August 30, 2022. Yesterday, I was asked about codifying Roe v. Wade and the Equal Rights Amendment (“ERA”). The ensuing conversation led me to see that we need a short primer on this topic, which can be shared. So, here we go . . .
Specifically, the person asked:
I have two legal type questions that I would like expert answers to.
1. Since the Supreme Court has already ruled, IF the Dems get a big enough majority in both the house and the Senate, could a new law codifying the right to abortion still be passed and if so, would it nullify the Supreme Court decision?
2. How many states still need to ratify the ERA and which states are still holding out?
Ok, first question:
Roe cannot be codified by Congress after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Sure, the Democrats could abolish the filibuster and pass legislation, but any such legislation will be stuck down by the current Supreme Court, which said there is no federal constitutional right to an abortion and that it is up to the states to decide.
In fact, any such legislation would never take effect. Anti-abortion interests would immediately seek an injunction, which would be granted and remain in effect while the case winds its way up to the Supreme Court. The current Supreme Court will strike it down.
So, no, Roe cannot be codified. Most but not all federal politicians have stopped saying that they will codify Roe. Sadly, not all have, and we have all received the emails and texts from these politicians saying they will, while at the same time asking for donations and our votes.
With respect to the ERA, no states need to ratify the ERA. 38 states have ratified the ERA, and it is currently the 28th Amendment. However, on January 27, 2020, when Virginia became the 38th state to ratify the ERA, it was blocked unlawfully by Trump. Why? Because Trump knew it would be impossible to overturn Roe v. Wade if the ERA was in the Constitution.
State constitutions with ERAs, including Utah’s, have been used to defeat abortion restrictions. Most recently, Utah’s abortion ban triggered by the Dobbs decision, was enjoined from taking effect as a result of the ERA and equal protection provisions in the Utah constitution.
Shockingly, the Biden administration continues to block the ERA and is expected to be in court again on 9/28 arguing against the ERA, and arguing for Trump’s position.
Hundreds of constitutional scholars, including Harvard Professor Laurence Tribe and Former Senator Russ Feingold (now President of the American Constitution Society), have stated the ERA is currently the 28th amendment and have urged publication of the ERA, knowing it could save Roe v. Wade. Similarly, Senators Blumenthal, Klobuchar and Cortez Masto urged the Biden Administration to publish the ERA back in January, before the Biden Administration articulated that it is – very oddly -- continuing Trump’s fight against the ERA.
In addition, numerous states joined the lawsuit to compel publication of the ratified ERA. The California Legislature has recognized that the ERA is the 28th Amendment and have called for its publication. Last week they passed another resolution, which starts a review of California laws, seeking recommended legislative changes to conform to the ERA, which is currently in effect as our 28th Amendment.
And it is not just elected officials demanding publication. The LA Federation of Labor and the Nevada AFL-CIO recently passed resolutions calling upon Biden to publish the ratified ERA, and we expect more in the near future. And 86 corporations, including Apple, American Express, Chobani, Citigroup, Deloitte, Google, IBM, JP Morgan, Levi Strauss, Mastercard, the NFL, Pepsi, and Salesforce, have joined the lawsuit demanding the Biden Administration publish the ERA.
Please write to President Biden and Vice President Harris demanding they abandon Trump’s anti-women, anti-LGBTQ+ campaign, stop fighting against the ERA in court, and direct publication of the ERA as required by law. You can find links to their contact pages and sample letters HERE.
Also, the Administration is counting texts. Please text President Biden at 302-404-0880 EVERY SINGLE DAY (standard messaging rates apply), demanding he publish the ERA. Here is a sample -- "Abandon Trump's anti-women campaign, stop fighting against the Equal Rights Amendment in Court and direct publication of the ERA NOW as required by law and AS PROMISED! You know it saves Roe!!!!!"
For additional information on the ERA, saving Roe, and the immediate need for ERA publication, see “Democrats Have Key To Unlock Equality For All and Save Roe” and “Write Women Into the Constitution.”