The Equal Rights Amendment, which some believe could be used to fight for abortion rights, is dead, according to the Justice Department.
The Amendment, which was first introduced in Congress in 1923, states that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” as reported by NPR. Congress finally passed the law nearly fifty years later in 1972 and sent it onto the states for ratification, requiring 38 states to ratify by 1979. Only 35 states ultimately ratified, so Congress extended the deadline to 1982. Still, not enough states signed off.
But in recent years, the ERA has gained traction in several states. Nevada ratified in 2017 and in 2018, Illinois joined them. Virginia has now stepped up to the plate as the 38th state who wants to ratify.
The Justice Department finds this movement irrelevant, however.
“We conclude that when Congress uses a proposing clause to impose a deadline on the States’ ratification of a proposed constitutional amendment, that deadline is binding, and Congress may not revive the proposal after the deadline’s expiration.”
Three other states—South Dakota, Alabama, and Louisiana—have also fought to keep the ERA from inclusion in the Constitution, filing a federal lawsuit against it.
What the ERA would do, should it be ratified by 38 states, is up for debate. Professor of law at Northeastern University, Martha Davis, believes it would protect against “pregnancy discrimination.”
“The Supreme Court has ruled in the past that discrimination against pregnant women is really discrimination against pregnant people, and therefore it doesn’t constitute sex discrimination,” she said. “And I think the Equal Rights Amendment, through its legislative history, as well as its language, would clarify that discrimination on the basis of traits that are sex-specific would be violative of the ERA.”
Conservatives fear that the ERA could loosen the reign on abortion rights. Cathi Herrod, president of the Center for Arizona policy, stated: “Today, courts have interpreted the word ‘sex’ to include one’s gender choice. That changes everything because ‘sex discrimination’ could then eliminate any distinction between male and female, regardless of biological differences…The ERA could enshrine abortion into the Constitution by arguing such a procedure cannot be treated any different than other medical procedures for a man. This not only makes abortion a routine medical procedure, but it could very well roll back any commonsense restriction of abortion.”
But supporters of ERA believe the amendment is not about abortion but instead treating women equally.
“At the level of principle, I think just to send the message out that 200 years after the Constitution was written and women were intentionally left out, we want to correct the record and make it very, very clear at the highest level of our law that women are no longer second-class citizens and should be treated with respect and equality,” said Jessica Neuwirth, president of the ERA Coalition.
The ERA has also experienced rare bipartisan support when seven Republicans joined Democrats to pass the ERA in the Virginia Senate last year.
Legal experts don’t believe that the Justice Department’s opinion will kill the amendment. Many imagine that Virginia will file a lawsuit in hopes of it climbing to the Supreme Court.
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Mikaela Mathews is a freelance writer and editor based in Dallas, TX. She was the editor of a local magazine and a contributing writer for the Galveston Daily News and Spirit Magazine. She blogs at mikaelamathews.com.