Strict Scrutiny and the ERA – A Bad Combination for Women

Written by Elise Bouc of STOP ERA Illinois

On the surface, the Equal Rights Amendment seems quite innocent. The main text states, “Equality of rights under the law shall not be abridged or denied by the United States or any state on account of sex.”

Unfortunately for women, from a legal perspective, this simple language raises the category of “sex” to strict scrutiny which is the most restrictive standard of legal review. Under strict scrutiny, no one can be treated differently based on the characteristic that has become “suspect” (in this case – sex), and it is almost impossible to justify before the court any reason for treating them differently.

Currently race, national origin and religion are all justifiably adjudicated in this category. As a result, we can not treat anyone differently based on their race, national origin, or religion. Sex, however, is different from these other categories, in that there are clear biological differences (such as anatomy, hormones, ability to bear children, and privacy needs) that require a need to differentiate between men and women for the well-being and success of both men and women.

The push for women’s rights has always been about providing equal opportunities for women, and removing any obstacles that prevent them from having equal opportunities. It was never about making women fit into the mold of men, or making women become men. Since the civil rights movement in the 1960s, this push has resulted in careful adjustments of laws to ensure that women were supported in their endeavors, and these laws have often taken into consideration biological differences to provide for equal access to success. A prime example is the pregnancy accommodation law Illinois recently passed that provides pregnant working women in physically demanding jobs additional breaks and other temporary accommodations to protect them and their developing child during their pregnancy while still enabling them to retain their job.

Under the ERA with its requirement of strict scrutiny, any laws that provide different treatment to women, even when it logically makes sense to do so, would be overturned – thus removing valuable supports for women, and placing obstacles in their way to success. Under the ERA, one could simply argue that the pregnancy accommodation law shows preferential treatment for women in violation of the standard of strict scrutiny, and that beneficial law would be overturned.

When presented with these concerns, many feminists protest that the courts would never allow these valuable programs and practices to be overturned. They seem to view the courts as a place where laws can be made up or dismissed. Obviously they don’t understand the requirements of strict scrutiny. Because the ERA places sex under strict scrutiny, judges and lawmakers will be unable to change any of the extreme requirements of the ERA. Justice Ginsberg wrote a lengthy report in the 1970s, titled, Sex Bias in the U.S. Code, detailing the impact of the ERA, and she made it very clear that the ERA would overturn all instances of differentiation based on sex.

Examples of additional beneficial laws and programs that would be overturned include:

Financial support to educate women: Several philanthropic organizations promote educational opportunities for women, many of whom are single parents, through scholarships and loans. These organizations would be forced out of existence by the ERA if they didn’t also provide equal financial support to men.

Shelters, transitional housing and self sufficiency programs for homeless and/or abused women and their children. Men are not allowed in these shelters due to the emotional needs of the women. The ERA would not allow these programs that only provide benefits to women.

The federal Women, Infants and Children (WIC) program provides medical and nutritional support to low income child-bearing women and their children. Such a beneficial program and others like it would be overturned because preferential treatment is being given to women.

Separate prison facilities for men and women: Currently men and women prison inmates are housed in separate prison facilities due to privacy, safety and rehabilitative needs. A recent Illinois prison study advocated that a different approach be provided to incarcerated women due to their emotional response to stress and their histories with physical, sexual and emotional abuse. Providing improved gender based responses through staff training will decrease recidivism for women, shorten their length of prison time and help them become more successful after prison. Such a gender based approach greatly benefits women, but Supreme Court Justice Ruth Bader Ginsberg has stated that under the ERA, prisons would have to be sex integrated. Gender based approaches would also be overruled. (cjinvolvedwomen.org, and Ruth Bader Ginsburg, Sex Bias in the U.S. Code)

Exemption of women from the military draft and compulsory front-line combat. Currently women who feel they are physically able can choose to enlist in the military and even participate in front line combat. Justice Ginsberg says that the ERA, however, would require that all women be drafted and placed on front-line combat in equal ratios to men. No exceptions could be made for women with children in the home. If men with children at home can be drafted, then women with children must also be drafted. Women face increased sexual vulnerability in the military as well as greater physical difficulties based on biological differences. (Ruth Bader Ginsburg, Sex Bias in the U.S. Code.)

Laws and presumptions that support women in the areas of alimony, child support, and requirements of husbands to pay for their dependent wives’ medical bills. The ERA will also wipe out state laws that exempt a wife from having to pay her husband’s debts even if he deserts her with children to support. Coleman v. Maryland, 37 Md. App. 322, 377 A.2d (1977); Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974)/ Albert Einstein Medical Center v. Nathans, 5 D&C 3d 619 (1978).

