ERA Is Finally Dead

Jan 14, 2020

The Department of Justice (DOJ) has announced that the Equal Rights Amendment (ERA) has failed to reach the necessary number of states to support ratification by its deadline and is no longer pending in the states for action. As the opinion says: “Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.”

Even though the ERA actually died many years ago, the DOJ opinion is timely because abortion advocates have been pushing the false argument that the ERA is still alive and can still be ratified. These advocates have also falsely claimed that the states which ratified the ERA cannot revoke their ratification. 

The ERA has been marketed to Americans as promoting simple “equality” and “putting women into the Constitution,” and mandating “equal pay for equal work.” However, any sex-based distinction in a law would be unconstitutional under the ERA, and a law banning abortion clearly makes a sex-based distinction because only women become pregnant. Since legal abortion has no actual constitutional authority, the three-state ERA ratification process has been an intentional act from activists to place the legal authority for the killing of unborn children into the Constitution, and not to simply rely on the Roe v. Wade and Doe v. Bolton Supreme Court decisions. 

The ERA’s basic language reads, “Equality of rights under law shall not be denied or abridged by the United States or by any State on account of sex.” The ERA was sent to the states on March 22, 1972, ten months before the January 22, 1973 Supreme Court abortion decisions, and would become “part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress.” Following passage by both the House and the Senate, a proposed Constitutional Amendment must be ratified by three-fourths of the States before it becomes the law of the land. The ERA therefore required the support of 38 states. 

In just twelve months, 30 states had ratified it. Fourteen of the states did so without any hearings, committee action, debate, or input from the voters. During 1973 to 1977, five more states ratified the ERA. However, during the same time period, five other states --Nebraska, Tennessee, Idaho, Kentucky, and South Dakota-- withdrew their ratifications. The states that never ratified the ERA were Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. 

The seven-year ratification limit expired on March 22, 1979. This was in accordance with the Supreme Court's decision Dillon v. Gloss, handed down in 1921, which upheld the seven-year time limit on Constitutional amendments in order to reflect the will of the people. But Congress, bowing under radical activist pressure, ignored this standing Supreme Court decision and unconstitutionally extended the ratification deadline another 30 months to September 22, 1981. Despite this unlawful extension, no further states ratified the ERA. 

The deceptive language of the ERA does not allow any distinctions between men and women, even when it makes sense to do so based on their biological differences. As a result, the ERA would have considered all restrictions on abortions as sex discrimination and been used to overturn the partial birth abortion ban, third-trimester abortion ban and parental notice of minors seeking an abortion. It would have been also used to mandate taxpayer funding of elective Medicaid abortions.

Pro-life leader Representative Henry Hyde (R-IL) testified before the 1983 Senate Judiciary Committee hearing on the ERA: “Suppose that the Federal Government provided funding for procedures designed to treat most diseases, but enacted a special exclusion for sickle cell anemia, which affects only black people.  The courts would certainly declare that exclusion unconstitutional. Other laws regulating abortion would be treated similarly.  Conscience clauses … which give doctors and nurses in State-supported institutions the right to refuse to participate in abortions would be treated like laws giving State officials the right to deny services to blacks but not to whites.” 

The ERA would also compel females to compete against males in sports; abolish female privacy in prisons, locker rooms, women’s shelters, nursing homes, and hospitals; subject women to selective service registration and front-line ground combat; end all incentives for women-owned businesses;

end female scholarships; end women-only sports programs; abolish alimony guidelines; end lower auto and other insurance rates for women; and treat any legal distinction based on sex the same as racial discrimination. 

Another serious issue that was not specifically addressed during consideration of the ERA in the 1970s was “transgenderism.” The adoption of the ERA would potentially cement same-sex “marriage” and “transgender rights” into the Constitution to provide a stronger foundation than court opinions. 

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