Justice Dept. Says 1972 Equal Rights Amendment Is Dead, 'States and Congress Cannot Resurrect It'

ABOVE:  Pro-life groups aren't wasting any time in their efforts to oppose the Equal Rights Amendment, which they say would create a stronghold for abortion in the US Constitution. Stephanie Stone with Students for Life, one of those pro-life groups, appeared on the Thursday afternoon edition of CBN's Newswatch to discuss the group's concern about the ERA and abortion. 

The Trump administration on Wednesday declared the 1972 Equal Rights Amendment to the Constitution is dead and has been dead for 40 years and no action by state legislatures or Congress can resurrect it.

The Justice Department said in a new 38-page opinion published Wednesday that recent efforts at ratification by Virginia Democrats to revive the ERA are futile.

The Office of Legal Counsel, which are the in-house lawyers for the Executive Branch of the federal government, said the time limit Congress put on the ratification process back in the 1970s was valid and has long since passed, according to The Washington Times. 

"We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the states," Assistant Attorney General Steven A. Engel wrote.

The Justice Department's opinion was released right before Virginia's General Assembly convened its first 2020 session. The new Democratic majority in the state had set the ratification of the ERA as one of its top goals.

The push for the ERA's ratification started decades ago but fell three short of the 38 states required by the Constitution.  Then Illinois and Nevada ratified the proposed amendment in 2017 and 2018, according to Reuters. But some of the original states to ratify the measure have revoked their ratifications even though the National Archives and Records administration still has them listed as ratifying the law.  

In theory, Virginia could become the 38th state to pass the ERA.  

But Engel has quashed that dream, writing: "Congress may not revive a proposed amendment after the deadline has expired."

"Should the people of the United States wish to adopt the ERA as part of the Constitution, then the appropriate path is for Congress... to propose that amendment once more," Engel added.

The pro-life organization, National Right to Life, (NRL) has warned for decades that the ERA, as traditionally worded, would pose a constitutional threat to all limitations on abortion. Increasingly, pro-abortion activist groups have dropped the previous pretense and admitted that they think pro-life laws would be invalidated by an ERA.  Groups that have explicitly recognized the ERA-abortion link by word or legal action, within the recent past, include NARAL, Planned Parenthood, the National Women's Law Center, the Women's Law Project, and the National Organization for Women. NARAL, for example, said in a 2019 national alert that "the ERA would reinforce the constitutional right to abortion . . . (it) would require judges to strike down anti-abortion laws . . ."

Commenting on the Justice Department's decision, NRL Senior Policy Advisor Douglas Johnson said, "The narrative that the ERA is on the verge of ratification is pure political theater." Johnson, who has directed NRL efforts in opposition to the ERA since 1981, continued, "The US Supreme Court in 1982 recognized the demise of the ERA. We predict that the Justice Department position will be fully vindicated by the higher federal courts."

"Of course, Congress has the option of restarting the entire constitutional amendment process, but that entails consideration of revisions to the ERA language -- to prevent, for example, use of ERA as a powerful weapon against pro-life laws. And, it requires final congressional approval by two-thirds votes in each house, and ratification by three-fourths of the state legislatures," Johnson noted. 

The House Judiciary Committee recently approved a resolution (H.J. Res. 79) that purports to nullify the deadline contained in the ERA resolution (H.J. Res. 218) submitted to the states in March 1972.  The 1972 measure contained both the deadline and the proposed constitutional text. 

"The Justice Department opinion makes it clear that the current Congress has no power to travel back in time and alter what Congress, by two-thirds votes, proposed to the states in 1972," Johnson said.