President Biden: Publish the ERA to Protect Women’s Reproductive Rights
If You Believe in Freedom,
I offer you an idea to quickly get the duly-ratified Equal Rights Amendment (“ERA”) published in the Constitution as the 28th Amendment.
I have it On good authority that THE ARCHIVIST PERSONALLY WANTS TO AND WOULD BE HONORED TO PUBLISH THE ERA, and he clarified that he does NOT need a Court Order to do it!
So, please implore President Biden to tell the Archivist to publish the ERA. He can do it with a phone call or an Executive Order. He can do it without interfering with the Dept. of Justice (“DOJ”) or its Office of Legal Counsel (“OLC”). It’s easy:
Sign & share or RT this Petition demanding that President Biden publish the ratified #ERA NOW as the #28thAmd to SAVE #ReproductiveRights ⚖️ chng.it/Gm296c9Q9M
Also write to President Biden & Vice-President Harris here weekly https://www.whitehouse.gov/contact. Send them the links to this blogpost bit.ly/3J7qz18 and the Executive Order adobe.ly/3FeU91l.
I drafted a proposed Executive Order, so the White House can envision how it can be written. You can find it at adobe.ly/3FeU91l, and I have provided a copy below for your review.
Due to representing over 80 organizations, amici curiae, in the Equal Means Equal et al. v. Ferriero ERA case, in the First Circuit Court of Appeals [which recently in Jan. 2022 denied the request for en banc review], seeking an Order directing the Archivist to publish the ERA, I am well-steeped in the legal issues involving the ERA.
Because of the filibuster, it is unrealistic to believe that the Senate will be able to pass the ERA resolution OR the Women’s Health Protection Act, and the prospect of going to the Supreme Court seems perilous at this juncture.
Our freedom to control our reproductive lives requires that we get this Executive Order and this critical information to President Biden very soon regarding the importance of having the ERA published immediately to protect reproductive rights.
Women have literally been fighting for equal rights for 245 years. Our amici brief actually talks about that history and also how the equality of all citizens is critical to democracy. We also review many ways the ERA will benefit women and families. You can read a copy of our amici brief, from when the Plaintiffs sought Supreme Court review prior to a decision in the First Circuit, here: adobe.ly/36TrfVs.
The Executive Order is self-explanatory and includes why the seven-year ratification deadline is unconstitutional and void ab initio because, being placed in the Preamble, not the actual text of the ERA, it violated the states’ equal amendatory power under Article V as well as the states’ rights under the 10th Amendment, because the states had no opportunity to vote up or down on the time-limit language in the Preamble. States can only vote on language that is actually in the text of the proposed amendment, according to Article V of the U.S. Constitution.
The President also has authority to use this Executive Order based on his constitutional duty to “take care that the laws be faithfully executed,” U.S. Const. Art. II, Sec. 3, because:
1) the ERA legally became the 28th Amendment on Jan. 27, 2020 when Virginia became the last necessary state to ratify it;
2) the Constitution is the highest law of the land; and
3) the Archivist has a mandatory, ministerial duty to publish Amendments when they are ratified by ¾ of the states. 1 USC §106b.
Some of you may know that the 27th Amendment, that was ratified over 200 years after it was sent to the states, had many legal minds debating its validity, but it was published forthwith.
Another reason to have the ERA published immediately is that I believe the ERA will make reproductive choice a fundamental right, because historically the reason women have been discriminated against is because only women can give birth.
Women cannot be truly equal unless they can control their reproduction; thus, with the ERA published in the Constitution, we will have a fundamental right to control our own reproductive choices.
In the oral argument in Dobbs on December 1st, 2021, Justice Amy Coney Barrett actually, without realizing it, acknowledged why the ERA will provide a fundamental right for reproductive choices. Justice Coney Barrett acknowledged arguments that women’s right to control their reproductive choices is NECESSARY TO WOMEN’S EQUALITY! Justice Coney Barrett said: “And insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace, and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy….”
