Who’s Afraid of the ERA?
Posted 2/15/21 (Mon)
With SCR 4010, some ND legislators wish to walk back the Equal Rights Amendment – but facts undermine their case.
It’s the middle of the 2021 legislative session in North Dakota, and a prior anti-equality resolution is back from the dead. This zombie legislation, Senate Concurrent Resolution (SCR) 4010, is a new iteration of a 2019 resolution that referenced the Equal Rights Amendment (ERA). Importantly, the ERA is designed to ensure via the U.S. Constitution that all citizens have equal legal rights regardless of sex.
First drafted by Alice Paul in the wake of the 19th Amendment, the ERA was proposed in Congress in 1923. It was passed by Congress in 1972 with a preamble purporting to impose a 7-year time limit. Congress extended this deadline to 1982. Thirty-five states ratified the ERA within this time frame, leaving the nation three states short of the thirty-eight needed to nationally ratify the Equal Rights Amendment.
It is because of this timeline that SCR 4010 supposedly “clarifies” that the ERA missed the deadline to become fully ratified into the U.S. Constitution. According to Senator David Clemens (Republican, District 16) and his co-sponsors, this means that our own legislature’s 1975 ratification of the Equal Rights Amendment is nullified.
However, SCR 4010 is contrary to actions by other states that continue to ratify the proposed constitutional amendment. In the last few years, Nevada, Illinois, and Virginia ratified the ERA. This brought the grand total of ratified states to 38! However, the fight to enshrine equality continues. CNN reports that Trump’s Justice Department took the position that “because that  deadline has expired, the ERA Resolution is no longer pending before the States.”
Because Virginia recently became the 38th and final state needed for national ratification of the ERA, the ERA has satisfied all the requirements of Article V of the U.S. Constitution. Thus, it is now “valid to all intents and purposes, as part of this Constitution” according to the text of the U.S. Constitution itself. Ordinarily, our National Archivist would publish the amendment as part of the Constitution. However, because of the stance of the Trump Justice Department, the National Archivists will not certify the ERA unless a court orders that he does so. The current Biden administration may take a different position and may compel the National Archivist to officially publish the ERA.
In the meantime, the Washington Post has reported that ERA supporters are taking the issue to federal court. They make the argument that the 1979 deadline was unconstitutional. Arguably, Congress and presidents don’t have the power to enforce arbitrary rules that deviate from what is articulated in the U.S. Constitution regarding its own amendments. Casting further doubt on the legitimacy of ND’s SCR 4010 is the fact that there is no provision allowing states to rescind their ERA ratifications. Ultimately, ERA supporters are encouraging Congress to reject the 1979 deadline.
North Dakota’s role in clearing hurdles for the ERA is clear
North Dakota ratified the ERA in 1975 and reaffirmed this ratification in 2007. Thus, SCR 4010 is ironically at odds even with relatively recent legislation. Specifically, the ND Legislative Assembly passed a 2007 resolution “affirming the equal application of the United States Constitution to all citizens through the passage of the Equal Rights Amendment; declaring Friday, March 9, 2007, North Dakota Equal Rights Amendment Recognition Day; and encouraging a recommitment to the ratification of the Equal Rights Amendment in all states and final passage in Congress.”
Bad faith arguments undermine the case for SCR 4010
Proponents of SCR 4010 claim that federal ratification of the ERA would require the government to allow elective abortions on demand. Additionally, proponents claim that a resulting surge in abortions would be paid for by taxpayers. These claims are simply untrue.
In fact, the ERA and abortion issues simply aren’t entangled in the way that SCR 4010 proponents claim. Indeed, the ERA doesn’t mention abortion at all. The only laws affected by the ERA are those that discriminate. The bulk of case law on the intersection of abortion and the ERA demonstrates that laws that limit abortion do not violate the ERA. For instance, the Pennsylvania Supreme Court decided that restrictions on Medicaid funding for abortions were indeed constitutional. Yet, Pennsylvania is one of the states that have enacted an equal rights provision. Importantly, the U.S. Supreme Court separately litigated in Planned Parenthood v. Casey (1992) to uphold Pennsylvania’s restrictions on abortion under the federal due process clause. Furthermore, the U.S. Supreme Court has upheld the constitutionality of the decades-old federal “Hyde Amendment” that prohibits federal funding of abortions through Medicaid.
As North Dakota’s legislators review SCR 4010, a former state representative from Illinois has provided testimony that the ERA will have no impact of abortion policy. Specifically, Rep. Andersson shared that he was proud to be the Republican Chief Co-Sponsor of the ERA in 2018 during Illinois’s successful effort to become the 37th state to ratify it. As a lifelong pro-life Republican, he would not be so supportive of the ERA if it was a genuinely partisan or abortion-related issue. “From the beginning, Equal Rights for Women and passing the Equal Rights Amendment was a plank in both parties’ platform. And today it remains so. Polling shows overwhelming support by both parties,” he explains. Rep. Andersson continues by highlighting that the ERA reflects core Republican principles. Namely, the ERA supports the preservation of individual rights and responsibilities across the sexes, it limits the government from committing sex-based discrimination, and it supports an efficient and competitive market by ensuring the inclusion of women. He also shares that “abortion has nothing to do with the ERA…If it did, I would not support it…Simply put, in 50 years of state level ERA’s, not a single state court has held that the ERA mandates elective abortions…” Rep. Andersson further clarifies in his testimony that the ERA only protects access to abortion to protect the health or life of the mother.
Rep. Andersson also plainly states that deadlines for ratification of the ERA are unconstitutional: “As strict constructionists, I would assume that most Republicans would oppose efforts to insert requirements into the Constitution that aren’t actually written there. Moreover the Supreme Court has made clear that even a 200 year old proposed amendment can still be ratified. Lastly, the Supreme Court has also recognized that the US Congress has its own power to remove the deadline...Arguments to the contrary simply choose to ignore the clear precedent on this issue.”
Federal ratification is important for North Dakota’s women
Ratifying the ERA in the U.S. Constitution would elevate the importance of sex and gender equality in our institutions and would have broad societal impacts on all aspects of our society. For instance, national adoption of the ERA would empower Congress to enact better legislation protecting against discrimination and violence based on sex or gender. It would also help combat discrimination in government employment, including education, law enforcement, and the military.
For these reasons and more, the ND Women's Network opposes SCR 4010. Women’s rights are under ongoing threats and constitutional safeguards are required to protect gains women have made. Members and allies of the ND Women’s Network should contact their legislators to express their opinions of SCR 4010. You can find your legislators here.
Learn more about the ongoing efforts to nationally ratify the ERA at ERAcoalition.org