This might belong in Politics or Great Debates instead of here, but I’m starting it out here, and I let the mods promote it if it deserves.
I have a question about the ERA and abortion rights, but to start out, here is the full text of the ERA:
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Anyway, here’s what I’ve been wondering: if the ERA had been ratified back in the 70s or the 80s (it got a deadline extension), would a lot of these anti-abortion laws be unconstitutional?
There’s no medical procedure men are denied under the law, and no time that the law sticks it’s nose into a man’s private business with his doctor.
Although, I suppose you could argue that if a man did get pregnant, he would be subject to the same laws (even though we all know he wouldn’t).
Still, it seems to me that women are being denied privacy in their doctor-patient relationship, which men may take for granted.
If the ERA had been ratified then, it could have resulted in all sorts of things being different today in a Butterfly Effect kind of way. But I don’t think it would be hard to write anti-abortion laws that don’t directly conflict with the ERA.
Are men allowed to have abortions? Would it make any difference to the law if they weren’t?
If the ERA were in the Constitution, then either the law would say that both men and women are allowed to have abortions, or that neither are. I can’t see that one of those positions is any more absurd than the other.
When Roe v. Wade was overturned, I did see some reminders that this decision didn’t just affect women, but affected anyone who could get pregnant including transmen. And if transmen are men, then yes, men were permitted to get abortions.
IANAL but I think I’ve read that the late Ruth Bader Ginsburg was in favor of abortion-rights jurisprudence that would be based more on ERA-type equality arguments than on right-to-privacy issues. Here’s an article about some of her reasoning.
When it comes to equal rights, it’s probably better for the anti-choice movement to forget equality, freedoms or individuality and simply think of women as chattel. Solves so many pesky issues they seem unable to adequately answer.
Obviously medicine is a heavily regulated field. And the law routinely denies males “medical procedures” and routinely sticks its nose in a man’s business with his doctor.
If you mean (as you must) that there are no medical procedures that are uniquely available to males that are denied to them, I think that’s still probably wrong, but it illustrates the challenge.* I don’t think there are many “uniquely male” procedures (there is obviously controversy about infant male circumcision – query whether you think a ban on that would be permitted under the ERA). And pregnancy is, in many respects, sui generis. I don’t know how would try to compare similarly situated men and women in this context.
*I suppose modern convention suggests that I note that abortions and pregnancies are no longer considered uniquely “woman’s” issues and that men can get pregnant and seek abortions (and be denied them – if you were correct that a prohibition on abortions would not apply to pregnant men, then it woudl be an easy case). It’s not on topic, but I’ve often wondered what is going to happen when arguments about gender-based discrimination collide with modern conceptions about sex and gender.