When the long-stalled Equal Rights Amendment surged back to life in 2017, opponents argued that it just wasn’t needed anymore. Maybe back in the 1970s it was important to make it clear in the Constitution that women should be afforded the same rights as men, they said, but in the decades since then, Supreme Court decisions on sex equality have covered that ground and given women all the equality they need or should want.
Well, that tune has changed now that Democrats have gained a majority in the Virginia Legislature and are expected to vote in favor of the ERA in the next few weeks, becoming the 38th and, depending how you count them, final state needed for ratification – 47 long years after Congress passed it and sent it to the states for approval.
With passage looking more and more likely, opponents have suddenly conceded that yes, the ERA would have real ramifications. And chief among their concerns seems to be that it would allow women to fight back against the onerous abortion restrictions adopted in several conservative-leaning states. That is the message being sent by the Republican attorneys general of Alabama, Louisiana and South Dakota, who have sued, arguing that the ERA should be stopped in its tracks because of an expired congressional deadline and the efforts by five states to rescind their previous support.
If the ERA passes, the opponents warn in their court papers, “Activists would urge courts to use the amendment to overturn legitimate regulations of abortion and to mandate state funding of abortions.” They add that it might even confer protections on people based on sexual orientation and gender identity.
That sounds like quite a bit more than doing nothing.
Just to be clear, here is the text of the amendment: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
We suspect that the argument that the ERA was unnecessary was always a red herring, because ERA opponents realized how sexist and primitive it would sound in the 21st century to object to giving women equal status under the law or to deny protections for people based on whom they love and how they identify.
The abortion issue seems more likely to be on their minds. This year, Alabama passed a law that would virtually outlaw abortion in the state (it has been blocked by a federal judge) and Louisiana voted to outlaw abortions after a fetal “heartbeat” is detected, which is effectively an abortion ban. South Dakota, which was one of five states that ratified the ERA but later voted to rescind the ratification, adopted a number of abortion restrictions that might be challenged in a post-ERA world including a law requiring forced counseling followed by a 72-hour waiting period.
Back in 1972 the people opposing passage of the ERA focused on stirring up fears of upended gender roles and the crazy things women might do if they were handed a bit of personal and political power, like the right to get abortions, to combat discrimination and to fight for their country. And they are still about denying women power. By now, one might have thought opponents could come up with something more original and timely.
Before the ERA can become law, the two remaining issues brought up in the lawsuit have to be addressed: whether the long-expired ratification deadline that Congress set back in the 1970s, which was extended once, can be retroactively extended, and whether the five states that voted to rescind their ratification votes are allowed to do so. In the past, states have not been allowed to rescind such votes.
Absent restarting and passing a fresh ERA (which seems unlikely in these polarized times), the best course of action is for states to continue to vote for it while Congress and perhaps the courts settle the sticky questions about rescissions and deadlines. Perhaps this lawsuit, as objectionable as its arguments may be, could be the vehicle to settle these issues quickly so that the country can get on with the business of including women in the nation’s founding document.
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