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Brian Lehrer: Brian Lehrer on WNYC. Now, it's time for our monthly Call Your Senator segment, my questions and yours, for New York Senator Kirsten Gillibrand, and you don't even have to be from New York to call in. 212-433-WNYC, 212-433-9692. Not to bury the lead, there is potentially really big news this morning from Senator Gillibrand. She and Congresswoman Cori Bush of Missouri are introducing a resolution to declare the Equal Rights Amendment has been ratified and should officially become the 28th Amendment to the US Constitution.

The ERA, which would ban discrimination on the basis of sex, passed Congress long ago and was ratified by enough states to become law. It needs a large majority of the states, but it depends on your interpretation whether the final states ratified it in time to count. Gillibrand's resolution would declare that, yes, they did. Part of the hope here, as I understand it, is that would provide a new constitutional basis for restoring abortion rights nationally after the Supreme Court's Dobbs decision or politically Republican senators running for re-election next year will be on the record as voting no for equal rights for women.

Now, that might matter politically because the New York Times today cites a recent Pew Research Center poll done in 2020, which found the concept of an ERA has overwhelming public support, around 80%. Go ahead, Republicans, vote against this at your peril is basically the dare here. Senator Gillibrand joins us now on that and more. Senator, always good to have you. Welcome back to WNYC.

Senator Kirsten Gillibrand: Thank you.

Brian Lehrer: Would you just remind people what the Equal Rights Amendment says to start off and a little of the history of when it was first proposed and why it's not in the Constitution yet?

Senator Kirsten Gillibrand: Absolutely. The Equal Rights Amendment would say equality of rights under the law shall not be denied or abridged by the United States or any other state on account of sex. The Equal Rights Amendment was first introduced 100 years ago to codify gender equality, and since 1923, a version of this constitutional amendment has been introduced in every Congress until it was passed in 1971 in the House and 1972 in the Senate. This question about ratification, Article V of the Constitution requires two things to create a constitutional amendment.

It requires that its passage by two-thirds of both the houses of Congress, which has happened, it happened in '71 and '72, and ratification by three-fourths of the states, which most recently just took place in 2020 when Virginia ratified the ERA, becoming the 38th state with the final requirement for ratification. Under the Constitution, that's all that's required. Now, this debate about timing is because, in one of the preambles, it said it had to be done in a few years, but it was in the preamble and not in the actual bill.

We've had instances where language has been in preambles, and we've had instances where deadline language has been in the bill. Writers of these bills are very intentional about it, and if it's not in the bill, I don't think it prevails. That is the argument that we have already done the two things required by Article V of the Constitution to pass the ERA, and now it's just up to the archivist to sign it and publish it.

Brian Lehrer: What exactly are you and Representative Bush doing today along those lines?

Senator Kirsten Gillibrand: We are directing the archivist to sign it and publish it, and that's it. We believe that President Biden has the right to do this. We are urging the president to ask his Department of Justice for a legal opinion if he wants or just tell the archivist to do it, because that's all that the Constitution requires, and I don't think this preamble language about timing is determinative.

Brian Lehrer: Even if you get this passed, and we'll talk about the prospects for getting it passed by vote in Congress in a minute, but even if you get it passed, it sounds like you would then have a legal fight on your hands, and it might wind up with the same nine justices who undid Roe v. Wade last year, having to determine if this is constitutional, the way you're saying it, or constitutional, the way the opponents are saying it, which would be that the deadline was missed. Right?

Senator Kirsten Gillibrand: I don't think it necessarily goes to the courts because there's no litigation action. If you look at constitutional law and precedent, each of the arguments they would have against it has already been shown in history not to be valid. For example, this started over 100 years ago. Well, the 27th Amendment, which was the last amendment that was passed, was literally written by James Madison, and it took 203 years for it to become signed and published because it needed one more state to ratify it, and it didn't ratify until 1992.

Now, that amendment was just about congressional pay raises, but it's a constitutional amendment, and it took 203 years. There's been instances with both the 14th Amendment and the 19th Amendment where states had buyer's remorse. States that ratified it once said, "Oh, no, no, no, we want to take back our ratification." In the past, those archivists have disregarded their attempts to de-ratify because ratification means that you've passed it at one moment in time.

