Between the election of President Trump, the confirmation of Brett Kavanaugh to the Supreme Court, and the Me Too movement, modern feminists are out for blood. With increasing momentum behind women’s rights movements, the proposed Equal Rights Amendment has also received heightened attention, and advocates for the ERA “have set their sights on 2020, the 100-year anniversary of women gaining the right to vote, as the year to ratify”. (1) However, when it comes to abortion, it is unclear whether a federal ERA would protect a woman’s right to choose to terminate a pregnancy. After examining why the current judicial and legislative treatment of abortion and sex discrimination is inadequate, the history of the ERA, and how states that ratified the ERA have treated abortion, I will conclude that, even if the federal ERA is ratified, constitutional protection of abortion will turn upon whether the Supreme Court is willing to recognize abortion restrictions as a form of sex discrimination at all, a prospect that seems unlikely with a conservative majority.
II. Criticisms of the Roe and Casey Frameworks
In Roe v. Wade, the Supreme Court adapted a trimester system for abortion in which it is unconstitutional to regulate abortion during the first trimester. After the first trimester, a state law can regulate abortion in narrowly tailored ways to protect the health and safety of the mother; these regulations would be subject to strict scrutiny. (2) Planned Parenthood v. Casey, despite on its face reaffirming Roe’s essential holding, cut back significantly on constitutional protection for abortion. In Casey, the Court rejected the trimester system and adopted a viability approach, replacing the strict scrutiny standard and allowing the state to regulate abortion after the line of viability if the regulation did not place an undue burden on the mother. (3) As modern medicine advances, the point at which a fetus becomes viable and can survive outside of the womb will become earlier and earlier in a pregnancy; the Casey framework therefore leaves ongoing opportunities for courts to further restrict the right to seek abortions.
Even staunch advocates for women’s reproductive rights criticized Roe in the years since 1973. Justice Ginsburg asserts that before Roe, “the pro-choice movement had made impressive progress in the states.” But because the Court decided too much too soon, the pro-life movement succeeded in introducing new restrictions on abortion. The public did not yet support the expansive abortion rights Roe announced, and so the opinion unnecessarily angered abortion opponents and radicalized discussion of the issue. (4) Additionally, in 2013, Justice Ginsburg also criticized Roe’s focus on a right to privacy, rather than on women’s rights. Ginsburg stated Roe “isn’t really about the woman’s choice” but is rather “physician-centered,” and about “the doctor’s freedom to practice.” (5) She also expressed disappointment that more women are not pushing for the passage of the Equal Rights Amendment. Ginsburg’s dissent in Gonzales v. Carhart made it clear that Ginsburg believes abortion should be decided based on equal protection: 'legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.' (6)
III. History of the Equal Rights Amendment
The Women's Political Party first proposed the Equal Rights Amendment in 1923 when Alice Paul introduced it at the Seneca Falls Convention. In the midst of the feminist wave of the 1970s, the U.S. House of Representatives passed the ERA in 1971; in 1972, the U.S. Senate approved the ERA and sent it to the states for ratification. (7) However, according to Article V, thirty-eight states had to ratify the ERA for it to be valid as part of the Constitution. By 1978, thirty-five states had ratified, but disagreement and mobilization by conservative groups against the ERA stopped the ratification process before proponents could get the last three states' approval. (8) The ERA was never ratified, but exists in a number of state constitutions, and advocates for the Equal Rights Amendment have introduced a new ERA in Congress every year since 1983 with little progress. (1)
On January 19, 2019, the text of the Equal Rights Amendment proposed to the House of Representatives read as follows:
“…the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States…
Section 1. Women shall have equal rights in the United States and every place subject to its jurisdiction. 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 and the several States shall have the power to enforce, by appropriate legislation, the provisions of this article.” (9)
Many ERA supporters in the 1970’s and 80’s strategically attempted to distance the ERA from the abortion debate. Current ERA advocates have also attempted to minimize this issue. (10) The official website for the Equal Rights Amendment downplays the effect the ERA might have on abortion rights, stressing that state court decisions under the ERA have dealt 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” and that “state court decisions on abortion are not conclusive evidence of how federal courts would decide such cases.” (9)
IV. Current and Historical Judicial Treatment of Sex Discrimination
Lacking a federal Equal Rights Amendment, currently the Equal Protection Clause of the Fourteenth Amendment is invoked to review alleged sex discrimination under intermediate scrutiny. By contrast, cases involving race, alienage, religion, and national origin discrimination are evaluated under strict scrutiny. (8) Under intermediate scrutiny, the burden is on the state to prove an important state interest and a substantial relationship between this interest and the state action. However, as Justice Scalia once noted, “In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination”. (1) While the text of the Fourteenth Amendment does prohibit states from denying 'to any person within its jurisdiction the equal protection of the laws,' no one understood that language to provide protection for women until Reed v. Reed, over a hundred years after the amendment’s enactment. (1)
