Tuesday, August 4, 2020
Today, Congress introduced the Abortion is Health Care Everywhere Act of 2020—the first-ever legislation to repeal the Helms Amendment. The bill was introduced by Rep. Jan Schakowksy (D-Ill.) and co-sponsored by Reps. Nita Lowey (D-N.Y.), Barbara Lee (D-Calif.), Jackie Speier (D-Calif.), Ayanna Pressley (D-Mass.), Diana DeGette (D-Colo.) and Norma Torres (D-Calif.).
Established in 1973 (notably the same year as the Roe decision), the Helms Amendment—introduced by former Sen. Jesse Helms (R-N.C.), an ultraconservative senator marked by blatant racism and other odious behavior—dictates U.S. foreign aid cannot be used for abortions.
Though there are exceptions for rape, incest and threat to the pregnant person’s life, in practice, the Helms Amendment has created a complete ban on abortion funding abroad—even in countries where abortion is legal.
Since its enactment, the Helms Amendment has been criticized as an imperialist, ideological, racist and classist policy.
“The Helms Amendment is a policy deeply rooted in racism,” said Rep. Schakowsky. “It imposes our arbitrary and medically unnecessary abortion restrictions on international communities, allowing the United States to control the health care and bodily autonomy of billions of Black and brown people around the world.”
Moreover, many argue abortion restrictions like Helms have led to the avoidable deaths of thousands of women by coercing them to seek unsafe alternatives.
According to the Guttmacher Institute, 35 million women per year have abortions in potentially lethal conditions. What’s more, unsafe abortions are one of the leading causes of maternal mortality worldwide.
The bill is here: Abortion is Healthcare Everywhere Act: "To amend the Foreign Assistance Act of 1961 to authorize
the use of funds for comprehensive reproductive health care services, and for other purposes."
Thursday, July 23, 2020
I'm quoted in this article on the ERA.
Hannah Hayes, 100 Years On, the ERA Rises from the Ashes, ABA Perspectives Magazine (March 2020)
n March 2017, Nevada became the 36th state to ratify the Equal Rights Amendment (ERA). The move came just two months after the Women’s March on Washington drew hundreds of thousands to Washington, D.C., to protest President Donald Trump’s inauguration, as millions of women joined in simultaneous marches worldwide.
The vote also came 45 years after Congress passed the constitutional amendment, a move requiring ratification by three-fourths (38) of states before it became law. That year, 22 states immediately jumped on board; eight states ratified the ERA in 1973, followed by three states in 1974, with only two more states in 1975 and 1977.
After the decades-long gap, Nevada was followed by Illinois in 2018, and in January of this year, Virginia became the 38th state, technically making the amendment a reality. However, approval has been stalled because the amendment was introduced with a proposed two-year deadline for state ratification, and five states rescinded approval in the 45 years following their approval. Many credit the #MeToo movement and the election of President Trump with re-invigorating the women’s movement. “[Former President Barack] Obama claimed we were post-racial, but 2016 woke people up,” says Senator Pat Spearman, the democratic Nevada senator who introduced the resolution and who has since championed ratification across the country.
Others say, however, a persistent ground game that involved flipping seats and working state by state kept the amendment alive when many thought it had died a quiet death in the late 1970s. “I think the Women’s March helped inject vigor and also turned average people into activists,” says Kate Kelly, a human rights lawyer in the New York office of Equality Now, an international women’s rights organization, and a member of the national ERA Coalition. “Most people said it came out of nowhere, but people had been working on the ground in many states for many years. It just wasn’t getting any attention.”
What Took So Long?
While the Nineteenth Amendment, which was ratified in 1920, recognized women’s right to vote, it did not make women equal under the law. Further, it was only one strand of a series of demands made by Elizabeth Cady Stanton and abolitionist Lucretia Mott at the historic Seneca Falls Constitutional Convention in 1848 that included a broad list of social and civil rights, such as no-fault divorce and equal marital property rights. The Equal Rights Amendment was authored by Quaker abolitionist Alice Paul in 1923 and revised in 1943.
“Paul had a group of women lawyers from every state who analyzed the statutes in each state, and they came up with 350 statutes in 30 different areas of law where there was inequality,” says Tracy Thomas, director of the Center for Constitutional Law at the University of Akron (Ohio) School of Law.
