Showdown brewing on campaign to air-drop 1972 “Equal Rights Amendment” into U.S. Constitution

WASHINGTON (Jan. 12, 2020) — A long-smoldering campaign to insert the Equal Rights Amendment into the U.S. Constitution has turned into a political-legal-media blaze.

At NRL News deadline, the Virginia legislature appeared to be mere days away from adopting a resolution that purports to ratify the Equal Rights Amendment (ERA), a proposed constitutional amendment submitted by Congress to the states in March, 1972, with a seven-year deadline for ratification.

In the view of pro-ERA activists, Virginia will be the 38th state to ratify the ERA, thereby meeting the constitutional requirement of ratification by three-quarters of the 50 states. Pro-ERA advocacy groups are already proclaiming that the Virginia legislature’s action will be the successful culmination of decades of struggle for constitutional “equality.”

However, there are many who find these claims implausible.

“This is an attempt to air-drop into the Constitution a sweeping provision that could be used to attack any federal, state, or local law or policy that in any way limits abortion — abortion in the final months, partial-birth abortion, abortions on minors, government funding of abortion, conscience-protection laws, you name it,” said Douglas D. Johnson, who directed NRL’s ERA-related efforts during his years as NRL Federal Legislative Director (1981-2016), and continues to do so today as NRL Senior Policy Advisor.

“Pro-abortion advocates have been unable to accomplish their goal by the amendment process provided in Article V of the Constitution – their proposal expired unratified 40 years ago — so they are attempting to accomplish it through a brazen political campaign, dressed up in legal terminology,” Johnson said.

Johnson and other critics of the ERA “ratification” campaign got a powerful boost on January 6, when the Office of Legal Counsel (OLC) of the U.S. Department of Justice issued a 38-page legal memo that firmly concluded that the ERA died without being ratified in 1979, and that neither state legislatures nor Congress have power to resurrect it.

The only constitutional avenue to adoption of an ERA would be for ERA proponents to start over, requiring two-thirds approval in each house of Congress, followed by a new round of consideration by state legislatures, the OLC memo concluded.

OLC’s function is to advise Legislative Branch agencies on major legal issues. Therefore, the January 6 opinion now governs the actions of the Archivist of the United States, David Ferriero, to whom it was directed. This means that when the Virginia legislature transmits its “ratification” papers to Ferriero, he will not certify that the ERA has been ratified and made part of the Constitution, which are functions that the Archivist would perform in the case of a genuine ratification.

In a January 9 statement, the National Archives and Records Administration (NARA), the agency that Ferriero heads, said, “NARA defers to DOJ on this issue and will abide by the OLC opinion, unless otherwise directed by a final court order.”

The OLC opinion also forcefully rejected the theory that Congress could retroactively nullify the ratification deadline on the 1972 ERA, which is the premise of a measure that the Democrat-controlled U.S. House of Representatives is expected to take up soon (H.J. Res. 79).

The opinion says, “[The current] Congress may not revise the terms under which two-thirds of both Houses proposed the ERA Resolution and under which thirty-five state legislatures initially ratified it. Such an action by this Congress would seem tantamount to asking the 116th [current] Congress to override a veto that President Carter had returned. . . a power this Congress plainly does not have.”

U.S. HOUSE TO TAKE UP PRO-ERA MEASURE

Undeterred, the Democratic leaders who hold majority control of the U.S. House of Representatives plan to soon force a House vote on H.J. Res. 79, a measure that they claim would retroactively nullify the deadline.

The Democratic leaders say that this measure could pass with only majority votes in the House and Senate, even though Congress’s role in the constitutional amendment process is defined in Article V of the Constitution, which requires two-thirds votes in both houses.

The measure has been co-sponsored by more than half of the members of the House (although by only three Republicans), and therefore will pass the House. However, it is expected to encounter a cool reception in the U.S. Senate, where Republicans currently hold a 53-47 seat majority.

NRL’s Johnson said, “This resolution is a legislative mutant – nothing like it is described in the Constitution. Its authors claim it can reach backwards in time and change the terms of a constitutional amendment resolution that a different Congress passed with two-thirds votes nearly 48 years ago – and even more remarkably, this mutant resolution can accomplish this time-warping feat on the strength of simple-majority votes.”

Despite its legal implausibility, “The clear intent of the resolution is to air-drop the ERA into the Constitution – therefore, it is fair that lawmakers who vote for it should be held accountable for the likely legal effects of the ERA, including its likely sweeping pro-abortion effects – effects that leading abortion-advocacy groups now openly predict,” said Johnson.

In a letter to the U.S. House, National Right to Life said, “In our communications with our members, supporters, and affiliates nationwide, a vote in favor of this resolution will be accurately characterized as a vote in favor of inserting language into the U.S. Constitution that could invalidate any limits whatsoever on abortion, including late abortions, and to require government funding of abortion.”

