Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Thursday, May 2, 2019

House Judiciary Committee Holds First ERA Hearing in 36 Years

Congress Holds First Equal Rights Amendment Hearing in 36 Years Amid Ratification Push

A House Judiciary subcommittee on Tuesday held the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years as supporters push for ratification.


ERA advocates want a time requirement to be stripped from the amendment’s language. Congress passed the ERA in 1972, but it failed to earn the backing of enough state legislatures to be ratified by a 1982 deadline.


The majority of those testifying Tuesday before the Subcommittee on the Constitution, Civil Rights and Civil Liberties argued the deadline was arbitrary and should be removed.


The panel heard testimony from a pair of female Democratic lawmakers backing legislation that would add language to the Constitution stating everyone is equal under the law.


Other witnesses included actress and advocate Patricia Arquette, as well as legal experts and a state senator involved in getting the ERA ratified in Nevada.


Both Nevada and Illinois have ratified the amendment in recent years. Ratification failed by one vote in Virginia earlier this year.***


Rep. Carolyn Maloney (D-N.Y.) also introduced a measure for a new ERA, but she and Speier have said it's a “fall back” in the case Speier’s measure falls short.

Video, ERA Hearing on CSPAN

Republicans Want to Make a Debate over Discrimination an Abortion Battle

When women’s rights activists gathered in Washington on Tuesday for the first congressional hearing on the Equal Rights Amendment (ERA) in 36 years, they seemed to encounter many of the same decades-old strategies that have been used to derail it. Chief among them was the idea that the proposed constitutional amendment, which would enshrine equal protections for women in law, would trigger an unfettered expansion of abortion rights on the state and federal level—an argument some ERA supporters say is intended to sow division.


May 2, 2019 in Abortion, Constitutional, Gender, Legislation | Permalink | Comments (0)

Tuesday, April 30, 2019

More than the Vote: The 19th Amendment as a Proxy for Gender Equality

My latest article, More than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, forthcoming in a symposium edition of the Stanford Journal of Civil Rights and Civil Liberties along with articles by Felice Batlan and Lisa Tetrault.

The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.

This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.

This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.

April 30, 2019 in Constitutional, Family, Legal History, Scholarship | Permalink | Comments (0)

Tuesday, April 9, 2019

Gender in Comparative Constitutional Change

Silvia Suteu, Gender in Comparative Constitutional Change, Forthcoming in Xenophon Contiades and Alkmene Fotiadou eds., Routledge Handbook on Comparative Constitutional Change (2019)

This chapter seeks to bridge the gap between the expanding literatures on comparative constitutional change and gender and constitutionalism. Starting from an inclusive definition of gender, the chapter maps and evaluates areas of recent intense constitutional activity in the field of gender equality and non-discrimination, as well as the formal and informal mechanisms used for bringing about reform. The chapter looks in particular at the continued fight for women’s rights, especially access to abortion and gender quotas, and to gender and sexual minority rights, in particular marriage equality and the recognition of a non-binary conception of gender. The chapter contextualises these issues and concludes that the framing of these debates will be very important, as will be the promotion of a change in societal attitudes alongside any constitutional and legislative change.

April 9, 2019 in Abortion, Constitutional, International | Permalink | Comments (0)

Reproductive Rights Stories: FMLA and the Supreme Court's Decision in Nevada Dept of Human Resources v. Hibbs

Sam Bagenstos, Nevada Department of Human Resources v. Hibbs: Universalism and Reproductive Justice" 
Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel, eds., Forthcoming)

The Family and Medical Leave Act (FMLA) was the first bill signed into law by President Bill Clinton — just two weeks after he took office. Enactment of the statute was a longstanding goal of the Democratic Party. It also represented a legislative victory for what I will call feminist universalism — the notion that sex equality is best served by rules and policies that reject differentiation between women and men. Ten years after Congress enacted the FMLA, the Supreme Court upheld the statute against a constitutional challenge in Nevada Department of Human Resources v. Hibbs. The Hibbs Court, in a surprising opinion by Chief Justice Rehnquist, relied heavily on feminist universalist arguments. Even at the time of Hibbs, though, evidence was accumulating that the FMLA’s universalist approach was not sufficient to achieve the underlying goals of feminist lawyers and activists: disestablishing gender-role stereotypes and promoting equal opportunities for women and men throughout society. Hibbs thus represents the triumph of feminist universalism, even as it highlights the limitations of the feminist universalist project.

April 9, 2019 in Books, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Thursday, April 4, 2019

Justice Ginsburg's Legacy and the Draft Case

Linda Greenhouse, Why R.B.G. Matters, NY Times

For the judicial icon otherwise known as R.B.G., Justice Ruth Bader Ginsburg’s past few roller-coaster months have included being lionized by Hollywood, laid low by cancer surgery, and most recently issuing one of the Supreme Court term’s more important decisions, placing limits on civil forfeiture, within a day of returning to the bench. People who know almost nothing about the court and can’t name another justice know her name. In a celebrity-saturated age, she is one of the culture’s most unlikely rock stars.


Yet for all the accolades that have come her way, I’m willing to bet that among the most meaningful to her is one that doesn’t even mention her name. I’m referring to the decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally.


Justice Ginsburg’s influence shone through the spare and refreshingly direct 19 pages of Judge Gray H. Miller’s opinion. He held that the old arguments against registering (and theoretically drafting) women accepted by the Supreme Court when it last considered the question 38 years ago no longer apply now that women are welcomed by the military and eligible for all roles, including combat positions, for which they meet the sex-neutral qualifications.


As might be expected in a case dealing with women in the military, Judge Miller quoted liberally from Justice Ginsburg’s 1996 opiniondeclaring unconstitutional the exclusion of women from the state-supported Virginia Military Institute. Any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females,” Justice Ginsburg wrote in one passage Judge Miller cited.


What really caught my attention was how, beyond the V.M.I. references, Justice Ginsburg’s pre-judicial career is embedded throughout Judge Miller’s opinion, National Coalition for Men v. Selective Service System. It’s not that Judge Miller directly cited many of the cases that the young lawyer Ruth Ginsburg won, and in which she methodically showed the nine men of the 1970s Supreme Court how to construct a jurisprudence of sex equality. Rather, he cited the cases that built on the cases that relied on Ruth Ginsburg’s Supreme Court victories. Reading his opinion is like opening a set of Russian dolls, each one nested inside the one that just opened.

April 4, 2019 in Constitutional, Courts, Judges | Permalink | Comments (0)

Monday, April 1, 2019

Remembering the History and Mythology of Seneca Falls and Women's First Demand for the Vote

Lisa Tetrault, Fight by Remembering: The Making of Seneca Falls, Ms.

The Nineteenth Amendment to the U.S. Constitution was finally ratified on August 18, 1920. . . .


Emphasizing the long struggle that had culminated in this moment, newspapers heralded the so-called Anthony Amendment “as a living monument to its dead framer, Susan B. Anthony.” History was invoked again and again.


