Open up a grave

LITTLE ROCK — Opportunity only knocks once. Repeated attempts to ratify or re-introduce the Equal Rights Amendment (ERA) first submitted to the states in 1972 have failed again and again, and even though the U.S. Supreme Court declared the ERA officially dead, some people just won’t let it rest in peace.

Arkansas’ best effort to become one of the states in the doomed “three-state strategy” to ratify the ERA occurred in 2007. Rep. Lindsley Smith sponsored House Joint Resolution 1002, which was co-sponsored by over 40 House members and a dozen senators and enjoyed the support of Arkansas’ constitutional officers.

At the committee hearing, former governor and U.S. Sen. David Pryor spoke in support of the legislation, but the sponsor was stunned when an amendment was introduced that removed almost half of the co-sponsors. The measure ultimately failed in committee as conservative groups joined to defeat it, owing much of the credit to Phyllis Schlafly, founder of Eagle Forum, who presented personal testimony of her efforts to defeat the original measure when it was first introduced during the 1970s.

The National Right to Life Committee and Arkansas Right to Life strongly urge the Arkansas Legislature to reject any effort to dig up this issue for two reasons:

First, the language of the proposed 1972 ERA is virtually identical to language that major pro-abortion groups have used in other states for highly successful legal attacks on laws protecting unborn children and limiting tax funding of abortion. Leading pro-abortion groups-including NARAL, the ACLU, and Planned Parenthood-have strongly urged state courts to construe state ERAs, containing language virtually identical to the language of the 1972 federal ERA proposal, to invalidate laws that treat abortion differently from other medical procedures, including laws restricting tax funding of abortion and laws requiring parental notification or consent for minors’ abortions.

In 1973, New Mexico adopted a state ERA that was subsequently used to attack the state policy against tax funding of abortion, and the New Mexico Supreme Court agreed. This same analysis-that limits on abortion are by definition a form of sex discrimination and therefore impermissible under ERA-can be used to invalidate any federal or state restrictions even on third-trimester abortions, federal and state conscience laws, and parental notification and consent laws.

Indeed, the ACLU “Reproductive Freedom Project” has published a booklet that encourages pro-abortion lawyers to use state ERAs as legal weapons against state parental notification and consent laws. Prolife members of Congress have proposed the addition of a simple “abortion-neutral” clause before any such new ERA is sent out to the states for possible ratification-a proposal so far not accepted by the leading advocates of the ERA.

Second, the resolution is part of an effort to evade the federal constitutional amendment process spelled out in the U.S. Constitution itself.

The original 1972 federal ERA resolution contained a seven-year deadline for ratification, which expired in 1979 with only 35 state legislatures having ever acted to ratify, of which 26 explicitly referred to the deadline in their ratification resolutions and of which five rescinded their ratifications prior to the deadline.

In a highly controversial move, Congress by majority vote passed a resolution that purported to extend the deadline into 1982, but when this disputed second deadline arrived, no new states had ratified. Subsequently, a federal district court ruled that the deadline extension was unconstitutional and that the five rescissions were valid.

When that ruling was appealed to the U.S. Supreme Court, the administrator of U.S. General Services wrote a memorandum explaining that the ERA was dead any way you cut it-under either deadline, and whether or not the rescissions were valid. In 1982, the Supreme Court explicitly declared that all legal issues surrounding the 1972 ERA resolution were “moot” because the ERA was already dead.

In short, such an unconstitutional “resurrection resolution” is nothing short of an effort to evade the requirements for amending the U.S. Constitution that are spelled out in the Constitution itself. These unconstitutional resolutions are failures.

Arkansas got it right in 2007. The ERA is dead. Let’s bury it.

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Rose Mimms is executive director of Arkansas Right to Life.