Herrod: Costly consequences and the irony of the Equal Rights Amendment

Public policy often sounds better in theory than it plays out in reality. The Affordable Care Act, The Patriot Act, The Women’s Reproductive Health Care Act have all been criticized for arguably not living up to their names. The same will be said of the Equal Rights Amendment, should it pass the many hurdles ahead.

Cathi Herrod

Some Arizona lawmakers are trying to revive the effort to ratify the ERA, which would purportedly eliminate sex discrimination in the law. Who can disagree with equal rights for women? No one. That is why we have accumulated countless federal, state, and local laws prohibiting sex discrimination.

Also, the U.S. Supreme Court has repeatedly held that the Equal Protection Clause of the 14th Amendment protects women from discrimination. Current law already requires equal pay for men and women. The University of Arizona faces a lawsuit based on the Equal Pay Act and the Civil Rights Act. Clearly, current laws are working.

Proponents of the ERA point to a wage gap of 80 cents on a man’s dollar, but they leave out critical variables. Women typically work fewer hours than men; they choose different education and training; they choose different career paths, and they take time out of the work force or choose working from home over higher wages. When these variables are taken into consideration, the “unfair wage gap” vanishes.

Passing the ERA would do nothing to further equal rights, including equal pay.

Not only is the ERA unnecessary, but the use of 1972 language in a 2019 America brings critical consequences. When the ERA was introduced, prohibiting “sex discrimination” meant discrimination against women. Today, courts have interpreted the word “sex” to include one’s gender choice. That changes everything because “sex discrimination” could then eliminate any distinction between male and female, regardless of biological differences.

The result is sweeping. When the law conflates equality with sameness, women’s locker rooms at school or the gym become illegal. Public restrooms, showers, domestic-violence shelters and sporting events can no longer be exclusively male or female. That violates privacy and puts women and children in danger of those who would exploit the law to access victims.

Perhaps the most egregious consequence of a 2019 ERA is its effect on abortion. The ERA could enshrine abortion into the U.S. constitution by arguing such a procedure cannot be treated any differently than other medical procedures for a man. Abortion activists in New Mexico and Connecticut have already successfully made that case based on their state ERAs.

This not only makes abortion a routine medical procedure, but it could very well rollback any commonsense restrictions of abortion. Such extreme abortion laws, similar to ones in New York and pending in Virginia, do not reflect Arizona’s values.

Curiously, proponents almost completely ignore the inconvenient fact that the ERA deadline for ratification passed 37 years ago. Supreme Court precedent indicates congressionally imposed deadlines cannot be overlooked.

Any ERA effort would have to start all over accumulating 38 state ratifications. At least that would provide opportunity to clarify the language. Because as it stands now, a resolution claiming to strengthen women’s rights could actually end up stripping us of the ones we already possess. We have seen this kind of irony before. Arizona lawmakers should reject the ERA and its costly consequences.

Cathi Herrod
Center for Arizona Policy

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