Biden is using Dobbs when He Refused to Save Roe with ERA!
Biden HAS FAILED to Publish the ERA despite his mandatory, Article II, Section 3, Constitutional duty, to “Take Care” to faithfully enforce 1 US Code §106b, which mandates that the Archivist immediately certify and publish ALL Amendments that are ratified by 3/4 of the States. That failure is an impeachable act, but I doubt the GOP will care because they don’t want the ERA published either!
Biden knew he had the last clear chance and the Constitutional DUTY to save Reproductive Rights before the Dobbs opinion came out by publishing the ERA (see the letter I wrote his White House Counsel on June 17, 2022), but he refused and instead used the demise of Women, Girls & LGBTQ people in the 2022 midterms for votes and money. Then, he STILL didn’t publish the ERA to stop the hundreds of post-Dobbs fascist abortion bans and anti-LGBTQ laws, and now has doubled down on his DUPLICITY and HYPOCRISY in the 2024 election campaign. I wrote his Administration on January 23, 2024 again, begging him and trying to show him that stopping these LIES and publishing the ERA, would far better his campaign’s chances, but again he has refused and his Campaign has doubled down, telling everyone that Trump is responsible for overturning Roe, when the TRUTH is that ONLY BIDEN is RESPONSIBLE FOR OUR CURRENT NATIONAL TRAUMA!
The ERA has been legally ratified for 4 years as of January 27, 2024! NO OTHER AMENDMENT HAS EVER BEEN BLOCKED from publication in the U.S. Constitution LIKE THE ERA, depriving 51% of the population, Women & Girls from being PUBLICLY LEGALLY RECOGNIZED BY THE COURTS OR THE STATE AND FEDERAL GOVERNMENTS as equal citizens! YOU CANNOT HAVE DEMOCRACY WHEN over 51% of the population are 2nd class citizens!
All the proof is included along with a link to my January 23, 2024 letter to the Biden Administration.
✍🏻 PETITION: https://www.change.org/BidenPublishERA
THE TIME TO PROTEST FOR BIDEN TO PUBLISH THE ERA IS NOW because if Trump gets elected, we may not have our Constitution at all. (see Trump’s 2025 Policy Agenda).
FOR ACTIONS YOU CAN TAKE SEE THE BOTTOM OF THIS ARTICLE.
[You may quote me or link to or reproduce this article or letter below in full or by paragraph(s) as long as you provide a link to this article with attribution to me, Arlaine Rockey, Esq. Thank you for sharing it!].
My January 23, 2024 letter to the Biden Administration:
THE ERA: REPRODUCTIVE RIGHTS AND LGBT RIGHTS
Dear Ms. Klein and Ms. Cristobal:
I am an ERA attorney, who represented 86 amici curaie in Equal Means Equal, et al. v. Ferriero, 3 F.4th 24 (1st Cir. 2021) (Dismissed for lack of standing) (See our Supreme Court brief at endnote #1 below), and I represented the proposed amicus curiae, ERA-NC Alliance, in Dobbs v. Jackson, trying a Hail Mary pass to bring the ERA to the Supreme Court’s attention.
Our Motion for Leave to brief on the ERA was filed on May 16, 2022 (#2) and includes arguments about:
● Why the ERA was legally the 28th Amendment;
● That the ERA became legally enforceable on January 27, 2022 (per the two-year time limit in the ERA’s text § 3);
● Why the ERA was the Textual Basis that Justice Alito incorrectly said in the leaked [Dobbs] draft did not exist, even by implication, which was why they were overturning Roe and ruling against the clinic;
● Why the ERA text protected Reproductive Choice;
● By implication, the ERA created a Fundamental Right to Reproductive Choice;
● Since they were using textualism, they needed to consider the entire Constitution, which legally includes the ERA; and
● Despite their Rule that said only a party may bring new legal authority to the Court’s attention, no party had, and the Court should grant us leave to brief the ERA:
○ Because the Amicus Rule says the Court appreciates amici informing them about law that had not been brought to the Court’s attention and
○ Because of the extraordinary circumstances of the case where we were able to read the Alito draft and saw that his textualist reasoning noted hereinabove, which I quoted, was incorrect due to the ERA being legally valid.
(See link to our Motion at the Supreme Court docket, at #2 below. Our Motion was not accepted for filing likely because our client was not a party, yet it sat on the Dobbs docket unfiled until after the opinion came down, then it was removed, but the link still works).
I am only speaking for myself, but I know we on the National ERA Publication Task Force have been doing everything we can to try to get the ERA published, as yet to no avail. On December 5, 2023, Shattering Glass (.org) and 83 other organizations sent a letter to President Biden calling on him to publish the ERA. (#3). Its footnotes have links to important documentation and proof that you should review. What we have now are two of the greatest national traumas our country has ever faced. But with one action, publishing the ERA, President Biden has the ability to fix one immediately and to put a roadblock in front of the other. So please allow me to plead my case.
THE 28TH AMENDMENT, THE ERA, READS:
SECTION 1: EQUALITY OF RIGHTS UNDER THE LAW SHALL NOT BE DENIED OR ABRIDGED BY THE UNITED STATES OR BY ANY STATE ON ACCOUNT OF SEX.
SECTION 2: THE CONGRESS SHALL HAVE THE POWER TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS ARTICLE.
SECTION 3: THIS AMENDMENT SHALL TAKE EFFECT TWO YEARS AFTER THE DATE OF RATIFICATION.
As you must know, both the ERA and reproductive rights are favored by a vast majority of the population 55%-85%, as is LGBT marriage equality. (##4, 5 & 6). President Biden clearly needs to raise his poll numbers above 50%, and he has the perfect vehicle, available in this short window, to publish the ERA on the fourth Anniversary of the RATIFICATION of the ERA this Saturday, January 27, 2024.
[There is no deadline for the President to do his Constitutional DUTY to tell the Archivist to follow the law, 1 USC §106b, to PUBLISH the ERA, per the “Take Care Clause” BUT one would think if he actually cares about WOMEN, GIRLS & LGBTQ people, he would have done it already, & if he wants over 55% of the vote, he would stop lying to us & publish the ERA immediately!!].
