ERA Redux: Will It Pass in 2021?

The fight for equal rights for women continues

Welcome back, Chaise Lounge readers! And a special welcome to those who signed up last week! This week we will take a look at the Equal Rights Amendment and the hurdles it must overcome to become the 28th amendment. But before we get to that, let’s take a look at some other news of the week.

Global Issues

The thalidomide disaster of the late 1950’s made the testing of drugs and vaccines on pregnant people taboo. Given what the scientific community knew then, it was a good decision, but it must be revisited. With the COVID-19 pandemic raging, pregnant people are more prone to having complications. However, they have been left out of the vaccine trials. Doctors are pushing back against this practice. Carleigh Krubiner, a health policy and bioethics researcher at the Center for Global Development, says, “The old way of thinking about pregnant women and research was that we needed to be precautionary — that we need to protect pregnant women from research where there could be risks that are unknown," said Krubiner. "But what many have come to realize is that rather than protecting pregnant people from research, what we really need to be doing is protecting them through research." You can read more in this article from NPR.

National Issues

Interruptions (again)

You may recall that a few months ago Chaise Lounge reviewed the research on the number of interruptions that occur during Supreme Court arguments and their relationship to the gender of the speaker. Men interrupted women more, even if it was an attorney interrupting a female justice. It appears that this phenomenon is not restricted to the legal profession (as most women could tell you!). In a November 2020 study conducted at Brigham and Women’s Hospital, the researchers analyzed the interruptions by gender during the morning report conferences. They found “Across all conferences, men interrupted more often than expected based on attendance and assuming gender-equal participation.” So now that we can scientifically prove that women are not crazy or hysterical, how do we change behavior? That is the question for today. Comment below if you have an idea or an experience to discuss!

Are Women Being Targeted by Domestic Terrorists?

This week, there were two concerning shootings where no shooter has been identified, but the targets of the shootings indicate far-right terrorist involvement. In the first, the door of a Planned Parenthood clinic in Knoxville, TN was shot at repeatedly on the anniversary of the passage of Roe v. Wade. It was 6 a.m. and no one was in the clinic at the time. No doubt, the shooter was sending a message. In the second, shots were fired into the home of Dr. Mary Kate Francis, assistant medical director of the Ohio Department of Health at 8 p.m. Fortunately, no one was hurt. Other health officials in Ohio have received regular threats and protests outside their homes.

And finally, an award to the ultimate mansplainer ever…

Last week, a man stole a car in Oregon only to realize that there was a four-year-old in the back seat. He drove back to where he stole it and found the mother looking for her car. He put the child out of the car and scolded the mother for leaving her child unattended in the car and then drove off with her car! Somehow he did not get the irony of the situation!

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Biden’s Election Opens the Door for Passage of the ERA

With the election of President Joe Biden and Vice President Kamala Harris, we enter into a critical time for the achievable passage of the Equal Rights Amendment (ERA). With the House controlled by Democrats and the Senate split with a tie-breaking vote by VP Harris, the ERA can finally have its day for consideration. However, the long overdue passage of an amendment that would write women’s equal rights into the Constitution has some hurdles to leap before becoming law. 

A quick update

During the Trump administration, first Nevada in 2017, then Illinois in 2018, and then Virginia in 2020 all ratified the ERA, giving the amendment the 38 states needed for becoming the 28th Amendment to the Constitution. Normally, once ratification is attained, the National Archivist then publishes the new amendment. However, Congress had placed a timeline for passage of the amendment that expired in 1982. The Department of Justice’s Office of Legal Counsel (OLC) directed the National Archivist to not publish the amendment because the OLC had determined that the amendment was dead due to the expired deadline. Additionally, five of the states that had ratified the amendment have decided that they want to rescind their ratification, although there are legal questions around whether or not this is allowed.

Aren’t women already granted equal protection under the law by virtue of the 14th amendment? 

The truth is that the 14th amendment does not address discrimination based on sex. And while there have been piecemeal laws, like the Equal Pay Act, the Pregnancy Discrimination Act, Titles VII and IX of the 1964 Civil Rights Act, which address specific areas of law, there is nothing that prevents these laws from being changed or overturned altogether. Only a Constitutional amendment can truly protect women’s rights. 

The level of scrutiny a case receives from the Court is based on who is involved in the cases. If the case involves those in a “suspect class”, meaning “discrete and insular minorities”, the case will receive the highest level of scrutiny called “strict scrutiny” to ensure that the needs of the suspect class are taken into account. “Strict scrutiny” requires that the law must promote a compelling government interest and be narrowly tailored to achieve that interest. Suspect classifications include race and national origin, and religion. Because discrimination based on sex is not a protected class, the Supreme Court uses what is called “intermediate scrutiny” for these cases. The Court uses the intermediate scrutiny status for cases involving sex because sex is considered a “quasi-suspect class.” If the amendment passes, cases involving discrimination by sex would receive strict scrutiny.

Why is the ERA Necessary?

If the failure to reauthorize the Violence Against Women Act (VAWA) and the #MeToo movement doesn’t tell us that women need further protection under that law, I am not sure what might move the needle. When VAWA was originally passed, it contained a provision allowing women to sue the accused in federal court. However, in the United States v. Morrison Supreme Court case in 2000, the Court struck down the section of VAWA allowing women to sue saying that it exceeded the government’s powers according to the Commerce Clause and that according to the 14th Amendment, the states must provide the remedy, not the federal government. So we see that although Congress intended for women to obtain protection through the 14th amendment with VAWA, the Court struck it down. 

In 2011, the late Supreme Court Justice Antonin Scalia, when arguing that the 14th amendment does not protect discrimination by sex, blithely stated in an interview, “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.” What he left out of that statement was the fact that the Supreme Court might come behind Congress and invalidate the law as they did with VAWA. 

What’s Coming

On January 21, 2021, Rep. Jackie Speier (D-CA) introduced her bill removing the time limits imposed by previous Congresses again in the House with bipartisan support of more than 195 co-signers, including Republican Congressman Tom Reed (R-NY.). Senators Ben Cardin (D-MD.) and Lisa Murkowski (R-AK) introduced an identical bill in the Senate. With Senator Schumer (D-NY) as the Majority Leader now, the bill will get a hearing. While there is some question regarding the states who want to rescind their support, it is unlikely they will succeed based on Supreme Court precedent. 

Supporters of the ERA, many of whom have been working toward passage since 1972, are holding their collective breaths in the hope that we will finally see the passage of this important amendment in 2021. 

What Can You Do to Help?

First, check this link to see if your state has ratified the amendment. If so, then you can write to congressional members of states that have not done so. Let them know that the ERA has public support with 78% of all adults surveyed by the Pew Research Center in 2020 in favor of passage of the amendment. 

If you live in a state where the ERA has not been ratified you have two jobs. First, write to your congressional representatives immediately to let them know that you are a constituent and want them to vote for  Representative Spieir’s resolution in the House and Senator Cardin’s in the Senate. Then, contact your state representatives, senators, and the governor and let them know that you want your state to ratify the ERA as well. You don’t want to live in a state that has not acknowledged that women deserve equal protection under the law.

 And if you live in North Carolina, know that a new ERA bill was introduced into the legislature on Wednesday (yesterday), so get those fingers dialing. I am looking at you hard!

*This article was previously published by Women AdvaNCe