Democrats in Congress are giving new impetus to get the nearly century-old Equal Rights Amendment enshrined in the Constitution, rallying around creative legal theory in an attempt to revive an amendment that would explicitly guarantee equality of the sexes as a way to protect reproductive rights. in post-Roe America.
Sen. Kirsten Gillibrand of New York and Rep. Cori Bush of Missouri will introduce a joint resolution Thursday stating that the measure has now been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution establishes that the national archivist, who is responsible for the certification and publication of the constitutional reforms, must do so immediately.
It’s a novel tactic to go after a measure that was first proposed in Congress 100 years ago and passed by Congress some 50 years later, but not ratified in time to be added to the Constitution. Advocates say the amendment has taken on new meaning after last year’s Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization that revoked the right to abortion long guaranteed by Roe v. Wade.
“In light of Dobbs, we are seeing huge discrimination across the country,” Ms. Gillibrand said in an interview. “Women are being treated like second class citizens. This is more timely than ever.”
while almost 80 percent of Americans supported By adding the Equal Rights Amendment to the Constitution in a 2020 Pew Research Center poll, there is little chance the effort will get the 60 votes needed to overcome a Republican filibuster in the Senate. But the Democrats’ push is their latest effort to highlight the GOP’s opposition to entitlement measures with broad voter approval and to call attention to the party’s hostility to abortion rights, which hurt Republicans. in the midterm elections.
“This is a political fight rather than a legal one,” said Laurence Tribe, a constitutional scholar and professor emeritus at Harvard Law School. “It would only succeed in a different environment than the one we have. It’s not going to happen. The real question is what political message is being sent. In a political environment like this, you throw everything you can at the wall.”
This is the second attempt by Democrats this year to advance the Equal Rights Amendment; in April, Senate Republicans blocked a similar resolution that sought to remove a past deadline for states to ratify the amendment. Only two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, voted in favor of the resolution.
Now, Ms. Gillibrand and Ms. Bush are trying a different approach: they simply ignore the issue of the expired ratification deadline altogether and introduce a resolution arguing that the ERA is already the law of the land.
“This is an opportunity to start over with legitimate legal theory that has a basis in constitutional law,” Ms. Gillibrand said, noting that the reference to the deadline was in the preamble, not in the text of the amendment. per se. “I think President Biden can do this. I’m going to make the legal and political case over the next few months that this is something he can do.”
Ms. Bush, one of the founders of the ERA House caucus, said “for us, it’s done. The ERA is the 28th Amendment. We just need the archivist to post it.”
At issue is the complex procedure to add an amendment to the Constitution, which requires the approval of both houses of Congress and the ratification of three-quarters of the states, in this case, within a period of seven years. Congress passed the Equal Rights Amendment in 1972 and later enacted a law extending that term to 10 years. But by 1982, only 35 states had ratified it. Since then, three more states — Nevada, Illinois and Virginia — have ratified the amendment, exceeding the threshold, but a few others have rescinded their ratifications.
That has left the amendment in legal and political limbo, its fate in the hands of Congress and the courts.
Russ Feingold, the former Wisconsin senator who serves as president of the American Constitution Society, said he supported the Democrats’ new strategy.
“For the institution that really put this limitation on the deadline to say, ‘It doesn’t really matter’ is really significant,” Mr. Feingold said. “The White House and members of Congress are beginning to see that credible legal scholars are saying that this is already part of the Constitution.”
There is nothing simple or clear about the constitutional amendment process, and legal experts said that each of the amendments to the Constitution has taken a unique path to ratification. Amendment 27, which states that members of Congress cannot raise or lower their salaries in the middle of their terms, languished for more than 200 years before it was ratified.
But Democrats are more eager than ever to reinvigorate the amendment after Dobbs’ decision. The key section of the amendment, at just 24 words, “is packed with potential to protect access to abortion care across the country, defeat bans on gender-affirming health care, shore up marriage equality, eliminate the gender pay gap, help end the epidemic of violence against women and girls, and much more,” said Ms. Bush. “We have to keep pushing him. We cannot be victims of the Republican agenda.”
Ms. Bush and other Democrats argue that the ability to control the reproductive system is essential to equality in the workplace and in public life.
Those arguments have prevailed in some states, where parties have used statewide equal rights amendments to remove restrictions on reproductive care.
In New Mexico, the state supreme court struck down a state law that prohibited funding for abortion-related services, citing the state’s Equal Rights Amendment that “allows for equal rights for persons regardless of sex.” In Pennsylvania, advocates and providers are suing the state for banning Medicaid funding for abortion, arguing it is a violation of the equal protection provisions of the state constitution.
“In 2023, we must move to ratify the ERA with all due haste because if you look at the terrible things happening with women’s rights in this country, it’s clear that we must act,” said Senator Chuck Schumer, Majority Leader, in April, when the Senate first took up the issue.
But opponents of the measure have argued that the amendment is no longer valid because 38 states failed to ratify the ERA by the deadline. There is also the complex legal question of whether to count states that have since rescinded their ratifications.
Republicans have generally opposed the measure as free, arguing that equal protection for women is included in the 14th Amendment. But they also conceded that passing the amendment could provide a new legal basis for protecting abortion after the repeal of gnaws.
“The ERA could embed a supposed abortion right in the Constitution itself,” Emma Waters, a research associate at the conservative Heritage Foundation, wrote earlier this year. She added: “To protect the lives of women and their unborn children, lawmakers must oppose the National Equal Rights Amendment.”
Ms. Gillibrand admitted that she did not think Republicans would ever support the amendment, “largely because the pro-life movement has hijacked this argument,” she said. She said her hope was to force Mr. Biden to ask the filing clerk to take action, or to change the filibuster rules in the Senate so that civil rights measures like the amendment only need a simple majority, not 60 votes, to pass. advance. .
Even if the resolution proves to be nothing more than a messaging exercise, some advocates said it was still significant.
“It’s significant that Congress takes some kind of action to keep the ERA alive,” said Katherine Franke, a Columbia University law professor and faculty director at her ERA Project Research Initiative. “Some people consider that he died in the 1980s. He points out that members of Congress believe that he is still alive and kicking.”