I have attempted to cover all the reasons and proof, no matter how harsh some of it may be, why the President must publish the ERA NOW and why it is legal and Constitutionally-mandated for him to do it. So, get cozy and please read it all now, [then report on it, share it, tell everyone and go protest at VP Harris and Biden events], because this is why only the President can and must solve our national Reproductive Rights and LGBT Rights trauma — caused by his impeachable and unconscionable dereliction of his Constitutional and moral duty to publish the ERA before Dobbs came out, and afterwards when he learned of the emotional, physical, reputational, financial, professional, and life-altering harm that is being done to our country and its citizens, and in the face of all that, he has continued his blockade on the ERA.
Publishing the ERA now to stop all abortion bans, as it protects all reproductive rights (including contraceptives [& IVF pregnancy!!]) and as it will reinstate a Fundamental Right to reproductive choice, is President Biden’s moral and Constitutional duty per Art. II, § 3. I am well aware that the President and Vice President have been supporters of the ERA for decades, but the President’s actions and inactions in his Presidency have proven, by the greater weight of the evidence, that he has abandoned women. He has gaslighted and deflected a duty onto Congress that is not their job. Congress’ work is finished. The ONLY person with the ability and Constitutional duty to effectuate the publication of the ERA is him. He knows that, yet he chooses to garner votes and raise money off a promise to “Codify Roe” — when he literally chose not to save Roe by publishing the ERA, after I wrote his White House Counsel on June 17, 2022, two of the Vice President’s lawyers and five other top women in the White House (#7) AND he knows this is a Textualist and Originalist Supreme Court, in which at least three cases are now pending that he could protect simply by picking up a phone or a pen to tell the Archivist to follow 1 USC §106b and publish the ERA. It is the pinnacle of hypocrisy! The ERA is the necessary TEXTUAL BASIS for Congress to be able to Constitutionally “Codify Roe.” Once the ERA is published in a new version of our U.S. Constitution as the 28th Amendment, all persons or entities will be able to use the ERA immediately to demand strict scrutiny (which provides an over 70% chance of getting rid of the bad law, about a 40% better chance than now) for all sex-based discrimination and get injunctions / stays against most immediately, if not all, of these anti-women or anti-LGBT fascist laws, based on the federal ERA.
In my June 17, 2022 email to then White House Counsel, (#7) I was begging the President to publish the ERA immediately before Dobbs came down to save reproductive rights, I explained that:
● President Biden has a Constitutional (Article II, § 3) DUTY to Take Care to faithfully enforce 1 USC §106b, so he must direct the Archivist to follow that law, which gives the Archivist a mandatory ministerial duty to publish ALL Amendments that have been ratified by ¾ of the states immediately. The ONLY requirement for the ERA to be ratified, per Article V, was for it to be ratified by those 38 states. Archivist Ferriero already certified that 38 states had ratified the ERA as of January 27, 2020! (#8).
● The seven-year deadline in the Resolving clause of the 1972 ERA Resolution (not in the actual text of the proposed ERA) is unconstitutional and void ab initio (from the beginning) because it violates states’ rights under the 10th Amendment, since Congress was not provided the power in Article V to set a deadline, unless it is in the text of the actual amendment Congress is proposing.
● The five purported rescissions of previous state ratification of the ERA are also unconstitutional. Ratification is a one way street. Once an amendment has been ratified by a state, it cannot be rescinded (taken back).
● I provided a link to a Chicago Bar article by Michele Honora Thorne, Esq., who did thorough Textualist and Originalist interpretations of the Constitutionality of the deadline in the Resolving Clause and the purported rescissions. (#9)
● I also included a draft Executive Order for the President to use to publish the ERA faster. [I have attached an updated draft EXECUTIVE ORDER as Exhibit A below and put the link at #10].
President Biden’s and Vice President Harris’ actions of using women’s fear and the demise of our Reproductive Rights, and the proliferation of hundreds of fascist state laws, to garner votes and raise money, by promising that if people vote Democratic, Congress will “Codify Roe” is grossly duplicitous, unless the President first tells the Archivist to publish the ERA as the 28th Amendment. He must do it now to put the Supreme Court and the public on notice and to give Reproductive Rights and LGBT rights STRICT SCRUTINY now, this term! IMMEDIATELY.
If the President decides to publish the ERA, a huge concern of mine for them is that the Administration needs to STOP DIGGING A HOLE OF HYPOCRISY AND DUPLICITY immediately, so they can win in November! Here are some blatant examples:
● The initial 2024 campaign announcement video, in which the President asks, do Americans “want more rights or fewer?” while showing protests for reproductive rights and LGBTQ rights.
● The President continued to have his Department of Justice (“DOJ”), which is a part of the Executive Branch, and he’s the boss of the Executive Branch, fight AGAINST ERA publication, until February, 2023, stepping into Trump’s shoes, in two ongoing federal lawsuits brought by WOMEN and GIRLS (Equal Means Equal, et al. v. Ferriero) and the last three states to ratify the ERA (Nevada, Illinois and Virginia - until Virginia elected a Republican governor and he took Virginia out of the lawsuit, but Virginia’s ratification still stands). Both lawsuits were just trying to get the Archivist to publish the ERA in the Constitution – after Trump and his Attorney General Bill Barr told the Archivist he could not publish it, even if the 38th state ratified it, in January 2020, right before Virginia was set to vote and did ratify the ERA, on January 27, 2020. Both lawsuits were dismissed for lack of “standing” which means you have to have an injury to file a lawsuit. Biden’s DOJ argued, just months after Dobbs, that the three states did not have standing because as soon as ¾ of the states ratify an Amendment, it became an actual amendment to the U.S. Constitution, whether it is published or not. So, the DOJ argued that the ERA was either a valid amendment, or if the – [unconstitutional] seven-year deadline was valid, then it would not be an amendment, but either way, since it was already ratified the Archivist’s action of publishing it in the Constitution was irrelevant. OBVIOUSLY, THAT IS NOT TRUE. ONCE THE ERA IS PUBLISHED, IT PUTS THE ENTIRE COUNTRY, ALL THE COURTS AND ESPECIALLY THE SUPREME COURT ON PUBLIC NOTICE THAT THE ERA EXISTS AND THEY CANNOT IGNORE IT ANYMORE. THEY HAVE TO ENFORCE IT and that includes using the highest legal test, strict scrutiny to decide whether the bad law should be struck down! But this is how President Biden’s DOJ got that case dismissed, and PREVENTED THE ARCHIVIST FROM PUBLISHING THE ERA, WHEN IF HE WANTED TO DO THE RIGHT THING, his mandated Constitutional Duty to enforce the law saying the Archivist must publish all amendments that are ratified by ¾ of the states (38 states), HE COULD HAVE JUST HAD THE ARCHIVIST PUBLISH THE ERA,and then the cases would have been MOOT because the only relief they asked for was for the Archivist to publish the ERA. Think of all the thousands if not millions of dollars Biden’s DOJ spent to continue to fight against equal rights for women, who are now literally still legally second-class citizens, and against equal rights for LGBT people.