According to Thomas, the ERA was met with opposition from the beginning. ERA advocates clashed with the labor movement, which was fighting for minimum wage and workplace safety. “The way they had been successful was by saying that women needed protection because legislators could understand that, so there was the fear that if you said the women were equal to men, nobody would get workplace protection,” Thomas explains.
Eventually, those issues faded following the passage of the Fair Labor Standards Act in 1938 and the rise
of the civil rights movement.
Monday, July 6, 2020
Law Professors File Amicus Arguing Question of Equal Rights Amendment Ratification is a Political Question
Julie Suk, Who Decides the Future of the Equal Rights Amendment?, Take Care blog.
In January 2020, the Virginia legislature voted to ratify the Equal Rights Amendment to the U.S. Constitution, almost forty years after the ratification deadline.
Has the Constitution been amended? In a lawsuit filed in DC federal court, Virginia says that the ERA is now part of the Constitution. But the defendant National Archivist won’t publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.
Who is right, Virginia or the Archivist? More importantly, who decides?
Last week, I filed an amicus brief in the case, joined by constitutional law colleagues Erwin Chemerinsky, Noah Feldman and Reva Siegel. Supporting none of the litigants, we argue that whether the ERA is part of the Constitution under these unprecedented circumstances is a political question for Congress in the first instance, not the courts or the Executive Branch.
Virginia, Nevada, and Illinois – the states that ratified after Congress’s deadline -- are asking a court to decide that the ERA was validly ratified and order the Archivist to publish it. Five states that did not ratify the ERA, or that ratified and rescinded their ratifications, have intervened. Their Answer tells the court that “[n]o state could have ‘ratified’ the Equal Rights Amendment in recent years because the deadlines for ratifying that amendment expired years ago.” The Archivist seems to think it’s up to the Executive Branch. If the court reaches the merits of the ERA’s validity, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA. But Congress should be the first mover on whether an amendment is ratified, particularly when states disagree.
The question of who decides matters, for the long-term legitimacy of the amendment in the eyes of the American people. In Congress, the House passed a resolution lifting the deadline on ratification in February, and a similar resolution has been introduced in the Senate with 48 sponsors so far. Thirty-five Senate seats are on the ballot this November. Consistent with Coleman v. Miller, which affirmed Congress’s power to determine reasonable time frames for the ratification of constitutional amendments, a court should not prematurely pronounce on whether the ERA has been or can yet be ratified.
Although the prospect of getting a federal judge to add the ERA to the Constitution now may have immediate appeal for ERA proponents, much can be gained by persuading Congress to lift the deadline, validate late ratifications, and reject rescissions. An amendment’s procedural path makes a difference to its meaning and transformative potential. The legislative process by which Congress is weighing the ERA’s timeliness provides opportunities for the ERA’s meaning to be updated for the twenty-first century. These opportunities help legitimize a constitutional amendment after a generation has gone by. Moreover, congressional debate about the broad range of issues implicated by the ERA– rather than court adjudication of the states’ Article V theory – is more likely to produce an ERA with the bite that its proponents seek.
Amicus Brief of Constitutional Law Professors Erwin Chemerinsky, Noah Feldman, Reva Siegel, in Virginia v. Ferriero (D.D.C.) is here.
Tuesday, June 9, 2020
The attorney featured in this ABA story, Julie Abbate, and I were colleagues many years ago at the law firm of Covington & Burling. There we worked together on a class action pro bono case, along with Caroline Brown, Leecia Eve, Peter Nickles, and National Women's Law Center attorneys Debbie Brake and Brenda Smith. Glad to see she is still working on these issues.
The case we brought on behalf of the women prisoners of DC raised claims of unconstitutional conditions, pregnancy and healthcare, sexual assault and harassment, and inequalities in education and employment. Women Prisoners of DC Dep't of Corrections v. DC (filed 1993). Ultimately, through the appeal to the DC Circuit, we won most of the claims--except healthcare. Women Prisoners v. DC, 93 F.3d 910 (D.C. Circ. 1996).
The number of incarcerated women is growing, and with it the unique and pressing needs of female prisoners in the system. In response, the U.S. Commission on Civil Rights did an 18-month investigation. It released a report, Women in Prison: Seeking Justice Behind Bars, in February.
