Editor’s note. This appeared on page six of the April edition of National Right to Life News. Please share this and all the other fine stories with your pro-life friends and family.
WASHINGTON (April 3, 2023) – A U.S. Senate showdown on S.J. Res. 4, a measure that purports to make the pro-abortion 1972 Equal Rights Amendment (ERA) a part of the federal Constitution, has been posted to mid-April or later.
Senate Majority Leader Charles Schumer (D-NY) had earlier indicated that the Senate would vote before April on S.J. Res. 4, introduced by Sen. Ben Cardin (D-Md.). The measure has been co-sponsored by the other 50 Senate Democrats and by two Republican senators (Lisa Murkowski of Alaska and Susan Collins of Maine), for a total of 53 on-record supporters.
In preparation for such a showdown, the Senate Judiciary Committee held a hearing on the ERA on February 28—the first Senate hearing on the subject since 1984. (See “Congressional Fight Heats Up on Campaign to Jam ‘Equal Rights Amendment’ into U.S. Constitution,” March 2023 NRL News, pages 7-8.)
However, two Democratic senators were out of action with health problems throughout most of March—John Fetterman (Pa.) and Dianne Feinstein (Ca.)—forcing Schumer and other leaders of the Senate’s narrow Democratic majority to adjust scheduling plans on multiple matters.
Schumer did not respond to a March 13 letter from NRLC President Carol Tobias, suggesting that hold the vote on March 22 “since that date will mark the 44th anniversary of the day that the real Equal Rights Amendment irrevocably expired—a real event that has been followed by seeming endless displays of political performance art…And now we are on the brink of yet another spectacle: a Senate cloture vote on whether to advance a measure that purports to, Shazam!, insert a long-expired amendment into the Constitution.”
Nearly all leading pro-ERA and pro-abortion advocacy groups now openly proclaim that they believe that the ERA, if made part of the Constitution, would invalidate state and federal limitations on abortion, and require government funding of elective abortion—even though most prominent ERA advocates in previous decades had denied or deflected such interpretations of the ERA.
“What for decades was dismissed by the news media as right-wing disinformation, nearly overnight became a leading selling-point for the ERA-revival movement,” observed Douglas Johnson, director of NRLC’s ERA Project, who has been involved in anti-ERA legislative efforts since the 1980s.
Congress went into a two-week recess on March 30, and will return on April 17.
Schumer made no new public announcement on when he will move to the ERA-related measure, but it could occur on short notice any time after April 17. Under Senate rules, the Democrats would need 60 votes to advance the measure.
President Biden has endorsed congressional approval of legislative measures to proclaim the ERA as having been ratified, even though the Justice Department has argued successfully in federal court that the ERA has not been ratified.
CONGRESSIONAL CAUCUS ON THE EQUAL RIGHTS AMENDMENT
In the House of Representatives, a group of Democratic lawmakers led by Congresswomen Cori Bush (Mo.) and Ayanna Pressley (Mass.) held a press conference on March 28 to announce formation of a “Congressional Caucus on the Equal Rights Amendment.”
The term “caucus” here refers to a voluntary association of legislators who share a general interest in a specific issue. There are around 400 officially recognized caucuses (“Congressional Member Organizations”) in the House of Representatives, and over 300 additional informal groups, according to the Congressional Research Service. In some cases, members of a caucus kick in a small portion of their staff budgets to pay the salary of one or more staff persons to focus on issue that the caucus was formed to promote.
On March 23, the fashion publication ELLE.com ran a prominent feature about Bush and the ERA, which included this passage: “As for why she’s pushing for the ERA now, at a time when Republicans control the U.S. House, Bush said, ‘It’s not a sprint, it’s a marathon.’ She added, ‘If we can start building now, then maybe in two years, when hopefully we are in the majority, we can be in a place where the advocates, the activists, the folks that are most directly impacted, the legislators in Congress and on the state level and municipal levels, are all working together to get this done.’”