● The President told LGBTQ people at the 2023 Human Rights Campaign dinner that he “has [our] backs,” when he could have stopped or prevented most of the fascist anti-gay state laws that have been enacted post-Dobbs by publishing the ERA any day! Also, the ERA is the textual basis for any laws to protect LGBT people from discrimination based on sex, so this Administration and the Biden Campaign should not go around promising Congress is going to create those laws if President Biden does not publish the ERA first. (I purposely do not include a “Q” when talking about the ERA, because the word queer is not clear cut and well-defined or necessarily immutable as a class of people in terms of equal protection law. If said queer person is gay or lesbian or bi, they should sue under that theory). [I will also note that I do not think the ERA is necessarily going to stop the state laws against gender reassignment surgery for children. Although parents have a fundamental right to control their children, if it is a case with the parents versus a state, I think the parents might win, and they could try to use the ERA as an extra argument, but all states have an interest in protecting children, so the states will likely argue it is a life-altering procedure and, even if the child says they want it done, children’s brains do not mature until they are about 25 years old, and they would only likely have to wait until they are 18 – or 25 if the state is allowed by the Courts to go that route].
● The President’s January 5th statement regarding the Supreme Court’s failure to enjoin the Idaho law (see Ms. Rockey’s edits of it “to Correct the Hypocrisy” at #11)[below].
● The President sent out a text on January 22, 2024 (1:12pm ET) that said, “I will never stop fighting to protect women’s reproductive freedom. And I’ll continue to call on Congress to restore the protections of Roe in federal law – once and for all.” That cannot happen constitutionally unless President Biden FIRST PUBLISHES THE ERA.
● The Vice President’s speech on the 51st anniversary of Roe, in the Vice President’s kickoff for the Fight for Reproductive Freedoms Tour, she said, “Let me remind you who is responsible for taking away your reproductive rights, President Trump.” [Trump cannot take credit for overturning Roe when the President had the last clear chance to protect us -- as he still does!].
● Even worse and more heartbreaking, this Administration just used a woman who had to leave Texas to get an abortion for a much-wanted pregnancy. Dr. Austin Dennard, an ob-gyn and a party in State of Texas v. Zurawski, et al., in a new January 22, 2024 ad. In it she says, “In Texas, you are forced to carry that pregnancy, and that is because of Donald Trump overturning Roe v Wade…. We need leaders that will protect our rights and not take them away, and that’s Joe Biden and Kamala Harris.” Unconscionable. She talked on Jen Psaki’s show about this national trauma, caused by Dobbs, and referring to the draconian post-Dobbs abortion laws, called this a “lack of mercy” and said, “We’re all suffering.” How is she going to feel when she finds out the truth?
This information noted in this letter will be coming out en masse soon. So, this is a very short window of opportunity to do the right thing. Ironically, it’s also actually the best chess move for the 2024 Campaign, because Gratitude is Stronger than Fear. (#12) You should read that article soon.
The perfect day for an EQUALITY PROCLAMATION is this Saturday, which is the 4th Anniversary of the date the ERA legally became the 28th Amendment on January 27, 2020. This historic Presidential action will be second only to the Emancipation Proclamation. It will be his “BFD” and will have him remembered as a true champion of civil rights!
His infuriating gaslighting January 27, 2022 Statement on the actual date the ERA became legally-effective (per its § 3), without including that was the significance of that date, were like bullets to all our futures, most important our daughters’ and granddaughters’.
He needs to realize that not having control over your reproductive life prevents girls’ and women’s potential success in multiple spheres, educational, economic, professional, political, and personal. It literally will keep women in poverty and in DOMESTIC VIOLENCE relationships! These are some reasons why the ERA makes Reproductive Choice a Fundamental Right (like Roe did).
I think the President’s big plan to use women’s assured demise in Dobbs to get votes in the 2022 midterms had already been hatched. How callous and shortsighted. These horrific choices, after having at least the facade of caring about people, is infuriating! Just think what all these potential voters will do when they realize they were pawns. Because if he truly cared about people, he would change course immediately.
Refusing to publish the ERA during these three years and especially when he could have prevented Dobbs is a national travesty and major failure to protect women as full citizens that will override and dictate President Biden’s legacy if he tries to deflect or postpone again now and refuses to be strong and trust in the people’s GRATITUDE. He needs to realize he has the opportunity to garner millions of good will votes still if he does the right thing right now, before more harmful opinions come down from Trump’s Federalist Society Court, and instead, the President puts our life and death needs first and trusts that the millions of voters will feel like ERA DAY is an actual Independence Day!
There has NEVER been a ratified Amendment to our Constitution that was not published promptly, as far as we know, and certainly none took the three years this President has known it was fully-ratified, as he admitted in his 2020 Agenda for Women!! (#13).
Women had such high hopes for him, particularly because he chose the first woman Vice President. Approximately 50 million women voted for him, and now his Administration is deceiving women to get their votes and money, and has launched a whole campaign tour for the Vice President January 22, 2024, that apparently will continue this hypocrisy if President Biden does not publish the ERA this week!
How many women will die because President Biden failed to publish the ERA? How many women and girls will lose the ability to have children in the future or get prosecuted for a miscarriage? How many doctors will leave their practices because they cannot practice in a state like Texas and risk losing their livelihoods or freedom? How much more damage will the GOP do to our national security by weaponizing Dobbs? It is immoral and dangerous to wait any longer. STOP THIS NATIONAL TRAUMA NOW!
