On February 13, 2020, the House of Representatives passed the dull-sounding H.J. Res 79. Despite its name, this resolution indicates a dangerous attempt to disregard constitutional order and states’ rights for the purpose of codifying a progressive dogma: the alleged “right” to abortion.
For progressives, the inconvenient truth is that abortion rights in America stand on shaky ground. A single Supreme Court ruling, Roe v. Wade, alleged that such a “right” lurked in the “penumbras of emanations” of the Constitution’s 14th Amendment. Roe has been widely criticized for being legally unstable. Even pro-choice legal scholars like Edward Lazarus, who clerked for Justice Harry Blackmun (author of the Roe opinion) question the legitimacy of the ruling. Lazarus wrote in a commentary on Roe, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose… and as someone who loved Roe’s author like a grandfather.”
It may seem impossible now, but the reality is that the Supreme Court has frequently reversed a ruling that it deemed unsound. This has happened on matters as varied as the Compensation Clause, child labor laws, and freedom of speech. The widely recognized instability of Roe’s reasoning makes it a candidate for reconsideration, should the right case come before the right Court.
This is a major problem for progressives. Abortion has become an untouchable pillar of the progressive project of self-actualization, which in practice means total self-expression with absolutely no social or moral consequences. Right now, more and more states are passing laws protecting life. With their beloved Roe under increasing scrutiny and state legislatures stepping up to defend the rights of the unborn, progressives have resorted to congressional malarkey in an attempt to make abortion a part of American law—forever.
To look at H.J. Res 79, it would be easy to miss its significance. All the resolution purports to do is to end the ratification deadline on a 1970s-era piece of legislation known as the Equal Rights Amendment (ERA).
The ERA has been one of the House’s pet projects since Democrats took control in 2018. Its key phrase is this: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” While this might sound like a boon for women, it has sinister implications. The amendment could, among other things, require women to register for the draft, strip them of sex-specific legal protections in the workplace, and eliminate legal practices such as alimony and child support.
The ERA would also open the door for federal laws permitting taxpayer-funded abortions and eliminating all restrictions on abortion. Because only women can have abortions, progressives could argue under the ERA that any law restricting abortions denies women their rights “on account of sex.”
Women have recognized the ERA’s negative consequences for decades. Starting in the 1970s, women’s groups ranging from feminist labor activists to a massive coalition of conservative and pro-life women led by Phyllis Schlafly have opposed the ERA.
Clearly, the ERA has a complex history. The House and the Senate first debated the ERA in the early Seventies—the years just prior to Roe v. Wade. But the language of the proposed amendment is far older. The ERA was first drafted in the 1920s, just after the women’s suffrage movement achieved its goal of getting women the right to vote. It was revised in the 1940s, then left untouched until Congress took it up in 1971, even as another question of women’s “rights” was becoming a cultural flashpoint. The question was not, this time, about the legitimate right for women to vote, but the so-called right to kill their unborn child.
Congress eventually passed the ERA in March 1972, less than a year before the Supreme Court gave its decision in Roe. Because it was a proposal to amend the Constitution of the United States, the ERA had to be ratified by 38 states. The original draft of the ERA passed by Congress gave the proposed amendment seven years to do this.
The ERA did not meet the deadline. Even when Congress extended the deadline to 1982, it still garnered only 35 of the 38 ratifications it needed. At that point, the ERA looked to be dead. It had been passed by Congress, but not ratified by the states, so there was no path forward—until now.
H.J. Res 79 claims to put the ERA back on the table by eliminating the 1982 deadline. Complicating the situation is that, in the years since 1982, enough states have ratified the amendment for it to qualify. But several other states have rescinded their ratification, creating a constitutional mess.
Because of all this confusion, the just solution would be to throw the whole thing out and start over—a solution proposed by no less a progressive luminary than Justice Ruth Bader Ginsberg. Unfortunately, the Democrat-controlled House has chosen instead to fiddle with the language of the original amendment by removing the deadline and thereby plunge the whole process into confusion.
House Speaker Nancy Pelosi has tried to distance the current push for the ERA from abortion. As the House discussed H.J. Res 79, Pelosi said that the amendment “has nothing to do with abortion.” But her own supporters are shouting her down. NARAL Pro-Choice America’s website trumpets its support for the ERA, saying: “With its ratification, the ERA would reinforce the constitutional right to abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate both the constitutional right to privacy and sexual equality.” The National Organization of Women, a pro-abortion group, said: “An ERA—properly interpreted—could negate the hundreds of laws that have been passed restricting access to abortion care and contraception.”
It is not clear right now what will happen with the ERA. Changing the language of the amendment should mean that states would have a chance to re-debate it, but no straightforward procedure has emerged. Regardless of what happens with the amendment, progressives have made their point: they are so desperate to find a way to salvage the “right” to abortion that they are willing to compromise constitutional procedure and even trample the rights of the states to do it.
Pro-life Americans should not be deceived by the ERA’s anodyne name. Far from ensuring equal protections for women, the ERA has the potential to expose them to the same harmful abortion practices that many states have been diligently trying to protect them from. It could allow this alleged “right” to abortion sink its teeth deeper into our legal system and make it much more difficult to pass laws that respect and promote life.
For better or for worse, the ERA grew up side-by-side with the false perception that women have a right to abort their babies, and the shadow of Roe continues to darken its promise of equality.