ERA and Reproductive Rights

From Alice Paul Institute page:

9. How has the ERA been related to reproductive rights?

The repeated claim of opponents that the ERA has the overt effect of requiring government to allow “abortion on demand” misrepresents existing federal and state laws and court decisions.

In federal courts, including the Supreme Court, a number of restrictive laws dealing with contraception and abortion have been invalidated since the mid–20th century based on the constitutional principles of right of privacy and due process, not equal rights. Roe v. Wade (1973) falls squarely in the middle of a line of court decisions expanding the interpretation of individuals’ constitutional “right to privacy” to protect against excessive governmental reach into certain personal decisions in their lives.

State equal rights amendments have been cited in several state court decisions (e.g., in Connecticut and New Mexico) dealing with a very specific issue – whether a state that provides funding to low-income Medicaid-eligible women for childbirth expenses should also be required to fund medically necessary abortions for women in that program. The courts ruled that the state must fund both of those pregnancy-related procedures if it funds either one, in order to prevent the government from using fiscal pressure to influence a woman’s exercise of her right to make medical decisions about her pregnancy. The New Jersey Supreme Court issued a similar decision based on the right of privacy and equal protection, not on the state constitution’s equal rights guarantee.

The presence or absence of a state ERA or equal protection guarantee does not necessarily correlate with a state’s legal climate for reproductive rights. Despite Pennsylvania’s state ERA, the state Supreme Court decided that restrictions on Medicaid funding of abortions were constitutional. The U.S. Supreme Court in separate litigation (Planned Parenthood v. Casey, 1992) upheld Pennsylvania’s restrictions on abortion under the federal due process clause.

State court decisions on abortion are not conclusive evidence of how federal courts would decide such cases. While some state courts have required Medicaid funding of medically necessary abortions, the U.S. Supreme Court has upheld the constitutionality of the federal “Hyde Amendment,” which prohibits federal government funding of nearly all Medicaid abortions, even medically necessary ones.

Recent Supreme Court decisions on reproductive rights (e.g., Burwell v. Hobby Lobby Stores, Inc., 2014) have raised concerns about the legal vulnerability of women’s right of privacy to have access to contraception as well as abortion.


More information here: equal-rights-amendment-abortion-rights at the website.

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