As soon as the Archivist publishes the ERA, it is permanent due to the political question doctrine. (#14). The only way to remove the ERA would be to go through the amendment process in Article V, just like they had to do to get rid of Prohibition. It came in with an Amendment, and it could only be repealed with a new Amendment.
Gina Collias, Esq. and I submitted sworn written testimony to the Senate Judiciary Committee in March, 2023, (#15) which includes not only legal information, but also a portion of the human rights Complaint to the United Nations (due to President Biden’s refusal to stop Roe from being overturned). The Human Rights Committee found egregious violations and said that the United States needs to finalize our Equal Rights Amendment. See a link to the shameful UN Findings. (#16).
Is President Biden going to accept the ultimate RESPONSIBILITY for allowing the Supreme Court to overturn Roe?! Is he going to at least correct it this week, by directing the Archivist to publish the ERA, to ameliorate future damage to women, girls and the LGBT community? If not, what will happen to his reelection campaign when the truth becomes widely publicly known? It’s already public that instead of supporting the ERA, he has deflected his duty onto Congress like some kind of juvenile shell game.
He admitted in his July 22, 2020 Agenda for Women (#13) that “¾ of the states have ratified [ERA].” But then HE ACTUALLY CONTINUED TRUMP's FIGHT AGAINST WOMEN AND PUBLISHING THE ERA in TWO Federal lawsuits through February, 2023! (#17).
The President had the audacity to tell the HRC at their 2023 dinner that he has the “backs” of LGBTQ people. I am a member of that constituency. If he really has our backs, he will publish the ERA now before marriage equality is overturned too! When the President was Vice President, he was the highest official to support marriage equality publicly. It was historic and powerful, because it led to President Obama’s public support too and essentially the legalization of marriage equality. Does he really want to let Secretary Buttigieg’s marriage be invalidated by failing to publish the ERA?
President Biden’s actions and inactions are already on social media and the internet. Further, multiple states and the NC Democratic party and Democrats Abroad, and 84 organizations have called on President Biden to publish the ERA to protect Reproductive and LGBT Rights immediately! (#3 below and its footnotes). In the last footnote to that letter, President Biden is talking with the President of Chile on November 2, 2023, saying, “…I think what happens in the next two, three years will determine what the world will look like for the next five or six decades.” In my opinion, what happens THIS WEEK will determine what our country and world will look like in the next six decades, because if he does not publish the ERA now, fascism wins. TAKE OUR COUNTRY BACK BEFORE IT IS TOO LATE!!
I am a lifelong Democrat and voted for the President and the Vice President, and I will again despite what the President does this week, because I do not want instant autocracy and fascism in 2025. However, I will not be quiet about anything in this letter or otherwise if it involves getting the ERA published in the Constitution. I refuse to stop agitating for EQUALITY! My shero Elizabeth Cady Stanton has taught me to never give up!
This past summer, I went to the 100th Anniversary celebration of the ERA being announced in Seneca Falls by Alice Paul. It was also the 175th Anniversary of the First Women’s Rights Convention there in 1848. Elizabeth Cady Stanton was the first person to publicly call for women’s equal rights and for the right to vote for women in our country. She did not live to see the 19th Amendment published, but I desperately want to live to see the ERA published! I’m afraid if President Biden does not do it now, soon enough to reap the benefits from that historic act, it is quite possible it may never happen. The stakes are way too high to wait to publish the ERA, not to mention that the Supreme Court is set to bury women, girls and LGBT people even deeper than Dobbs did.
I had such great respect for Vice President Harris before she helped the President hypocritically maintain this farce. I cannot imagine that she was not advised by her then General Counsel and her Associate Counsel of my urgent email on June 17, 2022. (#7) It has seemed to me she has been struggling to do everything she can for women and girls, but with both hands tied behind her back, and I think, I hope, she must have tried to get the President to do the right thing. But her statement above on January 22, 2024, with the start of her “Fight for Reproductive Freedoms Tour” made my heart sink.
President Biden: You are not out to protect reproductive rights, because if you were, you would have already done your Constitutional duty to protect them. I don’t know how you will survive in this race if you let this go further. You’re going to have millions of angry women and others who care about them. This situation is a crisis for your campaign. I cannot think of a worse presidential travesty. You are responsible for this, and even if you claim neither your White House Counsel, nor any of the other people copied on it in your Administration, told you about my June 17, 2022 letter, you know the ERA was ratified by 38 states, and that it saves reproductive rights and LGBT rights now. Why else would states be trying to pass state constitutional ERAs?
I will not be campaigning for this ticket if President Biden does not publish the ERA. I became a lawyer to represent battered women (and have represented hundreds), and I have appreciated then Senator Biden’s work on VAWA. But, I am passionate, and I do not give up. When I started and co-chaired the NC non-partisan statewide grassroots effort to eliminate the NC marital rape exemption in 1991, they told me it could not be done. But it finally happened on July 3, 1993, after much work, including with the then NOW Legal Defense and Education Fund, and a glorious speech by our now NC Secretary of State, Elaine Marshall, on the floor of the NC Senate.
In my law practice, I have spent over thirty years, over twenty nationally, representing mothers and a few fathers, “protective parents” trying to protect their children from being physically and sexually abused by the other parent. We need the ERA to protect these children from abuse, because all over our country, there is rampant gender bias happening in custody cases, so much so that mothers who try to protect their children actually LOSE custody to the abuser well over 50% of the time. We need the ERA published now to put Courts on notice and to get strict scrutiny to combat these outcomes! (#18).
Not only did I ask the President to publish the ERA before Dobbs came down, I also started writing the now Honorable Julie Rikelman, of the Center for Reproductive Rights (“CRR”), the clinic’s attorneys, because she did not mention the ERA in oral argument (or their brief, which I honestly had not read before oral argument). On December 6, 2021 I alerted her to file a Motion to submit the ERA as new authority, since it was scheduled to become legally effective on January 27, 2022, and it will protect Reproductive Rights, and only a party could ask to bring new authority to the Court’s attention, per Supreme Court Rules. My multiple attempts to get now Judge Rikelman and CRR to bring the Supreme Court’s attention to the ERA are documented. CRR failed to do so. Yet, as you know, the President nominated her to the 1st Circuit Court of Appeals just a few months after Dobbs came down. I tried to get CRR to argue the ERA in Dobbs and they never even responded, nor did they bring the ERA to the attention of the Supreme Court. I was astounded. I wonder if Jackson Women’s Health knows that they could have won in Dobbs based on the ERA (because with strict scrutiny, you win about 70% of the time to get rid of a law!) if only their lawyers would have brought the ERA to the attention of the Supreme Court, either before or after it became legally enforceable on January 27, 2022? This is why ERA-NC Alliance tried to get the ERA in front of the Supreme Court.