On March 22, the nongovernmental advocacy group ERA Coalition issued a release in which it touted activity in some state legislatures, intended to advance its claims that the ERA remains a viable proposition. It mentioned a number of Democrat-controlled state legislatures in which resolutions have been introduced “affirming the Equal Rights Amendment as the 28th Amendment to the Constitution.”
NRLC’s Johnson commented, “A few state legislatures may pass resolutions endorsing the legal fantasy that the ERA has been ratified, but there is an unbroken chain of federal court decisions, going back 41 years, that say the ratification deadline was constitutionally valid and that the ERA expired unratified. As recently as February 28, a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia rejected a lawsuit by Illinois and Nevada, seeking a ruling that the ERA has been ratified.”
The ERA Coalition release also said, “Twelve states have not yet ratified the ERA, but this could change soon with ratification bills being recently introduced in Arizona, Florida, Georgia, and North Carolina.”
Johnson commented, “None of the resolutions introduced in the non-ratifying states will be approved– and even if one were approved, it would be meaningless, since the ERA has not actually been available for ratification since it expired in March, 1979.”
The House measure that purports to make the ERA part of the Constitution, H.J. Res. 25, is sponsored by Rep. Pressley. As of April 2, Pressley’s measure had 179 co-sponsors. So far, however, it has attracted co-sponsorship from only one of the chamber’s 222 Republicans – Congressman Brian Fitzpatrick of Pennsylvania.
Pressley vigorously champions the position that the ERA, if inserted into the federal Constitution, would invalidate limitations on abortion nationwide.
“We need to use every tool at our disposal to protect and expand abortion access—one tool is the ERA,” Pressley said in an interview published by Jezebel (March 9, 2023) that ran under the headline “The ERA Could Expand Abortion Rights.”
Backers of Pressley’s ERA-promoting measure have stated that they will employ a “discharge petition” to attempt to force it to the House floor for a vote. Because the Republicans currently hold majority control of the House by a five-seat margin (222-213), at least five Republicans would have to sign the discharge petition, in addition to every Democrat, for it to be successful.
HYDE-SMITH COUNTER-ERA RESOLUTION
The ERA Resolution submitted to the states by Congress in 1972 contained a seven-year ratification deadline that expired on March 22, 1979.
In the Senate, Senator Cindy Hyde-Smith (R-Miss.), who chairs the Senate Pro-Life Caucus, on March 15 introduced a resolution (S. Res. 107) that cites court rulings and other legal authorities in support of the conclusion that the Democrats’ attempt to resuscitate the 1972 ERA is unconstitutional.
In a March 15 release, Hyde-Smith said, “The law and the facts outlined in this resolution are clear. Congress has no authority to go back in time to revive a failed constitutional amendment, which makes the current push to ratify the Equal Rights Amendment wrong on its face. Beyond the illegitimacy of trying to resurrect the ERA, we cannot ignore the very serious effects adding the ERA to our Constitution today would have on abortion, religious liberty, protections for women, and more.”
As of April 3, Hyde-Smith’s resolution had drawn 17 co-sponsors, all Republicans. In alphabetical order by state, they were: Boozman (Ark.), Cotton (Ark.), Rubio (Fla.), Risch (Idaho), Braun (Ind.), Marshall (Kans.), Moran (Kans.), Kennedy (La.), Cassidy (La.), Ricketts (Neb.), Vance (Ohio), Lankford (Okla.), Mullin (Okla.), Graham (SC), Cruz (Texas), Lee (Utah), and Barrasso (Wy.).
HALF-CENTURY BATTLE
The ERA Resolution was originally submitted to the states by Congress in 1972 with a seven-year ratification deadline. NRLC and other pro-life groups have long opposed the 1972 ERA, based on recognition that it could be employed as a constitutional foundation for legal attacks on pro-life laws and policies, and to buttress legislation advancing abortion and attacking pro-life conscience rights.
The ERA expired on March 22, 1979, after being ratified by only 35 of the 38 states (three-quarters of 50) necessary to become part of the Constitution. Moreover, four of the 35 ratifying legislatures had formally acted to rescind (withdraw) their ratifications before the deadline.
