Why a prohibition on sex discrimination could actually promote abortion

Washington D.C., Jan 22, 2021 / 10:05 am

Members of Congress are looking to resurrect a constitutional amendment banning sex discrimination-one that Catholic groups have warned could promote abortion and transgender ideology.

On Thursday, members of both chambers of Congress introduced a joint resolution to affirm the ratification of the Equal Rights Amendment (ERA).

Originally approved by Congress in 1972 and sent to the states for ratification, with a deadline of 1979, the proposed constitutional amendment forbids sex discrimination. It states that "[e]quality of rights under law shall not be denied or abridged by the United States or by any State on account of sex."

Catholic groups, including the Virginia Catholic Conference and the U.S. Conference of Catholic Bishops (USCCB), have warned that the language in the amendment could be broadly interpreted to include protection for various issues including abortion and gender-transition surgery.

They have also said that the ratification of the amendment is dubious, as some of the 38 states ratified it after the deadline given by Congress and five other states had rescinded their ratification.

By 1979, the ERA failed to receive support from the necessary three-quarters of states (38) for ratification; even after Congress extended the deadline until 1982, it did not have the support of 38 states.

However, several states have continued to ratify the amendment in recent years with Virginia claiming to be the 38^th state overall to do so.

On Thursday, members of Congress-including Sens. Ben Cardin (D-Mary.) and Lisa Murkowski (R-Alaska), and Reps. Jackie Speier (D-Calif.) and Rep. Tom Reed (R-N.Y.), introduced a joint resolution to remove the deadline for ratification and honor the actions of the 38 states.

Three of the members-Murkowski, Speier, and Reed-are Catholic.

"For survivors of sexual violence, pregnancy discrimination, or unequal pay, the ratification of the ERA will be a critical step towards equal justice," Rep. Reed said on Thursday.

The USCCB issued a fact-sheet on the ERA in Jan., 2020, explaining its concern with the amendment.

The conference said that when the amendment was initially considered by states in the 1970s, supporters often denied that it included protections for abortion; more recently, however, supporters of the amendment have said it does promote abortion.

For instance, the National Abortion Rights Action League (NARAL) stated in 2019 that the ERA, if ratified, "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."

Thus, the ERA could possibly be used to strike down state and federal restrictions on abortion.

Additionally, the conference warned that the amendment could also promote access to other immoral procedures such as gender-transition surgery, and access to facilities based on one's gender identity rather than biological sex.

If the Supreme Court extended federal civil rights protections against sex discrimination to also include sexual orientation and gender identity-as the court eventually did in the Bostock decision in June-then the ratification of the ERA's prohibition of sex discrimination could result in "a radical restructuring of settled societal expectations with respect to sexual difference and privacy," the conference said in Jan., 2020.

Religious groups such as homeless shelters could also be forced, against their beliefs, to provide access to single-sex facilities based on gender identity and not biological sex, the conference said.

In 2019 members of Congress proposed measures to remove the original deadline for the ERA's ratification, and the House in 2020 passed a measure removing the deadline; the effort failed in the Senate.

It is unclear if the efforts to retroactively remove deadlines would succeed in the courts.