Biden falsely declares failed Equal Rights Amendment as ‘law of the land’

CV NEWS FEED // Outgoing President Joe Biden on Friday baselessly declared that the controversial and unratified Equal Rights Amendment (ERA) has become the “law of the land.”

Pro-life critics, including the U.S. Bishops, have decried the ERA, which mandates “equality of rights” between the sexes as a means to advance a pro-abortion agenda. 

The Constitutional amendment passed in both houses of Congress in the early 1970s but failed to be ratified by a sufficient number of state legislatures by its 1982 deadline. Abortion activists have routinely pressed for its illegal advancement ever since.

According to POLITICO, Biden’s move was a “last-ditch effort” to defend the abortion industry against pro-life legal progress.

“Today I’m affirming what I have long believed and what three-fourths of the states have ratified,” wrote @POTUS, the government X account for Biden. “The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”

Contrary to the departing president’s claims, there are still only 27 amendments to the Constitution. The last was ratified in 1992.

In addition, a press release from the Biden White House stated that the American Bar Association (ABA), a voluntary trade association for lawyers and other legal professionals, “recognized that the [ERA] has cleared all necessary hurdles to be formally added to the Constitution.”

“I agree with the ABA and with leading constitutional scholars that the [ERA] has become part of our Constitution,” Biden added in the release. 

Observers pointed out that the ABA’s support has no legal bearing as they are merely a professional organization that is optional, and therefore by no means required, for lawyers in the country to join. The ABA has also long been accused of left-wing bias.

X’s popular user-driven content moderation service Community Notes quickly provided context below Biden’s post.

“The text of the Equal Rights Amendment contained a ratification deadline,” stated a Community Note as of late Friday morning. “The amendment was not ratified by the requisite number of states prior that [sic] deadline. While some states have ratified the amendment post-deadline, other states have revoked their ratification.”

The note in part cited the left-leaning Brennan Center for Justice.

Later, on Friday afternoon, the updated Community Note read: “The Archivist of the United States, charged with officially publishing ratified amendments, has confirmed that the ERA was not ratified and based that analysis on binding legal precedent. There is no 28th Amendment.”

This note linked to a press release from the National Archives dating to one month ago titled “Statement on the Equal Rights Amendment Ratification Process.”

The Archivist and Deputy Archivist of the United States stated via the release: “At this time, the [ERA] cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”

POLITICO reported that “Biden’s assertion may amount to little more than an expression of his opinion,” with the National Archives telling the news source “it has no plans to formally add” the ERA to the Constitution.

The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

Although the ERA does not explicitly mention abortion, many scholars and analysts have argued that it “could provide an alternative constitutional foundation for abortion rights,” Heritage Foundation Senior Legal Fellow Thomas Jipping wrote in 2023.

Jipping noted that some state courts have used “ERA provisions in their state constitutions to strike down limitations on taxpayer funding of abortion” and also pointed to the “increasing frequency of public statements by abortion advocates confirming that the ERA would support their cause.”

The same year, CatholicVote Director of Governmental Affairs Tom McClusky called potentially ratifying the ERA over 50 years after Congress passed it “the most far-fetched loophole yet in Democratic efforts to reimpose abortion-on-demand after the fall of Roe v. Wade.”

>> ANALYSIS: ERA IS ‘FAR-FETCHED LOOPHOLE’ FOR ‘ABORTION-ON-DEMAND’ <<

During the period of time between its passage and its missed deadline, numerous women opposed the amendment and pushed back on its supporters’ claim that it advanced women’s rights. 

The leader of nationwide opposition to the ERA was the late pro-life Catholic attorney Phyllis Schlafly, who is widely regarded as the individual primarily responsible for the amendment’s defeat. Schlafly passed away in 2016 at the age of 92. 

The primary author of the version of the amendment considered for ratification was male Sen. Birch Bayh, D-IN.