The Anthony Amendment, as it remains known today, was actually written by another activist, Anthony’s close friend Elizabeth Cady Stanton. Anthony had not even been at the famed 1848 meeting in Seneca Falls. Yet newspapers and celebrants alike constantly placed her there. Anthony had not joined the cause of suffrage until a full three years later, in 1851, when she met Stanton, who recruited her.


Women had not even won the right to vote on that historic day in August 1920. The amendment stipulated in full that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” Those 28 words failed to prohibit other forms of discriminatory practices, such as poll taxes and literacy tests, which were then law in several states across the country. Together, with outright violent intimidation and targeted administration, those legal prohibitions continued to bar from the polls many women of color. When these women came to the leading suffrage organizations asking for help in securing voting rights, white women turned them away. The vote, a fight begun by Anthony in 1848, it was said, had been won.


As we ponder how to commemorate this 2020 centennial moment, it behooves us to attend to the memories that suffragists themselves handed down. We must interrogate how and why celebrants in 1920 so assuredly placed Anthony at Seneca Falls, even though she had not been there, and why they so confidently used Seneca Falls as the movement’s beginning, when the movement actually had no singular point of departure. When we pull at that thread and ask how this story came to be—not the facts of the 1848 convention itself, but the story about that convention, along with the lessons that inhered within it—we unravel something that we were not meant to see: history-telling as an important form of activism.


The reporters were absolutely right—history mattered—but not in ways that they fully grasped. They missed how, in the aftermath of the American Civil War, Elizabeth Cady Stanton and Susan B. Anthony had invented this Seneca Falls origin story in an effort to shape a postwar suffrage campaign. They missed how memory itself had played a critical role in the long fight for the vote.

April 1, 2019 in Constitutional, Legal History | Permalink | Comments (0)

The History of Sex Discrimination in Public Accommodations

Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L. J. (forthcoming)

This Article recounts the first history of sex in public accommodations law—a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only sexual minorities but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed “men-only” signs. Women held secondary-status in civic organizations, like Rotary and Jaycees, and were excluded altogether from many professional bodies, like press clubs. Sports—from the Little League to the golf club—kept girls and women from achieving athletic excellence. Insurance companies and financial institutions subsumed married women’s identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for “full and equal enjoyment” by both sexes. At the time “sex” was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to the public sphere. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples’ wedding cakes to transgender people’s restroom access.

April 1, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)

Tuesday, March 5, 2019

Call for Papers: The 19th Amendment at 100: From the Vote to Gender Equality

Call for Papers

CONFERENCE: The 19th Amendment at 100: From the Vote to Gender Equality

The Center for Constitutional Law at Akron

Friday, September 20, 2019



Woman Suffrage Headquarters, Cleveland, OH, 1912. 

Florence Allen (later Judge Allen) holds the flag.


The Center for Constitutional Law seeks proposals from those interested in presenting papers at its upcoming interdisciplinary conference, The 19th Amendment at 100: From the Vote to Gender Equality.  Committed presenters to date include:  Prof. Jamie Abrams (Louisville Law), Prof. Richard Chused (NY Law), Prof. Ann Gordon (Rutgers, History), Prof. Kimberly Hamlin (Miami U, History), Prof. Jill Hasday (Minnesota Law), Prof. Paula Monopoli (Maryland Law), Prof. Mae Quinn (Florida Law), Prof. Reva Siegel (Yale Law), and Prof. Tracy Thomas (Akron Law).  Additional presenters will be selected by this call for papers.

Center for Constitutional Law. The conference is scheduled for Friday, September 20, 2019, in conjunction with Constitution Day, and will be held at the University of Akron School of Law’s new state-of-the-art facility.  The Center is one of four national centers established by Congress on the bicentennial of the Constitution to support legal research and public education on constitutional law.  More information about the Center is available at and @conlawcenter.

Conference Focus.  The focus of the 2019 conference is the 100th anniversary of the 19th Amendment.  Soon after the passage of the 19th Amendment in June 1919, and its ratification by the states in August 1920, the U.S. Supreme Court interpreted the voting amendment as a broad command for gender equality in Adkins v. Children’s Hospital.  However, that decision was quickly overturned, narrowing the impact and intent of the amendment and its 72-year advocacy.  This conference explores the original broader command of the amendment and its goal of systemic equality and opportunity for women.  

This conference will bring together scholars from a range of disciplines including law, history, political science, and women’s studies in order to engage in a day of intensive scholarly discussion about the implications of the amendment.  The cross-disciplinary focus stems from a sense that law is best understood in social and political context, and that gender justice is understood both within and outside the bounds of law.  Possible subject areas for discussion might include the history of the amendment, the history of women’s equality, a comparison with other constitutional rights or enactments, the evolution of feminist legal theory, women’s leadership and power, race and class interactions, connections between public and private rights, or unresolved questions of substantive gender equality.

Proposals.   Proposals including a title, short abstract, and CV should be submitted to Professor Tracy Thomas at by April 10, 2019.  Papers or remarks will be published in a joint symposium of the Akron Law Review and its online companion journal, ConLawNOW. The Center will not be able to pay travel costs for presenters, but hopes that home institutions will be able to provide the necessary financial support. (Alternatively, it may be possible to present by Skype).

March 5, 2019 in Call for Papers, Constitutional, Legal History | Permalink | Comments (0)

Tuesday, February 26, 2019

Federal Judge Holds Male-Only Military Draft Violates Equal Protection

ABA J, Male-only Draft Violates Equal Protection Principles, Federal Judge Says

A federal judge in Houston has ruled that the male-only draft violates equal protection principles of the Fifth Amendment’s due process clause.


U.S. District Judge Gray Miller ruled Friday in a suit by the National Coalition for Men....  Miller granted the group’s motion for summary judgment but did not grant an injunction because the issue had not been briefed.


The U.S. Military currently relies on volunteers. But the Military Selective Service Act still requires men between ages 18 and 26 to register for the draft. Men who fail to register can be fined up to $10,000 and imprisoned for up to five years.


Miller noted that the U.S. Supreme Court had upheld the draft-registration law in 1981 in Rostker v. Goldberg. But women weren’t eligible for combat at the time, and the purpose of draft registration was to prepare for a draft of combat troops.


Circumstances have changed since that ruling, Miller said. In 2013, the U.S. Department of Defense lifted the ban on women in combat, and in 2015, the department lifted all gender-based restrictions on military service.


The government had argued that the decision to exclude women was justified by the administrative burdens of registering them. But the government did not present any evidence that Congress considered whether a female draft was unjustified because fewer women than men will be able to meet the physical standards of combat, Miller said.


“Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’ judgment,” Miller wrote. “Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.”


In a footnote, Miller said that combat roles “no longer uniformly require sheer size or muscle.” Women “could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required,” he said.


The Selective Service System had argued that a ruling on the case should be postponed under separation of powers principles because Congress is currently considering whether to add women to the draft. The government had argued that the congressional debate also meant the case is not yet ripe for review.


The government noted that a national commission was considering congressional recommendations.