In Reed the Supreme Court struck down an Idaho law that gave men a blanket preference over women as administrators of estates. The Court held that a cause of action based on sex discrimination was embedded in the Fourteenth Amendment. (1) Ruth Bader Ginsburg wrote the brief for the appellant in the case, in which she urged the Court to consider sex-based discrimination under the same standard of review as race-based discrimination. (1) The Court rejected her proposed use of strict scrutiny and instead used to the lowest level of scrutiny: rational basis review. Sex-based classifications by the state would be upheld so long as they bore a rational relationship to a legitimate or conceivable government purpose. (1)
In 1976, in Craig v. Boren, the Supreme Court elevated the standard for sex-based discrimination from rational basis review to intermediate scrutiny. This ''intermediate' scrutiny,' is intended to ensure that governmental classifications are 'determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.' (10) States now had to show that classifications of gender serve an important governmental interest and are “substantially related” to the state action. Twenty years later in 1996, the Court in United States v. Virginia slightly altered this standard, as Justice Ginsburg applied the 'exceedingly persuasive test' that functions as more than mere intermediate scrutiny but less than strict scrutiny. (1) The Court was able to, “in a rather cavalier manner,” ratchet up the standard for sex-based discrimination in the course of one opinion, and the logical analogue is that “little could prevent the Court from relaxing the heightened standard in its next opinion.” (1) The very nature of Supreme Court precedent, as seen clearly in Roe, is that its doctrines can be overturned by subsequent decisions, and the current doctrine, implying that “women are somehow less deserving of protection” (1) than those who experience discrimination based on race, religion or national origin, leaves much to be desired. Intermediate scrutiny is a “confusing and ill-defined standard, with some very subjective elements” – such as the question of whether a governmental end is “important”, inviting judicial decisions based on bias and prejudice. (10)
Aside from the Fourteenth Amendment, legislation such as Title VII of the Civil Rights Act of 1964 also includes 'sex' as a prohibited ground for discrimination. However, like the Fourteenth Amendment, Title VII was not explicitly created for the purpose of combatting sex-based discrimination. (1) President Kennedy emphasized that the legislation reflected the 'democratic principle that no man should be denied employment commensurate with his abilities because of his race or creed or ancestry.' (1) The principle of sex equality was not mentioned, and the word 'sex' was not included in the legislation until two days prior to its passage. Protection against sex discrimination, whether it stems from legislation or Supreme Court rulings, is more impermanent than the protection that could be provided by a constitutional amendment. Legislation can also be interpreted in fundamentally different ways by different courts. The foundation of women’s equal protection in the law is therefore far more fragile and perfunctory than the equal protection for other protected classes.
The Supreme Court’s treatment of abortion in the years following Roe and Casey has been especially troubling. The year after Roe, the Supreme Court held in Geduldig v. Aiello that discrimination against pregnant women is not sex-based, but gender-neutral, and did not constitute sex discrimination in an equal protection case. (12) Congress rejected the Supreme Court’s approach to pregnancy when it enacted the Pregnancy Discrimination Act, (10) but it is beyond Congress's power to undo the Supreme Court's equal protection jurisprudence. Under Geduldig, the government has free reign to discriminate against pregnant women without violating the federal equal protection clause. If discrimination against pregnant women is not sex-based when the woman seeks to carry her pregnancy to term, it is hard to argue that it is sex-based for the state to create obstacles to abortion. (12) In 1993, in Bray v. Alexandria Women’s Health Clinic, the Supreme Court held that obstructing access to abortion clinics did not constitute impermissible discrimination against women, and that targeting “women seeking abortion” is not the same as targeting women generally. (8) Despite the fact that only women seek abortions, the Supreme Court claimed that because the targeted group was people seeking abortions, and any discrimination was not based on the sex of the person seeking the abortion, the protests were not gender-based discrimination.
V. Treatment of Abortion Under States’ Equal Rights Amendments
Most state Equal Rights Amendment challenges regarding reproductive rights have focused on state laws restricting public funding for abortion, and these challenges have been successful where state courts have been willing to abandon the equality analysis of federal precedent. (13) Two state supreme court decisions, New Mexico Right to Choose/NARAL v. Johnson and Bell v. Low-Income Women of Texas, demonstrate very different state court interpretations of the Equal Rights Amendment.