Social Security benefits for stay-at-home mothers based on their spouse’s income. Whether the social security administration calls it a benefit for ‘wives,’ or ‘spouses,’ Justice Ruth Bader Ginsberg said that it will still be overturned by the ERA because it violates the equality principle by encouraging women to be dependent on their husbands. (Ruth Bader Ginsburg, Sex Bias in the U.S. Code.)

All laws and practices that provide gender related privacy in regards to bathrooms, locker rooms, hospital rooms, nursing homes, etc. would be nullified because they make distinctions based on sex.

Any other laws or practices that provide unique support to women.

The lawmakers of Pennsylvania learned the harsh results of their state ERA when gender based automobile insurance rates that favored women due to their safer driving record were disapproved by the state insurance commissioner due to a claim of sex discrimination. The lawmakers quickly passed a law allowing gender based insurance rates, only to find that their state Supreme Court overturned the law due to the strict requirements of their state ERA. (Hartford Accident & Indemnity Co. v. Insurance Commissioner, 482 A.2d 542 [Pa. 1984] and 543-44). Other states who have passed state ERAs have also witnessed their ERAs being used to remove beneficial laws for women. Once we pass this federal amendment, we must live under its harsh requirements which will not benefit women. Instead it will remove the many laws, programs and practices we have carefully crafted to provide women with equal opportunities for success.

Clearly the ERA will not benefit women. Instead it will force them into being treated exactly as men regardless of any biological differences. Please oppose the ERA (SJRCA4) and its strict scrutiny requirements. For those who want a women’s rights amendment in the U.S. Constitution, tell them to write a better amendment that won’t harm women.

If you’re alarmed about the impact of the ERA, please call your Illinois state representative and ask him/her to support women by voting against the ERA.

TAKE ACTION: Please contact your lawmaker by phone and email and encourage him/her to VOTE NO on the ERA (Bill #SJRCA4). Remind them that this poorly written amendment will harm women and the unborn child. Under the ERA we will no longer be able to recognize and provide for the biological differences between men and women. In addition, the ERA will overturn all abortion restrictions and mandate taxpayer funding for all elective Medicaid abortions. To find contact information for your legislators, see the link below.

Please pass this on to others who will help. If we work together, they will not have their victory. We do not fight this battle alone.

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The ERA Harms Our Unborn Children

Written by Elise Bouc
State Chairman, Stop ERA Illinois

The Equal Rights Amendment (ERA – SJRCA 4) is a poorly worded proposed amendment to the U.S. Constitution that would restrict all laws and practices that make any distinctions based on gender or sex. While we believe in equal opportunity for men and women, we also recognize that there are situations where we must make distinctions based on our biological differences such as providing privacy through separate bathrooms and locker rooms. If the ERA becomes fully ratified, men and women could not be treated differently, even if the different treatment is due to physical differences.

The ERA will harm our unborn children

Since abortion is unique to women, any attempt to restrict a woman’s access to abortion is seen, under the rules of the ERA, as a form of sex discrimination – because women are being singled out for a characteristic that is unique to them, and they are being treated differently based on that physical characteristic (in this case- the ability to become pregnant). Therefore any abortion restrictions would be overturned by the ERA. The ERA prohibits sex discrimination. In addition, since medical procedures unique to men are funded by Medicaid (such as circumcision and prostatectomies), then abortion which is unique to women, must also receive Medicaid funding under ERA requirements.

Some of the states with state ERAs have already used their ERAs to mandate Medicaid funding for elective abortions and overturn abortion restrictions:

The New Mexico Supreme Court unanimously ruled that under their state ERA since only women undergo abortions, the denial of taxpayer funding for abortions is “sex discrimination” (N.M. Right to Choose/NARAL v. Johnson, 975 P.2d 841, 1998). As a result, New Mexico now provides Medicaid funding for elective abortions.

A Connecticut Superior court ruled that the state’s policy of paying for abortions only in cases of rape or incest, or to save the life of the mother violated the Connecticut ERA. “Since only women become pregnant, discrimination against pregnancy by not funding abortion…is sex-oriented discrimination,” the court ruled. The court ordered the state to pay for any abortion which a doctor deems advisable for any reason relating to “physical and/or psychological health” Doe v. Maher, 515 A.2d 134 (Conn Super. Ct. 1986). This ruling was final. As a result, women only have to claim that their unintended pregnancy is causing depression or stress in order to receive Medicaid funding for elective abortions.

