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Don’t Let Congress Undo Dobbs, Erase Women: Update

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This article has been updated (1) to include additional findings and (2) to correct an incorrect reference to Colorado, which should have been a reference to Connecticut.

State of play. This Congress, Sen. Ben Cardin (D-Maryland), Sen. Lisa Murkowski (R-Alaska), and Rep. Ayanna Pressley (D-Massachusetts) reintroduced a resolution in the U.S. Senate and House of Representatives in support of the so-called Equal Rights Amendment.

U.S. Senate Majority Leader Chuck Schumer (D-New York) has already moved the measure onto the Senate’s Legislative Calendar for potential consideration in April. There are rumors that supporters will also attempt forced consideration on the House Floor.

Dobbs‘ undoing, erasing womenIf it was ever properly ratified, the Equal Rights Amendment could constitutionalize abortion and radical gender ideology. It could undo the historic victory in Dobbs v. Jackson Women’s Health Organization (2022), the U.S. Supreme Court case that correctly concluded that there is no right to abortion in the U.S. Constitution, and it could erase women from the Constitution.

Procedural defects. The only good news is that this current effort to ratify the Equal Rights Amendment—in the tradition of the past efforts—will fail. As a proposed constitutional amendment, the Equal Rights Amendment is bound by a unique set of procedural requirements for ratification. Currently, supporters are pursuing ratification outside of these bounds and through improper means.

Substantive issues. That said, we remain vigilant because of the Amendment’s dire consequences. Of course, the text sounds good: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” But as we have explained before, “the amendment could have a reverse effect on women’s progress.” Rep. Mike Johnson (R-Louisiana), for example, expertly revealed in a 2019 House Judiciary Committee hearing that activists will use the Equal Rights Amendment to constitutionalize abortion and gender identity.

Abortion. Any difference in treatment between men and women can be considered denial or abridgment of equality. This even includes natural, common sense differences, such as pregnancy and birth. Connecticut and New Mexico have Equal Rights Amendments in their state constitutions. Supreme courts in both states interpreted these Equal Rights Amendments to require abortion access in their state health programs.[1] In New Mexico, for example, the court said:

  • “women’s biology and ability to bear children have been used as a basis for discrimination against them.”
  • “Since only women become pregnant, discrimination against pregnancy by not funding abortion when it is medically necessary and when all other medical[ly necessary] expenses are paid by the state for both men and women is sex oriented discrimination.”

Further, as Sen. Lindsey Graham (R-South Carolina) and Rep. Johnson explained, groups that support abortion access—NARAL Pro-Choice America, National Organization for Women, and Planned Parenthood—have explicitly stated that they would use a federal Equal Rights Amendment to strike down laws that protect the unborn. Should it become law, the Amendment could insert a right to abortion in the U.S. Constitution.

Gender Identity. Equality could also mean reinterpretation of the law that makes distinctions based on sex, such as registration for the Selective Service. The Equal Rights Amendment could be used to force women to register for the Selective Service, and the legality of women-only spaces would be thrown into question.

The New Mexico Supreme Court’s reasoning once again raises these concerns by stating that it is “erroneous to rely on the notion that a classification based on a unique physical characteristic is reasonable simply because it corresponds to some ‘natural’ grouping…we must ascertain whether the classification ‘operates to the disadvantage of persons so classified.’” This reasoning—which could be the reasoning used for a federal Amendment—opens the door to judicial Monday morning quarterbacking that introduces today’s radical gender ideology.

The Amendment only uses the word “sex.” But as we have seen, Rep. Johnson exposed through congressional questioning that activists would use it to force the same treatment of women and men who identify as women.

  • Kathleen M. Sullivan, Partner, Quinn Emanuel Urquhart & Sullivan: “The proper textual reading of the term on account of sex does include discrimination on the basis of sexual orientation or transgender identity, and that is just a textual reading of the term on the basis of sex.”
  • Pat Spearman, Co-Majority Whip, Nevada Senate: “When you talk about on the basis of sex, gender identity is a new way of saying this is who I am.”
  • Patricia Arquette, Actor and Advocate: “That is going to be argued in court.”

Then-House Committee on Oversight and Accountability Chairwoman Carolyn B. Maloney hosted a hearing on the Equal Rights Amendment, which included men who identify as women as within the scope of coverage for women’s new legal status under the Equal Rights Amendment.

And as many of you know, Mrs. Beverly LaHaye, Concerned Women for America (CWA) Founder, started CWA and mobilized thousands of women across the country because of her concerns with the Equal Rights Amendment. She spoke out against not just the Amendment’s harms for the unborn but the unfair characterization of women as a monolithic block of pro-abortion feminists. Radical gender ideology presents new challenges, but our mission remains the same to advocate for Biblical values in public policy and through that, “speaking the truth in love,” Ephesians 4:15.

[1] Doe v. Maher, 40 Conn. Supp. 394, 515 A.2d 134 (Conn. Super. Ct. 1986); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998).