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National Right to Life Media Advisory: Key Vote Thursday in U.S. House on “Zombie ERA” Resolution, As Showdowns Loom in Federal Courts

Feb 12, 2020 | 2020 Press Releases, Equal Rights Amendment, Press Releases, Press Room

Justice Ginsburg says that Virginia acted “long after the deadline passed,” ERA supporters should “start over,” suggests only fair to allow rescissions

WASHINGTON — On the morning of Thursday, February 13, 2020, the U.S. House of Representatives will take up a measure that purports to “remove the ratification deadline” from the 1972 Equal Rights Amendment Resolution, and thereby (proponents claim) make the 1972 ERA a part of the Constitution.

The House is expected to begin debate on the measure (H.J. Res. 79) at 9 AM EST on February 13, and to pass it before 11 AM. The measure will face much steeper odds in the U.S. Senate, and (were it ever to pass the Senate) in the federal courts. The Senate companion measure, sponsored by Sen. Ben Cardin (D-Md.), is S.J. Res. 6.

On February 10, in remarks at Georgetown University Law Center, Justice Ruth Bader Ginsburg indicated that she believes the proper approach for ERA supporters, such as herself, is “a new beginning. I’d like it to start over.” Virginia’s recent adoption of an ERA resolution was, she said, “long after the deadline passed.” If such “a latecomer” were to be recognized, she suggested, “how can you disregard states that said, ‘We’ve changed our minds’?” (Five states rescinded their ERA ratifications before the deadline — which was in 1979, not 1982.)

As CNN reported (Feb. 10), “Her comments on the Equal Rights Amendment bolster arguments made last month by the Department of Justice in a legal opinion…[that said] ‘the ERA Resolution is no longer pending before the States.’” At a Jan. 30 press conference, Virginia Attorney General Mark Herring (D) had been dismissive of the legal analysis advanced by the Justice Department, saying, “The Trump Administration has concocted a scheme to try to nullify the will of millions of Americans…that the ERA should be added to the Constitution.”

Herring filed one of three federal lawsuits that are already underway (two pro-ERA, one anti-ERA), confronting the courts with questions about the ratification deadline and the validity of rescissions. The lead attorney in the second pro-ERA case has charged that the congressional effort undermines our litigation efforts.” Moreover, leaked documents reveal that several major liberal groups recently privately expressed alarm to key congressional Democrats, warning that pro-ERA claims that 38 states have ratified the ERA effectively undercuts an ongoing liberal campaign to fend off a constitutional convention – a campaign that involves lobbying state legislatures to rescind earlier resolutions calling for such a convention.

Meanwhile, the ERA-abortion connection is becoming more widely recognized. As the Associated Press (David Crary) accurately reported on Jan. 21, “… Abortion-rights supporters are eager to nullify the [ERA ratification] deadline and get the amendment ratified so it could be used to overturn state laws restricting abortion.” Likewise, on Jan. 30, NBC News’ Pete Williams reported, “The ERA has been embraced by advocates of abortion rights. NARAL Pro-Choice America has said it would ‘reinforce the constitutional right to abortion’ and ‘require judges to strike down anti-abortion laws.’”

In a “scorecard warning” letter sent to House members on January 27, National Right to Life said, “Because the intent of H.J. Res. 79 is to place the text of the 1972 ERA into the Constitution, National Right to Life intends to score the roll call on passage of H.J. Res. 79. In our communications with our members, supporters, and affiliates nationwide, a vote in favor of this resolution will be accurately characterized as a vote intended to insert language into the U.S. Constitution that could invalidate any limits whatsoever on abortion, including late abortions, and require government funding of abortion.” Read the entire NRL letter here or download it in PDF here.

“Numerous abortion-rights groups now openly proclaim that they would employ the ERA as a powerful legal weapon against pro-life laws,” said Douglas Johnson, NRL Senior Policy Advisor, who has directed NRL efforts in opposition to the ERA since 1983. Among those groups, Johnson said, are NARAL, Planned Parenthood, the National Women’s Law Center, the Women’s Law Project, and the National Organization for Women. In a report published in POLITICO on Feb. 11, widely quoted ERA proponent Prof. Julie Suk characterized the link as “a persuasive argument,” and as “not…unlikely to be the law of the land” under the ERA.

Like every proposed constitutional amendment since 1960, the 1972 ERA Resolution contained a seven-year deadline in its Proposing Clause. (The Proposing Clause is not a “separate statute” or a “preamble,” but an essential component of every constitutional amendment, required by Article V of the Constitution.) Congress is not required to include a deadline in a Proposing Clause, but the Supreme Court has said that Congress has the power to do so, and that such deadlines are binding. On January 6, 2020, the Office of Legal Counsel (OLC) of the Department of Justice issued a 38-page legal opinion, confirming that the 1972 ERA Resolution died in 1979 (not 1982), and that Congress has no power to revive that failed proposal (although the entire amendment process could be restarted, starting with two-thirds votes in each house of Congress).

Regarding retroactive-revival measures such as H.J. Res. 79, OLC said, “Such an action by this Congress would seem tantamount to asking the 116th Congress to override a veto that President Carter had returned during the 92nd Congress, a power this Congress plainly does not have.”

Proponents of H.J. Res. 79 insist that if passed by simple majority votes (not two-thirds votes) in the House and Senate (and without a presidential signature), the measure somehow would transport the ERA into the Constitution. NRLC’s Johnson commented, “The 1972 ERA Resolution is 40 years dead. We are now witnessing an orchestrated attack on the integrity of the constitutional amendment process itself. This resolution [H.J. Res. 79] is a political prop – an illegitimate legislative object, not resembling anything described in the Constitution.”

NRL’s Douglas Johnson is available for interviews by telephone or email, to discuss both the congressional and ratification history of the ERA, and the legal and political aspects of the current showdown. Mr. Johnson also directs an ERA-focused Twitter account that contains frequent updates and fact-checks on ERA-related legislative, legal, and political developments:  @ERANoShortcuts