Gillibrand makes a last-minute White House push for women’s rights constitutional amendment

Washington (CNN) — Democratic Sen. Kirsten Gillibrand is making an all-out push in the waning days of the Biden administration that she believes could bolster reproductive rights, calling on the president to certify the Equal Rights Amendment and enshrine its protections into the Constitution.

The move, the New York Democrat wrote in a memo to interested parties, gives Joe Biden a way to “codify women’s freedom and equality without needing anything from a bitterly divided and broken Congress” in the aftermath of the 2022 Supreme Court decision overturning Roe v. Wade.

Biden has taken some executive actions to protect abortion rights following the decision, but the White House has essentially exhausted its options short of Congress codifying Roe’s protections, which remains unlikely.

Gillibrand contends Biden could simply direct the archivist of the United States, Dr. Colleen Shogan, to certify and publish the ERA, a bill approved by Congress in 1972 that enshrines equal rights for women. An amendment to the Constitution requires three-quarters of states, or 38, to ratify it. Virginia in 2020 became the 38th state to ratify the bill after it sat stagnant for decades.

But legal experts contend it isn’t that simple: Ratification deadlines lapsed and five states have rescinded their approval, according to the Brennan Center for Justice at New York University’s law school, prompting questions about the president’s authority with the measure more than 50 years after it first passed. Should Biden make the call, experts predict it would face significant legal challenges.

Undeterred, Gillibrand has pressed her case to the president’s top aides and outside allies, including a recent appeal to Biden and the first lady during a holiday party photo line, according to a source familiar with the interaction. She has been in contact with the White House counsel’s office, the Gender Policy Council and other officials involved in the matter.

“It’s ‘I’ll get back to you; I’ll get back to you.’ Everyone always says, ‘We love your arguments.’ I never know what the ‘but’ is,” she told The New York Times, which extensively reported on her efforts.

She said the amendment “would establish the premise that sex-based distinctions in access to reproductive care would be unconstitutional.”

And the White House is suggesting the move remains on the table.

“President Biden has been clear that he wants to see the Equal Rights Amendment definitively enshrined in the Constitution,” White House spokesperson Kelly Scully said in a statement shared with CNN.

Scully continued, “Senior Administration officials have and will continue to engage with key Congressional leaders and other stakeholders on this issue in the weeks ahead. It is long past time that we recognize the clear will of the American people.”

In 2020, the Trump administration’s Justice Department determined in an Office of Legal Counsel opinion that the deadline had passed and the amendment could not be ratified. But the National Archives issued a statement in 2022 saying that opinion “is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions.”