Last Hope for Reproductive Rights ⏰ Pres. Biden ✍🏻 this Executive Order
— BREAKING NEWS BELOW—
WOMEN ARE UNDER ATTACK!!
PRES. BIDEN HAS A CONSTITUTIONAL DUTY TO ACT NOW TO PUBLISH THE ERA TO SAVE THE REPRODUCTIVE RIGHTS & LIVES OF WOMEN & GIRLS
(scroll to bottom FOR A DRAFT EXECUTIVE ORDER & to see new video from Equal Means Equal on this issue)
updated 3 June 2022
Attorneys Arlaine Rockey and Gina Collias have filed a Motion for Leave to File an Amicus Curiae Brief, on behalf of ERA-NC Alliance on May 16, 2022, in the United States Supreme Court case, Dobbs v. Jackson Women’s Health Organization, seeking permission to bring to the Court’s attention the legal, textual basis to protect women’s reproductive freedom, found in the text of the Equal Rights Amendment, the 28th Amendment to the Constitution, that was fully ratified and became part of the Constitution on January 27, 2020, and became effective on January 27, 2022, which was after the deadline for briefs to be filed and the oral arguments held on December 1, 2021.. Read a copy of the motion here. Read attorney Michele Thorne’s Scalia Textualist & Originalist Constitutional analysis we cited that shows the #ERA deadline is unconstitutional & that rescissions are not a thing. Watch excellent free VIDEO with Thorne explaining it fully.
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I thought having a Democratic FEMALE VP & Speaker of the House & a President who ALL ALLEGEDLY CLAIM to support Women’s Rights, the ERA specifically, & Women’s Reproductive Freedom, that President Biden would actually have already ordered the Archivist to publish the fully-ratified ERA, WHICH IF PUBLISHED BY BIDEN BEFORE THE DOBBS OPINION COMES OUT (as it’s his Constitutional Duty per Art. II, §3, Const.) (see draft Executive Order below) COULD & SHOULD LITERALLY STOP SCOTUS, using their own textualist method of interpreting the Constitution, from incinerating women’s reproductive rights!
SCOTUS SEEKS TO DECIMATE WOMEN’s RIGHTS, YET BIDEN REMAINS SILENT ON ERA PUBLICATION. Read this blogpost by the strongest ERA activist I know, Kamala Lopez, director+ of the ERA documentary, Equal Means Equal (watch it), and founder & Exec. Dir. of the grass roots ERA advocacy organization by the same name (join it).
From Kamala Lopez’ blog above:
Alito claims that Roe falls because privacy is not a Constitutional right and that the text of the Constitution must explicitly provide for that which women assert.
Guess what, pal? Women have EQUAL rights now under the Constitution, as of January 27th of 2020 when Virginia became the 38th state to ratify ERA.
The E.R.A. became effective Federal law two years after ratification, on January 27th of 2022….
Why is no one in power taking the proper action?
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The Supreme Court opinion in the abortion rights case, Dobbs v. Jackson Women’s Health Organization, will come down any day, definitely in June, if the Court does not grant ERA-NC Alliance Leave to file its Amicus Curiae brief.
Many abortion rights advocates are already resigned that the Supreme Court will decimate women’s Reproductive Rights and are forecasting what our “post-Roe World” will entail: states free to make abortion illegal altogether or to limit it to before 6 weeks of pregnancy (like TX) or to before 15 weeks (like MS & FL) have now. Another right that will be decimated, if Roe is overturned, could well be BIRTH CONTROL, because that’s also based on the fundamental right to privacy, the same non-textual legal theory that made contraception legal in the 1965 Griswold case. For more information on the right to privacy and the reasoning behind these cases, listen to Attorney Kate Kelly’s Podcast: Ordinary Equality: “What’s at Stake: Roe v. Wade.”
