Case 7:19-cv-02032-LSC Document 1 Filed 12/16/19 Page 1 of 24
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`FILED
`
` 2019 Dec-17 PM 01:21
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ALABAMA
`WESTERN DIVISION
`
`
`
`
`
`
`COMPLAINT
`
`Civil Action No. _______________
`
`ALABAMA, LOUISIANA, SOUTH
`DAKOTA,
`
`Plaintiffs,
`
`
`v.
`
`DAVID S. FERRIERO, in his official
`capacity as Archivist of the United States,
`Defendant.
`
`
`
`The sovereign States of Alabama, Louisiana, and South Dakota bring this action
`
`against Defendant for declaratory and injunctive relief, and allege as follows:
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`INTRODUCTION
`
`1.
`
`In 1972, Congress proposed the Equal Rights Amendment (ERA) as an
`
`amendment to the United States Constitution. The ERA would have stated that
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`“[e]quality of rights under the law shall not be denied or abridged by the United States
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`or by any State on account of sex.” As is customary for constitutional amendments,
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`Congress gave the States seven years to ratify the ERA.
`
`2.
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`The ERA fell eight States short of the 38 States needed for ratification
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`(three-fourths of 50). When the congressional deadline expired, only thirty States had
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`ratified the ERA. Fifteen States had not ratified it, and five States had ratified but
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`rescinded their ratifications. Thus, the ERA failed to become part of the Constitution.
`
`
`
`FILED
`
` 2019 Dec-17 PM 01:21
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ALABAMA
`WESTERN DIVISION
`
`
`
`
`
`
`COMPLAINT
`
`Civil Action No. _______________
`
`ALABAMA, LOUISIANA, SOUTH
`DAKOTA,
`
`Plaintiffs,
`
`
`v.
`
`DAVID S. FERRIERO, in his official
`capacity as Archivist of the United States,
`Defendant.
`
`
`
`The sovereign States of Alabama, Louisiana, and South Dakota bring this action
`
`against Defendant for declaratory and injunctive relief, and allege as follows:
`
`INTRODUCTION
`
`1.
`
`In 1972, Congress proposed the Equal Rights Amendment (ERA) as an
`
`amendment to the United States Constitution. The ERA would have stated that
`
`“[e]quality of rights under the law shall not be denied or abridged by the United States
`
`or by any State on account of sex.” As is customary for constitutional amendments,
`
`Congress gave the States seven years to ratify the ERA.
`
`2.
`
`The ERA fell eight States short of the 38 States needed for ratification
`
`(three-fourths of 50). When the congressional deadline expired, only thirty States had
`
`ratified the ERA. Fifteen States had not ratified it, and five States had ratified but
`
`rescinded their ratifications. Thus, the ERA failed to become part of the Constitution.
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`Case 7:19-cv-02032-LSC Document 1 Filed 12/16/19 Page 2 of 24
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`3.
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`Recently, however, activists around the country have argued that the ERA
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`can still be ratified. They have developed a so-called “three-state strategy,” which
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`contends that the ERA will become law if only three more States ratify it. The activists
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`have persuaded many to go along with their strategy. Trumpeting their logic, Nevada
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`and Illinois purported to “ratify” the ERA in 2017 and 2018, respectively. And many
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`States are currently working to become the third and final “ratifier.” Unless another
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`State moves first, Virginia will enact a bill “ratifying” the ERA in January 2020.
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`4.
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`The three-state strategy is deeply misguided. The ERA cannot be ratified
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`because the congressional deadline for ratification has expired. Even without the
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`deadline, the three-state strategy would fall five States short because Nebraska, Idaho,
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`Tennessee, Kentucky, and South Dakota all rescinded their ratifications. Both the
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`original congressional deadline and the state rescissions are valid and enforceable. As
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`Justice Ginsburg recently stated, “the equal rights amendment” cannot be law unless it
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`is “put back in the political hopper and we[] start[] over again collecting the necessary
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`states to ratify it.”
