Roe v. Wade = Death of Equal Rights Amendment

In 1920, women were granted suffrage as the 19th Amendment was ratified, and although this was the greatest battle to be won by the women’s rights movement, it wasn’t the final frontier by any means. In 1921, Senator and future Vice President Charles Curtis (R-Kan.) introduced the Equal Rights Amendment, which had been drafted by suffragists Alice Paul and Crystal Eastman. It read, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” However, a major stumbling block for this amendment was that progressives were concerned about the amendment’s impact on hard-fought labor protections that were specifically for women. One of these progressives was Rep. Emanuel Celler (D-N.Y.), who would eventually serve as chair of the Judiciary Committee. In 1953, an Equal Rights Amendment passed the Senate that included the “Hayden Rider”, authored by Carl Hayden (D-Ariz.). The Hayden Rider exempted gender specific labor protections from the amendment’s reach, yet it still didn’t get a vote in the House.

The 1970s: the ERA’s Time Comes

By 1970, Emanuel Celler had been chair of the Judiciary Committee for fifteen years and along with his Republican counterpart, William McCulloch of Ohio, had proven the most crucial House actors in passage of the Civil Rights Act of 1964. This team came together again to oppose the Equal Rights Amendment, which had as its primary sponsors Sen. Birch Bayh (D-Ind.) and Rep. Martha Griffiths (D-Mich.).

In 1971, the House voted to ratify the Equal Rights Amendment on a vote of 354-24. The greatest issue back then with this amendment wasn’t abortion as it wasn’t nationally legal yet, rather the prospect of women being drafted into combat. Objections to this legal probability were not regarded by the majority of Congress to be sufficient grounds to block passage of this amendment, nor were concerns about labor protections, as progressive thinking had moved past this reservation. In 1972, the measure moved to the Senate, where it passed 84-8. Support at the time was across the ideological spectrum: Ted Kennedy and Strom Thurmond both voted for it. In the House, both Bella Abzug and H.R. Gross voted for it. Its opponents included presidential candidate Barry Goldwater and Sam Ervin, who would gain his greatest fame as the chair of the Watergate Committee. The margins of approval were much higher than the 19th Amendment had received when it was voted on in 1919, and there appeared to be no reason at the time that the amendment would not become the 27th Amendment. However, there was a provision that opponents had managed to put in the amendment, that provided that the ERA would expire if after six years it had not been ratified, thus requiring the ERA to go through Congress again.

Or Not…Enter Roe v. Wade

On January 22, 1973, the Supreme Court, on a vote of 7-2, ruled that a Texas law that made it a crime to assist a woman in procuring an abortion was a violation of due process and constituted a violation of the “right to privacy” established in Griswold v. Connecticut (1965). They specifically ruled that although restrictions on abortion were not unconstitutional, that ones on first trimester were unconstitutional. In 1976, Congress passed an appropriations bill that included the Hyde Amendment, which prohibited Medicaid funds from being used for abortions. The line in the sand had been drawn for anti-abortion politicians, and they wanted to protect the Hyde Amendment. By this time, the rate of state ratification had slowed and opposition to the Equal Rights Amendment was growing. One convert against the ERA was Ronald Reagan, who had endorsed the amendment as California’s governor. He had similarly been a convert on the issue of abortion, since although he had signed the state’s abortion legalization law, he had come to regret it since the number of abortions spiked dramatically after his signing of the law.

By 1978, the ERA was close to ratification by the states, so supporters managed to lobby President Carter into signing an extension until 1982. Unfortunately for the measure’s supporters, no additional states had ratified by that time. In 1983, Judiciary Committee chair Peter Rodino (D-N.J.) reintroduced the Equal Rights Amendment. Anti-abortion politicians led by Rep. Jim Sensenbrenner (R-Wis.) (who still serves), lobbied for an amendment to the ERA that would make the amendment “abortion neutral”. The Democrats rejected this proposal, and the ERA failed in the House. The Equal Rights Amendment has effectively been a dead letter since due to the insistence of an abortion neutral amendment, or the refusal of the Democrats to accept one. Although a surge of radicalism seems to be sweeping up the Democrats as of late, passage of the ERA seems as unlikely as ever given the old impasse on abortion as well as leftist efforts to redefine what constitutes a “woman” or “man”. I conclude that the Equal Rights Amendment would have been ratified had it not been for Roe v. Wade, as abortion was the issue that defined later debates on the amendment and resulted in enough opposition to prevent it becoming a part of the Constitution.

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