Justice Department Office of Legal Counsel Confirms: 1972 ERA is Dead and Congress can’t revive it

WASHINGTON — The Office of Legal Counsel of the Department of Justice, which advises all components of the Executive Branch on major legal issues, today issued a 38-page opinion holding that the 1972 Equal Rights Amendment (ERA) has been dead for 40 years, and that no subsequent action by state legislatures or Congress can resurrect it.

This opinion defines the position of the Executive Branch. It means, among other things, that the Archivist of the United States may not certify that the 1972 ERA has become part of the Constitution, after the Virginia legislature submits papers purporting to “ratify” the ERA, which is expected to occur later this month.

“The narrative that the ERA is on the verge of ratification is pure political theater,” said National Right to Life (NRL) Senior Policy Advisor Douglas Johnson, who has directed NRL efforts in opposition to the ERA since 1981. “The U.S. Supreme Court in 1982 recognized the demise of the ERA. We predict that the Justice Department position will be fully vindicated by the higher federal courts.”

Johnson added, “Of course, Congress has the option of restarting the entire constitutional amendment process, but that entails consideration of revisions to the ERA language — to prevent, for example, use of ERA as a powerful weapon against pro-life laws. And, it requires final congressional approval by two-thirds votes in each house, and ratification by three-fourths of the state legislatures.”

National Right to Life has warned for decades that the ERA, as traditionally worded, would pose a constitutional threat to all limitations on abortion. Increasingly, pro-abortion activist groups have dropped the previous pretense and admitted that they think that pro-life laws would be invalidated by an ERA. Among the groups that have explicitly recognized the ERA-abortion link by word or legal action, within the recent past, are NARAL, Planned Parenthood, the National Women’s Law Center, the Women’s Law Project, and the National Organization for Women. NARAL, for example, said in a 2019 national alert that “the ERA would reinforce the constitutional right to abortion . . . [it] would require judges to strike down anti-abortion laws . . .”

On November 15, 1983, the U.S. House of Representatives voted down a start-over ERA in large part because the House Democratic leadership would not allow consideration of an abortion-neutralization revision backed by NRL.

The House Judiciary Committee recently approved a resolution (H.J. Res. 79) that purports to nullify the deadline contained in the ERA resolution (H.J. Res. 218) submitted to the states in March, 1972. The 1972 measure contained both the deadline and the proposed constitutional text. “The Justice Department opinion makes it clear that the current Congress has no power to travel back in time and alter what Congress, by two-thirds votes, proposed to the states in 1972,” Johnson said.

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The Office of Legal Counsel opinion can be downloaded from this link.