The deadline expired four decades ago, and Congress doesn’t have the votes to send a new amendment to the states for ratification.
The deadline expired four decades ago, and Congress doesn’t have the votes to send a new amendment to the states for ratification.
S hortly before Congress skipped town for its spring break, Alaska senator Lisa Murkowski spoke at a briefing sponsored by advocates of the Equal Rights Amendment. “For those staff who are on this briefing, your mission is to go out and talk to your bosses,” Murkowski said. “If your boss is a man, ask him if he wants his wife, his daughters, his mother to be protected by the Constitution.”
The Equal Rights Amendment, which Congress sent to the states for ratification in 1972, states that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
But Congress isn’t going to breathe new life into the amendment for two reasons.
First, although Murkowski provides Democrats a rare bit of bipartisan support for one of their legislative initiatives, only a few Republicans in Congress agree with her about the ERA. Republicans opposed to the ERA remain convinced, as the late Phyllis Schlafly warned in the 1970s, that the seemingly innocuous amendment could have all sorts of negative consequences, including requiring taxpayer funding of all abortion. In a unanimous decision in 1998, New Mexico’s supreme court held that the state’s Equal Rights Amendment, nearly identical to the federal one, required the state’s Medicaid program to fund elective abortions.
Second, and most important, the original amendment included a seven-year deadline, and it’s very unlikely the courts would hold that Congress has the power to retroactively lift that deadline.
In 1978, as the deadline was about to expire and the Equal Rights Amendment was a few states short of ratification, a simple majority of Congress purported to extend the deadline until 1982. (It takes two-thirds of Congress to send an amendment to the states for ratification.) But no more states ratified it, and one federal judge ruled the extension was unconstitutional.
In recent years, the states of Nevada, Illinois, and Virginia have voted to ratify the dead amendment, and a majority of Congress now claims it has the authority to retroactively lift the deadline. But the various legal theories holding that Congress has such power don’t withstand scrutiny.
“You don’t have to impose a ratification deadline if you don’t want to, but if you do, it sticks,” Professor Elizabeth P. Foley of Florida International University said in congressional testimony in 2019. “Every amendment proposed by Congress since 1917 (beginning with the Eighteenth Amendment) has contained an express seven-year ratification deadline.”
Some have argued that the seven-year deadline isn’t part of the amendment itself, but a Congressional Research Service report notes that Congress, “having determined that inclusion of the time limit within [the amendment’s] body ‘cluttered up’ the proposal,” consequently “placed the limit in the preamble, rather than in the body of the amendment itself.” As University of St. Thomas law professor Michael Stokes Paulsen, who is now a supporter of President Biden, told National Review in an interview in 2019: “Congress can put a deadline in its enacting legislation, or it can put it right in the constitutional amendment. There’s no material difference in terms of when the proposal itself expires.”
Paulsen wrote in a Yale Law Review article in 1993: “Any change in the terms of the original amendment proposal logically invalidates the ratifications of states that had voted for the earlier version. By changing the terms of the earlier amendment proposal — by adopting new legislation — Congress in effect proposes an entirely new constitutional amendment (albeit largely identical in substance), requiring the states to start all over again with new ratifications.”
The late Supreme Court justice Ruth Bader Ginsburg always wanted the Supreme Court to have ruled that there was a right to abortion in the Constitution because denying such a right would discriminate on the basis of sex, but the very liberal Ginsburg acknowledged last year that advocates of the ERA would need to “to start over” because the deadline had passed long ago.
Anti-abortion groups have remained vigilant in their opposition to the ERA because they see it as the type of defeat from which they’d never recover. The House voted to lift the deadline earlier this month, and the Senate will likely take it up. But even if Senate Democrats kill the filibuster and pass the House bill with the support of a Republican or two, it’s impossible to imagine the Supreme Court (under its current composition or anything close to it) would come close to holding a simple majority of Congress has the power to retroactively remove the deadline for ratification.