Democrats try new tactic to revive Equal Rights Amendment

Sen. Kirsten Gillibrand (DN.Y.) is seen before a hearing in Washington, July 11, 2023. (Kenny Holston/The New York Times)

Sen. Kirsten Gillibrand (DN.Y.) is seen before a hearing in Washington, July 11, 2023. (Kenny Holston/The New York Times)

WASHINGTON — Democrats in Congress are making a fresh push to have the nearly century-old Equal Rights Amendment entrenched in the Constitution, rallying behind creative legal theory in an effort to revive a amendment that would explicitly guarantee gender equality as a means of protecting reproductive rights in post-Roe America.

Sen. Kirsten Gillibrand of New York and Rep. Cori Bush of Missouri are expected to introduce a joint resolution on Thursday declaring the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution states that the National Archivist, who is responsible for certifying and publishing constitutional amendments, must do so immediately.

It’s a new tactic to pursue a measure that was first proposed in Congress 100 years ago and approved by Congress some 50 years later, but not ratified in time to be added to the Constitution. . Supporters say the amendment took on new meaning after the Supreme Court’s decision last year in Dobbs v. Jackson Women’s Health Organization that struck down Roe v. Wade’s long-guaranteed abortion rights.

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“In light of Dobbs, we see widespread discrimination across the country,” Gillibrand said in an interview. “Women are treated like second-class citizens. It’s more timely than ever.

While nearly 80% of Americans supported adding the Equal Rights Amendment to the Constitution in a 2020 Pew Research Center poll, the effort is unlikely to draw all 60 votes. needed to overcome a Republican filibuster in the Senate. But the push by Democrats is their latest effort to highlight GOP opposition to social policy measures with broad voter approval and to draw attention to the party’s hostility to abortion rights, which hurt Republicans in the midterm elections.

“This is a political rather than a legal fight,” said Laurence Tribe, constitutional scholar and professor emeritus at Harvard Law School. “It would only succeed in an environment different from ours. It won’t pass. The real question is what political message is being sent. In a political environment like this, you throw everything you can at the wall.

This is the second attempt by Democrats this year to advance the Equal Rights Amendment; in April, Senate Republicans blocked a similar resolution that sought to remove an expired deadline for states to ratify the amendment. Only two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, voted for the resolution.

Now, Gillibrand and Bush are trying a different approach: they simply ignore the issue of the expiry of the ratification deadline and introduce a resolution that argues that the ERA is already the law of the land.

“This is an opportunity to start fresh with a legitimate legal theory grounded in constitutional law,” Gillibrand said, noting that the reference to the deadline was in the preamble, not the text of the amendment itself. . “I believe President Biden can just do that. I will be making the legal and political argument over the next few months that this is something he can do.

Bush, one of the founders of the ERA caucus in the House, said that “for us, it’s already done. The ERA is the 28th Amendment. We just need the Archivist to post it.

In question, the complex procedure for adding an amendment to the Constitution, which requires adoption by both houses of Congress and ratification by three-quarters of the States, in this case within seven years. Congress passed the Equal Rights Amendment in 1972, then enacted legislation extending that time limit to 10 years. But by 1982, only 35 states had ratified it. Since then, three more states — Nevada, Illinois and Virginia — have ratified the amendment, passing the threshold, but some others have reversed their ratification.

This left the amendment in a legal and political vacuum, its fate left in the hands of Congress and the courts.

Russ Feingold, a former Wisconsin senator who is president of the American Constitution Society, said he supports the Democrats’ new strategy.

“For the institution that actually imposed this time limit, to say, ‘Actually, it doesn’t matter,’ is really meaningful,” Feingold said. “The White House and members of Congress are starting to see that credible legal scholars are saying this is already part of the Constitution.”

There is nothing simple or clear about the constitutional amendment process, and legal experts have said that each of the Constitution’s amendments took a unique path to ratification. The 27th Amendment, which states that members of Congress cannot raise or lower their salaries mid-term, languished for more than 200 years before being ratified.

But Democrats are more eager than ever to reinvigorate the amendment in the wake of the Dobbs ruling. The key section of the amendment, with only 24 words, “is full of potential to protect access to abortion care nationwide, defeat gender-affirming health care bans, solidify marriage equality , close the gender wage gap, help end the epidemic of violence against women and girls, and so much more,” Bush said. “We just have to keep pushing it. not be victims of the Republican agenda.

Bush and other Democrats argue that the ability to control one’s reproductive system is essential to equality in the workplace and in public life.

These arguments have prevailed in some states, where parties have used state-level equal rights amendments to remove restrictions on reproductive care.

In New Mexico, the state Supreme Court struck down a state law banning funding for abortion-related services, citing the state’s Equal Rights Amendment that “allows the equal rights for people regardless of their sex”. In Pennsylvania, advocates and providers are suing the state for banning Medicaid funding of abortion, arguing it violates the equal protection provisions of the state constitution.

“In 2023, we should move forward to ratify the ERA with all the necessary haste because if you look at the terrible things happening to women’s rights in this country, it’s clear we need to act,” said the Senator Chuck Schumer, the Majority Leader. in April when the Senate first took up the issue.

But opponents of the measure have argued that the amendment is no longer valid because 38 states failed to ratify the ERA on time. There is also the complex legal issue of whether states that have since revoked their ratification should be counted.

Republicans have generally opposed the measure as gratuitous, arguing that equal protections for women are included in the 14th Amendment. But they, too, admitted that passing the amendment could provide a new legal basis to protect abortion after Roe’s overthrow.

“The ERA could entrench a purported right to abortion in the Constitution itself,” wrote Emma Waters, research associate at the conservative Heritage Foundation, earlier this year. She added, “To protect the lives of women and their unborn children, lawmakers must oppose the National Equal Rights Amendment.”

Gillibrand conceded that she didn’t think Republicans would ever support the amendment, “largely because the pro-life movement co-opted that argument,” she said. She said her hope is to compel Biden to call on the archivist to act or change the filibuster rules in the Senate so that civil rights measures like the amendment only need a vote. simple majority – not 60 votes – to move forward.

Even if the resolution turns out to be nothing more than a messaging exercise, some supporters said it was still meaningful.

“Congress taking action to keep ERA alive is important,” said Katherine Franke, a Columbia University law professor and faculty director of her Project ERA research initiative. “Some consider him to have died in the 1980s. This signals that members of Congress believe he is still alive and active.

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