Experts Tell US Senate the Pro-Abortion Equal Rights Amendment Is Legally Dead

They moved the goalposts when they extended the ratification period in 1972. Now that it's long dead, they're trying to resurrect it.

From LifeSiteNews

By Calvin Freiburger

Even the late, left-wing Supreme Court Justice Ruth Bader Ginsburg had admitted that ERA proponents need to start over.

WASHINGTON, D.C. (LifeSiteNews) –– The Senate Judiciary Committee hosted hearings Tuesday on the policy merits and legal standing of the so-called Equal Rights Amendment (ERA) to the U.S. Constitution, an infamous failed effort to give judicial activists new tools with which to protect abortion-on-demand.

Originally proposed and defeated decades ago, the ERA 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.” But many argue that if implemented, this seemingly-simple yet redundant language would be interpreted as codifying into law non-rights such as abortion and have broad ramifications on everything from the military draft and sex-segregated prisons to women-only restrooms and male-only clergy.

During Tuesday’s hearing before the Democrat-controlled Senate panel, several Republican members and witnesses challenged both the legal ramifications of enacting the ERA and the recurring left-wing push to argue that it is on the verge of ratification because previous state votes affirming it remain valid, despite ratification deadlines having long since expired.

This view was rejected not only by the U.S. Justice Department’s Office of Legal Counsel under former President Donald Trump, but by the late left-wing U.S. Supreme Court Justice Ruth Bader Ginsburg, who despite personally supporting the ERA admitted in 2020 that “a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’”

“Women are already protected from discrimination under the law through the 14th Amendment to the Constitution” and a host of federal laws including “the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Pregnancy Discrimination Act of 1978, and more,” argued Sen. Cindy Hyde-Smith (R-MS), Chair of the Senate Pro-Life Caucus. But the ERA “would only muddy the waters,” including by its failure to “allow for any distinction between men and women – even when it would make sense to do so based on biological differences.”

She further noted that the amendment’s proponents are “no longer shy about their goal” of using it to restore Roe v. Wade and “impose unrestricted abortion on demand up to the moment of birth across the entire nation—and to force taxpayers to pay for it.”

Jennifer Braceras, director of the Independent Women’s Law Center, reiterated that the ERA is unnecessary to secure women’s actual rights and testified that because it does not define the word “sex,” it would play right into the efforts of entities like the Biden administration to replace objective sex distinctions with amorphous notions of “gender identity,” ironically harming women by forcing the enactment of unpopular policies such as “forcing schools to include biological males on women’s sports teams, requiring prisons to allow male offenders who claim to identify as women transfer to women’s facilities, requiring federal funding of puberty blockers for teenagers, opening domestic violence shelters to men who identify as women.”

Florida International University law professor Elizabeth Price Foley made the case that the previous effort to enact the ERA was well and truly dead from a legal standpoint, and that any legitimate effort to revive it would have to begin the amendment process from scratch. She noted that its original lead sponsor, Rep. Martha Griffiths (D-MI), explicitly said that ERA’s ratification deadline of seven years after clearing Congress was specifically included to satisfy critics concerned about the amendment “hanging over our head forever.”

By the time of the deadline in 1979, only 35 of the necessary 38 states had ratified the ERA, Foley explained, though the year before Congress “purported to ‘extend’ the ERA’s ratification deadline by approximately three years,” during which “no additional states” ratified it and South Dakota actually voted to declare its original decision to ratify “null and void” in protest of the deadline extension, which the state saw as Congress attempting “unilaterally to alter the terms and conditions in such a way as to materially affect the congressionally established time period for ratification,” creating the “perpetual possibility of a sudden change in the Constitution of the United States due to a shift of opinion in a small number of states.”

Foley explained that since 2017, three additional states (Illinois, Nevada, and Virginia) have voted to ratify the ERA, which supporters claim makes it part of the Constitution. But “once Congress has proposed a constitutional amendment via Article V, its power under that Article ends. The fate of a proposed amendment thereafter rests with the States, which have the sole power to ratify it via the ‘Mode of Ratification’ specified by Congress” – including the ratification deadline spelled out in the amendment.

“Congress may impose a ratification deadline pursuant to its Article V power and may do so either in the proposed amendment’s text or preamble,” she says, citing judicial precedent. “Once such a deadline is established by Congress, the deadline is judicially enforceable and cannot be altered by future Congresses. If Congress wishes to extend the time for ratification, therefore, it must begin the Article V process anew, proposing a new constitutional amendment, with or without a ratification deadline.”

Last year, President Joe Biden reaffirmed his support for the ERA and urged Congress to “act immediately to pass a resolution recognizing ratification,” citing claims by the Office of Legal Counsel under his administration that “Congress is entitled to take a different view on these complex and unsettled questions” than the one taken by the office under Trump.