Democrats Finally Admit Conservatives Were Right about the Equal Rights Amendment

C ongressional Democrats’ effort to revive the long-dead Equal Rights Amendment (ERA) is an assault on the rule of law and basic logic.

Article 5 of the U.S. Constitution grants power to Congress to propose a constitutional amendment with the votes of two-thirds of each chamber, after which three-fourths of states must ratify it before it can become law. In 1972, Congress secured the necessary two-thirds vote in each chamber to propose the Equal Rights Amendment, which declared: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Once it was passed, supporters had seven years to get three-fourths of the states to ratify it, and failed to do so in time. In 1978, a simple majority of Congress purported to extend the deadline to 1982, but no more states signed on before then.

Congressional Democrats now pretend that a simple majority of Congress has the authority to retroactively lift the deadline, and thus ratify the amendment by counting the votes of three states that approved the ERA since 2017. This is a legal theory that has been soundly rejected by even leading progressive jurists, including the late Ruth Bader Ginsburg.

So the Senate’s ERA vote on Thursday — which failed to overcome a filibuster, 51–47 — was mostly a messaging bill designed to cast Republicans as aggressors in a “war on women.” But one interesting development in the run-up to the Senate vote is that Democrats have finally been willing to admit that conservatives were right about the Equal Rights Amendment after all.

As recently as 2020, then-speaker of the House Nancy Pelosi claimed the ERA “has nothing to do with the abortion issue.” But when Senate majority leader Chuck Schumer announced the ERA vote earlier this week, he explicitly cited the ERA as “necessary” to protect abortion. “Anyone who thinks the ERA isn’t necessary at a time like this is not paying attention to the terrible things happening in this country,” Schumer said on Tuesday. “In the past year alone, the U.S. Supreme Court has eliminated the protections of Roe v. Wade, our courts have targeted drugs like mifepristone, and we’ve seen over a dozen hard-right states enact near-total bans on abortions. We need the ERA more than ever, ever before.” Pro-life advocates have argued that the ERA would be interpreted to grant a sweeping right to elective abortion throughout pregnancy and allow for unlimited taxpayer funding of abortion. In 1998, the New Mexico supreme court found a right to taxpayer-funded abortion in the state constitution’s version of the ERA.

When Phyllis Schlafly rallied Americans against the ERA in the 1970s, she warned that, among other things, it would mean the end of bathrooms exclusively for women. Advocates of the ERA insisted for decades that the charge was absurd, but as the Senate prepared to vote this week, Hawaii Democratic senator Mazie Hirono was tweeting that the ERA would provide equal rights to “trans women & non-binary people.”

Democrats have dropped the mask about what the ERA would really mean for abortion and women-only spaces and associations because Democrats in the House and Senate have almost unanimously and explicitly embraced progressivism on these issues.

In 2021, House Democrats unanimously voted to kill the Hyde amendment in order to provide unlimited Medicaid funding of elective abortions. In 2022, congressional Democrats almost unanimously backed a sweeping federal abortion bill that would effectively create an unfettered right to abortion until birth in all 50 states. The party is also almost entirely united behind the Equality Act, an extreme LGBT-rights bill that would gut the Religious Freedom Restoration Act and that explicitly states “(with respect to gender identity) an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.” (The only Democratic senator who contradicted himself by voting for the Equal Rights Amendment on Thursday was Joe Manchin of West Virginia, who opposes the Equality Act and the party’s federal abortion bill.)

Now that the party explicitly seeks to enact via statute what the Equal Rights Amendment would have accomplished via the courts, Schumer and the rest of the Democratic caucus are finally free to admit that conservatives were right about the ERA all along.