“The Equal Rights Amendment Is a Comprehensive Fix That Can Save Roe” From Kate Kelly on OprahDaily.com. Abortion and trans rights should be touted as pressing reasons we need the ERA more than ever,” says attorney, activist, and author Kate Kelly. “…[T]he federal ERA would also provide a constitutional hook for Congress to pass more progressive laws that not only codify Roe but move beyond the limited privacy framework to make abortion more accessible to all.”
Kelly writes: One “clear path to get the ERA over the finish line: President Biden could simply instruct the national Archivist to certify and publish it” Since the Dobbs opinion will be out in one to two months, President Biden must tell the Archivist to publish the ERA now!
NEW OP-ED in LA Times on 5-23-22 by attorney Kate Kelly, former Counsel to the House Oversight Committee, author of Ordinary Equality. “The best way to protect abortion rights? Finalize the Equal Rights Amendment”
Read former law professor Ben Davis on the Alito leaked draft. “Sanctimonious Barbarity: The Forced Pregnancy Alito Draft”
The only way to STOP the five Textualists (who require the basis for a right — here, equality for women — be written in the Constitution), the majority of Justices on the Supreme Court, is for President Biden to sign an Executive Order (draft below & here at pg. 4) NOW directing the Archivist to publish the Equal Rights Amendment (“ERA”), BEFORE the Supreme Court issues their Dobbs opinion, so the U.S. Solicitor General and the attorneys for Jackson Women’s Health Organization can file Motions for permission to re-brief the case based on new legal arguments provided by the ERA, the 28th Amendment.
For a DEEP DIVE into all the LEGAL REASONS the President can, and has a Constitutional DUTY to, PUBLISH the ERA NOW, see my legal opinion letter here—> https://adobe.ly/3kYUwp4
These arguments should include that the ERA provides a TEXTUAL BASIS for a FUNDAMENTAL RIGHT to Reproductive Choice (including abortion & contraception, among others things), which requires the highest judicial scrutiny (“strict scrutiny”), and include a 28th Amendment Equal Protection argument that, since the Mississippi anti-abortion law only curtails WOMEN’s reproductive rights but not MEN’s (eg., there is no law preventing men from getting vasectomies or forcing them to), and since the ERA makes sex/gender a “suspect class” that now requires the highest judicial scrutiny (“strict scrutiny”), under either legal theory, the Dobbs 15-week abortion ban is unconstitutional.
Here is a Bullet Point Summary of my three-pronged strategy to Save Reproductive Rights by the President having the ERA published, so that the Attorneys in the Dobbs case can move to make new, stronger legal arguments based on the ERA, and also to protect the ERA (meaning also Reproductive Rights) from the Courts by making it more likely that the ERA will be a non-justiciable Political Question over which the Courts would not take jurisdiction. I have also attached to it the draft Executive Order and Substitute Resolution to help make the ERA a Political Question.
Two constitutional law scholars have recently stated that there is nothing legally preventing the Archivist from publishing the ERA in the Constitution as the 28th Amendment now. See Letter from former Rep. Carolyn Maloney, the then Chair of the House Oversight Committee with the opinions of Professor Laurence Tribe and former Senator Russ Feingold.
President Biden has a constitutional duty, per Art. II, §3, to “take care that the laws be faithfully executed” (carried out), to immediately direct the Archivist to publish the ERA under 1 USC §106b (Archivist shall publish amendments immediately once they are ratified by 3/4 of the States — 38 States now—per Art. V, U.S. Const., which is a non-discretionary, ministerial duty) and because the ERA automatically became the 28th Amendment to the Constitution (the highest law in the United States) on January 27, 2020, the date the last necessary of the 38 states, the Commonwealth of Virginia, ratified the ERA. President Biden can do this with a telephone call or an Executive Order, which is a proper method of telling parts of the Executive Branch what to do. (See a draft Executive Order below and here at pg 4, in which I used the same first Policy paragraph that was in the Executive Order that President Biden signed to create the White House Gender Policy Council, so he should have no problem signing this one).