But there is no guarantee that Congress will act, Miller said. Congress has been debating the male-only draft since at least 1980 and recently rejected a proposal to include women, he wrote. And national security concerns don’t justify a refusal to act by the courts, he said.

The decision in National Coalition for Men v. Selective Service Administration is here. The judge, Judge Gray Miller, is a 2006 George H.W. Bush appointee and has military experience, serving as a Merchant Marine and a police officer.

Next, Defendants must show that the MSSA's male-only registration requirement is "substantially related"to Congress's objective. See Miss. Univ.for Women v. Hogan, 458 U.S. 718, 724 (1982). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Virginia, 518 U.S. at 533; see also Rostker, 453 U.S. at 67 (noting that the Court previously struck down gender-based classifications that were based on "overbroad generalizations"). "[I]f the statutory objective is to exclude or 'protect' members of one gender because they a represumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate." Mississippi Univ.for Women, 458 U.S. at 724 (citing Frontiero v.Richardson, 411 U.S.677, 691 (1973) (plurality opinion)).


Defendants offer two potential justifications for male-only registration.5 First, Defendants argue that female eligibility to serve in combat roles "does not answer the question of whether women should be conscripted into combat roles" because conscription could lead to ''potential tradeoffs"for the military. Dkt. 80 at 27 (emphasis added). Construed liberally, Defendants appear to be arguing that requiring women to register for the draft would affect female enlistment by increasing the perception that women will be forced to serve in combat roles. Id. at 28; Dkt. 80-3 at 173.


However, this argument smacks of "archaic and overbroad generalizations" about women's preferences. Schlesinger,419 U .S .at 507---08; see also Virginia, 518 U.S. at 533; Rostker,453 U.S. at 67. At its core, Defendants' argument rests on the assumption that women are significantly more combat-averse than men. Defendants do not present any evidence to support their claim or otherwise demonstrate that this assumption is anything other than an "ancient canard" about the proper role of women." Rostker, 453 U.S. at 86 (Marshall, J., dissenting) (quotations and citations omitted). As the Court reasoned in Schlesinger:


In both Reed and Frontiero[,] the challenged classifications based on sex were premised on overbroad generalizations . . . that men would generally be better estate administrators than women . . . [and] that female spouses of servicemen would normally be dependent on their husbands, while male spouses of servicewomen would not. In contrast, the different treatment of men and women naval officers . . .reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service.


419 U.S. at 507-08. It is not a "demonstrable fact"that fewer women will enlist for fear of being conscripted into combat. This justification fails.


Moreover, this justification appears to have been created for litigation. See Virginia, 518 U.S. at 533. Defendants have not produced any evidence that Congress actually looked to this concern in declining to add women to the draft. Defendants' evidence establishes only that Congress may have considered a similar issue in evaluating the Department of Defense's decision to open combat positions to women. See Dkt. 80-3 at 171-74. Thus, although the court must give significant deference to Congress's judgment in military affairs, such deference is not implicated here.

For prior legal scholarship on the gendered draft, see Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L. Rev. 96 (2008), reprinted in Thomas & Boisseau, Feminist Legal History (NYUP 2011).   Hasday argues that extrajudicial change in facts of women's admission into combat positions forms a basis for rethinking the precedent -- exactly what the court found and did in National Coalition for Men.

See also Judge Cites RBG, Rules that Men-Only Draft is Unconstitutional

February 26, 2019 in Constitutional, Gender | Permalink | Comments (0)

Thursday, February 21, 2019

CFP Journal of American History: Sex, Suffrage, Solidarities

CFP Journal of American History

Journal of American History CFP: Sex, Suffrage, Solidarities: Centennial Reappraisals

The year 2020 marks the centennial anniversary of the Nineteenth Amendment. What are our obligations to this moment? What are the crucial questions and unresolved problems in the histories and historiographies of suffrage in the United States? The Journal of American History will observe the centennial with a sustained, multidimensional appraisal. From late 2019 through 2020, we intend to publish a variety of scholarly analyses across our many platforms. Our ambition is to foster creative thinking about the amendment, its discursive and material frameworks, and its complex, often-unanticipated legacies. Our theme for the project—Sex, Suffrage, Solidarities—is intended to provoke new questions about the amendment and the political, economic, and cultural transformations of which it has been a part.

We invite original papers on all topics pertaining to women’s suffrage. We seek essays that examine the work of activists, both before ratification of the Nineteenth Amendment and after. We welcome submissions that investigate the complicated linkages among suffrage, citizenship, identities, and differences. We encourage global, transnational, and/or comparative perspectives, particularly if they compel us to reperiodize or otherwise reassess conventional ways of thinking about campaigns for women’s rights or the project of adult citizenship more broadly. We welcome research articles but will also receive proposals for other genres or formats of scholarly prose.

The deadline for consideration in our Sex, Suffrage, Solidarities series is August 2019. Learn more about JAH submission guidelines here.

We also seek submissions on these themes for the OAH member magazine, The American Historian(submission guidelines here), and for our blog, Process: A Blog for American history (submission guidelines here).

February 21, 2019 in Call for Papers, Constitutional, Legal History | Permalink | Comments (0)

Do We Still Need the Equal Rights Amendment?

NYT, Do American Women Still Need the an Equal Rights Amendment?

When Phyllis Schlafly crusaded against the Equal Rights Amendmentin the 1970s as a threat to all-American motherhood, she handed out freshly baked bread and apple pie to state legislators. She warned of a dystopian post-E.R.A. future of women forced to enlist in the military, gay marriage, unisex toilets everywhere and homemakers driven into the workplace by husbands free to abandon them.


The E.R.A., which had been sailing to ratification, failed. Yet gay marriage is now the law. Women in the military see combat, although women are not required to register for the draft. Six women — so far — are running for president. A record-shattering number of women have claimed seats in Congress. And the percentage of prime-working-age women participating in the labor force has soared from 51 percent in 1972, when Congress passed the E.R.A., to more than 75 percent last year.***


Mrs. Schlafly may not have been able to prevent social changes that transformed the lives of American women, but she did drive a wedge between conservatives and liberals that remains today. “She was one of the early architects of class conflict as expressed through culture wars, as a way to stop the progress of the equality ideals of the professional management elite,” said Joan C. Williams, a feminist legal scholar skeptical about the usefulness of the Equal Rights Amendment. “One of the ironic messages of the E.R.A. is not to underestimate the power of ‘bathroom anxiety’ in pushing the country to the right.”

February 21, 2019 in Constitutional, Pop Culture | Permalink | Comments (0)

Monday, February 11, 2019

Understanding More about Justice Kavanaugh's Dissent from the Supreme Court Order Temporarily Blocking Louisiana Abortion Law

Late last week, the Supreme Court temporarily stayed a new law that requires doctors performing abortion to have hospital admitting privileges.

Supreme Court Blocks Louisiana Abortion Law

The Supreme Court on Thursday blocked a Louisiana law that its opponents say could have left the state with only one doctor in a single clinic authorized to provide abortions.


The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority. That coalition underscored the pivotal position the chief justice has assumed after the departure last year of Justice Anthony M. Kennedy, who used to hold the crucial vote in many closely divided cases, including ones concerning abortion.


