President Joe Biden’s Friday announcement declaring the Equal Rights Amendment part of the U.S. Constitution is reviving long-simmering tensions in the abortion-rights movement about the outgoing president’s legacy on reproductive rights.
The last-minute move, three days before the end of Biden’s term, has sparked arguments between Biden’s defenders and his detractors over its significance, since even the White House acknowledged the announcement does not have the force of law. And the president’s declaration is also fueling a broader debate about whether Biden did enough to prepare for and respond to the fall of Roe v. Wade.
Sen. Kirsten Gillibrand (D-N.Y.), who has lobbied Biden for years to declare the amendment law, said it was a historic move that will set up court fights that could eventually restore abortion access nationwide.
“It’s the clearest pathway to challenge Dobbs’ holding that women in their reproductive years have no right to privacy, but arguably, men do,” she told POLITICO, referencing the 2022 Supreme Court decision that overturned Roe v. Wade. “Now plaintiffs are on notice that they can file lawsuits if they’ve been discriminated against.”
Yet many abortion-rights advocates are frustrated that Biden did not act sooner or more forcefully, with some complaining on social media that Friday’s announcement was “pure bullshit” and “meaningless pandering.”
“As president, he certainly has not done anything boundary-pushing in this regard, and making this announcement three days before the end of his term is pretty weak, especially because there’s no legal consequence to its announcement,” said David Cohen, a law professor at Drexel University and a prominent advocate for abortion rights. “He doesn’t say anything’s going to change. He doesn’t order anyone to take any action. He’s really just telling us what he thinks.”
Biden allies counter that the president did everything possible in the wake of the Dobbs ruling to mitigate the impact of state abortion bans — from fighting in court to preserve access to abortion pills and abortions for women experiencing medical emergencies, to enacting policies at the FDA and issuing legal memos at the Justice Department to defend doctors’ ability to mail abortion pills to patients in states with bans and dispense them at pharmacies. Defenders of the administration also point to Biden policies making the procedure available to some military servicemembers and veterans, undoing former President Donald Trump’s anti-abortion restrictions on foreign and domestic family planning programs, and authorizing the first over-the-counter birth control pill.
“We did whatever we could by executive action because we were hamstrung by the courts and hamstrung by a Congress that was not going to pass any piece of federal legislation,” an outgoing White House official not authorized to speak on the record argued to POLITICO. “But I completely understand the frustration.”
The complaints around Friday’s announcement are in line with widespread and long-standing gripes from progressives that the president — a devout Catholic who opposed abortion for most of his political career — did not do enough to prepare for or respond to the fall of Roe. And even those in the movement who praise Biden for Friday’s ERA announcement and his previous abortion-rights actions regret that more wasn’t accomplished before Trump’s Monday swearing-in.
“Collectively, as a party, often we are too deferential to norms, and we take a little bit too long to hash out how we’re going to respond to crises like the voting rights crisis and the abortion rights crisis,” said Mini Timmaraju, the head of Reproductive Freedom for All. “But I don’t lay that squarely at the feet of Joe Biden and his administration.”
Timmaraju added that Democrats also fell short in explaining the actions they did take to the public — citing several states where voters supported both abortion-rights constitutional amendments and GOP candidates who opposed those rights, and pointing to polling showing nearly one in five voters blamed Biden for the fall of Roe because it happened while he was in office.
“All the policies that Joe Biden put in place with Kamala Harris and his administration are incredibly popular, but they didn’t get credit for them,” she said. “We need to figure out: Are we breaking through to the American people? Are we making sure they understand the stakes?”
Yet many groups and individuals who advocate for abortion rights insist that Biden could and should have done more. There was widespread frustration, for example, that Biden and Harris advocated for restoring Roe v. Wade’s standard of abortion access up to the point of fetal viability instead of throughout pregnancy. The Biden administration also disappointed advocates in December by rescinding rules aimed at expanding birth control access because they ran out of time to implement them. Additionally, some of its abortion-rights actions have borne little fruit, such as a rule allowing states to use Medicaid funds to help women crossing state lines for the procedure that no states adopted.
Even those who cheered Friday’s ERA announcement argue Biden could have made it years ago, kicking off the likely long legal battle over its power much earlier. Progressive lawmakers and advocates have called on Biden to act on the ERA since he took office, calls that grew louder after the Supreme Court overturned Roe v. Wade, effectively wiping out access to abortion in a third of the country.
“The Equal Rights Amendment became the 28th amendment of the United States Constitution on January 27, 2020, when the last state ratified,” said Kate Kelly, the senior director of the Women’s Initiative at the Center for American Progress, a progressive think tank, referencing Virginia’s vote that year. “So this is a bit eleventh hour, but better late than never.”
The outgoing White House official explained to POLITICO that Biden was always a strong supporter of the ERA, but that his thinking on whether he could declare it ratified “evolved” over the course of his presidency.
“He became convinced because of the [American Bar Association’s argument in favor of it], because of these legal scholars who have really solidified their views over the last couple of years, that this was a valid, legally defensible position to take,” the official said. “We knew this was going to go to the courts, so we wanted it to go to the courts with its best chance for survival.”
Activists on both sides of the abortion wars have long argued that the decades-old amendment could restore access to abortion, giving women in states with abortion bans a mechanism to argue in court that they’ve been subjected to unconstitutional harm on the basis of their gender. Still, Biden’s declaration will have to be litigated in the coming years, and its efficacy could ultimately be decided by the same Supreme Court that got rid of Roe.
Though the ultimate outcome of the move remains unclear, the country’s biggest abortion-rights organizations insist that it cements Biden’s legacy as a champion of abortion rights.
“President Biden is the most pro-reproductive freedom president in history,” said Angela Vasquez-Giroux, the vice president of communications at Planned Parenthood Action Fund. “The administration was really in full-on crisis reaction mode and doing what was within their power and what would hopefully hold up to legal muster to make sure that people were able to get the care that they needed.”
