President Joe Biden issued a statement Friday, Jan. 17, saying he believes the proposed Equal Rights Amendment (ERA) is the law of the land and should be added as the 28th Amendment to the United States Constitution. However, the statement has virtually zero legal effect.
While Congress passed the ERA in the 1970s, it failed to be ratified by the requisite three-quarters of 38 states by a 1982 deadline.
Biden is leaning on an opinion by the American Bar Association, the country’s largest association of lawyers and legal professionals. They concluded that the ERA did not have a time limit for ratification, meaning it should be accepted. After 1982, more states ratified the ERA, with Virginia pushing it to the 38-state threshold in 2020.
The Equal Rights Amendment centers around one section of its text: Section 1 says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” In effect, it would formally protect the equal rights of men and women in the Constitution.
But the Constitution probably is not changing.
For starters, the National Archives would have to certify and publish the amendment. They’ve also leaned on previous legal opinions, saying Congress or courts would have to take action to remove the deadline.
In December, National Archivist Colleen Shogan and her deputy William Bosanko published a statement saying they couldn’t do that.
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.”
What comes next is unclear. Biden’s statement could further inspire legal challenges to overturn the deadline. It could also open the door to some political battles that led to the ERA falling short of its original window.
Reproductive rights advocates hope enacting the amendment could bolster protections for access to abortion and contraception. The law passed Congress just a few months before the 1973 Roe v. Wade decision, which made abortion legal in all 50 states.
The ERA faced opposition, led by conservative activist Phyllis Schlafly, in the 1970s and 1980s. She held up or stopped votes to ratify the amendment. Her arguments against the bill suggested that it threatened gender roles, risking the fate of laws like those protecting alimony and preventing women from being eligible for the military draft.
President-elect Donald Trump has not said much about the ERA. However, in 2020, his administration’s Justice Department said they considered the ratification window closed.
