In 1972, in response to a growing push from the feminist movement led by such women as Gloria Steinem and Bella Abzug, Congress approved an amendment to the U.S. Constitution known as the Equal Rights Amendment (ERA), which was then sent to the states for ratification. The ERA was touted as a guarantee of equal treatment under law for women.
However, the proposed amendment was not ratified by the requisite 38 states during the 7-year period established by Congress. Attempts made recently by three states to ratify the ERA almost 40 years after the original deadline were ineffective, a federal court ruled recently. Unless overturned on appeal, the effort by Virginia, Nevada and Illinois to use the courts to push the ERA across the finish line have fallen short. Many liberal members of Congress are trying to retroactively extend the original deadline indefinitely.
Federal district court judge Rudolph Contreras dismissed the lawsuit from the three states, who sought to have the court rule that the time limit in Congress’ resolution approving the amendment and sending it to the states was ineffective and did not bar state ratifications occurring after the original seven year period. The judge rejected that argument.
“[T]he ratification conditions that Congress has included in proposing resolutions’ introductions—determining the ‘Mode of Ratification’ or setting a deadline—draw unmistakable lines for states to follow and for the public to rely on,” Judge Contreras wrote. “There is no doubt that Congress intended them to be binding. And few have questioned that they are. The Court will not pull the rug out from under Congress’s long-accepted practice of declaring ratification conditions in a proposing resolution’s preamble based on a technicality.”
The innocuously worded amendment affirming that “equality of rights under the law shall not be abridged … on account of sex” cloaks a radical pro-abortion agenda. There is no doubt that the amendment, proposed one year before Roe v. Wade was decided, was meant to codify abortion in the U.S. Constitution.
In fact, one state with its own version of the ERA, New Mexico, saw its courts rule in 1998 that the amendment guaranteed public taxpayer funding of abortion.
Assuming this most recent court decision is appealed, the likelihood that the ERA could be revived by the U.S. Supreme Court is almost nonexistent. Even the Supreme Court’s most vocal champion of abortion, Justice Ruth Bader Ginsburg, once remarked that the ERA’s ratification deadline was past, and its supporters needed to start over.
However, it appears that pro-abortion supporters in Congress will once again try to pass a deadline extension for the ERA’s ratification, rather than starting over. A Senate joint resolution – S.J. Res. 1 – attempts to retroactively abolish the deadline contained in the 1972 amendment and leave it open indefinitely.
Even if S.J. Res. 1 passes, its constitutionality is open to question. The language and meaning of the time limitation in the 1972 amendment was perfectly clear at the time. It may have even been a political compromise that enabled its passage by the necessary two-thirds vote of both houses. Will a court allow Congress to go back in time and revise the intent of a previous Congress when the obvious alternative is to start over?
So why not do as Ginsburg suggested? Could it be that abortion supporters are pessimistic about their chances of getting two-thirds of both houses of Congress to pass another ERA, or of obtaining the ratifications of three-fourths of the states, the second time around?
S.J. Res. 1 is expected to pass the House, as it has done previously, but there don’t appear to be the necessary 60 votes to end debate and proceed to a vote in the Senate, unless the filibuster rule in that chamber is changed. But changing that rule would be a radical departure from the status quo in the upper chamber, and the resolution’s questionable legality – even if passed – could force the upper chamber to tread carefully about revising its rules.
We’ll be following S.J. Res. 1 and keep you apprised of its journey through Congress.
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