Pro-life group warns ERA being used as 'stealth missile' to insert abortion rights into Constitution

Women in favor of ERA.
Women in favor of ERA. | Florida Memory Project/public domain

In its newly released report on The State of Abortion in the United States, a pro-life group has warned that Democrats and pro-abortion activists see the Equal Rights Amendment as a way to insert a right to abortion into the United States Constitution.

Released Friday, the National Right to Life Committee's report contains an entire section warning that the pro-abortion movement hopes to use the Equal Rights Amendment as a "constitutional stealth missile" to "air-drop into the U.S. Constitution a provision that they believe, and pro-lifers fear, could be used to entrench and expand a constitutional 'right' to abortion."

While the deadline to ratify the Equal Rights Amendment passed more than 40 years ago, pro-abortion activists are expected to insist that the amendment has already been ratified.

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The NRLC report features quotes from abortion advocacy groups indicating a desire to use the ERA as a method to invalidate all restrictions on abortion.

According to a quote attributed to NARAL Pro-Choice America, "With its ratification, the ERA would reinforce the constitutional right to abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate both the constitutional right to privacy and sexual equality." 

The Equal Rights Amendment, which both chambers of Congress approved in 1972, was packaged as a necessary measure to ensure women's equality under the law, but the push for the constitutional amendment faced considerable backlash from conservatives.

"The ERA is a stealth missile with a legal warhead that could be used to attack any federal, state, or local law, that in any way limits abortion," warned Douglas D. Johnson, an NRLC senior policy adviser.

"Pro-abortion advocates failed under the constitutional amendment process provided in Article V of the Constitution — the ERA expired unratified over 40 years ago — so now they are attempting to achieve their goal by brazenly political means, hoping to cow the courts into ignoring the flimsiness of their constitutional claims," he added.

In accordance with Article V of the U.S. Constitution, Congress sent the proposed constitutional amendment to the states for ratification. Thirty-eight states had to ratify the ERA within seven years in order for it to take effect.

By the 1979 ratification deadline, 35 states had ratified the ERA, leaving it three short of the three-fourths majority required to take effect. However, three additional states ratified the measure in the past three years, giving it the required number of states for ratification, albeit they were more than 40 years too late. Although 38 states have voted to ratify the ERA at some point, five of those states revoked their ratifications after the fact. 

According to the NRLC report, "the Biden-Harris administration is expected to assert that the ERA — submitted to the states by Congress in 1972 with a seven-year ratification deadline — has been ratified and is already part of the Constitution, or that Congress can make it so with a resolution passed by simple majority votes."

NRLC's concerns come as Democrats, who almost unanimously sympathize with the pro-abortion movement, control both chambers of Congress and the presidency for the first time in a decade.

"In an attempt to influence the courts, during 2021, the House of Representatives is likely to pass an unconstitutional resolution that, by simple majority vote, purports to remove the 1979 ratification deadline," the pro-life group warned.

The Democratic-controlled House of Representatives already passed such a measure last year, with the support of five Republicans, but it failed to become law because it was never brought up for a vote in the Republican-controlled Senate.

With Democrats in control of the Senate, a vote will likely take place in the upper chamber as well. The outcome of a Senate vote will likely depend on whether Democrats, who have a slim one-vote majority, are able to successfully abolish the legislative filibuster.

Sen. Joe Manchin, D-W.Va., has spoken out against removing the filibuster, which requires most legislation to secure 60 votes to pass. Manchin's stated opposition to the filibuster has won him praise from the pro-life group Susan B. Anthony List, which has launched a campaign thanking him for "standing strong for life" and encouraging West Virginians to make sure that he "stands strong for their values."

If the efforts to abolish the legislative filibuster are unsuccessful, all Democrats and 10 Republicans would have to support the resolution removing the ERA deadline in order for it to pass. Additionally, the report featured a quote from the Biden campaign's website, where he vowed to "proudly advocate for Congress to recognize that 3/4 of states have ratified the amendment and take action so our Constitution (includes ERA)."

Anticipating that a vote to remove the ratification deadline for the ERA will take place, NRLC has written a letter to lawmakers explaining that "a vote in favor of the 'deadline repeal' measure will be accurately characterized as a vote intended to add language to the U.S. Constitution that both NARAL Pro-Choice America and National Right to Life say would likely be employed to invalidate laws protecting unborn children."

NRLC has vowed to oppose any version of the ERA unless it includes an "abortion-neutralization" amendment clarifying that "Nothing in this article (the ERA) shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof."

The late Supreme Court Justice Ruth Bader Ginsburg, a revered figure in the pro-abortion and feminist movements, acknowledged that the push to paint the 1970s effort to ratify the ERA as settled was not guided in sound legal principles: "There's too much controversy about latecomers — Virginia, long after the deadline passed. 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?'" 

Rather than relitigating the 1970s effort to pass the ERA, Ginsburg suggested that ERA supporters "start over." Previous attempts to reintroduce the ERA and restart the ratification process have failed to gain traction in Congress. 

As the report explained, a lawsuit regarding the ERA is already before the federal judiciary. The attorneys general of Virginia, Illinois and Nevada, the three states that ratified the ERA decades after the deadline expired, are making the case that because Article V of the Constitution does not explicitly mention deadlines, the provision in the ERA requiring the amendment to be ratified within seven years violates the Constitution as do the recissions of ratifications that took place in five states.

In addition to discussing the ERA's implications for the pro-life movement, the State of Abortion report included statistics taken from the Centers for Disease Control finding that the number of abortions rose slightly from 2017 to 2018 as well as information about President Joe Biden and Vice President Kamala Harris' records on the issue of abortion and a summary of state laws on abortion. The end of the document highlights the previous U.S. presidents' records on abortion policy and a list of relevant Supreme Court rulings on the issue.

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