ERA as written would force taxpayer funding of abortion

By Rep. Chris Smith (R-NJ) 

Editor’s note. This appeared in the March digital edition of National Right to Life News. Please read the entire issue and pass along articles you enjoy to pro-life family and friends.

Editor’s note. As NRLC reported last month, the  Democrat-controlled U.S. House of Representatives “passed a measure that purports to reanimate the Equal Rights Amendment approved by the 92nd Congress in 1972.” H.J. Res. 79 “purports to ‘remove’ by majority vote the deadline that was contained in the Proposing Clause of the ERA Resolution , which was approved by Congress in 1972 by the constitutionally required two-thirds margin.”

Rep. Smith delivered these remarks In the House of Representatives  on the day of the debate.

Rep. Chris Smith
Photo: Amanda Bossard/Medill News Service

…I arrive at the debate on the elimination of the deadline for the ERA from the perspective of my work to ensure equality and protection for women and every woman’s right to be treated fairly and without exploitation. 

The words of Supreme Court Justice Ruth Bader Ginsburg on the legal impermissibility of extending the deadline for ratification have sealed the fate of the proposed amendment. Justice Ginsburg’s judgment is that the deadline has expired and that she “would like it to start over” presents a definitive view that the process has come to an end.

According to Vox, Justice Ginsburg also said “There’s too much controversy about latecomers, plus, a number of states have withdrawn their ratification.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?’”  Five states—Idaho, Kentucky, Nebraska, Tennessee, and South Dakota—voted to ratify the ERA but later rescinded that ratification.  

Today, however,  one thing is absolutely clear from both sides of the abortion divide: ratification of the ERA with its current wording will likely overturn laws prohibiting public funding of abortion—like the Hyde Amendment—and undo modest restrictions on abortion including waiting periods, parental involvement, women’s right to know laws, conscience rights including the Weldon Amendment and any ban on late term abortion including the Pain-Capable Unborn Child Protection Act.  

Should the ERA be ratified without clarifying abortion-neutral language—to wit:  “Nothing in this Article shall be construed to grant or secure any right relating to abortion or the funding thereof”—abortion activists will use the ERA as they have successfully used state ERAs in both New Mexico and Connecticut—to force taxpayers to pay for abortion on demand.  

Consider this:

  • The Supreme Court of New Mexico ruled in 1998 that the state was required to fund abortion based solely on the state ERA and said the law “undoubtedly singles out…a gender-linked condition that is unique to women” and therefore “violates the Equal Rights Amendment.”
  • In like manner, the Supreme Court of Connecticut invalidated its state ban on abortion funding and wrote in 1986: “it is therefore clear, under the Connecticut ERA, that the regulation excepting…abortions from the Medicaid program discriminates against women.”
  • Today in Pennsylvania, activists are suing to eviscerate the abortion funding restriction in that state claiming that the Hyde-type restriction violates the Pennsylvania Equal Rights Amendment. 

While I take issue with abortion activists who refuse to recognize an unborn child’s inherent dignity, worth and value,  at least activists on both sides agree that the ERA as written will be used in court as a means to compel public funding of abortion and to strike down the Hyde Amendment and other modest abortion restrictions at both the state and federal level.

NARAL Pro-Choice America plainly states: “With its ratification, the ERA…would require judges to strike down anti-abortion laws…”

A senior lawyer of the National Women’s Law Centers said: “The ERA would help create a basis to challenge abortion restrictions.”

The National Right to Life Committee states that “the proposed federal ERA would invalidate the federal Hyde Amendment and all state restrictions on tax-funded abortions.”

And the U.S. Conference of Catholic Bishops agree and wrote “One consequence of the ERA would be the likely requirement of federal funding for abortions…(and) arguments have been proffered that the federal ERA would…restrain the ability of the federal and state governments to enact other measures regulating abortion, such as third-trimester or partial birth abortion bans, parental consent, informed consent, conscience-related exemptions, and other provisions.”

According to the most recent Marist Poll (January 2020) , 

  • 60% of all Americans oppose using tax dollars for abortion,  
  • seven in ten Americans including nearly half who identify as pro-choice want significant restrictions on abortion,
  • a majority of Americans—55%–want to ban abortion after 20 weeks,
  •  nearly two-thirds of Americans oppose abortion if the child will be born with Down Syndrome.

I believe that all human beings—especially the weakest and most vulnerable including unborn baby girls and boys—deserve respect, empathy, compassion and protection from violence.