In a bid to nullify the effects of the Supreme Court’s Dobbs decision, Democrats are trying to enact the Equal Rights Amendment based on a legal theory that maintains it is already the law of the land.
Sen. Kirsten Gillibrand (D-NY) and Rep. Cori Bush (D-MO) are pushing the initiative and have introduced a joint resolution that argues the Equal Rights Amendment (ERA) has already met its ratification requirements and should immediately be certified and published by the national archivist as the 28th Amendment to the Constitution, reported The New York Times.
The ERA proposes to guarantee equality of legal rights regardless of sex at the federal and state levels. If enacted, it could become the main basis by which to roll back state laws regulating abortion, but it could also be used as leverage in other cultural battles, including those involving gender identity, according to the Ethics & Religious Liberty Commission.
Others seem to agree.
Heritage Foundation research associate Emma Waters previously wrote, “[T]he ERA could anchor a supposed right to abortion in the Constitution itself. Democrats argue that if a man has the right to ‘not be pregnant,’ then women also should have the right to ‘not be pregnant’ through abortion. … Proof of this danger to the unborn lies in outcomes for ERA-style measures at the state level. New Mexico, for example, ratified an equal rights amendment in its state constitution. In 1998, the New Mexico Supreme Court found that the state’s ERA not only secured a right to abortion, but taxpayer-funded abortion at that.”
Rep. Bush maintains that the ERA “is packed with potential to protect access to abortion care nationwide, defeat bans on gender-affirming health care, shore up marriage equality, eliminate the gender wage gap, help end the epidemic of violence against women and girls, and so much more,” per NYT.
“We have to just keep pushing it. We can’t fall victim to the Republican agenda,” Bush said.
Sen. Gillibrand claimed, “In light of Dobbs, we’re seeing vast discrimination across the country. Women are being treated as second-class citizens. This is more timely than ever.”
The ERA was originally passed by Congress in 1972 and went to the state legislatures for ratification, needing approval by 38 or three-fourths of states within seven years to become the law of the land. Congress extended the deadline to 10 years, but by 1982, only 35 states had ratified the ERA, three shy of what was needed to pass.
Since the deadline expired, three more state legislatures — Nevada in 2017, Illinois in 2019, and Virginia in 2020 — have ratified it, while another five state legislatures have revoked their ratifications.
With little chance of getting the resolution through Congress, the maneuver could still be worth the rhetorical points it could generate.
“This is a political rather than a legal struggle,” said Constitutional scholar and Harvard Law School professor Laurence Tribe, according to NYT. “It’s not going to pass. The real question is what political message is being sent. In a political environment like this, you throw at the wall whatever you can.”
Earlier this year, Democrats tried to advance the ERA by removing the expired deadline, but the measure failed.