Carpé Diem, Mr. President.
Save Reproductive Rights! Publish the ERA Now.
The ERA was duly ratified on January 27th, 2020 and became the 28th Amendment to our Constitution. Now, it just needs to be published.
Only President Biden can save reproductive rights, but he needs to act fast. Only he can do it, because the Senate is stymied with the filibuster, and we know the make-up of SCOTUS. They’re about to throw us into Handmaid’s Hell. So, carpé diem, Mr. President!
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See short bullet points CALL TO ACTION — https://adobe.ly/3OH84mX—> DEMAND President Biden direct the Archivist to publish the ERA NOW with an Executive Order to SAVE REPRODUCTIVE RIGHTS from the Supreme Court!
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There is no valid deadline on the Equal Rights Amendment because the deadline is unconstitutional, thus, void ab initio, from the beginning. That means it was NEVER valid.
Regardless of whether time deadlines are allowed by Article V of the Constitution, based on Supreme Court caselaw, the deadline is absolutely unconstitutional if it is not included in the actual text of the proposed Amendment, as is the case with the 28th Amendment, the ERA.
The reason is that the purported ERA deadline was in the “Preamble” (the “Be it Resolved” section) — not the text of the Amendment — thus, because states only have the power to vote up or down on the actual text, and Article V grants Congress and the States equal amendatory power, this purported deadline is unconstitutional because it took away the State’s power to say yes or no to the deadline language. Further, because Article V is silent about deadlines, meaning it does not explicitly give the federal government the authority to add a deadline on ratifications, this purported deadline, that is not in the actual text, also violates the 10th Amendment.
The Archivist has a mandatory, ministerial duty (one might say the equivalent of a clerk of court who has no power to refuse to clock in and file a document presented for filing) to certify and publish all Amendments once they are ratified by ¾ of the states “forthwith,” which means immediately, pursuant to 1 USC §106b.
The Archivist legally has no authority to refuse to certify and publish the ERA. He has no discretion to choose whether to certify and publish amendments that have been ratified by ¾ of the States. Such was the fatal flaw of the Trump/Barr 1-6-20 OLC Opinion that was issued to block the Archivist from certifying and publishing the ERA to prevent women from finally having equal rights — 245 years after the founding of our country with the Declaration of Independence.
You, Mr. President, have a constitutional duty to “take care that the laws are faithfully executed,” pursuant to Article II, Section 3 of the Constitution. Thus, as you are the Archivist’s boss, as the head of the Executive Branch, President Biden, you have a mandatory duty to direct the Archivist to do his duty to certify and publish the ERA as the 28th Amendment forthwith.
Further, because the ERA became an Amendment to the Constitution on January 27, 2020, the date the 38th state, the Commonwealth of Virginia, ratified it, pursuant to Article V, and because the Constitution is the highest law of the land, you, Mr. President, also have a duty to direct the Archivist to publish the ERA as the 28th Amendment now, so that it can be faithfully executed.
President Biden, you can pick up your phone and direct the Archivist to do his duty, or if you want to be more formal, you can sign an Executive Order directing the Archivist to certify and publish the ERA.
For efficiency, I have drafted one for you. It’s available at my adobe cloud link here 👉🏻https://adobe.ly/35MTsQK 👈🏼, and I have provided a copy below. (I even took the first policy paragraph from the Executive Order you used to create the White House Gender Policy Council).
March 22, 2022, the 50th anniversary since Congress sent the ERA out to the States for ratification, would be a great day for the U.S. to earn moral authority on the issue of women’s rights by bringing the U.S. in league with other countries, in which women are not second-class citizens, and to save and protect the futures of women and girls.
President Biden, you have publicly professed your support for not only the ERA (which is why Attorney General Merrick Garland should immediately stop fighting AGAINST the ERA in Virginia, et al., v. Ferriero — as noted in the 1-26-22 OLC Opinion), but you, Mr. President, have also voiced your strong support for women’s reproductive rights.
This is why YOU MUST ACT IMMEDIATELY BECAUSE ONLY YOU HAVE THE ABILITY TO SAVE OUR REPRODUCTIVE RIGHTS!
