” . . . Congress doesn’t have the constitutional authority to retroactively revive a failed constitutional amendment and to subject citizens in all 50 states to what may be the current political trends in just one state. The U.S. Supreme Court has already recognized that.”
“We must cultivate compassion and practical support for women who find themselves pregnant under difficult or oppressive circumstances, and we must protect the most defenseless humans among us — those living in the womb. One person’s reproductive right cannot outweigh another person’s right to live.”
WASHINGTON — Rep. Doug Collins (R-Ga.), Ranking Member of the House Judiciary Committee, gave the following statement at Rules Committee about H. J. Res. 79.
Below are the remarks as prepared.
Ranking Member Collins: Three-quarters of the states failed to ratify the so-called “Equal Rights Amendment” by the 1979 deadline set by Congress, yet House Democrats are trying to retroactively revive this failed constitutional amendment. Congress does not have the power to do that.
The U.S. Supreme Court recognized this in 1982, when it stated the issue was moot because the deadline for ERA ratification expired before the requisite number of states approved it. The next year the Democratic leadership in the House of Representatives, acting on the same understanding, started the entire process of ERA approval all over again. But that new ERA also failed to achieve the required two-thirds margin on the House floor on November 15, 1983. Even current Supreme Court Justice Ruth Bader Ginsburg, a supporter of the ERA since the beginning, said just a few months ago that “I hope someday . . . we’ll be starting over again [on the ERA] collecting the necessary states to ratify it.”
But, today, in defiance of historical reality and the clear acceptance of the situation by all the relevant participants in the original debate, the Democrats brought forward a resolution that denies the obvious. Now, the proponents of this resolution want to convince their base that if both houses of Congress pass H.J. Res. 79, and it is signed into law, the 1972 ERA will become part of the Constitution. This is because Democrats control the Virginia state legislature, and their legislature passed the ERA earlier this year.
But Congress doesn’t have the constitutional authority to retroactively revive a failed constitutional amendment and to subject citizens in all 50 states to what may be the current political trends in just one state. The U.S. Supreme Court has already recognized that. The past Democratic leadership of the U.S. House of Representatives recognized that. But apparently the current Democratic leadership is intent on rewriting history.
If you support the language of the 1972 ERA, you only have one constitutional option, and that’s to start the whole process over again and make your case to current voters nationwide. You have to obtain the required two-thirds vote in each house of Congress, and then win ratification individually from 38 states. That is not likely to happen because it’s now well understood that the language used in the ERA would prevent state voters from enacting any limits on abortion up to the moment of birth. Just in the last few years, an increasing number of leading pro-abortion advocates have openly argued that the language of the 1972 ERA would require unlimited abortions, with no restrictions whatsoever, nationwide, regardless of the view of voters.
To take just a single example, in a national alert sent out on March 13, 2019, NARAL Pro-Choice America stated flatly “the ERA would reinforce the constitutional right to abortion . . . [it] would require judges to strike down anti-abortion laws . . . ”
As more and more people have come to understand, contending an unborn child has no life to lose becomes impossible when we reflect — even momentarily — on what an abortion entails. Fewer and fewer people understand abortion as a victimless choice. We must cultivate compassion and practical support for women who find themselves pregnant under difficult or oppressive circumstances, and we must protect the most defenseless humans among us — those living in the womb. One person’s reproductive right cannot outweigh another person’s right to live.
The Supreme Court in 1992’s Planned Parenthood v. Casey decision permitted states to regulate abortions in the first trimester or at any stage before fetal viability, provided they don’t impose an undue burden on a woman’s right to an abortion. In 2003, Congress banned partial-birth abortions — which none other than Justice Ginsburg called “brutal.” In a partial-birth abortion, a living baby is delivered feet-first and its skull crushed before its chin clears the uterus — moments before the live birth is complete. In 2007, the Supreme Court upheld the federal ban — which applied at any point during pregnancy — in Gonzales v. Carhart, ruling the federal law did not impose an “undue burden” on a woman’s right to abortion. Justice Kennedy’s majority opinion noted the law “expresses respect for the dignity of human life” and affirmed the government’s interest in protecting the medical profession’s integrity. He wrote, “the government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”
All that would be swept away if the supporters of this resolution got their way and enshrined the unlimited right to take an unborn child’s life in the Constitution.
Further, the Office of Legal Counsel, on January 8, 2020, issued a letter binding within the entire executive branch taking note of H.J. Res. 79 and stating the current Congress “may not revise the terms under which two-thirds of both Houses proposed the  ERA Resolution and which thirty-five state legislatures initially ratified it.” The National Archives, which performs a ministerial role of sorts with respect to certifying the ratification of amendments to the U.S. Constitution, subsequently issued a press release stating “In its January 6, 2020, opinion, the Office of Legal Counsel has concluded ‘that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.’ Accordingly, the OLC opinion goes on to state that ‘the ERA’s adoption could not be certified under 1 U.S.C. § 106b.’ . . . [The National Archives and Records Administration] defers to DOJ on this issue and will abide by the OLC opinion, unless otherwise directed by a final court order,” which isn’t going to happen given all the constitutional problems with this resolution I mentioned previously.
I urge all my colleagues to join me in opposing this resolution and its blatantly unconstitutional abuse of power.