The National Right to Life Committee (NRLC) strongly opposes H.J. Res. 17, approved by the House of Representatives on a near-party-line vote on March 17, and its Senate companion, S.J. Res. 1, introduced by Senators Cardin and Murkowski. These measures purport to “remove” the ratification deadline that the 92nd Congress included in the Equal Rights Amendment Resolution submitted to the states on March 22, 1972 – 49 years ago.
National Right to Life intends to include the roll call(s) on cloture on either measure in our scorecard of key pro-life votes of the 117th Congress. We place special importance on this matter. In our scorecard, a vote in favor of an ERA “deadline repeal” measure will be accurately characterized as a vote for a measure that both National Right to Life and an array of prominent pro-abortion organizations (including NARAL, NOW, and the National Women’s Law Center) say would be employed to launch potent new legal attacks on state and federal laws or policies that directly or indirectly limit abortion, and to remove all limits on government funding of abortion.
H.J. Res. 17 and S.J. Res. 1 are blatantly unconstitutional. Congress lacks power to retroactively amend and revive a proposal that has expired – an exercise that the Justice Department, in a January 2020 legal opinion by the Office of Legal Counsel, aptly compared to the current Congress attempting to override a veto by President Carter. Congress’s powers are enumerated in Articles I and V of the Constitution; they do not include time travel.
Moreover, H.J. Res. 17 purports to be an exercise of Congress’s constitutional amendment power under Article V of the Constitution, and yet its sponsors insist it requires only a simple majority vote – incompatible claims. Whenever Congress operates under Article V, a two-thirds vote in each house is required. (The Resolved clauses of both H.J. Res. 17 and S.J. Res. 1 actually did contain the two-thirds requirement when introduced in January, but it was removed in early March by use of the stealth-amendment, “Star Print” procedure.)
Even the late Justice Ruth Bader Ginsburg, for decades known as a champion of the Equal Rights Amendment, highlighted the gross constitutional defects inherent in attempts to resurrect a long-expired amendment by legislative incantations. On February 10, 2020, at a forum at Georgetown University Law Center, Justice Ginsburg said:
I would like to see a new beginning. I’d like it to start over. There’s too much controversy about latecomers — Virginia, long after the deadline passed. Plus, a number of states have withdrawn their ratification. So, if you count a latecomer on the plus side, how can you disregard states that said, “We’ve changed our minds”?
All six constitutional amendment resolutions approved by Congress since 1960 – four of which were adopted – have contained seven-year deadlines in the Proposing Clause. (The Proposing Clause is not a mere “preamble,” but a constitutionally required part of any submission to the states, instructing states regarding the mode of ratification.) There is no plausible constitutional theory by which a later Congress can retroactively alter what a previous Congress submitted to the states by the required two-thirds votes. Even under President Carter, who endorsed a pre-expiration 39-month “deadline extension” in 1977-1978, the Justice Department conceded that its rationale would not be applicable if the deadline had already expired. The liberal Brennan Center acknowledged in January 2020, “there is no precedent for waiving the deadline after its expiration.” The U.S. House Democratic leadership of 1983 recognized that the 1972 ERA was dead, which is why they brought a start-over ERA (same language) to the House floor
on November 15, 1983 – only to see it defeated.
On March 5, 2021, U.S. District Judge Rudolph Contreras (an appointee of President Obama) ruled in Virginia v. Ferriero that setting a ratification deadline was a valid use of Congress’s power under Article V, and that the ERA-related actions by the legislatures of Nevada (2017), Illinois (2018), and Virginia (2020) were “barred” by the deadline and “came too late to count.” Thus, as a matter of law, it is not true that “38 states have ratified” the ERA. The number of states that ratified prior to the deadline was 35; of those, 5 took actions before the deadline to rescind or limit their ratifications, and the other pre-deadline ratifications expired with the deadline.
