ERA: Last Chance for Abortion-on-Demand

ERA proponents have always played a two-faced game regarding its connection to abortion.

Two writers have flagged something much of the political class dances around with pirouettes that would make the Juilliard School jealous: the Equal Rights Amendment (ERA) is pro-abortion. They quote Senate Majority Leader Chuck Schumer (D-NY) who, in remarks on the Senate floor April 27, made the pro-abortion nexus of the ERA clear.

The Senate was taking up a resolution purportedly to declare the ERA part of the Constitution and retroactively to remove the seven-year ratification deadline Congress set when it proposed the amendment in 1972, which expired in 1979. Congress at that time attempted artificial reanimation of the ERA by giving it another three years to make it over the ratification goalpost; but even with extraordinary (and probably unconstitutional) means to prolong her life, Lazarus ERA arguably died a second death in 1982. 

Through a series of four contrived arguments—any one of which would be lethal to the ERA—advocates believe that, the letter of the law notwithstanding, the ERA never died and could be ratified today. More on that later.

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Schumer knew that the Senate would fail to reanimate the ERA April 27—because he would never get the 60 votes needed to close a filibuster.  

… [W]e should move to ratify the ERA with all due haste because, if you look at the terrible things happening to women’s rights in this country, it is clear that we must act. To the horror of hundreds of millions of American people, women in American have far fewer rights today than they did even a year ago. The protections of Roe v. Wade are gone, thanks to the MAGA majority on the Supreme Court. Over a dozen states have near-total abortion bans and millions of people have to travel hundreds of miles just to access reproductive care. This is sickening.

It’s clear the senior senator from New York believes the amendment he wants to resurrect can also resurrect Roe v. Wade. Roe’s fundamental problem was always that it grounded hyper-judicial oversight of abortion law but was never really able to tell us just from where in the Constitution all this detailed scrutiny derived. ERA proponents no doubt hope the amendment would give them a new, plausible textual ground to take a stab at bringing back Roe. We know that ERAs in state constitutions were used to impose abortion and even public funding of abortion.

ERA proponents have always played a two-faced game regarding its connection to abortion. When challenged about its implications for abortion, many advocates simply denied the amendment had anything to do with it. But the mendacity of that position became apparent when opponents challenged them to put their votes where their mouths were: if the ERA was truly agnostic about abortion, then presumably you would not object to writing that into the text of the amendment to be absolutely clear? One sentence, like “Nothing in this amendment shall be construed as applying to the question of abortion,” is all that was needed. Pretty simple.

Of course, that would never happen.

“Feminists” would balk if their Trojan horse were gelded, and ERA opponents would never vote for the amendment without that “anti-abortion affirming surgery.” So, in today’s world, neither side would be able to garner the two-thirds vote needed to do what nobody other than the late Justice Ruth Bader Ginsburg recommended: starting the process over again and sending a new ERA back to the states. “Feminists” would balk if their Trojan horse were gelded, and ERA opponents would never vote for the amendment without that “anti-abortion affirming surgery.”Tweet This

That’s why, through hook or crook, there is an incessant effort to pretend that the ERA is the Zombie Amendment: it can never die. It can and, in fact, has become part of the Constitution. That just needs to be said aloud.  

One has to maintain that viewpoint if one has any hope of using the ERA as a wedge to nail abortion into the Constitution. [I wouldn’t even raise a parallel issue: does the word “sex” in the ERA mean the same thing today that it did to those who voted for it in 1972, when nobody talked “gender?”]

I said above that there were four reasons, any one of which alone would be lethal, why the ERA died. What are they?

First, that Congress can unilaterally change the terms on which it proposed an amendment to the states after the fact and can do that by a simple majority vote, even though the joint resolution which put the ERA to the states on those conditions required a two-thirds vote.

Second, that any state which ratified but then withdrew its ratification before the ratification process was over could not do so. Ratification is perpetual and irreversible, even while the process is underway. Five states subsequently rescinded their ratifications before the 1979 deadline, but Congress would pretend those states must be counted among the 38 ratifying states.

Third, any state that made the validity of its ratification coterminous with the seven-year period for ratification cannot be allowed to do so. Congress can change the terms, but states cannot bind Congress under pain of their ratifications expiring to abide by those terms.

Fourth, even though the joint resolution proposing the amendment set a 1979 ratification deadline was still in force when they acted, the three states that purported to “ratify” ERA after 2016 nevertheless validly approved the amendment.

Congress started fixing a seven-year limit for ratification of Constitutional amendments around the time Prohibition was adopted, and the Supreme Court upheld its right to do so. But what people tend to overlook in that Supreme Court decision is its logic.

Amending the Constitution is extraordinarily difficult: you need 67 of 100 senators, 290 of 435 representatives, and 38 of 50 states (which means a majority of at least 75 state legislative chambers) to say “yes.” That presupposes an overwhelming consensus to do something as profound as changing the supreme law of the land.

Can one say that consensus exists in 2023? By counting states as “ayes” which subsequently said “nay?” By one side—Congress—changing terms of the debate? By ignoring what is written in black and white in the law and then saying attempted ratifications that ignored it are valid?

In his remarks, Schumer added that “[t]here is no good reason—none—for this Chamber…to bind itself to limitations set 50 years ago.” Well, why should we then count as valid for our consensus today the votes of senators and congressmen from 51 years ago, none of whom currently sits in Congress and most of whom are dead? Why this selective treatment of what counts from 50 years ago…and what doesn’t?

Because we gotta get the pro-abortion ERA into the Constitution, and this is our last chance.

As I noted, before 1918, Congress did not usually set ratification limits. The fact that it didn’t set them then, however, doesn’t mean when it did set them, we could ignore or change them.  

Conservatives did themselves no favor when, on the basis of a campaign by a college senior in the 1980s, states revived one of the two amendments to the Bill of Rights that was not approved in the 1790s but which were not capped by a ratification limit. That campaign, which became the 27th Amendment, ratified a dormant amendment that forbade Congress from giving itself a raise: any raise could only take effect in the next Congress, after an election.

In this author’s opinion, the 27th Amendment was one of those useless conservative efforts to cut one’s nose to spite one’s face. Given incumbent retention, the 27th Amendment is practically meaningless. While it was legally capable of ratification because—unlike the ERA—there was no Congressionally-imposed time limit for its approval—by adopting a useless amendment, the Right undermined the precedent of contemporaneity.  

Let’s just engage in a thought experiment. If the 27th Amendment had had a limit and states nevertheless began approving it in the 1980s and 1990s, would Congress then have said “OK, the amendment was adopted by people dead for two centuries, but their votes count?” I doubt it.

In any case, the ERA had a deadline. It passed. The ERA is dead.  

[Photo Credit: Getty Images]


  • John M. Grondelski

    John M. Grondelski (Ph.D., Fordham) is a former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are his own.

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