Do We Have the ERA Now??
1.17.25
The Quickie: Read or click to skip ahead!
In The ERA, I explain what Biden’s announcement on the Equal Rights Amendment really means.
In the States, North Carolina’s governor expanded protections for providers and patients, South Carolina Republicans are pretending to give a shit about women harmed by abortion bans, Connecticut’s governor isn’t going to stockpile abortion medication despite pressure from the legislature, and more on Brittany Watts’ suit in Ohio.
Anti-Abortion Strategy digs deeper into the plan to have ‘aggrieved men’ bring anti-abortion lawsuits.
In the Nation, a collection of good reads for you, including a Mother Jones piece about how Trump could attack the nonprofit status of pro-choice groups.
Keep An Eye On the way Republicans are talking about the “will of the people.”
Attacks on Democracy warns that Florida Gov. Ron DeSantis is trying to change up ballot measure rules.
The ERA
Okay, I wasn’t planning to write about the ERA today, but here we are: As you likely know by now, President Joe Biden has announced that he considers the Equal Rights Amendment “the law of the land.”
“We, as a nation, must affirm and protect women's full equality once and for all,” Biden said.
I’m here for it, but unfortunately it’s not that simple. Legal experts I’ve spoken with say Biden’s statement is mostly symbolic—the president can’t just declare that the ERA is the 28th Amendment. NPR reports that the national archivist, Colleen Shogan, would have certify the amendment for it to go into effect. Others, however, argue it’s already in effect and has been for some time.
Here’s some background: Virginia became the 38th state to ratify the ERA in 2020, officially giving the amendment the state support it needed to be added to the Constitution. But the Trump administration directed the archivist not to take action, and conservatives argued that the deadline had passed. Meanwhile, groups like the American Bar Association argue that the ERA has “cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment.”
Since then, New York Sen. Kirsten Gillibrand has lobbied Biden to direct the archivist to certify the ERA. But Biden stopped short of doing that today. Instead, senior administration officials say the president is simply sharing what he believes. Here’s what one of those officials told CNN:
“He is using his power of the presidency to make it clear that he believes—and he agrees with leading constitutional scholars and the American Bar Association—not that it should be, but it is the 28th Amendment of the Constitution.”
So what does that mean? Essentially, it’s up to the courts now. Indeed, in a tweet today, Sen. Gillibrand urged women living in anti-abortion states to take action:
“Now, women living in states with restrictions on their reproductive freedoms can – and should—file suits to overturn these unconstitutional laws that discriminate on the basis of sex. I know they will have ample support as they seek justice, and I promise to stand by their side in this fight.”
Clearly, the hope is that women will file ERA-based suits, leaving the courts to determine the amendment’s validity. What’s more, Democrats want to put Republicans on the spot—forcing them to admit that they don’t want to give women constitutional equality.
I’ll have more for you on this next week, but in the meantime I think it’s fair to be cautiously optimistic!
In the States
With just days before Donald Trump takes office, Democratic governors are scrambling to protect abortion rights however they can. The latest move comes from North Carolina Gov. Josh Stein, who expanded protections for providers and patients this week.
Gov. Stein’s executive order prohibits state agencies from cooperating with prosecutions against healthcare providers who perform or prescribe abortions. It also mandates a review of how private reproductive health data is stored. “I don’t know what will happen,” Stein said, “but what I am trying to communicate to the people of this state is that they have a champion in me for their personal privacy and their right to make their own health care decisions.”
Meanwhile, South Carolina Republicans are pretending to care that their abortion ban hurts women: After Christine Glang’s story of being denied miscarriage care made headlines, state Sen. Josh Kimbrell wrote a letter to South Carolina’s medical association “clarifying the intent” of the ban and blaming her experience on ‘misinformation.’
This has become the GOP’s standard response to post-Roe horror stories: deny responsibility and claim their bans are simply misunderstood or misinterpreted.
In pro-choice states, governors are taking different approaches. While leaders in Massachusetts and New Jersey are stockpiling abortion medication, Connecticut Gov. Ned Lamont has decided not to build up a supply of mifepristone. His decision has disappointed some Democratic lawmakers, who have been pressuring him to act before Trump’s inauguration.
Rep. Jillian Gilchrest says that Lamont decided against the move because of the cost—which would have been somewhere in between $850,000 and $1.2 million. “I am disappointed that at this point in time, we have yet to do anything to stockpile mifepristone in the case of a change to the Comstock Act,” Rep. Gilchrest said.
Finally, The Guardian reports on Brittany Watts, the Ohio woman who was wrongly arrested and prosecuted for ‘abuse of a corpse’ after miscarrying at home. Watts is suing the city of Warren, the hospital that ‘treated’ her, the cop who interrogated her as she awaited surgery, and the nurses who reported her to law enforcement.
