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

MN Capitol
MinnPost photo by Peter Callaghan
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?”

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?”

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.”

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.

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.

Comments (22)

  1. Submitted by Dennis Wagner on 01/25/2019 - 10:53 am.

    Tell you what folks, you change your abortion position too: All children born are entitled to free healthcare, nutrition etc. etc. until; 18, regardless of RCCNO etc. or you have a waiting list of folks willing to pay for prenatal medical expenses, as well as hospital etc.and adopt unwanted children regardless of RCCNO etc. or physical, mental handicap etc. (W/O question), and provide for their welfare etc. W/O state/federal etc. funding, I will change my position about the right to choose. Put your money where your mouth is or get your religious preference out of other peoples lives. Fair enough?

    • Submitted by Richard Owens on 01/25/2019 - 11:35 am.

      Absolutely! How interesting that equality for WOMEN must have an asterisk* to pass Republican muster.

      Either she has total dominion over her own body or she doesn’t.

      Having the power of prayer and an omnipotent supernatural power in one’s own heart should be enough for any individual without seeking control of another.

      Coercion cannot be dressed up to look like freedom.

    • Submitted by Greg Smith on 01/25/2019 - 12:55 pm.

      So, abortion in demand up until moment of birth?
      How did the destruction of a unique life become couched in religious terms.

      • Submitted by Richard Owens on 01/25/2019 - 02:19 pm.

        Greg- I am assuming this positon if taken ethically is a religious one.

        It conflicts with our Bill of Rights, however.

        As a person without a uterus, I will not say what SHE should do.

        I assume the men who flock to this issue of “Pro Life” have somehow justified to themselves that they may seek to remove her rights until they fit the ones assumed by the belief system that motivates them.

        It sounds like enforcement would be a prison where gestation can be monitored for total compliance.

        Why do men fight this fight and assume they can tell women what to do with their equipment?

        • Submitted by RB Holbrook on 01/25/2019 - 03:11 pm.

          I’ve always found it interesting that the two most vocal anti-abortion lobbies–the Catholic Church and evangelical Protestants–are dominated and run by men.

        • Submitted by Bob Barnes on 01/25/2019 - 04:10 pm.

          More like people want others to act responsibly and not get pregnant if they don’t want a child. That would eliminate almost all abortions right there. No one has a right to kill an innocent human regardless if it’s in the womb or someone on the street.

          Does it not make more sense to avoid pregnancy in the first place? None of the early pregnancy issues like weight gain, morning sickness etc. No doctor appts. no risky medical procedures (that include side effects up to and including death). Using bc is far easier than all of that.

          • Submitted by Barry Peterson on 01/26/2019 - 03:54 pm.

            Bob and others, have you ever been raped by your spouse or girlfriend? Have you ever been so poor that you cannot afford a child (despite my endorsement of the use of orphanages)? Has your health ever been so frail that you have been unable to withstand the efforts and pains of gestation and giving birth? Have you ever thought of the problem associated with allowing a child with immense physical and neurological disabilities (I do not count Down Syndrome in this cohort) that they would be in medical care for the entirety of their lives?

            Much of these arguments against abortion are based on sophistry, and also on the notion that had Jesus Christ been aborted, he would never have lived out his life to be sacrificed on the cross. Others of these arguments are based on the thoughts of women and men who would deny abortions, but would not deny going into non-defensive wars; or by people who do not care to vigorously support the human rights and civil rights, nor the Americans with Disabilities Act rights of people who are alive, “flawed” by the majority of people’s inhumane standards, yet potentially capable of great achievements.

            • Submitted by Barry Peterson on 02/03/2019 - 02:02 pm.

              I acknowledge great women and men who have severe disabilities, which are later “able” to conduct great works of science, art, political reform, and who have medical conditions that keep them in medical care for the entirety of their lives.

