Showdowns Loom in U.S. House and Federal Courts on Pro-Abortion Equal Rights Amendment

WASHINGTON — On Thursday, February 13, 2020, the U.S. House of Representatives will take up a measure that purports to “remove the ratification deadline” from the 1972 Equal Rights Amendment Resolution, and thereby (proponents claim) make the 1972 ERA a part of the Constitution.

The House is expected to begin debate on the measure (H.J. Res. 79) at 9 AM EST on February 13, and to pass it at about 11 AM. The measure will face much steeper odds in the U.S. Senate, and (were it ever to pass there) in the federal courts. The Senate companion measure is S.J. Res. 6.

As the Associated Press (David Crary) accurately reported on January 21, “… Abortion-rights supporters are eager to nullify the [ERA ratification] deadline and get the amendment ratified so it could be used to overturn state laws restricting abortion.” Likewise, on January 30, NBC News’ Pete Williams reported, “The ERA has been embraced by advocates of abortion rights. NARAL Pro-Choice America has said it would ‘reinforce the constitutional right to abortion’ and ‘require judges to strike down anti-abortion laws.'”

In a “scorecard warning” letter sent to House members on January 27, National Right to Life said, “Because the intent of H.J. Res. 79 is to place the text of the 1972 ERA into the Constitution, National Right to Life intends to score the roll call on passage of H.J. Res. 79. In our communications with our members, supporters, and affiliates nationwide, a vote in favor of this resolution will be accurately characterized as a vote intended to insert language into the U.S. Constitution that could invalidate any limits whatsoever on abortion, including late abortions, and require government funding of abortion.” Read the entire NRL letter here [HTML] or download it in PDF here.

“Numerous abortion-rights groups now openly proclaim that they would employ the ERA as a powerful legal weapon against pro-life laws,” said Douglas Johnson, NRL Senior Policy Advisor, who has directed NRL efforts in opposition to the ERA since 1983. Among those groups, Johnson said, are NARAL, Planned Parenthood, the National Women’s Law Center, the Women’s Law Project, and the National Organization for Women.

Like every proposed constitutional amendment since 1960, the 1972 ERA Resolution contained a seven-year deadline in its Proposing Clause. (The Proposing Clause is not a “separate statute” or a “preamble,” but an essential component of every constitutional amendment, required by Article V of the Constitution.) Congress is not required to include a deadline in a Proposing Clause, but the Supreme Court has said that Congress has the power to do so, and that such deadlines are binding. 

On January 6, 2020, the Office of Legal Counsel (OLC) of the Department of Justice issued a 38-page legal opinion, confirming that the 1972 ERA Resolution died in 1979 (not 1982), and that Congress has no power to revive that failed proposal (although the entire amendment process could be restarted, starting with two-thirds votes in each house of Congress).

Regarding retroactive-revival measures such as H.J. Res. 79, OLC said, “Such an action by this Congress would seem tantamount to asking the 116th Congress to override a veto that President Carter had returned during the 92nd Congress, a power this Congress plainly does not have.”

Proponents of H.J. Res. 79 insist that if passed by simple majority votes (not two-thirds votes) in the House and Senate (and without a presidential signature), the measure somehow would transport the ERA into the Constitution. NRLC’s Johnson commented, “The 1972 ERA Resolution is 40 years dead. We are now witnessing an orchestrated attack on the integrity of the constitutional amendment process itself. This resolution [H.J. Res. 79] is a political prop – an illegitimate legislative object, not resembling anything described in the Constitution.”

Three federal lawsuits are already underway, confronting the courts with questions about the ratification deadline and the status of five states that rescinded their ratifications before the 1979 deadline.

Some liberal groups are critical of the substance of H.J. Res. 79, and/or of the arguments being used to advance it. The attorney who conceived the current pro-ERA litigation theory has charged that the congressional effort “undermines our litigation efforts.” A coalition of liberal groups privately warned some congressional leaders that the claim that 38 states have ratified the ERA undercuts a liberal campaign to fend off a constitutional convention by lobbying state legislatures to rescind earlier resolutions calling for such a convention.