In the waning days of the Biden administration, Congressional Democrats led by Sen. Kirsten Gillibrand (D-NY) are making one last, desperate push to convince President Biden to take executive action and ratify the Equal Rights Amendment, CNN reported on Monday. Gillibrand and some feminist legal activists believe the ERA could offer a new avenue to potentially restore a federal right to abortion. They argue that Biden can simply direct the national archivist, who’s responsible for certification and publication of constitutional amendments, to publish the ERA as the 28th Amendment.
The move would inevitably invite extensive legal challenges and conservative backlash—but Democrats argue the outgoing president owes it to the nation, and his legacy, to at least try. There is, after all, nothing to lose.
In November, 45 senators including Majority Leader Chuck Schumer signed a letter to Biden urging him to act on the ERA. “Inaction is action,” they wrote. “We must answer the call to uphold equality and strengthen women’s rights by certifying the ERA.” Over 120 House Democrats sent their own letter to the president on Monday. The lawmakers, led by Reps. Cori Bush of Missouri and Ayanna Pressley of Massachusetts, told Biden that action on the ERA would “stand as a defining achievement of your presidency—one that will reverberate across generations.”
It’s been 101 years since the Equal Rights Amendment was first introduced in Congress and over 50 years since it passed. But the bill floundered for years, ultimately blowing past its 1972 deadline to be ratified in at least 38 state legislatures. Still, even after 1972, a handful of state legislatures ratified the ERA anyway; Virginia became the 38th state in 2020. In 2023, a year after the Dobbs v. Jackson Women’s Health decision, Pressley wrote a resolution to affirm the ERA’s ratification. “We need to use every tool at our disposal to protect and expand abortion access—one tool is the ERA,” she told Jezebel at the time. The ERA, Pressley argued, could similarly pave the way for bills she’s introduced to allow federal funding to cover abortion services as well as a bill to codify a federal right to abortion.
Kate Kelly, the senior director of the women’s initiative at the Center for American Progress, has been advocating and making the legal case for the ERA for a decade. Last year, she told Jezebel: “A gender equality provision in our Constitution could open a lot of doors... We’ve seen those cases on abortion rights citing privacy laws in the Constitution, but not equality, because gender equality hasn’t yet been recognized as part of our Constitution.”
Should Biden heed Congressional Democrats’ demands, the move would face an uphill battle in court and could even work its way to the Supreme Court. While 38 states have ratified the ERA, ratification deadlines all passed and five states have since rescinded their approval of the amendment, per the Brennan Center. And in 2020, the Trump Justice Department formally determined that the ERA could no longer be ratified due to the aforementioned deadlines. But this doesn’t mean Democrats should go out without a fight. As some have pointed out, whatever the outcome, challenging the ERA’s ratification would cost Republicans and conservative legal groups time and money. “I always tell people, ‘Think of what the other side would do if they were one signature away from changing the Constitution.’ We need that energy,” Kelly told the Times.
Doing this is well within Biden’s power, and even if it doesn’t withstand judicial scrutiny, it would cost Republicans and conservatives time and money fighting.
— Moira Donegan (@moiradonegan.bsky.social) December 16, 2024 at 8:33 PM
The optics of Republicans fighting the ERA would also be… really something! In the 1960s, conservative icon Phyllis Schlafly—the original “trad-wife” who advocated for all women to be mothers and homemakers, but ironically was, herself, a conservative activist and lobbyist—led the push against the ERA by arguing it would result in women being drafted in the military, among other dumb arguments. Today, the right argues against the ERA by attempting to frame it as unnecessary and government overreach because the 14th Amendment supposedly already offers women equal rights. But, as the Times points out, Republican lawmakers have nonetheless “conceded that adopting the amendment could provide a new legal basis for protecting abortion” post-Dobbs. In 2023, Sen. Lindsey Graham (R-SC) claimed during a hearing for Pressley’s resolution that the ERA would end “every pro-life measure in this country”—all but admitting that abortion bans are an affront to gender equality.
Yet, right now, it’s not conservatives who are standing in the way of the ERA—it’s Biden. “It’s ‘I’ll get back to you; I’ll get back to you.’ Everyone always says, ‘We love your arguments.’ I never know what the ‘but’ is,” Gillibrand told the Times. The outlet reports that she’s “presented White House officials with fat binders full of legal research and polling,” begged his top advisers for just a five-minute meeting, and even tried to plead her case with “passing 30-second interactions [with Biden] in photo lines” at a recent White House holiday party. Gillibrand has also reportedly worked to recruit Hillary Clinton and Vice President Kamala Harris to her cause.
One of her key arguments, on top of the simple fact that a Democratic president should obviously exhaust every possible option for reproductive rights, is Biden’s legacy, which was arguably severely damaged by his refusal to step down from the ticket (and, of course, facilitating Israel’s ongoing genocide in Gaza). A new survey by Data for Progress showed 61% of likely voters and 87% of Democrats supported Biden taking direct action to ratify the ERA, as well as a 30-point boost among voters who said they’d have a more favorable view of Biden’s presidency if he did so.
“President Biden has been clear that he wants to see the Equal Rights Amendment definitively enshrined in the Constitution,” White House spokesperson Kelly Scully told CNN in a statement. But still, no commitments from the lame-duck president.
