President Joe Biden has declared that the Equal Rights Amendment (ERA) has been officially ratified and is now enshrined in the Constitution, a move that could potentially pave the way for expanded reproductive rights. This announcement has sparked significant legal debates and challenges, setting the stage for a contentious battle over its implications while Biden prepares to leave office.
The Equal Rights Amendment, originally passed by Congress in 1972, aims to guarantee equal rights for women under the law. To amend the Constitution, the approval of three-fourths of the states, or 38 states, is required. In 2020, Virginia became the 38th state to ratify the amendment, decades after it was first introduced. With Biden’s latest statement affirming its ratification, the responsibility now falls on the Archivist of the United States, Dr. Colleen Shogan, to certify and publish the amendment.
In his statement, Biden said it was long overdue for the United States to acknowledge the will of the American people. He emphasized that the ERA, now considered the 28th Amendment, ensures equal rights and protections for all Americans regardless of gender. He also asserted that his position aligns with constitutional scholars and the American Bar Association, who maintain that the amendment is valid despite challenges regarding deadlines and state withdrawals of ratification.
Legal experts, however, have raised questions about the validity of the ERA’s ratification. The ratification deadlines had expired decades ago, and five states have since rescinded their approval. This has fueled debates about whether the president has the authority to affirm the amendment under these circumstances. The Brennan Center for Justice at NYU School of Law highlights these legal and procedural hurdles, including prior opinions from the Department of Justice’s Office of Legal Counsel in 2020 and 2022, which deemed the ratification deadline enforceable.
Despite these challenges, Biden’s administration insists that the ERA’s text does not include a ratification deadline, arguing that states cannot revoke their ratifications once granted. This interpretation conflicts with the longstanding position of the National Archives and Records Administration, which maintains that the ERA cannot be certified without addressing these legal complexities.
Senator Kirsten Gillibrand of New York has been a prominent advocate for ERA ratification, framing it as a critical tool for enshrining women’s rights in the Constitution. In light of the Supreme Court’s 2022 decision overturning Roe v. Wade, Gillibrand has pushed for executive action to affirm the ERA as a means to protect reproductive freedoms, bypassing the gridlock in a deeply divided Congress.
Biden’s announcement comes amid a flurry of executive actions in the final days of his presidency. These include pardoning over 2,500 individuals convicted of nonviolent drug offenses, commuting federal death sentences, canceling student loan debt for additional borrowers, and implementing environmental protections. His administration has also extended temporary protected status for immigrants from several countries and removed Cuba from the list of state sponsors of terrorism.
However, these measures face an uncertain future as President-elect Donald Trump prepares to take office. Many of Biden’s executive actions could be reversed, as Trump has vowed to dismantle key aspects of Biden’s legacy. The new administration is expected to face considerable pressure to address the ERA’s status, along with other contentious issues such as immigration, environmental policy, and judicial appointments.
Biden’s declaration regarding the ERA underscores his broader effort to solidify his legacy as a champion of civil rights and social justice. However, the fate of the amendment will ultimately rest with the courts, which must navigate the complex legal and procedural disputes surrounding its ratification. As Biden prepares to leave office, his push for the ERA highlights the enduring challenges of advancing equality in a deeply polarized political landscape.
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