As the Biden administration nears the end of its term on Jan. 20, a campaign is underway to pressure the outgoing president to use his authority before he leaves office to instruct the National Archivist to certify and publish the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution. The ERA, first proposed in 1923 simply states that “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”
Although the ERA was approved by a two-thirds vote in the House and Senate in 1972, and ratified by three-fourths of the states, Virginia being the last in 2020 — the amendment remains unpublished due to disagreement regarding ratification time limits passed by Congress, the last of which expired in 1982.
As the U.S. Supreme Court and right-wing politicians take action at the state and federal level to erode the rights of women across the United States, many activists look to the ERA to protect women against laws that discriminate on the basis of sex or gender. The overturning of Roe v. Wade, resulting in the outlawing of abortion and other reproductive rights, is but one important consequence of the ERA never having been ratified in the Constitution. Between The Lines’ Scott Harris spoke with Kate Kelly, senior director of the Women’s Initiative at the Center for American Progress. Here she talks about the current push to publish the ERA in the federal register, the role of the national archivist and President Joe Biden’s response to the campaign.
KATE KELLY: This is the modern resurgence of the call for constitutional equality. And since 2020, the question has been, “Is the Equal Rights Amendment part of the Constitution or is it not?” This is a very active and live legal question.
This is where the archivist comes in. Most people, only like a very small handful people probably in this country — who could name offhand who the current archivist is. And the main job is to keep the records of the nation. And the archivist has a statutory duty, which means there’s a law that says once an amendment has been ratified, the archivist is the one who keeps track of all the ratifications and once the requisite amount of ratifications are received, the archivist must certify that those ratifications have been received from the states and then publish it in the Federal Register.
And that’s the final step. That’s the way that we all know that the federal government agrees and that it is the 28th Amendment to the Constitution.
SCOTT HARRIS: So if the ERA became part of the U.S. Constitution, there’s complications that we’ll touch on in a moment. But if it does become part of the U.S. Constitution, what would its impact be on things like anti-abortion laws, reproductive rights more generally and workplace discrimination? What impact would it have?
KATE KELLY: Over 85 percent of other countries have a gender provision in their constitution. We do not. And so the litigation and the legislation are the two main ways that it’s going to protect us from discrimination. You use the example of reproductive rights. That’s a great example. And we don’t really have to guess on this front because there are 28 states that currently have state Equal Rights Amendments.
They vary in language. But there have been many successes in the states protecting abortion access. So Connecticut and New Mexico are two examples. And more recent examples are in Nevada and Pennsylvania. Nevada and Pennsylvania, that happened just this year. And in both of those states, because of their state-level Equal Rights Amendment, they struck down abortion bans and specifically a prohibition against funding, so Medicaid funding for abortion.
And they said that you can’t just single out one specific procedure that only one sex gets or needs and say that you can’t pay for that specific procedure. That is sex discrimination. So we’ve already seen at the state level that the Equal Rights Amendment can strike down abortion bans. And so we know again from the states that that’s something that could happen also at the federal level.
SCOTT HARRIS: You know, I’ve read some articles about the archivist, Colleen Shogan, who said that she’s not legally certified to publish the ERA because of Justice Department memos and some court decisions. This is a fight, obviously. There’s disagreement about this. So where does this fight go now and how responsive is Joe Biden to pushing forward with having the archivist certify and publish the ERA?
KATE KELLY: Yeah, I mean, that’s a very live question, but the president specifically mentioned the Equal Rights Amendment in an interview about a week ago. He was asked what he wanted to accomplish before leaving office. And he explicitly said the Equal Rights Amendment. That’s not common. A sitting president of the United States has not mentioned the ERA publicly since I think probably 1982.
So he would not just say this willy nilly. I don’t know what exactly the White House is planning, but tend to mention it in such a specific way in this moment, I think is very meaningful.
I’ve personally met with Colleen Shogan, when I was legislative director for Cori Bush and she indicated, you know, some sort of ambivalence. And I said to her directly, to her face, “With all due respect, your inaction is unconstitutionally inserting yourself in a process you do not belong.”
She is not a lawyer, much less a constitutional legal scholar. She is an unelected librarian. Her duty is simply to proceed and mark when she receives ratifications and then publish it in the Federal Register.
It is not her job to decide what is or is not in the Constitution.
SCOTT HARRIS: If Biden instructs her to do so, is she obligated to follow that order?
KATE KELLY: The boss of the archivist is the president. Hypothetically, she could resist and then be dismissed or fired. And then there would be an acting archivist. But again, she is part of the administrative branch and the executive branch and the boss of that branch of government is the president of the United States.
Again, I think her inaction would be an extreme deviation from the process, because if you read Article 5, the founders wrote two things that need to happen. Congress needs to act and the states need to ratify it. There is no role for the courts. There is no role for anyone else. Her role is simply a statutory duty so that we know when it’s done, that it’s done.
Listen to Scott Harris’ in-depth interview with Kate Kelly (24:15) and see more articles and opinion pieces in the Related Links section of this page.
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