MULTIPLE LAWSUITS

Ultimately, the federal courts, and quite likely the U.S. Supreme Court, will sort out the irreconcilable claims about the viability of the ERA. The Archivist has already been sued by two different groups, and further lawsuits are expected after Virginia transmits its “ratification” papers.

On December 16, 2019, Alabama Attorney General Steve Marshall, joined by the attorneys general of Louisiana and South Dakota, sued the Archivist in federal court in Alabama. That lawsuit asks the court to order the Archivist to stop accepting papers that purport to ratify a long-expired amendment. The lawsuit also asks the court to declare as valid the actions of five state legislatures that rescinded their ERA ratifications, prior to the 1979 deadline.

On January 7, a pro-ERA group called Equal Means Equal filed a suit in federal court in Boston, arguing that the deadline that Congress included in the 1972 ERA resolution should be regarded as unconstitutional. The group’s lawyer, Wendy Murphy, has criticized efforts to pass a deadline-nullification measure in Congress as unnecessary and diversionary.

Additional lawsuits are expected from the pro-ERA side after Virginia approves its “ratification” resolution. The legal issues surrounding the ERA’s ratification process may ultimately be decided by the U.S. Supreme Court, although that could take some time.

“There is really only one constitutional route for those who want to put an ERA into the Constitution,” said NRL’s Johnson. “They must begin the process over again, which would entail congressional consideration of possible revisions to the 1972 ERA language. They would need to muster a two-thirds vote in each house of Congress for the final resolution — and then, approval by at least 38 state legislatures.”

THE E.R.A.-ABORTION CONNECTION

National Right to Life long has opposed ratification of the 1972 ERA, because of the predictable likelihood that pro-abortion groups would use it as a powerful legal weapon against state and federal policies that place any limits on abortion.

In 1983, the Democratic leadership of the U.S. House of Representatives, recognizing that the 1972 ERA was dead, attempted to re-start the entire process by sending a new ERA (with the same language) to the states. They were stunned when the proposed do-over ERA fell short of the required two-thirds majority on the House floor– which was due in no small part to forceful intervention by National Right to Life against the measure. (Nov. 15, 1983)

For decades, most pro-ERA leaders and their allied officeholders denounced pro-life concerns about the ERA-abortion link as “right-wing scare tactics.” Most journalists covering the issue accepted this framing at face value — even after pro-abortion groups began using ERAs that had been added to state constitutions in precisely the manner that pro-life groups had predicted.

For example, the New Mexico Supreme Court in 1998 unanimously struck down a state law restricting public funding of elective abortions, entirely on the basis of the state ERA, in a lawsuit brought by affiliates of Planned Parenthood and NARAL.

In January, 2019, the Women’s Law Project and Planned Parenthood filed a lawsuit urging courts in Pennsylvania to strike down limitations on state funding of elective abortion as violations of the state ERA. A past ruling declining to take such a step “is contrary to a modern understanding” of ERA, the groups said in their complaint.

As recently as April 30, 2019, several pro-ERA members of the U.S. House of Representatives denounced pro-life lawmakers who had expressed concerns about the ERA-abortion connection. For example, Rep. Carolyn Maloney (D-La.) told a House Judiciary subcommittee, “The Equal Rights Amendment has absolutely nothing to do with abortion… saying so is just divisive and a tool to try to defeat it.”

In response, Rep. Mike Johnson (R-La.) read into the record a sampling of recent statements by pro-abortion groups, including NARAL, NOW, Planned Parenthood, and the Women’s Law Project, proclaiming that the ERA should or is likely to sweep away laws limiting abortion.

For example, in a national alert sent out on March 13, 2019, NARAL Pro-Choice America asserted that “the ERA would reinforce the constitutional right to abortion . . . [it] would require judges to strike down anti-abortion laws . . .”

The National Organization for Women circulates a monograph on the ERA that makes numerous sweeping claims about its hoped-for pro-abortion legal effects — stating, for example, that “an ERA — properly interpreted – could negate the hundreds of laws that have been passed restricting access to abortion care . . .”

Moreover, the Associated Press on January 1, 2020 reported that Emily Martin, general counsel for the National Women’s Law Center, “affirmed that abortion access is a key issue for many ERA supporters; she said adding the amendment to the Constitution would enable courts to rule that restrictions on abortion ‘perpetuate gender inequality.’”

In 1983 and since, National Right to Life has said it will strongly oppose any start-over ERA in Congress, unless an “abortion-neutralization” amendment is added, which would state: “Nothing in this Article [the ERA] shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof.” ERA proponents have vehemently rejected such a revision.