The population of women in prison has increased dramatically since the 1980s, according to the report, and the rate of increase has outpaced that of men. In 2017, women accounted for approximately 225,000 of the slightly more than 2 million people in local, state and federal facilities in this country, according to the Sentencing Project, which tracks incarceration statistics.
The Women in Prison report cites disciplinary disparities between men and women—with a particularly negative impact on LGBT-identified women and women of color—and notes that many prisons do not meet the health, prenatal and personal hygiene needs of female inmates. It stresses the impact of women being incarcerated far from home with limited visitation access and having their parental rights terminated.
The commission is calling on the Department of Justice to expand its investigation capacity and continue to litigate enforcement of incarcerated women’s civil rights in states that violate them; it asks Congress to enact stricter penalties for noncompliance with the Prison Rape Elimination Act, focused on inmate safety, and to consistently appropriate funding sufficient to ensure correctional agencies comply; and it urges institutions to provide more mental health treatment programs.***
Given the COVID-19 pandemic, “If ever there was a time to focus on lowering the prison population and looking at who could be [housed] in less restrictive settings, it is now,” says Judith Resnik, a Yale Law School professor and founding director of its Arthur Liman Center for Public Interest Law.
She calls the coronavirus crisis “an early cri de coeur [a passionate outcry] that makes that plain many women do not need to be in prison.” And she adds, “There is nothing in the law saying that people can be sentenced to the risk of serious illness or death.”
In an effort to mitigate virus risks after some staff members and inmates tested positive, Decatur Correctional Center in Illinois released several mothers and babies in March.
Attorney Julie Abbate observes, “Prison systems were not built with women in mind.”
Abbate, national advocacy director of Just Detention International in Washington, D.C., has been a relentless fighter for the rights of female prisoners. She is the former deputy chief in the Special Litigation Section of the Civil Rights Division, a member of the ABA Criminal Justice Section, and she testified before the commission in hearings about the study.
She drafted a resolution adopted by the ABA House of Delegates in 2019, urging governments to enact legislation, and correctional and detention facilities to enact policies that provide female prisoners with unrestricted access to free toilet paper and a range of free feminine hygiene products. Since then, she has been working with state correctional agencies and county sheriffs to help implement the ABA policy.
Abbate says disparate prison disciplinary rules are also a particular concern.
“For men, an assault in prison usually involves a violent fight. For women, it could be pushing or hair-pulling. For both, it’s punished as assault,” she says, adding that women are particularly at risk of violence and sexual abuse in prison. “Whenever you have scarcity and deprivation, it creates power over women. An unscrupulous correctional officer could pressure a woman to perform a sexual act on him [and say,] ‘Do it, or I’ll put you in isolation.’ The fear of being separated from her children drives a woman to comply.”
The report also notes solitary confinement for minor violations denies women good-time credits and shorter sentences.
The commission is calling on prisons to implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions.
In some states, things seem to be improving, albeit slowly. Lhamon points to recent disciplinary changes under guidelines adopted and enforced by the Alabama Department of Corrections and MCI-Framingham, a women’s medium-security facility in Massachusetts. She says data showed “astonishing progress” in inmate safety after those institutions implemented a gender-responsive trauma-informed disciplinary policy.
Those policies are informed by studies on the different characteristics and pre-incarceration experiences of men and women (particularly trauma), and generate information on how to meet the unique needs and challenges of female inmates.
Data after implementation of those policies has shown “extraordinary, just jaw-dropping” improvements, she says, adding that the new disciplinary policies could be models for other states to follow.
Lhamon says the commission is working with Sen. Brian Schatz (D-Hawaii) on his bipartisan efforts with Sen. John Cornyn (R-Texas) urging better oversight of Prison Rape Elimination Act compliance. The commission is also working with U.S. Rep. Pramila Jayapal (D-Wash.) on the Dignity for Incarcerated Women Act, which she co-sponsored with U.S. Rep. Karen Bass (D-Calif.). The bill addresses many issues raised in the commission’s report, and companion legislation was reintroduced in the Senate last year by Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.).
Tuesday, May 26, 2020
Court Strikes Down Florida Felon Pay-to-Vote Law, but Rejects 19th Amendment Claim of Gender Discrimination
The full opinion is here: Jones v. DeSantis (N.D. Fla. 2020)
I want to think more about the new opinion from a federal district court dismissing women voters claims under the 19th Amendment. Two issues strike me on an initial read.