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`5.
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`Yet the Archivist of the United States—the federal officer who oversees
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`the ratification process, receives States’ ratification documents, and makes
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`determinations about the documents’ validity—apparently agrees with the three-state
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`strategy. Even though the deadline for ratifying the ERA has expired, the Archivist
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`maintains possession of the States’ ratification documents and continues to receive new
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`ratification documents (including from Nevada and Illinois). The Archivist also refuses
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`to recognize the States’ rescissions of their prior ratifications, maintaining possession
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`of their ratification documents and falsely listing them as having ratified the ERA.
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`6.
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`The Archivist is acting illegally. His actions violate the bedrock rules that
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`the Constitution and Congress have established for ratifying constitutional
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`amendments. As a result, Plaintiffs bring this action for declaratory and injunctive relief.
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`PARTIES
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`7.
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`Defendant, David S. Ferriero, is the Archivist of the United States. The
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`Archivist directs and supervises the National Archives and Records Administration and
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`is responsible for administrating the process of ratifying constitutional amendments. See
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`1 U.S.C. §106b. The Archivist is sued in his official capacity.
`
`8.
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`Plaintiffs Alabama and Louisiana have never ratified the ERA. If the ERA
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`is ratified, it would expose Alabama and Louisiana to costly litigation and threaten to
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`invalidate several of their duly enacted laws.
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`9.
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`Plaintiff South Dakota ratified the ERA in 1973, but rescinded its
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`ratification in 1979. South Dakota rescinded its ratification because it concluded that
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`the ERA was a costly, unwise addition to the Constitution. Despite South Dakota’s
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`rescission, the Archivist has not returned its ratification documents and maintains
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`records that falsely indicate South Dakota has ratified the ERA. If South Dakota’s
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`rescission is not honored and the ERA is ratified, it would expose South Dakota to
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`costly litigation and threaten to invalidate several of its duly enacted laws.
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`JURISDICTION & VENUE
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`10. This Court has subject-matter jurisdiction under 28 U.S.C. §1331 because
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`this case arises under the Constitution and laws of the United States.
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`11. Venue is proper under 28 U.S.C. §1391(e) because Defendant is an officer
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`of the United States sued in his official capacity, this case does not involve real property,
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`and Plaintiff Alabama “resides” in the Northern District of Alabama.
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`FACTS
`The Constitutional Amendment Process
`
`I.
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`12. Article V of the Constitution establishes the process for proposing and
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`ratifying amendments. Absent a convention, Article V requires amendments to be
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`proposed by a supermajority of Congress and ratified by a supermajority of States:
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`The Congress, whenever two thirds of both houses shall deem it necessary,
`shall propose amendments to this Constitution, or, on the application of the
`legislatures of two thirds of the several states, shall call a convention for
`proposing amendments, which, in either case, shall be valid to all intents and
`purposes, as part of this Constitution, when ratified by the legislatures of three
`fourths of the several states, or by conventions in three fourths thereof, as the
`one or the other mode of ratification may be proposed by the Congress ….
`
`13. Article V gives both Congress and the States important and distinct roles
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`in the amendment process. See The Federalist No. 43 (Hamilton) (explaining that Article
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`V “equally enables the general and the State governments”). This balance was by design,
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`as it makes the amendment process “neither wholly national nor wholly federal.” The
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`Federalist No. 39 (Madison). Article V accomplishes this balance by giving Congress
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`and the States “carefully balanced and approximately equally distributed” powers. Idaho
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`v. Freeman, 529 F. Supp. 1107, 1128 (D. Idaho 1981).
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`14. Congress has the power to control the “mode of ratification.” U.S. Const.,
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`Art. V; see United States v. Sprague, 282 U.S. 716, 732 (1931) (“This Court has repeatedly
`
`and consistently declared that the choice of mode rests solely in the discretion of
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`Congress.”). This power includes not only the authority to choose the method of
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`ratification (state legislatures versus state conventions), but also the authority to control
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`other “matter[s] of detail” regarding how the States ratify amendments. Dillon v. Gloss,
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`256 U.S. 368, 376 (1921).
