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ERA would not effect regulation of abortions

The following is the text of the Equal Rights Amendment:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this Article.

Section 3. This Amendment shall take effect two years after the date of ratification.

In his letter ["ERA must be abortion-neutral, April 14], Chris Papineau attempts to explain a statement he made during the MIT Pro-Life rally on April 8 ("We [MIT Pro-Life] do not support the ERA because it gives women the right to kill their children."). He claims "Both pro-life and pro-abortion lawyers agree that the ERA, in its present form, would be interpreted by the Supreme Court as encompassing abortion rights." The attempt to link the issue of abortion and the ERA has a long and often misrepresented history. Apparently, the misrepresentation is fated to continue.

In rendering a judgment concerning the constitutionality of a given law the Supreme Court considers two criteria: 1) The legislative history of the article under consideration and 2) court precedents. Papineau suggests that should ERA pass, the Supreme Court would use the amendment to declare anti-abortion legislation unconstitutional. Although such a claim saddles Papineau with the burden of proof, he offers no evidence to support his position. The following explains this apparent "oversight" on his part.

The legislative history of the ERA with respect to the issue of abortion is clear. Congress never intended the two issues to be linked and has steadfastly refused all attempts to do so. In fact, the Senate report on the amendment concludes, "The original resolution does not require that women must be treated in all respects the same as men... As a result, the original resolution would not prohibit reasonable classifications based on characteristics that are unique to one sex." During a House debate, when asked directly about the link between the ERA and abortion, Martha Griffiths, chief sponsor of the ERA in the House, stated that the ERA will have "no effect on any abortion law of any state." Other testimony to the same effect abounds in the congressional record.

Court precedents on the issue are also clear. The Supreme Court's argument with abortion has never hinged on equal protection arguments but rather on due process. In Roe v. Wade the court found that Texas anti-abortion laws violated the due process clause of the Fourteenth Amendment and hence were unconstitutional. Again, in Doe v. Bolton the court found that a Georgia law violated due process and hence was unconstitutional. No mention of equal protection under the law was made.

In fact, precedent suggests that equal protection arguments to insure the right to an abortion will not wash. The court has heard challenges to legislation forbidding the public funding of abortion in both Pennsylvania and Hawaii; both states have equal rights amendments in their state constitutions virtually identical to the above. The challenges claimed that the legislation violated state ERA and hence were unconstitutional. In all cases the court has found that if there was discrimination, it was based on wealth and not sex. Specific references include Beal v. Doe (Pennsylvania) where the court found that the right to a publicly-funded abortion is not guaranteed under Title XIX of the Social Security Act, and Maher v. Roe (Connecticut) where the court found that the right to a publicly-funded abortion is not guaranteed under the equal protection clause of the Fourteenth Amendment.

In short, as Thomas Emerson, professor at Yale Law School, has stated: "The ERA has nothing to do with the power of the states to stop or regulate abortions, or the right of women to demand abortions. The state's power over abortions depends upon wholly different constitutional considerations, primarily the right to privacy, and would not be affected one way or another by the passage of ERA. This allegation is a pure red herring."

In conclusion, Papineau's claim that there is a link between abortion and ERA is nonsense. It is a historical remnant of a less than subtle attempt by conservatives in the 1970s to stop ratification of the ERA by splintering support over the issue of abortion. Today it is propagated, wittingly or not, with the same effect by anti-abortionists who have no excuse for their ignorance of the law.

Patrick McDonald G->