Democrats Pursue Political Theater in Face of 40 Years of Judicial Rebukes
WASHINGTON—U.S. House Democrats today passed, 222-204, a resolution they claimed could resuscitate the long-expired 1972 Equal Rights Amendment.
“This was ERA’s poorest showing in the House in 50 years,” said Douglas D. Johnson, senior policy advisor to the National Right to Life Committee (NRLC), and director of its ERA Project. “Only 52 percent of voting House members supported ERA today, compared to 94% in 1971, and 56% in 2020. Today’s tally was 62 votes below the two-thirds margin that the Constitution requires to perform grown-up constitutional amending, as opposed to today’s cheap political theater.”
The roll call was nearly party line, with only 4 Republicans voting in support (or 2 percent of the 208 Republicans who voted). All 218 voting Democrats voted aye.
The measure (H.J. Res. 17) purports to “remove the deadline” contained in the ERA Resolution approved by Congress, by the required two-thirds votes, in 1972. The measure faces a steep climb in the Senate, where it will be subject to filibuster.
“The ERA-is-alive cult has suffered an unbroken 40-year string of rejection by federal judges of every political and judicial stripe,” Johnson said. “On March 5, Judge Rudolph Contreras, a respected jurist appointed by President Obama, ruled that the ERA deadline was constitutional, and that Nevada, Illinois, and Virginia had performed no genuine ratifications. Thus, as a matter of law, 38 states have not ratified the ERA, as has been so widely reported – because the ERA expired decades ago.”
“The key legal claims of the ERA-is-alive movement have fallen apart like wet cardboard when subjected to the scrutiny of federal judges, regardless of their political background. ERA-revival advocates, in approaches to four different federal courts, have failed to win a single vote from any of 20 federal judges and justices on any of their key legal claims. The 20 judges included 13 appointed by Republican presidents, and 7 by Democratic presidents. The judges who reached the substantive constitutional issues rejected or set aside key legal claims on which the ERA-is-alive movement is premised. The judges who disposed of cases on purely procedural grounds did so over the vigorous contrary pleadings of ERA-revival advocates.”
On February 10, 2020, in remarks at Georgetown University Law Center, the late Justice Ruth Bader Ginsburg indicated that she believed the proper approach for ERA supporters, such as herself, is “a new beginning. I’d like it to start over.” Virginia’s then-recent adoption of an ERA resolution was, she said, “long after the deadline passed.” If such “a latecomer” were to be recognized, she suggested, “how can you disregard states that said, ‘We’ve changed our minds’?”
National Right to Life opposes the 1972 ERA because it is likely to be employed as a textual constitutional foundation for judicial rulings that would invalidate virtually any state or federal law or policy that impedes access to abortion, or even that has a “disparate impact” on the availability of abortion. The 1972 ERA language is also likely to be construed to require state and federal health program to fund abortions without limitation. You can download a five-page factsheet, containing footnoted quotes from leaders and attorneys associated with numerous prominent abortion-rights organizations proclaiming the ERA-abortion connection, here.
Douglas Johnson is NRL’s subject matter expert on the Equal Rights Amendment, an issue on which he has written and worked for 40 years. Mr. Johnson is available for interviews or email exchanges to discuss the congressional and ratification histories of the ERA, to comment on the legal and political aspects of the issue, and to discuss the ERA-abortion connection.
@ERANoShortcuts is a non-NRL but recommended Twitter account dedicated exclusively to tracking ERA-related legal and political developments in the courts, Congress, Executive Branch, and state legislatures, from an “ERA-skeptical” perspective.