Delegate Jennifer Carroll Foy cheers on Equal Rights Amendment demonstrators
Richmond, VA, 2019.
When Roe vs. Wade was decided in 1973, it was rooted in rights that flow from privacy – not equality. The right to privacy was first articulated in a 1965 Supreme Court case, Griswold vs. Connecticut, concerning that state’s decades-old law banning contraception. Lawyers defending married couples’ use of contraception argued that the right to reproductive healthcare existed under equality in the Constitution.
In 1972, the Equal Rights Amendment (ERA) passed in Congress with little opposition from either party. The House approved the ERA 354 to 23, and only eight Senators voted against it. But it had still not been ratified by 1973 when Roe came down. With the Constitution still lacking an explicit right to equality, the Roe decision is a technical, medicalised one. It hyper-focuses on a pregnant person’s body and pregnancy timing rather than a right to equal citizenship and freedom from discrimination on the basis of sex. Many, including Ruth Bader Ginsburg, have criticized the decision to base the right to abortion on privacy, not equality.
The ERA was ratified by 30 of the 38 state ratifications necessary in the first year after its passage. But a year later, opposition to abortion was channelled to opposing the ERA. In 1982, when the extended time limit on ratifying the ERA expired, STOP ERA declared victory. Many feminists gave up on the fight, falsely thinking at least access to abortion was secure. However, in recent years and with increasing threats to our basic liberties, the ERA has found new life. The amendment stands now as the most straightforward solution to current constitutional woes.
The ERA has already met all the constitutional requirements for ratification. In 2020, Virginia became the 38th and final state needed to satisfy the Constitution’s Article V, which governs the amendment process. With the amendment having passed in Congress by more than the two-thirds vote required, and being ratified by enough states, respected constitutional legal scholars agree that the ERA is now the 28th Amendment. The only step left required by statute says the national archivist has to certify the additional ratifications and publish the amendment in the Federal Register.
The archivist has refused to act, however, saying a green light is needed from the White House. Yet Harvard professor Laurence Tribe wrote to Congress in March that his “conclusion as a constitutional scholar is that the ERA is currently a valid part of the United States Constitution”, that Congress should recognize it as such and that “even if Congress takes no such action the Archivist should publish it as the Twenty-Eighth Amendment”.
This journalist says “Biden should use a majority vote on the ERA, which has bipartisan co-sponsorship, as evidence that Congress supports the archivist publishing the ERA, once and for all.”
SOURCE: Los Angeles Times, by Kate Kelly, 23 May 2022 + PHOTO by Steve Helber / Associated Press
Another US abortion battle: over the right to manufacture mifepristone
Las Vegas-based GenBioPro, the manufacturer of mifepristone (used for medical abortions), has filed a federal lawsuit challenging the state of Mississippi’s restrictions on the pill, used in more than half of all US abortions. Litigation over access to medical abortion pills, may take centre stage if the US Supreme Court overturns Roe v. Wade.
GenBioPro argued in a 2020 lawsuit that Mississippi’s restrictions on abortion pills conflict with the US Food and Drug Administration (FDA)’s approval of their use for abortions. GenBioPro says the state law is pre-empted by the FDA’s approval, meaning federal authority trumps any state action.
The states that plan to almost totally ban abortion if Roe is overturned will face difficulties enforcing restrictions on medical abortion because women are still likely to be able to obtain the pills online or in other states, according to Greer Donley, a professor at the University of Pittsburgh School of Law who is an expert on reproductive rights.
GenBioPro’s lawsuit, which legal experts say is a long shot, takes aim at various Mississippi requirements, including one that says women are required to take the pill in the presence of a doctor. Mississippi is one of 19 states that require women to make an in-person visit to obtain the drug, according to the Guttmacher Institute.
The FDA does not require an in-person meeting. The Mississippi restrictions “upset the balance that the FDA struck between risk mitigation and ensuring access to a safe and effective medication” says the GenBioPro lawsuit said. The company, via its lawyers, declined to comment.
Mississippi asked in a court filing that the lawsuit be thrown out, saying there is “no evidence that Congress ever intended the FDA to have the power to nullify a state’s ability to regulate in the controversial and highly sensitive area of abortion”. The judge has yet to rule.
SOURCE: Reuters, by Lawrence Hurley, 26 May 2022