How the debate over the ERA became a fight over abortion
Because only women can have abortions, conservatives argue restrictions on the procedure could be found unconstitutional under the Equal Rights Amendment.
Conservative activists waged a successful campaign against the Equal Rights Amendment decades ago by warning it would force women into combat, legalize gay marriage and erode gender roles.
But in 2020, opponents are zeroing in on one line of attack: a claim that ERA would require taxpayer-funded abortions.
The House will vote later this week on a bill that would remove the deadline for ratifying the ERA, which permanently bans discrimination on the basis of sex. The Constitutional amendment, adopted by Congress in 1972, resurfaced last month after Virginia became the last state needed to clear the 38-legislature threshold. A group of conservative states, backed by the DOJ, contend the ERA failed to meet the ratification deadline decades ago and Congress has no legal authority to amend it; Democratic attorneys, on the other hand, argue the Constitution doesn’t give Congress the power to set any ratification deadline, so the ERA should be considered enacted now.
Though the bill is expected to pass the House, it has little to no chance of winning support from the GOP-controlled Senate or President Donald Trump. The real fight will likely take place in federal courts — but the battle for public opinion is already in full swing, and influential and well-funded anti-abortion groups and their allies in Congress don’t want to take any chances.
“Everyone knows this renewed effort isn’t about women’s rights,” the office of House Republican Whip Steve Scalise said, summarizing the message being relayed to the GOP caucus. “It’s about eliminating federal and state life protections and ushering in an era of taxpayer funding of abortion.”
Conservatives argue that because only women can have abortions, any restrictions on the procedure could be deemed unconstitutional under the ERA — and they’re excoriating progressive supporters of the amendment for dancing around this open legal question. ERA proponents, in turn, accuse conservatives of harping on the abortion issue because most of the dire consequences they predicted in the 1970s have already come to pass.
“A lot of the arguments that they had in opposition against the ERA are no longer relevant,” said Rep. Carolyn Maloney, a lead sponsor of the House bill and author of a separate bill that would propose a new ERA. “One of them is that we would have co-ed bathrooms. Wake up. Have you been on a plane? Have you been in a private home? And women are already in the military, on the front lines, they're admirals, they're generals. As for gay rights — gay rights have passed. So that is no longer an issue."
Advocates for the ERA acknowledge that abortion needs to be part of the conversation. Any debate over women’s rights, they say, must also address control over when and whether to have children.
“There are no equal rights for women without access to abortion, plain and simple,” said Alexis McGill Johnson, acting president and CEO of Planned Parenthood.
But supporters say conservatives’ focus on the issue is little more than political cover for blocking women from gaining equality under the law. By homing in on abortion, they contend, opponents are merely pursuing a socially palatable way of opposing gender equality.
“They’re not going to get up and say, ‘I’m a [misogynist],’” Jessica Neuwirth, co-president and co-founder of the ERA Coalition. “They have to find some smokescreen.”
Abortion, she added, is “literally the only thing anyone has that they feel they can throw against the ERA.”
This messaging war, coming to a head with this week’s House vote, has been months in the making.
Attendees of January’s National Pro-Life Summit in Washington were told that the ERA is “abortion in disguise.” The U.S. Conference of Catholic Bishops wrote to lawmakers Thursday warning that the amendment would become “a powerful tool against pro-life abortion laws.” And a campaign launched over the weekend by Students for Life calls it “Roe 2.0” and argues ERA should stand for “Everything Related to Abortion.”
Kristan Hawkins, the president of Students for Life, said she’ll bring student activists to Capitol Hill this week to lobby moderate Republicans they fear might waver on voting no.
“Members sometimes get nervous and ask us, ‘How do we talk about this issue? Equal Rights Amendment sounds like such a good thing,’” she said. “We tell them: Sure, the ERA is a nice title but it has nasty consequences. It’s a Trojan horse. We know you’re worried about Republicans’ so-called women problem, which I would argue doesn’t exist, but this is not the way to address it.”
Conservatives cite other reasons they oppose the ERA — including that it could deny women alimony payments post-divorce and that the U.S. already has adequate laws to protect gender equality, such as the 14th Amendment. But abortion has emerged as the primary fault line in the reignited debate — and it’s an argument that resonates with Republican lawmakers.
“Anything that would hurt the right to life and threaten the protections we have for unborn children is a concern,” Rep. Jim Jordan (R-Ohio), the vocally anti-abortion leader of the House’s conservative Freedom Caucus, told POLITICO.
