Members Only | June 14, 2022 | Reading Time: 4 minutes

To protect abortion rights, the Democrats should finish the ERA

An amendment finally ratified is an opportunity.

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Facing an imminent Supreme Court decision that will take women’s legal status literally back to the 17th century, it may be time for Democrats to consider doing something bold, proactive and just.

Democrats should ask themselves if they are ready to enact the Equal Rights Amendment. As in, right now. Believe it or not, they could.

Five weeks ago, Democrats weren’t planning to fight the midterms on abortion for good reason: they know this has never been a winning issue. The new dream of party activists – where legions of outraged pro-choice voters descend on the polls this November to rescue Democrats from the midterm jinx – is dubious at best. 

Fighting over the Equal Rights Amendment would make abortion a subset issue of equality and tie it to cost-of-living issues like pay, family leave and health parity that powered Democrats among suburban women in the last two elections.

Yes, about two-thirds of Americans say they want to keep Roe. But the muddier reality is that only one-third of Americans support second trimester abortion, 30 percent of Democrats identify as pro-life and support for various restrictions, even fairly intrusive ones, crests in the 80-90 percent range. Most important, abortion views in the critical swing states and congressional districts are mostly dead even. 

Democrats will likely find running on abortion this fall is like shouting into a sinkhole. Americans have very little understanding of what the Dobbs ruling will mean. To the extent that they do, most will be OK with their own state’s approach. Or they are already activated on this issue, so the ruling will change little. Not to mention that Republicans have already deployed water-muddying talking points that polling and history suggest will be highly effective in blunting attacks. 

So if approaches focusing the election on abortion are likely to come up short, Democrats should do the opposite. Go bigger. 

If they can’t prevail – but can’t ignore a fight their base will demand – take Dwight Eisenhower’s advice and enlarge their problem.

How it would work
Fighting over the Equal Rights Amendment would make abortion a subset issue of equality (as Ruth Bader Ginsberg always wanted) and tie it to core economic and cost-of-living issues like pay, family leave and health parity that powered Democrats among suburban women in the last two elections and remain top issues this year.  

How would it work? 

Congress passed legislation to enact the ERA in 1973. It also included a deadline to ratify it. Remember a Constitutional Amendment must be ratified by three-quarters of the states to go into effect. But as of the deadline, the ERA was three states short. It’s been dormant for years.  

But then a funny thing happened. 

Starting in 2017, three more states suddenly ratified it, bringing it over the goal line. Now, the major remaining obstacle was the deadline. But advocates argued that the Constitution says nothing about Congress setting a time limit. In fact, the 27th Amendment (regarding salaries of members of Congress) was ratified 200 years after Congress passed it. 

And here’s the key thing:

Constitutional law experts agree that the national archivist, who works for the president, could – and, under the Constitution, should – recognize the ERA as enacted the moment it’s been ratified. 

It’s been ratified.

Now what?

It should have already been published as part of the Constitution. 

In fact, the current archivist’s refusal to do so has relied on an opinion from Donald Trump’s Department of Justice, which famously and egregiously operated based on ex-Attorney General Bill Barr’s agenda.  

We now have a new AG who isn’t cooking the books. A new president could ask the DOJ to review and reissue their opinion immediately. 

Or Joe Biden could simply say that on the basis of the Constitution and existing legal briefs, the official executive branch position is that the ERA has been enacted and that all agencies should treat it that way.

So long story short, the means exist to declare the ERA enacted. 

There are two basic objections to this approach. 

One is that simply publishing the Amendment doesn’t necessarily create a legal effect either for ensuring equality or for protecting abortion specifically, especially since the status of the Amendment would almost certainly end up litigated before the Supreme Court. 

But a broad coalition of women’s rights groups argues that simply publishing it would advance state efforts to fight discrimination. 

Many legal and constitutional scholars agree that enacting the ERA would open up the potential for powerful legal protection for abortion. 

University of Baltimore School of Law professor Kim Wehle says that “it would have a tremendous impact,” because “it would get around the argument that substantive due process – which is the basis for privacy – has got to be expressed in the Constitution.” 

The second objection is political. 

Since the ERA would immediately fall into a legal morass, it might be no more compelling to the American people than the Dobbs ruling.  

Plus declaring the ERA enacted could look like political interference with federal agencies, which could open the door for a future president (including Trump) doing more of the same.

A fighting chance
Shifting the messaging fight to the ERA would be far from a political sure thing. But it is still a better battle to wage. 

Democrats should prefer a situation where Republicans have to try to explain why they are trying to rip equality for women out of the Constitution over them merely having to repeat the abortion battles they’ve already shown they know how to win. Republicans fear an ERA fight, because they know that opposition is a lot harder to explain.

As for the interference argument, it’s hard to see how this highly specific situation could be generalized. Or how a president following the advice of legal scholars to adhere to the plain language of the Constitution would be an act of politicizing the Department of Justice.

Most of all, it’s worth picturing what the McConnell-ite Republican Party would do if the tables were turned. Would they clutch pearls at the idea of asking an archivist to press the print button? 

We know the answer.

Democrats can watch as the inevitable plays out.  

But if they are bolder, they’d have a fighting chance. 

Matt Robison covers public policy and governance for the Editorial Board. The host of Beyond Politics Podcast and Great Ideas Podcast, for WKXL in Concord, NH, he lives with his family in Amherst, Mass.

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