A federal judge has dismissed a lawsuit to ratify the Equal Rights Amendment, a huge victory for pro-life advocate who explain that the ERA could be used to create a so-called right to kill babies in abortions. The ERA has already been used in some states to require taxpayers to fund abortions.
U.S. District Judge Rudolph Contreras ruled that the ratification period for the Equal Rights Amendment, set in the ERA Resolution approved by Congress 49 years ago, was valid, and that the actions of the legislatures of Nevada (2017), Illinois (2018), and Virginia (2020) to try to adopt the amendment after the deadline had no legal effect.
In a case called Virginia v. Ferriero, those three states sued the Archivist of the United States in the federal district court in the District of Columbia, after the Archivist declined to certify the ERA as part of the Constitution, following a “ratification” by the Virginia legislature in January 2020. The Archivist deferred to a legal opinion issued by the Department of Justice’s Office of Legal Counsel (OLC), January 6, 2020, which held that the ERA ratification deadline (March 22, 1979 – not in 1982 as often reported) was valid, and not subject to later manipulations by Congress.
With respect to the constitutionality of the deadline, Judge Contreras agreed with the arguments raised by several states, including Alabama, Louisiana, Tennessee, Nebraska, and South Dakota, that the fact that Congress included the deadline in the Proposing Clause (not “preamble”) of the ERA resolution (as Congress has done with every constitutional amendment proposed since 1960) had no bearing on its legally binding nature.
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The decision against ERA ratification is surprising given that Judge Contreras is an appointee of President Barack Obama.
Judge Contreras did not rule on whether a state has a right to rescind its ratification before a deadline, as five states have done.
Despite the ruling, Democrats plan to try to push the pro-abortion ERA in Congress. House Majority Leader Steny Hoyer (D-MD) on March 2 announced that the U.S. House of Representatives will take up a measure that purports to “remove” the ERA ratification deadline, during the week of March 15.
Douglas Johnson, of the National Right to Life Committee, told LifeNews.com that Democrats are trying to get around the court to get the ERA ratified.
“Democratic congressional leaders and attorneys general are part of a political-pressure campaign to intimidate the federal courts into permitting them to air-drop the long-expired ERA into the Constitution. Today, a federal judge appointed by President Obama ignored the political pressures and unflinchingly enforced the Constitution,” he said.
Johnson said: “The upcoming votes in Congress are another chapter in the political-pressure campaign directed at the courts. The Constitution does not empower Congress to time travel to 1972 to resuscitate a long-dead constitutional amendment.”
He explained that the “deadline removal” measure (currently H.J. Res. 17, S.J. Res. 1) is expected to narrowly pass the House of Representatives since Democrats control the chamber. “but it has a much steeper climb in the Senate,” Johnson said.
“The Democrats’ position that the current Congress, by simple majority votes, can retroactively revise a measure that passed Congress in 1972 by the constitutionally required two-thirds margins, is absurd on its face,” he added.
The late Justice Ruth Bader Ginsburg has agreed that the deadline for ratification has passed and ERA supporters must start the process all over again. And if states adopting the ERA after the deadline were approved then states that have rescinded it should be recognized as well, she said.
On February 10, 2020, in remarks at Georgetown University Law Center, Ginsburg indicated that she believes the proper approach for ERA supporters, such as herself, is “a new beginning. I’d like it to start over.” Virginia’s adoption of an ERA resolution at the time was, she said, “long after the deadline passed.” If such “a latecomer” were to be recognized, she suggested, “how can you disregard states that said, ‘We’ve changed our minds’?”
Leading pro-life groups oppose the ERA because it is likely to be employed as a textual constitutional foundation for judicial rulings that would invalidate virtually any state or federal law that protects babies from abortion. The 1972 ERA language is also likely to be construed to require state and federal health program to fund abortions without limitation and could be used to create a fictitious right to kill babies in abortions.