Missouri Right to Life Policy on Ratification of the Federal Equal Rights Amendment
Missouri Right to Life opposes ratification of the 1972 proposed federal Equal Rights Amendment (ERA).
Ratification of the 1972 proposed federal Equal Rights Amendment (ERA) would be a disaster for the pro-life movement, because it would undoubtedly be used by federal courts to bar even the modest regulations on abortion allowed under Roe v. Wade, such as parental consent requirements and bans on the use of tax money to subsidize abortions. Certain state courts have construed their state constitutions' equal rights provisions in this fashion, fueling pro-life concerns about the ERA at the federal level. See, New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998); Low Income Women of Texas v. Bost, 38 S.W.3d 689 (Tex. Civ. App. 2000).
A 2006 law review article by Professor Linda J. Wharton, who represented the pro-abortion side in the 1992 Supreme Court case, Planned Parenthood v. Casey, describes these cases. “[C]hallenges under state ERAs or other state constitutional guarantees have successfully invalidated restrictions on public funding for abortion in many states.” L. J. Wharton, State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination, 36 Rutgers L. J. 1201, 1250-51 nn.216-217 (2006) (collecting cases). If restrictions on governmental funding can be overturned, obviously any and all regulations of abortion can be set aside under an ERA.
In all the state ERA cases, attorneys from NARAL or NOW have argued that an equal rights amendment forbids any type of regulation on abortions. They fully intend to argue the same way in lawsuits against states if the 1972 proposed federal ERA is ever ratified. The difference is that a federal ERA would cover the entire country. Why should we give federal courts the opportunity to impose on the entire country—including Missouri—a ban on all abortion regulations that up to now has been only imposed in certain states? Such a ruling would invalidate common-sense regulations including those requiring parental consent, outlawing partial-birth abortions, specifying what types of information should be given to women before an abortion, requiring a waiting period before abortion, and many others. In short, over three decades of work by the Missouri General Assembly in the pro-life area could be wiped out if the 1972 federal ERA were ever ratified.
There should be no doubt of the reality of the risk that the federal courts will interpret a federal ERA to forbid any and all regulations of abortion. When Justice Ruth Bader Ginsburg was the head of the ACLU, she argued that Roe v. Wade should be recast from a due process decision to an equal rights decision. R. B. Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63
N.C.L. Rev. 375, 383 (1985). Her philosophy remains the same now that she serves on the Supreme Court, as her dissent in the partial-birth abortion case, Gonzalez v. Carhart, illustrates:
Dissent of Justice Ginsberg, Gonzalez v. Carhart, 550 U.S. 124, ___; slip op. at 1 (2007).
Justice Ginsberg's theory has not carried the day yet, because Roe v. Wade and Planned Parenthood v. Casey were not decided on equal protection grounds. However, ratification of the ERA would hand to like-minded justices the equal protection tool that they need to rule that the federal constitution protects the right to abortion and prevents any regulation at all, except regulations that in their view enhance women’s health. Remember that under the companion case to Roe v. Wade, “health” includes all factors that an abortionist wants to use to justify an abortion, including “physical, emotional, psychological, familial [factors], and the woman's age.” Doe v. Bolton, 410 U.S. 179, 192 (1973).
Some legislators may suggest that Missouri’s ratification should be conditioned on adding language to the ERA that makes it abortion-neutral. Unfortunately, the controlling decisions of the United States Supreme Court do not appear to allow a state legislature's ratification of a federal constitutional amendment to be conditional. Hawke v. Smith, 253 U.S. 221 (1920). In fact, contrary to what one would intuitively expect, the Court has ruled that a conditional ratification is treated as an unconditional ratification, because the U. S. Constitution recognizes only an up or down vote on the question and disregards all conditions that a state legislature may try to attach. Hawke, supra; Leser v. Garnett, 258 U.S. 130 (1922).
For all these reasons, Missouri Right to Life and National Right to Life Committee are energetically opposed to any attempt to ratify the 1972 federal ERA. See Memorandum to Members of the Illinois General Assembly dated March 20, 2007 (available at http://www.nrlc.org/ Federal/ERA/index.html). Women’s equal rights do not depend on taking the lives of their babies, and we should not give federal judges a vehicle that they can use to rule otherwise.