Big Showdowns Imminent on the “Equal Rights Amendment”
WASHINGTON (Sept. 27, 2022)— During the days, weeks, and months immediately ahead, the 1972 Equal Rights Amendment will take on the appearance of life — a constitutional apparition, long expired, yet engendering activity in all three branches of the federal government. This high-stakes political theater demands close critical scrutiny, which so far has been largely absent from the mainstream media coverage, much of which has been narrowly sourced and credulous.
The National Right to Life Committee (NRLC), the federation of state right-to-life groups, has actively opposed to the language of the 1972 federal ERA since the early 1980s, based on an assessment that the vague language would readily lend itself to use as a pro-abortion legal weapon. For decades, most ERA advocates denied, deflected, and dissembled regarding the ERA-abortion connection. However: “The mask has come off,” said NRLC President Carol Tobias. “Nearly all major pro-abortion and pro-ERA groups now proclaim that the 1972 ERA, interpreted in what they consider to be the correct manner, would invalidate virtually all limits on abortion, and require unrestricted government funding of abortion.” On Sept. 16, President Biden reportedly said that linking the ERA with abortion rights in his speeches would be “a good idea.”
On Sept. 26, National Right to Life has issued a Media Advisory titled “The Equal Rights Amendment Returns to the Stage” [https://www.nrlc.org/wp-content/uploads/NRLCERAMediaAdvisory9262022.pdf], which provides detailed information and numerous documentary links pertaining to the following imminent or ongoing ERA-related events:
•THE U.S. COURT OF APPEALS: On Wednesday, Sept. 28, 2022, at 9:30 AM EDT, a three-judge panel of the U.S. Court of Appeals for the District of Columbia will hear oral arguments in Illinois v. Ferriero, a lawsuit in which the attorneys general of Illinois and Nevada seek to persuade the court that the ERA is now part of the Constitution. The two states are appealing a strongly worded March 5, 2021 opinion by federal district Judge Rudolph Contreras (appointed by President Obama), who ruled (among other things) that the ratification deadline included in the 1972 ERA Resolution was constitutional; that it would have been “absurd” for the Archivist of the U.S. (then David Ferriero) to have disregarded the deadline; and that the ERA had not been ratified. Judge Contreras’ ruling was the latest in an unbroken forty-year losing streak for ERA-revivalists in the federal courts, before judges of every political background. “Every time the issue has been litigated in federal court, most recently in 2021, the pro-ERA side has lost, no matter whether the judge was appointed by a Democrat or a Republican,” wrote the Washington Post Fact Checker in February 2022, awarding “Four Pinocchios” to certain claims by Rep. Carolyn Maloney (D-NY) regarding the ERA’s current status. The Fact Checker added, “two major court rulings have concluded that the ERA’s ratification deadline, as set by Congress, has expired–a position embraced by both the Trump and Biden Justice Departments. The Supreme Court in 1982 also indicated support for the idea that the deadline had passed.”
“ERA-revival activists have been relying on broad dissemination of a hodge-podge of legal fantasies, and raw political pressure, in an attempt to bulldoze over constitutional guardrails,” said Douglas Johnson, director of the National Right to Life ERA Project. Mr. Johnson is NRLC’s subject matter expert on the ERA, an issue on which he has worked directly, and written extensively, for 40 years. Mr. Johnson will be available on Sept. 28 at the E. Barrett Prettyman United States Courthouse in D.C. for comments after the oral argument, and at most other times for phone interviews, email exchanges, or debates regarding the legal status of the ERA, and regarding the now widely acknowledged ERA-abortion connection.
•THE U.S. SENATE: The U.S. Senate also may pay a visit to Fantasy Island soon – perhaps taking up, before its pre-election recess, a House-passed measure that purports to retroactively “remove” the ratification deadline that was contained in the ERA Resolution submitted by Congress to the state legislatures on March 22, 1972. This triply unconstitutional measure, H.J. Res. 17, passed the House of Representatives on March 17, 2021, on a near-party-line vote (222-204), with the lowest level of ERA support in the House in 50 years of roll call votes. Senate Majority Leader Chuck Schumer’s staff participated in a conference call with pro-ERA leaders on Sept. 16, during which a pre-recess vote was left open as a possibility. Still, frustration is evident, as one prominent pro-ERA activist group, Equal Means Equal, on Sept. 21 publicly attacked the chief sponsor of the Senate companion measure (S.J. Res. 1), Sen. Ben Cardin (D-MD), “who is supposed to be our voice on this in the Senate but who is actually obstructing ERA(!)”
•THE ARCHIVIST: A two-year campaign by ERA advocates in and out of Congress to pressure the Archivist(s) of the United States to certify the ERA as part of the Constitution (judicial rulings notwithstanding), or to persuade President Biden to order the Archivist to do so, ran hard aground on Sept. 21. In confirmation-hearing testimony, Archivist-nominee Dr. Colleen Shogan clearly rejected the pressure campaign to certify the ERA. Asked by Sen. Rob Portman (R-Oh.), “If confirmed, would you continue to abide by the January 2020 OLC [Office of Legal Counsel, Dept. of Justice] opinion, as your predecessor did?” Dr. Shogan replied, “Yes, I would,” adding, “I think who will decide the fate of the ERA is the federal judiciary and/or Congress.” Nevertheless, the unprecedented campaign by activists continues. The Senate Homeland Security & Governmental Affairs Committee is scheduled to vote on the Shogan nomination on Sept. 28.
•DOUBLETALK BY DEMOCRATS ON RESCISSIONS: In recent months we have seen rapidly expanding news coverage and commentary regarding the purported possibility of an Article V constitutional convention. NRLC is not among the organizations pushing for a constitutional convention, but NRLC does believe that Article V procedures should be applied uniformly to all constitutional amendment proposals. Every current Democratic member of Congress, and nearly every current Democratic attorney general, has explicitly or implicitly embraced the claim that the pre-deadline rescissions of ERA ratifications by several states were constitutionally impermissible. Yet, many of these same officials (and many Democrat-aligned interest groups) have actively supported rescissions of ratifications of other proposed constitutional amendments, and/or rescissions of state legislative applications for an Article V constitutional convention. Johnson commented: “Activist-author Russ Feingold and Congressman Jamie Raskin are among the prominent figures guilty of have-it-both-ways doubletalk regarding whether Article V allows state legislative rescissions. Similar contradictions are evident regarding ratification deadlines. The ERA-revival campaign is demonstrating that an unprincipled, ad hoc approach to the constitutional amendment process is now endemic among Democratic officeholders and Democrat-aligned interest groups.”
For further details on the points summarized above, including numerous links to primary documentation, please download the Sept. 26, 2022 NRLC Media Advisory “The Equal Rights Amendment Returns to the Stage” [https://www.nrlc.org/wp-content/uploads/NRLCERAMediaAdvisory9262022.pdf]. NRLC ERA Project Director Douglas Johnson is available for interviews and debates through the NRLC Communications Office.