Democrats in Congress are making a fresh push for the nearly century-old Equal Rights Amendment to be enshrined in the Constitution, rallying around a creative legal theory in a bid to revive an amendment that would explicitly guarantee sex equality as a way to protect reproductive rights in post-Roe America.
Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri are set to introduce a joint resolution on Thursday stating that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution states that the national archivist, who is responsible for the certification and publication of constitutional amendments, must immediately do so.
It is a novel tactic for pursuing a measure that was first proposed in Congress 100 years ago and was approved by Congress about 50 years later but not ratified in time to be added to the Constitution. Proponents say the amendment has taken on new significance after the Supreme Court’s ruling last year in Dobbs v. Jackson Women’s Health Organization that overturned the abortion rights long guaranteed by Roe v. Wade.
“In light of Dobbs, we’re seeing vast discrimination across the country,” Ms. Gillibrand said in an interview. “Women are being treated as second-class citizens. This is more timely than ever.”
While almost 80 percent of Americans supported adding the Equal Rights Amendment to the Constitution in a 2020 Pew Research Center poll, there is little chance that the effort will draw the 60 votes necessary to overcome a Republican filibuster in the Senate. But the Democrats’ push is their latest effort to spotlight G.O.P. opposition to social policy measures with broad voter approval, and to call attention to the party’s hostility to abortion rights, which hurt Republicans in the midterm elections.
“This is a political rather than a legal struggle,” said Laurence Tribe, the constitutional scholar and professor emeritus at Harvard Law School. “It would succeed only in a different environment than we have. It’s not going to pass. The real question is what political message is being sent. In a political environment like this, you throw at the wall whatever you can.”
This is Democrats’ second attempt this year to advance the Equal Rights Amendment; in April, Senate Republicans blocked a similar resolution that sought to remove an expired deadline for states to ratify the amendment. Only two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, voted for the resolution.
Now, Ms. Gillibrand and Ms. Bush are trying a different approach: They are simply ignoring the issue of the expired ratification deadline altogether and introducing a resolution that argues that the E.R.A. is already the law of the land.
“This is an opportunity to start fresh with a legitimate legal theory that has basis in constitutional law,” Ms. Gillibrand said, noting that the reference to the deadline was in the preamble, not the text of the amendment itself. “I believe President Biden can just do this. I’m going to make the legal and political argument over the next several months that this is something he can do.”
Ms. Bush, a founder of the E.R.A. caucus in the House, said that “for us, it is already done. The E.R.A. is the 28th Amendment. We just need the archivist to publish it.”
At issue is the complex procedure for adding an amendment to the Constitution, which requires passage by both houses of Congress and ratification by three-quarters of the states, in this case, within a seven-year deadline. Congress passed the Equal Rights Amendment in 1972, and subsequently enacted a law extending that deadline to 10 years. But by 1982, only 35 states had ratified. Since then, three more states — Nevada, Illinois and Virginia — have ratified the amendment, surpassing the threshold, but some others have rescinded their ratifications.
That has left the amendment in a legal and political limbo, its fate left in the hands of Congress and the courts.
Russ Feingold, the former Wisconsin senator who serves as president of the American Constitution Society, said he supported the Democrats’ new strategy.
“For the institution that actually put this limitation of the deadline on to say, ‘Actually, it doesn’t matter’ really is significant,” Mr. Feingold said. “The White House and members of Congress are beginning to see that credible legal scholars are saying this is already part of the Constitution.”
There is nothing straightforward or clear about the constitutional amendment process, and legal experts said that each of the Constitution’s amendments have taken a unique path to ratification. The 27th Amendment, which states that members of Congress cannot raise or lower their salaries in the middle of their terms, languished for more than 200 years before it was ratified.
But Democrats are more eager than ever to make a new push for the amendment in the wake of the Dobbs decision. The key section of the amendment, with just 24 words, “is packed with potential to protect access to abortion care nationwide, defeat bans on gender-affirming health care, shore up marriage equality, eliminate the gender wage gap, help end the epidemic of violence against women and girls, and so much more,” Ms. Bush said. “We have to just keep pushing it. We can’t fall victim to the Republican agenda.”
Ms. Bush and other Democrats argue that the ability to control one’s reproductive system is essential to equality in the workplace and in public life.
Those arguments have carried the day in some states, where parties have used state-level Equal Rights Amendments to strike down restrictions on reproductive care.
In New Mexico, the state’s supreme court struck down a state law banning funding for abortion-related services, citing the state Equal Rights Amendment that “allows for equality of rights for persons regardless of sex.” In Pennsylvania, advocates and providers are suing the state for banning Medicaid funding for abortion, arguing that it is a violation of equal-protection provisions in the state constitution.
“In 2023, we should move forward to ratify the E.R.A. with all due haste because if you look at the terrible things happening to women’s rights in this country, it’s clear that we must act,” Senator Chuck Schumer, the majority leader, said in April when the Senate first took up the issue.
But opponents of the measure have argued that the amendment is no longer valid because 38 states did not ratify the E.R.A. by the deadline. There is also the complex legal question of whether states that have since rescinded their ratifications should be counted.
Republicans have generally opposed the measure as gratuitous, arguing that equal protections for women are included in the 14th Amendment. But they, too, have conceded that passing the amendment could provide a new legal basis for protecting abortion after the overturning of Roe.
“The E.R.A. could anchor a supposed right to abortion in the Constitution itself,” Emma Waters, a research associate at the conservative Heritage Foundation, wrote earlier this year. She added, “To protect the lives of women and their unborn children, lawmakers must oppose the national Equal Rights Amendment.”
Ms. Gillibrand conceded that she did not think Republicans would ever support the amendment, “largely because the pro-life movement has co-opted this argument,” she said. She said her hope was to compel Mr. Biden to call on the archivist to take action, or to change the filibuster rules in the Senate so that civil rights measures like the amendment would need only a simple majority — not 60 votes — to move forward.
Even if the resolution proves to be no more than a messaging exercise, some proponents said it was still meaningful.
“Congress taking some kind of action to keep the E.R.A. alive is significant,” said Katherine Franke, a law professor at Columbia University and faculty director of its E.R.A. Project research initiative. “Some people regard it as having died in the 1980s. It signals that members of Congress believe it’s still alive and kicking.”