Even the National Catholic Register bolstered the argument that the ERA would provide a strong constitutional basis for the fundamental right for reproductive choices, when it accidentally lauded Justice Coney Barrett, for essentially saying that
[having the right to control their reproductive choices was a] “precondition for women’s liberty and equal opportunity.”
In a recent Bloomberg Law article, it stated that Alabama’s Republican Attorney General expressed concerns that the ERA could prompt lawsuits against states’ laws restricting abortions, even ones that were already found to be constitutional without the ERA in the Constitution! [3]
If the ERA is published now, the Solicitor General and Jackson Whole Women’s Health can ask for leave to re-brief on an alternate theory, using the ERA to support women’s fundamental right to make their own reproductive choices, which requires the highest “strict scrutiny” in judicial review.
The ERA will also finally give laws that discriminate based on sex the strongest “strict scrutiny” in Equal Protection cases. Such an argument could be made in the Texas Bounty Hunter case, because the state’s intent was to prevent only women and girls from being able to exercise their reproductive rights (to have an abortion after six weeks) — not men and boys (for example, the state is not preventing them from getting vasectomies!), so the Plaintiffs can seek leave to amend their Complaint(s) to include an equal protection argument.
Some people who are not well-versed in Constitutional law have claimed that states can rescind their ratification of the ERA (or any other proposed amendment). But Article V of the Constitution, which provides the only method for modifying the Constitution, does NOT allow for rescissions after a state has ratified. Think about Prohibition. The only way to get rid of that Amendment was for 3/4 of the states to ratify another Amendment declaring there was no longer a prohibition against alcohol. Also, after the14th Amendment was ratified, there were some states that tried to rescind their ratifications, but they were not recognized. Once Virginia became the last necessary state to ratify the ERA on January 27, 2020, the ERA became duly ratified. Then the Trump Administration blocked its publication as the 28th Amendment by the Archivist with an OLC Opinion. For more on the legal arguments, see the Executive Order below and my October 6, 2021 blogpost.
If the ERA is NOT published & SCOTUS takes away our Fundamental Right to control our own Reproductive Choices, the Democrats are going to have a helluva lot of ANGRY women and pro-choice Americans to deal with now and in 2024.
Securing equal rights and reproductive rights for women is supported by the majority of Americans! President Biden, you can fix this, with a call or a signature on an Executive Order, telling the Archivist to Publish the ERA as the 28th Amendment now!
A 2020 Pew Poll showed that 78% of Americans favor the ERA.[1] Further, a 2021 Pew Poll revealed that 59% of Americans agree women should have reproductive choice.[2] There is a two-year lag in the text for enforcement, so as of Jan. 27, 2022, the ERA can be enforced and Congress can use the ERA’s authority to make laws based upon it.
Thank you for sending the Executive Order and this blog to President Biden promptly and asking him to take swift action. Publishing the ERA will likely be the most historic act he does. It will be his Women’s Equality Proclamation. Lincoln’s Emancipation Proclamation was also an Executive Order.
The ERA is critically important, not just for the benefits it will bring to women and their families, as set out in our brief, but also because it may be the only hope to protect women’s reproductive rights.
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PROPOSED EXECUTIVE ORDER FOR PRESIDENT BIDEN TO DIRECT THE ARCHIVIST TO PUBLISH THE EQUAL RIGHTS AMENDMENT
Executive Order ________ of January _______, 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.
Men will also benefit from the Equal Rights Amendment, because there are laws that treat men more harshly simply because they are men. In Bostock v. Clayton County, 590 U.S. 1731 (2020), the Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex’’ covers discrimination on the basis of gender identity and sexual orientation. Under Bostock’s reasoning, the Equal Rights Amendment that prohibits discrimination based on sex will also likely benefit people who face discrimination based on gender identity and sexual orientation.
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 record 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 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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[1] https://www.pewresearch.org/social-trends/2020/07/07/a-century-after-women-gained-the-right-to-vote-majority-of-americans-see-work-to-do-on-gender-equality/
[2] https://www.pewresearch.org/fact-tank/2021/05/06/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases/
[3] https://news.bloomberglaw.com/daily-labor-report/equal-rights-amendment-litigation-likely-to-ramp-up-in-new-year
