Pop quiz: Name a bill first discussed after women got the vote in 1920, failed twice to gain enough state support to pass, yet motivated actor and activist Alec Baldwin to head to Virginia for an off-year election.
Answer: ERA, the so-called Equal Rights Amendment that was a shadow issue on the ballot, driving all kinds of activists to engage in the politics of Virginia for the hope of achieving what Roe v. Wade never could — an actual constitutional foothold for abortion.
Adding new fuel to a very old fire, the U.S. House Judiciary Committee recently passed a resolution trying to change the rules to create a virtual do-over. It’s not the only federal effort at play, but it’s a sign of intensifying interest. The measure will now go before the House for a vote.
In 1972, Congress passed the ERA as a constitutional amendment, setting a deadline of ratification by March 1979 from three-fourths of the states (38). However, only 35 states voted in favor by that deadline, and since then five states voted to rescind their ratification. Rather than admitting defeat, Congress extended the deadline to June 1982. While some argue that extension wasn’t legal, it became a moot point as the measure failed again.
Then began round three. In 2017, Nevada approved the amendment followed by Illinois in 2018.
Enter the contest in Virginia, which last year rejected passage of ERA as activists worked to get to 38 to begin what will be an epic legal battle. However, facing opposition from groups like mine that effort also failed but did not go away, becoming one of the first bills filed for the next legislative session.
Discussed briefly before the election, ERA became headline news the day after Democrats took control of both chambers in Virginia. The New York Times trumpeted: “The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years,” adding “Virginia, soon to be under Democratic control, will likely be the 38th state to ratify the amendment. The Supreme Court could decide what happens next.” Their sentiment rippled through news publications across the country.
Still, few stories note reasons for opposition, including how it will harm laws protecting women.
ERA was an idea born in a different time, before hundreds of laws had been passed to affirm women’s rights. Today, it’s deceptively simple language “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” could wreak havoc on the network of laws in place for women as those measures by definition single them out.
In fact, U.S. Supreme Court Justice Ruth Bader Ginsburg in her book “Sex Bias in the U.S. Code,” observed that the ERA will impact 800 federal laws currently designed to protect women, if not more. Laws like the Equal Pay Act of 1963, the Civil Rights Act of 1964; the Equal Employment Opportunity Act of 1972 and the Federal Minimum Wage Act of 1974, which specifically support women could be prohibited. It was because ERA could hurt a framework of laws protecting women that some previous generations of feminists opposed the ERA.
Another new, legal minefield will be the definition of “sex.” When the ERA was written, all of human history and societies defined sex as male and female. Yet consider the uproar recently when the Trump administration said that for federal policy, sex would be defined “on a biological basis.”
In The Washington Post, gender educator Molly Woodstock wrote: “This development was terrifying and bizarre. Such a policy would go against everything we have come to understand about gender, and how it is defined by social and cultural factors rather than biological traits.”
Armed with the ERA, judges would have a blank slate for deciding the meaning of “sex,” and what kind of policy emerging definitions would require.
Professor Valerie Hudson observed that women could be harmed by the ERA, writing: “We women have already discovered that if our sex-based rights are in conflict with the rights of others based on gender identity, we are too often thrown under the bus. Does the Equality Act turn the ERA into a Trojan horse for women, actually serving to erase them completely within the U.S. Constitution itself?”
But when it comes to the ERA and abortion, state courts have already ruled that similar laws required abortion to be available and taxpayer funded.
The issue of abortion animates this debate as many believe the future of Roe v. Wade is in doubt given the shaky legal foundation on which rests. Roe legally allows abortion through all nine months, for any reason and at and sometimes with taxpayer funding. Should Roe v. Wade be overturned, the issue of abortion would be returned to the states, where people could have a voice and a vote on policy that today is decided by a handful of judges.
Unless there is a new foothold in the Constitution through the ERA.
Passing a vaguely written, almost 100-year-old measure in the current legal and political environment would create chaos and controversy, actually harming women’s interests and employing lawyers for generations to come. Congress should refuse to change the rules again to prop up the poorly conceived ERA, an idea whose time has come and gone.
• Kristan Hawkins is president of Students for Life of America. Follow her @KristanHawkins or subscribe to her podcast, Explicitly Pro-Life.