Tales from the crypt: here comes the ERA (again)

“They could not have made the Hobby Lobby ruling with an ERA.” — Rep. Carolyn Maloney

“One way or another, I’m gonna get ya, get ya, get ya … ” — Blondie via Debbie Harry/Nigel Harrison

Comes now the Associated Press by way of the Concord Monitor advising readers about the resurrection of the Equal Rights Amendment. What’s the impetus for this? The Hobby Lobby decision. You know, the one that said the government could not compel the owners of closely-held companies to provide no-co-pay contraception and abortion-inducing drugs in employee health insurance plans.

Do not adjust your sets. The women quoted in the article are dead serious in believing that the U.S. Constitution needs to guarantee that every woman has the right to be rendered infertile on the taxpayer’s dime. Your choice, my cash. We’ve come a long way from The Federalist Papers. For that matter, we’ve come a long way from when suffragist and abortion opponent Alice Paul first proposed an ERA in 1923.

Bad idea. Very bad. It sounds wonderful at first blush; as a teenager in the 1970s, I was a huge fan of the ERA. Then I started listening to its biggest boosters, and most of them had something in common: they wanted to use an ERA to promote abortion. And this was when Roe was brand spankin’ new. Whole vistas have opened up since then on the political meaning of “reproductive freedom.” Now the free-pills crowd is all-in with abortion advocates, as if they were ever separated.

This is such a lousy idea, in fact, that I half suspect some New Hampshire abortion advocates would love to promote it via a resolution in the next House session in Concord. Now there’s something to ask your candidates about.

A lot of women and men who have come of age since the ’80s might know the ERA only as from paragraph in some history book. Time for a review.

The plain language of the amendment, and how ratification failed

The Associated Press article cited above manages to run to a thousand or so words without giving the language of the ERA as considered by the states during the 1970s ratification process. Deceptively simple: 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. A new version might have “gender” for “sex.”

The original ERA passed Congress in 1972. It then went to the states for ratification, as required for all constitutional amendments, with a deadline of March 22, 1979. Thirty-eight states were needed for ratification. By the end of 1977, 35 states had ratified, but at that point the effort stalled. To complicate matters further – and to the ongoing rage of ERA supporters – five states rescinded their ratifications before the 1979 deadline. With ratification by 1979 looking impossible, Congress voted to extend the deadline to June 30, 1982. That stunt didn’t help. The deadline came and went with no more states OK’ing the measure, and the ERA died.

Reasons for opposing the measure varied. One critical and persuasive point of opposition was the ERA-abortion connection, dismissed by ERA supporters as a “lie.”

Abortion advocates are nothing if not persistent, and the 98th Congress led in 1983 by Speaker Tip O’Neill tried passing the ERA yet again, in the hope of re-starting the ratification clock. The following November, the House killed it. My file of yellowed clippings from the those days stands in place of web links; the National Catholic Reporter (11/15/83) summarized the outcome thus: “The abortion issue killed the equal rights amendment in a bitterly divided House of Representatives last week.”

How an ERA would have promoted public funding of abortion, and how it might make a contraceptive mandate permanent

Congressman Henry Hyde (R-IL) testified about the abortion and the ERA at a U.S. Senate Judiciary subcommittee hearing in May 1983. His testimony was reproduced in full in the summer 1983 issue of Human Life Review (pp.81-88). (Yes, this is Hyde as in “the Hyde Amendment,” a measure that limits funding for some abortions.) His remarks happened to mention Ruth Bader Ginsburg – now Justice Ginsburg, who in 2014 excoriated the five Supreme Court colleagues who invalidated one application of the contraceptive mandate in the Hobby Lobby cases. From the congressman’s testimony:

One important source of evidence about how the ERA would be interpreted is litigation under the state Equal Rights Amendments in various state constitutions. In several recent controversies involving state ERA’s, it has become clear that the pro-abortion movement regards ERA as a valuable tool in the fight against abortion funding restrictions.

In the 1978 case of Hawaii Right to Life v. Chang, a group of doctors argued that they had a constitutional right to be paid for abortions with state funds….In the 1980 case of Moe v. King, the Massachusetts affiliate of the ACLU urged that state’s highest court to hold that: ‘By singling out for special treatment and effectively excluding from coverage an operation which is unique to women, while including without comparable limitations a wide range of other operations, including those which are unique to men, the statutes constitute discrimination on the basis of sex, in violation of the Massachuasetts Equal Rights Amendment.’ In the 1983 Pennsylvania case of Fischer, Planned Parenthood et al. v. Department of Public Welfare, the American Civil Liberties Foundation of Pennsylvania argued that it is unconstitutional under the Pennsylvania State ERA to deny state tax funds for abortions because: ‘Pregnancy is unique to women. [A statute] which expressly den[ies] benefits for health problems arising out of pregnancy, discriminates against women recipients because of their sex … and the regulations issued pursuant thereto constitute a gender-based classification in violation of the Pennsylvania Equal Rights Amendment.’

