Photo of the Virginia State Capitol in 2003. (Anderskev, CC BY 3.0, from Wikimedia Commons)
“Reproductive justice” and “gender equality” are cultural debates in which Catholics have a profound stake.
Virginia’s General Assembly—its Legislature—convened Jan. 9 for its 30-day 2019 session. Catholics in the United States should be concerned.
There is a powerful push in the current General Assembly to make Virginia the “38th” state to ratify—and thus incorporate—the Equal Rights Amendment (ERA) into the federal Constitution. Advocates say ERA will achieve “gender equality.”
So why be concerned?
The first reason for concern: abortion. Yes, abortion is always the 900-pound gorilla in the room: nobody mentions it, but it’s palpably present. Just as President Obama’s 2013 address to Planned Parenthood lauded abortion without ever once mentioning the “a-word,” most advocates of ERA hope people won’t ask about its potential impact on the legal status of abortion.
What effect would ERA have on abortion?
Some claim the connection is ambiguous and want to hide behind that ambiguity. Consider the historical context. ERA was originally sent to the states by Congress for ratification at a time when the states could still regulate abortion. Abortion was still open to political debate. Two months after the U.S. Senate passed ERA New York—the state with the most permissive abortion law at the time—voted to repeal it, only to be frustrated by Nelson Rockefeller’s veto. President Nixon, who endorsed ERA, also endorsed the repeal effort in New York. Roe v. Wade was still 10 months in the future and, before that decision came down, two more states (Michigan, North Dakota) even reaffirmed their limits on abortion through popular referenda. It is very doubtful to think that ERA could have passed that Congress by the lopsided votes it did (354-24 in the House, 84-8 in the Senate) if legislators seriously believed the Amendment would invalidate state abortion restrictions.
Indeed, it’s telling that ERA, which was moving rapidly through state approval, went off the ratification rails in March 1973, two months after Roe. And there were states that approved ERA that also approved an effort, initially successful, to call on Congress to enact a Human Life Amendment overturning Roe. So, on the one hand, it’s quite arguable that people who initially voted for ERA did not think it had a nexus to abortion: the only other way to explain those votes is that they were lying or schizophrenic.
But that was then and this is now. The courts have shown a tendency to ignore history when interpreting the Constitution, especially when abortion is concerned. Would ERA be read against the context in which it was adopted, i.e., when abortion was a live political debate, or against “evolving standards” i.e., those who want to pretend that the debate over abortion is over and done and the abortionists won?
I have absolutely no doubt that every effort would be made today to use ERA to “lock” abortion into the Constitution, to “codify” Roe, and I would be surprised were it not successful. (I don’t want to say “expand” Roe because the decision already grants an unrestricted license for abortion-on-demand up until birth. Many Americans, however, still don’t understand the radical scope of Roe, trying to pretend that it only covers “first trimester” abortion. I would argue, however, that ERA would pull the sheet off Roe and allow abortion-on-demand throughout all nine months of pregnancy to be treated as an explicitly mandated constitutional right).
Going back to the old sacrilegious shibboleth of the pro-abortionists, “if men got pregnant, abortion would be a sacrament,” I would fully expect the argument that because “only” women get pregnant (a pro-abortion article of faith that happens to coincide with reality but would today likely collide with transgender ideology) then abortion must be available to women to control their fertility. This argument is already operative in Planned Parenthood v. Casey, which attempted to reconstruct the increasingly contradictory holdings of Roe by asserting that women need abortion to plan their lives. ERA could be used to try to anchor abortion into the text of the Constitution (notwithstanding the ambiguity of the Amendment’s historical origins) at a time when pro-abortionists fret that shifting majorities on the U.S. Supreme Court might judicially erode Roe.
It would be hard to get an assurance that ERA has no effect on abortion, and I doubt its mainstream advocates would want to make that assurance anyway. So Catholics should, at the very least, oppose ERA because its effect on abortion is arguably indeterminate: we don’t want to find out later that ERA requires abortion. I’d argue, though, that Catholics should recognize that ERA will essentially write abortion into the U.S. Constitution and oppose it for that reason.
The second reason for concern: gender. Today’s proponents of ERA call it a “gender equality” amendment. But ERA says clearly that “Equality of rights shall not be denied or abridged … on account of sex.”
It’s hard to believe, but “sex” meant something different back in 1972, when the Amendment was proposed, than it does today. Back in the early 1970s, people (including probably all the Congressmen and Senators who voted for ERA) thought there were two sexes—men and women—and nothing else. There is no evidence that anybody in the Congress that approved ERA was thinking in terms of 50 shades of “gender.”
So when legislators today talk about ERA as a “gender equality” amendment, they are engaging in anachronism, i.e., they are forcing back language and meaning into a document that simply did not exist when it was written and which, therefore, nobody thought they were agreeing to because no one thought in those categories.
I have no doubt about the sincerity of ERA advocates that brand it a “gender equality” amendment. They will undoubtedly read—and litigate—section one of the Amendment to mean “gender.” Again, do we want to figure out its implications once ERA is in the Constitution?
That would turn ERA into a very powerful battering ram. As with Roe, it would very likely be used to “codify” gender as a protected category into the Constitution. Recognizing sexual differentiation could thus become a suspect, discriminatory category. “Male and female He created them” might be an article of faith, but adhering to it would put Catholics (and, indeed, anybody accepting an orthodox vision of Judeo-Christian theological anthropology) into constitutional mauvaise foi. The potential for conflict and implications for the integrity of free exercise of religion would be staggering and potentially extremely inimical for Catholics.
All that said, I think there are substantial legal barriers to Virginia becoming the “38th” state to ratify ERA. When Congress originally approved ERA, it gave it—like practically all constitutional amendments proposed in the last century—a seven-year limit to be ratified. That limit, and the ratifications adopted under it, expired 40 years ago. The fight to “pass” ERA will not be legal as much as political – making points about “reproductive justice” and “gender equality” – and those are cultural debates in which Catholics have a profound stake.