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Efforts to get ERA bill through Minnesota Legislature complicated by concerns about abortion rights

Abortion opponents say equal rights amendments “have a history of discriminating against less-developed humans; those yet to be born.”

MN Capitol
The ballot statement would read: “Shall the Minnesota Constitution be amended to provide that equality under the law must not be abridged or denied on account of gender?”
MinnPost photo by Peter Callaghan

Efforts to add a gender equal rights amendment to the Minnesota Constitution have been complicated by concerns raised Thursday by anti-abortion activists and Republican lawmakers that the measure could be used to expand abortion rights.

While that connection may not halt progress in the DFL-controlled House, those concerns could mean trouble once the proposal reaches the GOP-controlled Senate.

The bill in question, House File 13, would place an equal rights amendment to the state constitution in front of voters in 2020. The ballot statement would read: “Shall the Minnesota Constitution be amended to provide that equality under the law must not be abridged or denied on account of gender?”

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The language is similar though not identical to the proposed equal rights amendment to the U.S. Constitution that died — though maybe not for good — when an insufficient number of states ratified it before a congressional deadline of 1982. The major change: the state measure prohibits discrimination based on “gender” rather than “sex,” as specified in the federal version.

A hearing on the measure featured lots of people arguing the measure is a long-overdue protection for women who continue to face discrimination. “I think all of us here can agree that women and men should be treated equally under the law,” Rep. Mary Kunesh-Podein, DFL-New Brighton, told the House Government Operations Committee. “It’s time to get this done.”

State State Rep. Mary Kunesh-Podein
State Rep. Mary Kunesh-Podein
Twenty five other states already have similar amendments in their state constitutions, and Kunesh-Podein used that fact to tweek Minnesota’s desire to be first among states. “I can’t tell you how surprised I was when I found out that Minnesota has not been a leader in this effort,” she said.

Kunesh-Podein was followed by a legal scholar, a labor leader, a sexual assault counselor, a county commissioner and others who spoke of the need for an amendment. Lisa Stratton, a former University of Minnesota law professor and current gender discrimination attorney, told the committee the only explicit reference to gender equality in either the state or U.S. constitutions relates to voting rights.

“Enshrining the basic principle of gender equality in the Minnesota constitution would make it clear that the citizens of this state expect its courts to apply a very high level of scrutiny to laws that create or reinforce gender disparities,” Stratton said.

To uphold laws that discriminate, courts would have to find that a compelling state interest exists and that the discrimination is needed to achieve that interest, she said. Without constitutional protection, courts must only find an “important” state interest and that the law in question is “substantially related” to that interest. She said while the equal rights amendment is almost always portrayed as a women’s rights issue, Stratton said it could protect men as well, especially in family law cases.

“No one can predict exactly what effect the addition of an ERA to our state constitution would have,” Stratton said. “But I can say with confidence it would not be immediate. It would be incremental and would happen as a result of legal challenges.”

One potential legal challenge was raised as a concern by Andrea Rau, the lobbyist for the Minnesota Citizens Concerned for Life. “Many pro-lifers, myself included, are strong supporters of equal rights,” Rau said. “We believe that all humans, regardless of circumstance, race, gender, religious belief, age, stage of development, sexual orientation or any other difference should all be afforded equal rights under the law.”

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Yet she argued that state equal rights amendments “have a history of discriminating against less-developed humans; those yet to be born.” Rau said state equal rights amendments have been used to challenge the constitutionality of pro-life laws in those states that have them.

For example, she cited a lawsuit in Pennsylvania that argues that banning Medicaid funding for abortions violates the state ERA, and suggested language to make any state ERA “abortion neutral.” The amendment would read: “this section does not grant, secure or deny any right related to accessibility or provision of abortion services or state funding for those services.”

Rep. Nick Zerwas, the ranking Republican on the committee, said he would like to vote for the ERA measure but would need to be sure that he wasn’t also voting to block future laws that might restrict abortion rights. He asked Kunesh-Podein if she would agree to an amendment to the bill to make clear that it wouldn’t be used in abortion-related litigation.

State Rep. Nick Zerwas
State Rep. Nick Zerwas
While Kunesh-Podein said it wasn’t her intention to affect abortion law, said she would oppose adding such language. Minnesota, she said, has abortion protections in its current constitution as a result of Doe v. Gomez, a 1995 state Supreme Court ruling that found that the privacy protections in the state constitution make it illegal to deny women the ability to use public assistance for abortions.

Zerwas said he wouldn’t offer the abortion language amendment in the committee but said he expects to do so if the measure reaches the House floor.

Because the state ERA would require a public vote, state appropriation will be needed. That is why the committee sent the measure to the House Ways and Means Committee. Any amendment to the constitution requires a simple majority to pass the House and Senate before going before the voters in the 2020 election.

Another measure closely related to the ERA bill, House File 71, asks Congress to remove the deadline for states to adopt the Equal Rights Amendment to the U.S. Constitution.

The ERA received ratification from 35 states including Minnesota before the once-extended deadline. It needs 38 states. In the years since the deadline passed, two additional states — Illinois and Nevada — have ratified, but five others have rescinded their ratification. Whether states can legally ratify after the deadline, and whether states can rescind, remain unresolved questions.

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Advocates of measures such as HF 71 think a lifting of the deadline would put amendment backers within one state of ratification, presuming that the five states that changed course are not allowed to do so.

The measure is simply a request of Congress, and since the ERA became politically charged in the 1970s, it is unlikely the current divided Congress would lift the deadline. Even so, a separate measure in the state Senate, Senate File 467, sponsored by Sen. Carrie Ruud, R-Breezy Point, seeks to do the exact opposite. It states that Minnesota’s 1973 ratification of the federal ERA expired when the initial congressional deadline passed on March 22, 1979.