In a creative but – at best — long-shot attempt to get the Supreme Court to reopen its review of abortion rights, a women’s equality group in North Carolina argued Monday that those rights are already secured by the Equal Rights Amendment. One key problem: ERA is not yet a part of the Constitution, although the group contends that it is.
The ERA-NC Alliance, in a 15-page filing, sought to take advantage of the leaked draft of an opinion that the Court is now considering whether to put into final decision form. Justice Samuel A. Alito, Jr., has authored a 98-page opinion that the Court has said is authentic, and that several media organizations have said has the support of a Court majority at this point.
A motion seeking permission for the North Carolina group to file a new brief, late in the case, argues that the leak has created “extraordinary circumstances.” The new brief does not yet exist, awaiting permission to file.
Leaked without the Court’s permission earlier this month, and published by the online version of Politico.com, the draft would strike down the Court’s two most important decisions establishing and further protecting a woman’s constitutional right to end a pregnancy.
The North Carolina group’s proposed brief, which it is seeking permission to file formally, makes two basic arguments:
First, that the ERA is already a part of the Constitution, claiming it has been ratified as the 28th Amendment to the Constitution after the state legislature in Virginia changed its prior position and voted to ratify, perhaps making it the necessary 38th state. By guaranteeing women’s equality, ERA protects a right to abortion, the group asserted.
Second, because of that argument, the Alito draft is wrong in this statement on page 5 of the draft: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…”
Thus, the group’s theory is that, since the first is claimed to be a fact, the second statement in the Court’s draft is untrue.
In order for the Court to actually consider that argument, the following would have to happen: the Justices would have to agree to allow the brief to be filed, they would have to be willing to do so even though the time for filing such briefs has passed, they would have to be willing to ask for responses to the brief, they would then have to be willing to get involved in an ongoing dispute – a controversy now pending in a lower federal appeals court – over whether the ERA is, indeed, already in the Constitution, and, if they do all of that, they would then have to withhold a final ruling in the current abortion case until they considered the North Carolina group’s claims.
The Court has the option of simply ignoring the new filing, and it is usually reluctant to accept additional briefs after a case has been argued and is moving toward an imminent decision. But, even if it overcame that reluctance in this instance, it would have to be prepared to take on the much-debated issue of the current status of the ERA. That is a difficult issue itself, and could have momentous consequences if the Court were prepared to rule on it.
If the North Carolina group’s filing has any potential to influence the Court, it might embolden some Justices who are now opposed to the Alito draft to try to gain time to continue to press for modification or narrowing of that draft. Since the draft is not yet a final decision, maybe some who now support it might be persuaded to think again.
Should the Court take the new brief seriously, it could order that the case be set for a new hearing, which would postpone it until the Court’s next term, opening in October. That could have the effect of taking the abortion rights issue out of this year’s national election campaign, or at least to make it seem less urgent because the final outcome would be surrounded newly in doubt.
The Court’s formal rules on how it does its work are quite open to so-called “friend-of-the-Court” (“amici”) briefs, and scores of those were filed in the pending abortion rights case, involving a Mississippi law that would ban all abortions after 15 weeks of pregnancy.
The ERA-NC Alliance’s proposed brief relies on two such briefs that were filed on time in this case, arguing in favor of abortion rights.
The Court held a hearing on the Mississippi case on December 1, and has been deliberating about it in private since then. As of now, a final decision is expected late next month or early in July.