The court’s brief order gave no reasons, and its action — a temporary stay — did not end the case. The court is likely to hear a challenge to the law on the merits in its next term, which starts in October.


Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have denied the stay. Only Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.***


In his dissent on Thursday, Justice Kavanaugh said he would have provisionally denied the stay to let the factual questions be sorted out. Notably, he said that the Texas decision was “the governing precedent for purposes of this stay application.”


The Fifth Circuit, he wrote, had predicted that the four doctors who provide abortions at three clinics could obtain admitting privileges. There was no dispute as to one of the doctors, he wrote, leaving questions about three of them.


If those doctors can obtain privileges, Justice Kavanaugh wrote, “the new law would not impose an undue burden” under the Texas decision.


“By contrast, if the three doctors cannot obtain admitting privileges,” Justice Kavanaugh wrote, “then one or two of the three clinics would not be able to continue providing abortions. If so, then even the state acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.”


The right solution, he wrote, would have been to deny the stay and let the challengers return to court if the doctors could not obtain privileges.

Justice Kavanaugh's opinion is here, June Medical Services v. Gee. Kavanaugh applies the common-law principles for temporary injunctions by assessing whether the stay is needed to preserve the status quo and whether immediate harm is threatened.  He finds that it is not, because the state has a regulatory transition rule under which the new law regarding doctors' privileges won't go into effect for 45 days. 

Before us, the case largely turns on the intensely factual question whether the three doctors . . . can obtain admitting privileges. If we denied the stay, that question could be readily and quickly answered without disturbing the status quo or causing harm to the parties or the affected women, and without this Court’s further involvement at this time.

He says that the delay period is time for the doctors to apply for such privileges, and if denied, then seems to agree (as the state does) that there would be an undue burden on women's rights.  Once the facts are more clear, and only if such privileges are denied thereby shutting down the clinics, then it would be the appropriate time for the plaintiffs to seek a preliminary injunction to enjoin the law.

This flips the usual understanding of preserving the status quo.  The status quo is the last pre-dispute time before a new activity or change is inserted (as Justice Roberts reasoned in his opinion in Winter v. Natural Resources Defense Council).  Here, the status quo is the operation of the clinics without the new law.  It is the state that is disrupting that status quo with a new law who should have the burden of the delay while the case is resolved on its factual and legal merits.  Which is the result of the majority's decision in the case.  

Professor Mary Ziegler, on on Twitter says:

Kavanaugh's dissent in June Medical may foreshadow how the erosion of Roe unfolds. Court can always uphold restrictions by demanding more proof and drawing factual distinctions. Harder to understand the stakes of such a decision + allows for appearance of respecting precedent.

More commentary here:

NPR, Supreme Court Stays Louisiana Abortion Law with Roberts Joining Liberals

Vox, Louisiana Abortion Law Blocked by Supreme Court -- For Now

Slate, Kavanaugh Just Declared War on Roe v. Wade

Esquire, The Only Human Surprised by Brett Kavanaugh's Abortion Vote is Susan Collins

In his one-man opinion denying the stay, Kavanaugh essentially showed that he doesn't feel bound by precedent at all in this matter. After all, the Louisiana law is identical to a Texas law that the Court already overturned three years ago. Kavanaugh didn't need "more information" to know that.

Instead, his dissent relies on, along other things, the transparently phony notion that Louisiana officials will be judicious in using the law they've already passed

February 11, 2019 in Abortion, Constitutional | Permalink | Comments (0)

Tuesday, January 29, 2019

Legal Scholars Discuss Implications of Current Movement for ERA

Ms., Continuing the Fight for Constitutional Equality

The Equal Rights Amendment is making a comeback.

Nearly a century since the ERA was first introduced in Congress, and four decades since its unsuccessful ratification campaign, there is revived interest in enshrining the principle of gender equality in our Constitution.

Over the past two years, the Nevada and Illinois state legislatures ratified the ERA by comfortable margins, breathing new life into the proposed amendment. Advocates now believe that achieving the necessary 38 state ratifications is within reach. 

What’s in store for the ERA? And how might it advance the fight for gender equality in the U.S. today? These questions are being newly debated across the country—and in a day-long event organized by the Brennan Center for Justice at New York University School of Law last November, an array of politicians, scholars, legal advocates and activists examined the implications of this modern movement for legal change.***

At the conference, panelists recalled [Martha] Griffith’s tireless efforts at time of extraordinary social change. Cary Franklin, professor at the University of Texas at Austin School of Law, noted that her big push occurred against the backdrop of the Women’s Strike for Equality—“the biggest demonstration for women’s rights since the women’s suffrage movement… [in which] thousands of women across the country organized in cities and made a number of demands about women’s equal citizenship, including education, employment, reproductive rights and child care.”***

NYU School of Law Professor Melissa Murray put it aptly, explaining that gender equality has become “part of the conversations people are having around kitchen tables and with friends about no longer being willing to accept what has been the status quo for so long.” With ArizonaOklahomaSouth Carolina and Virginia all vying to be the lucky 38th state, it’s a good time for the entire nation to reflect on what the long-overdue ratification of the ERA can and should mean for gender equality in the U.S. in the 21st century.

January 29, 2019 in Conferences, Constitutional | Permalink | Comments (0)

Monday, January 28, 2019

Why the Equal Rights Amendment's Ratification Deadline may be Invalid, Waived, or Extended

On the horizon is the possible 38th state ratification of the ERA.  Legislative action pending in Virginia, North Carolina, and Minnesota makes this likely.  The question is whether this will matter given the expired deadline.

The original ERA passed by Congress in 1972 had a 7 year deadline.  Congress, with the assent of the president, then extended that deadline in 1979, prior to its expiration, by 3 years to 1982.  

There are several arguments now as to why the 1982 deadline does not apply:

1.  The original ERA deadline was constitutionally invalid because (a) Article V says nothing about permitting time restriction on amendment (but see Dillion v. Glass); or (b) the ratification of the 27th Amendment after a 203 gap overrules Dillion v. Glass and the judicially-created mandate that ratification be sufficiently contemporaneous; or (c) it was contained in the introductory preamble to the amendment rather than the substantive text of the amendment itself which distinguishes the holding in Dillion that Congress may impose amendment deadlines in determining the mode of amendment.  Without a deadline, the amendment, per Article V "shall be valid for all Intents and Purposes" upon ratification by the 38th state. 

2.  Congress retains the power to alter its original ERA deadline by waiver, repeal, and/or extension because the deadline is not contained in the substantive text of the amendment and because it has already passed one such extension. 

3.  Congress has the power to conduct a post-ratification acceptance of the amendment (so-called Coleman analysis).

4. The modern precedent of the 27th Amendment regarding salary increases for members of Congress and its 203 year gap in ratification provides strong precedent for a gap in ratification and calls into doubt the the limited judicial acceptance of amendment deadlines.  

