How Biden’s last-minute ERA claim was based on bypassing the Constitution

As one of his final moves in office, President Joe Biden has purported to ratify the Equal Rights Amendment (ERA), despite a 50 year-gap since its original passage in the Senate, which the required number of states subsequently failed to pass. This decision is likely to initiate legal questions and challenges, from all-access abortion on demand to transgender issues — which would likely both be affected by any legitimate ratification of the ERA.

“It is long past time to recognize the will of the American people,” Biden said in a statement. “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’s attempt to declare the ERA as “ratified” is largely being viewed as an ’empty gesture’ just days after the House passed a bill protecting women’s sports and after years of Biden’s vows to protect the killing of preborn human beings.

Originally passed in 1972, the ERA eventually failed when only 35 out of the required 38 states chose to pass it at the end of an extended 10-year deadline in 1982. In January of 2020, Virginia became the 38th state that chose to ratify it (nearly four decades too late), and at that time, “three attorneys general sued the archivist of the United States, saying he must ‘carry out his statutory duty’ of certifying the ERA as the 28th Amendment to the Constitution,” as Live Action News reported. In addition (emphasis added):

They argued that based on their ratifications of the ERA — though carried out decades after the 1982 deadline — the ERA must be added to the Constitution. Illinois and Nevada joined Virginia in that suit, arguing that they had not missed the deadline because the deadline was not stated in the body of the amendment.

Judge Rudolph Contrera wrote in his opinion that a ‘ratification deadline in a proposing resolution’s introduction is just as effective as one in the text of a proposed amendment.” Because the ratifications from Illinois, Nevada, and Virginia came after both the original and extended deadlines, he ruled that “the Archivist is not bound to record them as valid.” It is unclear if states are allowed to rescind their ratification, as five have done.

Biden holds that the ERA was ratified in 2020 when Virginia signed on.

Congress has unsuccessfully attempted to resurrect ratification efforts for the ERA in recent years.

Though the ERA is portrayed as doing nothing more than enshrining ‘equal rights for women’ into the United States Constitution, as was once asserted by the late Justice Ruth Bader Ginsburg, the ERA would likely strike down “at least 800 federal laws… – laws aimed at protecting women.”

Can Biden even ratify the ERA?

One of the biggest issues with Biden’s attempt to ratify the ERA is whether or not he even has the authority ratify it. After all, the deadline passed decades ago, and since then, five states have rescinded support for it. It’s long been accepted that the ERA has expired, and any efforts to pass it would need to start again.

In response to Biden’s announcement, Kristen Waggoner, the president, CEO, and general counsel for Alliance Defending Freedom wrote on X, “This ‘declaration’ is as meaningless as the Equal Rights Amendment itself, which has been dead for decades. The president can’t bypass the Constitution and declare something the ‘law of the land’ via a graphic on X.”

This “declaration” is as meaningless as the Equal Rights Amendment itself, which has been dead for decades.

The president can’t bypass the Constitution and declare something the “law of the land” via a graphic on X. https://t.co/G74zPHFx2i

— Kristen Waggoner (@KristenWaggoner) January 17, 2025

In a follow-up post, she said, “Biden has no authority to resurrect the Equal Rights Amendment and is merely demonstrating his administration’s continued contempt for the rule of law. The women’s rights issue of our time isn’t the ERA; it’s the unlawful redefinition of ‘sex’ in federal law, allowing men in women’s sports and private spaces. Rather than empty gestures, American women need real action to restore their rights. Let’s hope they’ll get that from the Trump administration.”

Biden has no authority to resurrect the Equal Rights Amendment and is merely demonstrating his administration’s continued contempt for the rule of law.

The women’s rights issue of our time isn’t the ERA; it’s the unlawful redefinition of “sex” in federal law, allowing men in…

— Kristen Waggoner (@KristenWaggoner) January 17, 2025

According to CNN, Biden is essentially placing all of his ERA eggs in the basket of an opinion from the American Bar Association. A senior Biden official said that this opinion “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.”

Yet, in 2019, even Justice Ginsburg, who eventually supported the ERA, notably said, “I hope someday [the ERA] will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it” (emphasis added).