It doesn't mean that it was recent. It doesn't mean that the current Congress likes it or the current state likes it. It's just whether it's been ratified in time and that they sustained the publishing of the 14th Amendment and the 19th Amendment in those circumstances.

Brian Lehrer: So you feel this has already been litigated in effect? Listeners, pro-ERA, anti-ERA, any questions for Senator Gillibrand on what she's trying to do to get the Equal Rights Amendment ratified by the federal archivist? 212-433-WNYC, 212-433-9692. You can also text a question or a comment to our number, 212-433-WNYC. Also, other topics are okay, and we will get to some other topics with Senator Gillibrand here in our monthly Call Your Senator segment, my questions and yours.

For the junior Democratic senator from New York, I'm going to play a clip of Republican Senator Lindsey Graham of South Carolina here back in the winter when the germ of this idea started circulating. Listeners, as you will guess, Senator Graham doesn't like it.

Senator Lindsey Graham: This amendment would lead to chaos. This amendment would really punish women who are trying to play sports fairly. This amendment would give the court the ability to strike down every pro-life measure passed by the states. If you don't believe me, this is what the NRL said, sent out a national alert, "The ERA," what we're debating here today, "would reinforce the constitutional right to abortion. It would require judges to strike down anti-abortion laws."

Brian Lehrer: Lindsey Graham a few months ago. Senator Gillibrand, we'll get to what he may have meant about women's sports, but do you agree that this could be a legal basis for overturning the Dobbs decision? Is that one of the reasons that you're doing it?

Senator Kirsten Gillibrand: Yes, it is definitely an application of the ERA, and it's already been used. For example, in New Mexico, New Mexico Supreme Court struck down a state law banning state funding for abortion-related services or counseling based on New Mexico's own ERA, which "allows for equality of rights for persons regardless of sex." The pro-life movement, the National Right to Life organization agrees, and they asked senators to oppose an earlier resolution citing that would easily lend itself to powerful pro-abortion legal weapon, potentially invalidating all pro-life laws or government policies.

There's a recognition that when you deny women bodily autonomy, when you deny women the ability to make life or death decisions about when they're having children, under what circumstances, with whom, that you are denying them equality under the law. Without having life, liberty, pursuit of happiness, we've enshrined the absolute promise of life and liberty in our Constitution, and it's not applying to women right now. For women of reproductive years, they don't have control of their life and they don't have control of their liberty.

These very far-right red states and legislatures are taking advantage of that and denying this right to privacy in places like no right to communications with your mother confidentially on Facebook about your reproductive care, no right to privacy for parents who want to bring their 10-year-old daughter across state lines who's been raped so she can get access to abortion services. The right to privacy being denied is so over expansive. It's become obvious to everyone that women, particularly women of reproductive years, are second-class citizens.

Brian Lehrer: Make that case legally because abortion rights opponents might argue women already have equal protection under the 14th Amendment's Equal Protection Clause and the Civil Rights Act of 1964 as amended. The Supreme Court knew that last year and they would argue you must have decided that Dobbs did not violate those. Make your case to these justices hypothetically why the ERA, if in effect, would change that.

Senator Kirsten Gillibrand: I think the ERA is just a very direct statement that no law can abridge someone's rights because of their sex. Its equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex. I think if you just apply the common-sense rationale, if you live in one of these red states that have denied access to reproductive care, if you have a miscarriage and you need an emergency D&C so you don't bleed out and die, you might not be able to get that procedure in a whole host of states. You are not an equal citizen if you can't access healthcare that is lifesaving.

I don't think the 14th Amendment is clear enough that these laws that abridge bodily autonomy and the right to save your own life is a problem and it undermines women's freedom, their life, their liberty, and everything that the Constitution stands for. I think the right-to-life movement recognizes this, that God forbid, women have equality because they'll get to make these decisions themselves. That's why they have really pushed against passing an ERA, even though you ask 80% of Americans, I think it's 70 or 80%, "Do you believe women should have equality under our Constitution and have an Equal Rights Amendment?" they say yes.

