Biden Proclaims That The Equal Rights Amendment Is The Law Of The Land—But What Does That Mean?

President Joe Biden announced on Friday that, as far as he’s concerned, the Equal Rights Amendment is the “law of the land,” a somewhat symbolic move that is poised to allow more women across the country to sue their states for gender discrimination—including challenges to abortion bans.

The ERA, originally drafted over a century ago and passed by Congress in 1972, has faced a long and hard-fought journey toward ratification and implementation as the 28th Amendment to the Constitution. If formally recognized, the ERA would constitutionalize gender equality.

“The Equal Rights Amendment is the law of the land—now!” Biden said in a speech to the United States Conference of Mayors. “It’s the 28th amendment to the Constitution—now.”

While Biden’s declaration is expected to spur legal and political repercussions nationwide, the president’s announcement isn’t so simple.

Immediately following Biden’s announcement on Friday, the National Archives, which publishes constitutional amendments, stated it had no plans to formally add the ERA to the Constitution. When Congress passed the ERA over 50 years ago, the initial preamble required that 38 states move to ratify within seven years (that deadline was extended to 1982). By that year, the amendment was three states short of implementation.

View of Pro-Choice supporters, including several people with ‘Honored Guest’ sashes, as they take part in a March for Women’s Equality, Washington DC, April 9, 1989. Among the visible signs as ones supporting NARAL (National Association for the Repeal of Abortion Laws) and Physicians For Choice. (Photo by Barbara Alper/Getty Images)

Barbara Alper/Getty Images

Thanks to anti-abortion, anti-feminist activists like Phyllis Schlafly, the ERA was squashed. It wasn’t until 2020 that Virginia became the crucial 38th state to ratify the ERA. Yet, because the deadline had long passed and thanks to Donald Trump’s Justice Department saying at the time that ratification took too long, the ERA has remained outside of the founding text—even as about eight in ten US adults, including majorities of men and women and Republicans and Democrats alike, say they at least somewhat favor adding the ERA to the Constitution, according to Pew.

United States Archivist Colleen Shogan, a Biden appointee and the first woman archivist, has repeatedly stated that the ERA’s eligibility has expired and could not be added to the Constitution now unless Congress acts. Last month, Shogan and the deputy archivist released a statement saying they could not certify the ERA “due to established legal, judicial, and procedural decisions.” On Friday, the Archives reiterated its position. “The underlying legal and procedural issues have not changed,” they said in a statement. Biden is also not going to order the archivist to certify and publish the ERA, the White House told reporters.

Biden’s Friday announcement about the ERA comes as the president has filled his last moments in office with sweeping executive measures, including designating national monuments in California, removing Cuba from the list of state sponsors of terrorism, blocking a Japanese company’s takeover of United States Steel, extending protected status to nearly 1 million immigrants, and commuting the sentences of almost everyone on federal death row, as detailed by The Washington Post this week.

In Biden’s official statement on the ERA on Friday, he agreed with the assessment of The American Bar Association and “leading legal constitutional scholars” that “the Equal Rights Amendment has cleared all necessary hurdles” and has in fact “become part of our Constitution.”

Even without the archivist publishing the amendment, Biden’s declaration opens the door for women and pregnant people across the country to challenge gender-based discrimination in their states. As Senator Kirsten Gillibrand of New York pointed out in a New York Times opinion piece last month, and has frequently stated, “The amendment would make discrimination on the basis of sex — like restrictions on reproductive care that single out women — unconstitutional, including, in my view, abortion.” Gillibrand praised Biden’s Friday decision, telling Politico that “it’s the clearest pathway to challenge Dobbs’ holding that women in their reproductive years have no right to privacy, but arguably, men do.”

Around half of states have their own ERAs, and these amendments have already been used to challenge abortion restrictions. In September of last year, legal groups fought against Nevada’s ban on Medicaid coverage for abortion, saying that the sex-based discrimination violated the state constitution’s ERA, and won.

While some advocates for access to reproductive healthcare celebrated Biden’s announcement on Friday, others also critiqued the move as coming too late.

“Collectively, as a party, often we are too deferential to norms, and we take a little bit too long to hash out how we’re going to respond to crises like the voting rights crisis and the abortion rights crisis,” Mini Timmaraju, the head of Reproductive Freedom for All, said. “But,” she added, “I don’t lay that squarely at the feet of Joe Biden and his administration.”

“Clearly, the hope is that women will file ERA-based suits, leaving the courts to determine the amendment’s validity,” Jessica Valenti, author of Abortion: Our Bodies, Their Lies, and the Truths We Use to Win, wrote in her newsletter “Abortion, Every Day.”

“What’s more,” she continued, “Democrats want to put Republicans on the spot—forcing them to admit that they don’t want to give women constitutional equality.”

Inside Prince Harry and Meghan Markle’s Big Business Ambitions, 5 Years After Their Royal Exit

In Memoriam: David Lynch Saw the Nightmare Beneath the American Dream