Would the Equal Rights Amendment Enshrine Abortion Rights in the Constitution?

Published February 17, 2020

National Review Online

Congressional Democrats are on a quest to resurrect the Equal Rights Amendment. This week, the House of Representatives passed a measure attempting to nullify the deadline that Congress had imposed in the resolution sent to states for ratification in 1972.

That deadline has long since come and gone, and the amendment failed to receive the necessary support from three-quarters of the states. But that isn’t stopping Democrats from trying again, and many are convinced that it won’t be long before the Equal Rights Amendment is added to the Constitution.

In a vote backed by every Democratic representative and five Republicans, the House sought to erase the time limit placed on the amendment by Congress several decades ago. The move came shortly after Supreme Court justice Ruth Bader Ginsburg threw cold water on the progressive notion that enacting the amendment would simply be a matter of ignoring the congressionally created deadline.

In remarks at the Georgetown University Law Center, Ginsburg suggested that, despite her long-time support for the amendment, it likely won’t be able to come to fruition for quite some time. “I’d like to see it start over,” Ginsburg said of the process to ratify the amendment. “There’s too much controversy about latecomers — Virginia [approved it] long after the deadline passed,” she added. “Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds?’”

Amid the controversy, House speaker Nancy Pelosi shepherded the new resolution through her chamber on Thursday, saying as she did so that the amendment “has nothing to do with the abortion issue.”

Her allies beg to differ.

“An ERA — properly interpreted — could negate the hundreds of laws that have been passed restricting access to abortion care and contraception,” according to the National Organization for Women.

NARAL Pro-Choice America agrees. “With its ratification, the ERA would reinforce the constitutional right to abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate both the constitutional right to privacy and sexual equality,” the group’s website states.

Lawyers for the National Women’s Law Center have echoed this sentiment. Emily Martin, general counsel for the NWLC, told the Associated Press last month that the ERA would enable courts to rule that abortion restrictions “perpetuate gender inequality.” Kelli Garcia, director of “reproductive-justice initiatives” and NWLC senior counsel, told Vice last May that “the ERA would help create a basis to challenge abortion restrictions.”

A recent Politico article, meanwhile, ran under the headline “How the debate over the ERA became a fight over abortion.” “Conservatives argue that because only women can have abortions, any restrictions on the procedure could be deemed unconstitutional under the ERA,” the article states. But this isn’t a conservative argument at all — as noted above, this is how abortion supporters themselves view the amendment.

For decades, many legal scholars in favor of abortion rights have disagreed with the logic of the justices’ ruling in Roe v. Wade, which legalized abortion based on a supposed right to privacy located in the Constitution. Instead, these scholars argue, abortion rights are guaranteed to women under the equal-protection clause of the 14th Amendment. The ERA would enshrine in the Constitution a similar basis for this defense of abortion.

“Advocates for the ERA acknowledge that abortion needs to be part of the conversation. Any debate over women’s rights, they say, must also address control over when and whether to have children,” the Politico piece explains. “‘There are no equal rights for women without access to abortion, plain and simple,’ said Alexis McGill Johnson, acting president and CEO of Planned Parenthood.”

The same article notes that advocates of the amendment have dismissed as “a nonstarter” proposals from pro-life groups that they would support the ERA if it included language explicitly stating that it doesn’t apply to abortion.

Though the text of the ERA doesn’t explicitly state that it exists to protect abortion rights — and to nullify abortion restrictions, including those that prevent taxpayer-funded abortion — its own supporters have long understood it to do exactly that.

Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.

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