Press Advisory: Columbia Law School's ERA Project Files Amicus Brief with PA Supreme Court Explaining Why Banning Public Funding for Abortion Violates the State ERA

October 14, 2021

Date: October 14, 2021

Subject: Columbia Law School's ERA Project Files Amicus Brief with PA Supreme Court Explaining Why Banning Public Funding for Abortion Violates the State ERA

Contact: Ting Ting Cheng, [email protected]
Katherine Franke, [email protected]

New York, New York — Yesterday the Equal Rights Amendment (ERA) Project at Columbia Law School submitted an amicus—or friend of the court—brief with the Pennsylvania Supreme Court explaining why a state ban on public funding for abortion is a form of sex discrimination, in violation of the state’s Equal Rights Amendment.  In the brief filed in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, the ERA Project provided the Court with an overview of how the denial of reproductive health care in general, and access to abortion in particular, has been found by the United States Supreme Court, other state courts, and many prominent legal scholars, to amount to a form of sex-based discrimination.  

The brief explains how denial of access to abortion violates the Pennsylvania ERA and amounts to a form of sex discrimination in several different ways because: i) the ban burdens women’s access to health care in ways that men are not similarly burdened, ii) the ban is based on stereotypes about gender-based identities and roles in society, and forces pregnant people to conform to an outdated gendered destiny in the home raising children rather than in the workplace, the boardroom, the statehouse, or other more “masculine” spheres of life, and iii) the capacity to rationally plan or space parenthood by people who bear the largest burden of childrearing—typically women—renders them incapable of participating equally in the workplace, in politics, and in other contexts fundamental to robust citizenship. 

“The ban on public funding for abortion imposes a significant barrier to fundamental reproductive choice, and this barrier is essentially rooted in a long history of outdated sex-based classifications, odious sex-stereotyping, and documented impediments to equal citizenship for all Pennsylvanians, regardless of their sex,” said Ting Ting Cheng, Director of the ERA Project and co-author of the brief.

“As scholars of sex equality generally, and of measures such as the Pennsylvania Equal Rights Amendment in particular, our brief provided the court with several ways in which the abortion ban violates fundamental sex equality principles,” said Professor Katherine Franke, Founding Faculty Director of the ERA Project. “Through whichever path the court takes, the destination is unavoidable: the abortion ban violates the Pennsylvania Constitution’s protections securing sex-based equality.”

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The ERA Project at Columbia Law School’s Center for Gender and Sexuality Law is a law and policy think tank established in January 2021 to develop academically rigorous research, policy papers, expert guidance, and strategic leadership on the Equal Rights Amendment (ERA) to the U.S. Constitution, and on the role of the ERA in advancing the larger cause of gender-based justice.

The ERA Project does not engage in lobbying, but instead develops academic, legal and policy expertise to support efforts to expand protections for gender-based equality and justice.