President Biden Should Finalize the Equal Rights Amendment

As the nation braces for Donald Trump’s second presidential term, advocates across the land are asking President Joe Biden to shield us from the looming threats to women’s safety and reproductive rights. This can be done with just twenty-four words: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

These words make up the primary clause of the Equal Rights Amendment (ERA), which has met all requirements for ratification and could immediately be recognized as the 28th Amendment to the U.S. Constitution. Under the law that governs how amendments get recognized, Biden can notify the Archivist of the United States, who can then certify and publish it. This became possible in 2020, when Virginia became the thirty-eighth and final state needed to ratify the ERA.

Rightwing extremists have clearly expressed their intentions to further decimate reproductive rights and health care. Since Roe v. Wade was overturned, thirteen states have enacted total abortion bans, with five more banning abortion starting at between six and twelve weeks. Women are being refused life-saving medical care at emergency rooms and experiencing negligent treatment, in some cases leading to their deaths.

The federal ERA can help restore all Americans’ basic right to abortion care. In fact, people in the twenty-eight states across the country where a state-level ERA has been adopted already benefit from these additional protections. In post-Roe America, states like New Mexico serve as havens for people from places like Texas who are forced to travel to seek abortion care due to draconian restrictions and outright bans in their home states. 

New Mexico’s state ERA enables its policymakers to strike down efforts to prohibit state funding being used for abortion care. Now, New Mexico has no burdensome targeted restrictions on abortion providers. State ERAs have also been successfully used to block abortion bans in Connecticut, Pennsylvania, and Utah. This is what the ERA’s impact could look like at the federal level.

With an incoming president who bragged about rolling back Roe v. Wade and a conservative supermajority on the U.S. Supreme Court, one of President Biden’s last actions in office should be to protect abortion rights by changing the actual text of the Constitution. Finalizing the ERA could allow proponents of reproductive rights to argue for abortion access based on equality, not “privacy,” which was the basis for Roe.

In the longer term, the ERA could also be used to strike down federal abortion restrictions like the dangerous Hyde Amendment, which bans the use of federal funds for abortion in almost all circumstances, and the Global Gag Rule, which bars foreign organizations receiving U.S. global health assistance from providing abortion services, referrals, or information, even with their own money.

Congress will also be able to pass more robust protections, including restoring Americans’ federal right to access abortion care beyond Roe, which was whittled away over the years. 

Violence against women is also likely to surge under the incoming administration, as the rightwing’s “pro-marriage” agenda disincentivizes Americans from leaving abusive partners. Project 2025, a blueprint for the second Trump term drawn up with extensive input from his affiliates, calls for rescinding rules established under Title IX to protect students who identify as LGBTQ+. Project 2025 also aims to expand gun ownership, including by removing laws that prevent individuals with domestic violence restraining orders from having guns, which puts survivors at great risk. 

Finalizing the ERA could thwart dangerous efforts like these and strengthen laws like the Violence Against Women Act—a longtime priority of President Biden. It could also lead courts to apply a new and higher level of judicial scrutiny to policies that result in gender discrimination. This will make it easier for survivors of gender-based violence to win in court. 

We need the ERA now more than ever—and we are only one signature away from making it a permanent part of our nation’s Constitution. Certifying this amendment will help restore abortion access, protect women from violence, and much more. It’s a permanent tool to build a gender-equitable future, and President Biden should put it in place, while he has the chance.

This column was produced for Progressive Perspectives, a project of The Progressive magazine, and distributed by Tribune News Service.