This is something that the country feels we already have, but when these right-wing legislatures are denying the right to travel, denying the right to privacy in the mail, denying the right to privacy in communications, you are in a very strange time where women are being treated as second-class citizens who do not have full equality and do not have autonomy of travel, of communications, and no privacy. It's pretty shocking.

Brian Lehrer: Yes. It is 80%, by the way, according to the New York Times article on your resolution this morning. According to the 2020 Pew survey, 80% of Americans responded that they would support an ERA. I don't know exactly how that question was worded. Maybe it was the provisions of the Equal Rights Amendment or the wording or just the idea of an Equal Rights Amendment. However, they did it, it got 80% approval according to the way the Times wrote it up today.

One more thing before we get to callers. From what I've read, you don't expect this to pass the Senate with the 60-vote requirement, so this is largely a political play to force Republicans onto the record before they run for re-election next year. Fair?

Senator Kirsten Gillibrand: It's not about a political play or messaging because I don't even think we'll necessarily have a vote on this this year because we just had one. We had a vote on a similar amendment that just was going to change the time limit, and we only received two Republican votes from Susan Collins and Lisa Murkowski. We know where everyone stands on this and because the right-to-life movement has co-opted this in saying, "If you vote for this, then you're not standing with us on reproductive issues." It's really, I think, frozen Republicans in place that would normally think, "Yes, equality for women's a smart and good thing."

The purpose of doing this now is to change the climate of the conversation to inform people what our Constitution actually says, and especially, to inform the Biden administration that they could do this all by themselves. This is something within presidential purview that the archivist could just take the two things we've done, which is passage by two-thirds of both houses of Congress and ratification by three-fourths of the states. As the Constitution requires, then you just need to sign it and you need to publish it.

The archivist could do it, and if the president feels that he needs more legal support for that, he can ask for an opinion from his Department of Justice, which will be very different than what the Trump Department of Justice thought, and have the legal basis on which to feel comfortable doing this. This is sound legal argument, and I think he should do it because he believes in this. It also creates a different national conversation about what this Dobbs decision has actually done because eliminating the right to privacy for women of all reproductive years really does affect the equality of women so radically.

I think it does abridge what the 14th Amendment provides which is what you said earlier, Brian, because the 14th Amendment does say no state shall deprive any person of life, liberty, or property without due process of law. This life and liberty thing is real. Maternal mortality in this country, we are the highest industrialized country in the world with the highest maternal mortality rate right now. If you are a Black woman, your maternal mortality rate is four times that of white women because of long-endured institutional racism in healthcare and other issues in how we provide healthcare to Black women.

The truth is that this is depriving women of their lives and their liberty and it's real. It's not insignificant. If you just look how people have applied Dobbs across the country, we are going into a place where women are not treated equally at all, that members of Congress and their state legislators and their local governments have more say over their life and liberty than they do.

Brian Lehrer: Those maternal mortality stats compared to other countries, the part of American exceptionalism that they don't want to talk about. We'll continue in a minute with Senator Gillibrand. Your calls on her resolution to declare the Equal Rights Amendment part of the United States Constitution right away and more. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC with Senator Kirsten Gillibrand. Tulis in Harlem, you're on WNYC. Hi, Tulis.

Tulis: Good morning, Brian. Thank you so much for taking my call. I think it's important to mention the name of the woman who wrote the Equal Rights Amendment, and that's Alice Paul who was arrested for obstructing traffic when she and some other women picketed the White House in favor of a woman's right to vote. As such, they were thrown into an insane asylum and force-fed for several weeks. I just want to say her name and that that's an important person that we should thank.

Brian Lehrer: Thank you for saying the name Alice Paul out loud. Senator, any response?

Senator Kirsten Gillibrand: I love Alice Paul. If you look at my children's book, Bold & Brave, I have a whole section on her. She's really an incredible woman in our history who was part of doing the first women's march on Washington. That pageantry of a woman on a white horse leading a procession of thousands of women. The women who marched that day also got things thrown at them, got beaten, got dragged. It was a pretty bold thing for women back then, and Alice was at the front of it. Alice really changed how they actually really pushed for the right to vote. She is responsible for the strategy that actually got us the 19th Amendment.

