Renewed ERA-rights activism holds decades-old underpinning

Proponents of reviving the dead 1972 Equal Rights Amendment (ERA), which, originally passed with a 7-year ratification window, claim that this statement of the late Justice Antonin Scalia shows why the ERA should be made part of the Constitution: “…the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

They ignore a 2012 interview NPR’s Nina Totenburg conducted with Justice Scalia:

Totenberg: Covering women under the 14th Amendment?
Scalia: Well, come on. Covering women under the 14th Amendment [laughs]. Women were always covered under the 14th Amendment. What are you talking about? Were they entitled to due process of law? Could you send them to jail without a trial? Without a jury? Come on, women were always covered by the 14th…
Totenberg: …Scalia didn’t mention it, but…discrimination against women in employment and other spheres is now banned under federal law, a ban that Scalia has consistently enforced.”

ERA advocates say there should be no time limits for ratifying the ERA. But a unanimous Supreme Court (Dillon v. Gloss, 1921) addressing time limits on Amendments, noted, “Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt.” 

And John Harmon, assistant attorney general in President Carter’s Justice Department, wrote (10/31/77) that: 

“Certainly, if a time limit has expired before an intervening Congress has taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House … Congresswoman Griffiths … ‘I think it is perfectly proper to have the 7-year statute so that it should not be hanging around over our head forever. … Senator Hartke, a supporter of the resolution, stated…‘if there is such a delay [beyond seven years], then we must begin the entire process once again.’”

ERA supporters claim they only need to add three states to the original 35 that ratified the ERA almost 40 years ago to make it part of the Constitution. But five states later rescinded their prior ERA approvals, and the Congressional time limit for states to ratify the ERA ended June 30, 1982.

The ERA was not ratified because of the controversial policies it would mandate. Here are a few:

Congressman Henry Hyde (R-IL), author of the ban on Medicaid-paid abortions, testified in Senate Committee in 1983: “Since 1970, the ERA advocates have emphasized that the amendment’s principal legal effect would be to make sex a suspect classification under the Constitution. … If sex discrimination were treated like race discrimination, Government refusal to fund abortions would be treated like a refusal to fund medical procedures that affect members of minority races …”

Hyde noted that under the ERA no abortions could be legally prohibited through nine months of pregnancy (like the law NY Gov. Cuomo recently signed). Doctors and nurses would lose their medical licenses for refusing to perform abortions. Also, there would be no informed consent, parental notice, or waiting periods for abortion.

Justice Ruth Bader Ginsberg, now a Supreme Court Justice, wrote in 1977, that: “Equal rights and responsibilities for men and women implies that women must be subject to draft registration if men are … Supporters of the equal rights principle firmly reject draft or combat exemptions for women as Congress did when it refused to qualify the Equal Rights Amendment by incorporating any military service exemptions.”

We must not allow ERA activists to highjack our Constitution.

ROBERT MARSHALL served in the Virginia General Assembly for 26 years. He is the author of Reclaiming the Republic: How Christians and Other Conservatives Can Win Back America. Email him [email protected].