              Dr. Stephen Hawking, who recently passed away, is one of those who was confined to a wheelchair and spoke by using a computerized voice program. One of my YMCA campers in the 1970’s was born with only one arm and legs ending at his knee. The young man was incredibly bright, enthusiastic, and kept up with the other kids when playing tag. His dad, a US Navy commander, asked me to treat him like any other kid, and to be certain to train him for hypothermia. I lost touch with the young man, but his spirit lives on in my memory.

              My concern are for fetuses which are so overwrought by “deformities” that their place on Earth will be painful, extremely frustrating, and in anguish for their short or long lives in the care of others. Such an existence, as I understand, is extremely inhumane to bring into their post-partum world.

              When medical technology and care becomes more advanced and available at low cost, it is no doubt that I will change my mind. Each life is precious. In rare situations should we be seeking abortions; noting, however, women’s health, life and ability to care for a tragic life.

              For those who are able to give birth to a sustainable baby and new person, I continue to encourage orphanages and open or closed adoptions, without interfering with a woman’s right to choose her destiny and her unborn child’s destiny.

  2. Submitted by Curtis Senker on 01/25/2019 - 01:07 pm.

    Many leftist controlled states are getting ready to enshrine abortion in their state constitutions ahead of the inevitable repeal of Roe v Wade.

    I support state’s rights, and that includes this kind of off putting stuff, but it must reflect the will of the majority of the people that live in the state.

    Partisan shenanigans will be afoot. It’s important for everyone involved to be watching carefully.

    • Submitted by Henk Tobias on 01/25/2019 - 03:33 pm.

      Many Radical Right Wing states have attempted to enshrine Anti-Choice, anti-gay marriage, anti-this and that in their constitutions, why they’ve even gone as far as preempting future generations from making decisions that their Radical Right Wing members don’t agree now by writing preemption laws against things like banning those plastic bags you see hanging all over out state. We Leftists must remain vigilant, the Radical Right Wing is relentless in pushing their anti-democratic agenda.

  3. Submitted by Frank Phelan on 01/25/2019 - 03:16 pm.

    Minnesota Citizens Sort of Concerned For Life.

    To my knowledge, MCCL has not advocated for things like WIC, prenatal care, or generally better access to healthcare. Oddly, their website doesn’t list any board members, and is very opaque that way.

    They don’t seem to be pro-life so much as anit-abortion, although they do oppose assisted suicide. But better access to healthcare and funding for programs like WIC would allow more women to feel they have options available.

    • Submitted by Henk Tobias on 01/25/2019 - 03:37 pm.

      Funny how that works. Most of them are pro-death penalty too. I think their definition of Life is pretty narrow. It may end with an infant’s first cry.

  4. Submitted by Ray Schoch on 01/25/2019 - 04:09 pm.

    The arguments are familiar, and predictable, and mine will be, too. I’m not an abortion enthusiast, but I’m an elderly white male, for whom the question of pregnancy and what to do about it is not biologically relevant, and is unlikely to ever be more than of purely academic and / or philosophical interest.

    Dennis Wagner is spot-on, I’d say, and Frank Phelan adds other bits of information that I’ve noticed, as well. I would add that Phelan’s list of causes and organizations that don’t appear to be acceptable to people who claim to be “concerned for life” includes things like universal health care, especially for children, not to mention opposition to the notion that anyone and everyone should be able to own and carry a lethal weapon (i.e., gun). Nor do I notice anti-abortion leaders championing any sort of anti-war movement. It has always appeared to me, and continues to appear, that this “concern for life” is curiously confined to the prenatal period, when, of course, ethically and practically, it should extend well beyond birth – at least until childhood is legally over at age 18.

    But in an ERA context, how long that “concern for life” should last is pretty much irrelevant.

    What **is** relevant is Richard Owens’ 2nd sentence. Either a woman has control of her body or not. Either she has rights equal to a male, or we’re living in Gilead, and a woman’s primary reason for being is to breed, whether she wants to or not, and secondarily to serve the interests of society’s males. I’ve often wondered how many “pro-life” males would sign on to have their reproductive life, organs and activity monitored and controlled by females?

    I like Mr. Wagner’s list of conditions for people who profess to be “pro-life.” When “pro-life” advocates meet those conditions, only then will those advocates and their cause have earned any credibility.