Brian Lehrer: It's an example of how long this has been going on because that was a century ago. If we go half a century ago, here's an archive clip from the 1970s of the famous ERA opponent, Phyllis Schlafly, and one of the arguments that she made then that I guess carried the day with just enough states to keep it from being ratified at that time. Phyllis Schlafly.

Phyllis Schlafly: One of the first things that the Equal Rights Amendment would do is to invalidate the state laws that make it the obligation of the husband to support his wife.

Brian Lehrer: Are there such state laws on the books to this day, Sen?

Senator Kirsten Gillibrand: I don't know, but there you go.

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Senator Kirsten Gillibrand: There you go. My staff reminded me that the 14th Amendment, even though it's been in place for a long time, it didn't prevent other discrimination in law from happening. One example was Plessy v. Ferguson. It permits racism, it permitted Dobbs, and so I don't think it's strong enough on its own to protect women's equality because we've watched what these very radical right-wing legislators have done to undermine more of women's rights. I think this right to privacy is really problematic.

If you polled America and said, "Does every human in America deserve a right to privacy?" they would say yes. There's no debate about it. I think most people don't know that Dobbs eliminated that for women of reproductive years. If you tell any person you interview on the street, "How would you feel if your right to privacy was taken away or your phone communications could be searched by the government?" they would be pissed. [laughs] I think people just need to understand what's happened to women's rights and to rights generally in America under that Dobbs decision. The 14th Amendment wasn't strong enough to show that court they couldn't do what they did.

Brian Lehrer: Frank in East Islip, you're on WNYC with Senator Gillibrand. Hi, Frank.

Frank: Hi, Brian. How are you?

Brian Lehrer: Okay.

Frank: My question is with all this social warfare going on with transgender rights and everything. How does this play into the Equal Rights Amendment? I have a family member who's going through this whole transgender thing, and honestly, I don't understand it. That's just me, but I can see how someone-- He doesn't call himself a he or a she. How does all this play into the ERA amendment? Is it maybe obsolete language? I don't know. Maybe you can help me understand that. I am for the Equal Rights Amendment though, but I just don't know if it should be changed somehow.

Brian Lehrer: Or changed to reflect discrimination on the basis of gender rather than sex, maybe some people would say, in the context of Frank's question, but Senator, what do you think?

Senator Kirsten Gillibrand: I think the ERA is on the basis of sex, which includes all of that, but even to be more specific, the New York state ERA ballot initiative that we are going to get to vote on next November, 2024 November, it says it very explicitly. Let me read you what we are including in the New York ERA. It says, "Prohibit discrimination by government based on a person's ethnicity, national origin, age, disability, and sex, including their sexual orientation, gender identity, gender expression, pregnancy, and pregnancy outcomes."

It would, for the first time, explicitly include language to clarify that discrimination based on whether you're pregnant or not pregnant or your outcome is sex discrimination. It clarifies that, and because it includes all the other language, such as sexual orientation and gender identity and gender expression, it protects everyone from discrimination. What the right-wing Republicans, particularly in Congress right now, they're really trying to-- and what the Supreme Court is doing to allow discrimination, it's just saying, " If you don't like those people, you don't have to bake a cake for them. If you don't like those people, you don't have to build a website for them. If you don't like those people, you don't have to let them around your neighborhood."

It's just permitting discrimination, and that is something this country has fought against for its entire history to try to make us a more perfect union. If you remember what happened in Nazi Germany, that was the first thing they did. They banned Jews from going into their businesses. They put signs on Jewish businesses saying, "Do not go to those businesses." That's how the Holocaust happened. Remember our history because this is the beginning of how hatred is permitted. It's the beginning of how hatred is given the strength of law.

If you're going to allow these red places to just say it's for all women, "Sorry, ladies, you don't have the same rights as us men," it's the beginning of things that are very, very bad. I don't think rational people can disagree with this if you really understand our history and understand the trajectory of what these laws are doing.

Brian Lehrer: Shelly in Westport, you're on WNYC with Senator Gillibrand. Hi, Shelly.

