September 24, 2022. Biden’s Administration will be in Court this week. To defend and continue Trump’s attack on women and the ERA?
Why is the Biden Administration intending to be in court on September 28th, fighting against the Equal Rights Amendment (“ERA”)? Why are they continuing the Trump Administration’s crusade against abortion and equality for women and LBGTQ+ persons?
During his time occupying the White House, it was no surprise Trump and his Administration would do anything and everything possible to block and undermine the ERA. However, no one anticipated the undermining would continue when the Biden Administration won the 2020 election by more than 5 million votes. After campaigning hard on his dedication to women, and support for the ERA, Biden has not ordered the publishing of the ERA, despite acknowledging its ratification.
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. 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., The sole role of the Executive Branch, including the US Archivist, is the ministerial act of receiving the ratifications and publishing a revised Constitution.
Compounding all of this—the recent Dobbs v. Jackson Women's Health Organization decision overturning Roe v. Wade and Casey v. Planned Parenthood. A decision that is an assault on reproductive rights and equality, and widely seen to threaten numerous other rights, including contraception, same sex marriage and interracial marriage.
What many Americans may not realize is that, right now, there is a powerful tool to save Roe v. Wade and guarantee equality for all. Moreover, it is quite simple: publication of the ERA. In fact, President Biden can make this happen on his own with a phone call.
Clearly, President Biden is pro-women. While recently speaking to the General Assembly of the United Nations, President Biden stated:
Here’s what I know. The future will be won by the countries that release the full potential of their populations. Where women and girls can exercise equal rights, including basic reproductive rights, and contribute fully to building a stronger economies and more resilient societies. . . Where LGBTQ+ community individuals can live and love freely without being targeted with violence. The United States will always promote human rights.
While words are nice, actions matter. It is inexplicable that President Biden has yet to clear Trump’s unauthorized, politically-motivated block of the ERA. Further, that the brief filed by the Biden Administration mirrors that of the Trump Administration is incomprehensible
Had President Biden published the ERA when he took office, or even later, when urged to do so by Senators Blumenthal, Klobuchar and others, we would not be where we are today. With no federal right to an abortion. Women scrambling for reproductive healthcare. Medical professionals making life or death decisions on treatment based on law, not the best interests of the patient. Overwhelmed healthcare systems in states permitting abortion. Even businesses and our economies adversely affected.
And the ERA is a tool that works. State ERAs have been used to defeat abortion restrictions in New Mexico and Connecticut. Since the Dobbs decision, ERAs and equal protection provisions have been used to stay (indicating a likelihood of the ban ultimately being held unconstitutional) abortion bans in Utah, Ohio and Indiana. The Michigan abortion ban was defeated (for now) based on equal protection provisions and serves as an example of how the ERA would do the same.
Unfortunately, we cannot overcome Dobbs at the federal level without the ERA. Any attempt to “codify Roe,” another message championed by the Biden Administration, will be enjoined from taking effect and overruled by the current Supreme Court.
The Biden Administration can save Roe and guarantee equality for all today, 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, as he has emphasized, clearing the way for all “Americans’ rights to make the most personal decisions about their own bodies, families and lives,” regardless of where they live.
If these statements reflect President Biden’s true intentions, we ask again, why is his Administration going to Court this week?