The Montana Supreme Court struck down a statute prohibiting non-physicians from performing abortions. The majority opinion cited state ERA language in art. II, sec. 4, of the state constitution in support of its holding (par. 72 of the opinion). Article II, sec. 4, provides, in part, “Neither the state nor any person,…shall discriminate against any person in the exercise of his civil or political rights on account of . . . sex . .” (Armstrong v. State of Montana, 1999)

Using this same ‘sex discrimination’ logic, legal scholars have stated that the ERA would:

Eliminate all abortion restrictions including the partial birth abortion ban, third trimester abortions, and parental notification of minors seeking abortions, and overturn the Hyde Amendment.

Mandate expanded taxpayer funding for abortions.

End conscience clauses for nurses, doctors and hospitals who do not want to participate in performing abortions. Courts do not allow conscience clauses in race discrimination, and they would not be able to allow it under the ERA.

Threaten tax exemptions of private prolife religious schools who discourage abortion through their teaching practices.

ERA would provide a new basis in the Constitution for the right to abortion. Roe v. Wade is based on weak reasoning founded on an unwritten “right to privacy” assumption. As public sentiment grows in opposition to abortion, there is hope that the U.S. Supreme Court could reverse that dreadful decision. However, if the ERA passes, that hope would be destroyed because the ERA would insert a written and defined right based on sex discrimination into the Constitution.

Take ACTION: Click HERE to email your state representative to urge him/her to oppose the ERA (SJRCA 4).

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Medusa’s Pink Hat & the ERA

Like Medusa, the Equal Rights Amendment (ERA) has reared its chthonic head again, and this time it’s wearing a silly pink hat over all those snakes.

Here’s what the ERA actually 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.

Since the ERA says precisely nothing about women, why do feminists continue to claim that it’s all about women’s rights? In fact, the harm the ERA will cause will redound primarily to women.

What the ERA will do is prohibit the public recognition of sexual differentiation, and we all know who really wants to pretend that biological sex has no meaning.

Moreover, of which basic rights are women now deprived? The right to vote, assemble, associate, speak, petition their government, exercise their religion? Nope, we’ve got all those.

So, let’s peek under those pink hats and see what snakes are writhing about, restive and eager to emerge and strike:

The ERA would be used to nullify or invalidate laws that restrict tax-funded abortion. In Doe v. Maher, the Connecticut Supreme Court stated, “Since only women become pregnant, discrimination against pregnancy by not funding abortions…is sex-oriented discrimination…The Court concludes that the regulation that restricts the funding of abortions…violates Connecticut’s Equal Rights Amendment.”The National Right to Life Committee (NRLC) explains that multiple legal experts, including state supreme courts, have argued that the language of the ERA “makes it unconstitutional for…Medicaid programs to refuse to fund ‘medically necessary’ abortions (which just means abortions performed by licensed medical professionals) if procedures sought by men (e.g., prostate surgery) are funded.”

A New Mexico Supreme Court judge wrote that “there is no comparable restriction on medically necessary services relating to physical characteristics or conditions that are unique to men. Indeed, we can find no provision in the Department’s regulations that disfavor any comparable, medically necessary procedure unique to the male anatomy… [the restriction on funding abortions] undoubtedly singles out for less favorable treatment a gender-linked condition that is unique to women.” This judge neglected to mention the inconvenient presence of preborn babies that render abortion wholly different from any “medical procedure unique to the male anatomy.” Treating different conditions differently does not violate any commitment to equality, fairness, or justice.

The ERA would be used to eliminate state laws that restrict abortion. The NRLC writes that “This same analysis—that limits on abortion are by definition a form of sex discrimination and therefore impermissible under ERA—will be used to invalidate laws requiring parental notification or consent for minors’ abortions; any federal or state restrictions even on partial-birth abortions or third-trimester abortions; and federal and state ‘conscience laws,’ which allow government-supported medical facilities and personnel—including religiously affiliated hospitals—to refuse to participate in abortions.”The ACLU writes, “Hundreds of bills that place limitations and restrictions on vital reproductive health care services [i.e., abortion] have been passed by Congress and state legislatures. The Equal Rights Amendment would provide another important weapon in the battle to resist this legislative onslaught aimed at destroying women’s rights to make their own reproductive decisions.”