1. The court says there is no reason to treat the 19th differently from the 15th or 14th. This conclusion results in requiring an intentional state of mind for gender discrimination under the 19th Amendment. The standard of discriminatory purpose is a requirement of proving gender discrimination under the 14th Amendment, and the court says also for the 15th. However, reading in the historical context may raise a question here. SCOTUS explicitly held in Minor v. Happersett (1874) that the 14th Amendment did not apply to women's state voting rights. Reading the 14th Amendment standards into the 19th, seems to do just this. There is also some significant history on the 19th A itself that might suggest a different conclusion.
2. It is troubling the court discounts the gender discrimination claim by focusing on the impact on men. The court notes that more men than women are felons, so more men generally are impacted by the law. Rather than comparing the two groups similarly situated -- felons -- and then addressing the discrimination against those women felons. This focus on men, rather than the women plaintiffs in a case, was also seen recently in the US Women's Soccer pay discrimination case. It may represent an emerging litigation trend of dismissing, both legally and socially, women's claims of disparate impact.
Here is the court's 19th Amendment claim analysis:
XII. Gender Discrimination
The McCoy plaintiffs assert the pay-to-vote requirement discriminates against women in violation of the Fourteenth Amendment’s Equal Protection Clause and violates the Nineteenth Amendment, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of sex.”
To prevail under the Fourteenth Amendment, the plaintiffs must show intentional gender discrimination—that is, the plaintiffs must show that gender was a motivating factor in the adoption of the pay-to-vote system. This is the same standard that applies to race discrimination, as addressed above.
The plaintiffs assert the Nineteenth Amendment should be read more liberally, but the better view is that the standards are the same. The Nineteenth Amendment was an effort to put women on the same level as men with respect to voting, just as the Fifteenth Amendment was an effort to put African American men on the same level as white men. Indeed, the Nineteenth Amendment copied critical language from the Fifteenth, which provides that a citizen’s right to vote “shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” As is settled, a claim under the Fifteenth Amendment requires the same showing of intentional discrimination as the Fourteenth Amendment’s Equal Protection Clause. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1187 n.8 (11th Cir. 1999) (stating “vote dilution, vote denial, and traditional race discrimination claims arising under the Fourteenth and Fifteenth Amendments all require proof of intentional discrimination”). In sum, there is no reason to read the Nineteenth Amendment differently from the Fifteenth.
On the facts, the plaintiffs’ theory is that women with felony convictions, especially those who have served prison sentences, are less likely than men to obtain employment and, when employed at all, are likely to be paid substantially less than men. The problem is even worse for African American women. This pattern is not limited to felons; it is true in the economy at large.
As a result, a woman with LFOs is less likely than a man with the same LFOs to be able to pay them. This means the pay-to-vote requirement is more likely to render a given woman ineligible to vote than an identically situated man.
This does not, however, establish intentional discrimination. Instead, this is in effect, an assertion that the pay-to-vote requirement has a disparate impact on women. For gender discrimination, as for race discrimination, see supra Section IX, disparate impact is relevant to, but without more does not establish, intentional discrimination. Here there is nothing more—no direct or circumstantial evidence of gender bias, and no reason to believe gender had anything to do with the adoption of Amendment 4, the enactment of SB7066, or the State’s implementation of this system.
Moreover, the pay-to-vote requirement renders many more men than women ineligible to vote. This is so because men are disproportionately represented among felons. As a result, even though the impact on a given woman with LFOs is likely to be greater than the impact on a given man with the same LFOs, the pay-to-vote
requirement overall has a disparate impact on men, not women. Even if disparate impact was sufficient to establish a constitutional violation, the plaintiffs would not prevail on their gender claim.
Tuesday, May 12, 2020
The Trump administration has asked a judge to throw out a lawsuit filed by three Democratic state attorneys general seeking to force the U.S. archivist to recognize Virginia’s vote to ratify the Equal Rights Amendment and adopt it in the U.S. Constitution.
Virginia became the 38th and final state needed to make the ERA part of the Constitution in January, after the General Assembly passed and ratified the amendment.
