The U.S. House of Representatives voted 232 to 183 on Thursday to pass H.J. Res. 79, a bill that would eliminate the 1982 ratification deadline for the Equal Rights Amendment (ERA), allowing for its addition to the Constitution.
Only 35 states had ratified the ERA before the deadline.
Last month, Virginia became the pivotal 38th state to ratify the ERA decades after the deadline when the Virginia Senate voted 28-12 and the Virginia House of Delegates 59-41 in favor of ratification. Nevada approved it in 2017, and Illinois joined the list of states in 2018.
The Constitution requires three-fourths of states (38 out of 50) to ratify a constitutional amendment. Still, Congress can set a deadline for ratification, which they did that was initially established for 1979, but then extended to 1982.
The Office of Legal Counsel within the U.S. Department of Justice advised the National Archives, who certifies amendment ratifications, in a memo that states could not ratify a constitutional amendment after a Congressional-approved deadline has passed.
The text of the ERA states:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
Pro-life activists are concerned that the ratification of the ERA could protect Roe v. Wade from being overturned, and possibly open the door for taxpayer funding for abortion.
“Abortion activists have made clear their intent to persuade activist judges to strike down pro-life laws and enshrine abortion-on-demand in the Constitution of the United States,” said SBA List President Marjorie Dannenfelser. “To install a ‘Right to Abortion’ in the U.S. Constitution would be to deny the most basic right upon which our nation was founded: the right to life.”
The vote was primarily along party lines with just five Republicans joining Democrats to approve the extension. U.S. Reps. Abby Finkenauer, D-Iowa, Dave Loebsack, D-Iowa, and Cindy Axne, D-Iowa, voted in favor of the extension.
U.S. Rep. Steve King, R-Iowa, did not.
He cited the late Phyllis Schlafly, the conservative activist who spearheaded the effort to stop the ERA’s ratification in the 70s and 80s, in his remarks after the vote.
“[Schlafly] mounted an effort across this country to shut down the ratification because of all the implications. And it was a successful effort, and it’s part of her legacy,” King said.
“The right to be drafted would be included in this Equal Rights Amendment. Women would have to file and report for a draft. If they’re drafted, they have to go off to the military. That’s not even discussed in this Congress that I know of,” he stated. “And, also, under this Equal Rights Amendment, it would put us all in a position where we’d be forcing taxpayers to fund abortion. That’s clear whether it’s the National Abortion Rights Action League or several other organizations, the National Organization for Women, who all agree that’s what the ERA would do.”
“You can’t change the rules after the game, and that’s what Democrats are trying to do today: change the rules after the game, so it suits the result that they are after. But when you write the rules in the beginning, you have to live and abide by the rules all the way through. If [Democrats] want an Equal Rights Amendment, start a new one. Don’t try to resurrect one that’s been dead for a lot of years,” King added.
Axne, Finkenauer, and Loebsack have not offered public comment.
It is unlikely that the Republican-backed Senate and President Donald Trump will approve the ratification extension, so this fight will go to the courts where Justice Ruth Bader Ginsberg, a supporter of the ERA, indicated that effort likely would not be successful.
“I would like to see a new beginning,” Ginsburg said during an event at the Georgetown University Law Center. “I’d like it to start over. There’s too much controversy about late-comers.”
“A number of states have withdrawn their ratification,” she added. “If you count a late-comer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?”