To: President Joseph Biden
Publish the Ratified ERA to reverse Dobbs & gain Equality
Thank you for your leadership in the wake of the Dobbs v. Jackson Women’s Health Organization (“Dobbs”) decision. We stand in shared commitment to protect access to comprehensive reproductive health services and women’s fundamental rights. States and individual citizens are beginning to encounter significant challenges & need help. We write today to urge you to direct the U.S. Archivist to publish the duly ratified Equal Rights Amendment (“ERA”), the 28th Amendment to the U.S. Constitution. The ERA is the most powerful tool available today to protect reproductive rights, guarantee equality for all Americans & fundamental rights of women and LGBTQIA+ persons. State ERAs & equal protection provisions have been used successfully to defeat abortion restrictions. Without the fully ratified ERA published in the U.S. Constitution, the Court in Dobbs was free to ignore the ERA and equal protection provisions, which protect reproductive freedom and bodily autonomy. In New Mexico and Connecticut, state ERA provisions have been used to invalidate bans on Medicaid abortion coverage. Most recently, the Utah abortion ban triggered by the Dobbs decision was twice stayed on the argument that the ban violates the ERA and equal protection provisions within the Utah Constitution. There is a similar case pending before the Pennsylvania Supreme Court challenging the state’s ban on Medicaid coverage for abortion services as a violation of the Pennsylvania ERA. Unfortunately, 24 states do not have an ERA in their constitutions. Without a federal framework, fundamental rights are subject to political whims. For states with abortion bans, women without resources are forced to travel long distances to states providing safe and legal abortions. For those unable to travel, the results are difficult, and even tragic. Employers, including Walmart, Amazon, Levi Strauss, Microsoft, and Disney, are covering travel expenses associated with out-of-state reproductive health services. Salesforce and Google, are permitting employees to relocate from states with abortion bans. California, Illinois, Maine, Minnesota, New York & North Carolina, are seeing more out-of-state patients. Abortion clinics are being strained and overwhelmed. In-state residents are experiencing delays in care. Abortion providers practicing across state lines are encountering civil and criminal liability consequences. We need the ERA to ensure that all Americans have access to reproductive care, and to guarantee equality for all. On March 22, 1972, the ERA was sent to the states for ratification following overwhelming passage in the House and Senate. By 1978, 35 states had ratified the ERA. When Nevada and Illinois became the 36th and 37th states to ratify the ERA in 2017 and 2018, respectively, the U.S. Archivist accepted and certified the ratifications. When Virginia became the 38th and final state needed for ratification on January 27, 2020, the U.S. Archivist was required by statute (1 U.S.C. §106b) to certify and publish the ERA as the 28th Amendment to the U.S. Constitution. The ERA has yet to be published in the Constitution because the Trump Administration blocked publication, inserting its political views into the constitutional amendment process. The singular role of the Executive Branch is receiving ratifications and publishing a revised Constitution. In direct support of our request, a 2022 opinion from your Administration reinforces that the Executive Branch has no role in determining the validity of a constitutional amendment. Consequently, the states of Virginia, Illinois and Nevada have brought suit against the U.S. Archivist, an Executive Branch employee, to compel publication of the ERA. The Trump Administration defended the U.S. Archivist, arguing the ERA is invalid due to an expired deadline and attempted rescissions by five states, rendering publication inappropriate. The action remains pending with your Administration representing the U.S. Archivist. Hundreds of constitutional scholars, including Professor Laurence Tribev and the Honorable Russ Feingold, agree that the ERA has met all constitutional requirements, is the 28th Amendment, and must be published. Unfortunately, as seen in the recent Dobbs decision, without ERA publication, courts are free to make decisions in an America where all citizens have not been granted equal rights. This constitutional absence of equal rights impacts comprehensive reproductive health services (including abortion), contraception, same sex marriage, interracial marriage, violence against women, and so much more.
As a strong supporter of women and the LGBTQIA+ community, which is clear in your campaign’s hallmark “Biden Agenda For Women”, we urge you to end the Trump Administration’s anti-equality crusade and direct the acting U.S. Archivist to fulfill her statutory duty to publish the ERA as the 28th Amendment. It would be one of the most meaningful successes of your Presidency.
Why is this important?
It is 2023. Equal Rights for ALL, including 50.5% of the population who are women, is self evident.
Abortion will only be protected on the legal basis of equality, not privacy, as Dobbs demonstrated.
Any codification of abortion, reproductive rights, contraception, same sex marriage by Congress will quickly prompt legal challenges. It will arrive to SCOTUS and be reversed, on the new basis of "Dobbs" based on privacy, not equality.