WASHINGTON (Feb. 27, 2023) – U.S. Senate Democrats this week are launching a political show starring the ghost of the failed Equal Rights Amendment – disregarding 41 years of federal court rulings recognizing that the 1972 proposal expired decades ago.
On Tuesday, February 28, the Senate Judiciary Committee will hold a hearing, “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.” The hearing is a warm up for a Senate floor vote in March on S.J. Res. 4 (Cardin-Murkowski), a joint resolution that purports to both retroactively “remove” the ratification deadline incorporated into the ERA Resolution (approved by two-thirds votes in Congress in 1971-72), and to declare the ERA to be part of the Constitution (i.e., nullifying four pre-deadline state rescissions).
“The phony ERA resuscitation measure will fail in both Senate and House,” said Douglas Johnson, director of the National Right to Life Committee’s ERA Project. “The measure is a cheap political gimmick that would have no legal effect even if it passed—Congress’s power to change the ERA Resolution ended a half-century ago.”
More than four decades after the ERA expired, legal claims that the ERA remains viable have failed to gain a single iota of validation from the federal judiciary. “Every time the issue has been litigated in federal court, most recently in 2021, the pro-ERA side has lost, no matter whether the judge was appointed by a Democrat or a Republican,” wrote the Washington Post Fact Checker in February 2022, awarding “Four Pinocchios” to claims by then-Rep. Carolyn Maloney (D-NY) that the Archivist was obligated to certify the ERA as part of the Constitution.
In 2021, federal Judge Rudoph Contreras (appointed by President Obama) held that the ratification deadline was constitutionally binding, that it would have been “absurd” for the Archivist of the U.S. to have disregarded it, and that the actions of legislatures in Nevada, Illinois, and Virginia (2017-2020) “came too late to count.” That ruling was appealed to the U.S. Court of Appeals for the District of Columbia, where a three-judge panel heard oral arguments on September 28, 2022. The Washington Post reported, “A panel of federal judges expressed skepticism Wednesday about two states’ effort to enshrine gender equality in the U.S. Constitution by getting the federal government to recognize the Equal Rights Amendment decades after it was considered dead.” The D.C. Circuit ruling is expected any month.
The House of Representatives passed a narrower ERA-revival measure in March 2021, after which it was held “at the desk” for 21 months in the Senate, with Majority Leader Charles Schumer (D-NY) never taking the simple procedural step required to force a cloture vote on advancing the measure. “This is all a political show to string along the gullible,” Johnson said. “Schumer sat on a House-passed ERA-revival measure for 21 months without action, but now with the House under Republican control, he launches a big show with this doomed, phony, court-defying measure.”
Also on February 28, the Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Colleen Shogan, Ph.D. In testimony last year (Sept. 21, 2022), Shogan said that if confirmed as Archivist, she would not certify the ERA as part of the Constitution unless directed to do so by a “final court order.” Activist groups continue to demand that President Biden order the Archivist to certify the ERA, notwithstanding Judge Contreras’ ruling that the ERA has not been ratified.
In a statement issued February 24, 2022, the National Archives and Records Administration made it clear that the government’s position remains that ERA has not been ratified. Contrary to claims by some ERA advocacy groups and lawmakers, the Justice Department has not said that Congress has the power to retroactively change the deadline. Rather, the DoJ has merely observed that “Congress is entitled to take a different view” — different, that is, from the last-stated DoJ position as set forth in a detailed 2020 legal opinion, that Congress’ legitimate role on the 1972 ERA is long past.
At the September 28, 2022 oral argument before the D.C. Circuit panel, Judge Robert Wilkins asked, “Why shouldn’t the Archivist just certify and publish [the ERA], and let Congress decide whether the deadline should be enforced…?” Deputy Assistant Attorney General Sarah Harrington replied, “The Constitution doesn’t contemplate any role for Congress at the back end. Congress proposes the amendment, it goes out into the world, and the states do what they’re going to do.”
For decades, ERA proponents denied or deflected pro-life objections to the 1972 ERA language, often flatly asserting that the ERA had “nothing to do” with abortion. Now, however, leaders of prominent pro-abortion groups and lawmakers openly proclaim that if interpreted in the manner they deem proper, the proposed federal ERA language would bar limits on abortion (including late abortion) and limits on government subsidies for abortion. As Ting Ting Cheng, director of the Columbia University ERA Project, recently explained, “For a long time, it was kind of, ‘Don’t talk about that.’ Or, ‘That will just scare off the Republicans, or that will make people in Congress not support the ERA’.” “Even though all prominent pro-ERA advocacy groups now assert that the ERA would provide sweeping protection for abortion rights, some journalists oddly continue to present the ERA-abortion link as a ‘Republican’ or ‘conservative’ claim,” Johnson noted.
On January 23, 2023, NRLC issued a Special Report on the Equal Rights Amendment, which explains the history of the ERA-resuscitation narrative, with special emphasis on pertinent events of the past three years in the federal courts, Congress, and the Executive Branch.
NRLC’s letter to the Senate in opposition to S.J. Res. 4 may be viewed or downloaded here.
Founded in 1968, the National Right to Life Committee (NRLC), the federation of affiliates in each of the 50 states and the District of Columbia and more than 3,000 local chapters, is the nation’s oldest and largest grassroots pro-life organization. Recognized as the flagship of the pro-life movement, NRLC works through legislation and education to protect innocent human life from abortion, infanticide, assisted suicide and euthanasia.
Douglas Johnson, director of the National Right to Life ERA Project, is NRLC’s subject matter expert on the Equal Rights Amendment, an issue on which he has worked directly, and written, for 40 years. Mr. Johnson is available for telephone 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.