First drafted nearly 100 years ago, the Equal Rights Amendment appeared to be nearing ratification in the ’70s but was stopped in its tracks, and for good reason. It was largely American women who campaigned against it and helped others understand the damage it would wreak upon the country.
Thanks in large part to the STOP ERA campaign, lawmakers realized the amendment would have unleashed a cascade of government actions that would harm women. This included on-demand government-financed abortion, the legal dissolution of biological differences between men and women, and restrictions on women’s legal rights in matters of divorce.
Today, we realize just how prophetic the dangers of the Equal Rights Amendment were. Yet progressives are still calling for it to be ratified. The name “Equal Rights Amendment” makes the initiative sound beneficial, but in reality, it’s an unnecessary amendment that would have threatened women’s fundamental rights.
The ERA wasn’t needed in the ’70s, and it isn’t needed now.
What is the Equal Rights Amendment?
The saga of the Equal Rights Amendment has been a long one.
The amendment claims to end discrimination against women by erasing the distinctions between the sexes in matters of divorce, employment, property, and more.
First proposed in 1923, the Equal Rights Amendment didn’t receive Congressional approval until 1972, after which it went to the state legislatures for ratification. For the amendment to be ratified, three-fourths of the states had to pass it within seven years.
The Equal Rights Amendment had strong bipartisan support in the ‘70s, and it seemed bound for ratification—that is until mom, wife, and political advocate Phyllis Schlafly came along and mobilized a grassroots campaign against it. As a result, the amendment not only failed to gain the support from the states necessary for ratification, but many other states that had initially passed the ERA eventually reversed their positions, rescinding their support of the amendment.
What happened to the Equal Rights Amendment?
Thanks to Phyllis Schlafly’s STOP ERA campaign, made up of concerned women from all walks of life, support for the Equal Rights Amendment dissipated. In 1977, only 35 states had signed on to ratify the ERA out of the 38 total needed for the amendment to pass. Congress had even provided a deadline extension for the ERA’s ratification.
In 1982, the extended deadline had come and gone. Some states had passed their own versions of the Equal Rights Amendment in state constitutions, and many of the forewarned harms came to pass. That reinforced the resolve of lawmakers, who knew the ERA would be even more devastating if ratified federally. Women would have been subject to the draft, and any recognition of biological differences between men and women would have been dissolved.
But even though the deadline for the ERA’s ratification expired—twice over, and by a few decades—that fact has not stopped progressives from arguing that it isn’t too late to still enshrine it in the U.S. Constitution.
In 2017, Nevada became the first state to ratify the ERA since 1977—part of the proponents’ efforts to bolsters its claim that the ERA was still on the table. In 2018, Illinois signed on as well. Theoretically, 37 states had signed on at that point—with two of those states having done so far past the deadline.
In 2020, Virginia voted to ratify the ERA, claiming that its vote certified a legitimate 38th state signature. But when the Department of Justice told Virginia that its vote could not count since the ERA was no longer up for debate, Nevada, Illinois, and Virginia joined in a lawsuit against the national archivist—the official charged with administering the process of ratifying a constitutional amendment.
But, despite these states’ crafty attempts to breathe life into a long-dead amendment, even President Biden’s Department of Justice recognized this attempt to resuscitate the Equal Rights Amendment was not feasible.
In January 2022, the Office of Legal Counsel in the Biden Administration’s Department of Justice announced it was defending the archivist and reiterated its January 2020 opinion that “because 38 states had not ratified the proposed amendment before that deadline’s expiration, the ERA is not a part of the United States Constitution and the Archivist of the United States may not certify it as such.”
In February 2022, Virginia Attorney General Jason Miyares announced that the commonwealth was reversing its legal position and withdrawing from a lawsuit seeking to ratify the Equal Rights Amendment.
So, the Equal Rights Amendment is going nowhere, which brings us to the question of why it was wrong in the first place.
The dangers of the Equal Rights Amendment
The Equal Rights Amendment is dangerous—and it’s been made even more dangerous since it was first introduced. Schlafly was right to halt it in its tracks.
Activists would use the ERA to create federal protections for the abortion industry. Since 1979, several state legislatures have passed their own state ERAs. And the abortion industry has argued that state-level ERAs can be used to mandate taxpayer funding for abortions. For example, ERAs in some states, including New Mexico and Connecticut, have been applied in court to defend taxpayer funding for abortions that are “medically necessary.”
The Alice Paul Institute’s ERA website spells it out clearly: “Remaining gender inequities result more from individual behavior and social practices than from legal discrimination.” The activists almost come right out and say it: there is no real need for the amendment—aside from the fact that the current version of the Equal Rights Amendment would allow for a rapid creation and passage of sexual-orientation and gender-identity (SOGI) laws as well as federal protections for abortion.
Another danger of the ERA is that its removal of the distinctions between men and women in our laws could allow for men who identify as women to compete in women’s sports. This would destroy equal educational and athletic opportunities for women and girls—not to mention it would threaten the very existence of women’s sports.
Additionally, ratifying the Equal Rights Amendment decades after its expiration would have undermined our rule of law. The U.S. Constitution lays out a process for ratifying new amendments. The ERA already went through this process and failed. And if activists want to resurrect it, they’ll have to start over from the beginning. They can’t just pick up where they left off in 1979.
Even the late Supreme Court Justice Ruth Bader Ginsburg, a hero of the left and a supporter of the ERA, acknowledged as much. In 2020, Justice Ginsburg said she would like to “see a new beginning” for the amendment, and that she would “like it to start over.” And she made similar comments in 2019, expressing her desire that the ERA be “put back in the political hopper, starting over again, collecting the necessary number of states to ratify it.”
As ADF General Counsel Kristen Waggoner has said, “The ERA not only undermines women’s rights and opportunities, it falls far short of the requirements to amend the Constitution. As it stands today, the ERA is legally dead and has been for the last 40 years because its proponents failed to achieve the required support from the states… Following that process by starting over respects the American people and the integrity of the Constitution. And that’s good no matter what side of the aisle we find ourselves.”
It's time for the activists to accept what Justice Ginsburg, Attorney General Miyares, and the Biden administration DOJ have all observed: that Congress’s deadline to ratify the ERA has long since passed, and the Equal Rights Amendment is legally dead.