In life, a hard lesson is learning when to let things go, something supporters of the Equal Rights Amendment (ERA) have struggled with over the last 100 years.
The ERA makes huge promises to empower women while never persuading enough voters that it can deliver. Twice it has failed to get the 38 states needed to ratify it in time to meet congressional deadlines, and five states experienced buyers’ remorse and rescinded their support. If this were any other measure, it would be game over or back to square one.
But here we are again. House Democrats introduced efforts this month to re-animate the ERA despite the lack of a legal pulse, following a federal judge’s recent ruling that two passed deadlines were too many. Yet, ERA supporters convinced Nevada, Illinois and Virginia to ratify decades late, asking for a participation trophy in the U.S. Constitution for playing the game of politics. Not so fast.
When children playing a game want to change the rules because they are losing, we teach them that winning is not guaranteed. Consider the great sport of baseball, which emerged in the same timeframe as the ERA. Imagine the reaction if teams today sometimes sued to add a 10th inning, if losing at the end of the 9th. The rules provide a framework so that all can participate with an understanding of the stakes, timeframes and instructions. Changing rules to suit those losing creates more problems than it solves, and it ignores the accomplishments of those who prevailed.
The late arrival of states ratifying the ERA long after the legal deadlines had passed troubled the late Justice Ruth Bader Ginsberg, who supported the ERA but said: “There is too much controversy about late comers … Plus, a number of states have withdrawn their ratifications. So if you count a latecomer on the plus side, how can you disregard states that said we’ve changed our minds?”
The Centenarian ERA also risks an entire framework of laws developed specifically to protect women’s rights such as the Equal Pay Act of 1963; the Civil Rights Act of 1964; the Equal Employment Opportunity Act of 1972; the Federal Minimum Wage Act of 1974, and the Pregnancy Nondiscrimination Act of 1964. Currently, Students for Life of America’s Standing With You Initiative works to defend women’s Title IX rights at schools and universities to help those pregnant and parenting while in school.
The ERA would put such efforts in question as it pledges to remove any differences in the law and reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Concerned that the blunt instrument of an ERA in the Constitution might undo a lot of hard work, feminist icons like Eleanor Roosevelt and Dorothy Kenyon opposed it, and they were not alone.
Importantly, legal protections for women already exist in the Constitution as illustrated in a case that Ginsberg herself argued and won, Reed v. Reed. The 14th Amendment says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”
But in today’s culture, the ERA raises troubling new issues. The ERA could be called the “Everything Related to Abortion” act, as a broad coalition of abortion advocates lobby on its behalf to create a true foothold for abortion in the Constitution.
For example, in March 2019 the National Abortion and Reproductive Rights Action League (NARAL) said in an e-mail to supporters:
“In order to protect our reproductive freedom today it’s essential we pass the newly re-introduced bill to ratify the ERA. With its ratification, the ERA would reinforce the constitutional right to abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate both the constitutional right to privacy and sexual equality.” Prioritizing abortion through all nine months and taxpayer funded is far outside the mainstream of American life.
The ERA also raises questions about the legal definition of “sex.” When first discussed, sex meant male and female, but in light of the Equality Act, it’s clear that “sex” would be open to interpretation and litigation so that an amendment marketed as empowering women may do just the opposite as definitions of who benefits under the law collide in court, and women lose.
Already, changing definitions of sex imperil women’s sports and are debated when discussing access to women’s domestic violence shelters, bathrooms and even prisons.
The feminist heroes of 100 years ago had a great idea for protecting women’s rights that doesn’t work today. ERA supporters took a shot and lost. That happens, but an amendment in the Constitution cannot be a consolation prize for a measure many have rejected.
• Kristan Hawkins is president of Students for Life of America, more than 1,250 groups in all 50 states, Follow her @KristanHawkins or subscribe to her podcast, Explicitly Pro-Life.