Using the ERA to Save Reproductive Rights
Updated: Nov 28, 2022
November 28, 2022. As discussed in detail in our blog “The ERA – How to ACTUALLY Save Roe for All Americans,” the Equal Rights Amendment currently is the only tool available to help save federal reproductive rights. Below is an explanation of how state equal rights amendments and related equal protection provisions protect reproductive rights.
The Planned Parenthood Association of Utah (“PPAU”) has argued successfully on two occasions that the Equal Rights provisions in the Utah Constitution prohibit the abortion ban triggered by the Dobbs v. Jackson Women’s Health Organization (“Dobbs”) decision. PPAU won a temporary restraining order and then a preliminary injunction, which stays the abortion ban pending a decision on the merits of PPAU’s challenge of the ban. The injunction has been upheld by Utah Supreme Court.
A 1931 abortion ban was preliminarily enjoined prior to the issuance on the Dobbs decision. A Michigan Judge ultimately ruled that the abortion ban violates the equal protection clause of the Michigan Constitution. This well-reasoned analysis demonstrates how the Equal Rights Amendment would protect a federal right to abortion. Voters recently amended the Michigan Constitution to protect abortion.
In 2019, Ohio enacted a “heartbeat” abortion ban (at approximately six weeks) that took effect immediately following the issuance of the Dobbs decision. An Ohio Judge granted the abortion providers’ request for a temporary restraining order and then a preliminary injunction on the grounds that the ban violates the equal protection clause of the Ohio Constitution. The judge rejected the state’s argument that the ban could not be discriminatory as the ban only applies to women and applied the strict scrutiny standard of review. The state has appealed the injunction.
After the Dobbs decision, Indiana enacted a near-total abortion ban, which took effect on September 15, 2022. A Judge ruled that the ban likely violates the Ohio Constitution and issued a preliminary injunction. The state appealed the decision, but the Indiana Supreme Court upheld the injunction.
In New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), the New Mexico Supreme Court noted that “women’s biology and ability to bear children have been used as a basis for discrimination against them,” and ruled that a Medicaid coverage ban for abortion services violated the Equal Rights Amendment in the New Mexico Constitution.
In Doe v. Maher, 40 Conn. Supp. 394 (1986), the Connecticut Supreme Court held that the state’s Medicaid coverage ban for abortion services violated the Connecticut Constitution’s Equal Rights Amendment and Equal Protection provisions.
In Planned Parenthood of the Great NW v. State, 375 P.3d 1122 (Alaska 2016), the Alaska Supreme Court held that a law requiring parents to be given 48-hours’ notice before a minor may obtain an abortion violated the Equal Protection provisions of the Alaska Constitution. In State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904 (Alaska 2001), the Alaska Supreme Court held that the state’s denial of Medicaid coverage for medically necessary abortions violated the Equal Protection provisions of the Alaska Constitution.
In Simat Corp. v. Arizona Health Care Cost Containment Sys., 56 P.3d 28 (Arizona 2002), the Arizona Supreme Court held that denying Medicaid coverage for abortion necessary to protect a mother’s health violated the Equal Privileges and Immunities clause of the Arizona Constitution.
Currently pending before the Supreme Court of Pennsylvania is Allegheny Reproductive Health Center v. Pa. Department of Human Services, which challenges the state’s Medicaid coverage ban on the grounds that it violates the state Equal Rights Amendment and Equal Protection provisions of the Pennsylvania Constitution. A decision is expected later this year. For copies of the pleadings, including amicus briefs, may be found here. Of particular interest are the briefs of the National Women’s Law Center (abortion service providers have standing) and The ERA Project (coverage ban violates Pennsylvania Equal Rights Amendment). Oral argument was held before the Pennsylvania Supreme Court on October 26, 2022, and a decision is expected next year.