The ERA-Abortion Connection: The Mask Comes Off

By Karen Cross, Political Director

Karen Cross, political director for National Right to Life, spoke about the ERA-Abortion connection during a press conference with other pro-life organizations. On Tuesday, February 28, the Senate Judiciary Committee held a hearing for S.J.Res. 4 to retroactively “remove” the ratification deadline set by Congress over 50 years ago.

National Right to Life has opposed the 1972 ERA language for decades, recognizing that the ERA language proposed by Congress in 1972 could be construed to invalidate virtually all limitations on abortion, and to require government funding of abortion. This opposition was the major reason why an attempt to restart the ERA in 1983 was defeated on the floor of the House of Representatives.

In past decades, such pro-life concerns were widely disparaged by most ERA advocates, both inside and outside of Congress. They often derided assertions of an ERA-abortion link with such terms as “misleading,” “scare tactic” and even “a big lie.” 

As recently as 2019, the pro-ERA leader in the House of Representatives, Rep. Carolyn Maloney (D-NY), lectured Republicans at a hearing on the ERA. She stated, “The Equal Rights Amendment has absolutely nothing to do with abortion…saying so is divisive and a tool to try to defeat it. So please don’t ever say that again.”  Likewise, on February 13, 2020, Speaker Nancy Pelosi said on the floor of the U.S. House of Representatives, “This [the ERA] has nothing to do with the abortion issue.”

But now, the mask is fully off. Virtually every major pro-abortion organization and every major pro-ERA organization, such as the ERA Coalition, is shouting from the rooftops that the 1972 ERA must be construed to invalidate direct or indirect limitations on abortion. NARAL Pro-Choice America says that “the ERA would reinforce the constitutional right to abortion . . . [it] would require judges to strike down anti-abortion laws Some prominent ERA advocates even now acknowledge that the previous denials were merely a strategic deception.

The Associated Press reported that 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 the amendment to the Constitution would enable courts to rule that restrictions on abortion ‘perpetuate gender inequality.’”

I could give dozens of such examples, if time allowed. You will find a fair number of them in our recent Special Report on the Equal Rights Amendment, and in other places.

In addition, as we have explained in detail in our communications to Congress, the pending congressional measures would destroy the guardrails that protect the text of the Constitution from willy-nilly changes manipulated by simple majorities in Congress. Prof. Elizabeth Foley explained this very cogently in her testimony this morning before the Senate Judiciary Committee.

In 41 years, the ERA revival movement has put its novel legal arguments before numerous federal judges, evenly divided between the parties of the appointing presidents, and they have not yet won a single vote, on a single issue, from a single federal judge.

 Just today, a three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously rejected a lawsuit by Illinois and Nevada, in which those states had demanded that the ERA’s ratification deadline should be declared unconstitutional.

We believe that Congress has no power to resurrect the 1972 Equal Rights Amendment, except by re-starting the entire constitutional amendment process. Douglas Johnson, the Director of the National Right to Life ERA Project, would welcome the opportunity to speak with any of you in more detail about the different aspects of this issue.