Those who have been following our legislative round-ups may recall reading about SCR 44.
SCR 44 essentially rescinds West Virginia’s ratification of the federal Equal Rights Amendment, which stated, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Specifically, SCR 44 says West Virginia’s approval lapsed with the amendment’s deadline for ratification.
For context, Congress passed HJR 208, what we know as the Equal Rights Amendment, in 1972. At that time, Congress gave the states until 1979 to vote on and ratify the proposed amendment so it could be part of the Constitution. West Virginia voted on and ratified it immediately. So did 29 other states. But an amendment requires the approval of 38 states to become law. By the time the deadline, and the extended 1982 deadline, passed, the ERA had only been ratified by 35 states, with five states voting to rescind approval. The ERA was considered dead.
Then it got complicated.
Nevada ratified the ERA in 2017. Illinois followed suit in 2018. Then Virginia in 2020. Meaning that, technically, 38 states had voted in favor of ratifying the Equal Rights Amendment, potentially making it the 28th amendment to the U.S. Constitution, because rescissions had previously not been acknowledged (e.g., the 14th and 15th amendments, for which several states tried to rescind their ratifications post-Civil War).
The question is now before the courts and the head of the National Archives, whose job has been to certify constitutional amendments.
In January 2021, HJR 17 was introduced and later passed in the U.S. House of Representatives. It eliminates the deadline for ratifying the ERA, and it still sits in the Senate, awaiting action.
Why all the hullabaloo in the Legislature about the ERA now?
The Republican Party has been pushing the message that ratifying the ERA would mean granting permanent access to, and federal funding for, abortion services. This is reminiscent of the original anti-ERA messaging from the 1970s. Back then, anti-feminist lawyer Phyllis Schlafly led the STOP ERA campaign, saying it would lead to gender-neutral bathrooms, women in combat and same-sex marriage.
Well, with all the other conservative nightmares come true, the potential for federal protection for abortions is the only boogeyman party leaders and conservative lobbyists have left to scare voters.
As Jessica Neuwirth, co-president and co-founder of the ERA Coalition, said, “It’s ironic that people are pulling the ERA into this, because it suggests that they think abortion is an equality right.”
No Democrat is campaigning on passing the ERA in order to protect access to abortion (for that, they tried to pass the Women’s Health Protection Act, which failed with all Senate Republicans and Sen. Joe Manchin voting against it). However, Republicans are campaigning on the promise to halt equal rights in its tracks.
Whether the ERA would guarantee access to abortion would ultimately be decided by the Supreme Court. Previous rulings protecting abortion were decided on the 4th and 14th amendments, so there is no guarantee the ERA would have any bearing on the subject.
However, it would have bearing on a plethora of other issues that continue to plague our nation, including the gender pay gap, discriminatory practices, and even custody-granting practices that favor mothers (because “equal rights” works both ways).
While the national battle over the ERA continues, SJR 10 is still pending in the state Senate. It would add an equal rights amendment to the West Virginia Constitution. If the Legislature actually believes that “women and men should enjoy equal rights in the eyes of the law,” as it says it SCR 44, then our legislators should prove it by passing SJR 10.