Equal Means Equal is the most effective ERA organization in the country. In fact, its founder and President, Kamala Lopez, who is also on the National ERA Publication Task Force, came up with and successfully implemented the three-state solution to get the ERA ratified. She directed, produced and starred in a great documentary, Equal Means Equal, that you can see on streaming sites. (#19) It came out in 2016, and she used it to help get the three last states to ratify the ERA! [Full disclosure: As of 2023, I am a Legal Advisor to Equal Means Equal (not their attorney)]. Interestingly, Equal Means Equal filed a Motion to Intervene (or in the alternative for leave to file an Amicus Brief) in the Zurawski case in Texas, because the Texas Supreme Court had previously ruled that based on their state ERA, the parties were entitled to have strict scrutiny, but inexplicably CRR, who are the the Appellees' attorneys, did not ASK for strict scrutiny, nor did they argue the federal ERA, which is legally enforceable. (#20).
As I hope you can tell, the ERA needs to be published, so Courts know and do not question that it is the 28th Amendment to the Constitution. That’s all we are asking President Biden to make happen, and he actually has a mandatory Constitutional duty to enforce that law that says that the Archivist shall publish all ratified amendments forthwith. Why would he not want to do that? There are impeachment hearings going on right now in Congress, but I seriously doubt they will go after him for this, because they do not want the ERA published either!
But why does President Biden not want the ERA published? The only reason I can think of, that is right before our eyes, is votes and money. Somebody up there needs to have a talk with him. Maybe the First Lady? Maybe his daughter? Maybe his granddaughters? Maybe President Obama will make a house call?! Please forward this letter to these people if you can. This Administration needs to get on the correct side of history NOW.
REASONS WHY PUBLISHING THE ERA WILL BENEFIT THE PRESIDENT:
● The President should have an additional incentive, because the President’s poll numbers will skyrocket if he does the second most historic act of any President in history and signs an Equality Proclamation, an Executive Order directing the Archivist to publish the ERA, making women and girls (51% of the population!) equal citizens for the very first time in our almost 250 year history and providing equality to LGBT people (and providing a textual basis to “Codify Roe” and for The Equality Act to protect LGBTQ people more broadly), because gratitude is stronger than fear! Then President Biden’s introductory campaign video will be honest because he is proving that he wants us to have “more rights not fewer.”
● President Biden will be showing an act of strength by publishing the ERA. Voters are attracted by strength. We are on a precipice of losing our Democracy, and the United States is on the precipice of losing our stature as a respected country among our allies and our foes. President Biden needs to abide by the Take Care Clause in the Constitution as it is the highest law in our country. I would guess that he does not approve of what Trump did in violation of the Constitution. President Biden has a clear mandatory path to direct the Archivist to publish the ERA this week and a handy Executive Order attached and linked (#10). Ensuring that all citizens are equal and preserving the American ideals of liberty are the bedrocks of our Democracy. The President can quote Justice Antonin Scalia (speaking about immigrants) who said, “What makes an American…is not the name or blood, or even the place of birth, but the belief in the principles of freedom and equality that this country stands for.” (#21)
● If the White House Counsel's office hurries and reviews the attached law and my draft Executive Order (#10), the President could announce it on Saturday, January 27, 2024, the fourth anniversary of the ratification of the ERA. It is doable. In the first paragraph, I used the language from the President’s EO establishing the Gender Policy Council. The draft EO internally cites the new link to the Archivist’s 2020 certifications of the 38 state ratifications, the last of which was Virginia four years ago! (#12).
If the President publishes the ERA, then he and Vice President Harris and other politicians can campaign honestly on a promise of Congress being able to “Codify Roe” and many more ERA-protected laws, including protecting LGBT equal rights broadly with The Equality Act. All persons or entities with standing will be able to use the ERA immediately to demand strict scrutiny for all sex-based discrimination and get injunctions against most, if not all, of the fascist laws, based on the federal ERA. Women can stop being so fearful and can get reproductive healthcare in their own states; clinics can return to red states; doctors can practice medicine properly again (#22); and women, who have miscarriages or abortions, won’t have to worry about getting arrested! They will be so energized, as my favorite president, President Obama used to quote, “FIRED UP AND READY TO GO” to canvas for Democrats this year!! As ERA activist Kamala Lopez said in the Equal Means Equal newsletter, “Publishing the Equal Rights Amendment would encourage voter turnout in numbers we have not seen in decades, and ensure our democracy has a chance to stand, heal, and thrive once again.” (#23). Even more importantly, President Biden will be fortifying our Democratic Republic from the current avalanche of fascism! We will be correcting many of the United Nations Human Rights Committee’s recent recommendations to ameliorate the status of women in our country, and they called for the Equal Rights Amendment! (#16). We will join, albeit embarrassingly late, the vast majority of the modern countries that have equal rights provisions in their constitutions.
One of the two federal cases, in which President Biden continued Trump’s vehement opposition to women’s equality by fighting against women and girls to stop the ERA from being published, was Equal Means Equal, et al. v. Ferriero, which was ultimately dismissed for lack of standing, an outrage. I was lead counsel for the last count, 86, amici curiae, representing millions of people. We wrote the briefs in all three Courts. Our theme was EQUALITY OF ALL CITIZENS IS ESSENTIAL TO AMERICAN DEMOCRACY. We also included much information about how the ERA will help women achieve equality, such as in the legislatures, in which women on average make up less than 30% of the members, but we are 51% of the population. Obviously having our only Constitutional guarantee, the right to vote, for 100 years has not allowed us to achieve parity. Our Supreme Court brief is linked at #1 below.
