Feminist groups push for ERA's addition to Constitution as pro-life groups insist it's dead

By Ryan Foley, Christian Post Reporter Wednesday, January 26, 2022

Feminist groups are urging the Archivist of the United States to publish the Equal Rights Amendment as the 28th Amendment to the Constitution while pro-life organizations insist that the ERA is dead. 

In a statement Friday, the National Organization for Women announced that it was one of several feminist organizations participating in a virtual press conference on Thursday, which is the day they argue that the Equal Rights Amendment should take effect. Thursday marks the second anniversary of Virginia’s ratification of the ERA, which made it the 38th state to approve the amendment.

Speakers at the press conference will include Sen. Ben Cardin, D-Md., Rep. Carolyn Maloney, D-N.Y., Carol Jenkins of the ERA Coalition and Fund for Women’s Equality, Christian Nunes of the National Organization for Women, Eleanor Smeal of the Feminist Majority Foundation, Donna Lent of the National Women’s Political Caucus and Sophia Armen of the Feminist Front. 

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The Equal Rights Amendment, billed by supporters as a necessary step to enshrine equal rights for women in the Constitution, was approved by Congress in 1972 but failed to take effect because three-fourths of the states did not ratify it by the seven-year deadline imposed by Congress. The U.S. House of Representatives approved the ERA by a vote of 354-24 in 1971, far exceeding the two-thirds majority required for passage. The Senate followed suit in 1972, approving the ERA by a vote of 84-8. 

From there, the ERA went to the states for ratification. While 35 states had approved the ERA at the time of its 1979 expiration, which was later extended to 1982, that number fell short of the 38 required by the Constitution for the amendment to take effect. Many conservatives attribute the defeat of the ERA to the efforts of the late conservative activist Phyllis Schlafly.

As political commentator Ann Coulter explained in an obituary she wrote for Schlafly upon her death in 2016, “When Schlafly turned her attention to the E.R.A., no reasonable person would have supposed that the amendment could have been stopped.” She recalled that “Thirty states had approved it in the first year after it was sent to the states for ratification. Only eight more states were needed, within the next seven years.” 

“There was little question that the E.R.A. was about to become our next constitutional amendment,” she added. Coulter pointed to Schlafly’s concerns that the ERA would “end the female exemption from the draft” as her strongest argument that resonated with the American people.

The push to ratify the ERA has gained a resurgence in recent years. Three additional states have ratified the ERA in the past decade: Nevada, Illinois and Virginia. 

The attorneys general of those states have filed a lawsuit asking the Archivist of the United States to add the Equal Rights Amendment to the Constitution as the 28th Amendment. The press conference will take place two weeks after the groups participating in the press conference and other feminist organizations filed an amicus brief supporting the lawsuit.

“Publication by the Archivist is an important step forward. To be sure, the legal effect of an amendment does not depend on any action by the Executive Branch, which has no role to play under Article V,” the brief states. “But the Archivist’s current refusal to publish the ERA is itself  an inappropriate intrusion of the Executive Branch into the ratification process.” 

Signatories to the amicus brief made a series of statements elaborating on their point of view that the ERA is still valid. “There is no time limit on equality,” said Jenkins. “Supporters of the ERA have fulfilled all the requirements set forth for an amendment in the Constitution so the time is now to publish the 28th amendment.”

“This amazing amicus brief reviews the nearly 100 years of feminist struggle for the ERA as well as its need, relevance, and popularity today,” explained Smeal. “It clearly makes a strong case that the ERA has met the requirements for adoption and should be certified and published in the Constitution by the National Archivist.”

Last year, the House of Representatives approved a measure that would have removed the ratification deadline from the original ERA on a largely party-line vote, but the bill failed to pass the Senate. In addition to the lawsuit filed by the attorneys general of the most recent states to ratify the ERA, feminist organizations sought relief from the courts in a separate legal challenge. So far, the judicial branch has ruled against their efforts to force the archivist to add the ERA to the Constitution. 

While 38 states, equivalent to three-fourths of the total, have approved the ERA at one time, five states voted to rescind their ratification of the ERA, further calling into question the insistence that three-fourths of the states have signed onto the constitutional amendment. Supporters of the ERA have dismissed the reversal of the ratifications, which occurred during the 1970s, as a “political nullity.” 

The National Right to Life Committee, a pro-life organization that views the ERA as an effort to insert the right to abortion into the Constitution, pushed back on the analysis offered by the amendment’s proponents. “The measure is manifestly unconstitutional — its premise is that it is possible to amend the Constitution with bait-and-switch tactics executed across generations, without a single Congress ever agreeing, by the required two-thirds votes, on the same legislative proposal,” asserted NRLC’s Doug Johnson.

The National Right to Life Committee had previously warned about the ERA’s implication for abortion law in the U.S. in a report published early last year. Specifically, the pro-life group expressed concern that pro-abortion groups were deploying the ERA as a “constitutional stealth missile” to “air-drop into the U.S. Constitution a provision that they believe, and pro-lifers fear, could be used to entrench and expand a constitutional ‘right’ to abortion.”

The pro-life organization cited a quote from NARAL Pro-Choice America maintaining that “With its ratification, the ERA would reinforce the constitutional right to abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate both the constitutional right to privacy and sexual equality.” According to Johnson, “The ERA is a stealth missile with a legal warhead that could be used to attack any federal, state, or local law, that in any way limits abortion.”