Getting bi-partisan support for a major bill feels like a modern miracle, but the Pregnancy Workers Fairness Act might have it in 2021. After eight years and six legislative sessions, it might be the time to pass a law that will expand protections for women — pregnant ones this time. It’s one of many laws pieced together towards universal rights for women. Because the PWFA has taken eight years to become a priority, and only now is gaining substantive Republican support, the PWFA calls attention to the need for the ratification of the Equal Rights Act.
The Equal Rights Amendment would ensure the equal rights of men and women, thereby requiring fewer laws. The ERA is closer than ever to becoming an amendment, with the House of Representatives voting March 17 to remove the “arbitrary” deadline for ratification. Yet the century-long journey to universal rights for women and men faces a few more hurdles before being added to the Constitution.
For two decades, the ERA has needed three more states to ratify it. In January 2020, Virginia became the 38th state to ratify the ERA, following Illinois in 2018 and Nevada in 2017. What happened in the past five years that re-energized the push for the ERA?
Calls for more laws to patch the lack of protections is one reason. While the interpretations of the 14th Amendment have recently protected men and women, none of the lesser laws —- pay equity, paid family leave, pregnancy rights, workplace discrimination, protections from violence/harrassment — have to be held to “strict scrutiny.” With “strict scrutiny,” courts are mandated to consider the question “Does this law protect the fundamental right of a woman (or man)?” At present, the same laws are subject to other criteria based upon the jurisprudence of the judge. The problem has been that nowhere in the U.S. Constitution are the rights of women addressed.
The early suffragist Alice Paul and others proposed the first equal rights amendment in 1923. It read:“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Though the ERA had support from Republican and Democrat presidents, it made little progress until 1973. The current ERA which passed in 1973 reads: “Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3: This amendment shall take effect two years after the date of ratification.”
When Virginia ratified it state leaders said they sought to right a past wrong. Shortly thereafter, the ERA’s legality became a national political procedural question. The Brennan Center for Justice notes there is no precedent for a second extension, so both chambers of Congress must decide upon the deadline as well decide how to handle the five states who rescinded support. There’s a precedent for that: after states rescinded ratifications on the 14th and 15th Amendments, Congress adopted resolutions to ignore those; however, a 1980 federal court upheld Idaho’s decision to take back its ratification of the ERA, leaving that hurdle.
The ERA is more popular than ever. The League of Women Voters has called for it to be made the 28th Amendment to the Constitution.
The ERA will strengthen how cases are decided, make equity a priority. A law like the Pregnancy Workers Fairness Act would take priority based on granting equal rights to women. Perhaps, if the ERA had been ratified in 1980, such a law would not have become a needful extension to the 1940 Pregnancy Protection Act. The thousands of cases women have brought about pregnancy discrimination, or other gender-based discrimination, would have been adjudicated with equity.
The League of Women Voters, a non-partisan, multi-issue organization encourages informed and active participation in government, works to increase public understanding of major policy issues and influences public policy through education and advocacy. All men and women are invited to join the LWV where hands-on work to safeguard democracy leads to civic improvement. For information, visit the website www.lwvmontcoin.org or the League of Women Voters of Montgomery County, IN Facebook page.
