KEY VOTE: “NO” ON RATIFYING THE EQUAL RIGHTS AMENDMENT

The Senate will soon vote on Senator Benjamin Cardin’s (D-Md.) S.J.Res.4, which would deem the proposed Equal Rights Amendment of 1972 (ERA) as ratified, despite the fact that the required two-thirds majority of states needed for ratification failed to do so before the amendment’s ratification deadline passed. The ERA, which would have amended the Constitution claims to enshrine equal protection under the law on the basis of sex, but in reality would have a disastrous impact on pro-life causes by creating new legal grounds for both a national “right” to abortion and required taxpayer funded abortion.

For decades, the radical Left has pushed for Congress to create a potential constitutional crisis and deem the ERA ratified as a means towards advancing their pro-abortion agenda. As the Heritage Foundation’s Tom Jipping has written, “In 1975, the National Women’s Conference directly linked the ERA with ‘reproductive freedom’ and, four years later, the National Advisory Committee for Women said that the ERA would require taxpayer funding of abortion.” Justice Ruth Bader Ginsberg also argued that the so-called right to abortion would be stronger if it were grounded in equal protection on the basis of sex.

The fictitious “right” to an abortion established by Roe v. Wade incorrectly relied on an implicit constitutional right to privacy, which is why the Supreme Court overturned it last year as part of its decision in Dobbs vs. Jackson Women’s Health Organization. However, if the ERA is passed, a future court could use it as grounds to re-invent the right to an abortion under the equal protection the ERA provides on the basis of sex, and could even require that if the government subsidizes the cost of medical procedures (which it currently does through many programs), it must include abortions to avoid discriminating against women.

The ERA is an almost guaranteed pathway for direct taxpayer funding for abortions. Alexis McGill Johnson, acting president and CEO of Planned Parenthood has basically stated as much: “There are no equal rights for women without access to abortion, plain and simple.” Planned Parenthood already receives over 40% of its funding from government reimbursements and grants, and the ERA is likely to lead to those dollars being spent directly on abortions.

For the pro-abortion Left, creating a new constitutional avenue for overturning Dobbs is the entire purpose of the ERA, as courts have made its purported goal of establishing equal protection under the law on the basis of sex unnecessarily redundant. Well before the ERA was introduced, Courts have interpreted the 14th Amendment to include sex-based classifications. Even progressive champion Justice Ginsberg has admitted that the ERA’s original goal of granting women equal protection in the eyes of the law has been achieved. Courts already understand that the Constitution should be interpreted so that men and women are treated equally under the law, making the ERA wholly unnecessary.

Setting aside the ERA’s threat to unborn babies, Democrats' latest effort to ratify it four decades after its deadline expired is extremely dangerous and constitutionally unsound. Originally, the ERA had a seven year deadline for ratification, which Congress extended for three years in 1978. Even this extension, which occurred before the deadline had expired, is on shaky constitutional ground and the only court that reviewed it struck it down. In order to be ratified, 38 states would have needed to approve the amendment. As of the 1982 final deadline, only 35 had done so. The ERA of 1972 is dead—it failed to pass over 40 years ago.

Yet Democrats have refused to accept this. S.J.Res.4 states that the ERA of 1972 has actually “been ratified by the legislatures of three-fourths of the several States,” even though Congress has no authority to decide if a proposed constitutional amendment has been ratified. The argument relies upon the fact that three states ratified the ERA after the 1982 deadline, but it conveniently ignores the fact that five of the original ratifying states have rescinded their ratification in the years since.

By the Democrats’ own standards, their resolution is logically unsound—they believe states can vote to ratify the ERA after the deadline, but cannot vote to rescind their ratification post-deadline. But even more importantly, by the Constitution’s standards, the ERA has fallen short of ratification, and no act of Congress can change that.

The ERA is a dangerous and unnecessary trojan horse that the Left will use to advance its pro-abortion agenda and deserves to be opposed on policy grounds alone. This latest effort to pass the ERA also falls flat on constitutional grounds. Attempting to deem the ERA as ratified more than 40 years after its deadline has passed is legally dubious, and all Senators should vote against this unconstitutional scheme.