ERA WILL BE A CONSTITUTIONAL TEXTUAL BASIS FOR THE FUNDAMENTAL RIGHT TO REPRODUCTIVE CHOICE AND ALSO PROVIDE STRICT SCRUTINY IN EQUAL PROTECTION ERA CASES.
The ERA satisfies Alito’s requirement that the fundamental right to Reproductive Choice is at least “implicitly protected by [a] Constitutional provision.”
May 3, 2022 –Los Angeles. Shocked by the leaked Supreme Court draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey in the Dobbs v. Jackson Women’s Health Organization case? We’re not.
Equal Means Equal, the national organization that helped propel the Equal Rights Amendment (“ERA”) to full ratification, has released a new video that explains the ERA will save reproductive rights if it is certified and published in the U.S. Constitution as the 28th Amendment immediately.
We are only shocked that Democrats, including Speaker Nancy Pelosi, Senate Majority Leader Chuck Schumer, and the Democratic National Committee, as well as women’s rights pro-choice and ERA advocacy groups have not demanded that President Biden order the U.S. Archivist to publish the ERA in the Constitution as the 28th Amendment. They have ignored our pleas for them to save Reproductive Rights before the Supreme Court rules in Dobbs.
“The ERA will protect women’s autonomy,” says Kamala Lopez, the founder and Executive Director of Equal Means Equal, “that includes the right to make our own reproductive decisions, which is essential for women to be equal in our society, professionally, educationally, and economically.”
The ERA, once published, will be the textual Constitutional basis, that Justice Alito’s draft opinion says is now missing, to support Reproductive Rights. The current majority of the Supreme Court are “textualists,” who require clear language in the Constitution before they recognize a specific right. The word “privacy” is not in the Constitution. That is the reason the Supreme Court majority is purportedly overturning Roe and Casey.
There are still at least a few days for President Biden to issue an Executive Order telling the acting Archivist to publish the ERA. “President Biden alone has the duty to direct the National Archivist to publish the ERA, based on Article II, Section 3 of the Constitution, that requires that he ‘take care that the laws are faithfully executed,’” says ERA attorney Arlaine Rockey.
The Archivist has a mandatory legal duty to publish all amendments once they are fully ratified, as the ERA has been since January 27, 2020. On that date, the ERA legally became part of the Constitution, the highest law in our country.
President Biden has the power to direct the Archivist orally or with an Executive Order because, as head of the Executive Branch, the President is the Archivist’s boss. Ms. Rockey has a draft Executive Order and joins EME President Kamala Lopez in detailing the legal reasons why the ERA will protect Reproductive Rights here:
“The Bill of Rights of the United States Constitution guarantees individuals the right to personal autonomy, which means that a person’s decisions regarding his or her personal life are not under the government’s control. That includes the right to ownership and control of our own bodies. Somehow, however, because women are the means to reproduction, which is of great economic interest to the Federal and State Governments, our personal autonomy and the most private decisions about our personal lives are up for public debate, opinion and legislation. This is entirely inappropriate social pressure to have to endure.” says Kamala Lopez, the founder and Executive Director of Equal Means Equal. “And now that we have the Equal Rights Amendment, women no longer have to endure it.”
Despite Justice Alito’s claim that this opinion is limited to abortion, the same legal arguments regarding the right to privacy also allowed birth control to be legalized in 1965, which means that the consequences of not protecting reproductive rights now will allow states to also make contraception illegal.
Rep. Barbara Lee tweeted last night, “PSA: if Roe falls, your constitutional right to birth control will also be in jeopardy.”
There are many Supreme Court rulings based on privacy and other non- textual reasoning, that are now in jeopardy, including those decriminalizing gay sexual relationships and marriage. The ERA likely can also protect those now-existing rights, based on the plain language of the ERA.
The President agreed in his campaign’s “Women’s Agenda” that the ERA had been fully ratified and promised that he would make sure it was enshrined in the Constitution. He reiterated his support for the ERA on January 27, 2022. President Biden has also been a vocal supporter of reproductive rights.
President Biden must do his job and faithfully enforce the laws by publishing the ERA as the 28th Amendment immediately. Waiting any longer will risk women’s lives and livelihoods for decades.