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`15. One of those “matter[s] of detail” is the “period for ratification.” Id. As
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`the Supreme Court explained in Dillon, there is “no doubt” that Congress has the power
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`to set enforceable time limits on the period for ratifying a constitutional amendment.
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`Id. Indeed, Congress has repeatedly exercised that power, putting time limits in both
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`the text of proposed amendments (e.g., the Eighteenth, Twentieth, Twenty-First, and
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`Twenty-Second Amendments) and in the proposing resolutions (e.g., the Twenty-
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`Third, Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth Amendments).
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`16. As for the States, they have the power to determine “when” they have
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`“ratified” an amendment. U.S. Const., Art. V; see Freeman, 529 F. Supp. at 1134 (Article
`
`V gives the States “exclusive control over the actual process of ratification, or
`
`determination of actual consensus.”); Dyer v. Blair, 390 F. Supp. 1291, 1307 (N.D. Ill.
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`1975) (Stevens, J.) (“[Article V’s] failure to prescribe any particular ratification
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`procedure, or required vote to effectuate a ratification, is certainly consistent with the
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`basic understanding that state legislatures should have the power and the discretion to
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`determine for themselves how they should discharge the responsibilities committed to
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`them by the federal government.”). This, too, was by design. In response to the Anti-
`
`Federalists’ fears about Congress’s role in the amendment process, the Federalists
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`pointed to the States’ exclusive power over ratification. Given this power, they
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`explained, “[w]e may safely rely on the disposition of the State legislatures to erect
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`barriers against the encroachments of the national authority.” The Federalist No. 85
`
`(Hamilton).
`
`17. The States’ power to control ratification includes the power to rescind a
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`prior ratification. “[T]he drafters of the Constitution considered it important” that
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`constitutional amendments “draw on that same power which is the source of the
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`original authority of the Constitution—‘the consent of the people.’” Freeman, 529 F.
`
`Supp. at 1148. That consent is missing when a State timely rescinds its ratification. “To
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`allow a situation where … the first act of a state is irrevocable … would permit an
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`amendment to be ratified by a technicality … and not because there is really a
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`considered consensus supporting the amendment.” Id. at 1149.
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`18.
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`In addition to Congress and the States, the Archivist plays a role in the
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`ratification process. The Archivist follows procedures and customs established by his
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`predecessors—the General Services Administrator, and before that the Secretary of
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`State.
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`19. When a State ratifies a constitutional amendment, it sends its ratification
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`documents to the Archivist. Acting through his Office of the Federal Register, the
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`Archivist reviews the documents and decides whether they are legally sufficient. If he
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`decides that they are, the Archivist records the State’s ratification and maintains
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`possession of the documents.
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`20. When three-fourths of the States ratify an amendment, the Archivist must
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`“cause the amendment to be published, with his certificate, specifying the States by
`
`which the same may have been adopted, and that the same has become valid, to all
`
`intents and purposes, as a part of the Constitution of the United States.” 1 U.S.C. §106b.
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`The Archivist’s certification is published in the Federal Register and the U.S. Statutes
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`at Large, and it marks the end of the amendment process. Before issuing this
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`certification, however, the Archivist determines whether the amendment “has been
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`adopted[] according to the provisions of the Constitution.” Id.
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`21. While some aspects of the Archivist’s duties are purely ministerial, his
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`initial review and final determination of the legality of state ratifications are not.
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`II. The Proposal and Rejection of the ERA
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`22. On March 22, 1972, Congress enacted a joint resolution proposing the
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`ERA and submitting it to the States for ratification. The joint resolution, which was
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`enacted by two-thirds of the House and Senate, required the States to ratify the ERA
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`“within seven years.” In other words, the joint resolution imposed a ratification deadline
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`of March 22, 1979:
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`23.