Do not allow President Biden to miss this opportunity to publish the ERA and announce it on January 27, 2024. There is no better day! No other Amendment had to wait to be published. There is NO action needed by Congress or any Court. This is all in President Biden’s hands. His repeated deflection onto Congress has been despicable, because there is no further legal or necessary role for Congress, and even if there was, it does not negate the President’s Constitutional duty to Take Care to faithfully enforce 1 USC §106b!
If President Biden publishes the ERA, it will be the best gift to women, girls, and LGBTQ people in our history!
[No, I stand corrected: It will be the longest (175 years!) and hardest fought victory for women, girls, and LGBTQ people in our history!].
Thank you.
Arlaine Rockey, Esq.
Sent on January 23, 2024 to:
The Biden Administration: Ms. Jennifer L. Klein, Assistant to the President and Director of Gender Policy Council, and Ms. Gabriela C. Cristobal, Deputy Director of Engagement, OVP. COPIED: Stuart F. Delery, former White House Counsel, Alena Mounce, Nasrina Bargzie, VP Associate Counsel, Neera Tanden, Director, Domestic Policy Council, Emmie Ruiz, Julie Chavez Rodriguez, Campaign Chair, 2024 Presidential Campaign, Jennifer O’Malley Dillon, Erica Loewe, Sofia Carratala, Jeffrey Zients, White House Chief of Staff, Edward Siskel, White House Counsel, Anita Dunn, Steven Ricchetti, Counselor to the President, John McCarthy
***FOR ACTION YOU CAN TAKE, SEE BELOW THE ENDNOTES.***
ADDENDUM:
ALTHOUGH BIDEN CAN and MUST INSTRUCT THE ARCHIVIST TO PUBLISH THE ERA, THE U.S. ARCHIVIST, Colleen Shogan, CAN AND SHOULD JUST PUBLISH THE ERA HERSELF, pursuant to 1 USC §106b, AND SHE WILL HAVE NO REPERCUSSIONS, in my legal opinion, BECAUSE THE 1/8/2020 OPINION FROM TRUMP’s OFFICE OF LEGAL COUNSEL (“OLC”) IS IN ERROR and OLC Opinions are advisory in nature, and it was called into question by a later 1/26/2022 OLC OPINION. — Indeed, on April 5, 2024, U.S. District Judge Ana Reyes, a Biden appointee, in railing at two DOJ attorneys for ignoring Congressional subpoenas, who argued they were justified based on an Office of Legal Counsel opinion, said, “Last time I checked, the Office of Legal Counsel was not the Court.”
THE ARCHIVIST HAS A MANDATORY, MINISTERIAL, STATUTORY, LEGAL DUTY TO PUBLISH the ERA — EVEN WITHOUT CONGRESS OR BIDEN TELLING HER TO DO IT — for the reasons set forth hereinabove, and if she does, the ERA and the Archivist will be protected from Court intervention due to the separation of powers and the political question doctrines (See #14 below) — and the fact is both Article V of the Constitution and 1 USC §106b are stronger than any OLC opinion! The first woman U.S. Archivist will be a shero for all time if she does just follow the law, 1 USC §106b. It is the right thing to do, and sometimes, it just takes a woman!
ENDNOTES
1. In Equal Means Equal v. Ferriero, 3 F.4th 24 (1st Cir. 2021), Ms. Arlaine Rockey, Esq., Ms. Gina Collias, Esq. and Ms. Pamela Parker, Esq. wrote the amici curiae briefs in all three courts for, final count, 86 amici curiae, organizations that represented millions of people, including SAG-AFTRA, Human Rights and Diversity Commission of the Teamsters, Niskanen Center, National Women’s Political Caucus, Elizabeth Cady Stanton Trust, The Alice Paul Institute, Global Indigenous Council, and several NOW, AAUW, and ERA state and local groups. U.S. Supreme Court amici curiae brief, with the theme, EQUALITY OF ALL CITIZENS IS ESSENTIAL TO AMERICAN DEMOCRACY is available here: https://acrobat.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A8be29fdf-6f6c-4edf-944c-3a13348ba9a6
2. Arlaine Rockey, Esq. and Gina Collias, Esq. also tried to get the ERA in front of the Dobbs Court as a Hail Mary pass. Our Motion, on behalf of ERA-NC Alliance (https://www.era-nc.org) seeking leave to file an Amicus Brief, showed why the ERA protects reproductive rights and creates by implication a Fundamental Right to Reproductive Choice, was mentioned and linked to the WaPo article, about the DC Circuit Court of Appeals oral arguments on September 28, 2022 in IL v. Ferriero. Here's a link to our Dobbs Motion for Leave to submit brief on new authority, the ERA. https://www.supremecourt.gov/DocketPDF/19/19-1392/225397/20220516031348036_2022-05-16%20%2019-1932%20Dobbs%20v%20Jackson%20Womens%20Health%20Org%20-%20ERA-NC%20Alliance%20Amended%20Motion%20for%20Leave%20to%20File%20AC%20Brief%20w%20Ex%20A.pdf
3. 84 Organizations’ Publish the ERA Letter to President Biden, 12-05-2023 https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:1509b576-c7c8-453d-8528-347dc911afd3
4. Polling on support for abortion/ reproductive rights, the ERA, and LGBTQ rights. “both the ERA and reproductive rights are favored by a vast majority of the population 55%-85%” https://www.prri.org/research/abortion-views-in-all-50-states-findings-from-prris-2023-american-values-atlas/ https://www.forbes.com/sites/alisondurkee/2023/06/26/how-americans-really-feel-about-abortion-the-sometimes-surprising-poll-results-one-year-after-roe-overturned/
5. Fifty Years Later, Voters Support Passing the Equal Rights Amendment, 6-2-22. “…85 percent of [likely] voters say that they [support] the Equal Rights Amendment, including 93% of Democrats, 79% of Independents, and 79% of Republicans.” https://www.dataforprogress.org/blog/2022/6/2/fifty-years-later-voters-support-passing-the-equal-rights-amendment#:~:text=Despite%20the%20need%20for%20an,and%2079%20percent%20of%20Republicans
6. U.S. Same-Sex Marriage Support Holds at 71% High, 6-5-23. https://news.gallup.com/poll/506636/sex-marriage-support-holds-high.aspx
