President Joe Biden can not “pass” the Equal Rights Amendment (ERA), but he could instruct the Archivist of the United States to certify and publish the ERA. Recent developments highlight a significant momentum towards urging President Joe Biden to take decisive action on the Equal Rights Amendment (ERA), which seeks to enshrine gender equality in the U.S. Constitution. This article delves into the current landscape surrounding the ERA, its potential implications, and its critical connection to abortion rights.
Biden’s Potential Actions on the ERA
Calls for Action – A coalition of over 120 House Democrats is advocating for President Biden to instruct the Archivist of the United States to certify and publish the ERA as the 28th Amendment before his term concludes. This push gained traction following Virginia’s ratification of the ERA in 2020, bringing the total number of states that ratified it to 38, thus meeting the constitutional threshold for amendments.
Public Support – Public sentiment strongly favors Biden’s involvement in advancing the ERA. Surveys indicate that many voters believe this action would enhance his legacy regarding gender equality. Lawmakers assert that formalizing the ERA could provide essential protections against potential rollbacks of women’s rights, particularly given anticipated shifts in government leadership that may be less supportive of gender equality initiatives.
Implications of Ratifying the ERA
Legal Protections –The enactment of the ERA would explicitly prohibit discrimination based on sex, establishing a heightened standard of scrutiny for laws that differentiate based on gender. This change could significantly influence legal interpretations surrounding sex discrimination cases, aligning them more closely with existing protections against racial discrimination.
Potential Challenges – Critics caution that while the ERA aims to promote equality, it could inadvertently complicate existing legal protections for women. For example, it may challenge laws currently benefiting women by necessitating “strict scrutiny” for any sex-based classifications, potentially undermining affirmative actions designed to foster gender equity.
Cultural and Social Impact – The passage of the ERA could mark a historic victory for advocates of gender equality, providing a constitutional foundation for ongoing efforts to combat discrimination across various sectors, including employment and reproductive health. However, opponents express concerns about its implications for single-sex institutions and other gender-specific programs.
Impact on Abortion Rights
The potential ratification of the Equal Rights Amendment could profoundly affect abortion rights in the United States, especially following the Supreme Court’s decision to overturn Roe v. Wade. Advocates argue that the ERA would offer a constitutional basis for challenging restrictive abortion laws by framing such restrictions as forms of sex discrimination. This perspective is supported by past court rulings in states like New Mexico and Connecticut, where state-level equal rights amendments were successfully used to strike down laws limiting public funding for abortions, deeming them discriminatory against women due to their unique reproductive health needs. By explicitly prohibiting sex-based discrimination, the ERA could empower legal challenges against laws imposing undue burdens on women’s access to abortion. Restrictions that single out abortion for stricter regulation compared to other medical procedures could be viewed as unjustifiable discrimination under the ERA’s protections. Furthermore, this amendment could help dismantle harmful stereotypes perpetuating gender inequality by reinforcing women’s autonomy over their reproductive choices—an essential aspect of achieving full citizenship and equality. In this context, ratifying the ERA could not only bolster abortion rights but also serve as a crucial tool in safeguarding broader reproductive rights against future legislative and judicial challenges. As advocates increasingly link the ERA with reproductive justice, its ratification may become pivotal in shaping women’s rights in America.
Current Political Pressure
The likelihood of President Biden taking action on the Equal Rights Amendment before his term ends on January 19, 2025, remains uncertain amid significant legal and procedural hurdles. A coalition comprising over 100 House Democrats and 46 Senate Democrats has urged Biden to direct the National Archivist to certify and publish the ERA. They argue that such action would enhance his legacy while providing essential protections for gender equality and abortion rights in a post-Roe landscape. Senator Kirsten Gillibrand has been particularly vocal about this initiative, suggesting that Biden could achieve this with a simple directive despite historical and legal challenges surrounding the amendment’s ratification process.
Legal Challenges
However, National Archivist Colleen Shogan has indicated that she cannot certify the ERA without further action from Congress or a court ruling to lift the ratification deadline established in 1979. Previous opinions from the Office of Legal Counsel have affirmed that this deadline remains valid and enforceable, complicating efforts to advance without legislative support or judicial intervention. Critics argue that even if Biden were to issue a directive, it might be disregarded due to these legal constraints; Shogan has committed to adhering to her previous statements regarding needing a court order for certification.
Public Support and Political Will
Despite these challenges, there is considerable public support for Biden’s potential action on the ERA. Polls show approximately 61% of likely voters favor his involvement in adopting the amendment. Advocates contend that such a move would not only solidify Biden’s legacy but also address urgent issues related to gender equality and reproductive rights—especially critical as a new administration may adopt a more hostile stance toward these matters.
Conclusion
President Biden’s decision regarding the Equal Rights Amendment could have profound effects on U.S. law and society. While it represents a significant step toward formalizing gender equality in the Constitution, it also raises complex legal questions that could reshape how courts address sex discrimination. As lawmakers push for swift action before a potential shift in administration, uncertainty looms over whether Biden will take definitive steps to advance the ERA or if these efforts will stall amid legal ambiguities. The combination of procedural requirements and potential resistance from the National Archivist creates a complex landscape where swift action appears unlikely. As time progresses toward January 2025, it remains crucial to monitor whether Biden will seize this opportunity or allow it to slip away amidst ongoing legal uncertainties surrounding this historic amendment.
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[1] https://www.nytimes.com/2024/12/13/us/politics/gillibrand-biden-equal-rights-amendment.html
[2] https://www.yahoo.com/news/equal-rights-amendment-still-dead-201800159.html
[3] https://abcnews.go.com/US/wireStory/archivist-equal-rights-amendment-certified-democrats-push-biden-116876048
[4] https://d-mars.com/lawmakers-urge-president-biden-to-finalize-equal-rights-amendment-before-transition/
[5] https://news.bloomberglaw.com/daily-labor-report/biden-pressured-to-publish-equal-rights-amendment-on-his-way-out
[6] https://www.eracoalition.org/2024/11/14/the-era-coalition-launches-the-legacy-we-deserve-era-now-call-on-biden-to-put-the-equal-rights-amendment-in-the-constitution/
[7] https://www.google.de/policies/faq
[8] https://thehill.com/homenews/house/5032456-cori-bush-democrats-advocates-joe-biden-equal-rights-amendment-push/
[9] https://www.perplexity.ai/elections/2024-11-05/us/president