In 1998, the New Mexico Supreme Court in Johnson struck down a law that restricted state funds for abortions under state Medicaid services. The court held the program violated the state’s Equal Rights Amendment because it did not apply the same standard of medical necessity to both men and women, and there was no compelling justification for treating men and women differently with respect to their medical needs. (14) Specifically, the court found that the program “singles out for less favorable treatment a gender-linked condition that is unique to women”, diverging from the Supreme Court’s treatment of pregnancy in Geduldig and Bray. (14) Applying strict scrutiny, the court found the State produced no compelling justification for its discriminatory treatment. The court also explicitly distinguished its decision from federal precedent based on “distinct characteristics” of New Mexico law, deciding that the federal equal protection analysis was inapplicable based on the fact that the New Mexico ERA was added to New Mexico’s constitution with the goal of providing broader protection against sex discrimination than that afforded under the federal Constitution. (14)
Bell, however, reached a very different conclusion on a similar issue. The Texas Supreme Court held that Texas’s restrictions on Medicaid abortion funding did not violate the Texas ERA. The court declined to recognize that singling out abortion for different medical treatment involved a sex-based classification, because “the biological truism that abortions can only be performed on women does not necessarily mean that governmental action restricting abortion funding discriminates on the basis of gender.” (15) Finding no discriminatory classification, the court applied the highly deferential rational basis standard of review, and found that the program rationally furthered the state’s legitimate purposes of providing funding where federal reimbursement was available and 'encouraging childbirth and protecting potential life.' (15) In contrast, the strict scrutiny standard employed in Johnson would have required the State to provide compelling justification for its funding restriction and to demonstrate why that goal could not be achieved via less discriminatory means. (13) Also in contrast to Johnson, which explicitly deviated from federal precedent, Bell relied on federal precedent almost exclusively to justify its decision. (15)
These two cases highlight the fact that “the states are seriously divided in regard to the constitutionality of laws that exclude abortion from subsidized health care services,” (10) and not all states that ratified the ERA have applied strict scrutiny to cases involving abortion. However, a study by Lisa Baldez, Lee Epstein, and Andrew D. Marin, examining all constitutional sex discrimination cases decided by state supreme courts between 1960 and 1999, found that “under every possible scenario . . . courts in states with an ERA are more likely to adopt strict scrutiny than those operating in states lacking the amendment.' (10)
VI. How Would a Federal ERA Treat Abortion?
Based on the ERA practice adopted by most states, a federal ERA would almost certainly result in a higher level of constitutional scrutiny for sex-based classifications than the current intermediate scrutiny applied under the federal Equal Protection Clause. (10) It would “present a much stronger argument to the Court that [sex discrimination] is critical to the substance of the Constitution and worthy of strict scrutiny” than currently exists under the fragile and inconsistent application of the Fourteenth Amendment to women’s equal rights cases. (1) Subjecting sex discrimination to strict scrutiny would also limit the amount of judicial discretion involved, because there would be fewer circumstances where discrimination can be justified in the face of strict scrutiny. Strict scrutiny, which requires that race-based classifications be 'narrowly tailored' to achieve a 'compelling' governmental end, requires a near-perfect fit between governmental ends and means in order to sustain the classifications. (10)
However, even under strict scrutiny, the Supreme Court’s reasoning in Bray, and the Texas Supreme Court’s ruling in Bell, indicate that some types of restrictions on abortion rights do not even pass muster under the threshold concern of whether the restriction constitutes discrimination against women. The Bray court distinguished “targeting women” from “targeting people who seek abortions”, and held that the latter did not constitute discrimination. Courts have not consistently acknowledged the rather inescapable conclusion that, because only women obtain abortions, the direct impact of abortion restrictions falls on a class composed only of women. Laws denying access to abortion have a sex-specific impact, but the question is whether a federal ERA would require courts to decide sex-discrimination cases based on whether an abortion regulation’s impact was discriminatory, rather than whether its intent was discriminatory. This question is hard to answer.
Another factor to consider is the fact that, like Johnson, state courts striking down abortion funding restrictions under state ERAs have placed significant weight on specific aspects of the state ERA's legislative history that supported their conclusions. (10) The reluctance of ERA supporters, in the federal amendment’s legislative history, would not readily lend itself to federal courts adopting its application to abortion. ERA proponents' historic lack of enthusiasm about this aspect of the ERA will certainly be a factor in how a federal court will ultimately construe it.
Nothing would stop the Supreme Court, after the hypothetical adoption of a federal ERA, from taking the approach adopted by the New Mexico Supreme Court in Johnson and recognizing that abortion restrictions necessarily discriminate against women as a class. However, with the current Supreme Court arguably comprising a conservative majority, such a progressive attitude seems unreasonably optimistic.
If a federal ERA were adopted, pro-choice activists would need to see a Supreme Court holding that explicitly extends ERA protection to abortion. If this came to pass, the likely standard of strict scrutiny under the ERA would provide strong protection to abortion rights in a more consistent manner than what currently exists under Roe. However, in a conservative Court, the more likely alternative at the moment seems to be that, like the Texas Supreme Court in Bell, the Court will decide that abortion restrictions are not sex discrimination and therefore don’t come into the ambit of the ERA because the intent of such restrictions is not to discriminate against women as a class.