CFC Testimony: The Equal Rights Amendment

Catholics for Choice Testimony – The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution

Dear Chairman Durbin, Ranking Member Graham, and Committee Members:

On behalf of the overwhelming majority of Catholics who believe in reproductive freedom and the right to equal protections and individual liberties for all, I write to express Catholics for Choice’s unequivocal support for the certification of the Equal Rights Amendment as the 28th Amendment to the United States Constitution.

At Catholics for Choice (CFC), our work to dismantle obstructions to comprehensive healthcare and to affirm the capacity of all people to make moral decisions about their lives is grounded in seven key principles of social justice. We are called to participate in public life, ensuring that we and our elected officials protect and care for all of our neighbors equally, since we are all created in the image of God. The Equal Rights Amendment (ERA) is a crucial step toward securing this reality, protecting women and gender-expansive people by banning discrimination on the basis of sex and adding an explicit guarantee of sex equality to the Constitution.

Let’s be clear: the ERA has already been ratified by thirty-eight states — the result of tireless work by women and other activists who have fought for over a century to see our rights cemented in the nation’s supreme law — and its publication is long overdue. The amendment was first introduced in 1923 and subsequently reintroduced in every session of Congress before passing both the House and Senate in 1972, at which point an arbitrary deadline was placed on the ratification process. No other constitutional amendment has ever been levied with such a deadline and even now, having met all constitutional requirements for ratification, what should be the 28th Amendment remains tantalizingly out of reach.

At the same time, the need to permanently remove the fate of fundamental rights like access to abortion and gender-affirming healthcare from the province of partisan politicians and capricious courts has never been greater. The overturning of Roe v. Wade and Planned Parenthood v. Casey has dramatically escalated an ongoing reproductive healthcare crisis in this country. Since the Supreme Court cemented the constitutional right to abortion in 1973, states have enacted over 1,300 abortion restrictions, including over 500 in the last decade and more than 100 in 2021. Now, the devastating decision in Dobbs v. Jackson Women’s Health Organization has permitted 26 states to ban abortion entirely, jeopardizing access for 36 million women of reproductive age in addition totrans men and non-binary people, and placing an extreme burden on providers in states still offering essential healthcare.

The ERA is the single most important step that the United States can take to safeguard the rights of women and LGBTQIA+ people. It would provide a constitutional basis for challenging abortion bans in court as a form of sex discrimination. State-level equal rights amendments have already proven effective at protecting abortion rights across the country, ensuring that care is not only accessible, but also affordable.

One powerful example is the Connecticut ERA. A state court determined that it was “clear, under the Connecticut ERA, that [a] regulation excepting medically necessary abortions from the Medicaid program discriminate[d] against women, and, indeed, poor women.” The court reasoned that a funding classification based on a status unique to those capable of becoming pregnant was inherently discriminatory and that, by adopting the amendment, “Connecticut determined that the state should no longer be permitted to disadvantage women because of their sex including their reproductive capabilities.” The New Mexico Supreme Court later cited this opinion when relying on the state’s ERA to find that the Medicaid program discriminated against women by restricting abortion funding. In holding that program must fund medically necessary abortions, the court noted that “‘since time immemorial, women’s biology and ability to bear children have been used as a basis for discrimination against them.’” More recently, following the Dobbs decision, the ERA in Utah’s state constitution blocked a complete ban on abortion care from taking effect while litigation proceeds. A case is currently pending in Pennsylvania to determine if the prohibition of state funds for abortion care violates the state ERA.

The demonstrated protection provided by the ERA strikes fear in the Catholic hierarchy, so much so that the National Right to Life Committee (NRLC) — an organization that sprung from the predecessor of the U.S. Conference of Catholic Bishops (USCCB) — has a lobbyist dedicated solely to opposing the amendment. Recognizing the ERA’s power as a “legal weapon to invalidate virtually all state and federal limits on abortion,” the NRLC is dedicated to preventing this transformative amendment from being enshrined in the Constitution. The organization derisively refers to efforts to eliminate the ratification deadline as “pure political theater” and “temporal absurdity” and strongly opposes any federal ERA unless an abortion neutralization amendment is added. The USCCB Secretariat on Pro-Life Activities has also published a memo deriding the ERA by trying to raise the alarm to other anti-choice groups that it is “needed to ensure abortion access and knock down current [so-called] pro-life laws.”

Despite what the USCCB would like legislators and the general public to believe, the majority of Catholics, including many past and present theologians, support access to the full range of reproductive healthcare because of our faith, not in spite of it. In fact, 75% of Catholics think that abortion should be legal either in all or certain circumstances and 68% of Catholics did not want Roe to be overturned. In contrast, the bishops’ position — opposing abortion in every instance, even in cases of rape, incest or when it is necessary to preserve a pregnant person’s health or life — is only shared by only 14 percent of Catholics.  One in four abortion patients in this country identifies as Catholic, and their decisions were made in good conscience and with gratitude for access to equitable and compassionate abortion care.

There has never been a more urgent moment to enshrine equality for people of all genders into the Constitution. We agree with opponents of equality on only one thing — that the ERA will be used to protect abortion access. We see that as vitally important and part of the reason we urge you to finalize the amendment as soon as possible. Catholics for Choice thanks Chair Durbin and the Senate Judiciary Committee for holding a hearing on this incredibly important and timely topic and for the opportunity to provide testimony. We look forward to working with Congress to advance S.J. Res 4, H.J. Res. 25, and any other legislation that will help get the ERA across the finish line and finally cement sex equality into the Constitution.

Respectfully submitted,

Jamie L. Manson

President, Catholics for Choice