By Daniel Payne
CNA Staff, Jan 17, 2025 / 11:30 am
President Joe Biden on Friday proclaimed that the Equal Rights Amendment (ERA) — a long-debated constitutional measure that some critics have argued could legalize abortion nationwide — is “the law of the land,” a declaration that appeared to carry no legal weight but which could set off a protracted political and legal fight for the incoming Trump administration.
The amendment holds that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It was first proposed over a century ago in 1923. It has been championed by advocates in the decades since and has been ratified by numerous states.
Virginia became the 38th state to ratify the amendment in 2020, nominally clearing the necessary threshold of three-fourths of the states needed to amend the U.S. Constitution.
But U.S. Archivist Colleen Shogan — who is officially charged with entering an amendment into the Constitution upon its ratification — has said the amendment failed to pass a congressional deadline before ratification, meaning the archivist “cannot legally publish the Equal Rights Amendment” and that it “cannot be certified as part of the Constitution.” Shogun was appointed to the role by Biden in 2022 and confirmed in 2023.
In his statement on Friday, Biden made no mention of the archivist’s earlier refusal to publish the amendment.
“The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment,” the president said in his statement.
“I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”
“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 added.
It is unclear what, if any, legal weight the declaration carries.
In addition to the assertions of the archivist, in a 2020 opinion Steven Engel — at the time the U.S. assistant attorney general for the Office of Legal Counsel — said the ERA resolution “has expired and is no longer pending before the states.”
Pro-abortion advocates have argued that the ERA could be used as a means of forcing states to legalize abortion.
Smith College Professor Carrie Baker wrote in 2022 that the ERA could serve as “an avenue for shoring up women’s rights, especially reproductive rights,” specifically that it “could provide a new basis for abortion rights in the United States.”
Heritage Foundation legal fellow Thomas Jipping, meanwhile, in 2023 argued that the “ERA-abortion connection” has been established for decades and that “the groundwork has already been laid” to use it as a pro-abortion measure.
Daniel Payne is a senior editor at Catholic News Agency. He previously worked at the College Fix and Just the News. He lives in Virginia with his family.
