ALBANY, NY – A proposed amendment to the New York Constitution aimed at protecting the right to abortion could appear on the ballot this fall without any mention of the word “abortion.”
This is partly due to strong disagreements over what the so-called Equal Rights Amendment would actually do if it passed.
The state Board of Elections, charged with drafting easy-to-understand explanations of proposed bills that appear on the ballot, decided Monday that rather than attempt to interpret the amendment, they would simply repeat its somewhat obscure language in material provided to voters. voters.
The New York Constitution currently says that no person shall be subjected to discrimination on the basis of race, color, creed or religion. The proposed change would add to that list: ethnicity, national origin, age, disability and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.”
How to interpret discrimination based on these things, however, changes depending on who you ask.
In New York, Democrats and Republicans are using the proposal as a tool for some of their most pressing political issues, hoping to get voters to the polls next November.
Democratic state lawmakers put the issue to a vote in response to the U.S. Supreme Court ruling Overturning Roe v. Wade and they say the proposal is a way to enshrine the right to abortion in the state constitution.
Republicans sought to frame the change as a disingenuous move by Democrats to provide constitutional protections for transgender athletes, among a long list of other concerns.
The proposed change is part of a handful of abortion-related issues that Democrats in several states have put on the ballot this year, with the party betting that voters will have the energy to vote to protect access to the procedure. Voters have shown support for access to abortion for any reason, and 7 in 10 Americans think abortion should be legal in all or most cases, according to a new poll from Associated Press-NORC Public Affairs Research Center.
But while some states have explicitly included provisions to prohibit abortion restrictions in their proposed amendments, Democrats in New York have not done so. Instead, state Democrats have chosen to try to safeguard abortion access by expanding the list of classes in state anti-discrimination protections.
At first glance, preventing discrimination against someone who has had an abortion seems to have implications for issues such as labor law and housing law.
But supporters of the amendment, and some legal experts, say it would also provide a way to challenge any future abortion restrictions in New York on the grounds that a restriction would amount to discrimination against a type of health care — abortion — to the detriment of other types of healthcare. Careful.
“It’s not the ban itself that makes it discriminatory, it’s the fact that the Legislature would ban abortion but not other types of health care, which amounts to discrimination in health care,” said Michael C. Dorf, professor of law at Cornell Law School. which focuses on constitutional law.
“The idea is that you are highlighting one form of reproductive health care and not other types of health care,” he said.
State Sen. Liz Krueger, a lead sponsor of the proposed amendment, joined other Democrats in calling on the Board of Elections to include the words “abortion” and “LGBT” in the ballot explanation, which people will see in the voting booth at election day.
Democrats wrote a letter to the board stating that the amendment “will protect the right to abortion in the state constitution,” adding that “this critical point may be missed, however, if the word ‘abortion’ is not included in the ballot language.”
In a brief meeting on Monday, the council voted to use an explanation that removed language directly from the proposed amendment — excluding the terms “abortion” and “LGBT” — under the idea that voters should see the actual language of the amendment. amendment to understand. Still, one of the council members noted that the language of his explanation could eventually be the subject of a legal challenge from Democrats.
The decision disappointed advocates like Sasha Ahuja, campaign director for the advocacy group New Yorkers for Equal Rights.
“The council has a mandate to ensure that ordinary voters can understand what they are voting for,” she said after the council vote, adding that the abortion component “must be clearly reflected and explained in the language of the vote.”
At the moment, New York allows abortion until fetal viability, which usually occurs between 24 and 26 weeks of pregnancy.
Further limitations on abortion in the state seem unlikely in the near future. Democrats control a supermajority in the state Legislature and Democrats have a firm grip on the governor’s office. Supporters argue that the state should do everything it can to guarantee the right to abortion.
“We have good, solid statutes in New York state that make all of these things clear, but they can come and go if there is an anti-choice Legislature or governor,” Krueger said.
Republicans, meanwhile, have since launched an aggressive campaign against the ballot question, warning that the proposal would allow transgender athletes to play on women’s sports teams. A GOP lawmaker also tried unsuccessfully to block the amendment through a legal challenge.
David Laska, spokesman for the New York State Republican Party, said the ballot question is “not about abortion.”
“After all, the word ‘abortion’ is not in the text of the amendment and efforts to add it to election language are misleading and wrong,” Laska said.
New York already has strong anti-discrimination laws that would block restrictions on trans athletes. The state attorney general is currently using these laws in a lawsuit against a Republican county government’s attempt to prevent trans athletes from using county sports facilities.
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