Could One Phone Call Lead to the 28th Amendment?

from The New York Times I'm Michael. Bavaro this is the. [Music]. daily. today the pitch to president bot 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. [Music]. [Applause]. it it's Monday December. [Music]. 23rd hello Annie Carney hello Michael. Barbara 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 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 US. Constitution correct you have the 14th. Amendment which has an equal prote.

Clause 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 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 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. [Music]. years 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's excitement. around this. idea and what happens once the women's. rights movement is in Blossom I would. like to discuss with you briefly the. Equal Rights Amendment so in 1971 a. democratic lawmaker in the house. introduces a bill called the Equal. Rights Amendment the equal rights. amendment gives women rights that they.

do not now have and it passes with. overwhelming margins from both parties. mhm and then a year later it passes the. Senate where the final vote was 84 to8. in favor of the Equal Rights Amendment. tonight after a 49e 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 become part of the Constitution and. that is it needs 34s 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 5 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. liberationist running down motherhood. and saying that until it runs up against. vocal opposition led by a conservative. woman named Phyllis Schley 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 erra.

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. wise 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 and. she organized a very effective. Grassroots campaign where women showed. up in droves to push this message on. state legislators who had to vote on. this and it works it lost in Missouri. Nevada North Carolina Virginia and now. Florida 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 resend 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 ultim.

deadline that Congress came up with. they're short this amendment has not met. the legal requirements to become the. 28th. [Music]. 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 something that should be taken. seriously or whether that deadline was. always meaningless H just explain that.

so Constitutional Amendments first of. all each one has taken its own secur. 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 ER. argue that the constitution itself never. mentions deadlines for an amendment so. they just are meaningless and do not.

exist interesting and on top of that. there's a real debate about this. business of states trying to resend. their. ratification states have tried that in. the past on other amendments on the 14th. and 15th amendments and their original. ratifications were still counted in the. final count that had those become part. of the Constitution 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 erra mhm 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 a supporters it has. cleared all the bars the erra has been. ratified and should be part of the. Constitution H 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 archist.

who's responsible for the certification. and publication of Constitutional. Amendments just needs to publish the ER. as the 28th Amendment and then it is. part of the Constitution a really. interesting argument but and this is a. big butt the Trump White House at the. time issues a legal opinion saying that. the archist 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 it 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 ER go to Federal. Court to get a ruling about the deadline.

issue and they lose a federal court says. that the deadline is real H so it's. looking less gray and the chances of the. Equal Rights Amendment becoming part of. the Constitution are looking less likely. but over the past few months Democrats. have decided to give it a final try and. what does that even mean really after. row was. overturned Democrats saw this. as more urgent than ever that the ra.

could be a tool to protect abortion. rights at the federal level that it. could anchor a right to an abortion in. the. Constitution and they have a Democratic. president with the power to make this. happen they want just treat this like. it's already the law of the land it's. passed Congress it's got the three. quarters of states ratified just order. the archist to publish it and sure it'll. invite a legal challenge but that's the. next step mhm so they literally say all.

Joe Biden has to do is pick up the phone. have a two-minute phone conversation. with the archist ordering her to publish. it and then they'll deal with whatever. comes next after that 45 Senators. including Chuck Schumer the majority. leader have written a letter to Biden. saying pick up the phone and call house. Democrats over a 100 all saying pick up. the phone yes it will invite a court. challenge but the point is that this. would dare Republicans to have a legal.

battle to take away equal rights for. women to say no we're fighting against. this very simple amendment that says. women deserve equal rights dare them to. start that legal. battle and the lawmaker who has really. taken up this mantle is the junior. senator from New York Kirsten Gill brand. who has made it a priority to persuade. Biden that he can and he must do.

something on this that he is the. president who can make the Equal Rights. Amendment part of the. [Music]. Constitution we'll be right. back good morning good morning Senator. gilbran how are you I'm well how are you. good it's nice to see your Senator. Kirsten Gill 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 Five of the Constitution that. sets out two things that need to be. accomplished to become 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 so what's. supposed to happen is when the two. standards are met by Article 5 2third. House and Senate pass it ratified by. three quarters of the state the. archivist who has a ministerial job only. he or she is not supposed to analyze the. law they're not supposed to have a deep. think about it they're just supposed to. sign and publish when the two things are.