The basic arguments are made here, Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, Note,  The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 William & Mary J. Women & Law 113 (1997);

Then-Professor Ruth Bader Ginsburg addressed some of these issues when considering the propriety of the extension of the ERA deadline in 1979.  Ratification of the Equal Rights Amendment: A Question of Time, 57 Texas L. Rev. 919 (1979)  [Westlaw Link]; see also Jean Witter, Extending Ratification Time for the Equal Rights Amendment Constitutionality of Time Limitations in the Federal Amending Process, 4 Women's Rights L. Rep. 209 (1978).

Limitation periods have accompanied only the more recent constitutional amendments. Congress specified no time frame for ratification of the first seventeen amendments. When the eighteenth amendment (Prohibition) was before Congress, legislators expressed concern about proposed amendments “floating around in a cloudy, nebulous, hazy way.” That was unseemly, Senator Ashurst said: “10, 12, 14, 16, 18, or even 20 years,” he ventured, might be a reasonable period for ratification, but Congress should provide a check against handing down to posterity proposals submitted to the states many decades earlier.
Without extensive discussion of the time span suitable generally or  in the particular context, Congress specified seven years for ratification of the Prohibition amendment. The same seven year period was specified, without fresh debate, for amendments twenty through twenty-six. But significantly, Congress sent the nineteenth amendment (Woman's Suffrage) to the states without a ratification time frame. The suffragists, who had struggled for the better part of a century to win the vote for women through state-by-state campaigns, resisted a deadline for the federal amendment.
Suffragists still with us in 1970 argued against a time limit for the ERA. They wanted to keep the pattern consistent with the nineteenth amendment. But principal congressional proponents of the ERA accepted addition of a seven year specification to the proposing clause that preceded the text of the amendment. They thought the stipulation innocuous, a “customary” statute of limitations, not a matter of substance worth opposing. The nineteenth amendment, after all, was proposed in 1919 and ratified in 1920. No amendment now part of the Constitution had taken even four years to be ratified. [But since then, the 27th Amendment had 203 years]. ***
Few participants in the extension debate questioned the authority of Congress to specify initially a decade or more for ratification of the ERA, or to say nothing at the outset regarding a time frame. The issue was whether Congress, having said seven years, was locked into that specification, essentially, whether Congress could establish in two steps a time frame it might have set in one. Relevant to resolution of this threshold issue was the placement of the time limitation.
Congress fixed the time for ratification in the text of the eighteenth, twentieth, twenty-first, and twenty-second amendments. That placement appeared to make the time provision an inseparable part of the proposed addition to the Constitution submitted to the states for approval. Amendments later proposed, including the ERA, contained no time limitation in the “Article of Amendment.” Instead, the limitation was separated from the text of the amendment and placed in the proposing clause.
The change from text to proposing clause was effected largely to avoid “cluttering up” the Constitution with vestigial provisions serving no function once an amendment was ratified. But the very judgment that the limitation should be transferred from text to preamble may reflect an underlying recognition that setting a time for ratification entails a determination qualitatively different from agreement on the substantive content of an amendment.
Apart from the acknowledged purpose of the time limitation—to inter proposed amendments grown stale through the passage of time—and the “placement” argument—that a time provision placed in the proposing clause forms no part of the amendment text submitted to the states for ratification— what support did Congress draw upon in making the judgment to extend the time for state consideration of the ERA? Article V, the terse amendment provision of the Constitution, is silent on the period for ratification. But the Supreme Court has drawn two base lines.
In 1921 the Court ruled in Dillon v. Gloss25 that article V implicitly requires occurrence of ratification within a reasonable time. Dillon sustained the power of Congress to set a time for ratification in the text of the Prohibition amendment.
What time span is reasonable? The Court addressed that issue in 1939 in Coleman v. Miller, it held that determination of the limitation period calls for an eminently legislative judgment, one for Congress to make. Coleman involved, inter alia, a claim that by 1937 the Child Labor amendment, proposed by Congress in 1924 without a ratification time limit, was dead—no longer open for ratification. Congress is uniquely equipped to decide the timeliness question, Chief Justice Hughes wrote, because of its “full knowledge and appreciation ... of the political, social and economic conditions which have prevailed during the period since the submission of the amendment.”
When the ERA was proposed, Congress had no fine crystal ball to forecast the political, social, and economic conditions prevailing in the ensuing years. At best, Congress could make only an estimate in 1972. Was Congress disabled in 1978 from deciding that it estimated incorrectly when it specified for the ERA the time frame used for amendments more readily comprehended and less vulnerable to distortion—the vote for eighteen-year-olds, the order of succession to the Presidency, prohibition of a poll tax—to take the most recent examples?
Some extension opponents urged that Congress exhausts its authority once it proposes an amendment and designates the mode of ratification. At that point, so the argument goes, the process is entrusted entirely to the states. Just as Congress, after submitting an amendment to the states, may not change the wording of the text or the mode of ratification, so it may not alter the time frame.
But the view that “the only Congress that has power over any particular amendment is the Congress that proposed it,” and even that Congress, only up to the moment of proposal, seems shortsighted. Unquestionably, when a limitation period is not fixed in advance, the “reasonable time” appraisal must be made by Congress after submitting the amendment to the states. Coleman v. Miller also appears to indicate that even when a time period is set by the proposing Congress, it is within the province of a later Congress to decide that a reasonable time had elapsed prior to the deadline day, because conditions had so changed that the amendment was “no longer responsive to the conception which inspired it.” Other questions too may arise post submission, for example, the efficacy of a purported rescission, or the validity of a state-imposed rule requiring for ratification a three-fifths vote of the legislature. Is Congress disarmed, is it barred from addressing such questions if it does not anticipate and resolve them before submitting a proposed amendment to the states?
Most constitutional law teachers consulted by Congress while the extension measure was pending, whether they supported or opposed the measure, agreed on the threshold question—Congress has authority to extend a ratification time limit. Dillon and Coleman had bracketed the issue. Dillon held Congress could deal with timeliness at the outset, Coleman confirmed Congress could “wait and see,” deferring the question until “the time arrives for the promulgation of the adoption of the amendment.” Extension indicated a middle course: a time frame intended to ensure the proposed amendment would not roam around state legislatures indefinitely was enlarged upon a congressional determination that “the public interests and changing conditions” so warranted. Absent this continuing evaluation and control by Congress, a time limit in a proposing clause could be cut loose from its function. The limitation could inter a proposed amendment that remained vibrant, as the Supreme Court put it in Coleman, fully “responsive to the conception which inspired it.”
Professor Julie Suk explains further in a her remarks included in Feminism in the Age of Trump, 23 Cardozo J. Law & Gender 419 (2017) (available on Westlaw)

[T]here's a big question as to whether or not the ERA would just automatically become the 28th amendment. The deadline is a problem. For about a decade after the deadline passed in 1982, it was assumed that the ERA was dead. But something very interesting happened in our constitution, which was that in 1992, the 27th Amendment became part of the constitution. That amendment prohibits laws varying the compensation of members of Congress until an election cycle, and it was adopted by Congress and sent to the states for ratification under Article Five in 1789 along with the original Bill of Rights. But unlike the other rights in the Bill of Rights, only seven states ratified it within the 18th century, and an eighth state ratified in 1873. But a revival movement took shape in the 1980s, in part due to the mobilization of an undergrad who wrote a paper about it and received a C, but then started a letter-writing campaign to various state legislators, saying we can ratify this. There was no deadline. And then 38 states did ratify by 1992, and interestingly, additional states have continued to ratify even after 1992, even after we got to 38 and added it to the U.S. Constitution. So the 27th Amendment became part of the U.S. Constitution 202 years after it was sent to the states for ratification. So this makes it at least possible to imagine the ERA now becoming part of the constitution, if only we could do something about that deadline.