Attorney General Mark Herring sued David Ferriero, the archivist of the United States, after the National Archives and Record Administration said Ferriero would “take no action” to certify the adoption of the Equal Rights Amendment. Herring was joined in the lawsuit by Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford, the attorneys general of ratifying states number 36 and 37.**
On Thursday, the Trump administration asked the court to dismiss the lawsuit, arguing that ratification is not an issue to be decided by the courts.
In a memo supporting the motion to dismiss, Assistant Attorney General Joseph Hunt said the Supreme Court held nearly a century ago that Congress may set a deadline for the ratification of constitutional amendments so that the contemporaneous will of the people is reflected in the amendments.
Herring and other attorneys general argue that the deadline — first set for 1979 and later extended to 1982 — is not binding.
The administration argues that the three states ratified the ERA decades after Congress’ ratification deadline and are asking the court to mandate that the archivist certify the ERA.
“But that request is contrary to Supreme Court precedent prohibiting courts from second-guessing the legislature’s inclusion of a deadline for ratification,” they argued.
In the lawsuit, filed in U.S. District Court for the District of Columbia, the attorneys general argue that a proposed constitutional amendment automatically becomes valid as part of the Constitution as soon as it is ratified by the legislatures of three-quarters of the states, or 38. They also argue that the archivist’s duty to certify the amendment is “mandatory and purely ministerial.”
Friday, April 17, 2020
Two years year after South Korea became the centre of Asia’s #MeToo movement, the country’s first feminist party is hoping to keep women’s issues on the political agenda by winning seats in Wednesday’s national assembly elections.
In a campaign dominated by the government’s response to the coronavirus epidemic, the newly formed Women’s party has warned that South Korea’s poor record on sexual discrimination and violence risked being overlooked.
Young women have shaken up the country’s political culture in recent years with high-profile campaigns targeting the country’s molka spy cam voyeurism epidemic, strict beauty standards and the decades-old ban on abortion.
Despite its economic power, technological prowess and the soaring global popularity of its pop music and cuisine, South Korea remains a deeply conservative, patriarchal society. It ranked 108th out of 153 on the World Economic Forum’s 2020 Global Gender Gap Index, while women comprise just 17% of MPs in the national assembly – well below the global average of about 25% - according to the Inter-Parliamentary Union.
Launched only last month to coincide with International Women’s Day, the Women’s party is expected to struggle to attract votes from the two main parties – President Moon Jae-in’s liberal Democratic party and the conservative United Future party – and their smaller allies, as it attempts to win four of the 47 seats being contested through proportional representation in the 300-seat assembly.
“The two biggest parties dominate the political scene, but many diverse voices need to be heard,” Kim Eun-joo, co-leader of the Women’s party, told the Guardian on the eve of the election. “We’re not a party for women to discuss a wide range of issues – we’re about improving the lives of women, and that’s why we only have a small number of campaign pledges.”
Monday, April 13, 2020
Jennifer Bennett Shinall, Protecting Pregnancy, 106 Cornell L. Rev. (2020)
Laws to assist pregnant women in the workplace are gaining legislative momentum in the United States, both at the state and federal levels. This year alone, four such laws will go into effect at the state level, and federal legislation is advancing farther than ever before in the House of Representatives. Four types of legislative protections for pregnant workers currently exist—pregnancy accommodation laws, pregnancy transfer laws, paid family leave laws, and state disability insurance programs—but very little is known about how each type of legislation performs, relative to the others. This Article provides empirical insight into this question, which is important for setting legislative priorities. After exploiting the differential timing of these laws’ passage at the state level, the Article finds across multiple specifications that pregnancy accommodation laws and paid family leave laws have several labor market benefits for women who have given birth in the past year. Conversely, pregnancy transfer laws may have unintended, negative consequences for women who have recently given birth. The results suggest that advocacy groups, who have typically favored all four types of legislation, should shift their focus to supporting accommodation and paid family leave laws.
Friday, March 27, 2020
This is my local rep, supporting the constitutional rights of women.
Last weekend, Ohio Attorney General Dave Yost ordered Ohio reproductive health clinics to cease providing abortions—claiming that abortion services are not “essential” medical care during the COVID-19 pandemic.
When Ohio state House Representative Tavia Galonski—chair of the Ohio Women’s Democratic Legislative Caucus—first heard the news, she felt rage.
“Now is not the time to overturn the U.S. Constitution in the middle of a pandemic,” she said.