You can read Abortion, Every Day’s coverage of the lawsuit below:
Anti-Abortion Strategy
You all know that one of my predictions for 2025 was a rise in anti-abortion lawsuits from ‘aggrieved men’—abusive assholes furious that their partners or ex-partners got abortions without their permission. In fact, I posited that the suit brought against a New York abortion provider by Texas Attorney General Ken Paxton likely stemmed from one of these men.
This week, The Washington Post confirmed as much, reporting that Paxton’s office has launched a “broader abortion law enforcement operation” to actively recruit plaintiffs:
“This partner-focused approach will shift to a more public phase next month when Texas’s largest antiabortion organization launches an advertising campaign on Facebook and X to reach the husbands, boyfriends and sex partners of women who have had abortions in the state—with the goal of recruiting them to file lawsuits against those who assisted the women in ending their pregnancies.”
This is one of those times I really hate to be right. They’re literally taking out ads for abusers.
John Seago, the president of Texas Right to Life, told WaPo their goal is “to tell dads that if you’re the father of a child victim of an abortion, you have legal rights, there may be a way to hold these people accountable.” And we know who “these people” are: women and anyone who helped them. This isn’t just about lawsuits—it’s a sanctioned way for abusive men to punish their victims.
As attorney Alex Wolf said, “It can be very difficult to have all of this information made public and made public in a way that they don’t have any control over.”
As I wrote in my predictions piece, this is a logical next step for the anti-abortion movement. Republicans are furious that women are still accessing abortions despite restrictive laws, but they’re struggling to find plaintiffs because most women who end their pregnancies don’t regret their decision. Targeting men instead gives them the lawsuits they crave and brings the movement back to its original roots: misogyny.
In the Nation
I really appreciated Mother Jones’ recent piece on how Trump’s attacks on abortion rights will be more insidious than ever. After all, Republicans—and the Trump campaign, in particular—spent the months before the election insisting that they were ‘moderate’ on abortion. So once Trump takes office, they won’t want to be super obvious in their attacks.
Reporter Madison Pauly details the kinds of attacks we can expect, from attacks on privacy to battles over emergency abortions. But one point stood out as something we don’t talk about nearly enough: the finances of the abortion rights movement.
“From clinics to research teams to legal and policy groups, the organizations that work for abortion rights are almost always nonprofits. Anti-abortion groups often file IRS complaints accusing abortion-rights groups of violating rules restricting nonprofits’ political activities (and sometimes the attacks go in the other direction). While nonprofits’ tax-exempt status is supposed to be determined in a nonpartisan manner, House Republicans passed a bill last year to allow the Treasury Department to revoke the status from organizations it deemed to be ‘terrorist-supporting.’ The bill died before it got to a Senate vote, but it sparked fear among nonprofits of all stripes about the potential for the meaning of ‘terrorism’ to be twisted to punish ideological differences.”
What better way to dismantle the abortion rights movement than by drowning us in bureaucracy, red tape, and endless paperwork? It’s not just effective—it’s “boring” enough to stave off Americans’ pro-choice outrage.
Other good reads:
Ms. magazine breaks down why Marco Rubio would be a disaster for women as Secretary of State.
HuffPost has more on Mike Pence’s lobbying effort against RFK Jr. over his changing abortion position.
The Freedom from Religion Foundation warns about the ways that Trump could attack abortion rights.
The 19th outlines what Trump could do to abortion rights immediately upon taking office.
Keep An Eye On
One of the biggest hurdles for Republicans on abortion rights is just how unpopular their bans are. Americans are overwhelmingly pro-choice, even in red states. Voters nationwide want abortion rights restored and protected. Naturally, the GOP can’t admit that, so they’re constantly inventing ways to pretend voters actually support abortion bans.
This interview with Oklahoma’s new House speaker is a perfect example. When The Oklahoman asked Republican Kyle Hilbert if the legislature and voters are aligned on abortion rights, here’s what he said:
“I would think so. Just about every Republican that I'm aware of in the Legislature campaigned on being against abortion, and voters overwhelmingly voted for those Republicans to be in office. I think the voters have spoken loud and clear.”
This is a talking point we saw quite a lot of in the lead-up to the election, as Republicans panicked about the outcomes of pro-choice ballot measure votes. The idea is to make it seem as if it’s not direct democracy that tells us what voters believe on an issue, but who they vote for. (Never mind voter suppression or gerrymandering!)
In the coming months, just keep an eye out for more Republican attempts to redefine what the “will of the people” really means. Spoiler: it’s rarely what they claim it to be.