Further, PRESIDENT Biden’s own DEPARTMENT of Justice (“DOJ”), is (& has been since Trump and AG Bill Barr were in office) fighting against the ERA in the cases seeking a court order to force the Archivist to follow the law (1 USC §106b) and PUBLISH THE ERA as the 28th Amendment.
However, even President Biden’s DOJ, in the Archivist’s legal brief filed March 4, 2022, in the D.C. Circuit Court of Appeals, admits that “[T]he Archivist’s certification [& publication] decision does not have any effect on the validity of a constitutional amendment. Rather, as the plaintiffs themselves recognize, the amendment process is complete when three-fourths of the States properly ratify a proposed amendment, whether the Archivist publishes the amendment or not.” Illinois, et al., v. Ferriero, D.C. Circuit Court of Appeals, case #21-5096. Archivist’s Brief at 18-19.
President Biden can and must tell the Archivist to publish the ERA immediately because if it is actually published as the 28th Amendment immediately, there will at least be a much better chance the Supreme Court will not overturn Women’s Fundamental Right to to Reproductive Choice.
The short reason why the ERA will create a FUNDAMENTAL RIGHT for abortion and other reproductive rights is:
Women have not been and cannot be truly equal citizens in our society, which is the intent and the requirement of the ERA, unless they can control their reproduction.
For more detailed reasons why the ERA will create a FUNDAMENTAL RIGHT to abortion and all Reproductive Choices, see my last blogpost, “Carpé Diem, Mr. President.”
Activist Attorney Kate Kelly is also sure that once published the ERA will protect abortion and contraception rights. “Other states have had similar successes under their state-level ERAs, and this has positive implications for abortion litigation on the federal level with an ERA in place. In addition to shoring up abortion access in court, the federal ERA would also provide a constitutional hook for Congress to pass more progressive laws that not only codify Roe but move beyond the limited privacy framework to make abortion more accessible to all.”
Also, listen to the March 16, 2022 podcast “Spill the Coffee” with The Gala Sisters, who invited me to talk about the ERA, why it is so important for President Biden to publish the ERA NOW, and why publication of the ERA is our LAST CHANCE TO SAVE REPRODUCTIVE RIGHTS. Thank you Rachel and Rhea for having me! Here is a list of Corrections to a few things I said on this podcast.
A new May 2022 poll found that 85% of all likely voters support the ERA, including 79% of Republicans, and Congress passing it. (The poll incorrectly assumed the deadline was valid and that the ERA would have to be passed again — start over). 60% of Americans want abortion to be legal. By party, 84 percent of Democrats and 63 percent of independents want abortion to be legal, versus just 33 percent of Republicans, based on an NBC News poll in May 2022 after the Alito draft abortion opinion leaked
I think it would help Biden’s poll numbers if he signed this Executive Order publishing the ERA, because that new poll showed 93% of Democrats support the ERA and 84% of Democrats think abortion should be legal — and because he will be a hero in the eyes of the vast majority of Americans who support equal rights for women and reproductive rights.
Please call, email, tweet, Instagram, and post on all your Facebook groups, this Blogpost (https://bit.ly/3CVPxxw) and the podcast above (https://youtu.be/1y9wZNbZXKE) to all Democrats in Congress, to the President, to Vice President Kamala Harris, their staff (search “46” on Twitter for them), and ALL feminist and Democratic organizations. Tell them this is our LAST CHANCE TO SAVE REPRODUCTIVE RIGHTS!
Do it for your sisters, daughters, and granddaughters! Consider, as the old saying goes, the life you save may be your own. Thank you!!
President Biden’s Executive Order will be the historic Women’s Equality Proclamation!