After his announcement, Attorney General Yost faced immediate pushback from abortion rights advocates and pro-choice state legislators.
Following a round of intense negotiations, Ohio clinics remain open.
Tuesday, March 24, 2020
Women have been serving in the United States military since the Revolutionary War, helping to sew uniforms, heal the wounded and, eventually, fight in combat. But they have never been required to register for a military draft.
That could soon change. Under a new recommendation to Congress by a national commission, all Americans ages 18 to 25 — and not just young men as currently covered by the law — should be required to register with the government in case of a military draft. The move sets up a debate over a divisive issue that has been simmering for years.
The question of whether to expand draft registration to women was among the most contentious issues considered over the past two years by the National Commission on Military, National, and Public Service, a bipartisan group that was appointed by Congress to address the issue of conscription. The commission is set to release it recommendations to Congress on Wednesday.
Friday, March 20, 2020
Estefania Cruz Lera,.Women From the Establishment Versus the ‘Squad’: Feminine Political Representation Styles in the US Congress, Norteamérica, 15:1, january-june (2020)
In 2019, a historical record number of women shaped the US Congress. In addition to the increase in female participation, there is also a wider ethnic, racial, cultural and class diversity among these congress members. In this political universe, two highly contrasting profiles stand out: on the one hand, the women of the establishment led by Nancy Pelosi; on the other, the challenging "Squad" headed by Alexandria Ocasio-Cortez. Based on an analysis of social networks, press coverage, and legislative performance, in this investigation both styles of political representation are contrasted. The main result of this research is that in relation to the patterns of proposing laws, voting and fundraising there are no differences between the Squad and the women of the establishment. The main divergences reside in their public discourse, in the ideological platform to which they ascribe and in the style of leadership they exercise.
Tuesday, March 17, 2020
In 2009, the Kentucky General Assembly rushed to enact changes to the Commonwealth’s domestic violence statutes. The legislation, House Bill One, known as the Amanda Ross Domestic Violence Protection Act, or Amanda’s Law, was in response to the murder of Amanda Ross. Within six months of obtaining a domestic violence order (DVO), Ms. Ross was dead. She had been murdered by her ex-fiancée, Steve Nunn, a former Kentucky State Representative. Amanda’s Law amended the domestic violence statutes in a few significant ways, but the most significant change was the ability of the court to order the offender to wear a Global Positioning Monitoring System (GPMS) device. The court could order this type of tracking after being presented with evidence that the offender had committed a substantial violation of the previous order.
The irony of Amanda’s Law is that, even if it had been in effect when she was brutally shot down outside of her home, it would not have had any impact on her survival. This is because the statute requires the following: that a DVO be entered, that the offender have committed a criminal offense against the survivor in violation of the DVO, that the domestic violence survivor then go back to the court issuing the original DVO with evidence of the criminal conduct, and that the survivor make a showing to the court that this conviction qualifies as a substantial violation of the court’s domestic violence order. Only then will the issuing court consider a GPMS be used. Amanda Ross had not achieved any of these steps prior to her death. As such, this knee-jerk reaction by the Kentucky legislature would not have helped her. In the nine years since its passage, a GPMS has been ordered only three times pursuant to Amanda’s Law. The law is a failure in this respect and needs to be amended.
Friday, February 28, 2020
Abortion restrictions that were enacted when Republicans controlled Virginia’s General Assembly are being undone in legislation approved by the Democrats who are now in charge.
The House on Thursday gave final passage to a bill that would roll back provisions including a 24-hour waiting period before an abortion and a requirement that women seeking an abortion undergo an ultrasound and counseling. The measure would also undo the requirement that abortions be provided by a physician, allowing nurse practitioners to perform them, and do away with strict building code requirements on facilities where abortions are performed.
The Senate companion measure passed earlier in the week. The legislation now goes to Democratic Gov. Ralph Northam, who supports it.
“When this legislation goes into effect, Virginians will no longer have to navigate an obstacle course of delays and barriers in order to access a safe and legal abortion,” said Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia.
The measures passed largely along party lines, with staunch opposition from Republicans and religious advocacy groups that testified against it in committee hearings.
Republican Del. Kathy Byron said in a floor speech Thursday that the changes would lead to women being less informed about “maybe one of the most important decisions that they ever make.”
