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With Virginia ratification, where does the Equal Rights Amendment go from here?

U.S. women won the right to vote a century ago; the fight to instill in the Constitution equal rights regardless of sex is nearly as old. The Equal Rights Amendment was a major national topic in the 1970s -- but it wasn’t until this past Tuesday that the crucial 38th state ratified it. Equality Now's Kate Kelly joins Judy Woodruff to discuss whether the ERA will become part of the Constitution.

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  • Judy Woodruff:

    This year marks the 100th anniversary of women winning the right to vote in this country.

    People may not know it, but the fight to instill equal rights regardless of sex in our U.S. Constitution is nearly as old. That fight became a big part of the national conversation in the 1970s.

    Yesterday, all these years later, Virginia's legislature voted to ratify the Equal Rights Amendment, making it the 38th state to do so. That means three-quarters of all states have ratified, as the Constitution requires.

    But there are legal challenges still ahead, including the question of whether states had to ratify the amendment by a 1982 deadline.

    Kate Kelly is an attorney for Equality Now. It's an advocacy group that works for rights of women and girls around the world. And she joins me from New York.

    Kate Kelly, welcome back to the "NewsHour."

    So, as we said, the ERA, here we are. It was introduced back, what, in the 1920s. There was a big push in the 1970s, but it's 2020 before you get the 38th state to ratify. Why has it taken so long?

  • Kate Kelly:

    Well, the Equal Rights Amendment had a lot of momentum, and it was supported by both political parties up until 1972.

    And there were immediately 30 states that ratified right as soon as Congress passed it, and it had this huge momentum. Because of the culture wars and groups like Stop ERA that was founded by Phyllis Schlafly, the momentum slowed down towards. It also got towards the harder states, the states with less infrastructure for women's rights.

    And the opposition ramped up. And then the 1982 deadline came, and we fell three states short.

  • Judy Woodruff:

    So, now you finally have the 38th state. That means three-fourths of the state legislatures have ratified, but you still can't be sure this is going to be a part of the Constitution.

  • Kate Kelly:

    Well, as Susan B. Anthony said, failure is impossible.

    So I feel confident that we will get the Equal Rights Amendment into the Constitution. There are some — still some procedural hurdles. So that deadline that we talked about earlier was put in by Congress. And, in fact, it was in 1979. And then Congress extended the deadline to 1982.

    So it's a pretty easy argument to make that, since Congress put in the deadline, and Congress already extended the deadline once, that Congress can now remove the deadline. And there are two bills already pending in the current Congress to remove that deadline, one in the House, Jackie Speier's bill, and another bipartisan bill with Senators Cardin and Murkowski to eliminate that deadline and just integrate the three states that we already have, Nevada, Illinois and now Virginia.

  • Judy Woodruff:

    So, if you — you're calling it a procedural challenge here, procedural issues.

    But even if you can get the deadline issue clarified, there are still other potential problems out there, aren't there? I mean, there are still people making the political argument that the ERA is going to be more harmful for women than helpful.

  • Kate Kelly:

    A lot of those old arguments against the Equal Rights Amendment have now gone away, have now died.

    In the 1970s, for example, they used to say that women would have to serve in the military. Well, now we know that women serve in the military with distinction at every level. And, in fact, a federal judge has already said that, if there were to be a draft reinstated, that it could not be a gender-segregated draft.

    And the Pentagon has also recommended that women be eligible for the selective service. So, that is all without the Equal Rights Amendment.

    So, a lot of these old arguments and scare tactics that were used against the Equal Rights Amendment in the original fight are now completely moot.

    Really, the only thing that people fighting against the Equal Rights Amendment really care about is keeping women away from legal equality and constitutional equality. And that's just no longer going to fly.

  • Judy Woodruff:

    There is the argument we're hearing, though, out there that — the concern that it will — those who oppose abortion, people who are pro-life, arguing that, if this passes, it will undo the state-by-state restrictions on abortion.

  • Kate Kelly:

    Well, all constitutional rights can have restrictions. There's no right that's completely unrestricted.

    The government just has to have a compelling reason to make that restriction. It has to be narrowly tailored. And so there isn't any state with total, unadulterated access to abortion, and there are 26 states that actually have state ERAs already.

    And, really, the anti-choice movement, what they want is to take away rights that we already have under the Constitution. So, the abortion access already exists under our current constitutional regime, under the right of privacy.

    So what they want is to take away that right. And we already have that under the Constitution.

  • Judy Woodruff:

    So, at this point, what's your expectation? Because you still have some states out there that have said they want to rescind their ratification.

  • Kate Kelly:

    So, five states attempted to rescind back in the 1970s. But there's a real legal question as to whether or not states can even rescind, for example, with the 14th Amendment.

    Two states, Ohio and New Jersey, attempted to rescind, but those rescissions were never counted, and they were just listed among the ratifying states. So, there's a question, can states even rescind? Will those be counted? That will have to be resolved in the courts.

    But I think the precedent is clear that, once a state has ratified, it is ratified and it will be listed. And so now we are at the 38th state. We met the threshold with Virginia.

  • Judy Woodruff:

    Still waiting and watching, though, for some court action.

    Kate Kelly with Equality Now, thank you.

  • Kate Kelly:

    Thank you so much.

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