7. Letter from Arlaine Rockey, Esq. to Mr. Stuart F. Delery, then White House Counsel, on 06-17-22 (This was delayed due to her not having any WH email addresses), explaining President Biden’s Constitutional duty to publish the ERA and that it was critical that the President publishes the ERA immediately to save Reproductive Rights, BEFORE the DOBBS decision, because it would be public notice of new authority (that CRR refused to bring to the Supreme Court’s attention). https://adobe.ly/3buaFSa
8. U.S. Archives– List of certified 38 State ratifications of the ERA https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification-actions-03-24-2020.pdf?_ga=2.126133581.1746651333.1656268097-264669649.1652113592
9. Scalia-style “textualist” and “originalist” legal analysis, methods of constitutional interpretation that the current conservative majority on the Supreme Court use, showing why the deadline and rescissions in the ERA are unconstitutional, by Michele Honora Thorne, Esq. in the Chicago Bar Association Record May-June 2022 issue. https://user-35215390377.cld.bz/CBA-Record-May-June-2022/31/ Also see her more easily understandable Continuing Legal Education (“CLE”) video (35 minutes) at https://youtu.be/9rtRwfX-62w
10. Draft Executive Order for President to Direct Archivist to Publish ERA draft by Arlaine Rockey, Esq. (updated 04-27-24). If White House Counsel hurries and reviews the attached law and draft EO, the President could announce it on Saturday, January 27, 2024, the fourth anniversary of the ratification of the ERA. In the first paragraph, I used verbatim the beautiful language from the President’s EO establishing the Gender Policy Council. The draft EO internally cites the new link to the Archivist’s 2020 certifications of the 38 state ratifications, the last of which was Virginia four years ago! (Certifications link also at #8 above). https://acrobat.adobe.com/id/urn%3Aaaid%3Asc%3AUS%3A8c6d5149-f3c3-47b1-9e03-e3f6f6258670/?filetype=application%2Fpdf
11. Pres. Biden’s Statement on SCOTUS Allowing Idaho Abortion Ban to remain pending appeal 01-05-2024 CORRECTED TO REMOVE THE HYPOCRISY by Arlaine Rockey, Esq. https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:6a44d481-cceb-470a-b4cf-a075bf617d90
12. Gratitude Is Stronger Than Fear, Arlaine Rockey, Esq. and Gina Collias, Esq., re-published, SEE ENDNOTES for proof of everything said in this letter. gratitude-is-stronger-than-fear-president-biden-has-a-constitutional-and-moral-duty-to-publish-th e-equal-rights-amendment-now. https://arlainerockey.com/equal-rights-for-women/dqb6l3ak536nsvhe51ftki73d8rcx8
13. Agenda for Women 07-22-2020 “Now that Virginia has become the 38th state to ratify the ERA, Biden will proudly advocate for Congress to recognize that 3/4th of states have ratified the amendment and take action so our Constitution makes clear that any government-related discrimination against women is unconstitutional.” https://www.presidency.ucsb.edu/documents/biden-campaign-press-release-the-biden-agenda-for-women
14. See United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir. 1986) ("certification of the adoption of [a constitutional amendment by the statutorily-designated federal official] is conclusive upon the courts") (citing Leser v. Garnett, 258 U.S. 130, 137 (1922)) (based on a component of the political question doctrine).
15. Arlaine Rockey, Esq. and Gina Collias, Esq.’s written testimony submitted to the Senate Judiciary Committee’s foregoing ERA hearing, held on 02-28-2023, that gives the reasons that the ERA protects Reproductive Rights. https://arlainerockey.com/equal-rights-for-women/mqu96sapgj95fykz6ndqxiuck3alva Exhibit A is the legal article in footnote 5 (above). Exhibit B is the Motion we filed in Dobbs on 05-16-22 seeking permission to file an Amicus Brief obo ERA-NC Alliance, to show how the ERA protects Reproductive Rights and by implication, provides a Fundamental Right to Reproductive Choice (#9 above). Exhibit C is a DRAFT EXECUTIVE ORDER(“EO”)(linking now to the updated one I drafted on 4/27/2024) for President Biden to sign to publish the ERA (the first paragraph uses the policy language from his 2021 EO creating the Gender Policy Council).Exhibit D is part of the human rights complaint to the UN regarding the loss of reproductive rights since Dobbs.
16. The UN Human Rights Committee Report on USA violations has since been published and it says that the United States “should redouble its efforts to guarantee protection against sex and gender-based discrimination in its constitution, including through initiatives such as the Equal Rights Amendment,” See it here: https://www.tag24.com/justice/activism/united-nations-human-rights-committee-releases-recommendations-to-address-sweeping-us-violations-2991720
17. Nevada Attorneys General Ford and Raoul Issue Statement Regarding Opinion in Equal Rights Amendment Lawsuit 2/28/23 https://ag.nv.gov/News/PR/2023/Attorneys_General_Ford,_Raoul_Issue_Statement_Regarding _Opinion_in_Equal_Rights_Amendment_Lawsuit/#:~:text=Following%20the%20refusal%20of% 20the,ratified%20as%20the%2028th%20Amendment.
18. For more information about protective mothers losing custody to abusers, https://NewDirectionsMustardSeed.com. They are a 501(c)(3) non-profit, helping these mothers and children, and they are the only organization of its kind that I know of. They need donations and help to replicate or expand this program nationally in my opinion.
For the statistics, just google protective parents, mothers, child sexual abuse, custody.
A recent news report about these cases in Utah talks about how abusers claim mothers are lodging false complaints of child abuse just to “alienate” them from the abuser. False claims of “Parental alienation” is a go-to defense of abusers in custody cases. https://ksltv.com/618455/mothers-who-reported-abuse-say-utahs-family-court-system-is-failing-their-kids/
For more information about the dynamics of these cases, you can read my article “Protecting Your Child from Sexual Abuse in Custody Cases” at my website: https://ArlaineRockey.com.