Attacks on Democracy
After a close call on abortion rights, Florida Gov. Ron DeSantis is doubling down on dismantling democracy. His latest move? Making it nearly impossible for citizens to propose ballot initiatives—effectively cutting off voters’ ability to challenge his agenda.
For those who need a refresher: DeSantis defeated Amendment 4—a pro-choice ballot measure—by weaponizing millions in taxpayer dollars, launching a bogus voter fraud investigation, threatening media outlets, and deploying state agencies against it. It was an anti-democracy nightmare. (How else do you describe an amendment losing with 57% of the vote?)
But even after crushing the will of voters, DeSantis wasn’t satisfied. He clearly wants to ensure nothing gets that close again. Just days after I warned that DeSantis was considering changes to state rules for citizen-led initiatives, he made good on that threat."
In a letter to state leadership, DeSantis proposed a series of new rules to gut the ballot initiative process, including eliminating petition gatherers entirely. Under his plan, Floridians would have to go in person to their local Supervisor of Elections (SOE) office to sign a petition—or navigate an onerous, multi-step mail-in process.
Here’s what that would look like: Instead of simply signing your name on a petition, supporters would need to personally visit their SOE office or contact the office to request a petition form, provide “qualifying personal identifying information,” wait for the form to arrive by mail, fill it out, and then mail it back.
And that’s just the start. DeSantis also proposed this gem:
“Require Supreme Court advisory opinions to evaluate initiative petitions for compliance with the inalienable rights clause of Article I, section 2 of the Florida Constitution.”
What’s the “inalienable rights clause”? It’s the part of Florida’s constitution that says “all natural persons, female and male alike, are equal before the law and have inalienable rights.” Sounds reasonable, right? Until you realize why DeSantis is invoking it: to weaponize the clause against abortion rights.
If Florida’s conservative Supreme Court decides to define fetuses as “people” (which we know they’re itching to do), they could block abortion-related ballot measures—claiming they violate the “inalienable rights” of fetuses.
In fact, when the Florida Supreme Court heard arguments about Amendment 4 last year, Chief Justice Carlos Muniz asked specifically about that clause in the state constitution and how it related to fetal personhood. In other words, DeSantis is writing rules specifically to keep abortion from going on the ballot again.
Lauren Brenzel, the former campaign director of Amendment 4, told me, “Reproductive health activists have always said abortion is a litmus test for how far politicians are willing to go to dismantle democracy.”
“He would rather eradicate the will of the people than lose control of his oligarchy. Eyes need to be on Florida to help defend the initiative process. This process is how Floridians obtained fair wages, medical cannabis, and expanded voter access. We cannot lose the ability to petition our government.”
I’ll keep you updated on this one, but consider it your regular reminder that these politicians do not care about democracy.
For more on what happened in Florida, read Abortion, Every Day’s election day coverage below:
The ERA IS the 28th Amendment. It has met all requirements of Article V of the Constitution. All 400K lawyers of the American Bar Assoc agree.
The certification of the archivist is merely ministerial- only one previous amendment has been certified by the archivist.
Read Laurence Tribe’s substack from today -
Money quote: It is not necessary for the National Archivist to publish the ERA in order for it to be adopted according to the provisions of the Constitution. The President avoided triggering a clash with the Archivist, who recently announced her intention to defy her statutory, and purely ministerial, duty to publish the ERA. The only reason Congress gave the Archivist such a duty nearly a century ago was to ensure that the Nation got word that an amendment was in force, enabling officials at all levels of government to conform their actions to it. In our modern age of broadcast, cable and internet communication, the President’s announcement itself performed that function.
As I understand it, in 2020, a memo from the office of legal counsel said that the deadline for ratifying the ERA had passed and even though the 38 required states had ratified the ERA, it didn’t count.
As I understand it from Constitutional lawyers like Lawrence Tribe and Jill Winebanks, there are no time restrictions. For people saying that some states, governed by the GOP, want to rescind their votes, they can’t. It’s not doable under our Constitution. Once a state ratifies, it’s ratified.
It’s also not the Archivist’s job to weigh in and block the Amendment. The job is purely ministerial and this Archivist is out of line.
All of this is bs thrown at us in the usual bs fashion (think Judge Cannon weighing in on Jack Smith’s decision to release his report when the judge had no standing) to confuse everyone and stymie us. I wish Biden had done something four years ago so that then he could have fired the Archivist and her deputy for cause when they refused to do their jobs. It simply wasn’t important to Biden or his advisors.
But at least now, we can engage the battle. For people saying we should wait until we have a different Supreme Court, I say bullshit. I’m glad to have this argument now. The GOP will have to say women and LGBTQ + people are not equal to white men.
So let’s go! It’s a fight well worth having. Let’s honor the 100+ years of working towards equality.