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Pre-emptive litigation by state attorney generals and the recent Justice Department memo that “…the Equal Rights Amendment has failed of adoption and is no longer pending before the States,” reflects the central anxiety in the Right to Life Movement about its failure to develop a viable jurisprudence.

In 1923, the ERA was first introduced to Congress proposing the following language be added to the Constitution;

“Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.  Congress shall have the power to enforce this article by appropriate legislation.”

In 1943, Alice Paul re-authored the language of the amendment to reflect the 19th Amendment and established a balance of power between the Federal Government and the States proposing;

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

Congress and the several states shall have the power to enforce the amendment within their jurisdictions.”

In 1972, the Amendment that was discharged and failed ratification was re-written again to include additional provisions;

“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: 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.”

With the changes also came a mode of ratification that doomed the amendment, requiring it to be adopted by States within seven years, only for it to fall short of the necessary thirty-eight states in 1979. (https://www.washingtontimes.com/news/2019/dec/25/why-starting-over-is-the-only-reasonable-way-to-pa/)

In 1983, the National Right to Life Committee demanded that any new amendment approved by Congress include the following clause:

“Nothing in this Article shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof.”

(https://www.nrlc.org/federal/era/pro-life-scorecard-alert-on-the-abortion-expansive-1972-equal-rights-amendment/)

Since then in multiple letters to Congress over the decades, the National Right to Life Committee has registered objections to ratifying what they have described as “the abortion-expansive 1972 Equal Rights Amendment” listing a developing abortion rights jurisprudence in states that adopted the ERA as their reasoning.  In resistance to the recent attempts to revive ERA they have been joined by Students for Life of America, American Life League and Susan B. Anthony List among others.

The central basis of this resistance was summarized in a 2018 letter from the Susan B. Anthony List to the Virginia General Assembly:

“As drafted, the ERA prohibits the enactment of any law that imposes a rule or condition that applies to one sex and not to the other. Thus, any law limiting abortion or imposing upon it such conditions as a funding limit will be struck down as violating the amendment’s plain language. A range of interest groups, including the American Civil Liberties Union, the National Abortion and Reproductive Rights Action League (NARAL), Planned Parenthood and others have argued in court filings and amicus briefs that state-level ERAs with nearly identical wording guarantee a right to abortion with public funding.”

(https://s27319.pcdn.co/wp-content/uploads/2019/01/SBA-List-VA-Assembly-ERA-Letter.pdf)

In doing so the Right to Life Movement makes the fundamental mistake of simply trying to stop the ball rather than cause a turnover by developing a new jurisprudence.  For decades the ProLife Movement has allowed the feminist movement to decide how and on what terms the ERA would be interpreted as part of the U.S. Constitution with disastrous results.

Currently, legal access to abortion rests on the 1973 Supreme Court decision Roe v. Wade, that 404 members of Congress filed an amicus brief requesting the Court overturn an appears likely to happen in the next few years.

The ERA Coalition has published on their website that their primary objective for ratification is to achieve through a court ruling what they are unable to achieve through the democratic process;

“The ERA would clarify the legal status of sex discrimination for the courts, where decisions still deal inconsistently with such claims. For the first time, sex would be considered a suspect classification, as race currently is. Governmental actions that treat males or females differently as a class would be subject to strict judicial scrutiny and would have to meet the highest level of justification – a necessary relation to a compelling state interest – to be upheld as constitutional.”

Both the National Organization for Women and media personalities such as Alyssa Milano and Patricia Arquette have made ratification to expand abortion rights central to their support.

(https://abcnews.go.com/Politics/patricia-arquette-alyssa-milano-push-congress-move-equal/story?id=62735385)

To this end, ERA Coalition has urged Congress to retroactively remove the deadline rather then push for a new ratification process, in an attempt to avoid reviving national debate and public comment. The Right to Life Movement has been to continue to resist these efforts or demand a clause that would for the first time ever actually mention a right to abortion in the U.S. Constitution.  In doing so both movements have failed to grasp just how far legal theory and jurisprudence has evolved as well as historical precedent.  The ERA-Abortion Rights jurisprudence argument didn’t start until the National Organization for Women began arguing for it after the amendment was discharged from Congress.  In the 1970’s the Suffragist Oral History Project interviewed Alice Paul during the ERA’s failed ratification attempt :

Paul

National convention of NOW, their first national convention. Mrs. Friedan presided and Marguerite Rawalt was her assistant up in the front. And a terrific campaign was put on at that convention to discard our Equal Rights Amendment altogether and put in a new one, as Mrs. Friedan had proposed. But finally, we won. A great many Woman’s Party people had become members of NOW, not on purpose, not on thinking they would have any fight on the floor about this, but when the fight came up, they all stood up and voted for the Equal Rights Amendment as it was. And we captured the NOW people. And since then it’s been on their list and they have—have— made us really, quite a lot of trouble. [Laughing.]

Fry

[Laughing.] Maybe you were better off when they wanted another amendment.