They are about to be decimated by the five textualists on the Supreme Court in Dobbs v. Jackson Whole Women’s Health (“JWWH”), regarding the constitutionality of Mississippi’s 15 week abortion restriction. Textualists look to the text of the Constitution to support legal theories, which is why Roe v. Wade is likely to be overturned if you don’t publish the ERA now. In the oral argument in Dobbs, Justice Clarence Thomas asked the attorney for JWWH, “[W]hat constitutional right protects the right to abortion…?” There was no answer she could give that was as clearly written in the text of the Constitution as will be the ERA, once it is properly published as the 28th Amendment, which says: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Thus, it is URGENT that you, President Biden, direct the Archivist to certify and publish the ERA NOW, because, in my legal opinion as a feminist lawyer with over three decades of experience, the ERA will be a much stronger, and likely a successful, textual protection of women’s Reproductive Rights given the current conservative make-up of the Supreme Court.
The ERA will provide “strict scrutiny” in Equal Protection cases, which means the offending law will likely be struck down. An Equal Protection argument can be made in Amended Complaints in the Texas Bounty Hunter SB 8 cases, because Texas is only interfering with women’s reproductive rights, not men’s — for example, there are no laws preventing men from getting vasectomies.
Moreover, the ERA will also provide a constitutional textual basis for a FUNDAMENTAL RIGHT FOR WOMEN TO CONTROL THEIR OWN REPRODUCTION.
The reason, in short, is because under the Common Law of England — the basis for our laws — and otherwise, historically women in the United States have been discriminated against because only women can give birth — that ability, to become pregnant, is a sex-based characteristic.
Laws that actually or effectively ban abortion discriminate on the basis of sex, which is a violation of the ERA. Even with the ERA, the courts will still weigh the woman’s fundamental right to control her own reproductive choices versus the government’s legal interest in protecting children that can be brought into the world and live outside the womb, even with medical assistance — that is the point of viability. With the ERA, the courts must use the highest “strict scrutiny” when weighing the fundamental right of the woman versus the government’s interest, so it is most likely to protect women’s fundamental right to her own reproductive choices up until the point of viability. For those who are, or know someone who is, conflicted about the moral dilemma surrounding abortion or confused about the point that a fetus can feel pain, I suggest you look at this website www.RespectPeople.org.
“[T]he ERA stands for a broad and fundamental principle: namely, government institutions may not discriminate on the basis of sex,” as noted in the Amicus Brief of the ERA Coalition, et al., filed in Virginia, et al., v. Ferriero, at 21, the ERA case now pending in the U.S. Court of Appeals for the District of Columbia — in which the current Department of Justice (“DOJ”) is literally still fighting AGAINST THE ERA, using the same legal arguments that were set forth in Trump’s/Barr’s DOJ’s January 6, 2020 OLC Opinion! That is an egregious hypocrisy in your administration, Mr. President. You must cure that by publishing the ERA immediately, consistent with your public support of the ERA on the second anniversary of its ratification, on January 27, 2022, and your public support of reproductive rights for women, as recently as December, 2021.
“The ability to decide whether and when to have children is a fundamental aspect of being treated as an equal, respected, and participating member of our democracy. Women must be free to exercise this fundamental freedom on equal terms…,” which was well-stated in the Amicus Brief of LGBTQ Organizations and Advocates, at 19, filed in Dobbs, in the Supreme Court. The Supreme Court recognized this fact in Planned Parenthood v. Casey, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Id. at 30 (citing Casey, 505 U.S. 833, 856 (1992)).
The attorney for JWWH, referred the Supreme Court to the Amicus Brief for Economists, filed in Dobbs, in which they cited statistical studies showing causal links between legalized abortion and women moving more towards equality in multiple spheres. “[A]bortion legalization has had a significant [positive] impact on women’s wages and educational attainment….” It increased the likelihood that girls who had accessed abortion, were more likely to graduate from high school and from college, and that they entered professional occupations. Id. at 3, 11, and13. It also reduced teen motherhood by 34% and teen marriage by 20%. Id. at 3. Even with the greater availability of contraception, legalized abortion is still “necessary to women’s equal and full participation in society.” Id. at 16.
Women have not been and cannot be truly equal citizens in our society, which is the intent and the requirement of the ERA, unless they can control their reproduction.
If the ERA is immediately published in the Constitution, the lawyers supporting reproductive rights, including the U.S. Solicitor General, can ask for leave to re-brief their legal arguments based on the ERA.