The ERA deadline was not part of the text of the amendment itself. Note that in the Prohibition Amendment, the ratification deadline was part of the text. But because the deadline wasn't part of the text of the ERA, now it's argued that Congress can just accept the ratifications and decide to repeal the deadline or just change the deadline, with bills introduced to that effect. Then, those post-deadline ratifications would be valid, and the ERA would come into effect. 

It's also argued further that even if Congress didn't change or repeal the ERA deadline, and the states just continued to ratify the ERA, we could still end up with a valid amendment on the theory that the deadline was never valid to begin with. The theory here would be that Article Five does not say anything about deadlines, so Congress imposed one illegitimately on the ERA.
Article Five tells you what the amendment process is. It's known throughout the world to be a deeply cumbersome process for amending the constitution. You need both Houses of Congress by two thirds, and then three fourths of the states to ratify. It's already pretty cumbersome. Imagine Congress then adding another layer of cumbersomeness to an amendment. Imagine Congress saying, “You also have to have a referendum in which at least 60% of the eligible electorate shows up and votes in order to validate that amendment.” You would think that Congress is imposing a condition on amending the Constitution that's not envisioned and even more cumbersome than Article Five. If Congress can't do that, I think the congressionally imposed deadlines on the ERA are arguably similar.
We have some precedent suggesting that congressionally imposed deadlines are not only legitimate, but possibly constitutionally required. The Supreme Court upheld the congressionally imposed deadline that was in the Prohibition Amendment. But as I said earlier, that congressionally imposed deadline was in the text of the Prohibition Amendment itself, in which case you could read Congress putting it in the amendment as an amendment or a partial amendment of Article Five.
By contrast, when Congress just puts the amendment into the legislation, setting off the ERA ratification process, then the ERA deadline is not a partial constitutional amendment. Rather, it could be seen as an effort by Congress to make the process of constitutionalizing gender equality more cumbersome than it's supposed to be.
As to the precedent itself.
In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court held that Congress could impose deadlines on constitutional amendments, and upheld the deadline in the Eighteenth Amendment on Prohibition. 
These were the circumstances in the light of which Congress in proposing the Eighteenth Amendment fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both houses was that some limitation was intended and that seven years was a reasonable period.
That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired, it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on the application of two-thirds of the states Congress shall call a convention for the purpose. When proposed in either mode amendments to be effective must be ratified by the Legislatures, or by conventions, in three-fourths of the states, ‘as the one or the other mode of ratification may be proposed by the Congress.’ Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all.
We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson ‘that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.’ That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal.
Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests**513 and changing conditions may require; and article 5 is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.
The Court later held that any decision as to deadline was in the province of Congress, and was a political not legal question. Coleman v. Miller, 307 U.S. 433 (1939) (plurality) (Child Labor Amendment).
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
Using these precedents, one district court invalidated the ERA's three-year extension. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982).
The question of whether it is a proper exercise of congressional authority under article V to alter a previously proposed time limitation for ratification, and if so by what majority, presents for the Court a question of constitutional interpretation of congressional authority, and an inquiry into the procedural aspects of exercising that power. Thus, the Court's inquiry is two-fold: First, does Congress under its power to “propose” the “Mode of Ratification” have the power to change its proposal once it has been made and sent to the states; second, if the initial proposal can be subsequently changed, may Congress act by less than a two-thirds majority. One related question that has been raised that should be dealt with at this time is whether or not a state's ratification resolution specifically acknowledging the ratification period set by Congress is impaired if the original time period is extended or whether it is a “conditional” ratification arguably prohibited by the amendment process.
To begin with, the actions of Congress in relation to a proposed amendment must be properly characterized in order to approach the questions presented. First, it must be recognized that Congress' power to participate in the amendment process stems solely from article V. As Justice Stevens noted, “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution ....” Dyer v. Blair, 390 F.Supp. 1291, 1303 (N.D.Ill.1975) (emphasis added). Thus Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I. The power of Congress to set a time period in which ratification must be completed is derived from their function of setting the mode of ratification. See Dillon v. Gloss, 256 U.S. 368, 376, 41 S.Ct. 510, 513, 65 L.Ed. 994 (1921). The defendant in this action attempts to create a substance/procedure dichotomy by contending that since the time restriction in this instance is part of the proposing resolution it is proper for reconsideration where if the time period were part of the amendment itself it would not be. The argument follows that a change of a substantive aspect of an amendment is clearly improper once it has been submitted to the states, but a change in the proposing resolution, on the other hand, does not change the essential nature of the amendment and thus is a matter of detail which Congress can change at will. The Supreme Court in Dillon v. Gloss, supra, had an opportunity to address this substance/procedure dichotomy when the eighteenth amendment was challenged on the grounds that the seven-year ratification period called for in Section 3 of that amendment was unconstitutional. While the Dillon court indicated that “(a)n examination of article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments”, Id. at 373, 41 S.Ct. at 512, the court did not recognize the setting of the time limitation as being a function of Congress' power to propose amendments but instead indicated that
(w)hether a definite period for ratification should be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.
Id. at 376, 41 S.Ct. at 513 (emphasis added).
The court did not recognize a substance/procedure dichotomy and thus any authority to limit the time period for consideration must flow from the Congress' power to set the mode of ratification. Accordingly, the Court's attention is drawn to a consideration of Congress' power to set and change the time period for ratification under its power to set the mode of ratification.
The United States Supreme Court in United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) recognized that Congress has absolute discretion within its power to propose the mode of ratification to establish which of the two local entities will act as the spokesman for the people. The Supreme Court in the Dillon and Coleman cases found that as a “subsidiary matter of detail” to this congressional prerogative, Congress must also determine whether or not the local expressions of consent are “sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period ....” Dillon 256 U.S. at 375, 41 S.Ct. at 512. In making its determination that the requisite consensus has been reached in a sufficiently contemporaneous period, the Supreme Court in Coleman, supra, indicated that if no time restriction is set initially, Congress retains its authority *1152 to decide that issue when the requisite number of states have acted.
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
Id. 307 U.S. at 454, 59 S.Ct. at 982. The court in Dillon further clarified the scope of Congress' power by indicating that while Congress is not compelled to make a determination of a reasonable time period in advance of the actions of the requisite number of states, it is not precluded from doing so. The Dillon court held that Congress may fix a reasonable time in advance “so that all may know what it is and speculation ... be avoided.” Id. 256 U.S. at 376, 41 S.Ct. at 513. It should be noted that the Dillon court did not intimate that the setting of a definite time period was a projection or preliminary assessment of a reasonable time period which would be re-evaluated as time passed. Rather, the Court indicated that the exercise of Congress' power to set a time period for ratification is one which is intended to infuse certainty into an area which is inherently vague. Thus the inference that can be drawn from Dillon and Coleman is that within Congress' role of determining a reasonably contemporaneous consensus, or in other words, determining whether the socio/political, economic forces giving rise to the amendment remain alive and unchanged during the period in which the states act in giving their assent to the proposal, Congress may exercise its function in one of two ways: first, it can leave the question of a reasonable time open until the requisite number of states have acted and thus continually monitor the viability of the amendment; second, where it appears to Congress that the socio/political, economic factors giving rise to the amendment are such that they are unlikely to change for an indefinite period of time, and rather than have the proposed amendment pending perpetually, Congress can set an arbitrary yet reasonable time period in order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.
It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-“so all may know and speculation ... be avoided”-the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment requires ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until three-fourths of the states have acted.

