The early 1970s brought feminism and abortion to the forefront of American politics. One movement that combined both issues was the push to ratify the 1972 Equal Rights Amendment (ERA), which purported to grant equal rights under the law to women. Its language was so vague*, however, that many suspected its true intent was to enshrine the right to abortion into the Constitution.
In 1973, of course, the U.S. Supreme Court decided Roe v. Wade, which may have cooled the initial public support for the proposed amendment. When the ERA didn’t garner ratifications from the constitutionally required three-fourths of the states – 38 in total – by the 1979 deadline Congress imposed**, it was mostly forgotten by all but the most ardent feminists of that era.
Fast forward to 2017, when the first of three additional state legislatures – Nevada, Illinois and Virginia – passed resolutions ratifying the ERA. That put the number of ratifying states at 38 but ignores the fact that five of the original states that ratified before 1979 also rescinded their action prior to that deadline.
Supporters of the ERA have twice attempted to get a federal court to force the National Archivist to officially list the ERA as the 28th Amendment. They failed in the District of Columbia federal district court, which ruled that the plaintiffs – the states of Nevada, Illinois and Virginia in that suit – lacked standing to bring the suit, and, in any event, the 1979 deadline Congress imposed for the ERA’s ratification blocked any subsequent attempts to ratify.
Now a second case has been stopped in its tracks by the 1st Circuit, which upheld the dismissal of a similar lawsuit brought in a Boston federal district court. And once again, lack of “standing” on the part of the plaintiffs was the reason given.
“Standing” is a legal term which is shorthand for the requirement that a party who brings a lawsuit must have suffered a concrete injury (or will imminently) for which relief can be granted by the courts. This requirement, also called “Article III” standing for the section of the Constitution dealing with the federal judiciary, keeps the courts from being drawn into theoretical controversies and issuing advisory opinions rather than dealing with real parties with real injuries that the court can do something about.
One of the losing parties in the 1st Circuit case is an advocacy organization called Equal Means Equal. It was not happy with the decision and issued a press release promising an appeal.
“We will seek further review of this outrageous decision by the full First Circuit Court of Appeals,” the organization stated. “How can any court rule that women as a class have no standing to even SPEAK in court when the government unlawfully blocks women from achieving equal protection of the law — even after the ERA was ratified by the necessary 38 states on January 27, 2020?”
But the ERA was dead, constitutionally speaking, a long time ago when the ratification deadline passed. Even counting the recent ratifications by Nevada, Illinois and Virginia, it is still five states short of the 38 required once you factor in the states who rescinded their initial vote.
At this point, the correct – meaning constitutionally appropriate – way to pass the ERA is to start over. Even the late Justice Ruth Bader Ginsburg, a strong abortion rights advocate, said so. But that would be no easy task in today’s political and cultural climate.
Focus on the Family stands firmly opposed to the ERA and the current effort to resurrect this pro-abortion effort via the courts. In our 2019 statement, we called the ERA a “thinly disguised attempt to embed abortion into the Constitution.”
*“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. This amendment shall take effect two years after the date of ratification.”
**In 1979, Congress attempted to extend the deadline until 1982, but no new states ratified the ERA, and the legality of that extension is disputed.