Thread by @ERANoShortcuts

ABORTION AND THE EQUAL RIGHTS AMENDMENT:
A THREAD

With the U.S. House of Representatives slated to vote on an ERA "deadline removal" measure (H.J.Res. 17) the week of March 15, 2021, it is timely to review one of the main reasons the level of support for
#equalrightsamendment

the language of the 1972 ERA has dropped so precipitously in the "People's House"--the house that is apportioned on the basis of population, and in which every member stands for election every 2 years. In 1971, 94% of House members voted for the ERA Resolution (H.J.Res. 208).

But when the House Democratic majority leadership attempted a "start-over" ERA (same language) in 1983, it failed on the House floor (11-15-83), drawing 65% support, short of 2/3 needed (14 cosponsors nay). Single biggest reason: the ERA-abortion link had become evident to many.

When the House voted on a "deadline removal" measure on Feb. 13, 2020, it passed 232-183-- so, only 56% support. On the vote later this month, the margin likely will be even closer. Moreover, even some states that ratified the 1972 ERA may take steps to say "Count Us Out."

During 2020 debate on the House floor, Speaker Pelosi said, "This has nothing to do with the abortion issue." During earlier April 30, 2019 House Judiciary subcmte hearing, Rep. Carolyn Maloney (D-NY) admonished panel GOP, "don't ever say that again" [i.e., ERA-abortion linked].

But the panel's ranking Republican, Rep. Mike Johnson (La.), responded by simply reading a few of the numerous statements by leaders of abortion-rights groups, proclaiming just the opposite. To this, Maloney had no counter.

In silly attempt at deceptive deflection, Rep. Sylvia Garcia (D-Tx.) and pro-ERA Prof. Kathleen Sullivan agreed that SCOTUS had not cited ERA in its Jan. 22, 1973 Roe v. Wade ruling, or later abortion rulings. Why would they? The ERA is not part of the Constitution!

To belabor the obvious, the Supreme Court in Roe and every later abortion case purported to be interpreting the CURRENT Constitution. But if the ERA were ratified, ERA-based challenges would ensue to state/federal laws/policies affecting access to abortion--new clause, new cases.

Some judges would be eager to review abortion-affecting laws under such a new constitutional provision, others reluctant--but none would say "we're not going to consider your ERA-based claim, because that policy (e.g., Hyde Amendment) was upheld under the pre-ERA Constitution."

Many journalists still frame "conservatives say" or "anti-abortionists fear" ERA will jeopardize pro-life laws. Yes, but more pertinent, many leading abortion-rights groups say they fully intend to employ ERA to secure and expand abortion rights, and expect to win. Why not quote?

However, within the past year, some journalists have indeed crossed Rubicon on the ERA-abortion link, and are reporting what the abortion-rights leaders have been saying to their troops for some years now--to paraphrase, "When we talk about ERA, you damn betcha we mean abortion."

For example, in a Jan. 21, 2020 piece, AP national writer David Crary wrote, "Abortion-rights supporters are eager to nullify the [ERA ratification] deadline and get the amendment ratified so it could be used to overturn state laws restricting abortion."

Likewise, Pete Williams of NBC News: "The ERA has been embraced by advocates of abortion rights. NARAL Pro-Choice America has said it would 'reinforce the constitutional right to abortion' and 'require judges to strike down anti-abortion laws.'"
tinyurl.com/wmyvngh

But, we still see "anti-aborts claim." For example, a Feb. 11, 2020 POLITICO piece framed as "conservatives argue"--yet had quotes such as CEO of Planned Parenthood saying "There are no equal rights for women without access to abortion, plain and simple."
politico.com/news/2020/02/1…

Prior to the House floor debate in February, 2020, pro-life groups circulated a five-page "quotesheet" containing many footnoted quotes in which abortion-rights groups asserted that the ERA would have powerful effects in protecting and expanding abortion rights. Examples follow.

NARAL Pro-Choice America, in 3-13-19 national alert, asserted that "the ERA would reinforce the constitutional right to abortion . . . [it] would require judges to strike down anti-abortion laws . . ."

Nat Organization for Women paper,"Is the ERA Relevant in the 21st Century," had abortion & "reproductive" rights on 6 of 7 pgs; said "...an ERA--properly interpreted--could negate the hundreds of laws that have been passed restricting access to abortion care and contraception..."

"Emily Martin,general counsel for the National Women’s Law Center...affirmed that abortion access is a key issue for many ERA supporters;she said adding [it] to the Constitution would enable courts to rule that restrictions on abortion ‘perpetuate gender inequality.'"(AP,1-1-20)

Also, pro-life groups have long cited use of state ERAs--esp. those copied from the proposed federal ERA--as evidence of how ERA language can easily be employed to void policies limiting access to abortion. In that portfolio, Exhibit A is a 1998 ruling
nrlc.org/uploads/era/ER…

by the New Mexico Supreme Court in Right to Choose v. Johnson. NARAL and Planned Parenthood affiliates sued to invalidate the state version of the "Hyde Amendment," limiting state-funded abortions to cases of rape, incest, or life endangerment to the mother. They won, 5-0.

The abortion-rights groups based their NM claim entirely on the state ERA, which is just like the proposed federal ERA. The unanimous holding, basically, was that the state doesn't impede access to male-specific procedures, so it can't limit access to a female-specific procedure.

(New Mexico decision uses the term "medically necessary," but this is a Medicaid term of art. In this context, it means only that a program-eligible woman was pregnant and an abortion was administered by a medical professional; doesn't imply health problem. Like contraception.)

In a recent lawsuit currently underway in Pennsylvania, the Planned Parenthood Federation of America and Women's Law Project argue the state ban on government-funded elective abortions violates the state ERA; to deny this "is contrary to a modern understanding" of ERA, they say.

Some ERA advocates now try to fuzz up the ERA-abortion link with phrases like "it's not automatic," or "it's not a certainty." Here is an example from @juliecsuk, whose 2020 advocacy book on the ERA is currently in vogue. She told POLITICO, "My own view as a legal thinker is

that the right to make decisions about reproductive health care, including abortion, is central to any understanding of gender equality. I’m not saying it’s unlikely to be the law of the land, but I’m saying it’s not a certainty that the ERA would lead to abortion funding.”