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The ERA of 1972 no longer exists in 2024

The ERA of 1972 no longer exists in 2024

Last updated on: January 19, 2025 at 3:33 pm by Jane the Actuary

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The ERA of 1972 no longer exists in 2024 2025-01-19T15:33:32-06:00 Jane the Actuary

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So on Friday, President Joe Biden declared that the Equal Rights Amendment is henceforth adopted, following the urging of supporters, based on arguments that the constitution doesn’t have any provision for Amendment approvals setting time limits, so that the 1982 deadline was never valid. The National Archivist said, “no, it’s my job to certify amendments and I do not,” and Biden supporters said, “her role is purely ministerial,” and, well, it should be apparent that if the role of certifying amendments is not really the National Archivist’s, then neither is it the President’s, as the constitution hardly specifies anything on this point. I think it’s rather credible to say that it is left to ordinary legislation to fill in the details of a process the broad outlines of which are stated in the Constitution, but, even if that’s not the case, it is the Supreme Court which makes this determination, and there have already been rulings which accept the deadline expiration as valid.

Thus far, I’m not going to hunt down references and links.

But let’s take a look at the text itself, the key statement, anyway, with a simple reference to Wikipedia for the factual context:

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

What does this mean?

In 1972, when it was passed by Congress and ratified by most of the states who would ultimately choose to do so, it would have been very straightforward. Neither the federal government nor the states can discriminate against women. To take simple examples, men and women must have equal access to Social Security or unemployment benefits, rather than, say, a woman who loses her job being treated as having been “working for pin money,” as they used to say, rather than a breadwinner.

Now?

Pretty much every word in that sentence is contested.

Equality? That’s a dirty word according to activists who push for “equity” instead, or “equality of outcome.”

Rights? The notion of what constitutes a right, again according to activists, has shifted very dramatically. In particular, in 1972, there was no “right to abortion,” as this was this expected to be resolved through legislation. Now, there’s a long list of similar “rights” which were never dreamed to have existed in 1972.

Under the law? In the year 2024, the government’s new standard is “disparate impact.”

By the United States or any State? It goes without saying that the principles of anti-discrimination are now applied to private sector employers, schools, organizations, etc.

and, finally, sex has been redefined by the Biden administration and other activists to include:

status of being pregnant or having had an abortion or wanting an abortion,
whom one has sex with, and
“gender identity” — both with respect to mandating a transgender person have access to sports, locker rooms, spas, etc., corresponding to the sex with which they identify, and with respect to mandating that insurance companies pay for so-called “gender affirming” surgeries and treatments, with no limit, and that providers provide these.

And, after all, why is this an issue in 2024? Because activists believe that any prohibition of abortion is a violation of “equal rights for women,” both because

Only women can get pregnant, so any laws regarding abortion are inherently unequal, and
Because motherhood reduces women’s wages, increases their expenses, and fundamentally alters their lives, women cannot be “equal” to men without having recourse to abortion for unplanned pregnancies.

That’s it. That’s the endgame. Declare the ERA to have been passed and use that as a means of overturning abortion bans.

So let’s consider the counter-factual that the ERA had passed. There would have been a body of case law, a set of precedents, that would have established meanings for the key words and the overall statements within the context of norms at the time it was passed. This would have been the basis for later claims and would have limited wild expansions and interpretations.

Essentially, to now declare the ERA to have been ratified, and proceed to use 2024 progressive interpretations of the scope of the amendment is to overturn the will of the legislators at the time, and impose a new law onto the body of the law they passed. This is fundamentally anti-democratic, even if it is “people of the future” rather than some other entity, making this undesired change.

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