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`In 1978, Congress passed a joint resolution purporting to extend the
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`ERA’s ratification deadline to June 30, 1982. Unlike the original deadline, the extension
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`passed with only simple majorities of the House and Senate. The only court to consider
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`its constitutionality held that the extended deadline exceeded Congress’s authority
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`under Article V. See Freeman, 529 F. Supp. at 1150-53.
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`24. The ERA was not ratified by the requisite number of States (38) within
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`the original deadline of 1979 or the extended deadline of 1982.
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`25. Thirty States ratified the ERA within the original deadline: Alaska,
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`California, Colorado, Connecticut, Delaware, Hawaii, Indiana, Iowa, Kansas, Maine,
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`Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New
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`Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode
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`Island, Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.
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`26.
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`Four States ratified the ERA, but then rescinded their ratifications before
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`the original deadline. Nebraska rescinded in 1973, less than one year after its ratification.
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`Tennessee rescinded in 1974, a year after its ratification. Idaho rescinded in 1977, less
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`than five years after its ratification. And the Kentucky Legislature rescinded in 1978,
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`less than six years after its ratification.
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`27. One State, South Dakota, ratified the ERA within the original deadline;
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`but after Congress purported to extend that deadline, South Dakota passed a resolution
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`rescinding its ratification. The resolution provided that, if three-fourths of the States
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`did not ratify the ERA by the original deadline, then South Dakota “withdraws its
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`ratification” and “renders [it] null and void and without any force or effect whatsoever.”
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`28. No additional States ratified the ERA between the original deadline of
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`1979 and the extended deadline of 1982.
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`29.
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`Still today, thirteen States have never purported to ratify the ERA:
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`Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North
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`Carolina, Oklahoma, South Carolina, Utah, and Virginia.
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`30. Despite the failure of the ERA, the Supreme Court has interpreted other
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`provisions of the Constitution to accomplish most of the ERA’s original goals. For
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`example, the Supreme Court has held that the Equal Protection Clause largely prohibits
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`laws that discriminate on the basis of sex. See, e.g., United States v. Virginia, 518 U.S. 515,
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`532 (1996). And the Supreme Court has held that the Due Process Clause secures the
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`right to an abortion. See Roe v. Wade, 410 U.S. 113 (1973).
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`31. The Supreme Court’s approach to these issues, however, has been
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`cautious and limited. The Court subjects sex-based laws to only intermediate scrutiny,
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`not strict scrutiny. See Clark v. Jeter, 486 U.S. 456, 461 (1988). The Court likewise subjects
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`abortion regulations to the “undue burden” standard, another form of intermediate
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`scrutiny. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016). And the
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`Court has held that governments have no obligation to fund abortions. See Harris v.
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`McRae, 448 U.S. 297 (1980).
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`32. Given these developments, the only reason to ratify the ERA today would
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`be to push the law further—to increase the level of scrutiny for sex-based laws, to
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`remove the limitations in the Court’s jurisprudence, and to expand the frontiers of what
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`qualifies as discrimination “on account of sex.” That is precisely what would happen if
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`the ERA were ratified in the current legal and political climate.
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`33.
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`For example, if the ERA were ratified today, activists would urge courts
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`to use the amendment to overturn legitimate regulations of abortion and to mandate
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`state funding of abortions. New Mexico, for example, has interpreted its ERA to
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`provide a broader right to abortion than U.S. Supreme Court precedent. See N.M. Right
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`to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998). And courts in New Mexico,
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`Connecticut, and Massachusetts have interpreted their ERAs to require taxpayer
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`funding of abortions. See id.; Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986); Moe v.
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`Sec’y of Admin. & Fin., 417 N.E.2d 387, 405 (Mass. 1981). Many ERA proponents
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`welcome these developments and intend to use the ERA to achieve them; when efforts
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`were made in Congress to make the ERA abortion neutral, for example, proponents of
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`the ERA worked hard to defeat them. They were successful.