done and because Trump was president in. 2020 his office of legal counsel issued. a memo telling the archivist he couldn't. sign and publish and that memo said. timelines matter and you took too long. to get this added to the Constitution. and they cited a decision saying that. all Constitutional Amendments have to be. done in a timely way well the 27th. Amendment took 203 years to become a. constitutional amendment so clearly. timeless is not a standard and so I.

looked further into what the law says. about timelines and whether this. timeline that Congress had put in as a. seven years deadline in the Preamble was. actually constitutionally operative 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 allc 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 erra 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 jurist. Prudence especially around the 14th. amendments equal rights Clause does not. provide what gaps does it fill if it. becomes the 28th Amendment of the. Constitution well if you notied in the. do's decision right overturning row. Justice Leo eluded 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. 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. constit 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 correct. because if you have equality let's just. look at dobs dos ruled that women of. reproductive years do not have a right. to privacy red states have then. implemented that to say women of. reproductive years don't have the right. to travel across state lines to get. access to healthc care they have decided. women of reproductive years don't have a.

right to have private conversations on. their Facebook pages with their mother. about seeking abortion services that. women don't have the right to privacy to. receive medicine in the mail imagine how. men in America would feel if they were. told today that they too do not have the. right to privacy to cross state lines or. to receive medicine in the mail or to. have private conversations on social. media with their families they would. start a revolution and so so I believe. if we had an equal rights amendment dos.

would be vitiated dos would no longer. count because it is applying a standard. to women only based on their gender that. they don't have a right to privacy and. therefore have no access to the health. care that they need that's a pretty big. and important claim and I wonder if it's. at all disputed you'd know better than. than I would that explicitly prohibiting. gender-based discrimination in the. Constitution which is what the Equal. Rights Amendment would do would in your. words viate obviate ter us under the.

do's decision entirely I think it could. it would be a strong legal argument that. you are discriminating against women. based on our gender and in this instance. denying as act us to life saving care. okay once Senator jbrand you decide for. all these reasons both kind of legal and. practical that this is important to you. mhm that you make this case to President.

Biden what do you do what have you done. so far to try to make this case to the. president to his AIDS I wonder if you. can kind of walk us through all of that. so I started to ask for meetings with. President Biden over a year ago I used. every opportunity that I had with the. president or with the first lady or with. vice president Harris or with vice. president Harris's husband or with their. Chiefs staff or with senior advisers in.

the administration to make the case that. the erra is valid and I have argued with. his lawyer ad nauseum and he disagrees. with me but I think my legal arguments. are supported by far more people than. support his my argument supported by the. ABA the American Bar Association and my. argument supported by a numbers of. Attorneys General from dozens of states. and the weight of the laws on our side. wait should I should I that you have not. gotten this meeting no I have not gotten.

the meeting yet I'm still asking for the. meeting Mr President I would like to. meet with you for five minutes I would. like to make my best case to you forgive. me for asking this is it strange for you. to have to essentially plead through. intermediaries whether perhaps in this. moment we are one of them to get a. couple of moments one-on-one with the. president you know I don't know what the. issue is I think perhaps the campaign. got in the way CU it became a question.

is do we want to do this in the middle. of a campaign shouldn't we wait till. after the campaign maybe those were. concerns we did polling we have polling. showing that the American people support. this we've really just tried to make the. case to all of the senior advisers that. not only is this actually accurate. legally but that it is the right thing. to do so how do you understand Senator. Biden's seeming reluctance to to engage. this he's not taking the meeting with. you he's not speak the president I don't.

think I think it's the team I don't know. I got to tell you when I I pitched it to. him I pitched it to him with my 30. seconds that I had in a photo line in a. photo line yes when President Biden came. to New York for the celebration of the. Stonewall Inn as a National. Monument I made sure I got to that photo. line and I said Mr President I think you. have an opportunity to direct the. archive to sign and publish the ER you.

got it out I said and if you do it will. be everything it will guarantee women. Reproductive Rights it will guarantee. them equality under the law it will be. the Cornerstone of your Administration. and I said I said you don't have a. formal role but the archivist does and. she needs courage and I believe if you. tell her or direct her or do a new olc. memo she will do it and he said so do. you want me to make a big deal about it. I said yes I do and that our. conversation so it was very positive so.