So, carpé diem, President Biden. You will make at least 50 million, possibly over 150 million, women and girls so appreciative that we finally have equal rights. Both reproductive freedom and the Equal Rights Amendment are supported by a majority of Americans.
Your Executive Order will be the historic
Women’s Equality Proclamation!
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PROPOSED EXECUTIVE ORDER FOR PRESIDENT BIDEN TO DIRECT THE ARCHIVIST TO PUBLISH THE EQUAL RIGHTS AMENDMENT
Executive Order ________ of March ____, 2022
Publishing the Ratified Equal Rights Amendment as the 28th Amendment to the United States Constitution
By the authority vested in me as President by the U.S. Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. Advancing gender equity and equality is a matter of human rights, justice, and fairness. It is also a strategic imperative that reduces poverty and promotes economic growth, increases access to education, improves health outcomes, advances political stability, and fosters democracy. The full participation of all people—including women and girls—across all aspects of our society is essential to the economic well-being, health, and security of our Nation and of the world.
It is therefore the policy of my Administration that every person should be treated with equality under the laws of the United States and of every state therein and should face no discrimination on the basis of sex. Since the founding of our country, some 245 years ago with the Declaration of Independence, women have been subjected to invidious discrimination inflicted by the laws of this country and its several states. Because equal rights for women have not been explicitly written in the U.S. Constitution, women have continued to suffer legal, societal, and personal indignities and discrimination, physical and sexual assaults that often go unreported or un-redressed in criminal courts, unequal pay for equal work as men, lack of parity in the economic, professional, educational and political spheres, and unequal treatment and bias in the legal system. Women have been deprived of the full benefits of the Equal Protection Clause of the Fourteenth Amendment. Without the Equal Rights Amendment published in the U.S. Constitution, women are subjected to a lesser standard of judicial scrutiny, than the strict scrutiny the new 28th Amendment will provide, meaning that women have heretofore suffered more discrimination without the benefits of the Equal Rights Amendment.
It is also the policy of my Administration that the January 6, 2020 Opinion, of the Office of Legal Counsel, on the Ratification of the Equal Rights Amendment, Opinions of the Office of Legal Counsel of the Dep’t of Justice, 44 Op. O.L.C. (released January 8, 2020), was improvidently and wrongly decided, because the deadline in the Equal Rights Amendment was placed, not in its text, but solely in the Preamble, which unconstitutionally interfered with the States’ rights under Art. V and the 10th Amendment of the U.S. Constitution. Being unconstitutional, the deadline is void ab initio.
Three-fourths of the states have ratified the Equal Rights Amendment, in accordance with Art. V of the U.S. Constitution, with the last three states being Nevada and Illinois, in 2017 and 2018, respectively, and the thirty-eighth, the Commonwealth of Virginia, which ratified the Equal Rights Amendment on January 27, 2020, which date is and shall be known as the date the Equal Rights Amendment was fully ratified.
It is the policy of my Administration to prevent and to combat discrimination on the basis of sex, and to do so by publishing the Equal Rights Amendment forthwith as the 28th Amendment to the U.S. Constitution.
On March 24, 2020, the Archivist of the United States recorded Virginia’s ratification with a notation that said ratification occurred after the void deadline expired. On the same date, the Archivist added the same notation to the previously recorded ratifications of Nevada and Illinois. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION: EQUAL RIGHTS AMENDMENT, LIST OF STATE RATIFICATION ACTIONS (https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification- actions-03-24-2020.pdf).
It is the policy of my Administration that the Archivist of the United States, shall remove the aforementioned notations, and per 1 U.S.C. § 106b, that the Archivist of the United States shall forthwith record that the Equal Rights Amendment was duly ratified on January 27, 2020.
Sec. 2. Specific Provisions. (a) Consistent with the policies set forth in section 1 of this order, the Archivist of the United States shall remove the aforementioned notations, with regard to the void deadline, to the ratifications of Nevada, Illinois, and Virginia.
(b) Consistent with the policies set forth in section 1 of this order, the Archivist of the United States shall certify and publish the Equal Rights Amendment forthwith as the 28th Amendment to the U.S. Constitution.
Sec. 3. General Provisions. (a) Except as stated hereinabove and as are the natural and legal consequences of the publication of the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution, nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Archivist of the United States or the Office of Legal Counsel.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
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