Hyde acknowledged that those cases were decided on other grounds, “albeit favorably to abortion funding.” He found them instructive nonetheless because of the way the state ERAs elevated sex to a “suspect classification” under law. Hyde warned that if such a “suspect classification” were to be given weight in the federal constitution, not only abortion-funding limitations but conscience protections for pro-life health care professionals would be unconstitutional.

Imagine the Obamacare contraceptive mandate under such a constitutional provision. Goodbye, religious liberty protections for anyone refusing to pay for someone else’s pills.

Justice Ginsburg showed her form early

Hyde’s testimony referred to legal scholars who asserted that the ERA would strike down all laws discriminating against “pregnancy-related disabilities.” According to those authorities, said Hyde,

…the Supreme Court’s ‘right to privacy’ may be sufficient to secure a right to abortion, but if the ERA is ratified the ‘right to privacy’ will no longer be necessary as a basis for abortion-related constitutional claims. Indeed, the ERA will then provide a basis for striking down all laws that discriminate against ‘pregnancy-related disabilities’ – the most important of which are the abortion-funding restrictions and other abortion regulations that have survived challenges based on the ‘right to privacy.’

Among the lawyers [taking this view] was Ruth Bader Ginsburg, who was then a preeminent legal scholar of the ERA movement and who is now a Federal judge. This is significant not only because it shows that the ERA movement’s scholars and advocates are virtually unanimous in their belief that ERA will ban ‘pregnancy-related’ discrimination, but also because it reminds us of who will be interpreting the ERA. [emphasis added]

it would be especially tragic if legislators who do wish to minimize the killing of unborn children were to give pro-abortion lawyers and pro-abortion judges a new and powerful tool with which to enhance and extend the abortion right, especially by mandating the use of tax funds to pay for abortions.

Justice Ginsburg is now on the Supreme Court, writing passionately for a four-member Court minority in favor of unrestricted funding of contraceptives and abortion-inducing drugs, even if that means compelling a business owner to act against religious beliefs and conscience. One vote away from a majority, even without a new ERA. With a new ERA, Justice Ginsburg would have the figurative weapon she’d need to beat a colleague or two into submission. She only needs one.

The acid test: how will ERA proponents welcome “funding-neutral” language?

Another instructive contemporary essay on the ERA and abortion funding came in 1984 from Paige Comstock Cunningham, at that time general counsel and executive director of Americans United for Life, and Douglas Johnson of the National Right to Life Committee. In “ERA and Abortion: Really Separate Issues?” they discussed the conflict between ERA advocates who called an abortion link a red herring while at the same time cheering the use of state ERAs to strike down limits on abortion funding.

Over a year ago [early 1980s], the National Right to Life Committee and other pro-life groups proposed a simple means for definitively separating the ERA and abortion issues: an amendment to the text of ERA to read ‘Nothing in this article [the era] shall be construed to grant or secure any right relating to abortion or the funding thereof.’ …Nevertheless, pro-ERA advocacy groups have vehemently rejected the abortion-neutralization amendment. …[National Organization for Women] President Judy Goldsmith’s response was immediate and forceful: ‘We will support nothing but a clean [unrevised] ERA.’

In case you thought “war on women” was an original idea by free-pill partisans, Cunningham and Johnson reminded readers of the 1980s analogue: “gender gap.”

If ERA is really intended primarily as an ‘economic equity’ measure, as NOW and other proponents say, then it is difficult to understand why they will not accept the abortion-neutralization amendment. It might not be too cynical to suggest that some feminist leaders, and some politicians, may really prefer to have ERA stalled in Congress during this election year [1984],  thereby enhancing its usefulness as a ‘gender gap’ issue and as a focal point for political fund-raising efforts.

(You remember the 1984 election. That’s the one that saw Ronald Reagan elected to a second term.)

So how would supporters of a new ERA respond to language ensuring that the measure didn’t guarantee unlimited public funding of abortion and contraception? Let’s go back to Congresswoman Carolyn Maloney.


Congresswoman Maloney, June 2014: “They could not have made the Hobby Lobby ruling with an ERA.”

So get that out front now. We’re not talking about women’s equality or dignity; remember, one of the owners of Hobby Lobby is Barbara Green, a woman, whose conscience rights Justice Ginsburg was only too eager to abridge. We’re not talking about women’s economic development; take a look at Title X contracts for assurance that low-income women have access to contraception. We’re not talking about freedom of choice; women choosing to reject the mandate have to go to court to vindicate their rights, and they have no assurance of victory.

Today’s ERA, if Congresswoman Maloney is to be believed, is about enshrining a policy that women’s infertility is such an imperative that no one, no one, can opt out of paying for it, even on religious grounds.

Too bad the ERA as imagined by Alice Paul in 1924 was hijacked a long time ago by politicians who view the rights to life and religious liberty as some kind of obstacle to progress. When I was in high school in the 1970s and first heard of the ERA, it sounded so wonderful. I was for it.

And then I grew up.

Author: Ellen Kolb

New Hampshire-based writer, activist, hiker.