West Virginia lawmakers have seemed like they’re taking a journey in a wayback machine by addressing whether the state’s 1972 ratification of the Equal Rights Amendment has expired. The motivation is actually an enduring political wedge: abortion.
Republican lawmakers have received a clear message from pro-life organizations focused on whether belated passage of the ERA could represent a landmark shift in the legal interpretations of a wide range of policies surrounding reproductive rights — in other words, abortion.
“Especially in recent years, the leaders of major abortion rights groups like Planned Parenthood and the ACLU have acknowledged that this old ERA language they intend to use to strike down all limits on abortions, even late abortions and to require government funding of elective abortions,” said Douglas Johnson, director of the ERA Project for National Right to Life.
“That’s not what people in the West Virginia Legislature thought they were voting for 50 years ago, and it’s not what the Legislature is for now. So we encourage them to say so, that they want not to be counted as part of that project.”
For conservative lawmakers wanting the support of pro-life organizations at the state and national level, there’s no mistaking the message.
Asked whether ratification of the 50-year-old amendment would rise to the level of a political scorecard issue, Johnson responded, “It does for National Right to Life, and I believe the West Virginians for Life will regard it in the same way because of the implications if this ERA revival will succeed.”
He later elaborated, “It is a matter that we take very seriously because the potential impact of this if it went into the Constitution in its current form. It could be more sweeping than the Roe vs. Wade decision and invalidate even limits on third trimester abortions, parental notification; it could sweep the board clean because the language really doesn’t allow for any exceptions.
“So we do take it seriously and we hope that any legislator state or federal who wants to be regarded as pro life will take it seriously as well.”
50 years of the Equal Rights Amendment
The wording of the proposed amendment to the United States Constitution is short: “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”
The amendment, which permanently bans discrimination on the basis of sex, was meant as a guiding light on issues like voting rights, property rights and equal pay.
But the history and current status is complicated.
When the ERA passed Congress in 1972, opponents managed to get a deadline into the law. Three quarters of states — 38 — would have to ratify the amendment by 1979 before its wording would be in the Constitution.
West Virginia was among the first states to ratify the amendment on April 22, 1972. Lawmakers like Delegate Jody Smirl, a Republican, voted in favor of ratification because it would protect property rights for women in their marriages while providing assurances that women are entitled to a day’s pay for a day’s work, just as a man would be.
“I realize its ratification by the required number of states will not correct these problems in one fell swoop, but I feel that discrimination on the basis of sex will certainly be dealt a blow that I hope will be a fatal one,” Smirl told her colleagues in a floor speech.
Those reasons still stand, said Loree Stark, legal director for the American Civil Liberties Union of West Virginia.
“In 1972, the West Virginia legislature ratified the Equal Rights Amendment and in doing so signaled its support for the basic notion that women are people who deserve equal treatment under the law,” Stark said.
“Now, fifty years later, lawmakers in support of this resolution want to back out of that commitment to gender equity. West Virginians deserve better.”
Ebb and flow on the ERA
The national effort to ratify the Equal Rights Amendment blew past the deadline, falling short for many years, until Virginia became the 38th state in 2020.
Now debate is bubbling over whether the amendment is truly ratified, whether the deadline is legally viable and what the ramifications could be if it would go into effect after all these years.
Abortion has moved to the center of the renewed battle.
A resource for supporters of the Equal Rights Amendment notes that watershed court rulings dealing with reproductive rights more often have focused on the principles of right to privacy and due process, rather than equal rights.
But that resource noted that equal rights amendments in state constitutions have been cited in several state court decisions dealing with the narrower question of whether a state that provides funding to low-income Medicaid-eligible women for childbirth expenses should also be required to fund medically-necessary abortions for women in that program.
“The courts ruled that the state must fund both of those pregnancy-related procedures if it funds either one, in order to prevent the government from using fiscal pressure to influence a woman’s exercise of her right to make medical decisions about her pregnancy.”
Instances like those are enough for conservative organizations to sound an alarm. National Right to Life also points to statements from pro-choice organizations indicating passage of the Equal Rights Amendment could loosen restrictions on abortion.
The question of how an equal rights clause would apply to abortion — and associated court actions — has prompted the National Right to Life to encourage resolutions by some states to emphasize the deadline has passed. “We call them ‘Count Us Out’ resolutions. ‘Take us off the list,'” Johnson said.
North Dakota lawmakers passed such a resolution last year, and the National Right to Life liked it. “We point to what happened in North Dakota and say this is a helpful approach,” Johnson said.
“This particular language was not something we cooked up in Washington. It was constructed by people in North Dakota. I think it’s a very clear language. Very clean. Does not get into any business of rescinding or trying to go back in time. It just explains.”
West Virginia SCR 44
Last Friday, without comment or debate, a majority of West Virginia senators passed a resolution just like the one from North Dakota.
No one mentioned the abortion connection. No one mentioned anything. In a body that’s rarely short on words, there was only procedure.
The lead sponsor of SCR 44 was Senator Donna Boley, R-Pleasants, who has served so long that at one point she was the chamber’s only Republican. All 23 GOP senators, including three women, sponsored the resolution.
SCR 44 contends West Virginia’s ERA ratification officially lapsed at 11:59 p.m. March 22, 1979.
