Dear John,

 

It’s surreal to write this, but it seems the fight of our lives is on the brink of being won.

 

Almost 100 years after it was first introduced in Congress, the Equal Rights Amendment has met all the requirements for ratification set forth in Article V of the Constitution. And this week, two years after Virginia voted to ratify becoming the last state needed, it took effect: You see, Section 3 of the ERA specifies it “shall take effect two years after the date of ratification.” So, the ERA is now the law of the land. 

 

But wait – there’s a holdup. 

 

As we report this week in Ms., in January of 2020, just before Virginia voted to ratify, the Trump Justice Department’s Office of Legal Counsel (OLC) issued an opinion arguing that the final three states’ ratifications of the ERA were invalid because of a seven-year time limit included in the preamble of the ERA. The opinion further stated that Congress had no power to remove the time limit. As a result, the national archivist was blocked from carrying out the final ministerial step of certifying and publishing the ERA as the 28th Amendment. 

 

Following pressure campaigns by ERA advocates, legal authorities and members of Congress argued the Trump OLC opinion was flawed and should be withdrawn. On Wednesday the Biden Justice Department’s OLC issued a new opinion, this time affirming the power of Congress to remove the time limit. But it isn’t enough, because it concludes that action by Congress is still necessary to deal with the time limit. 

 

Yet, according to some of the country’s leading constitutional law scholars, and I quote:

 

“The language of Article V is mandatory: an amendment to the Constitution ‘shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states.’ Nor does the text of Article V envision a role for an executive branch officer to assert his discretion regarding the validity of the amendment. The text requires no additional action by Congress or by anyone else after ratification by the final State.”

 

This past week saw a flurry of activity in response to the new OLC opinion and to mark the two-year anniversary since the ERA was fully ratified. At a press conference, leading ERA activists and lawmakers, including Reps. Carolyn Maloney (D-N.Y.) and Jackie Speier (D-Calif.), along with Sens. Ben Cardin (D-Md.) and Mazie Hirono (D-Hawaii), responded to the new Biden administration OLC memo and urged the archivist to do his statutory duty to recognize and certify the complete and final adoption of the ERA.

 

And, though additional action by Congress is not necessary, Reps. Speier, Maloney and 120 cosponsors on Thursday also introduced a resolution in the House to affirm that the ERA is now the 28th Amendment to the Constitution.

 

“The ERA has been ratified. It is the law. It should be certified and published by the Archivist,” said Eleanor Smeal, president of the Feminist Majority (publisher of Ms.) at the press conference. “The fight now is that we’re going to enforce the ERA. Without enforcement, it’s just a symbol. We want the ERA enforced. I personally have watched three generations of women fight for this.”

 

Smeal continued, “I won’t rest until it’s certified and published.”

 

Neither will we.

 

This week, yet another shoe dropped that feminists and equality advocates have been waiting for: After more than 27 years on the Supreme Court, Justice Stephen Breyer announced he’s retiring at the end of the current term. The quest begins to find a replacement for Breyer on the Court. The U.S. has had 115 Supreme Court justices—108 of whom have been white men. Just one has been a woman of color: Justice Sonia Sotomayor. On the campaign trail, President Joe Biden pledged to nominate the first Black woman to the Supreme Court. Will he follow through and who will he select? We’ll be watching—and we’ll make sure you’re the first to know.

What a week, right? Onward we march.

Kathy Spillar
Executive Editor

In its 1972 preview issue, Ms. magazine ran a bold petition in which 53 well-known U.S. women declared that they had undergone abortions—despite laws in most states rendering the procedure illegal. We know it is time again.

 

Today in Texas, abortion has been outlawed for the vast majority of women and girls. And in a few short months, the Supreme Court is likely to rule in a case that is a direct challenge to Roe v. Wade and will impact abortion access nationwide.

 

Add your name to the petition.

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