With support from both Democrats and Republicans the U.S. Congress passed the Equal Rights Amendment in 1972, that states, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” But after passing the House and Senate, the proposed amendment fell short of the three-fourths majority of states—38—that were needed to ratify it before a seven-year deadline set by Congress. Although that deadline was extended by three years, no new sates ratified the ERA. Complicating matters, five states later voted to rescind their earlier ERA ratification, which scholars say is not legally valid.
Since 2017, three states—Nevada, Illinois and Virginia—voted to ratify the ERA, totaling 38 states, but the U.S. Court of Appeals for the District of Columbia ruled that the congressional deadline on the ERA was legally binding, so the later three ratifications cannot be counted. ERA supporters argue that Congress now has the power to lift the deadline.
A new Congressional caucus was launched on March 28 focused on enshrining the ERA as the 28th amendment to the U.S. Constitution. Between The Lines’ Scott Harris spoke with Bettina Hager, Washington, D.C. director of the ERA Coalition, who talks about efforts now underway to pass resolutions supporting the ERA in more than a dozen U.S. states and the future impact of a ratified ERA on issues of pay equity and reproductive rights.
BETTINA HAGER: We’re working with legislators who know the law. They know how to create laws and (unintelligible) the laws, so legislators across the country are introducing resolutions where they’re affirming that the ERA is the 28th Amendment, and they’re calling on the archivist to publish the ERA to make it formal.
So we have over a dozen states that have introduced ERA-related bills. Some of them are states that never ratified. Some of the 12 states that didn’t ratify, but then the vast majority of them are states that have ratified, but who are calling on Congress to act, the archivist to publish, so that all of the work that they did and that the people who have cared about this issue 100 years can be recognized. And this tool to protect against sex discrimination can be used in courts.
So we have states from Arizona to Hawaii to New Mexico, Tennessee, Illinois, you know, legislators all over the country who are saying that this is such an important issue that they want to take a stand and they want to do whatever they can to make it known that across the country people want to see this in our Constitution.
SCOTT HARRIS: Bettina, I wanted to ask you, what are the areas that, if we had this national ratification and the ERA was to be attached to our U.S. Constitution, how would it make a difference in women’s lives and all of our citizens’ lives in the future?
BETTINA HAGER: I mean, there are so many ways that the ERA would make a difference. And I think part of it is that it would just send a really bold message to society that this is like a principle of importance to our country. It also gives Congress the ability to create laws.
The second section of the ERA says that Congress can use the amendment to create appropriate legislation to enforce the amendment. And so it would give Congress the ability to create laws that could have stronger protections against sex-based violence. It could also lead to stronger protections for workplace issues, workplace discrimination, workplace harassment. You know, our hope would be that it could be used even to create better laws around pay equity, parental and family paid leave. A lot of the things that in other countries around the world are just no-brainers.
But for us, we’re still not there yet. And those are the places that I see the ERA really immediately being able to to be used.
SCOTT HARRIS: And Bettina, of course, reproductive rights, abortion, even contraception seem to be a target of the Republican party and conservative movements in the country generally. How would the ERA, if it was enforced in our Constitution, how would it impact those opponents of women’s reproductive rights?
BETTINA HAGER: So the ERA is incredibly important to so many areas of reproductive justice. I have a lot of people will say to me, “Oh, will it change things back to before the Dobbs decision with Roe?” I don’t know that only because we have to look at who’s on our current Supreme Court. It may not be this Supreme Court that would use the ERA to reinstate the protections that we no longer have under Roe.
But there is a very strong equality argument for women’s bodily autonomy that can be used under the Equal Rights Amendment and one that I know many of our partners and many of the advocates that are in the reproductive justice space are developing and making. But the recent Dobbs decision kind of even went beyond that question and really touched on whether sex discrimination is at all protected in our Constitution.
And so it is one of those things where we know that they’re linked. You know, so people who don’t want women to have bodily autonomy are the same people who are saying, “Well, should they even be recognized as being protected at all?” So we know that there’s a link between them. You know, the immediate question of how it’s used is a little bit more complicated because it’s up to the courts.
But the ERA will undoubtedly be important to reproductive justice, which includes things like economics, access to health care. There’s so many ways that this is incredibly important in this current moment that we’re in — where we’re seeing our rights being taken away to keep that from moving forward.
Listen to Scott Harris’ in-depth interview with Bettina Hager (15:59) and see more articles and opinion pieces in the Related Links section of this page.
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