State ERAs Take Center Stage
Nevada became the second state in as many months to issue a major abortion ruling based on the state constitution’s equal rights amendment.
Last week, a Nevada trial court struck down state limits on Medicaid coverage for abortions, finding that the law violated the Nevada Constitution’s Equal Rights Amendment. The Nevada ERA, adopted by voters in 2022, provides that equal rights under law can’t be denied on the basis of sex or other protected categories.
An appeal in Silver State Hope Fund v. Nevada Department of Health and Human Services looks likely, but for now, Nevada will join 17 other states that use state funds to cover abortions for low-income individuals on Medicaid. Federal dollars generally can’t be used for abortions, so state funding is the only game in town.
The Nevada judge didn’t issue a written opinion so there’s not much analysis to parse. But this decision comes on the heels of a Pennsylvania Supreme Court ruling in late January that its own state’s Medicaid coverage ban was sex discrimination that implicated the Pennsylvania ERA. (The court concluded that the ban was “presumptively unconstitutional” and sent the case back to the trial court for further analysis.)
The Pennsylvania ruling overturned an almost 40-year precedent that the state ERA didn’t apply to laws that regulate pregnancy or other “physical characteristics unique to one sex.” In rejecting that holding, the Pennsylvania high court concluded that when a state covered comprehensive reproductive healthcare for men but omitted key services for women, that was sex discrimination. (Check out our recent pieces on the Pennsylvania ruling.)
Seeing two major ERA cases in two months is a big change from how these provisions have been used —or more often not used — up to now. One of my earliest projects on state constitutions at the Brennan Center was a 2022 study of state ERAs (done jointly with Ms. magazine and Columbia Law School’s ERA Project). At the time, 21 states had comprehensive gender equality provisions in their state constitutions. Now the number is 22, and more will be on the ballot this fall.
It was striking how little ERA jurisprudence existed in most of the states that had these seemingly robust provisions. In some states, such as Pennsylvania, courts had narrowed their ERA’s application to exclude a lot of what we might think of as sex discrimination. In others, it looked like case law simply hadn’t been developed. (There were exceptions, however — for example, in 1998, the New Mexico Supreme Court applied its ERA to strike down limits on public funding for abortion.)
All that to say, seeing these gender equality provisions take center stage in 2024 is a major shift, and it’s telling that these cases are happening in the reproductive rights arena. Looking at federal constitutional law, in Dobbs v. Jackson Women’s Health Organization the majority opinion dedicated all of one paragraph to dismissing the argument that there was an Equal Protection Clause basis for abortion rights rooted in sex discrimination.
State constitutional law is an arena for potentially developing the kind of equality-based theories dismissed so quickly in Dobbs — and the existence of explicit gender equality provisions in state constitutions makes them a rich source of law. In a piece analyzing the Pennsylvania ruling, the Columbia ERA Project’s Ting Ting Cheng made the case that state ERAs have “untapped potential to protect and advance reproductive rights.” Nevada and Pennsylvania suggest an increasingly significant role for these long-overlooked provisions.
Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.
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