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  • Writer's pictureNicole Vorrasi Bates

The Train’s Left the Station and is Coming Off the Tracks



June 6, 2024. What many don’t realize is that, regardless of the outcome of the 2024 elections or who is in the White House, we likely will have a national abortion ban and women, girls and LGBTQIA+ will lose 14th Amendment equal protection in 2025. The courts are in control now.


Unless, of course, President Biden publishes the Equal Rights Amendment (“ERA”).


President Trump blocked the ratified ERA at a time when there was a conservative majority at the US Supreme Court (“SCOTUS”). He needed to block the ERA in order to implement, what we have since learned, was a well-funded, long-game strategy to overturn Roe and send women and LGBTQIA+ people back to the 1800s.


So why hasn’t President Biden published the ERA to fix this? That is the $1.6 trillion question – the annual cost to American women and their families as result of the gender the pay gap.


THE IMMINENT NATIONAL ABORTION BAN


The ERA protects reproductive rights. There is no doubt about that. Historically, state ERAs have been used to defeat abortion restrictions. And that is one of the primary arguments of anti-ERA activists.


However, nothing made it more clear that the ERA will protect reproductive rights than the long-awaited, January 30, 2024, decision of the Pennsylvania Supreme Court in Allegheny Reproductive Health Center. The court ruled that abortion restrictions are sex-based discrimination under the PA Equal Rights Amendment and are presumed to be invalid.

Why was the decision eagerly anticipated? The PA ERA is nearly identical to the federal ERA. As a result, the Allegheny decision reinforces that the federal ERA is essential to protecting reproductive healthcare (including IVF and contraception) and rights for all Americans, regardless of where they live. 


That point was driven home on March 19, 2024, when Nevada's newly adopted ERA was used to defeat abortion restrictions. And the Utah, automatically abortion ban triggered by the Dobbs decision, has yet to take effect as a result of their state Equal Rights Amendment.

Regardless, unless the ERA is published, the courts (that the GOP has spent decades molding for this very moment) are teed-up to institute a national abortion ban based on the Comstock Act.  


Senator Tina Smith (D-MN) recently spelled this out in her April NYT Opinion on the Comstock Act, shinning a light on the imminent dangers the Comstock Act presents. Senator Smith is spot-on. The Comstock Act can be used as a backdoor to a national abortion ban - even in states where reproductive rights are already protected. “Is a National Abortion Ban Inevitable” for additional details.


We have been warning of the dangers of the Comstock laws since 2021, as we have been urging President Biden to direct the Archivist to publish the ERA. The ERA would render the Comstock Act meaningless and send it back to obscurity.  Unfortunately, publication of the ERA is the only viable option to defeat the efforts of conservative activists such as the Heritage Foundation and National Right to Life Committee, who are concerned, particularly after the Allegheny decision, that the ERA will be published and have upped their attacks on the ERA’s validity.


In the current political environment, repeal of the Comstock laws will not happen in this Congress or likely the next few.


WOMEN, GIRLS AND LGBTQIA+ PEOPLE WILL LOSE EQUAL PROTECTION NEXT YEAR


SCOTUS is set to hear the appeal of the 6th Circuit's L.W. v. Skrmetti decison, which applied the lowest standard of judicial review, rational basis, to the claims that Kentucky's and Tennessee's gender-affirming care bans constitute sex-based discrimination.  


As noted by the 4th Circuit last month when it invalidated the North Carolina and West Virginia gender-affirming care coverage bans, "the distinction between rational basis and intermediate scrutiny is significant. We have described rational-basis review as a “deferential” standard under which 'the plaintiff bears the burden to negate every conceivable basis which might support' the differential treatment. . . . By contrast, an intermediate-scrutiny analysis requires the proponent of the policy to produce an “exceedingly persuasive justification” for treating individuals differently based on quasi-suspect characteristics."


SCOTUS has recently indicated its intent to apply rational basis under these circumstances (See Labrador below). The ERA, and the strict scrutiny that comes with it, would provide even greater protection.


SCOTUS has delayed hearing the Skrmetti case discussed above until after the election, but it has recently shined a light on what is to come. Most significantly, SCOTUS issued a decision last month (through the shadow docket) in Labrador v. Poe, reinstating the Idaho gender-affirming care ban. This decision makes clear that publication of the ERA is needed immediately.


Why? As set forth in the concurring opinion of Justices Gorsuch, Thomas and Alito, it is only a matter of time before SCOTUS hears the Skrmetti sex-based discrimination claim (related to the TN and KY gender-affirming care bans) and applies the rational basis standard of review, thereby eviscerating "equal" protection for women, girls and LGBTQIA+ people. Sending us back to the 1800s.


We have been warning of the dangers of SCOTUS hearing the Skrmetti case without the ERA in Constitution since the 6th Circuit rendered its decision applying rational basis to sex-based discrimination claims. Again, the outcome of the elections will not impact what will happen next.


The train has left the station and is coming of the tracks – unless President Biden publishes the ERA.

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