In addition, the Department of Justice’s Office of Legal Counsel issued an opinion in 2020, advising the National Archives that the ERA had expired and that the Archives could not ratify it. In December, the National Archives released a statement from the Archivist of the United States, Dr. Colleen Shogan, and Deputy Archivist William J. Bosanko, saying:

As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law. At this time, the Equal Rights Amendment (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. The OLC concluded that extending or removing the deadline requires new action by Congress or the courts. 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. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.

Sir, this is not how the Constitution works. Dementia is not a magic ticket to become a dictator that asserts Constitutional amendments into existence.

— Mollie (@MZHemingway) January 17, 2025

Following Biden’s announcement, the National Archives responded to questions from CNN, upholding its previous statement: “The underlying legal and procedural issues have not changed.”

Other experts have additionally weighed in, expressing shock. As law professor Jonathan Turley said, “President Biden seems intent on moving his administration from the odious to the absurd,” and added, “It is a position based on a long-rejected and frankly ridiculous foundation… It is another curious moment for self-describing champions of democracy.”

President Biden seems intent on moving his administration from the odious to the absurd. He just declared that the Equal Right Amendment is ratified: “In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have…

— Jonathan Turley (@JonathanTurley) January 17, 2025

It seems impossible that this decision from Biden will be able to stand, especially with a new administration taking office in just a matter of days. If the National Archives continues to hold to established and proper procedures, it’s unlikely.

How does the ERA hurt women?

In Sex Bias in the U.S. Code, Justice Ginsburg wrote that at least 800 federal laws, all of which protect women, could be overturned due to the ERA:

The Equal Rights Amendment is a poorly worded amendment to the U.S. Constitution that would restrict all laws and practices that make any distinctions based on gender or “on account of sex.” Under the ERA men and women could not be treated differently, even if the different treatment is due to physical differences.

Mercedes Schlapp, a former White House Director of Strategic Communications, and Mary Vought, the Heritage Foundation’s Vice President of Strategic Communications, wrote for USA Today:

[T]he ERA would actually erode the rights of women recognized in state and federal law. By stating that “equality of rights under the law shall not be denied or abridged … on account of sex,” the amendment would supersede, and effectively eliminate, statutes designed to protect women.

Furthermore, the rights that the ERA would allegedly provide are already in place, thanks to the 14th Amendment, which guarantees that every person, regardless of sex, must receive equal protection under the law. Others who oppose it have noted that since the ERA was originally voted on in 1972, things have changed; things like equal pay and banning sex discrimination have already been put into place with subsequent legislation.

What is the real purpose of the ERA?

Today, the ratification of the ERA would serve the main purpose of protecting the killing of preborn children. It’s widely believed that this is why Biden ratified it at the last moment, despite all the legal challenges it will raise. The Trump administration is expected to be more pro-life than Biden’s — which was hallmarked by pro-abortion extremism and the weaponization of the Department of Justice against those in the pro-life movement.

Biden has made protecting abortion one of the main goals of his presidency. Ratifying the ERA appears to be a last-ditch effort to do just that — which is exactly why the abortion industry has pushed for it for so long.

As Reproductive Freedom for All (formerly NARAL Pro-Choice America) explained:

With its ratification, the ERA would reinforce the constitutional right to abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate both the constitutional right to privacy and sexual equality.

The “Equal Rights Amendment” doesn’t ensure equal rights, it helps deny them

It would help enshrine abortion in the Constitution

It would help guarantee federal abortion funding

The ERA is a tool for the abortion industry w/ “equality” for a smokescreen https://t.co/g6EOyl6Qxi

— Lila Rose (@LilaGraceRose) April 30, 2019

State-level versions of the ERA have been used to promote abortion. In New Mexico, it was used to mandate taxpayer funding for abortion; in New York, it made abortion a constitutional right and even potentially legalized infanticide.

Indeed, the ERA is an effort to sneak the right to abortion into the federal constitution. After all, pro-abortion advocates have claimed that legalizing the homicide of preborn human beings is a requirement for women’s equality for decades, and since only women get abortions, a government policy restricting them could be seen as treating women differently than men, and would therefore be a violation of the ERA.

[Editor’s note: This story originally was published by Live Action News.]