On July 6, 2009, Congresswoman Carolyn B. Maloney circulated a "Dear Colleague" letter in which she invited cosponsorship of the "Equal Rights Amendment" (ERA), sometimes referred to as the "Women's Equality Amendment," which she apparently intends to re-introduce soon.
Rep. Maloney's resolution would add to the 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 ratification."
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. Congresswoman Maloney apparently does not intend to attach any deadline for ratification to her new resolution.
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)
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 if the following "abortion-neutral-amendment" -- originally proposed by Congressman F. James Sensenbrenner in 1983 -- is added:
"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.
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 unpersuasive -- so much so, that not a single state legislature has passed a ratification resolution in the 15 years since the theory was concocted.
Based on Rep. Maloney's July 6 letter, we can only conclude that she must be doubtful about the notion that the 1972 ERA is still alive before the state legislatures. In fact, Rep. Maloney's letter acknowledges that "the deadline passed" on the 1972 ERA without ratification being achieved, and she adds, "We believe Congress should give the states another chance" (i.e., by proposing a her new, no-deadline ERA resolution to the states). It would not make much sense for Congress to begin the entire constitutional amendment process over again from square one, if the identical language really was still pending and available for ratification before the state legislatures.
Source: NRLC
Publish Date: July 7, 2009
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