. There is no medical condition specific to men for which Medical Assistance denies coverage. When a male recipient requires a covered service, including all services related to reproductive health, Medical Assistance covers it. In contrast, when a woman requires an abortion, Medical Assistance covers it only if she would otherwise die or if the pregnancy results from rape or incest.” (pp. 15-16) All of this clearly violates the Equal Rights Amendment, the complaint asserts. The lawsuit asks that the state policy be enjoined, and more, that the court “declare that abortion is a fundamental right under the Pennsylvania Constitution.”

(The complaint also asserts that the state abortion-funding restriction violates the equal-protection clause of the state constitution, but only three paragraphs are devoted to this argument. It is quite clear that the ERA-based claim (“Count 1”) is the core of the lawsuit — and if the ERA-based argument prevails, the equal-protection claim adds nothing. Moreover, it is difficult to conceive of ruling under which the petitioners’ ERA argument would fail but the equal-protection argument would succeed.)

It should be obvious that all of the arguments being made here by Planned Parenthood and its allies would be equally applicable to the federal Equal Rights Amendment that was proposed by Congress in 1972. Although the deadline for ratification of the federal ERA expired decades ago, some groups are still pushing for “ratification” (they have come up with a “modern understanding” that a ratification deadline is a mere trifle and does not matter). In seeking to persuade state legislators to support this project, some pro-ERA groups and their allies in the media even assert that an ERA is a simple measure that has nothing to do with abortion. Perhaps you might now ask those people if they think the Planned Parenthood Federation of America and the Women’s Law Project are dead wrong, when their lawyers tell the Pennsylvania courts the “modern understanding” of ERA language does not allow limitations on abortion.

Although the new Planned Parenthood lawsuit is directly concerned only with public funding of elective abortion, if the ERA-abortion argument is accepted, the same doctrine will then be brought to bear against any other government law or policy that specifically restricts any type of abortion, directly or indirectly. For example, under the Planned Parenthood analysis, limitations on third-trimester abortions and partial-birth abortions would be invalid under an ERA, because only females seek third-trimester abortions and partial-birth abortions.

For further information on the ERA-abortion connection, and on the current legal status of the proposed 1972 federal ERA, see this memo (or download it in PDF from here).