How President Biden could transform women’s rights and rescue his legacy with just a ring.Dozens of congressional Democrats have a simple pitch to President Biden: with a single phone call he can revolutionize women’s rights and salvage his damaged legacy. Annie Karni, a congressional correspondent at The New York Times, discusses whether that plan is possible and, if so, whether Mr. Biden would try. Guest: Annie Karni, a congressional correspondent at The New York Times.Background reading: Senator Kirsten Gillibrand presses Mr. Biden to amend the Constitution to enshrine sex equality.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.
Chapter 1: What is the pitch to President Biden regarding women's rights?
The pitch to President Biden from dozens of congressional Democrats is simple. With a single phone call, they've told him, he can revolutionize women's rights and revive his damaged legacy in the process. The question now is whether they're right, and even if they are, whether Biden is willing to do it. It's Monday, December 23rd. Hello, Annie Carney.
Hello, Michael Barbaro.
You are actually joining us from inside Congress where there has been lots of news over the past few days, and we are grateful for you making time for us.
I'm happy to be here. I'm sitting on the house side in a small recording booth.
Yeah, it looks very cozy. This story begins with a quest to do something that, from today's perspective, a lot of people might think is already baked into American law, but it's not. So tell us the whole story of why it's actually not.
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Chapter 2: Why isn't sex equality enshrined in the Constitution?
So this is a story that starts about a century ago, and it's a pretty remarkable story about a very simple idea. And that is that men and women should be equal under the law in the United States and that discrimination based on sex should be prohibited. That's the whole thing. But it's never actually been put into the Constitution in such plain language.
Right. That men and women must be treated equal under the eyes of law. That's actually not language in the U.S. Constitution.
Correct. You have the 14th Amendment, which has an equal protection clause. Right. But that doesn't mention sex specifically. And this passed in the 1860s, decades before women were even guaranteed the right to vote. This existed when married women in many states couldn't even own property under their own names. So this was not really about sex equality. Right.
Right. It will eventually apply to sex equality cases, the 14th Amendment, but it doesn't, as you say, specifically mention sex.
Correct. So in 1923, a suffragist named Alice Paul comes up with the idea that the United States needs a constitutional amendment specifically addressing women's equality. And she actually gets something in front of lawmakers, but it doesn't really go anywhere or get any traction for years. Right.
Welcome to the kind of woman power that sustained our grandmothers for 72 years in their struggle to get the right to vote.
Until the late 1960s when the women's rights movement is really blossoming.
Welcome to the new wave of feminism. Welcome to each other. Welcome home.
And suddenly there is excitement around this idea.
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Chapter 3: What was the impact of the Equal Rights Amendment in the 1970s?
The Equal Rights Amendment gives women rights that they do not now have.
And it passes with overwhelming margins from both parties. And then a year later, it passes the Senate, where the final vote was 84 to 8 in favor of the Equal Rights Amendment.
Tonight, after a 49-year struggle, a constitutional amendment appears on the way proclaiming once and for all that women have all the same rights as that other sex.
But there's one more step that needs to happen for an amendment to to become part of the Constitution, and that is it needs three-quarters of the states to adopt it.
For today, Indiana became the 35th, leaving the Women's Rights Declaration just three states away from becoming the 27th amendment to the Constitution.
And 35 states pass it in just five years, leaving it just three states short of ratification. So it looks like it's just sailing smoothly through the process of becoming a constitutional amendment.
I get fed up with the women's liberationists running down motherhood.
Until it runs up against vocal opposition led by a conservative woman named Phyllis Schlafly.
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Chapter 4: Who opposed the Equal Rights Amendment and why?
The Equal Rights Amendment will take away from women some of the most important rights that they now possess.
She's a self-described housewife, an anti-feminist Republican who wages war against the ERA.
First of all, it will have a powerful, dramatic, adverse effect on the rights of the draft age girl.
Her basic argument is that it would actually take away rights from women.
That every 18-year-old girl will be compelled to be given a draft number and to be available for call-up.
By eroding traditional gender roles.
The second category of women who will be hurt by the Equal Rights Amendment are wives.
with a message that traditional women's roles are a privilege.
The laws of every one of our 50 states make it the legal obligation of the husband to support his wife.
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Chapter 5: What were the outcomes of the 1982 Equal Rights Amendment deadline?
No other states are willing to adopt it. And the reason that matters is because in the original piece of legislation that had passed Congress, there was a deadline for when the states had to ratify. And in fact, a few states even go back and try and rescind their ratifications.
The latest skirmish in the pitched battle over ratification of the Equal Rights Amendment is now history. And one of the casualties may very well be final passage of the amendment itself.
So by 1982, which is the ultimate deadline that Congress came up with, they're short. This amendment has not met the legal requirements to become the 28th Amendment.
So basically, you're saying by the early 1980s, this seems to be quite dead.