We note here that while Judge Contreras ruled that the deadline was constitutional, the attorneys general of Virginia, Nevada, and Illinois on May 3 appealed that ruling to the D.C. Circuit. In addition, a group called Equal Means Equal has presented arguments that the deadline is unconstitutional to a three-judge panel on the 1st Circuit. The lead attorney for Equal Means Equal, Wendy Murphy, although she wrongly believes that the deadline was unconstitutional, acknowledged that if the deadline were constitutional (as Judge Contreras has ruled), then it “absolutely” cannot be removed retroactively. “The deadline, if it is [constitutionally] valid, doesn’t exist anymore, because it expired, and you cannot retroactively go fix something that doesn’t exist anymore,” Murphy noted. (ERA Summit, May 1, 2021)
THE ERA-ABORTION CONNECTION
There is now broad agreement between key pro-life and pro-abortion groups that the language of the 1972 ERA could be employed to reinforce and expand “abortion rights.” For example, NARAL Pro-Choice America, in a March 13, 2019 national alert, asserted that “the ERA would reinforce the constitutional right to abortion . . . [it] would require judges to strike down anti-abortion laws…” A National Organization for Women factsheet on the ERA states that “…an ERA – properly interpreted – could negate the hundreds of laws that have been passed restricting access to abortion care…” The general counsel of the National Women’s Law Center told AP that the ERA would allow courts to rule that limits on abortion “perpetuate gender inequality.” The ACLU, in a March 16, 2021 letter to the House, said that the ERA “could provide an additional layer of protection against restrictions on abortion…[it] could be an additional tool against further erosion of reproductive freedom…” Following the March 17 House vote, the CEO of
the Planned Parenthood Federation of America issued a statement suggesting that “reproductive rights” and the ERA are “inextricably linked.” Many other such examples have been collected and are readily available for your examination.
Pro-abortion activists already have aggressively employed state ERAs to challenge pro-life policies. For example, in New Mexico, state affiliates of Planned Parenthood and NARAL relied on the state ERA in a legal attack on the state version of the “Hyde Amendment,” prohibiting Medicaid funding of elective abortions. In its 1998 ruling in NM Right to Choose / NARAL v. Johnson, No. 1999-NMSC-005, the New Mexico Supreme Court unanimously agreed that the state ERA required the state to fund abortions performed by medical professionals, since procedures sought by men (e.g., prostate surgery) are funded. The New Mexico Supreme Court based its ruling solely on the state ERA. Moreover, the Women’s Law Project, in concert with Planned Parenthood, is currently pursuing a very similar lawsuit in Pennsylvania (Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services), arguing that it is “contrary to a modern understanding” to argue that an ERA is consistent with limitations on government funding
Once a court adopts the understanding that a law limiting abortion by definition is a form of discrimination based on sex, and therefore impermissible under an ERA, that doctrine could invalidate virtually any limitation on abortion. For example, under this doctrine, the proposed federal ERA would invalidate the federal Hyde Amendment and all state restrictions on tax-funded abortions. Likewise, it would nullify any federal or state restrictions even on partial-birth abortions or third-trimester abortions (since these too are sought only by women). Also vulnerable would be federal and state “conscience laws,” which allow government-supported medical facilities and personnel – including religiously affiliated hospitals – to refuse to participate in abortions.
For decades, many ERA advocates have tried to deflect attention from this issue by observing that past Supreme Court rulings on abortion have relied on a purported due-process “privacy” right. This is almost childish in its transparent evasiveness – obviously, past U.S. Supreme Court rulings on abortion issues dealt only with the current U.S. Constitution, without the ERA’s absolute prohibition on abridgement of “rights…on account of sex.”
“START-OVER” ERAs AND THE “ABORTION-NEUTRALIZATION AMENDMENT”
Even though the main focus of most pro-ERA activists is currently on the unconstitutional “deadline repeal” campaign, “start-over” ERAs have also been proposed (e.g., H.J. Res. 28). These measures at least have the virtue of respecting the requirements of Article V. However, because of the ERA-abortion link summarized above, we urge you to withhold support from any “start over” ERA, unless at a minimum it contains a simple “abortion-neutralization” clause, first proposed by National Right to Life in 1983. The proposed revision – which cannot be added to the fixed and expired language of the 1972 ERA, but which could be added by Congress to any start-over ERA proposal – would read:
Nothing in this Article [the ERA] shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof.
This proposed revision would simply make any new ERA itself neutral regarding abortion policy; it would not change the current legal status of abortion, nor would it permit the ERA itself to be employed for anti-abortion purposes. Tellingly, since 1983 most ERA proponents have rejected out of hand the concept of such an abortion-neutral revision.
Because the intent of H.J. Res. 17 and S.J. Res. 1 is to place the text of the pro-abortion 1972 ERA into the Constitution, National Right to Life intends to score roll calls on whether to advance either measure, including cloture votes. In our communications with our members, supporters, and affiliates nationwide, any vote to advance either of these measures will be accurately characterized as 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.
Douglas D. Johnson
Senior Policy Advisor
David N. O’Steen, Ph.D.
Jennifer Popik, J.D.
National Right to Life Committee