Biden Declares Equal Rights Amendment Ratified: A Landmark Move Amid Legal Uncertainty

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President Joe Biden made a historic declaration on January 16, 2025, stating that the Equal Rights Amendment (ERA) has been ratified, officially embedding its protections into the United States Constitution. This move, seen as a significant step toward enhancing reproductive rights and gender equality, comes as Biden prepares to leave office and is expected to ignite legal battles over its validity.


What is the Equal Rights Amendment?

The Equal Rights Amendment was first introduced in 1923 and passed by Congress in 1972. Its goal is to ensure equal rights for all Americans, regardless of sex. For the ERA to become a constitutional amendment, it required ratification by three-quarters of U.S. states (38 states).

  • Historical Timeline:

    • 1972: Congress passes the ERA.

    • 1982: Original ratification deadline lapses with only 35 states approving.

    • 2020: Virginia becomes the 38th state to ratify the amendment.

Despite this milestone, legal ambiguities, including expired deadlines and states rescinding their ratifications, have clouded its status.


Biden’s Bold Declaration

In his announcement, Biden asserted:

“It is long past time to recognise the will of the American people. 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’s statement aligns with opinions from leading constitutional scholars and the American Bar Association, emphasising that the ERA’s text lacks a time limit for ratification. However, the President’s declaration is an opinion rather than an executive action, leaving the amendment’s future in the hands of legal and judicial interpretation.


Legal Hurdles Ahead

While Biden’s announcement is monumental, significant legal challenges remain:

  • Expired Ratification Deadlines: The Office of Legal Counsel in 2020 and 2022 affirmed that deadlines for ERA ratification are enforceable.

  • Rescinded Ratifications: Five states withdrew their approval, raising questions about whether these actions are valid.

  • Archivist’s Role: Dr. Colleen Shogan, the U.S. Archivist, must certify and publish the amendment. Shogan has cited prior legal opinions as barriers to certification, indicating a cautious approach.

Legal experts widely agree that the courts will ultimately decide the ERA’s fate.


The Political Implications

Senator Kirsten Gillibrand of New York has been a vocal advocate for ERA certification, framing it as a pathway to codify women’s rights without reliance on Congress. This initiative follows the 2022 Supreme Court decision overturning Roe v. Wade, which stripped federal protections for abortion rights.

  • Gillibrand’s Advocacy:

    • Direct appeals to Biden and top administration officials.

    • Framing the ERA as a solution to a gridlocked Congress.

Despite Biden’s efforts to protect abortion rights through executive actions, such as pardoning nonviolent offenders and extending temporary protections to immigrants, the ERA’s legal standing remains pivotal in determining the future of gender equality in America.


Biden’s Final Executive Actions

As his term ends, Biden has been working to cement his legacy through a series of executive actions:

  • Environmental Protections:

    • Banned new oil and gas drilling across 625 million acres of ocean.

    • Designated two new national monuments in California, protecting vast areas of land and ocean.

  • Clemency Measures:

    • Pardoned nearly 2,500 nonviolent drug offenders and 39 individuals convicted of nonviolent crimes.

    • Commuted 37 federal death sentences to life imprisonment.

  • Immigration Reforms:

    • Extended temporary protected status to nearly one million immigrants from Venezuela, El Salvador, Ukraine, and Sudan.

These actions highlight Biden’s push to solidify achievements before President-elect Donald Trump assumes office.


What Lies Ahead?

Biden’s declaration on the ERA and his broader efforts to protect his legacy underscore the intense political and legal challenges ahead. As the courts prepare to address the ERA’s status, the nation faces critical questions about the future of constitutional amendments and the balance of power in American governance.

For now, Biden’s actions serve as a clarion call for gender equality and a reminder of the enduring complexities of constitutional law.


References:

  • Brennan Center for Justice: Analysis of ERA Legal Challenges.

  • National Archives and Records Administration: Statements on ERA Certification.

  • American Bar Association: Opinions on ERA Ratification.

  • CNN Coverage of Biden’s Executive Actions.

 

 

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