Pres. Biden, here’s an Executive Order to Publish the ERA as the 28th Amd
The ERA is our Secret Weapon to Protect Women’s Reproductive Rights
It’s now been over 50 years since the ERA was sent to the states. It was duly ratified on 1/27/20, yet because Trump & his AG Bill Barr blocked it, the ERA was not published in the Constitution as the 28th Amendment. That was an egregious act by Trump and his lackey, Bill Barr, that defied the clear law of 1 USC §106b and Art. V of the Constitution, as well as Trump’s duty under Art. II, §3, of the Constitution that requires that the President “take care that the laws be faithfully executed.”
Due to that unconstitutional interference, Women are still second class citizens! Read how it can be published now. Here’s my Statement to the House Oversight Committee for their Hearing re #ERA on 10/21/21 @ 10am. THE PRESIDENT SHOULD USE THIS EXECUTIVE ORDER TO DIRECT THE ARCHIVIST TO FOLLOW 1 USC §106b AND PUBLISH THE EQUAL RIGHTS AMENDMENT IN THE U.S. CONSTITUTION AS THE 28th AMENDMENT IMMEDIATELY! For just the Executive Order click here.
As you know, Texas GQPs passed a law that prevents women from getting an abortion after they are six weeks pregnant. We all know that women often don’t even realize they’re pregnant at six weeks. The majority conservative Supreme Court, with three Trump appointees, refused to put a hold on this law, so it is currently in effect.
A federal District Court in Austin entered a Preliminary lnjunction Order to put a hold on the Texas law, which allows abortions to continue, on October 6th, 2021, but the Texas Governor appealed that Order to the conservative 5th Circuit Court of Appeals, which stopped the injunction on October 8th, so the Texas law is back in effect. To read the October 6th Preliminary Injunction Order, click here. The DOJ filed a reply in Opposition to the Motions for a Stay Pending Appeal, in other words, asking the 5th Circuit to allow the 10/6/21 Preliminary Injunction (stopping the TX abortion law) pending this appeal being decided, but the 5th Circuit refused and left the TX law in effect. Now the Supreme Court has agreed to hear it on an expedited schedule — all the more reason Pres. Biden should immediately sign an Executive Order or a Memo telling the Archivist to publish the ERA NOW!
On December 1st, The Supreme Court will hear oral arguments in another anti-abortion law, in the Dobbs case from Mississippi which bars abortions after 15 weeks. This law also violates Roe v. Wade and Planned Parenthood v. Casey, both cases which said that women have a legal right to get an abortion up until the time the fetus is viable, which means that the fetus can live outside of the mother’s body.
As I explained in this transcript of my speech above, a majority of the Supreme Court Justices are textualists, which means that they read the text of the Constitution. Unfortunately, for Roe v Wade, it is based on the concept of privacy, which is a subset of liberty, both of which are derived from the penumbra of various other rights guaranteed in the Constitution. Here is an explanation as to why Roe did not use Equal Protection. One will not find the word privacy in the Constitution. This is why the fully-ratified EQUAL RIGHTS AMENDMENT (“ERA”) is our secret weapon to protect our reproductive rights. There is some precedent for grounding reproductive rights in the Equal Protection Clause of the 14th Amendment, and if the ERA is finally published in the Constitution before the oral arguments on December 1, 2021 the parties will likely get more time to brief their cases with regard to the ERA. Then, the texturalists cannot say women do not have a right to control their own reproductive health and processes prior to viability of a fetus. It is the best chance we have to secure our reproductive rights.
Since there are now six conservative justices on the Supreme Court. Even if Chief Justice Roberts votes with the liberal side, which he has been doing quite a bit, that means that the conservatives still win with a likely 5 to 4 majority. Thus, there is a real possibility that the Court could overrule Roe v. Wade.
But we have a secret weapon that President Biden can put into action immediately with an Executive Order. He can direct the Archivist, our country’s librarian, to publish the Equal Rights Amendment as the 28th Amendment to the Constitution.