I've not had a negative reaction do you. think Senator that perhaps the thing. that may be holding him and if not him. those around him up here is their fear. that this won't survive the inevitable. legal challenge that will come based on. the. 1982 deadline that they just think that. this is futile and symbolic look no. matter what approach you take on this. Equal Rights Amendment it will go up to.

the Supreme Court this is the only route. that is possible I think in the near. future and why wouldn't you do it now as. an opportunity to stand up for what you. believe in you just mentioned the. Supreme Court you no doubt know that one. of the great liberal Lions of the. Supreme Court Ruth Bader Ginsburg said. in 2020 that she believed that as much. as the world as the country needed the.

erra that the best way to do it the. right way to do it was to start over she. said and this is her quote I would like. to see a new beginning rather than an. effort to just take the current. legislation having missed the 1982. deadline in her mind and make it law now. and so what do you say to a towering. legal figure and theoretical Ally like. that saying no I don't think you can do.

this I think you have to go back to the. beginning you have to do this whole. thing all over again so I disagree with. her analysis and you have to understand. Ruth Bader Ginsburg was a great legal. mind she was. a. unbelievable scholar and Justice that. did great things for our country she. knows nothing about politics it's not. her job to understand politics if you. start over you will never see.

reproductive Freedom or equality for. women in our lifetimes because it's. become a political wedge issue so there. are many people in the Senate today in. the house today that if you ask them. privately do you believe women deserve. equality they're going to say yes but. their vote on equality will be about. their position on Reproductive Rights so. that's the truth and so I respect. Justice Ginsburg for her legal acumen I. do not respect her view on this issue.

because I think she's wrong even Senator. if you were to get President Biden to do. this a big IFH you know that you face. one last meaningful obstacle because. just a couple of days ago the archist. came out probably in response to your. outspoken efforts here and said I will. not do this I will not make the Equal. Rights Amendment the 28th Amendment to. the Constitution because in her legal.

analysis good point her legal analysis. she's not a lawyer she knows nothing. about the law and for her to insert. herself as a legal analyst in this whole. process is unconstitutional she is. supposed to publish the erra because the. two standards of Article Five have been. met I mean your frustration is so. palpable to me I've watched you I've. covered you for many years and I now.

have this vision of you like tiptoeing. across the White House lawn at some. ungodly Godly hour and knocking on on. the front door I mean well I mentioned. it in the Christmas party photo line and. this is why I know Jill Biden knows. about it I said Mr President I'm still. asking for five minutes to tell you. about the Equal Rights Amendment and. Jill said we know all about it I said. great I just need five minutes because I. really believe someone is advising him.

differently and I don't think they know. all the things I know and I would like. to have him at least as the President of. the United States make this decision. fairly with all the information in front. of him and let him as the president make. history lawyers write briefs presidents. make. [Music]. history well Senator thank you very very. much for your time you're.

[Music]. welcome we'll be right. [Music]. back here's what else you need to day. even as Republicans averted a government.

shutdown over the weekend they exposed a. deep Rift between president-elect Trump. and Hardline House Republicans over. spending and debt Trump had triggered. the crisis by ordering House Republicans. to raise the federal debt ceiling hoping. that doing so before he was in office. would avoid a messy Showdown over the. issue next year instead nearly 40 House. Republicans defied Trump saying that his.

plan would generate too much debt the. spending package that ultimately avoided. a shutdown which passed both chambers of. Congress on Saturday morning extends. current spending levels until mid-march. and pushes the debate over the debt. ceiling into next year when Republicans. will control the White House and both. chambers of Congress. today's episode was produced by Carlos.

priato Luke Vander plug Claire tennis. ketter and Michael Simon Johnson it was. edited by Patricia willins with help. from Paige cowt contains research help. from Susan Lee original music from Pat. mccusker Dan Powell and Mary Lozano and. was engineered by Alyssa Moxley our. theme music is by Jim brunberg and. thenen lansberg of wonderly. [Music].

[Music]. that's it for the daily I'm Michael. Boro see you tomorrow. [Music].