On Thursday, February 13, the U.S. House of Representatives voted, 232-183, to eliminate the Equal Rights Amendment (ERA) ratification deadline.
The ERA would amend the United States Constitution to include an explicit ban on sex discrimination. At first blush, the ERA seems unobjectionable. The proposed amendment reads as follows: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” As with many other laws and constitutional provisions, however, there is more to the story.
Along with many other conservative organizations across the United States, New Yorkers for Constitutional Freedoms opposes the ERA. The chief reason for our opposition is that the ERA would invite abortion advocates to file lawsuits attempting in an effort to throw out every federal or state abortion restriction that has become law in the U.S. since the disastrous 1973 Supreme Court decision in Roe v. Wade. Given that laws limiting access to abortion directly impact women and not men, abortion advocates would likely argue that the ERA makes such laws a form of unconstitutional discrimination against women. According to Douglas D. Johnson of the National Right to Life Committee, a 1998 state supreme court decision from New Mexico used similar reasoning. Would today’s Supreme Court find such an argument persuasive? Would a future Court? There is no way to know for sure, but we cannot risk guessing and guessing wrong. Millions of lives hang in the balance. And sex discrimination is already forbidden under federal and state law. Furthermore, there is concern that the ERA could give “transgender” advocates fuel for an argument that the Constitution bans opposite-sex bathroom use.
The rhetoric used by the left to push for the ERA is revealing. House Speaker Nancy Pelosi recently asserted that the ERA has “‘has nothing to do with the abortion issue’” and “‘has everything to do with respect for women. Your daughter, your sister, your wife, your mother.’” Pelosi added that pro-life concerns are simply an “‘excuse’” for opposing the ERA. Jessica Neuwirth, co-president and co-founder of the ERA Coalition, agrees. Neuwirth claims that ERA opponents are “‘not going to get up and say, “I’m a [misogynist]”… They have to find some smokescreen.’” These advocates, then, take the view that any opposition to the ERA is really an attempt to subjugate women. Strangely, however, other ERA advocates believe “that abortion needs to be part of the conversation. Any debate over women’s rights, they say, must also address control over when and whether to have children.” According to Alexis McGill Johnson, acting president and CEO of Planned Parenthood, “‘There are no equal rights for women without access to abortion, plain and simple.’” ERA advocates need to get their story straight. Is the ERA about abortion, or isn’t it? Also, if opposition to the ERA is all about sexism, why are so many pro-life women against it? Are they trying to discriminate against themselves? On the floor of the House of Representatives, Rep. Jackie Walorski (R-IN) recently said: “‘Of course I believe in equal rights… [But] let’s be honest, this is not about equality or women’s rights. This is about enshrining unrestricted abortion in the Constitution and allowing full taxpayer funding for abortion.’”
The question before the House of Representatives on February 13 related to a procedural matter. The ERA was passed by the U.S. House of Representatives in 1971 and by the U.S. Senate in 1972. In passing the ERA, Congress included a seven-year deadline for its ratification. This meant that if state legislatures in three-quarters of U.S. states (in other words, 38 states) failed to ratify the ERA within seven years, it would be null and void. In 1979, Congress extended that ratification deadline for three more years. By 1982, however, only 35 states had ratified the ERA, leaving it three states short of full ratification.
In recent years, the ERA has received renewed attention, as three more states have taken steps to ratify it. Most recently, the State of Virginia attempted to ratify the ERA in January 2020. Virginia is the 38th state to attempt to ratify the ERA. ERA proponents are arguing that (a) Congress never had the authority to set a ratification deadline in the first place; and (b) even if Congress did have such authority, it should be able to retroactively modify its own deadline. This second argument is the reason for the February 13 House vote. If the ratification deadline can be extended, the ERA would be deemed to have reached the 38-state threshold necessary for its full ratification and inclusion in the U.S. Constitution. Conservatives, including the Heritage Foundation, are arguing that the ratification deadline was effective and that any attempts by states to ratify the ERA since 1982 are invalid. To the shock of some on the left, liberal Supreme Court Justice Ruth Bader Ginsburg has suggested that ERA advocates would be on firmer ground if they simply re-introduced the amendment and started the ratification process over again from scratch.
On February 13, the ERA ratification resolution was opposed by 182 Republicans and one independent (Rep. Justin Amash of Michigan). The resolution received the support of 227 Democrats and five Republicans; those five Republicans included Rep. Tom Reed of New York’s 23rd congressional district, who also served as a vocal proponent and resolution cosponsor. All 21 of New York’s House Democrats voted in favor of the resolution. The four Republican congressmembers from New York that voted “nay” are: Rep. John Katko (R-NY24), Pete King (R-NY2), Elise Stefanik (R-NY21), and Lee Zeldin (R-NY1). New Yorkers for Constitutional Freedoms thanks Reps. Katko, King, Stefanik, and Zeldin for their pro-life votes, and expresses deep disappointment at Rep. Tom Reed’s pro-ERA vote.
The ERA resolution is unlikely to receive a vote in the U.S. Senate this year.