Shelly: Thank you for taking my call. I'm very excited. I feel like I grew up waiting for the amendment to be passed, but here's my concern. The opposition is so good at taking out pieces just to make their point, and I'm wondering how we will respond when they say, "Well, abortion is still illegal. Women can't get it and men can't get it, so what's your problem?" [unintelligible 00:24:55].

Brian Lehrer: So it's not discrimination on that basis? I guess, Senator, especially if they can stand up and say, "Well, you say there are pregnant men now because of transgender people who can still give birth, and so it's not discrimination against women. It's a ban on abortion that these states are passing that apply to everybody regardless of sex or gender." How would you argue against that?

Senator Kirsten Gillibrand: I would very specifically say that it's about medical procedures that are needed to save lives, and whoever needs that medical procedure should have access to it. When you eliminate abortion, you are denying a medical procedure for all women who might need it at any time and any person who has a uterus. The reality is this discriminates overwhelmingly against women because women have uteruses and need D&Cs after miscarriages or may need abortion services. These are things that are medical.

When you say you can't get access to medicine through the mail that your doctor has prescribed, it's also infringing on your right to privacy in the mail. When you're saying you can't travel to get the medical care you need, it infringes your right to everything. We're having this battle right now also in the Defense Bill. In the Senate version, we were able to defeat all the amendments that were going to deny female service members the ability to travel if they needed access to reproductive care and happened to be stationed in a state that didn't permit it.

We always did this if you were in a country that didn't have medical procedures for women that they needed or medical care that they needed like if you were in Saudi Arabia or some other jurisdiction. Now, if you're stationed in one of these ultra-red states and you need any medical procedure that will save your life, you can't get it. They're debating whether the military can pay for these women service members to travel for medical care. It's a problem.

Brian Lehrer: Wow, I didn't even know about that. They were trying to ban women serving our country in the US military from traveling from a red state where they may be based, maybe even to their home state to get an abortion that's legal there?

Senator Kirsten Gillibrand: Right. They're basically precluding the military from paying for your travel and also having permission to take leave, so it's two things. You need your commander to allow you to leave your base for a day or two to travel where you need to go, so you need permission, number one. Number two, if you don't have a lot of money, you may need the resources to travel, but what they're trying to do is deny the right to travel. That would mean even if you had your own money, you couldn't spend it to travel to go home because your commander wouldn't give you the days off. They're trying to do it both ways.

Brian Lehrer: Of course, they'll need a lot more leave if they're forced to have their babies, but that's another story. By the way, did you see the news this morning that the FDA has approved the first over-the-counter birth control pill so women wouldn't need a prescription anymore for that necessarily?

Senator Kirsten Gillibrand: That's great news. It's very important for our country, for our economy, for our families, and our community's health and strength that women can plan when they're having their families. One of the biggest indicators of stability for families is when a woman can plan. Maybe she wants to finish her high school degree. Maybe she wants to finish her college degree. Maybe she wants to finish a training program. Maybe she wants to deploy with our military.

Maybe she wants to do all of these different things and have her children at a time she knows she's stable, has enough money to feed them, has enough money to provide for them, knows she's going to be in one city for a certain amount of time. These are all considerations that families make about when they're having kids. The funny thing, back to Phyllis Schlafly, in the decision that provided women have a right to reproductive care Griswold v. Connecticut, if you just spend the time and read that decision, it was just like Phyllis Schlafly. It was all about the men.

It was like, well, men have a right to plan their families. They have a right to know when they're having kids and how many kids they're having because they're the breadwinners. They need to know. Again, if it's a male right, we protect it. If it's a female right, we don't. It's absurd. It's absolutely absurd. If you read Clarence Thomas's concurrence, he said to Dobbs, he said, "Well, let's make sure all the right to privacy laws are eliminated, which includes Griswold v. Connecticut, which is the decision that says you have a right to birth control."

Again, the overreaching of this Supreme Court based on religious ideologies that are shared by only some of them and only some people in America should not be applied to the whole country. That's what our First Amendment is all about, having this right to believe what you believe, having the right to say what you want to say, and not imposing that on other people, but this court is imposing their religious views on the country, and that's what these right-wing legislatures are doing too. I just think we believe in to each their own. We believe in autonomy, we believe in liberty, we believe in freedom. We're going backwards in a very damaging and destructive way.