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PROPOSED EXECUTIVE ORDER FOR PRESIDENT BIDEN TO DIRECT THE ARCHIVIST TO PUBLISH THE EQUAL RIGHTS AMENDMENT
Executive Order ________ of June ____, 2022
Publishing the Ratified Equal Rights Amendment as the 28th Amendment to the United States Constitution
By the authority vested in me as President by the U.S. Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. Advancing gender equity and equality is a matter of human rights, justice, and fairness. It is also a strategic imperative that reduces poverty and promotes economic growth, increases access to education, improves health outcomes, advances political stability, and fosters democracy. The full participation of all people—including women and girls—across all aspects of our society is essential to the economic well-being, health, and security of our Nation and of the world.
It is therefore the policy of my Administration that every person should be treated with equality under the laws of the United States and of every state therein and should face no discrimination on the basis of sex. Since the founding of our country, some 245 years ago with the Declaration of Independence, women have been subjected to invidious discrimination inflicted by the laws of this country and its several states. Because equal rights for women have not been explicitly written in the U.S. Constitution, women have continued to suffer legal, societal, and personal indignities and discrimination, physical and sexual assaults that often go unreported or un- redressed in criminal courts, unequal pay for equal work as men, lack of parity in the economic, professional, educational and political spheres, and unequal treatment and bias in the legal system. Women have been deprived of the full benefits of the Equal Protection Clause of the Fourteenth Amendment. Without the Equal Rights Amendment published in the U.S. Constitution, women are subjected to a lesser standard of judicial scrutiny, than the strict scrutiny the new 28th Amendment will provide, meaning that women have heretofore suffered more discrimination without the benefits of the Equal Rights Amendment.
It is also the policy of my Administration that the January 6, 2020 Opinion, of the Office of Legal Counsel, on the Ratification of the Equal Rights Amendment, Opinions of the Office of Legal Counsel of the Dep’t of Justice, 44 Op. O.L.C. (released January 8, 2020), was improvidently and wrongly decided, because the deadline in the Equal Rights Amendment was placed, not in its text, but solely in the Preamble, which unconstitutionally interfered with the States’ rights under Art. V and the 10th Amendment of the U.S. Constitution. Being unconstitutional, the deadline is void ab initio.
Three-fourths of the states have ratified the Equal Rights Amendment, in accordance with Art. V of the U.S. Constitution, with the last three states being Nevada and Illinois, in 2017 and 2018, respectively, and the thirty-eighth, the Commonwealth of Virginia, which ratified the Equal Rights Amendment on January 27, 2020, which date is and shall be known as the date the Equal Rights Amendment was fully ratified.
It is the policy of my Administration to prevent and to combat discrimination on the basis of sex, and to do so by publishing the Equal Rights Amendment forthwith as the 28th Amendment to the U.S. Constitution.
On March 24, 2020, the Archivist of the United States recorded Virginia’s ratification with a notation that said ratification occurred after the void deadline expired. On the same date, the Archivist added the same notation to the previously recorded ratifications of Nevada and Illinois. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION: EQUAL RIGHTS AMENDMENT, LIST OF STATE RATIFICATION ACTIONS (https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification- actions-03-24-2020.pdf).
It is the policy of my Administration that the Archivist of the United States, shall remove the aforementioned notations, and per 1 U.S.C. § 106b, that the Archivist of the United States shall forthwith certify that the Equal Rights Amendment was duly ratified on January 27, 2020.
Sec. 2. Specific Provisions. (a) Consistent with the policies set forth in section 1 of this order, the Archivist of the United States shall remove the aforementioned notations, with regard to the void deadline, to the ratifications of Nevada, Illinois, and Virginia.
(b) Consistent with the policies set forth in section 1 of this order, the Archivist of the United States shall certify and publish the Equal Rights Amendment forthwith as the 28th Amendment to the U.S. Constitution.
Sec. 3. General Provisions. (a) Except as stated hereinabove and as are the natural and legal consequences of the publication of the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution, nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Archivist of the United States or the Office of Legal Counsel.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
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