It asks for official recognition that “after March 22, 1979, the West Virginia Legislature, while in agreement women and men should enjoy equal rights in the eyes of the law, should not be counted by Congress, the Archivist of the United States, lawmakers in any other state, any court of law, or any other person, as still having on record a live ratification of the proposed Equal Rights Amendment to the Constitution of the United States.”
So it doesn’t rescind the earlier West Virginia ratification so much as lay out a statement that the deadline has come and gone. On the one hand, that’s stating the obvious. Yet the resolution would also signal the position of the current legislative majority, leaving the abortion issue as the unstated but politically-powerful influence.
“West Virginia’s on the list, and without West Virginia they don’t have 38,” Johnson said.
Asked this week about her reasons for supporting the resolution, Senator Patricia Rucker didn’t mention abortion at all and instead focused on procedure. “This resolution simply states that West Virginia’s ratification of the Equal Rights Amendment lapsed on March 22, 1979, and is therefore no longer valid. That is the reason for the Resolution,” Rucker, R-Jefferson, wrote in an email, echoing her explanation on the Senate floor last week.
Senator Amy Nichole Grady, R-Mason, went farther, specifying that the resolution was brought to senators by West Virginians for Life.
“I am 100 percent in support of equal rights, but I do not stand for people using this cause and the term ‘equal rights’ to interpret the language in a way they see fit to justify abortion. That has nothing to do with equal rights and the dishonesty of some to use the ERA for justification is appalling,” Grady said in an email.
“I simply think it is a good idea to revisit the language, clarify it, and then vote for passage and ratification.”
To the House
As the resolution flowed next to the House of Delegates, Delegate Shawn Fluharty, D-Ohio, made a procedural motion: refuse to consider it.
Republican delegates stood up to say they want the opportunity to consider and debate the matter.
One of those was Delegate Dianna Graves, R-Kanawha. Her remarks briefly touched on the abortion connection. “At the core, this resolution was enacted was before Roe vs Wade,” Graves said, indicating that 1973 Supreme Court decision had altered a significant potential effect of the Equal Rights Amendment.
Saying she wants an opportunity to consider the SCR 44, Graves declared her support for gender equality: “To me, it’s disgusting that in this day and age we still have to debate the merits of that,” she said. But, she said of the Equal Rights Amendment, “There was a time limit as part of that ratification, and that time limit expired.”
Two years ago, Graves was among the sponsors of a House resolution in support of an extension to ratify the Equal Rights Amendment. The bipartisan resolution was sponsored solely by women including current Republican delegates Ruth Rowan and Erikka Storch.
Asked to clarify her position, Graves said her view had evolved as she gained more perspective.
“I think it’s a great example of how something that was intended for a good purpose can be subverted (and also of how important it is for legislators to continue to learn and not be afraid of changing a position just because of appearances),” Graves said in an email this week.
“I intend to do the right thing and if doing the right thing requires continuing to dig for the truth and taking action when it’s necessary, then I’ll do that all day long as long as I’m here.”
House Majority Leader Amy Summers, R-Taylor, also spoke that day in favor of the resolution highlighting the ERA’s long-past deadline. In an email, Summers directly connected her position to abortion issues.
“My understanding is the Democrats in Washington would like to use this as a way to allow abortion if Roe v Wade is overturned,” Summers wrote, noting Virginia’s position as the 38th state to ratify last year.
For now, delegates have set the matter aside.
The resolution then was assigned to the House Rules Committee, which is a group of leading delegates from both parties who sometimes gather before floor sessions to make decisions about what legislation will be considered each day and what may be pulled from the agenda.
Legislation is sometimes parked in Rules for complications to be worked out or as a kind of purgatory, but the intent isn’t yet clear in this instance.
The next time the Rules Committee is scheduled to meet is 10:45 a.m. Thursday.
Counter-programming
Senator Hannah Geffert, D-Berkeley, this week introduced a resolution to put on the ballot an Equal Rights Amendment for the state Constitution. Her idea is, the citizens would have a vote on changing West Virginia’s constitution.
“It is time for West Virginia’s Constitution to include the fundamental moral principle that the legal rights of women are in all matters equal to the rights of men,” Geffert stated in a news release.
First, though, her resolution would need the support of her fellow state lawmakers. “Of course, the initial question is whether the Republican leadership will allow the amendment to be brought to the Senate floor for a vote,” Geffert stated.
ERA debate rolls on
West Virginia lawmakers may agree that the deadline to pass the Equal Rights Amendment is long gone, but that won’t stop them from reviving the issue at any moment.
If and when the issue returns to the House floor, expect debate that’s more explicit than before. The House of Delegates, just this week, passed a bill that would ban abortions after 15 weeks, aligning West Virginia with a law already under review by the U.S. Supreme Court.
Now the National Right to Life would like to see West Virginia lawmakers provide official notification of their view that the ERA’s deadline is past.
West Virginians For Life, an affiliate, put out a statement last Friday in support of the state Senate’s actions. Wanda Franz, the president, suggested that renewed attempts to validate the Equal Rights Amendment would “invalidate all the pro-life legislation ever passed in West Virginia.”
“The majority of West Virginia legislators are pro-life and do not want to see their pro-life laws invalidated by a political stunt that makes use of the West Virginia vote on an ERA that expired decades ago,” Franz stated.