Brian Lehrer: Did you understand the reference in the Lindsey Graham clip that we played about women's sports, that somehow this would be bad to have an Equal Rights Amendment for women's sports? I didn't get a chance to look up what even the basis of that argument is. I imagine you know what it is and have an argument against it.

Senator Kirsten Gillibrand: I think he's probably just talking about transgender athletes, and for the very small number of them, the very small number of them, he wants to deny all women equality. I think that's a very bad red herring.

Brian Lehrer: We just have a few minutes left. I want to touch on one other proposal of yours from this week after Sunday night storms that knocked out some rail service, what you call the Transit Resiliency Act. Would you tell us about that briefly?

Senator Kirsten Gillibrand: This legislation is intended to create a federal funding stream dedicated to increasing the resilience of public transportation systems. What we just saw with roads getting just absolutely torn up and these massive amounts of deluge of water and flooding, we can rebuild our transportation infrastructure in a much more resilient way. This is money that people can actually use now to rebuild all those roads and bridges and mass transit that's been harmed. The bill would authorize $300 million per year over the next three years for these resiliency grants, and it would apportion those funds in accordance with the existing State of Good Repair Grants Program formula.

That means that if you want to fix it, you can fix it in the place that's in the way it's most resilient. The second thing we've got that's existing now, which as I've called all the county executives that have been harmed by the flooding, there is a provision called the Resilient Highways Act that was passed. It was a bill that I wrote that was passed as part of the Bipartisan Infrastructure Law. This gives states the ability to use their federal highway funds to make these kinds of critical resilience improvements to protect bridges and tunnels and roads against future flooding, wildfires, disasters. This money exists now and they can apply for it, so I'm urging our county execs to work to get those monies in now.

Brian Lehrer: You had a Highway Resiliency Act in the Bipartisan Infrastructure Bill, just highways at that time and not mass transit? I know there's a little delay that we've had on the senator's line.

Senator Kirsten Gillibrand: Oh, sorry.

Brian Lehrer: Maybe we've lost her.

Senator Kirsten Gillibrand: Yes, I'm back. I'm back. Sorry. I had my mute button on and talking to the mute button. The bill that we passed can be used for bridges, tunnels, and roads and I think any damage caused by these disasters, but the Resilient Transit Act is specific so that it can be for these larger projects of mass transit that need directed funding.

Brian Lehrer: I see. I guess I was just wondering, and this will be the last question, in the context of Republicans historically opposing mass transit funding, if that had come into play in getting funding for highway resiliency but not transit resiliency in the original infrastructure bill. We talked in an infrastructure segment earlier in the show about how historically, President Reagan, for example, was always against federal mass transit funding and succeeded on several occasions in the '80s in getting it reduced.

He considered those local expenses if we're talking about local commuter rails, and he considered mass transit advocacy kind of a socialist attack against the individualism of the private car. I'm just curious since you've been in the Senate for a while now, do Republicans today still talk that way?

Senator Kirsten Gillibrand: I'm not sure. I don't know if they opposed that specifically, but that's just an example of corruption of money and politics. When the car industry wanted to preclude mass transit and train, they fought really hard. They wanted all money into highways, no money into mass transit, no money into rail. We've personally witnessed the problem of not investing in rail. It leads to these horrible catastrophic outcomes that we see across the country where rail lines fail and polluting neighborhoods in Ohio or harming passengers and communities in New York. We've seen it and it's deadly.

We have to believe today that mass transit is the future. Rail is the future. It's not the past. It's the way we address global climate change. It's the way we address extreme weather. It's the way we make it easier for people just to get to work. We are bearing the brunt of poor decision-making over the last 100 years with the extreme heat that we've had to deal with, the wildfires across the country, terrible air quality. Think for New Yorkers, all that terrible air coming down from Canada because of their wildfires. Well, we're living it.

I think common sense would dictate we should be focused on resiliency that mass transit should be part of our future and just trying to address these real huge impacts on global climate change that result in extreme weather and extreme heat and lots of damage to our families.

Brian Lehrer: Senator Kirsten Gillibrand, thanks as always. We really appreciate it.

Senator Kirsten Gillibrand: Thanks, Brian.

 

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