RE: Pro-life scorecard alert on Cardin-Murkowski resolution,
purporting to ratify Equal Rights Amendment
Dear Senator:
The National Right to Life Committee (NRLC) strongly opposes a joint resolution shortly to be introduced by Senators Cardin and Murkowski, which purports to “remove” the ratification deadline that the 92nd Congress included in the resolution proposing an Equal Rights Amendment to the U.S.
Constitution in 1972.
National Right to Life intends to include any roll calls on this measure, including cloture votes, in our scorecard of key pro-life votes of the 117th Congress. In our scorecard, a vote in favor of advancing this “deadline removal” measure will be accurately
characterized as a vote intended to add language to the U.S. Constitution that both NARAL Pro-Choice America and National Right to Life say would likely be employed to invalidate laws protecting unborn children.
The measure is blatantly unconstitutional. Congress lacks power to “repeal” a proposal that was never enacted and that has expired – an exercise that the Justice Department in January 2020 rightly compared to the current Congress attempting to override a veto by President Carter. Congress’s powers
are enumerated in Articles I and V of the Constitution; they do not include time travel.
Moreover, the joint resolution purports to be an exercise of Congress’s constitutional amendment power under Article V of the Constitution, and yet is claimed to require only a simple majority vote – incompatible claims. Whenever Congress operates under Article V, a two-thirds vote in each house is
required.
Even the late Justice Ruth Bader Ginsburg, long known for her attachment to the Equal Rights Amendment, highlighted the gross constitutional defects inherent in such attempts to resurrect a long-expired amendment proposal by legislative incantations. On February 10, 2020, at a forum at Georgetown
University Law Center, Justice Ginsburg said:
I would like to see a new beginning. I'd like it to start over. There’s too much controversy about latecomers -- Virginia, long after the deadline passed. Plus, a number of states have withdrawn their ratification.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”?
All six constitutional amendment resolutions approved by Congress since 1960 – four of which were adopted -- have contained seven-year deadlines in the Proposing Clause. (The Proposing Clause is not a “preamble,” but a constitutionally required part of any submission to the states, instructing
states regarding the mode of ratification.) There is no plausible constitutional theory by which a later Congress can retroactively alter what a previous Congress submitted to the states by the required two-thirds votes. Even under President Carter, who endorsed a pre-expiration 39-month “deadline extension” in 1978, the Justice Department conceded that its rationale would not be applicable if the deadline had already expired. The liberal Brennan Center acknowledged in January 2020, “there
is no precedent for waiving the deadline after its expiration.”
The U.S. House Democratic leadership of 1983 also recognized that the 1972 ERA was dead, which is why they brought a start-over ERA (same language) to the House floor on November 15, 1983 – only to see it defeated. Recognizing that they lack the level of support required to amend the Constitution by
the methods spelled out in Article V, ERA advocates now attempt to archive their goals through a brazenly political exercise that runs roughshod over the requirements of Article V.
THE ERA-ABORTION CONNECTION
There is now broad agreement between key pro-life and pro-abortion groups that the language of the 1972 ERA could be employed to reinforce and expand “abortion rights.” For example, NARAL Pro-Choice America, in a March 13, 2019 national alert, asserted that "the ERA would reinforce the
constitutional right to abortion . . . [it] would require judges to strike down anti-abortion laws . . .” A National Organization for Women factsheet on the ERA states that “...an ERA -- properly interpreted -- could negate the hundreds of laws that have been passed restricting access to abortion care…” The general counsel of the National Women’s Law Center told AP that the ERA would allow courts to rule that limits on abortion “perpetuate gender inequality.” Many other such examples have been
collected and are readily available for your examination. We encourage you to keep these statements in mind if you hear anyone offer assurance, as House Speaker Nancy Pelosi did on the House floor on February 13, 2020, “This [the ERA] has nothing to do with the abortion issue.”
Pro-abortion activists already have aggressively employed state ERAs to challenge pro-life policies. For example, in New Mexico, state affiliates of Planned Parenthood and NARAL relied on the state ERA in a legal attack on the state version of the “Hyde Amendment,” prohibiting Medicaid funding of
elective abortions. In its 1998 ruling in NM Right to Choose / NARAL v. Johnson, No. 1999-NMSC-005, the New Mexico Supreme Court unanimously agreed that the state ERA required the state to fund abortions performed by medical professionals, since procedures sought by men (e.g., prostate surgery) are funded. The New Mexico Supreme Court based its ruling solely on the state ERA. Moreover, the Women’s Law Project, in concert with Planned Parenthood, is currently pursuing a very similar
lawsuit in Pennsylvania (Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services), arguing that it is “contrary to a modern understanding” to argue that an ERA is consistent with limitations on government funding of abortion.
Once a court adopts the understanding that a law limiting abortion by definition is a form of discrimination based on sex, and therefore impermissible under an ERA, that doctrine could 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 too 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.
For decades, many ERA advocates have tried to evade this issue by observing that past Supreme Court rulings on abortion have relied on a purported due-process “privacy” right. This is almost childish in its transparent evasiveness -- obviously, past U.S. Supreme Court rulings on abortion issues
dealt only with the current U.S. Constitution, without the ERA’s absolute prohibition on abridgement of “rights . . . on account of sex.” Judiciary Committee Chairman Nadler at the 2020 committee markup on the “deadline repeal” measure, affirmed his belief that “the right to full equality includes the right” to abortion.
NATIONAL RIGHT TO LIFE ALSO OPPOSES
ANY START-OVER ERA, UNLESS AMENDED
Even though the main focus of pro-ERA activists is on the unconstitutional “deadline repeal” campaign, “start-over” ERAs have also been introduced in recent Congresses. These measures at least have the virtue of respecting the requirements of Article V. However, because of the ERA-abortion link
summarized above, we urge you to withhold support from any “start over” ERA, unless at a minimum it contains a simple “abortion-neutralization” clause, first proposed by National Right to Life in 1983. The proposed revision – which cannot be added to the fixed and expired language of the 1972 ERA, but which could be added by Congress to any start-over ERA proposal – would
read:
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 simply make any new ERA itself neutral regarding abortion policy; it would not change the current legal status of abortion, nor would it permit the ERA itself to be employed for anti-abortion purposes. Tellingly, since 1983 most ERA proponents have adamantly refused to
accept such an abortion-neutral revision.
CONCLUSION
Because the intent of the Cardin-Murkowski joint resolution is to place the text of the pro-abortion 1972 ERA into the Constitution, National Right to Life intends to score any roll calls on advancing this measure. In our communications with our members, supporters, and affiliates nationwide, a vote
in favor of advancing the measure will be accurately characterized as a vote intended to insert language into the U.S. Constitution that could invalidate any limits whatsoever on abortion, including late abortions, and require government funding of abortion.
Thank you for your consideration of National Right to Life’s strong opposition to this measure.
