The ERA – An Amendment Who’s Time Has Come

BY MIKE MAGEE

Believe it or not, The Equal Rights Amendment (ERA) was first introduced 100 years ago in 1923. But it was only adopted by Congress by a 2/3 majority vote 49 years later in 1972. That was simply step 1 in the world’s most complex and difficult national constitutional amendment process.

Step 2, approval by 3/4 of the states, seemed off to a running start with 28 of the required 38 states signing up that first year. But 1972 was also the year that Phyllis Schafly, an outspoken supporter of patriarchy and stay-at-home motherhood, began echoing her anti-ERA message on Chicago News Radio WBBM. The following year, she went national with a CBS Morning News contract, followed by a gig with CNN from 1980 to 1983.

Corny, but effective and dogged in pursuit culture war issues, she was a gifted publicist who leveraged the role of “housewife” for all it was worth. One of her gambits was to deliver homemade bread, jam and apple pies to state legislators with the message ”Preserve us from a congressional jam; Vote against the ERA sham” and “I am for Mom and apple pie.”   

The irony that she had been largely “not at home” as an active conservative political warrior since signing on as a young researcher at the American Enterprise Institute in 1946, and (by now) had waged a battle for three decades to preserve “traditional American values” as a lawyer, editor, and national speaker apparently never registered with her wildly enthusiastic fanhood. 

That idolation didn’t fully translate to a younger generation. In 2008, eight years before her death at 92, her alma mater, Washington University in St. Louis, awarded her a honorary degree at the graduation ceremony. As she rose to receive the award, 1/3 of the graduating class rose and turned their backs on her, and three faculty members walked off the stage.

Two decades later, long after many had thought the ERA was dead and buried, three states added their “yes” votes to what could become the 26th Amendment – Nevada (2017), Illinois (2018), and Virginia (2020). What changed of course was the stacking of the Supreme Court with conservative, theocratic justices, and the subsequent attack on Roe v. Wade followed by the Dobbs decision and (predictably) the Red state assault on women’s autonomy and freedom.

So, with step 1 and step 2 now secured, has the Equal Rights Amendment, preventing motherhood and pregnancy discrimination, gender discrimination and violence, pay inequity, and intrusions on women’s freedom to control their own health decisions and reproductive life, arrived just in time? Well, not exactly. It seems that when the ERA gained its 2/3 Congressional vote in 1972, Congress wrote in a deadline for 3/4 of the states to achieve passage. That deadline was seven years (1979). It subsequently extended that three years to 1982. Also during the intervening years, a few states have attempted to rescind their approval. Is that allowed?

Article V, Section 4.2.1 speaks to the issue of deadlines. The congress.gov site states: “One prominent question is whether Congress may place a deadline on the states’ ratification of a proposed amendment, either in the text of the proposed amendment or the accompanying joint resolution. The text of Article V does not specifically address the issue. In Dillon v. Gloss, the Supreme Court held that the Constitution implictly authorizes Congress to “fix a definite period” for ratification of an amendment…Limited historical practice suggests that if Congress does not specify a deadline for ratification, the amendment remains pending before the states until the requisite number of states have ratified it. In 1992, the Twenty-Seventh Amendment, which addressed the effective date of congressional pay raises, became part of the Constitution more than 202 years after it was proposed.”

Article V. Section 4.2.2 addresses the effect of state legislatures “changing their mind” and rescinding prior action. The congress.gov site states: “The Supreme Court indicated that whether a state could ratify an amendment after rejecting it—or rescind an amendment already ratified—were political questions for Congress to resolve.  As support for this theory, the Court cited Congress’s 1868 adoption of a concurrent resolution declaring that the Fourteenth Amendment had been ratified. Congress adopted this resolution despite the fact that three states had previously rejected the amendment before later ratifying it, and two states attempted to rescind their prior ratifications.”

In short, Congress appears to have the power, if it chooses, to eliminate the deadline for state ratification and therefore add the three additional required states, and deny the request of states who “on second thought” would like to change their “yes” vote on the ERA Amendment to a “no.”

On January 24,2023, a bipartisan resolution to set aside the time limit for ratification was put to the vote. It was defeated 51 to 47. But recent state victories in Kansas, Kentucky, Michigan and Vermont on abortion rights in the 2022 Midterms suggest that this is only round 1. 

Round 2 is already underway, as Red state legislatures fail to listen to warnings from Republican party leaders and push everything from forced birth on raped teenagers to government approved D&C’s for bereaved mothers suffering miscarriages to reversal of women’s pharmaceuticals long ago approved as safe and effective by the FDA.

As Republican Governor of New Hampshire, Chris Sununu, warned, “Any conversation about banning abortion or limiting it nationwide is an electoral disaster for the Republicans…The Republican Party has an inability to move off this issue in a way that doesn’t scare the heck out the average voter, the independent voter, the younger generation of voters. These guys keep pushing themselves deeper and deeper into an ultra-right base that really does not define the bulk of the Republican Party.”

Round 3 could deliver a knock out to Republicans in 2024, and leave the ERA standing tall in the middle of the ring declaring “I am the greatest of all Amendments!”

Mike Magee MD is a Medical Historian and author of CODE BLUE: Inside the Medical-Industrial Complex.