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`34. As another example, litigants would urge courts to use the ERA to
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`invalidate policies that reflect a biological definition of “sex.” While that definition was
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`the predominant one when the ERA was proposed in the 1970s, several courts have
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`recently defined “sex” more broadly to include sexual orientation and gender identity.
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`See, e.g., Hivley v. Ivy Tech Cmty. College, 853 F.3d 339 (7th Cir. 2017); EEOC v. R.G. & G.
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`R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018).
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`35. The States that ratified the ERA within the original deadline did not
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`consent to any of this. In the 1970s, the original public meaning of “sex” was far
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`narrower, and ERA proponents actively denied that the amendment would change the
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`law on these topics.
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`III. The Recent, Flawed Efforts to Revive the ERA
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`36.
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`In recent years, activists have devised a plan to revive the ERA. Dubbed
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`the “three-state strategy,” these activists do not want Congress to reenact the ERA and
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`submit it to the States for a new round of ratifications; instead, they argue that the
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`original ERA can become law if only three more States ratify it. Three more States, the
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`logic goes, would bring the total number of ratifying States to 38 (ignoring the
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`rescissions in Nebraska, Idaho, Tennessee, Kentucky, and South Dakota)—supposedly
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`crossing the three-fourths threshold specified in Article V.
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`37.
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`Proponents of the three-state strategy are on the precipice of success.
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`38. The three-state strategy became a two-state strategy in 2017, when Nevada
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`purported to ratify the ERA.
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`39. The two-state strategy became a one-state strategy in May 2018, when
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`Illinois purported to ratify the ERA.
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`40. Activists will inevitably find the third and final State. Bills to ratify the
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`ERA have been introduced in Arizona, Georgia, Missouri, North Carolina, South
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`Carolina, and Utah, for example.
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`41. But Virginia will almost certainly be the next State to “ratify” the ERA. In
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`early 2019, the Virginia Senate passed a bill to ratify it, but the bill failed in the House
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`of Delegates by one vote. All Democrats voted yes, and the only no votes came from
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`Republicans. After Virginia’s November 2019 elections (where the ERA was a major
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`campaign issue), Democrats gained majorities of the House of Delegates and the
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`Senate. Passing the ERA will be a “top priority,” according to Virginia’s Democratic
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`Governor, when the new legislature convenes on January 8, 2020. “Virginia will be next
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`in line to pass the E.R.A.,” he added. In fact, a bill to ratify the ERA has already been
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`prefiled so that the legislature can take it up right away. “[W]e do have the votes to pass
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`it,” the soon-to-be Speaker of the House of Delegates declared; and it will be passed
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`“right away,” the Senate Democratic Leader echoed. Both Republican and Democratic
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`legislators in Virginia have stated that passage of the ERA is “likely,” will occur “within
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`the first seven days of session,” and will require only “the work of two afternoons.”
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`And pundits predict that passage will be “easy,” will occur “rapid[ly],” and will be the
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`“head of the list.” The bill requires only a majority vote (the Governor’s signature is not
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`required).
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`42. Despite the activists’ efforts, the three-state strategy is legally unsound. It
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`relies on at least three key assumptions, all of which are false.
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`43. First, the three-state strategy assumes that the ERA’s ratification deadline,
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`which was imposed by Congress, is invalid. If the time to ratify the ERA expired in
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`1979 (or 1982), then the ERA is a dead letter and can no longer be ratified by any State.
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`The ERA cannot become law unless two-thirds of Congress reenacts it and three-
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`fourths of the States re-ratify it.
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`44. Yet Congress plainly has the power to impose enforceable time limits on
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`ratification. Supra ¶15. Because Congress is a separate actor in the ratification process
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`and has independent authority to specify the mode of ratification, it makes no difference
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`where the time limit appears—in the text of the proposed amendment or in the text of
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`the proposing resolution.
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`45.