Paul

What they have done, you see, for instance, going to the legislatures and insisting on talking all the time not about equality for women but talking about these other subjects, which gets the men all mixed up, and they think that—

Fry

You mean, like abortion and—

Paul

Yes. Because this happens all the time, and I don’t know exactly [laughing] how to meet it. Well now, I guess that’s about the Hayden rider. You know everything.

Alice Paul, it should be noted was not just an activist but also a Constitutional Lawyer who had worked on drafting legislation at State and Federal level regarding equal rights since the 1910s, when she successfully campaigned for the 19th Amendment.

Despite ERA Coalition claims, the ERA says nothing about requiring Government actions to treat males and females the same, indeed it’s language directly implies that males and females are different and despite this difference should not be denied equal rights.  Activists hoping or dreading the expansion of abortion rights through the Equal Rights Amendment are basing it on the outdated premise of “a woman’s right to choose to have an abortion” and that abortion restrictions are a denial of rights to one sex.  Neither is based on current legal theory.

Since 2004, The Unborn Victims of Violence Act of 2004 along with thirty-eight state laws, establish that killing an unborn child is murder, particularly when committed by the father after the brutal murder of Laci Peterson.  In 2019, Ryan Magers, a teenage father in Alabama sued the Alabama Women’s Center for performing an abortion on his unborn child.  And the slew of heartbeat abortion bans in 2019, establish that signs of life in utero warrants legal protection.

Federal and most state laws recognize the right of the unborn to be protected and supported by their male parent, it should likewise be established that the same applies to the female parent.  For decades feminists and misguided pro-lifers have re-written laws to relieve mothers of legal responsibility for their own children via abortion, abandonment, safe-surrender and adoption legitimized under any number of repulsive legal theories.  Men and children have the right to expect that the government will require mothers to provide equal, though different, support (continuing pregnancy and non-abandonment) on the same terms that it already requires men to do so.

Historically the responsibility of a parent regardless of male or female to care for their own children was recognized.  Mary Wollstonecraft alludes to this in “Maria or the Wrongs of Woman” (1798)

“I am now alluding to circumstances which came to my knowledge long after; but it is necessary, my dearest child, that you should know the character of your father, to prevent your despising your mother; the only parent inclined to discharge a parent’s duty.”

(https://www.gutenberg.org/files/134/134-h/134-h.htm#link2HCH0007)

Wollstonecraft had previously touched on the subject in A Vindication of the Rights of A Woman (1792)

“Women, I allow, may have different duties to fulfill; but they are HUMAN duties, and the principles that should regulate the discharge of them, I sturdily maintain, must be the same.”

Wollstonecraft specifically called out women that resorted to abortion and abandoning their children claiming the same sexual freedom as men;

“To satisfy this genius of men, women are made systematically voluptuous, and though they may not all carry their libertinism to the same height, yet this heartless intercourse with the sex, which they allow themselves, depraves both sexes, because the taste of men is vitiated; and women, of all classes, naturally square their behavior to gratify the taste by which they obtain pleasure and power. Women becoming, consequently weaker, in mind and body, than they ought to be, were one of the grand ends of their being taken into the account, that of bearing and nursing children, have not sufficient strength to discharge the first duty of a mother; and sacrificing to lasciviousness the parental affection, that ennobles instinct, either destroy the embryo in the womb, or cast it off when born. Nature in everything demands respect, and those who violate her laws seldom violate them with impunity. The weak enervated women who particularly catch the attention of libertines, are unfit to be mothers, though they may conceive;

Abortion prohibitions are not denying the female sex the right to bodily integrity.  Men, unless they happen to be born rich, are already required to labor with their body to support their children and for a minimum of eighteen years (a fact that has been a sore point for the National Center for Men http://www.nationalcenterformen.org/page3.shtml).  Nine months of pregnancy and early childhood, by comparison, is a far shorter amount of time to expect mothers to fulfill their parental responsibilities.  Apart from rape, sexual intercourse is voluntary and in the present day and age birth control and natural family planning are available in multiple forms un-imaginable even a few years ago.

Further, the Equal Rights Amendment would provide a Constitutional foundation for states prohibiting the barbaric practice of sex-selective abortion that according to the United Nations Population Fund is responsible for 126 million missing women from around the world (https://www.unfpa.org/gender-biased-sex-selection).  Sex-selective abortion not only has murdered tens of millions of women worldwide, but it has also deprived men of the chance to find a mate and reproduce as well as destabilized entire societies and populations, increasing social chaos.  The United States would have an even more compelling reason to implement the Mexico City policy and suspend funding for “reproductive health care” to countries where abortion is practiced and baby girls are likely to be murdered.

The Right to Life Movement should cause a turn-over and take control of the issue forcing a national discussion on it, rather than continue to perpetually play defense.  Spotlighting the female Nietzcheanism parading as feminism that has institutionalized fatherlessness in family courts, legitimized over sixty million abortions and broken the foster care system should be front and center.  While there may be reasons to object to the Equal Rights Amendment, including the possible negative effect on the Armed Forces of the United States, abortion should not be one of them.

Author: David Krouse