It’s time to put equality in the U.S. Constitution (And Joe Biden can do it today)

The Equal Rights Amendment could protect reproductive rights and provide the foundation for a more equitable future for all

Imagine if there were constitutional amendment that would protect reproductive rights — while also protecting LGBTQ rights and equality for all. It does exist. It’s the Equal Rights Amendment and it its main clause simply states “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It is within Joe Biden’s power to enshrine it in the constitution today.

I spoke with Kate Kelly, author of Ordinary Equality: The Fearless Women And Queer People Who Shaped The U.S. Constitution And The Equal Rights Amendment and host of the podcast Ordinary Equality, about what the Equal Rights Amendment would do, how it could protect reproductive rights (and more!) and how easily we could achieve this transformational amendment. Says Kelly: “We are one signature away from finalizing a gender provision in the constitution and Joe Biden can make it happen.”

What would the Equal Rights Amendment (ERA) do for women today? Is there a bullet point list of benefits?

A list of what the ERA would do never existed. Because it’s an amendment and not legislation, it doesn’t spell out explicitly what it would do from one day to the next. But it will improve litigation outcomes when people are discriminated on the basis of sex.

It will also help with legislation because the second clause gives Congress the power to enforce it. With ERA we can get more robust laws, which could include a reproductive bill of rights. We could get that on a federal level. We cannot get a reproductive bill of rights without the Equal Rights Amendment.

So the Equal Rights Amendment will give us a strong foundation to legislate for the future we want.

It will help create a more robust set of laws that protect women in the future, for issues like violence against women and equal pay, for example. There are lots of laws (One example: a ban on female genital mutilation) that Congress tried to pass but the courts wouldn’t let them. But we could get them with the ERA. One of the clearest examples is with reproductive rights.

The ERA is a genie in a bottle. With the ERA in place, we don’t just get one thing — we get more wishes.

We almost got the ERA in the 1970s but its opponents made it all about abortion.

It’s the #1 talking point left from the ERA fight in the 1970s. Today they call it the “Everything Related to Abortion” amendment. They are and were hyper focused on abortion. We don’t disagree on whether the ERA will cover abortion access. We only disagree on whether that’s a good thing.

For Republicans, the ERA is a five alarm fire. They see and understand its potential. For them it’s a threat, for us it’s a promise.

We hear some our representatives talking about codifying Roe V Wade but they don’t even mention the Equal Rights Amendment.

First of all, that’s shortsighted. Roe is flawed at best. Roe is hyper focused on privacy and rights that flow out of the body, the trimester framework, etc. If the right to access abortion was not focused on the body and a right to privacy but was instead focused on equality as granted in by the ERA as the 28th amendment, it would be a game changer.

How could the Equal Rights Amendment protect Reproductive Rights and Roe V. Wade?

If the ERA were finalized before June, they could ask for a rebriefing in the Dobbs case and they could rebrief the entire case based on equality and not privacy. It would be much stronger. Originalists [like Alito] could not argue that it was an unenumerated right because it would be explicitly in the text of the constitution. Their argument is “if it’s not a sentence I can read in my pocket constitution, then I don’t buy it.” The only way around that is to change the language of the constitution.

There’s no such thing as a magic bullet, but there is no way forward without it.

We are going to keep returning to the fundamental fact that gender equality is not in our Constitution until it’s in our constitution. Eighty-five percent of countries have a gender provision. The United States is a major outlier and not in a good way.

It’s not just women who stand to benefit from the Equal Rights Amendment. Who else should be in the coalition advocating for the ERA?

We need a more diverse coalition of people involved. We need to expand what the ERA means. It’s reproductive rights, Trans rights, LGBTQ rights. The word “women” is not anywhere in the text of the amendment. The phrase “on the basis of sex” includes gender expression and sexual orientation.

We need younger people involved. We need the young congresswomen — Ayanna Pressley, Rashida Talib, Alexandria Ocasio-Cortez, Cori Bush — to be actively engaged in the ERA.

We are so damn close to getting this amendment enshrined in the constitution. How close are we?

The ERA has met the requirements of Article V to be included in the Constitution — passing the house and the senate, ratification by 38 states — and I’m not the only one who believes this. Laurence Tribe, one of the most respected constitutional scholars of our time agrees. He said the ERA is the 28th amendment, no further work required.

The Archivist needs to certify and publish it in the Federal Register. The Archivists are librarians and they are very reticent to come out in front of this issue that has any potential to cause a constitutional crisis, or be the center of a controversy.

But, imagine if Republicans were one signature away from changing the constitution. It would be all hands on deck. Billionaires would be funneling money to it. They would do anything it takes to finalize it and we should, too.

It’s all up to Joe Biden, right?

Biden made two public statements saying that Congress has to act, which is a total and complete cop out. Yes, we need to encourage Senators to support Senate Joint Resolution 1 and bring it to a vote. Yes, we need to know who is voting against equality. But regardless, we have met the constitutional requirements for ratification and Biden needs to act.

Biden campaigned on the Equal Rights Amendment. Saying Congress needs to act is a gigantic dodge. We need to pressure the Biden administration to execute.

It’s not on the radar of most people. But that can change from day to night.

People need to hassle the living daylights out of the President. Because we need to finalize the ERA and Joe Biden can do it today.

Tell Joe Biden you want the #ERANOW