Federal appeals court dismisses ERA case in another blow to legal fight for supporters | Abortion

A federal appeals court on Tuesday dismissed a case brought by two Democratic states that sought to have the US archivist publish and authenticate Equal Rights Amendment as part of the Constitution.

The decision deals another blow to advocates’ legal efforts to get the amendment, which they say would prohibit discrimination based on sex, recognized as the 28th Amendment to the Constitution.

“The States have not clearly and incontrovertibly demonstrated that the Archivist has a duty to certify and publish the ERA or that Congress lacks the authority to place a time limit on the proposed ERA clause,” the opinion from the US Court of Appeals for the state DC Circuit.

Illinois and Nevada sued US Archivist David Ferriero, who has since retired, in 2020 to compel publication and certification of the ERA, arguing that it met constitutional requirements.

The states appealed to the US Court of Appeals in the DC Circuit after a federal judge, an Obama appointee, the case was dismissed in 2021, saying the deadline for ratification has passed.

Advocates for the ERA argue that the amendment will prohibit discrimination based on gender and guarantee equality, while opponents say the ERA will weaken laws that protect women’s interests.

Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford said in a statement that despite Tuesday’s decision, “we will continue to fight for a published Constitution that expressly prohibits all forms of discrimination, including discrimination based on sex.”

“Although the appeals court did not order the federal government to certify and publish the ERA, it is important to recognize what today’s opinion does not say,” the attorneys general said in a joint statement. “It does not say that the federal government cannot recognize successful ratification of the Amendment, and it does not say that Congress cannot make clear that there is no deadline for ratification.”

The two Democrats called on Congress to act, noting that the Senate Judiciary Committee held a hearing Tuesday on the ERA and SJ Resolution 4, which would remove the deadline for ratification of the ERA. Senate Majority Leader Chuck Schumer has promised a vote on the joint resolution, which is scheduled to happen in March.

Linda Coberly, ERA Coalition board member and chair of the ERA Coalition Legal Task Force, also noted in a statement Tuesday that the decision is not the end for the ERA, but instead “leaves the issue in the hands of Congress.”

“We are disappointed with the court’s decision. But we note that the decision does not resolve the issue of the time limit. It simply states that the dispute about the time limit precludes the finding of a ‘clear and undisputed right,’ as is necessary for the particular relief sought in the suit,” Coberly said in the statement.

The ERA was first introduced in 1923 before it was passed by Congress nearly 50 years later, with Virginia becoming the 38th state to ratify the amendment in 2020 – completing the requirement that three-fourths of the states be required to support a new amendment. Virginia became a party to the case but its Republican attorney general, Jason Miyares, the state was withdrawn from legal efforts shortly after taking office last year.

While supporters say the ERA meets all constitutional requirements and should go into effect on January 27, 2022, opponents — and even some legal experts who support the ERA — say the amendment is dead. and has not been properly ratified.

They pointed to a deadline that passed decades ago, states rescinding their support, earlier court decisions and a Justice Department legal opinion.

“The decision is another heavy blow to the claim that the 1972 Equal Rights Amendment remains alive,” Douglas Johnson, who oversees the anti-abortion group National Right to Life’s opposition to the ERA, told CNN. “Over the past 41 years, ERA-lives claims have been put before 29 federal judges, and have never won a single vote from a judge.”

Both sides say the ERA would further expand abortion — a critical issue in light of the Supreme Court’s repeal of federal abortion protections last summer. While proponents of the ERA say the amendment would protect access to abortion, opponents oppose the ERA, arguing it could invalidate state restrictions.

Johnson called the joint resolution “a political gimmick” to “politically milk the gullible.”

“It will not pass the Senate or the House, and the long-expired ERA will not survive even if it does,” he said.

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