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Virginia withdraws from legal battle to get ERA added to US Constitution

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Children use protest signs to build a wall while taking part in the Women's March to protest Donald Trump's inauguration as the 45th president of the United States close to the White House in Washington, January 21, 2017. |

Virginia has pulled out of a legal battle to get the Equal Rights Amendment added to the U.S. Constitution, an amendment pro-life activists fear would constitutionally cement legal access to abortion and create obstacles for religious freedom.

Virginia Attorney General Jason Miyares, who is part of the new Republican-led executive branch that took office last month, withdrew on Friday from an appeal seeking to compel certification of the ERA.

Proponents of the litigation claimed that when Virginia became the 38th state to pass the ERA in 2020, the amendment had garnered the support of the necessary number of states to take effect even though the ratification deadline had expired decades ago.

Judge Rudolph Contreras, appointed to the bench by former President Barack Obama, disagreed with their analysis and dismissed the case last March. 

Christopher Schroeder, an assistant attorney general with the Biden administration’s Office of Legal Counsel, agreed that the deadline had passed for the ERA’s ratification. Miyares’ office cited the opinions of the Democrat-appointed legal scholars as justification for pulling out of the lawsuit.

“Considering that a Democrat appointed judge, and the Biden administration all concluded that the deadline to ratify the ERA passed decades ago, Virginia will no longer participate in the ERA lawsuit with Illinois and Nevada,” said Victoria LaCivita, Miyares’ communications director, said in a statement to The Washington Post.

“Any further participation in this lawsuit would undermine the U.S. Constitution and its amendment process,” she added.

First conceived in the 1920s, the U.S. House of Representatives approved the ERA in 1971, followed by the Senate in 1972.

After securing the required two-thirds support from both houses of Congress, the ERA went to the states for ratification. To take effect, the ERA needed to receive support from three-fourths of the states, the equivalent to 38 out of 50, within a seven-year deadline. The deadline was eventually extended to 1982.

The proposed amendment stated 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.” Although the ERA failed to get the necessary 38 states for ratification by 1982, three states, including Virginia, recently passed the amendment, concluding that the deadline was not an issue. Nevada ratified the amendment in 2017, and Illinois approved the ERA in 2018. 

While supporters of the proposed constitutional amendment see it as a necessary measure to enshrine equal rights for women into the Constitution, critics warn of its implications for religious liberty.

For example, the National Right to Life Committee has argued that the ERA was a “constitutional stealth missile” to make abortion permanently legal.

“The ERA is a stealth missile with a legal warhead that could be used to attack any federal, state, or local law or policy that in any way limits abortion,” stated Douglas D. Johnson, an NRLC senior policy adviser, in 2021.

“Pro-abortion advocates failed under the constitutional amendment process provided in Article V of the Constitution — the ERA expired unratified over 40 years ago — so now they are attempting to achieve their goal by brazenly political means, hoping to cow the courts into ignoring the flimsiness of their constitutional claims.”

Additionally, Mat Staver of the Christian conservative legal nonprofit Liberty Counsel expressed concern in a previous interview with The Christian Post that the ERA could “be used as a hammer against religious organizations, including churches, to provide abortion or abortion-inducing drugs or devices” and “include an LGBT agenda that would conflict with churches and religious organizations with respect to biblical doctrines and beliefs of male and female in uniquely created and complementary sexes.”

The lawsuit Virginia has just withdrawn from is not the only legal effort to get the ERA added to the Constitution.

In 2020, the feminist groups Equal Means Equal and the Yellow Roses joined a Massachusetts woman named Katherine Weitbrecht in filing a lawsuit against the National Archivist of the United States, David Ferriero, over his refusal to add the ERA to the U.S. Constitution.

In late June 2021, a three-judge panel of the U.S. Court of Appeals for the First Circuit issued a unanimous ruling against the groups, arguing that they lacked the standing to sue.

“Equal Means Equal and The Yellow Roses do not purport to premise their standing here on any benefit that has been denied to them by the challenged actions of the defendant in the way in which the plaintiffs in those three cases did,” wrote First Circuit Judge David Barron on behalf of the panel, affirming a lower court decision.

“They instead premise their standing on the risk of harm that they contend they face because of the Archivist’sfailure to publish the ERA. Thus, those precedents fail to support the conclusion that the plaintiffs plausibly assert the requisites for standing.”

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