House Democrats are trying to eliminate the ratification deadline for a constitutional amendment that expired more than 30 years ago, but one of the Supreme Court's left-leaning jurists says that the whole effort just needs to start over from the beginning.
At a Monday event at Georgetown University celebrating the centennial of the 19th Amendment, Justice Ruth Bader Ginsburg was asked about her prognosis for the future of adding an Equal Rights Amendment to the United States Constitution.
"I would like to see a new beginning," the justice said. "I would like to start over."
The Equal Rights Amendment — which said that "equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex" — was passed by Congress in 1972 and was given a seven-year deadline followed by a three-year extension for the requisite three quarters states to sign on. By the time the extended deadline expired in 1982, only 35 of the 38 states necessary had ratified it.
"There is too much controversy about latecomers — Virginia — long after the deadline passed," Ginsburg said Monday, "Plus, a number of states have withdrawn their ratification; so if you count a latecomer on the plus side, how can you disregard states that said, 'We have changed our minds'?"
Five states — Tennessee, Nebraska, Kentucky, Idaho, and South Dakota — have withdrawn support for the amendment since ratification.
The expired ratification deadline has become a point of contention as, in recent years, other states have moved to ratify the amendment. Nevada ratified it in 2017, as did Illinois in 2018. Virginia's Legislature ratified the measure in January, bringing the total number of ratifications to 38, and once again raising the question about whether or not those ratifications count.
The Democratic attorneys general of Virginia, Nevada, and Illinois filed a lawsuit in federal court in January, arguing that the Constitution doesn't place deadlines on amendments and that the deadline wasn't included on the article that was sent to the states.
However, the Trump administration has argued that the issue died almost 40 years ago when the deadline expired.
"Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment," a Justice Department Office of Legal Counsel opinion last month stated. "It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States."
Meanwhile, the Democrat-led House of Representatives is expected to pass a resolution this week intended to simply eliminate the deadline.
Outside of the constitutional debate about the ratification process, critics of the amendment have warned that it could be used as an effort to bolster abortion.
"It would enshrine abortion in our Constitution for all nine months — even during the birth of a child — and could force taxpayers, including Feminists for Life, to pay for abortions," Feminists for Life of America President Serrin Foster wrote at The Washington Examiner. "Abortion is a betrayal of feminism."
A 2018 paper from the Charlotte Lozier Institute says that the ERA is seen by many as an effort to protect abortion rights in case the Supreme Court ever does away with the "weak prop" of the Roe v. Wade decision.
"Because legal abortion has no actual constitutional authority, abortionists and their Congressional allies are convinced they need to add the ERA to the Constitution to keep abortion 'legal,'" the paper contends. "Taking a radical short cut to this goal is, in their view, self-justifying."