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`In fact, the Supreme Court has already held that the ERA’s deadline is
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`enforceable and that its expiration makes the amendment a dead letter. After the district
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`court issued its decision in Freeman, the Supreme Court agreed to review its decision.
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`Before the Court could do so, however, the extended deadline for ratifying the ERA
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`passed. In a brief filed with the Supreme Court, the U.S. Department of Justice asked
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`the Court to vacate the district court’s decision because the case had become moot. See
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`Memo. for GSA Suggesting Mootness, NOW, Inc. v. Idaho, Nos. 81-1312, 81-1313
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`(citing, inter alia, United States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950)). The case
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`was moot, according to the Government, because “[o]n June 30, 1982, the extended
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`period for ratifying the Amendment expired,” “Congress has not passed any additional
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`extension,” and the ERA has thus “failed of adoption.” Id. The Supreme Court agreed.
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`“Upon consideration of the [Government’s brief] suggesting mootness … and the
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`responses thereto,” the Supreme Court vacated the district court’s decision “with
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`instructions to dismiss the complaints as moot.” 459 U.S. at 809 (citing Munsingwear,
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`340 U.S. 36).
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`46. Second, the three-state strategy assumes that the rescissions by Nebraska,
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`Idaho, Tennessee, Kentucky, and South Dakota are invalid. If any one of these
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`rescissions negates that State’s earlier ratification, then the three-state strategy will fall
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`short of the 38 States needed to ratify the ERA. Proponents of the ERA would need
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`no less than a six-, seven-, or eight-state strategy instead.
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`47. But those rescissions are valid. Supra ¶17.
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`48. Third, some adherents of the three-state strategy contend that, even if the
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`deadline for ratifying the ERA has expired and the States’ rescissions are valid, there is
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`nothing courts can do about it. They contend that these issues are “political questions”
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`that only Congress can resolve.
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`49. Yet the notion of “giving plenary power to Congress to control the
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`amendment process runs completely counter to the intentions of the founding fathers.”
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`Freeman, 529 F. Supp. at 1126. Because Article V “split[s]” the amending power
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`“between Congress and the states,” “it is evident … that the framers did not intend
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`either of those two parties to be the final arbiter of the process”; rather, “the courts, as
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`a neutral third party … [would] decide … questions raised under article V.” Id. at 1135.
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`Courts are “not … free” to dismiss challenges to the ratification process as political
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`questions, as then-Judge Stevens explained, because “the [Supreme] Court has on
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`several occasions decided questions arising under article V, even in the face of ‘political
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`question’ contentions.” Dyer, 390 F. Supp. at 1300; accord Freeman, 529 F. Supp. at 1122-
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`23 (collecting cases).
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`50. Despite these obvious flaws with the three-state strategy, the Archivist has
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`endorsed its logic and is actively facilitating it.
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`51. Even though the time for ratifying the ERA has expired, the Archivist
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`maintains possession of state ratification documents and has accepted new ratification
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`documents from Nevada and Illinois.
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`52. The Archivist has also refused to recognize the validity of the rescissions
`
`by Nebraska, Idaho, Tennessee, Kentucky, and South Dakota. The Archivist has
`
`maintained possession of these States’ ratification documents, and he maintains records
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`that falsely suggest these States have ratified the ERA.
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`- 15 -
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`Case 7:19-cv-02032-LSC Document 1 Filed 12/16/19 Page 16 of 24
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`IV. An Unconstitutionally Ratified ERA Would Seriously Injure Alabama,
`Louisiana, and South Dakota
`
`53.
`
`Plaintiffs are committed to equality. That commitment is memorialized in
`
`existing law, and it has led to many improvements for Alabama, Louisiana, and South
`
`Dakota women.
`
`54.
`
`If the ERA were ratified today through the activists’ unlawful scheme, it
`
`would not promote true equality. Instead, it would undermine the rule of law and
`
`threaten the progress Alabama, Louisiana, and South Dakota women have made.