January 28, 2019 in Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, January 23, 2019

NY Passes Law to Protect Access to Abortion Even if Roe is Overturned

New York Abortion Measure: State Moves to Protect Access to Abortion Even if Roe v. Wade is Overturned

On the 46th anniversary of Roe V. Wade, New York state passed a law to protect women's access to abortion if the historic case is overturned.

"Today we are taking a giant step forward in the hard-fought battle to ensure a woman's right to make her own decisions about her own personal health, including the ability to access an abortion. With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body," said Gov. Andrew Cuomo after signing New York's Reproductive Health Act on Tuesday night.
Not only will the law preserve access to abortions, it also removes abortion from the state's criminal code. This would protect doctors or medical professionals who perform abortions from criminal prosecution. The law also now allows medical professionals who are not doctors to perform abortions in New York.
"The old law had criminal penalties. It was written that the doctor or professional could be held criminally liable," Cuomo said during an interview on WNYC Wednesday.
The bill allows women to get abortions after 24 weeks if their life or health is threatened by the pregnancy in addition to permitting women to have an abortion at any time if the fetus is not viable, according to

The law also regulates abortion under public health law, rather than criminal law, and allows licensed nurse practitioners, physician assistants and licensed midwives to conduct abortions, reported


Tuesday marked the 46th anniversary of Roe v. Wade and a new milestone for New York women. Governor Andrew Cuomo, a Democrat, signed the Reproductive Health Act into law after it passed both chambers of the state legislature earlier in the day. The bill updates New York’s abortion law, which predates Roe and regulates abortion in the state’s criminal code. “It’s bittersweet. There is a bitterness because we shouldn’t be here in the first place,” Cuomo said, according to the Albany Times-Union. “We should not have a federal government that is trying to roll back women’s rights … This administration (of President Donald Trump) defies American evolution.”


The RHA takes abortion out of the criminal code; the state will now regulate it as a matter of public health. It also expands the pool of medical professionals who are authorized to perform abortions and permits abortions after 24 weeks when the fetus is not viable or a woman’s health is at risk. Previously, women who needed later-term abortions to end nonviable pregnancies were forced to travel far outside the state — a financial and psychological burden. Separate from the RHA, Cuomo has pledged to amend the state constitution to include an affirmative recognition of the right to abortion, though that process will be a lengthy one. As reported earlier this month, the state legislature has to approve the amendment, which would then go to voters for a referendum.

This is interesting put in historical context, as New York's criminalization of abortion passed in the mid-19th century was one of the leading restrictive laws in the country and one of the most studied.  See Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. J. 1 (2012) (including sources cited therein).

January 23, 2019 in Abortion, Constitutional, Healthcare, Legislation | Permalink | Comments (0)

Tuesday, January 22, 2019

How the Equal Rights Amendment is Still in Play

Garret Epps, The Equal Rights Amendment Strikes Again, The Atlantic

If you’re confused about the ERA’s status, that’s only natural. Until recently, the Equal Rights Amendment itself—the heart of it says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”—seemed like a dead letter. When Congress proposed the amendment in 1972, the resolution said it would become effective if approved by three-quarters of state legislatures “within seven years.”


At the time, ratification seemed a foregone conclusion; both parties had supported the ERA for nearly 20 years. But the nascent religious right mobilized to block it. Ratification stalled at 35 states—three short of the three-fourths majority required. In 1978, Congress passed a new resolution extending the deadline to June 30, 1982—but no new states ratified.


Since then, women’s advocates have repeatedly tried to get Congress to adopt a new ERA resolution and begin ratification anew—to no avail.


But advocates also formulated a new path to ratification, which they dubbed the “three-state strategy.” It is this: (1) Win ratification in three of the 15 states that have not yet ratified the amendment—thus bringing the total number of ratifications to 38, and then (2) Win passage of a congressional resolution retroactively extending the deadline.


Step one is nearly complete; the Nevada legislature approved the amendment in 2017, and Illinois did so in 2018. If Virginia approves it this time, the three-state strategists will ask Congress to pass a statute proclaiming that the measure has been approved by 38 states.


Then the real fight will start.


The “new” strategy is actually 25 years old. It has its roots in 1992, after the adoption of the Twenty-Seventh Amendment.


Quick! What is the Twenty-Seventh Amendment? Don’t worry, nobody remembers: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” It means that one Congress can’t vote itself a pay raise; it can only raise (or lower) the pay of the next Congress, thus requiring the members to face voters at the polls before pocketing extra cash.


Although this congressional-pay amendment entered the Constitution in 1992, it had actually been proposed by Congress two centuries earlier, in 1789....


All of this has led the ERA’s supporters to wonder: If the congressional-pay amendment could come back from the dead after two centuries, why not the ERA after a mere decade and a half? Since the ERA limit has already been changed once by Congress, why can’t another Congress change it again, retroactively?


The main theoretical work behind the three-state strategy is a student note by three University of Richmond students published in 1997. That’s a bit thin, but so was Watson’s term paper, and that led to the Twenty-Seventh Amendment. In fact, the process of constitutional adoption and amendment has since 1787 been marked by desperate improvisations and sudden power plays.

January 22, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)

Renewed Efforts to Pass Equal Rights Amendment in Minnesota

Long Dormant, The Equal Rights Amendment has Awakened with Vigor

After decades of dormancy, the ERA soon is being considered in the Minnesota House with a majority of members in support. Senate companion bills will feature DFL and GOP co-authors, signaling a majority of the votes....

Two bills are before the state House: the Minnesota State ERA Bill, a constitutional amendment bill to embed an ERA into our state Constitution (HF13), and the Federal ERA Resolution to Congress to remove the deadline on the federal ERA (HF71).


The Minnesota State ERA Bill (HF13), authored by Rep. Mary Kunesh-Podein, DFL-New Brighton (with a companion bill authored by Sen. Richard Cohen, DFL-St. Paul), will add a section providing for gender equality in our state Constitution.


