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Equal Rights Amendment: Enshrining Abortion as a Constitutional Right

ve8QAd   |   October 01, 2007

The Equal Rights Amendment, better known as the ERA, was a highly controversial social issue in the seventies and eighties. The reason for this is that legal experts say it would have placed the right to unrestricted abortion into the Constitution. Recently, the ERA has once again reared its ugly head, and pro-lifers should be concerned. But in order to fully understand its continued danger to unborn children and their mothers, we must first understand its history.

The proposed constitutional amendment wording above was passed in March of 1972 by both houses of Congress. Within two months, 13 states had ratified it, by nine months, 22, and by twelve months, 30 states. But then momentum stopped and the tide turned. In the next six years, five more states ratified the ERA but five rescinded it, leaving a total of 30. Thirty-eight states are necessary to ratify in order to make it part of the constitution. Why the turn around?

Basic credit for this goes to Phyllis Schlafly who sounded the alarm, publicized its scope and problems, lectured, wrote and successfully led the campaign against it. She focused the nation on much of the following:

A long series of amendments were proposed to this ERA wording during the debates in Congress. Each would have rectified serious flaws. Each was defeated. An examination of these reveals their profound significance. These proposed amendments included:

  • Women could not be drafted. Amendment 1065: “This article shall not impair the validity of any laws of the US or any state which exempt women from compulsory military service.” This amendment was voted down.
  • Women could not be sent into combat. Amendment 1066: “This article shall not impair the validity of any laws of the US or any state which exempt women from service in combat units of the armed forces.” It was voted down.
  • Two amendments would have ensured that women, wives and mothers would not lose certain civil and legal privileges that they have always needed, e.g. receiving homemaker benefits while the husband works. Amendment 1067: “This article shall not impair the validity of any laws of the US or any state which extends protections or exemptions to women.” Amendment 1068: “This article shall not impair the validity of any laws of the US or any state which extend protections or exemptions to wives, mothers, or widows.” Both were voted down.
  • Women would not lose child support. Amendment 1069: “This article shall not impair the validity of any laws of the US or any state which impose upon fathers the responsibility for the support of their children.” It was voted down.
  • Schools, seminaries, sports, toilet facilities, etc. could continue to be segregated and have separate, private facilities. Amendment 1070: “This article shall not impair the validity of any laws of the US or any state which secure privacy to men and women, boys and girls.” It was voted down.
  • Homosexuality would not be forced upon the nation as co-equal legally with the traditional heterosexual family in education, etc. Amendment 1071: “This article shall not impair the validity of any laws of the US or any state which make punishable crimes sexual offenses.” It was voted down.

Since the Senate rejected all of these limitations, it was logical to assume that they meant the ERA would allow or even direct that all of the above could or should happen. This marked the beginning of the campaign against the ERA.

In response, the proponents pointed out that none of the amendments above-mentioned abortion. This was true. However, if the sexes were to be completely equal then the rights that one sex had should be guaranteed to the other also. Men could have sex and walk away not pregnant, so if a woman had sex and got pregnant, she should have the right to be not pregnant also. If she were “forced” to stay pregnant that would be sexual discrimination.

In addition, if surgical operations peculiar to the male sex, e.g. prostate surgery, were paid for with tax money, operations that are peculiar to the female sex, e.g. abortion, should also be paid for.

But there was more. At the present, a homemaker has certain benefits because of what her husband earns. Under the ERA, she would have to pay Social Security taxes based upon the value of her contributed work at home in order to obtain retirement benefits. Obviously, if a homemaker was required to pay, say, $2,000 a year in Social Security taxes, many or even most would have to leave their homes and work outside the home.

At the time, Senator Sam Erwin made another very cogent comment, “The ERA will transfer from the states to the federal government vast governmental powers which have been reserved to the states throughout our history. By so doing, this amendment would substantially thwart the purpose of the Constitution, which created an indestructible union composed of indestructible states and would reduce the states in a large majority to powerless zeros on the nation’s map.”

