NAWL Joins Letter to President Biden to Certify the ERA Now

December 4, 2024

President Joseph R. Biden

The White House

1600 Pennsylvania Avenue, NW

Washington, DC 20500

Re: Certify the ERA Now!

Dear President Biden:

We are writing on behalf of Women Lawyers On Guard Action Network, Inc. and the National Association of Women Lawyers, two nationwide organizations that together represent the voice of hundreds of thousands of lawyers.

Women’s rights are under attack in ways we have not seen in generations. Pregnancy in states with abortion bans has become a death sentence for some women and, with the criminalization of women’s health care, more will die. Medical students and residents in states with abortion bans are not getting the training they need in order to give women the accepted standard of care, and “maternal health care deserts” are now a reality. Some in the GOP seek to erase more than 100 years of history. Some propose repealing the 19th Amendment, which enshrined women’s right to vote in the Constitution.

In this environment, the Equal Rights Amendment (ERA) is more important than ever.

The operative language in the ERA 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.

The ERA has now been ratified by the requisite 3/4 of the States required by the Constitution. We call upon you to complete the Constitutional process and instruct the Archivist of the United States to certify and publish the ERA now.

Generations of women (and men who support them) have fought for laws to allow women to have a job outside the home, own a home, obtain a loan or credit card, and get the health care they need. However, these laws at best are a patchwork which can be narrowed or even repealed. The President or the Executive Branch at the federal level and other governments (state, local) can refuse to enforce them. Congress can tell DC and the Territories what their laws on these issues should be. Courts can narrow them — or as with Dobbs, erase decades of freedom.

First proposed by Alice Paul in December 1923, the ERA was introduced in every session of Congress from 1923 through 1970, but was bottled up in Committee for decades, with Committee Chairs refusing to bring it up for a vote. In 1970, Congresswoman Martha Griffiths (D., Mich.; 84th-93d Congresses; Chair, Ways & Means) filed a discharge petition which upon passage brought the ERA to the floor of the House of Representatives where it passed. Although the Senate failed to approve it that year, the next year bipartisan majorities in both Houses of Congress passed the Amendment overwhelmingly, far exceeding the 2/3 majority required in Article V of the U.S. Constitution.

Six states ratified the Amendment within six days of Congressional passage on March 22, 1972. By the end of 1973, 30 States had ratified it. By the end of 1977, 35 States had ratified the ERA, but then progress stalled. Decades later, with the momentum created by the Women’s Marches and the #MeToo movement, Nevada and Illinois ratified; and on January 27, 2020, Virginia became the 38th State to ratify the ERA, reaching the 3/4 of the States required by the Constitution. As set forth in the Constitution, the ERA became part of the Constitution when Virginia ratified it in 2020. The Executive Branch has no role in the amendment process, as shown by a plain reading of Article V. The only remaining requirement necessary now to add the ERA to the Constitution – where it belongs – is publication and certification by the Archivist of the United States, as has been done with the other 27 Amendments to the Constitution.

We call on you in your remaining days in office to instruct the Archivist of the United States to certify and publish the ERA now. There is no reason that the Archivist has failed to take this ministerial step. Legislators in Congress have introduced resolutions recognizing that the ERA has been validly ratified, and it should be published and certified by the Archivist. In August 2024, the American Bar Association, the world’s largest voluntary association of lawyers, adopted a policy supporting certification and formal addition of the ERA to the Constitution.

Contrary to its opponents’ arguments, States cannot rescind their ratification of a Constitutional Amendment. The ratification process is silent on any right to rescind, and there is no such implied right in the text or case law. Even an “originalist” reading of the Constitution and its related history confirms this point. No less a commentator on the subject than James Madison himself, in a letter dated July 20, 1788 to Alexander Hamilton, declared that ratification is “in toto and forever.”1 Indeed, some States attempted to rescind their ratifications of the Fourteenth and Nineteenth Amendments, but neither Congress nor the Executive Branch recognized those attempts. Thus, assertions by States that they want to rescind their earlier ratifications of the ERA should not be allowed to hold up the addition of the ERA to the Constitution. As the text of the Constitution and legal scholars confirm, purported rescissions of votes ratifying the ERA are null and void.

In addition, the Constitution includes no provision requiring that ratifications be “contemporaneous” with each other, and any such provision purporting to impose such a time frame is superfluous. This is shown by the plain language of Article V which contains no such timing requirement. None is found in the text of the Amendment itself and so the 38 States that voted to ratify the ERA did not vote on any such timing requirement. Another Constitutional Amendment, which included no timing requirement, received its final ratification in 1992, more than 200 years after Congress first sent it to the States for ratification — in 1789. That Amendment, now the 27th Amendment, is nicknamed the “Madison Amendment,” after Founding Father James Madison who first proposed it. The Amendment, which precludes a sitting Congress from voting on its own compensation, was ratified by six States between 1789 and 1791, but then sat dormant for almost 200 years before States in the 1980s began once again to ratify it. The Archivist did not hesitate to publish and certify the Madison Amendment once it received ratification from the 38th State, thus confirming its rightful addition to the Constitution in 1992. The 48-year time period here for the ERA pales in comparison to the 203-year period between the first and last ratifications for the 27th Amendment.

Under the Constitution and relevant statute (1 U.S.C. § 106b), the Archivist should now publish and certify the ERA now. We ask that you call on the Archivist to complete that administrative task immediately, confirming the addition of the ERA to the Constitution as the 28th Amendment.



Respectfully,