The just-adjourned session of the Virginia Legislature turned the Old Dominion into the latest battleground in an effort begun two years ago to force the Equal Rights Amendment (ERA) into the federal Constitution. Although when proposed by Congress in 1972, ERA contained a provision requiring ratification within seven years, the amendment won no ratifications after March 1975. Congress even tried to put ERA on artificial life support, voting in 1978 to extend the ratification period another three years, yet despite extraordinary means to prolong its life, ERA died with no additional ratifications.
The Zombie Amendment is back. This is one DNR that ERA’s proponents won’t honor. Shortly after the 2016 elections, advocates launched an effort to force a political confrontation over the amendment. The increasingly blue State of Nevada ratified ERA in 2017, Illinois in 2018. Purple Virginia was the target this year: ERA “ratification” passed the State Senate but was bottled up in the House of Delegates. In February, an attempt by Democrats to force a full house vote failed by one vote, and the session has now adjourned for the year (though not without threats that the vote would be used to “make legislators pay” in statewide elections this fall).
Proponents hoped to be able to claim that Virginia’s ratification—it would have been the 38th state to approve ERA—would meet the Constitutional requirement that three-quarters of the States ratify an amendment in order for it to succeed.
Rarely, however, do proponents mention the details. There is no guarantee that Virginia’s approval would trigger the amendment’s passage, because five of those 38 states subsequently rescinded their ratifications before the process was complete. To count those states as approving an amendment they in fact ultimately rejected would be dishonest.
Then there’s the problem of those pesky ratification deadlines: ERA has missed not one but two (if you treat the 1978 Congressional extension of ERA’s lifespan as valid, something I cite dato non concesso). ERA proponents would like us to ignore two Supreme Court precedents—one almost a century old, the other 80 years old—and declare that the explicit text of the resolution that put ERA before the states didn’t mean what it said and/or even if it did, it doesn’t matter. Not all Supreme Court “super precedents” are apparently created equal.
Those pushing ERA will invoke the 27th Amendment, a “sleeper” that regulates how Congress can raise its pay. Submitted as part of the original Bill of Rights in 1789, the 27th Amendment never gained sufficient ratification in the 18th century, and lay dormant until it was rediscovered in the 1980s. Two salient facts, however, differentiate this amendment from ERA: The former never had any time limit attached to its approval and, as far as this author knows, no state ever rescinded its ratification. In fact, 46 of the 50 states have at one time or another approved the 27th Amendment.
ERA proponents are hoping that the media narrative over the approval process will be political, not legal, even if it is fought out in the courts. It will undoubtedly be painted as a fight “against discrimination” and for “basic rights.” In a “heads I win, tails you lose” approach, the narrative would probably play out this way: If the courts find ERA valid, we need to obey judicial rulings; if they find ERA invalid, it’s proof the federal judiciary today is “politicized,” all the more reason to “protect” the Court by packing it.
And don’t doubt abortion lies in the background here.
Abortion proponents are concerned that recent U.S. Supreme Court appointments could imperil Roe v. Wade. Finally aware that he who lives by “raw judicial power” (to quote Justice Byron White’s dissent in Roe) will die by “raw judicial power,” advocates are looking for new ground in which to anchor the abortion liberty they believe is suddenly endangered. ERA arguably could provide such ground.
Now many abortion supporters will contend that since ERA says nothing about abortion, the argument that the amendment could be used to codify the abortion liberty in the Constitution is a chimera. Well, the legislative history of ERA is ambiguous. The amendment was proposed at a time when states could still regulate abortion, and it is arguable that it would not have passed by the lopsided majorities it did in 1971-72 if most legislators in Washington thought it affected abortion legislation. Furthermore, some of the same states that ratified ERA also approved resolutions calling on Congress to propose a Human Life Amendment to overturn Roe—it’s telling that ERA began running into ratification problems within three months of Roe.
As the late Justice Antonin Scalia pondered about legislative history (and Justice Neil Gorsuch about history in general in his book, The Future of Assisted Suicide and Euthanasia), how is legislative intent to be identified? Where do we find it? In the thinking of the members who wrote the bill? The committee that approved it? The sentiments (however we ascertain those) of the Congress that passes the legislation?
History can be a tenuous reed on which to attach one’s hopes, because it has always been a malleable construct in Supreme Court abortion jurisprudence. As the late Justice William Rehnquist observed in his (underappreciated) dissenting opinion in Roe, the states that ratified the 14th Amendment also prohibited abortion, and the same Congress that wrote that Amendment also adopted abortion restrictions for U.S. territories. So how did the Court conjure up an abortion liberty in it?
Whatever we might divine about the understanding of the relationship of abortion and ERA in 1972, there is no denying that it is a mainstream dogma de fide definata of pro-choice feminism that abortion restrictions uniquely impact women and thus violate a woman’s basic rights. That was indeed the ultimate rationale of Casey v. Planned Parenthood: Roe “define[s] the capacity of women to act in society” (505 US 833 at 924). ERA would elevate “sex” as a protected constitutional category in a way that any distinction based on sex would be automatically suspect, the burden of proof falling upon the state seeking to defend it, not the plaintiff attacking it.
Anybody who doubts this should return to New Mexico Right to Choose et al. v. Johnson et al. (975 P.2nd 841; 126 NM975 www.reproductiverights.org/sites/crr.civicactions.net/files/documents/NM%20supremem%20court%20decision%2011-25-98.pdf ). In that 1998 decision, a unanimous State Supreme Court held that New Mexico’s ERA made state-imposed restrictions on Medicaid payments for abortion unconstitutional because “it results in a program that does not apply the same standard of medical necessity to both men and women, and there is no compelling justification for treating men and women differently with respect to their medical needs in this instance.” This decision clearly shows how a state ERA could be used to reach a constitutional conclusion on abortion opposite to what the U.S. Supreme Court arrived at in Harris v. McRae (448 US 297) when it upheld the constitutionality of the federal Hyde Amendment.
As long as unborn children are constitutional non-entities—provided occasional lip service about a state’s “interest” in their “potential life”—while abortion remains a constitutionally guaranteed liberty, the burden of proof will always be skewed for finding in favor of “a woman’s right to choose.”
ERA would lock that perspective into the Constitution, codifying the abortion-on-demand-up-until-birth perspective of Roe while also calling into question any state laws (parental notification or consent acts, waiting periods, clinic standards and hospital admittance requirements, etc.) that might “burden” that liberty.
Prolifers should be aware of the stealth campaign being waged to lock abortion into the Constitution. Absent explicit guarantees in ERA that “nothing in this Amendment shall be construed to apply to the question of abortion”—guarantees that could not be made without restarting the whole amending process and which this author suspects its proponents would be unwilling anyway to make—pro-life Americans should not be deceived into finding out ERA’s implications for abortion after the amendment is approved.