All this negative baggage that had accumulated around the ERA made it much less appealing to locally accountable elected state senators and representatives. So then what happened after the pro-ERA people were stymied in the state legislatures? They turned to state referenda. Accordingly, three years after the ERA’s introduction, statewide referenda were held in New York State and New Jersey. In both, the ERA was decisively defeated. Others were Wisconsin in 1973, Florida and Nevada in 1978, Iowa in 1980, Maine in 1984 and Vermont in 1986. All of these proposed state ERAs were defeated.

The next positive development was that states began rescinding their earlier ratification. This occurred in Nebraska, Tennessee, Kentucky, Idaho and South Dakota.

Then in March 1979, the seven-year limit for ratification expired. Congress extended the time limit for 30 more months. This extension was questioned constitutionally, however, this was never resolved. Even with the extension, the ERA expired in 1982 without any more states ratifying it.

But the proponents didn’t quit. In 1983, the same wording was reintroduced in both the House and the Senate and hearings were held. By now, abortion was the crucial issue. Testifying before a Senate committee, Senator Paul Tsongas answered this question, “Would the ERA lock the right to abortion and/or abortion funding into the Constitution?” His answer, “That issue will be decided in the courts.” The same answer was given to questions regarding women in combat, privacy issues, etc. This proved, in a rather devastating fashion to anyone listening, that the ERA could mean anything the Supreme Court interpreted it to mean. This was not too reassuring.

Then some states incorporated the same ERA wording into their state constitutions. In a number of cases this wording was held to mean that abortion and its funding were legalized. For instance, in Connecticut the Medicaid program had paid for abortions only for life of the mother, rape and incest. In April 1987, its Superior Court ruled this restrictive law to be unconstitutional under that state’s ERA. “Since only women become pregnant, discrimination against pregnancy by not funding abortions is sex-oriented discrimination.” The US Catholic Bishop’s Conference and the National Right to Life Committee, among others, offered an amendment, “Nothing in this article shall be construed to grant or secure any right relating to abortion or the funding thereof.”

If this had been attached, the ERA would have swept through both houses and would have become part of our Constitution. But radical feminist groups and the ACLU would not have it. They insisted on the un-amended original wording, which was defeated by six votes in the Senate. Without any question, the ERA was defeated on the horns of the abortion issue.

It is interesting to note that the right-to-life movement originally did not take a position on the ERA, as they saw it only as women’s rights and did not see the direct abortion connection. The same was true of the US Catholic Bishop’s Conference. When, however, all of the evidence firmly tied the ERA to an abortion liberty, both of these major organizations insisted on the amendment. It was not added, so they opposed it.

There was one other thing that legal experts saw as very crucial – the issue of “strict scrutiny.” When the Supreme Court ruled that the Hyde Amendment was constitutional, it stated that forbidding the use of tax funds for abortion was constitutional because it was not based on a “suspect classification” and as such did not trigger “strict scrutiny” by the courts. ERA advocates have emphasized that the principle legal effect of these words in the Constitution would be to make sex a “suspect classification” under the Constitution. The most important such classification at present is race. If such “sex discrimination” were treated like “race discrimination” any government refusal to fund abortion or to permit it would be treated like a refusal to fund medical procedures that affect members of minority races, for example sickle cell disease for black people. During the 1983 hearings, an ERA sponsor, strongly pro-abortion Congressman Don Edwards, specifically stated that the ERA would impose such “strict scrutiny” on “pregnancy classification.” Such classification was mentioned and upheld by other legal authorities.

And Now Today
The current Democrat majority in Congress, confident and feeling its oats, has reintroduced the ERA in its original wording. Let us remember the detailed history above so we’re less likely to repeat it. These facts are relevant to and would directly apply if such wording were now put into our Constitution. We should spread this information as broadly as we can.

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