  5. Submitted by Bill Mantis on 01/25/2019 - 04:45 pm.

    Equal rights . . .”for all stages of development”? Does this mean the anti-choicers want children to have exactly the same rights as their parents? Including, for example, their Second Amendment rights?

    • Submitted by Frank Phelan on 01/27/2019 - 06:45 pm.

      Actually, yes. There are a number of 2nd Amendment types pushing the idea that it applies to minors as well as adults.

    • Submitted by Bob Barnes on 01/29/2019 - 07:38 am.

      All humans have the same rights, From the moment of conception until they are dead. Minor children have rights but in our society their parents make important decisions for them as they are too young to understand all the issues and consequences.

      So yes, an embryo/fetus has the right to live, the right to defend its own life (whether it is physically able to do so or not doesn’t mattere) etc just as you and I have.

  6. Submitted by Richard Owens on 01/25/2019 - 04:52 pm.

    The ERA should not invoke exceptions to equal rights at the Legislature. Exceptions by definition are antithetical to equal rights.

    There are Legislative issues with childbirth, among them:

    – increasing reluctance of many hospitals to do deliveries,
    – the rapid decline in maternal health outcomes in childbirth,
    – the need to make prenatal care accessible and affordable,
    – the need for paid leave for young parents,
    – childcare subsidies for children until they enter a pre-K program.

    Equal Rights debate should acknowledge:

    A woman’s pregnancy is not a public event and it does not require a public policy. Poverty rates among America’s children should be the #1 topic among those who cannot simply ratify the ERA “as is”.

    Healthcare, specifically the statistical outcomes of infant and maternal mortality ARE issues the legislature might need to investigate if woman are to be supported to achieve true EQUALITY.

    Every interpretation of all the major religions is about us taking care of each other. We can pledge through policy to try to improve the lives of our newest citizens and especially their moms.

    Anyone would be welcome whose goals aligned with true respect for the birthing process.

  7. Submitted by Curtis Senker on 01/28/2019 - 09:57 am.

    “Many Radical Right Wing states have attempted to enshrine Anti-Choice, anti-gay marriage, anti-this and that in their constitutions…”

    Correct. And they will do so again. Creating the environment the people want to live and raise families in….that’s what sovereign states do.

    Leftist states will be free to conduct any free-for-all they choose, as long as it doesn’t usurp the Bill of Rights (as written). Conservative states will be free to define the conduct they find acceptable.

    Finally, folks at either ends of that spectrum that don’t like the direction their states are moving, are free to relocate to more friendly pastures. There’s no downside to federalism; you’ll see.

    • Submitted by Richard Owens on 01/28/2019 - 04:02 pm.

      Your politics seem to be Confederate in the “states rights” kind of way, but you also seem to think that the humans in these states who are not in the majority have to move to find a state more to their liking.

      Should a woman’s right to be equal to all other citizens be any different under a Federalist Society dream? Do you reject the idea of one arbiter (SCOTUS) among all the states where individual rights are concerned?

      You are clearly passionate in your views, but it isn’t clear how you arrived at your position. Here’s your chance to say why if you feel like it.

      • Submitted by Bob Barnes on 01/29/2019 - 07:44 am.

        How are women not treated equally? They already are and have been for a long time. Having children doesn’t make one unequal. If you can’t afford a child, don’t have one. The economic and fiscal issues aren’t about equality , they are a direct result of big govt destroying purchasing power. And now you want govt to make their own mess even worse by spending even more money.

        • Submitted by Dennis Wagner on 01/29/2019 - 03:19 pm.

          BB, got a problem, “If you can’t afford a child, don’t have one” isn’t this what the entire Abortion conversation is about? The right to choose? Not sure where the “economic and fiscal issues aren’t about equality , they are a direct result of big govt destroying purchasing power.” Got some economic support for that?

        • Submitted by ian wade on 01/30/2019 - 04:37 pm.

          “How are women not treated equally?”
          Maybe you should ask one.

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