Gillibrand makes a last-minute White House push for women’s rights constitutional amendment
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Senator Kirsten Gillibrand is urging President Biden to certify the Equal Rights Amendment in the final days of his administration to secure women's rights without relying on a divided Congress.
As the Biden administration nears its final days, Democratic Senator Kirsten Gillibrand of New York is making an aggressive push to advance women’s rights, particularly in the wake of the 2022 Supreme Court ruling that overturned Roe v. Wade. Gillibrand has urged President Joe Biden to certify the Equal Rights Amendment (ERA), aiming to enshrine equal protections for women in the U.S. Constitution. She argues that this could help solidify reproductive rights for women without relying on a divided and gridlocked Congress.
In a memo to various stakeholders, Gillibrand framed her call as a critical step in ensuring women’s equality and freedom, particularly after the Roe decision, which erased the federal right to abortion. While Biden has taken several executive actions to safeguard abortion access since the Roe reversal, there is little he can do beyond that without congressional support. Gillibrand’s proposal, however, offers a potential workaround, emphasizing that Biden could direct the U.S. Archivist, Dr. Colleen Shogan, to certify and publish the ERA, which has already been ratified by the required number of states.
The ERA, originally approved by Congress in 1972, guarantees equal rights under the law, regardless of sex. After decades of stagnation, Virginia became the 38th state to ratify the amendment in 2020, meeting the threshold required for it to become part of the Constitution. Gillibrand believes that Biden could use his executive authority to certify the ERA, adding it to the Constitution despite the passage of time and challenges along the way.
However, legal experts caution that the process is not as straightforward as Gillibrand suggests. According to the Brennan Center for Justice at New York University’s law school, the ratification deadlines for the ERA have long passed, and several states have rescinded their approval of the amendment, complicating the situation. This has raised questions about whether the president has the legal authority to move forward with certification after more than 50 years since the ERA first passed Congress.
In response to these legal complexities, Gillibrand has continued to advocate for the ERA, pressing the case directly to key members of the Biden administration. She has reportedly discussed the issue with senior aides, including members of the White House counsel’s office and the Gender Policy Council. According to a source familiar with her efforts, Gillibrand even raised the issue with President Biden and First Lady Jill Biden during a holiday party photo line. Despite these discussions, Gillibrand has expressed frustration over the lack of a definitive response, though she has stated that officials seem to support her arguments.
Gillibrand’s primary motivation behind the push is to ensure that sex-based distinctions in reproductive care are considered unconstitutional. She believes that certifying the ERA would provide a solid legal foundation for reproductive rights and other women’s protections, especially in a post-Roe America. In a statement, she explained that the ERA would “establish the premise that sex-based distinctions in access to reproductive care would be unconstitutional,” further cementing women’s rights into the nation’s legal framework.
The White House has not ruled out the possibility of certifying the ERA, with spokesperson Kelly Scully emphasizing that President Biden remains committed to seeing the amendment definitively enshrined in the Constitution. Scully noted that senior administration officials continue to engage with Congress and other key stakeholders to address this issue, underscoring that the time has come to recognize the will of the American people in securing women’s rights.
Despite these assurances, the issue of the ERA’s certification remains contentious. Under the Trump administration, the Justice Department’s Office of Legal Counsel issued an opinion in 2020 stating that the deadline for ratification had expired, making it impossible to move forward with the amendment. However, in 2022, the National Archives issued a statement clarifying that this opinion did not prevent Congress from acting on the ERA or from having the matter considered in court. This statement left open the possibility for the Biden administration to take further action, though it remains unclear how this legal impasse will be resolved.
As Gillibrand and other advocates continue to press for the ERA’s certification, the issue highlights the ongoing political and legal battles over women’s rights in the United States. The push for the ERA’s inclusion in the Constitution comes at a pivotal time, as the nation grapples with challenges to reproductive rights and ongoing debates about gender equality. Gillibrand’s efforts reflect her unwavering commitment to advancing women’s rights, even as the path forward remains fraught with legal and political hurdles.
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