`
`55.
`
`Plaintiffs “ha[ve] an interest in securing observance of the terms under
`
`which it participates in the federal system.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex
`
`rel., Barez, 458 U.S. 592, 607-08 (1982). If Plaintiffs are subjected to the ERA based on
`
`late ratifications, they will be “denied [their] rightful status within the federal system.”
`
`Id. at 607.
`
`56.
`
`If the ERA is added to the federal Constitution, it will govern Plaintiffs.
`
`Being governed by an unconstitutionally ratified amendment would injure Plaintiffs in
`
`the same way that being governed by an unconstitutionally structured federal agency
`
`injures private parties. See Buckley v. Valeo, 424 U.S. 1, 117 (1976) (per curiam) (“Party
`
`litigants with sufficient concrete interests at stake may have standing to raise
`
`constitutional questions of separation of powers with respect to an agency designated
`
`to adjudicate their rights.”).
`
`
`
`- 16 -
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`
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`Case 7:19-cv-02032-LSC Document 1 Filed 12/16/19 Page 17 of 24
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`57. Moreover, in light of developments since 1972, it is now clear that some
`
`judges would apply the ERA to enjoin enforcement of several of Plaintiffs’ laws and
`
`practices. Such injunctions would not only injure Plaintiffs as sovereigns but also
`
`prevent Plaintiffs from enforcing laws that benefit their citizens, especially women.
`
`58.
`
`Plaintiffs have enacted reasonable licensing regulations to protect
`
`women’s health, see, e.g., Ala. Admin. Code r. 420-5-1-.01; La. Stat. Ann. §§40:2175.3,
`
`.4; S.D. Codified Laws 34-23A-5, that are presently constitutional, but would be subject
`
`to new legal challenges under the ERA. It is overwhelmingly likely that at least one
`
`plaintiff would be able to convince a judge to enjoin enforcement of at least one of
`
`Plaintiffs’ regulations based on the ERA.
`
`59. Women in Plaintiff States benefit from the continued enforcement of
`
`regulations that protect their health and safety, and Plaintiffs thus have an interest in
`
`maintaining that enforcement.
`
`60.
`
`Plaintiffs have enacted reasonable abortion regulations, see, e.g., Ala. Code
`
`§26-23A-4; La. Stat. Ann. §§40:1061.9-10, 16-17; La. Admin. Code tit. 48, §4405; S. D.
`
`Codified Laws §§34-23A-3-5, 7, that are presently constitutional, but would be subject
`
`to new legal challenges under the ERA. It is overwhelmingly likely that at least one
`
`plaintiff would be able to convince a judge to enjoin enforcement of at least one of
`
`Plaintiffs’ regulations based on the ERA.
`
`61.
`
`Plaintiffs have enacted statutes prohibiting public funding of abortions.
`
`See, e.g., Ala. Admin. Code r. 560-X-6-.09; Ala. Medicaid-Provider Billing Manual §§5.8,
`
`
`
`- 17 -
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`
`
`Case 7:19-cv-02032-LSC Document 1 Filed 12/16/19 Page 18 of 24
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`28.6.7 (Oct. 2019) (forbidding payment for any abortion except those where the life of
`
`the mother is in danger or the pregnancy resulted from rape or incest); La. Stat. Ann.
`
`§§22:1014 (disallowing health care plans established through an exchange under federal
`
`health care reform to offer coverage for abortion services), 40:1061.6 (precluding any
`
`public funds from being “used in any way for, to assist in, or to provide facilities for an
`
`abortion” except when medically necessary to prevent the death of the mother or the
`
`pregnancy resulted from rape or incest); S.D. Codified Laws §§28-6-4.5 (Prohibiting
`
`public funds from being used in connection with any abortion except to preserve the
`
`life of the mother), 58-17-147 (“No qualified health plan offered through a health
`
`exchange established in the state may include elective abortion coverage.”).
`
`62.
