ABA updates policy with focus on renewing ERA effort

Can the proposed Equal Rights Amendment, which has languished since Congress’ deadline for ratification expired more than four decades ago, experience a resurrection? Updated ABA policy hopes so.

At the American Bar Association House of Delegates meeting in early August, the policymaking body overwhelmingly voted to reiterate ABA support of the proposed 28th amendment to the U.S. Constitution. But the new policy goes further than the broad endorsements in 1972, 1974 and 2016. Specifically, it supports two important legal principles: (1) a deadline for ratification of an amendment to the U.S. Constitution is not consistent with Article V of the Constitution; and (2) that under Article V states are not permitted to rescind prior ratifications.

Congress passed the ERA in 1972, sending it to the states for ratification. Its text declares that “equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.” The initial resolution included a seven-year ratification deadline in its preamble, which by then was customary for amendments. In 1978, Congress extended the time limit to 1982. By the time the second deadline passed, only 35 of the 38 needed states had ratified it.

Since then, three states have ratified the amendment, with Virginia the most recent in early 2020. While the then-Democratic-controlled House of Representatives approved elimination of the 1982 ERA deadline in late 2019, the then-Republican-controlled Senate did not act, effectively stifling the effort.