“What we're doing today is we're voting to deny women complete information on what an abortion means, its consequences, its implications, its alternatives," she said.
The law, passed Thursday in the House of Delegates, will repeal Virginia’s mandatory waiting period, which requires patients to wait 24 hours after a consultation to receive an abortion. It will allow certified nurse midwives and nurse practitioners to perform first-trimester abortion services and remove the requirement that providers give counseling to patients seeking abortions. It will also eliminate the requirement for an ultrasound before an abortion, a practice that can be traumatizing for patients. The American Medical Association says mandatory ultrasounds provide no “additional medically necessary information.” ***
“Those restrictions in the code were politically charged,” says Herring, “and it had nothing do with the provision of good care.”
Democratic state lawmakers across the country have passed similar abortion protections in the past year, as attacks on abortion access have ramped up in conservative states. In 2019, nine states—Illinois, New York, Rhode Island, Vermont, Maine, California, Nevada, New Jersey, and Hawaii—passed legislation protecting or expanding the right to an abortion. Maine also voted to allow certified nurse midwives and nurse practitioners to provide non-surgical abortions. Four states codified Roe v. Wade by enshrining the right to an abortion in their state law.
Herring says she hopes Virginia will be the next state to codify the right to an abortion. She notes that there are a record number of women from both parties in the legislature. “When women are elected and in power,” she says, “there will be a tendency that we make sure that we are protecting our interests.”
Friday, February 14, 2020
The House of Representatives took one giant step Thursday by voting to remove the 1982 ratification deadline for the Equal Rights Amendment.
For a summary of the issues regarding the ratification deadline, see The Arguments as to Why the ERA Can Still be Ratified Now After the Deadline
The U.S. House has voted to remove the deadline on ratifying the Equal Rights Amendment in an attempt to revive the amendment.The 232-183 vote fell largely along party lines with five Republicans supporting the measure and zero Democrats opposing it.
Changing the deadline is a key part of one route that some ERA proponents believe would lead to the amendment becoming a part of the Constitution, but the path forward is uncertain.
The proposed amendment says simply, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex," and it has had a renaissance in recent years, with three states ratifying it since 2017.
However, the bill may well be stymied after this vote.
Senate Majority Leader Mitch McConnell, R-Ky., said earlier this month that he's "personally not a supporter" of the amendment, and the Trump administration's Office of Legal Counsel has said that it considers the ERA "expired."
During debate on the House floor, Republicans leaned on antiabortion and constitutional arguments to oppose the ERA, arguing that enshrining protections for women in the Constitution would mean abortion could not be restricted. Democrats focused on the legality of deadlines and the importance of equal rights.“This has nothing to do with the abortion issue. That is an excuse, not a reason,” said House Speaker Nancy Pelosi (D-Calif.), arguing that women are still paid less than men for similar work, and often are shorted on pensions and maternity leaves.
Thursday, February 6, 2020
Third Circuit Upholds Philadelphia Ban on Employers Asking About Salary History Against First Amendment Challenge
In a decision that could have national implications for the wage equity movement, a federal appeals court Thursday sided with the city of Philadelphia, saying it can ban employers from asking job applicants their salary history.
The U.S. Court of Appeals for the Third Circuit partly reversed a 2018 lower court decision that said the city could not ban employers from asking about salary history, but could ban them from relying on it to set wages. The Greater Philadelphia Chamber of Commerce sued the city after the law was passed in 2017, claiming it violated the commercial-speech rights of employers.***
The 67-page unanimous opinion, representing the three-judge panel, was written by Judge Theodore McKee, who wrote that while the provision does limit employers’ speech, it is “only because that limitation prevents the tentacles of any past wage discrimination from attaching to an employee’s subsequent salary.”***
Philadelphia was the first city in the country to pass such a ban, following a statewide ban in Massachusetts. More than a dozen states and municipalities followed suit, including New Jersey.
Tuesday, February 4, 2020
There are now 3 lawsuits seeking a judicial decision on the 38 ratifications of the Equal Rights Amendment and whether the 1982 (or 1979) deadline prohibits those ratifications.
I've written a short explanation of the arguments made in support of the ERA's enactment now. See Tracy Thomas, The Arguments as to Why the ERA Can Still be Ratified Now--After the Deadline
Despite the court action, there is an argument that Congress's amendment deadline is a political question that cannot be decided by the courts. In Coleman v. Miller, 307 U.S. 433 (1939), SCOTUS held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts. (Coleman concerned the timeliness of a 13 year delay in ratification of the proposed Child Labor Amendment.)
