Soon-to-be former President Joe Biden is attempting a last-minute ratification of the so-called Equal Rights Amendment (ERA), a proposed 28th amendment to the U.S. Constitution, to enshrine abortion rights. The ERA, which legally failed ratification over 40 years ago, explicitly bars discrimination based on sex and—in theory—could pave the way for federal abortion access litigation despite the overturning of Roe v. Wade.
“I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex,” Biden said in a statement announcing his determination on the amendment’s status on Friday. The 82-year-old Democrat continued: “We, as a nation, must affirm and protect women’s full equality once and for all.”
Subsequently, the Biden White House and Vice President Kamala Harris both released statements declaring the ERA “the law of the land.”
While the Biden government publicly insists the President’s statement constitutionally enshrines the ERA, government officials are privately acknowledging the announcement amounts to little more than a declaration of Biden’s opinion. The Archivist of the United States, Dr. Colleen Shogan, has repeatedly stated that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
“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,” Dr. Shogan states, adding: “Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment.”
The U.S. Supreme Court is unlikely to uphold Biden’s determination regarding the ERA.