19. Documentary Equal Means Equal by Kamala Lopez “A groundbreaking exploration of gender inequality in the USA featuring top women’s rights activists and leaders. A brutal expose of a broken system, the film reignite[d] the dialogue on full equality for all Americans.” Includes: Gloria Steinem, Rep. Carolyn Maloney, Patricia Arquette, Lakshmi Puri, Bettina Hager, Zuri Marley, Lenora Lapidus, Rev. Charles McKenzie, Jessica Neuwirth, Rep. Jackie Speier, Lori Sokul, Linda Wharton Doc website: https://EqualMeansEqual.com Link to it on Amazon Prime: https://watch.amazon.com/detail?gti=amzn1.dv.gti.aeb15628-7a8a-73e1-e4ef-b128d1ae737d&territory=US&ref_=share_ios_movie&r=web
20. Equal Mean Equal, et al. Motion to Intervene or for Leave to file an Amici Curiae brief in State of Texas v. Zurawski, et al. filed 11/9/23. https://equalmeansequal.org/legal-actions/
21. Scalia Speaks, Antonin Scalia. 2017. Excerpt. https://www.penguinrandomhouse.ca/books/566469/scalia-speaks-by-antonin-scalia-edited-by-christopher-j-scalia-and-edward-whelan/9780525573326/excerpt
22. Doctors Face ‘Perpetual Rollercoaster’ as SCOTUS Prepares to Hear Abortion Cases” 1-21-24 (Many quotes from doctors about the national abortion trauma). https://19thnews.org/2024/01/doctors-emtala-mifepristone-impact-abortion-supreme-court/
23. “Publishing the ERA would encourage voter turnout” Kamala Lopez in https://equalmeansequal.org/december-11-2023-urgent-update-the-eras-centennial-year/
BONUS: Respect People is an “effort to mitigate the contentiousness of the abortion debate in the USA,” to help people learn about abortion, from scientific and philosophical perspectives, and to speak about personal views about abortion in a non-confrontational manner. www.Respectpeople.org
~ ~ ~ ~ ~ ~ ~
THE TIME TO PROTEST FOR BIDEN TO PUBLISH THE ERA IS NOW because if Trump gets elected, we may not have our Constitution at all. (see 2025 Policy Agenda).
ACTIONS YOU CAN TAKE:
Work internally with state and national Women’s Rights and Pro Choice groups like Planned Parenthood, NOW, Stand Up For Abortion Rights, ERA Coalition, Women’s March, and progressive groups to spread the word that:
Congress cannot Constitutionally protect Reproductive Rights unless Biden first publishes the ERA;
Biden has a Constitutional DUTY per Art II, §3 to tell Arhivist to publish the ERA NOW
BIDEN IS LYING TO US & Refusing to do the one thing that can protect us from fascist anti-LGBT LAWS —> PUBLISH THE ERA!
Work internally with state and national LGBTQ rights groups like Human Rights Campaign, GLAAD, and progressive groups to spread the word that:
Congress cannot Constitutionally protect LGBT Rights unless Biden first publishes the ERA;
Biden has a Constitutional DUTY per Art II, §3 to tell Archivist to publish the ERA NOW
BIDEN IS LYING TO US & Refusing to do the one thing that can protect us from fascist anti-LGBT LAWS —> PUBLISH THE ERA!
Work internally within the DNC and State Democratic Party groups, including Democrats Abroad, to get them to call on President Biden to publish the ERA and to call out Biden and VP for their hypocrisy and duplicity and using fear to garner votes and money. Become a delegate to the DNC Convention.
JOIN, Work with and DONATE to, Follow on Social Media, and sign up for newsletters from and zoom calls with to these national ERA ACTIVIST GROUPS:
EqualMeansEqual.org (go through their website thoroughly)
The Young Feminist Party (fka Generation Ratify)
Shattering Glass
National ERA Publication Task Force (send your interest in joining us to Info@ShatteringGlass.org).
Facilitate coverage on TV, print, online news, and Reproductive Rights, Feminist, political, LGBTQ, anti-fascist, and DEMOCRACY, PODCASTS to have shows telling the truth about the ERA being already ratified and legally valid and the President having the Constitutional DUTY to tell the Archivist to publish it now. Kamala Lopez, I and others on the National ERA Publication Task Force, including an OB-GYN, are working tirelessly to spread the truth and the legal truth about Biden’s CONSTITUTIONAL DUTY to publish the ERA and his despicable hypocrisy re Dobbs!
Use, create for, and re-post on Social Media about the ERA DEMANDING BIDEN PUBLISH THE ERA.
Lawyers should raise and argue in trial courts, briefs, certiorari petitions, for protection of your clients by the ERA and argue for STRICT SCRUTINY in all cases in which there is discrimination or bias based on sex.
JOURNALISTS should write ABOUT HOW BIDEN SHOULD and has a Constitutional DUTY TO PUBLISH THE ERA TO STOP these fascist laws against women, girls and LGBT people
TV PUNDITS SHOULD TALK ABOUT HOW BIDEN SHOULD and has a Constitutional DUTY TO PUBLISH THE ERA TO STOP these fascist laws against women, girls and LGBT people
STATE ERA, Pro-Choice, Women’s Rights, Millennials, LGBTQ, and progressive organizations can and should push their national, more reticent organizations to champion the importance of demanding that President Biden publish the ERA NOW to deserve their vote! WE DO NOT NEED STATE ERAs, although having them on the ballots will bring out progressive voters, but truly, this is no time to cower in the face of political power! You can still vote Democrat in the general. But we must pressure Biden to come clean and stop lying to us and using us!
Corporations and influencers NOW is the time to pressure Biden to publish the ERA!
EVERY PERSON WHO CARES ABOUT DEMOCRACY SHOULD BE TAKING ACTION NOW. There is too much at stake, every day. Think of the pending cases in the Supreme Court. Think of the people challenging STATE FASCIST LAWS. Their ability to get injunctions to immediately stop those draconian laws and to win their lawsuits goes up about 40%, up to 70%+, with STRICT SCRUTINY provided by the ERA.
#BidenPublishERA
REPOSTED FROM EqualMeansEqual.org/news. This lists my attempts to get the Center for Reproductive Rights, the attorneys for the clinic in the Dobbs case to argue the ERA and strict scrutiny, which they inexplicably failed to do. They have also failed to do so in other cases, even at least two in Texas in 2023.