Attorney General Lawsuit to Enforce ERA (DC)
The lawsuit will likely become the vehicle for deciding that question, said Virginia Attorney General Mark R. Herring, who brought the suit along with Illinois Attorney General Kwame Raoul and Nevada Attorney General Aaron Ford. Two other federal lawsuits on the matter are also pending.***
The latest suit, assigned to U.S. District Judge Rudolph Contreras, contradicts a Justice Department memo earlier this month that said the national archivist, who certifies the ratification of amendments, should not do so for the ERA, citing the 1982 deadline. The archivist has said he will follow the DOJ advice unless a final federal court decision overrides it.
See also WSJ, States Seek Ruling on Equal Rights Amendment Ratification Deadline [pay wall]
Proponents' Lawsuit to Enforce ERA (Mass.)
Another lawsuit has been filed in Massachusetts from ERA Proponents seeking to challenge Congress' authority to make amendment deadlines mandatory. Equal Means Equal v. Ferriero (D. Mass. filed 1/7/2020).
AG Lawsuit to Block ERA (Alabama)
Three states that did not ratify ERA have sued to block certification of the amendment. In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted. Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019). They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.
All lawsuits seek an injunction to direct the actions of the National Archivist to either record, or not record, the 38 state ratifications. Once recorded, the ERA automatically becomes an amendment in two years.
Wednesday, January 29, 2020
The Virginia Senate unanimously passed a bill Tuesday requiring public schools to include free menstrual products in their bathrooms.
Senate Bill 232 applies to schools that educate fifth-to-12th graders. According to the Virginia Department of Education, this encompasses 132 school districts and almost over 630,000 female students.
"I would like to see that the supplies are available, just like other supplies that we keep in the bathroom," said Sen. Jennifer Boysko, D-Fairfax, the legislation's chief patron.
An earlier version of the bill applied the stipulation to the aforementioned schools where at least 40% of students qualified for free or reduced lunch.
Boysko introduced the bill to make it more convenient for students to access menstrual products and help them avoid accidents.
"This is a necessity and girls can't carry out their school day without it," Boysko said. "Some girls are missing school time and end up going home and missing classes because of these kinds of challenges."
According to Boysko, school budgets currently cover menstrual product expenses, but they are often kept in the nurse's office, making it inconvenient for students.
Wednesday, January 22, 2020
The Historical and Legal Significance of Virginia's Recent Ratification of the Equal Rights Amendment
In this interview, I offer my thoughts on the history and future of the ERA.
Wisconsin NPR, Central Time, Virginia Just Ratified The Equal Rights Amendment: What Does That Mean?nt-what-does-mean
Virginia’s General Assembly passed the Equal Rights Amendment recently, becoming the 38th state to do so, nearly four decades after a controversial deadline passed. A legal scholar shares the history of the ERA, what the Virginia vote means and where the effort goes from here.
History of ERA Passage
The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979. Congress extended the deadline to 1982. President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote. See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977).
Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states. Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment. Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states. Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.
Current Challenges to ERA Ratification
In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted. Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019). They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.
The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA. Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020) The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.
Arguments in Support of Ratification Today
So what do proponents of ERA say? There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.
1. The original deadline is not mandatory.
a. Deadlines are not required for constitutional amendments. The first 17 amendments did not have a deadline.
b. The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore is not binding as part of the ratification.
c. The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect. In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.
i. The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect. Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention.
ii. Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years. The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect. It was originally proposed in 1789 as the Second Amendment. While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.
2. Congress has the power to modify the deadline
a. The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify. As a procedural matter, only a majority of the congressional houses is required.
b. The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.
c. The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed. In Coleman, the Child Labor Amendment was pending for thirteen years. It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states.
d. Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.
If the deadline does not apply, then the question is whether states can rescind their past ratification. The precedent of the Fourteenth Amendment suggests no. Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable.
In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided). The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.
Friday, January 17, 2020
“What happens in Virginia impacts the entire country and will reverberate across the globe,” said Betty Folliard, the founder of ERA Minnesota, who traveled to Richmond to watch the votes.