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Virginia’s blue wave revives hope for the ERA in Washington

Photo: Ned Oliver of the Virginia Mercury

WASHINGTON — The U.S. House advanced a resolution on Wednesday that aims to ease the ratification of a constitutional amendment that would ensure equality for U.S. citizens under the law, regardless of their sex.

The Equal Rights Amendment was first introduced in Congress in 1923 and was passed overwhelmingly by the House and Senate in the 1970s, but has failed to win approval by the 38 states needed for ratification. In 2017, Nevada became the 36th state to ratify the ERA and Illinois last year became the 37th state to do so.

The 13 states that haven’t ratified the ERA are: Arizona, Utah, Florida, Georgia, North Carolina, Oklahoma, Missouri, Arkansas, South Carolina, Mississippi, Louisiana, Alabama and Virginia. Click here for more state information.

Now, backers of the amendment are pinning their hopes on Virginia after this month’s elections handed Democrats control of both houses of the Virginia General Assembly. The state is widely expected to ratify the ERA after Democrats assume power in January.

But there are some thorny legal issues that could complicate the process and are almost certain to land the matter in the courts if Virginia or another state does become the 38th state to ratify the ERA.

One prominent issue: a congressional deadline imposed when Congress passed the ERA. Lawmakers initially set a March 1979 ratification deadline for states, which was later extended to June 1982. But the amendment still hadn’t gotten the backing of 38 states when that deadline expired.

On Wednesday, the U.S. House Judiciary Committee attempted to nullify that deadline entirely.

The panel voted 21-11 along party lines to approve a resolution from Rep. Jackie Speier (D-Calif.) that would remove the deadline initially laid out in 1972. The resolution, which now heads to the full House for a vote, has the backing of 217 co-sponsors, including two Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York.

All three North Carolina Democratic members — Alma Adams, G.K. Butterfield and David Price  are among the co-sponsors.

This past August, an editorial in Raleigh’s News & Observer echoed the arguments of advocates at North Carolina NOW and the ERA-NC Alliance that North Carolina should finally ratify the amendment. The editorial concluded:

“Women need the power of a constitutional amendment to ensure their protection from discrimination in the form of lower wages and harassment. Enshrining the equal rights of women in the Constitution should not be difficult. That it has proven so reveals the persistence of bias against women and demonstrates the need for the amendment.

North Carolina should make this long-denied right an enduring one.”

Sen. Ben Cardin (D-Md.) has introduced a Senate version of the resolution to remove the ERA deadline. His effort has the backing of Sens. Lisa Murkowsi (R-Alaska), Susan Collins (R-Maine) and Angus King (I-Maine). But it’s unclear whether the effort will gain traction in the GOP-controlled Senate.

House Democrats hailed Wednesday’s vote as a historic event, lamenting the fact that the ERA hasn’t yet been added to the Constitution. 

“Unfortunately, despite existing protections, in troubling ways, women’s rights have begun to slide backwards in recent years,” said House Judiciary Committee Chairman Jerry Nadler (D-N.Y.). “For instance, the Trump Administration continues an onslaught of threats to women’s rights on a regular basis,” he added. “Also, women still have uneven protections against other forms of discrimination and against harassment in the workplace.”

Ahead of the vote, Rep. Lucy McBath (D-Ga.) said that “all Americans deserve to be treated equally.” She added, “Women have been fighting tooth and nail for decades to be recognized as equal in the eyes of the law.”

Rep. Mary Gay Scanlon (D-Pa.) noted that Alice Paul, the suffragist who authored the ERA in the 1920s, graduated from Swarthmore College in Scanlon’s district.

Scanlon, who was 12 years old when the ERA passed Congress in 1972, said she waited her “entire adult life to see us get to the finish line.”

Rep. Zoe Lofgren (D-Calif.), who now sits on the Judiciary Committee, worked on the ERA and on the deadline extension in the 1970s, when she was a congressional aide. She said there was “substantial discussion” at the time about whether the deadline extension “was even necessary,” because “it’s not clear that Congress can limit the time.”

She voted this week to support the resolution to remove the deadline because it’s “better to be safe than sorry,” she said, but she believes that if Virginia ratifies the ERA, that it will “in fact become part of the Constitution.”

But Republicans on the panel warned that Congress can’t do away with the deadline set decades ago.

Congress does “not have the constitutional authority  to retroactively revise a failed constitutional amendment,” said Rep. Doug Collins of Georgia, the top Republican on the Judiciary panel. He accused Democrats of attempting to subject citizens in all 50 states to the “current political trend in just one state.”

Collins said that backers of the ERA have no choice but to “start the whole process over.”

Republicans also said that adding the ERA to the Constitution would limit states’ ability to impose limits on abortions.

“It is well undrerstood that the language used in the ERA would not protect women but would prevent states’ voters from enacting any limits on abortion up to the moment of birth,” Collins said.

Rep. Debbie Lesko (R-Ariz.) also opposes the effort, saying the amendment would “enshrine a right to unlimited taxpayer-funded abortion.”

According to the abortion rights advocacy group NARAL, ratification of 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.”

Some of the ERA’s supporters, meanwhile, have downplayed a connection between the ERA and abortion rights. Speier, the lead sponsor of the resolution that passed the committee on Wednesday, said earlier this year that the ERA is “no stalking horse for abortion,” and emphasized that the proposed amendment isn’t a ploy to enshrine additional abortion protections, Vice reported.

Robin Bravender is the Washington Bureau Chief or the States Newsroom Network, of which Policy Watch is a member. Rob Schofield contributed to this report.

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