ERA supporters say that by tying the amendment to abortion, opponents are acknowledging that women are inherently unequal without access to the procedure — and they prefer to keep it that way.
“It’s ironic that people are pulling the ERA into this, because it suggests that they think abortion is an equality right,” Neuwirth said.
CUNY professor Julie Suk, an expert in comparative constitutional law who is writing a book on the ERA, agreed.
Opponents “are correct in sensing that women’s equal status in society requires some measure of reproductive freedom, and some measure of reproductive freedom includes access to abortion, under at least some circumstances,” she said.
This is only the latest chapter in a lengthy battle over whether a ban on discrimination on the basis of sex can and should be added to the Constitution.
The ERA was proposed in 1923, rewritten in 1943, and adopted by Congress in 1972. Members of both parties supported the amendment — in fact, Republicans made it part of their platform well before Democrats, who were nervous it could deny women and children New Deal protections. Buoyed by a wave of public support, blue and red states rushed to ratify the language in the mid-1970s; but momentum slowed following a successful grassroots campaign by anti-feminist Phyllis Schlafly, who warned it would legalize gay marriage, mandate unisex bathrooms, and subject women to the military draft.
While abortion was one of many arguments against the ERA, it wasn’t the center of the debate like it is today.
“Before Roe v. Wade, there was little, if any, discussion in Congress about the implications of this for abortion,” said Douglas D. Johnson, the senior policy adviser at the National Right to Life Committee who represented the anti-abortion group in one of its initial battles against the ERA in the 1980s.
Congress extended the deadline to 1982 to no avail: By the time it expired, only 35 of the required 38 states had voted to ratify, and five even attempted to rescind their ratification.
The issue didn’t resurface until 2017, when Nevada became the 36th state to ratify the ERA and, a year later, Illinois followed suit. A wave of women running for and getting elected to public office in the wake of Trump’s ascendance, buoyed by the Women’s March and #MeToo movement, fueled the momentum to ratify, supporters and legal experts say — momentum that crested in January when Virginia voted to ratify the amendment, becoming the final state needed to clear the three-quarters threshold.
Opponents of the effort have mobilized in parallel — though some say legal obstacles make this a less urgent fight than Schlafly’s 1970s crusade.
“This is not a live ball. I would call it a show vote,” researcher Melanie Israel with the Heritage Foundation said of the House bill. “During the 1970s, this was at its peak. But everybody recognizes that the stakes are not the same now. Really it’s more of an opportunity for us to educate a new generation about why the ERA is problematic.”
Israel and other ERA critics point to what has happened at a local level. In New Mexico, Connecticut, Alaska and a few other states that have added ERA-like language to their own constitutions, conservative groups say it has provided a legal foundation to expand federal funding for medically necessary abortions, and set a precedent that they warn could lead to unfettered access to abortion.
Johnson cites a 1998 New Mexico Supreme Court ruling he called “the perfect case for showing how this would work,” in which judges voted unanimously that the state’s ERA requires its government use Medicaid funds to pay for medically necessary abortions.
“The New Mexico case shows it’s a very plausible outcome” on the national level, he said.
Legal experts counter that while the ERA would strengthen women’s rights, including reproductive ones, it’s unclear that such a scenario would transfer to the national level.
“It’s unpredictable, because it’s a legal argument … that if you cover all medically necessary services but you leave out abortion, that is sex discrimination,” Suk said. “That is an argument that I think is a persuasive argument, and some state Supreme Courts have been persuaded by that argument, but there are also arguments on the other side.”
Suk pointed to a U.S. Supreme Court ruling that the exclusion of pregnancy from certain benefits is not sex discrimination. In a similar fashion, she said, the question of whether the ERA guarantees access to abortion would be “up to the judges.”
“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,” Suk said. “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.”
Conservatives arguing against ratification, including Israel, say they’re not comforted by this legal gray area.
“Really? Do you think that’s going to assuage our concerns about this? That we’ll say, ‘Sure, let’s just roll the dice and see if the Supreme Court agrees’? No. Of course not,” she said.
While Israel cited several other reasons why Heritage views the ERA as problematic, including the possibility that it could extend protections to transgender women, some anti-abortion groups including the NRLC say they would be neutral on the amendment if it included language explicitly stating that it doesn’t apply to abortion.
ERA supporters say such a carve-out is a nonstarter.
“The ability of women to participate equally and the idea of equality in our economy is fundamentally bound up with the ability to access reproductive rights,” said Fatima Goss Graves, the president of the National Women’s Law Center.