Abortion

“Doesn’t this open the door for abortion rights?”

  • Abortion is already legal in America.
  • U.S. courts have long recognized a right to an abortion under limited circumstances.
    • That right, as the Supreme Court explained in Roe v. Wade (1973), is a right of privacy under the existing “due process” clause.
    • The 28th Amendment (Equal Rights) relates to a different clause – “equal protection” – which the Supreme Court has not fully extended to gender discrimination.
    • The 28th Amendment would provide all Americans with equality of rights under the law regardless of sex.
    • Logically, a Supreme Court that would overturn Roe v Wade, would not reinstate abortion rights using the 28th Amendment.
  • About half of state constitutions have gender equality provisions, some for many decades. State gender equality provisions have never been used to determine the legality of abortion rights.
  • Anti-equality advocates sometimes assert state level court decisions mean the 28th Amendment will enshrine tax payer funding for elective abortions in the Constitution. When doing so, they mischaracterize how courts function and the decisions made at the state level.
    • The Supreme Court of the United States is not bound by precedent / decisions by state level courts.
    • No state level decision has addressed elective abortions. A couple have instead addressed what should be obvious, that it is unfair to have different “medical necessity” standards for men and women.  

“This case is concerned only with the narrow issue of funding of medically necessary or therapeutic abortions.”

Doe v. Maher (1986), Connecticut

This case concerns the authority of the Secretary of the New Mexico Human Services Department to restrict funding for medically necessary abortions under the State’s Medicaid program.

New Mexico Right to Choose, Naral, et al v. Johnson (1998), New Mexico
  • If anti-equality advocates wish to extrapolate from state case law to the Supreme Court, some states like Pennsylvania and Illinois have explicitly rejected the argument that the gender equality provision in their state’s constitution applies to parental notice law. 

“In the case at bar, we fail to see how the Act creates a sex-based classification or how the alleged discrimination against pregnant minors who choose an abortion is in any way related to their gender.”

Hope Clinic for Women, Ltd. v. Flores (2013), Illinois
  • In essence, the 28th Amendment provides fairness under law regardless of gender. The only reason to oppose the 28th Amendment is to retain the option to discriminate / be unfair.
    • The 28th Amendment, standing alone, does not confer or deny any legal right other than the right to be free from government discrimination on the basis of sex. 
    • The 28th Amendment will not change any laws “automatically.” If a law is challenged as unconstitutional, a court makes that determination.


Pro-Life Republican OpEd by IL Representative Steve Andersson:
Equality Opponents’ Falsehoods on Abortion

ADDITIONAL FAQs


Contracts

“Won’t women contractors lose enhanced status for contract bids?”

COVID-19

“What kind of impact is COVID-19 having on gender equality?”

Draft

“Does constitutional equality mean women will be drafted?”

History

“What is the history of the 28th Amendment (Equal Rights)?”
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