President Joe Biden announced a significant move on Friday, stating that the Equal Rights Amendment (ERA) is now ratified, formally enshrining its protections in the Constitution. This last-minute decision is seen by some as a potential step toward strengthening reproductive rights. However, it is expected to face swift legal challenges, and its future remains uncertain as Biden prepares to leave office.
Originally passed by Congress in 1972, the ERA guarantees equal rights for women. To become law, an amendment to the Constitution requires ratification by three-quarters of states, or 38. Virginia became the 38th state to ratify the amendment in 2020, after it had languished for decades. Biden’s opinion now directs the U.S. archivist, Dr. Colleen Shogan, to certify and publish the amendment, CNN reported.
“It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” Biden said in a statement Friday.
Biden, a senior administration official said, is not taking executive action but is “stating an opinion that it is ratified.” The official added: “He is using his power of the presidency to make it clear that he believes – and he agrees with leading constitutional scholars and the American Bar Association – not that it should be, but it is the 28th Amendment of the Constitution.”
However, legal experts argue that it isn’t that straightforward: ratification deadlines have passed, and five states have rescinded their approval, according to the Brennan Center for Justice at New York University’s law school. This has raised questions about the president’s authority to ratify the amendment more than 50 years after it was first passed.
Biden is leaning on the American Bar Association’s opinion, the senior official said, which “stresses that no time limit was included in the text of the Equal Rights Amendment” and “stresses that the Constitution’s framers wisely avoided the chaos that would have resulted if states were able to take back the ratifying votes at any time.” However, Shogan, who would be responsible for the amendment’s publication, said in a December statement alongside Deputy Archivist William Bosanko that the amendment “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.” They based their opinions on conclusions from the Office of Legal Counsel at the US Department of Justice in 2020 and 2022, which affirmed that ratification deadlines were enforceable.
Pressed by CNN on that December statement from the archivist, the senior official said that the archivist’s role is “prescribed by statute,” is “purely ministerial,” and “she is required to publish an amendment once it has been effectively ratified.” Ultimately, the official conceded, “It will be up to the courts to interpret this and their view of the Equal Rights Amendment.”
Disclaimer: This article may contain commentary which reflects the author’s opinion.