The ERA will cause the Supreme Court and all courts to use strict scrutiny (the most stringent level test a law has to pass to not be struck down as unconstitutional) in evaluating laws that might violate equal protection. Further, in my legal opinion, lawyers can argue that the ERA would make reproductive rights a fundamental right (just like voting, speech and freedom of religion are fundamental rights), because women’s inherent ability to have children has been the cause of the invidious discrimination under the Common Law and United States laws historically, so to prevent further discrimination, women must have the right to make their own reproductive choices. If the Supreme Court finds that reproductive rights are a fundamental right, then all laws trying to limit a woman’s reproductive rights would also be subject to strict scrutiny, which means that those laws will likely be struck down as unconstitutional.
38 states have ratified the ERA, the last was Virginia on January 27, 2020. But Trump and his Attorney General Bill Barr blocked the ERA from being published in the Constitution with an opinion from the Office of Legal Counsel, which is an office within the Department of Justice (“DOJ”). This OLC Opinion said that the original seven year deadline for the states to ratify the ERA was valid and told the archivist that he could not publish the ERA in the Constitution.
There are two federal lawsuits pending trying to get a court order telling the Archivist that he should publish the ERA in the Constitution as the 28th Amendment and to essentially override the OLC Opinion.
The first case was filed by only women and girls, the ERA national grassroots organization, Equal Means Equal (“EME”), an individual woman and a pro-ERA organization of girls named The Yellow Roses. This case is now in the First Circuit Court of Appeals in Boston. I am involved in this case as one of the lawyers representing 86 nationwide organizations, the Amici Curiae, Friends of the Court.
The second case was filed by the last three states to ratify the ERA: Nevada (2017), Illinois (2018) and the 38th, Virginia (1/27/20).
All the Plaintiffs agree that the deadline, that was placed in the Preamble of the ERA, is unconstitutional, because it was not in the text, the actual language, of the Equal Rights Amendment; thus, it unconstitutionally violated the States’ rights under Art. V of the Constitution, and EME adds also under the 10th Amendment, because it prevents States from voting up or down on whether or not they approve of the deadline.
Despite Pres. Biden’s & VP Harris’ promise to “ENSHRINE WOMEN’S EQUALITY IN THE CONSTITUTION” in their Agenda for Women, Biden’s DOJ, led by Attorney General Merrick Garland, continues to fight AGAINST THE ERA using Trump’s & Bill Barr’s false legal arguments to this day! It is UNCONSCIONABLE HYPOCRISY!!
If it is truly Pres. Biden’s POLICY TO “ENSHRINE WOMEN’s EQUALITY IN THE CONSTITUTION,” he has been wearing the ruby slippers since January 20, 2021. He need only click his heels three times, take out his favorite pen, and sign THIS EXECUTIVE ORDER that I have drafted for him. It’s that easy, because he is the head of the Executive branch of government, and as such, the Archivist’s boss.
BY SIGNING THIS EXECUTIVE ORDER immediately, PRES. BIDEN CAN SAVE WOMEN’s Reproductive Rights, as well as:
Lift millions of families out of poverty by protecting equal pay for women;
Curtail violence against women, sexual harassment, and physical and sexual assaults that often go unreported or un-redressed in criminal courts;
Force states to process the abhorrent backlogs of unprocessed rape kits;
Give Congress more authority to create laws with time limits and standards for processing rape kits and investigating violence against women;
End unequal treatment and bias in the legal system, most importantly to end discrimination against mothers trying to protect their children from physical and sexual abuse in child custody cases, in which many children are being placed in their abuser’s custody;
Guarantee female athletes suffering repeated sexual abuse are not systematically ignored by law enforcement;
Pass a permanent Violence Against Women Act (VAWA);
Give women parity in the economic, professional, educational and political spheres;
Ensure that gender is considered a suspect class and that courts must use strict scrutiny in discrimination cases;
Grant lawyers tools to argue that women have a fundamental right to control their own reproductive choices.
I took the first policy paragraph in the linked Exec. Order to Publish the ERA from Pres. Biden’s April 8th, 2021 Exec. Order establishing the Gender Policy Counsel. If he truly believes what he signed, then he will agree to the additional policy statements in the policy section.
If you want to write to Pres. Biden, click here.
So, Pres. Biden, we women know you have a lot on your plate, but this is merely an easy lift of the pen. The cost benefit analysis is a no-brainer. Do you want to energize the over 45 million women who voted for you and the VP to protect your majorities in Congress?
Give us the courtesy of abiding by your promise.