`
`It is overwhelmingly likely that at least one plaintiff would be able to
`
`convince a judge to enjoin enforcement of at least one of Plaintiffs’ funding restrictions
`
`based on the ERA. See, e.g., N.M. Right to Choose/NARAL, 975 P.2d at 850-51 (holding
`
`New Mexico’s failure to fund abortions through Medicaid violated the state
`
`constitution’s ERA).
`
`63.
`
`Plaintiffs maintain reasonable policies distinguishing between men and
`
`women to maintain the physical safety of women. For example, Plaintiffs help fund
`
`women’s shelters that do not admit men. This funding helps provide protection and
`
`comfort for vulnerable women, many of whom are victims of domestic violence or
`
`sexual assault. The ERA would threaten such facilities because of their single-sex
`
`admission policies.
`
`
`
`- 18 -
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`
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`Case 7:19-cv-02032-LSC Document 1 Filed 12/16/19 Page 19 of 24
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`64.
`
`Plaintiffs operate prisons that allow for separation and classification of
`
`inmates based on an inmate’s sex. These policies provide protections for female
`
`inmates.
`
`65.
`
`It is overwhelmingly likely that at least one plaintiff would be able to
`
`convince a judge that separation of the sexes fails strict scrutiny under the ERA. See
`
`Johnson v. California, 543 U.S. 499, 507 (2005) (“The need for strict scrutiny is no less
`
`important here, where prison officials cite racial violence as the reason for their
`
`policy.”); Lee v. Washington, 390 U.S. 333, 333 (1968) (prohibiting racial segregation in
`
`prisons).
`
`66.
`
`Plaintiffs also maintain reasonable policies distinguishing between men
`
`and women to promote the interests of women. For example, public schools, including
`
`universities, maintain separate sports teams and competitions for men and women. If
`
`Plaintiffs’ schools are forced to eliminate single-sex sports in favor of coed sports,
`
`athletic opportunities for women will diminish. Women in Plaintiff States benefit from
`
`the athletic opportunities and scholarship money they receive as a result of single-sex
`
`sports.
`
`67.
`
`It is overwhelmingly likely that at least one plaintiff would be able to
`
`convince a judge that refusing to allow men to compete in women’s athletic
`
`competitions violates the ERA. See Attorney Gen. v. Massachusetts Interscholastic Athletic
`
`Ass’n, Inc., 393 N.E.2d 284, 296 (Mass. 1979) (holding that state rule that “would bar
`
`boys from playing on girls’ interscholastic teams” violated state ERA).
`
`
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`- 19 -
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`
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`Case 7:19-cv-02032-LSC Document 1 Filed 12/16/19 Page 20 of 24
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`68. The purported ratification of the ERA would subject Plaintiffs to costly
`
`litigation on these topics and many others. Numerous statutes and practices—even
`
`those previously held lawful under the Equal Protection Clause and non-discrimination
`
`statutes—would be subject to reexamination in federal court. Plaintiffs would face not
`
`only their own litigation expenses but also potential liability for attorney’s fees. See 42
`
`U.S.C. §1988(b).
`
`69.
`
`It is overwhelmingly likely that at least one plaintiff would be able to
`
`convince a judge to enjoin enforcement of at least one of Plaintiffs’ statutes or practices
`
`based on the ERA.
`
`70.
`
`Plaintiffs “clearly ha[ve] a
`
`legitimate
`
`interest
`
`in
`
`the continued
`
`enforceability of [their] own statutes.” Maine v. Taylor, 477 U.S. 131, 137 (1986) (finding
`
`a state had standing to appeal). An injunction preventing Plaintiffs from enforcing one
`
`of those laws would cause not only a cognizable injury but an “irreparable” one by
`
`undermining “the public interest in the enforcement of [state] laws.” Planned Parenthood
`
`of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013). “[A]ny
`
`time a State is enjoined by a court from effectuating statutes enacted by representatives
`
`of its people, it suffers a form
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