It would be used to grant unrestricted access to opposite-sex spaces and activities to men and women who pretend to be the sex they are not. Single-sex restrooms, locker rooms, dressing rooms, shelters, semi-private hospital rooms, nursing home rooms, dormitories, colleges, athletic teams, fraternities, sororities, clubs, and organizations would become co-ed or risk federal lawsuits. Even mother-daughter/father-son/father-daughter events at public schools would be eradicated.

It would be used to force women to register for the Selective Service and if the day should ever come when the draft is reinstated, to be drafted.

It would give enormous new powers to the federal government that now belong to the states. Section II of the ERA states that “The Congress shall have the power to enforce by appropriate legislation the provisions of this article.” The ERA would give Congress the power to legislate on all those areas of law which include traditional differences of treatment on account of sex: marriage, property laws, divorce and alimony, child custody, adoptions, prison regulations, and insurance.For example, the Social Security System pays full-time homemaker “wives” 50 percent of their husband’s benefits over and above the check he receives. Upon their husbands’ deaths, widows receive the full benefits that their husbands had been receiving. (The law also gives this benefit to a dependent husband, but nearly all dependent spouses are women.)

Ruth Bader Ginsburg wrote in her 1977 book “Sex Bias in the U.S. Code” that the concept of “dependent women, whose primary responsibility is to care for children and household … must be eliminated from the code if it is reflect the equality principle.”

Ratification history

To ratify this proposed amendment, “progressives” are attempting to circumvent deadlines that expired over three decades ago on the supposedly moribund ERA. The ERA, first introduced in 1972, had a seven-year deadline for ratification, which, by a congressional resolution was extended another three years.

The proposed Equal Rights Amendment needs 38 states for passage. By its final deadline in 1982, it had the approval of only 35 states, so supporters developed the “three-state strategy” which seeks to avoid returning the issue to all 50 states. In effect, Leftist lawmakers claim that since the ERA was extended once, deadlines can be extended in perpetuity. In other words, to Leftists legal deadlines, like other laws, can be ignored at their whim.

Leftist lawmakers defend their strategy to pass the ERA by comparing it to the passage of the Twenty-seventh amendment to the U.S. Constitution 203 years after it was proposed. They fail to mention, however, that the Twenty-seventh Amendment, unlike the ERA, did not have a ratification deadline.

Proponents of the ERA also argue that because the ERA ratification deadline was in the preamble rather than the body of the ERA, it’s essentially irrelevant and non-binding. But the Congressional Research Service explains the following:

In the case of the 18th, 20th, 21st, and 22nd Amendments, the “sunset” ratification provision was incorporated in the body of the amendment itself. For subsequent amendments, however, Congress determined that inclusion of the time limit within its body “cluttered up” the proposal. Consequently, all but one of the subsequently proposed amendments proposed later (the 23rd, 24th, 25th and 26th, and the ERA) placed the limit in the preamble, rather than in the body of the amendment itself.

It’s important to note that prior to the ratification deadline, five states had sought to rescind their approval of the ERA. The Supreme Court of the United States was poised to take up their cases when the deadline took effect at which point the Court held that their cases were moot. If the deadline is now rendered moot by liberal lawmakers, one would assume that those states that sought to rescind their approval would be able to proceed with their pursuit of “rescission of acts of ratification.” In other words, it would seem that those states that wished to rescind their approval of the ERA would be able to pursue that effort because their pursuit ended based on the legal legitimacy of the ratification deadline.

Leftists have yet another effective weapon in their arsenal to crush culture: Just add the word “rights” to any legislation they want and presto change-o, they’ve got themselves a go-to soundbite.

Anyone who opposes co-ed restrooms becomes “anti-‘trans’ rights.” Just ignore the fact that objectively immutably biologically male persons have no right to access women’s private facilities.

Anyone who believes marriage has a nature central to which is sexual differentiation becomes “anti-‘gay’ rights.” Just ignore the fact that those who are erotically attracted to persons of their same sex have no intrinsic right to unilaterally redefine marriage by stripping it of its central constituent and most enduring, cross-cultural feature.

And anyone who opposes a wholly unnecessary amendment to the Constitution becomes “anti-women’s rights.” Just ignore the facts that the amendment doesn’t mention women and that there is not a single right of which women are deprived. Oh, and please ignore those snakes writhing under Medusa’s silly pink hat.

Take ACTION: Click HERE to email your state senator to urge him/her to oppose the ERA, SJRCA 4.

Listen to Laurie read this article in this podcast:

https://staging.illinoisfamily.org/wp-content/uploads/2017/10/Medusas-Pink-Hat-the-ERA.mp3