However, after failing in attempts to re-start the amendment process in Congress in 1983-1984, ERA advocates in December 1993 developed what they called “the three-state theory.” The theory, which has morphed into variant forms, generally postulates that ratification deadlines are unconstitutional, or unconstitutional unless they take a certain form, or that the ERA’s deadline could be removed retroactively by any later Congress. The theory also asserts that rescissions are not allowed.
After decades of failed attempts by ERA-revivalist forces, state legislatures in Nevada (2017), Illinois (2018), and Virginia (2020) finally adopted “ratification” resolutions based on such premises.
However, in January 2020 the Justice Department’s Office of Legal Counsel, which provides binding legal guidance for Executive Branch agencies, issued a legal opinion stating that the ERA had expired in 1979. On that basis, the Archivist of the U.S., at that time David Ferriero (an appointee of President Obama), refused to certify the ERA as part of the Constitution, saying that he would do so only if so directed by “a final court order.”
Three Democratic attorneys general then sued Ferriero to try to force him to certify the ERA. Meanwhile, ERA advocacy groups tried but failed to pressure the Justice Department into reversing its position on whether the ERA had been ratified.
In March 2021, federal Judge Rudolph Contreras (appointed by President Obama) ruled that the deadline contained in the 1972 ERA Resolution was constitutional, that it would have been “absurd” for the Archivist to ignore it, and that the legislative actions by Nevada, Illinois, and Virginia “came too late to count.” Judge Contreras dismissed the pro-ERA lawsuit, but the attorneys general of Illinois and Nevada appealed to the D.C. Circuit.
On February 28, a three-judge panel of the D.C. Circuit unanimously ruled against Illinois and Nevada. The court refused to order the Archivist to certify the ERA, and upheld Judge Contreras’ dismissal of the lawsuit.
The panel specifically repudiated a key legal theory of the ERA-revival movement – that the ERA’s deadline was ineffective because it appeared in the “proposing clause” of the ERA Resolution (which they usually refer to, inaccurately, as a “preamble”). The panel said that claim was “unpersuasive” because a key element of “every amendment in our nation’s history would also be inoperative” if it were true. (Not every proposed constitutional amendment has contained a deadline, but every one has contained a binding proposing clause, which instructs the states whether to ratify by legislatures or state conventions.)
The ruling was written by Judge Robert Wilkins, an appointee of President Obama, joined by Judges Michelle Childs (Biden) and Neomi Rao (Trump).
ERA Coalition President Zakiya Thomas told a reporter for Capital New Service, “So if you read the court decision, what they actually say is, ‘Congress it’s now up to you to make the choice to do the thing that you need to do to get the Equal Rights Amendment over the finish line.” Johnson called Thomas’ characterization of the ruling “pure invention—laughable, really.”
“The ERA-revivalists have run up an unbroken 41-year string of defeats in the federal courts,” Johnson said. “Pro-ERA litigants have presented their shoddy theories before six federal courts, with a total of 29 federal judges. They have not gained a single vote, from a single judge, on a single one of their implausible constitutional claims. Of these 29 judges, 15 were appointed by Republican presidents and 14 by Democratic presidents, with the most recent cases decided mostly by Democratic appointees.”
In addition to pressing for congressional approval of the joint resolutions that they claim would “complete” the ERA ratification process, activist groups continue to demand that President Biden order the Archivist to certify the ERA as part of the Constitution, notwithstanding he uniformly adverse federal court rulings. During speeches on the House floor on March 27, both Rep. Bush and recently elected Rep. Jennifer McClellan (D-Va.) made appeals to “publish the ERA.”
RESOURCES
For much more detail on the history of the ERA-abortion connection, the “three-state strategy,” the 41-year unbroken string of defeats for ERA-revivalism in the federal courts, and other key components of the ERA issue, please refer to the Special Report on the Equal Rights Amendment published by NRLC on January 23, 2023. Extensive additional documentation on the ERA (including NRLC’s most recent letters to Congress against S.J. Res. 4 and H.J. Res. 25) is available on the NRLC website ERA page at https://www.nrlc.org/federal/era/
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 extensively, for 41 years. Mr. Johnson may be reached at djohnson@nrlc.org.