You might think so, but the debate begins about whether or not the time limit is is something that should be taken seriously or whether that deadline was always meaningless.
Hmm. Just explain that.
So constitutional amendments, first of all, each one has taken its own circuitous path to passing. And they don't normally have ratification deadlines. An example is the 27th Amendment. It was ratified in 1992. That's two centuries after Congress first passed it. So supporters of the ERA argue that the Constitution itself never mentions deadlines for an amendment.
So they just are meaningless and do not exist.
Interesting.
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Chapter 6: How did the Trump presidency affect the ERA?
So there is some real legitimate gray area here.
There's a lot of legal gray area here, yes. So this thing just kind of sits on the shelf for decades until Donald Trump is elected president. And three more Democratic Party-controlled state legislators, Nevada, Illinois, and Virginia, who are motivated by women who are outraged that Trump has won and what this will mean for women's rights,
not to mention the Me Too movement, which was at its peak, adopt the ERA. So it suddenly hits the magic number of 38, three quarters of the states. It has still been passed by Congress. So on paper, according to supporters, it has cleared all the bars. The ERA has been ratified and should be part of the Constitution.
If you believe that that congressional deadline is not real.
Correct. So if you think it has met all the legal requirements and that the deadline is not in the Constitution, all that is left to do at this point is basically paperwork. The National Archivist, who's responsible for the certification and publication of constitutional amendments, just needs to publish the ERA as the 28th Amendment, and then it is part of the Constitution.
A really interesting argument.
But And this is a big but. The Trump White House at the time issues a legal opinion saying that the archivists cannot do that. And that's because of the deadline. They say that Congress set that 1982 deadline and that because of that, this is all null and void. Anything that happened after that is dead. And in 2022, when Biden is president, the Biden White House defends that position.
The Trump position that the deadline matters and that this is not suddenly a constitutional amendment. Correct.
So, again, we are in a legal gray area. In 2023, supporters of the ERA go to federal court to get a ruling about the deadline issue, and they lose. A federal court says that the deadline is real. So it's looking less gray and the chances of the Equal Rights Amendment becoming part of the Constitution are looking less likely.
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Chapter 7: What steps can President Biden take to advance the ERA now?
We'll be right back.
Good morning.
Good morning, Senator Gillibrand. How are you?
I'm well. How are you?
Good.
It's nice to see you.
I reached Senator Kirsten Gillibrand inside her office on Capitol Hill last week. Sorry. And thank you for putting on headphones. I know it is not the most glamorous way to start your day, but... I don't mind. I wonder if you can, just to start, remember when you first learned that equal rights for women were not mentioned in the Constitution.
Right. Well, I've known for a long time that the Equal Rights Amendment is not part of the Constitution. Recently, I started looking into the law and looking into actually what it takes to make a constitutional amendment. And I realized pretty quickly it was about Article 5 of the Constitution that sets out two things that need to be accomplished to become a a constitutional amendment.
You need two thirds of the House and Senate to vote in favor of it. That happened in the 1970s. It needs three quarters of the states to ratify. The last state to ratify was Virginia in 2020. And so I realized really quickly that the two things that are required by the Constitution have been met.
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Chapter 8: What is the current status of the Equal Rights Amendment?
And there was actually precedent that talked about cases that had timelines and deadlines and saying they were not valid. And I realized that the strength of the arguments were actually on our side.
So I've been asking the White House to either issue a new LLC memo, and if they don't want to do that, then direct the archivist to sign and publish on the basis that the two things that Article 5 requires have been completed.
Got it. And we're going to get to all the ways in which you have brought and tried to bring that request to the Biden White House. But I think listeners will appreciate you explaining in a kind of bigger step back way why you and why so many other Democrats
Want the ERA now, putting aside the legal arguments for just a moment, what in your mind does the Equal Rights Amendment achieve at this point that the country's current laws and jurisprudence, especially around the 14th Amendment's Equal Rights Clause, does not provide? What gaps does it fill if it becomes the 28th Amendment of the Constitution?
Well, if you noticed in the Dobbs decision... Right, overturning Roe. Justice Alito alluded that there is no right to privacy in the Constitution and there's nothing protecting women for these issues in the Constitution.
Well, that really highlighted the need for the Equal Rights Amendment to be part of the Constitution, because equal rights amendments across the board in states, states like Connecticut, states like New Mexico, there's current litigations in places like Pennsylvania.
When a state has an equal rights amendment, in the case of reproductive rights, they have found that if a woman is denied access to health care for reproductive rights, including abortion, That it's fundamentally unequal. And so in the cases of Connecticut and New Mexico, women on Medicaid were given access to abortion services because they were denied it.
And they said that was unequal under the law.
So for you, the Equal Rights Amendment, perhaps not exclusively but foremostly, is about creating in the Constitution a federal protection for abortion rights, which you think has already happened in states whose constitutions have something similar to the Equal Rights Amendment in it.
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