Democrats in Congress are making a new push to enshrine the nearly century-old Equal Rights Amendment in the Constitution, rallying around a creative legal theory to revive an amendment that would explicitly guarantee gender equality as a way to protect reproductive rights. in post-Roe America.
Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri are set to introduce a joint resolution Thursday declaring that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution says that the national archivist, who is responsible for the certification and publication of constitutional amendments, must do so immediately.
It is a new tactic to deal with a measure that was first proposed in Congress 100 years ago and was approved by Congress approximately 50 years later but not ratified in time to be added to the Constitution. Proponents say the amendment took on new meaning after the Supreme Court’s ruling last year in Dobbs v. Jackson Women’s Health Organization that overturned the abortion rights long guaranteed by Roe v.
“In light of Dobbs, we see widespread discrimination across the country,” Ms. Gillibrand said in an interview. “Women are treated as second-class citizens. This is more timely than ever.”
While almost 80 percent of Americans supported adding the Equal Rights Amendment to the Constitution in a 2020 Pew Research Center poll, there is little chance the effort will attract the 60 votes needed to overcome a Republican filibuster in the Senate. But the Democrats’ push is their latest effort to highlight GOP opposition to social policy initiatives with broad voter approval, and to highlight the party’s hostility to abortion rights, which has hurt Republicans in the midterm elections.
“This is a political rather than a legal struggle,” said Laurence Tribe, the constitutional scholar and professor emeritus at Harvard Law School. “It would only succeed in a different environment than we have. It will not pass. The real question is what political message is being sent. In a political environment like this, you throw whatever you can at the wall.”
This is the second attempt this year by Democrats to advance the Equal Rights Amendment; in April, Senate Republicans blocked a similar resolution that sought to remove an expired deadline for states to ratify the amendment. Only two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, voted for the resolution.
Now, Ms. Gillibrand and Ms. Bush are trying another approach: They are simply ignoring the issue of the expired ratification deadline altogether and introducing a resolution that argues that the ERA is already the law of the land.
“This is an opportunity to start fresh with a 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 the text of the amendment itself. “I believe President Biden can just do this. I will make the legal and political argument over the next several months that this is something he can do.”
Mrs. Bush, founder of the ERA caucus in the House, said that “for us, it’s already done. The ERA is the 28th Amendment. We just need the archivist to publish it.”
It is about the complex procedure to add an amendment to the Constitution, which requires approval by both houses of Congress and ratification by three quarters of the states, in this case, within a seven-year deadline. Congress passed the Equal Rights Amendment in 1972, and later enacted a law extending that deadline to 10 years. But by 1982, only 35 states had ratified. Since then, three more states – Nevada, Illinois and Virginia – have ratified the amendment, passing the threshold, but some others have rescinded their ratifications.
That left the amendment in legal and political limbo, its fate left 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 actually put this deadline restriction to say, ‘Actually, it doesn’t matter’ is really significant,” Mr. Feingold said. “The White House and members of Congress are starting to see that credible legal scholars are saying this is already part of the Constitution.”
There is nothing simple or straightforward about the constitutional amendment process, and legal experts have said that each of the amendments to the Constitution took a unique path to ratification. The 27th Amendment, 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 make a new push for the amendment after the Dobbs decision. The key section of the amendment, with just 24 words, “is packed with potential to protect access to abortion care nationwide, defeat bans on gender-affirming health care, strengthen marriage equality, close the gender wage gap, help end the epidemic of. violence against women and girls, and so much more,” Mrs. Bush said. “We’ve just got to keep pushing it. We can’t fall victim to the Republican agenda.”
Mrs. Bush and other Democrats argue that the ability to control one’s reproductive system is essential to equality in the workplace and in public life.
Those arguments have continued in some states, where parties have used state-level Equal Rights Amendments to remove restrictions on reproductive care.
In New Mexico, the state supreme court struck down a state law prohibiting funding for abortion-related services, citing the state’s Equal Rights Amendment that “allows equality of rights for persons regardless of sex.” In Pennsylvania, advocates and providers are suing the state for banning Medicaid funding for abortion, arguing that it is a violation of equal protection provisions in the state constitution.
“In 2023, we should move forward to ratify the ERA with all the haste because if you look at the terrible things happening to women’s rights in this country, it’s clear that we have to act,” said Senator Chuck Schumer, the majority leader. . April, when the Senate first addressed the issue.
But opponents of the measure argued that the amendment no longer applies because 38 states did not ratify the ERA by the deadline. There is also the complex legal question of whether states that later revoked their ratifications should be counted.
Republicans generally opposed the initiative as gratuitous, arguing that equal protections for women are included in the 14th Amendment. But they, too, conceded that passing the amendment could provide a new legal basis to protect abortion after Roe was overturned.
“The ERA could anchor a presumptive right to abortion in the Constitution itself,” wrote Emma Waters, a research fellow at the conservative Heritage Foundation, 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 didn’t think Republicans would ever support the amendment, “largely because the pro-life movement bought into this argument,” she said. She said her hope was to force Mr. Biden to call on the archivist to act, or to change the filibuster rules in the Senate so that civil rights measures like the amendment would only need a simple majority — not 60 votes — to move forward. .
Even if the resolution proves to be no more than a messaging exercise, some proponents said it is still significant.
“Congress taking some kind of action to keep the ERA alive is significant,” said Katherine Franke, a law professor at Columbia University and its faculty director. Research initiative of ERA Project. “Some people consider it dead in the 1980s. It signals that members of Congress believe it’s still alive and kicking.”