Nicole Vorrasi Bates and Jean Sweeney
Democrats Have Key to Unlock Equality for All and Save Roe
May 18, 2022. The country is reeling from the unprecedented leak of a draft opinion of the Supreme Court ("SCOTUS") in Dobbs v. Jackson Women's Health Organization. It would overturn Roe v. Wade and endanger women’s rights to bodily autonomy and reproductive freedom as well as threaten numerous other existing rights, including contraception, same sex marriage, interracial marriage, and equality for all.
Democrats responded to the draft Dobbs opinion by forcing a second vote in the Senate last week on the Women's Health Protection Act, which would have protected reproductive rights, after their first vote failed a mere two months ago.
When the vote failed again, President Biden issued a statement, acknowledging that “this failure to act comes at a time when women's constitutional rights are under unprecedented attack – and it runs counter to the will of the majority of American people.’"
Vowing to continue fighting for women’s constitutional rights, he further stated “Republicans in Congress – not one of whom voted for this bill – have chosen to stand in the way of Americans’ rights to make the most personal decisions about their own bodies, families and lives.”
However, that statement is disingenuous – a mere smoke screen.
What many Americans do not realize is that right now, today, there is a powerful tool to save Roe v. Wade and equality for all, and it’s quite simple: Publication of the Equal Rights Amendment ("ERA"). In fact, President Biden can make this happen on his own with a phone call.
The ERA has been ratified and became the 28th Amendment to our Constitution on January 27, 2020, the date Virginia became the 38th state to ratify the ERA.
The 28th Amendment provides:
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.
The ERA became the law of the land on January 27, 2022.However, the ERA has yet to be published in the Constitution - initially because the Trump Administration unlawfully blocked publication, inserting its political views into the constitutional amendment process where the sole role of the Executive Branch is the ministerial act of receiving the ratifications and publishing a revised Constitution.
Many expected the Trump Administration would do anything and everything it took to block and undermine the ERA. However, no one anticipated the continued undermining by the Biden Administration. After campaigning hard on its dedication to women and support for the ERA, it has not published the ERA, despite acknowledging that the ERA has been ratified. In fact, the Administration continues to fight against the ERA in Court all while issuing press releases pledging support for the ERA and calling on Congress to act – as if it was in Congress’s control.
So, taking a step back, how does the ERA save Roe?
In 2011, prior to the ratification of the ERA, Justice Scalia noted “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that is what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex hey, we have things called legislatures and they enact things called laws.”
Justice Scalia, a textualist/originalist like the majority of the current SCOTUS, disregarded the precedents that, beginning in 1971, applied the Equal Protection clause of the 14th Amendment to sex-based discrimination, albeit at the lesser “intermediate scrutiny” standard of review, and looked solely to the words in the Constitution.
The majority in the draft Dobbs opinion makes clear it agrees with Justice Scalia when it (1) states “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” (2) denies the implicit application of the 14th Amendment’s Due Process Clause, and (3) applies the lowest standard of review – the rational basis standard.
However, in the draft Dobbs Opinion, the SCOTUS majority noted:
When one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend.
Our Constitution has in fact been amended by the ERA to guarantee women equal protection of the laws, an argument summarily dismissed by SCOTUS in the draft Dobbs opinion. With immediate ERA publication, the parties in Dobbs may seek leave to file supplemental briefs given the inclusion of the ERA in the Constitution, and the Court should apply the highest standard of review – strict scrutiny – making it far more difficult to deny women reproductive rights. However, without publication, SCOTUS is free to apply the lowest standard of review and overturn Roe.
Although not germane to the issue of publication, there are arguments against the ERA’s validity – specifically (1) the time limit for ratification expired, so the last three ratifications are invalid, and (2) that five states rescinded their ratification. However, refuting these arguments, there are no words in the Constitution to support either Congressional time limits or recission, to which hundreds of Constitutional Scholars agree. Importantly, the draft Dobbs opinion makes clear that SCOTUS will look to the actual words of the Constitution, which would include the 28th Amendment. In any event, those decisions are for the courts, not a President or a librarian to decide.
It should be noted that Senators Blumenthal, Klobuchar, Cortez Masto and Congresswomen Maloney and Spier have urged the Biden Administration to publish the ERA.
In contrast, Senators Portman, Romney and Johnson, as well as Senators Lankford (who is supporting a federal ban on abortion), Graham, Hyde-Smith, Lee, Boozman, Daines and Moran wrote to the U.S. Archivist (the librarian in the Executive Branch tasked with counting the certifications and publishing a new Constitution) and demanded that he not publish the ERA. It appears that they too recognize the impact the ERA has on challenges to Roe v. Wade.
We have corresponded with and have had countless meetings with Senators and the Biden Administration, and they are all aware of the clear path the ERA presents to save Roe and cement equality for all. Unfortunately, you would not know that from the Democrats’ official communications and press releases that fundraise (off women’s rights) and simply urge Americans to vote smarter, we suppose, in the future. Women have voted smartly since granted that right by men a mere 102 years ago and recently came out in droves to support the Democrats in 2020. Yet look where we are today.
The Administration can save Roe and equality for all, but it must stop playing politics with our rights and our lives. It is past time for President Biden to get this done by immediately directing publication of the ERA, guaranteeing equality for all and clearing the way for “Americans’ rights to make the most personal decisions about their own bodies, families and lives.”
Nicole Vorrasi Bates is the Founder and Executive Director of Shattering Glass, a non-profit dedicated to the fight for gender equity and equality, a key component of which is the Equal Rights Amendment. She is a coach of youth sports and had a three-decade career as an attorney, specializing in corporate tax law.
Jean Sweeney is a New York attorney and founder and president of Rethinking Eve, LLC a website exploring Equality Literacy. She is also part of a group of activists who are passionate about getting the Equal Rights Amendment ratified.