Equal Rights Amendment & Abortion: What Does It Even Mean at This Point?

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Over on the homepage, Alexandra DeSanctis notes the Left’s mixed messages as to whether the Equal Rights Amendment, if successfully resurrected, would enshrine abortion rights in the Constitution. Nancy Pelosi says no, but various abortion groups supporting the amendment say otherwise.

This isn’t the only confusion over what the ERA even means. Its key sentence reads simply, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” It passed Congress and was sent to the states in the early 1970s, just before Roe v. Wade — using text that had undergone its last revision in the 1940s and had initially been drafted in the 1920s, just a few years after women won the right to vote. Yet only now does it have any chance to become part of the Constitution. It has meant different things to different people voting on it at different times, and constitutional protections against sex discrimination have expanded via the Supreme Court even in the absence of the amendment.

Michael Dorf has gone so far as to argue that the ERA might do next to nothing: 

The Supreme Court has treated sex discrimination by the states as presumptively in violation of the 14th Amendment’s Equal Protection Clause and sex discrimination by the federal government as presumptively in violation of the equal protection component of the 5th Amendment’s Due Process Clause. Nothing in Section 1 of the ERA necessarily adds to that doctrine. . . . Whether Section 1 of the ERA requires something more than current jurisprudence would thus turn entirely on whether the courts choose to construe it as doing so. They might, but there is nothing in its text or history that foreordains that result.

Obviously, some left-leaning justices would prove happy to run with the amendment however they felt like it. But what would (or should) an originalist judge do? What on earth would be the “original public meaning” of an amendment that took 50 years to enact, when even the people promoting it to the public right now can’t agree on what it does? As Keith Whittington has put it:

[The ERA] references deeply contested political principles, and there is little guidance about which potential principle is actually being enshrined in the Constitution through the language of the ERA. . . . Perhaps we should just think that the ERA is a cypher that effectively delegates to federal judges the authority to make up and enforce whatever rule they want in the name of gender equality. That might well be the practical effect of accepting the validity of the ERA. For those who might generally favor originalism as the proper guide to constitutional interpretation, the ERA is an interpretive nightmare. An amendment that was initially proposed to alter a legal environment that has not existed for decades in the United States but that is somehow still seen as necessary by current proponents hardly has an obvious public meaning.

Indeed.





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