The impact would be to provide a constitutional basis for claims of gender-based violence, help create more realistic legal standards for sex discrimination in the workplace, ensure that women can work safely, have reasonable accommodation and earn much-needed income for themselves and their families during pregnancy, and address unjust laws that impact men. If passed, a question would be added to the general election ballot in 2020, the 100th anniversary of women’s gaining the right to vote.

Currently, 24 states have some kind of equal rights amendment language in their state constitutions. ERAs have existed in state constitutions for over 140 years and no federal law has been overturned because of them. Other states are poised to add an ERA. In Delaware, a state ERA may finally pass this month, and, in New York, Gov. Andrew Cuomo has made an equal rights amendment a priority in his first 100 days.


The Federal ERA Resolution to Congress (HF71), authored by Rep. Rena Moran, DFL-St. Paul (with a companion bill authored by Sen. Sandy Pappas, DFL-St. Paul), memorializes Congress to remove the arbitrary deadline of “June 30, 1982,” from the ERA. For a federal constitutional amendment to be made part of the U.S. Constitution, three quarters (or 38) of the states must ratify it. This country is now sitting at 37 states ratified. With the tremendous success ratifying the ERA in Nevada in 2017 and Illinois in 2018, huge strides have brought the ERA to a tipping point.

January 22, 2019 in Constitutional, Legislation | Permalink | Comments (0)

Friday, January 18, 2019

Virginia Senate's Ratification of Equal Rights Amendment Brings Three-State Strategy within Reach

Virginia Senate Passes Federal Equal Rights Amendment

The GOP-led state Senate voted Tuesday to make Virginia the 38th and final state to ratify the federal Equal Rights Amendment.


The measure passed with bipartisan support, with seven Republicans joining Democrats on a 26-to-14 vote. The measure faces tougher odds in the House of Delegates and beyond, including hurdles related to long-expired deadlines for passage.


The legislation died last year in committee in both chambers, even though a majority of lawmakers in both the House and the Senate had signed on as co-sponsors. The full Senate has passed it five times in the past eight years, but it has never cleared the House.


The Senate resolution now heads to the House, where comparable House legislation remains in committee.

The Virginia Senate, however, has passed the ERA before, in 2011, 2012, and 2014.  So the real question is whether the House will do so.

The "three-state strategy" is a legal approach to passing the Equal Rights Amendment focused on getting three additional states to pass the ERA.  After Congress passed the ERA in 1972, ratification fell three states short (35 of the required 38) by the original deadline of 7 years.  Congress extended the deadline by 3 years to 1982, but no additional state passed the ERA during that time.

The current strategy assumes that the window of opportunity for ratification remains open, and that if three states ratify the ERA to meet the required 38, Congress could then accept those and/or reopen the deadline.  Nevada ratified the ERA in 2017; Illinois in 2018.  One argument in support of this approach is that the original deadline for the ERA was contained in the text of the preamble, rather than the text of the amendment, makes this possible.  A second argument is that the precedent of Congress extending the deadline once, making extension of the deadline possible.

The advocacy group "Equal Means Equal" explains the strategy and the need for the ERA on its website, documentary film, and book.    

The three-state strategy was initially articulated in a 1997 law review article by three students in the William & Mary Journal of Women and Law, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States.  The authors relied on an analogy to the 27th Amendment, the Madison Amendment regarding salaries for government officials.  The 27th Amendment was open for ratification in 1789, but not finalized until 203 years later when additional states finally signed on.  And so the additional state strategy does have precedent.

The American Bar Association has advocated in support of the ERA, and specifically in favor of Virginia ratified it.  See ABA President Urges Virginia Lawmakers To Ratify the ERA.  A 2016 American Bar Association Resolution explains more of this legal background: 

There remains considerable academic and political disagreement on whether the ERA can be revised and ratified by achieving ratifications of an additional three states’ under the 35- of 38-state tally noted above; to wit, a “three-state strategy.” 4 That strategy is discussed in a 1997 article called “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States” in the William & Mary Journal of Women and the Law. In 2013, a report of the Library of Congress's Congressional Research Service (Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congressional Res. Serv., (May 9, 2013)) examined the legislative history and provided an analysis of the factors affecting its viability

It also explains one potential limitation on the strategy, if post-ratification rescissions of state affirmation in five states, Nebraska, Tennessee, Idaho, Kentucky, and South Dakota, are valid. 

(It is important to note that the U.S. Constitution is silent regarding a state's authority to rescind its ratification of a proposed, but not yet adopted, constitutional amendment.)

On Dec. 23, 1981, in Idaho v. Freeman, 529 F. Supp. 1107 (1981), the United States District Court for the District of Idaho ruled that the rescissions—all of which occurred before the original 1979 ratification deadline—were valid and that the ERA's deadline extension was unconstitutional. The National Organization for Women appealed the ruling. However, the acting solicitor general reported to the Court that the administrator of general services concluded the ERA had not received the required number of ratifications, so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here." He urged the Court to dismiss the complaint. On Oct. 4, 1982, in NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court vacated the ruling in Idaho v. Freeman and declared the entire matter moot on the grounds that the ERA was dead for the reason given by the administrator of general services.

Looking to precedent of the Fourteenth Amendment, several states sought to rescind their endorsement of that Civil Rights Amendment after ratification, but Congress still included those states in the list of enacting states, suggesting that the ratification was not effective.

For the longer history of the ERA, up until the present lobbying action, see my book chapter: Tracy A. Thomas & TJ Boisseau, After Suffrage Comes Equal Rights?  ERA as the Next Logical Step, in One Hundred Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism" (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)


January 18, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Thursday, January 17, 2019

Podcast: The Ginsburg Tapes

The Ginsburg Tapes

The Ginsburg Tapes is a podcast about Ruth Bader Ginsburg’s oral arguments in the Supreme Court—before she became #NotoriousRBG.


Specifically, from 1972-1978, Ginsburg argued six cases in the Supreme Court.  In each case, she and the ACLU Women’s Rights Project brought constitutional challenges to laws treating men and women differently.  Ginsburg’s goal was to show the ways in which laws which seemed on their face to benefit women actually perpetuated stereotypes and held women back from full participation in American life.


For all six cases, Lauren breaks down the real recordings of the oral arguments.  The tapes allow listeners to be a fly on the wall, to teleport to that moment in history.  Listeners can hear Ginsburg make her case, and listen to reactions from the all-male Supreme Court.  You’ll hear from liberal icons like Justice Thurgood Marshall and Justice William Brennan, and conservative icons like Chief Justice Warren Burger and then-Justice William Rehnquist, as they grapple out loud with what the Constitution means.  In each episode, Lauren talks about history, effective advocacy, constitutional change, the power of the Supreme Court, and gender equality.

January 17, 2019 in Constitutional, Judges, SCOTUS, Women lawyers | Permalink | Comments (0)

Tuesday, December 4, 2018

At Least For Now, Women Have Reproductive Rights

Joanna Grossman, At Least for Now, Women Have Reproductive Rights, Justia

It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years. * *  *


Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. * * *


In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.”

December 4, 2018 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)