Republicans Want to Make a Debate Over Discrimination into an Abortion Battle

May 1, 2019 Off By Marie Solis

When women’s rights activists gathered in Washington on Tuesday for the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years, they seemed to encounter many of the same decades-old strategies that have been used to derail it. Chief among them was the idea that the proposed constitutional amendment, which would enshrine equal protections for women in law, would trigger an unfettered expansion of abortion rights on the state and federal level—an argument some ERA supporters say is intended to sow division.

Lawmakers on the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties convened Tuesday’s hearing in part to discuss legislation introduced by California Representative Jackie Speier, whose resolution would remove the deadline for the ERA and pave the way for the amendment’s ratification. Though the bill passed overwhelmingly in the House and Senate in 1972, it’s still one state away from reaching the two-thirds supermajority required to become a constitutional amendment.

Speier and the other lawmakers and witnesses who testified on Tuesday in favor of the ERA argued that its principle purpose is to eliminate gender discrimination and establish a constitutional standard of equality for women. But they met repeated opposition from Louisiana Representative Mike Johnson, who insisted that the amendment would infringe on “the people’s right to protect the unborn.”

“If the ERA were to become part of our law, restrictions on abortion would automatically be struck down,” the congressman said on Tuesday.

The ERA’s supporters bristle at Johnson’s claims, which they see as a baseless—and familiar—tactic to block a constitutional amendment that could transform women’s lives from going into effect.

“I think that the use of abortion rights to oppose the ERA is another red herring,” National Organization for Women President Toni Van Pelt said Tuesday. “They’re just trying to keep women from power—and their arguments are old and tired.”

While supporters take issue with these claims that the ERA would be instantly transformative, it also appears that some are backing away from acknowledging any impact the amendment could have on reproductive rights. What the ERA would mean for abortion protections in particular is a question its advocates find it difficult to agree on.

On Tuesday, Speier assured Johnson that the ERA is “no stalking horse for abortion,” emphasizing that the proposed amendment isn’t a ploy to enshrine additional abortion protections. And New York Representative Carolyn Maloney—one of the ERA’s most vocal leaders in Congress—added in her testimony that the amendment has “absolutely nothing to do with abortion.”

“It has to do with equality of rights most of which has to do with equality and respect,” she continued. “Saying it has to do with abortion is divisive and a tool to defeat it.”

Johnson’s case against the ERA appeared to borrow heavily from Phyllis Schlafly, the conservative activist who led the opposition to the proposed amendment in the 1970s. At the time, Schlafly argued that the legislation—first introduced to Congress in 1923—would encourage “abortion on demand” and buoy what she called the “abortion industry,” repealing “all and every kind of anti-abortion laws that we now have.”

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“The suggestion that the ratification of the ERA would be a sea change in abortion rights has been an argument folks have been making since the 70s, and I’m just not seeing it,” Linda Coberly, a Chicago-based lawyer and chair of the ERA Coalition’s Legal Task Force, said on the phone. “I’m not saying that the ERA has nothing to do with reproductive rights—I don’t think that’s true. But the idea that the ERA would instantly eliminate all restrictions on abortion is fearmongering."

But others see an opportunity for the ERA to provide stronger legal grounds for abortion rights during a time when they’ve come under attack.

“The ERA would help create a basis to challenge abortion restrictions,” Kelli Garcia, the director of reproductive justice initiatives and senior counsel at the National Women’s Law Center, said Wednesday morning. “We see the ERA as another tool that would strengthen our existing protections.”

As Garcia suggests, the truth about the ERA’s implications for abortion rights appears to lie somewhere between the two extremes presented on Tuesday. Expert witnesses who spoke at the hearing acknowledged that reproductive rights are essential to women’s equality under the law—and therefore not entirely unrelated to an amendment guaranteeing women’s equal treatment—but pointed out that it would ultimately be up to the courts to decide whether the ERA supports legal arguments against abortion restrictions or not. That is, there wouldn’t be any automatic changes if the amendment was ratified.

The biggest obstacle to lawmakers who want to pass anti-abortion legislation continues to be Roe v. Wade, as well as the many Supreme Court decisions that have continued to uphold it—and advocates say that will continue to be true even if the ERA is ratified. “Even without the ERA we still have tools in our existing law and existing precedents to challenge and strike down many of the abortion restrictions we’ve been seeing,” Garcia said. “Yes, the ERA would provide another legal tool, but those restrictions are already unconstitutional.”

But even those who contend conservatives are falsely linking the ERA with reproductive rights say that invoking abortion may not thwart the amendment this time. In Illinois—which joined Nevada last year in becoming the most recent states to ratify the ERA—11 anti-choice Republican legislators voted in favor of it.

“I think there’s a recognition of the fact that the equality guarantee of the ERA goes way beyond reproductive rights,” Coberly said. “I think even a person who is ‘pro-life’ could easily conclude that equality is bigger than any one issue.”

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