Women's rights group faults AG Peter Neronha for seeking to dismiss ERA lawsuit in RI

PROVIDENCE — The state attorney general’s office is asking a federal judge to dismiss a lawsuit brought against the state by a national women’s rights group aimed at solidifying women's equal standing under the law and protecting abortion rights.

Attorney General Peter F. Neronha argues in papers filed Thursday in U.S. District Court that the suit should be dismissed, in part, because he agrees with the Elizabeth Cady Stanton Trust’s stance that the Equal Rights Amendment should be part of the U.S. Constitution.

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“Similarly, Stanton Trust and the Attorney General agree that the ERA should be recognized as a valid part of the Constitution of the United States. Therefore, this claim must be dismissed as there is no controversy between the parties,” Special Assistant Attorney General Etie-Lee Z. Schaub wrote for the state.

Neronha's opposition to the lawsuit

In addition, the state argues that the nonprofit organization, named for Stanton, a leading women’s rights activist in the 1800s, lacks standing to bring the case and failed to demonstrate Rhode Island laws had harmed it.

The state looked to a lawsuit brought by the group Equal Means Equal against the Archivist of the United States in federal court in Massachusetts that sought a court order requiring the archivist to certify the ERA as part of the Constitution. That suit failed on standing grounds, establishing controlling court precedent, the state said.

Neronha pushed back against arguments that he should update the laws to bring them in compliance with the ERA.

"First, the Attorney General is not vested with the power — ministerial or otherwise — to change the law. The Rhode Island Constitution makes clear that the legislature enacts laws," the state wrote. "[The Trust] points to no authority for the Attorney General to override this express delegation of power to our Legislature."

The state's filing emphasized Neronha's advocacy "protecting women’s rights and health long before this lawsuit was filed," and his support of the Rhode Island Reproductive Privacy Act, which codified women's privacy rights and reproductive freedoms.

"The Attorney General has consistently supported the ERA, and in fact has joined other attorneys general in litigation in the appropriate forum to do so, the United States District Court for the District of Columbia. That said, as set forth in the state’s brief, the bottom line is that the plaintiffs have sued the wrong person in the wrong court, seeking relief – specific revisions of state law – that the Attorney General has no authority to provide," Brian Hodge, spokesman for Neronha's office, said in an email. "Furthermore, controlling First Circuit Court of Appeals precedent in an analogous Massachusetts case confirms that this case cannot proceed in this court, as brought by these plaintiffs. The law requires that the ERA fight be fought elsewhere, and the Attorney General is engaged in that fight."

Effort to make ERA part of the Constitution

Neronha is among the attorneys general that joined in support of a lawsuit brought in federal court in the District of Columbia to compel the Archivist of the United States to publish and certify the ERA to the Constitution.

A national anti-abortion group that tracks ERA cases nationally embraced the state’s effort to get the case dismissed.

"The 1972 ERA irrevocably expired more than 40 years ago. As the late Justice Ruth Bader Ginsburg said, ERA supporters must start over, which requires obtaining two-thirds votes in Congress. The Rhode Island lawsuit and others like it are mere political grandstanding, and they ultimately will have no effect on the text of the Constitution,” Douglas Johnson, the director of the ERA Project for the National Right to Life Committee, said in an email.

He emphasized that advocates who claim the 1972 ERA remains viable “have suffered an unbroken 40-year string of defeats in the federal courts.”

Criticism of Neronha's position

Amy Rice, one of the local lawyers representing the Elizabeth Cady Stanton Trust, strongly criticized the state's position.

"Attorney General Neronha's response to our lawsuit will certainly make the anti-abortion crowd very happy because he is sadly fighting against our effort to push back against the Supreme Court ruling this summer that overturned Roe v. Wade," Rice said in an email. "Women's lives are at risk across the country. We were hoping AG Neronha would want to work with us – and take advantage of this lawsuit as an opportunity to resolve the lawsuit in a way that makes Rhode Island laws and the United States Constitution stronger for women everywhere. Alas, Neronha instead seeks to dismiss our case in its entirety. We are very disappointed. This is not good news for women."

According to Rice, in two similar lawsuits filed in New York and Michigan, the attorneys general are being asked to work with the Elizabeth Cadly Stanton Trust to resolve these lawsuits in a way that will help "all women in America."

"The lawsuits we filed are all against attorneys general – including Neronha – who have said publicly that they support women's equality and want to do everything in their power to fight back against the Supreme Court's outrageous decision this summer," Rice said. "AG Neronha could have responded to our lawsuit in a way that would have helped women, but he didn't."

"By trying to dismiss this lawsuit AG Neronha is essentially saying he is not interested in taking advantage of this lawsuit to help restore women's rights, and that it doesn’t matter that Rhode Island laws do not protect women equally. Given what has been happening to women's rights recently, it's hard to believe that any Democrat would take steps to dismiss a lawsuit like this," Rice continued.

Elizabeth Cady Stanton Trust sues Neronha

The Elizabeth Cady Stanton Trust sued Neronha in June, asking the court to declare the ERA enforceable and order the state identify and repair all laws, policies and programs that discriminate based on gender in Rhode Island to bring them into compliance with the ERA.

The group argued that “all women in Rhode Island have been injured, and continue to be injured, by [Neronha’s] failure to bring all Rhode Island laws, policies, and programs into compliance with the ERA as this interferes with the ERA’s vitality.”

The Rhode Island suit was one of three the organization filed after a draft of the U.S. Supreme Court’s ruling overturning Roe v. Wade was leaked. Similar lawsuits were brought in Michigan and New York, all with the aim of getting the courts to establish equal protection under the law regardless of sex.

The lawsuit waded into the controversy over the status of the ERA, an issue that has been disputed since it was ratified by Virginia in January 2020. Rhode Island ratified it in 1972.

The trust argues that the ERA became enforceable on Jan. 27, 2022, two years after it was ratified by lawmakers in Virginia, meaning that it had won approval in 38 states, or ¾ of the country.

“Nothing more is needed. Once three-fourths of the states ratify an amendment, it becomes law,” they said.

But opponents counter that Virginia’s vote came too late, that it had long exceeded the seven-year deadline Congress gave states when it was sent to them in 1972. Rhode Island ratified the ERA in 1972.

Neronha, along with attorneys general from around the country, has urged Congress by letter to remove any doubt about the amendment’s viability by removing ratification deadlines.

"The Equal Rights Amendment was – and is – a correction necessary to accomplish the Founder’s promise of equality. In the original drafting of the United States Constitution, there were no protections for gender-based discrimination," the state wrote in its response. "Indeed, even in the face of the equal protection clause of the Fourteenth Amendment, it was still lawful to bar women from voting, practicing law, serving on a jury, and working in the same occupations as men."

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This article originally appeared on The Providence Journal: Rhode Island aims to dismiss ERA suit; women's rights group critical