A Proposed Amendment to Protect Abortion Access in New York

A proposed amendment to New York’s constitution meant to protect abortion access is a crucial part of Democrats’ plans to drive voter turnout in the state this fall and potentially flip vital congressional districts.

The Equal Rights Amendment would broaden the state’s anti-discrimination laws by prohibiting discrimination based on ethnicity, national origin, age, disability and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.” While not explicitly barring abortion restrictions, the amendment could be used to challenge future abortion bans through the argument that such bans would amount to discrimination, according to its backers and some legal experts.

Democrats in the state Legislature passed the amendment last year and put it on the ballot in 2024 as a way to enshrine abortion rights in the state constitution. New abortion restrictions are highly unlikely to become law, given that Democrats control state government by wide margins.

Democrats have urged the Board of Elections to include the terms “abortion” and “LGBT” in its description of the measure, arguing that it would be clearer to voters and better represent its intent. However, the state Board of Elections chose late last month to use the measure’s technical language verbatim rather than interpret it in its explanation to voters.

This prompted Democrats to file a lawsuit in state Supreme Court in Albany, arguing that the board’s description violates a state law requiring ballot questions to be written in plain language that’s easy to understand.

At a hearing on Wednesday, an attorney for the plaintiffs argued that “when you have a legislation that was enacted for the purpose of protecting abortion rights, to be in a situation where we can’t tell voters that they’re voting on abortion rights strikes me as silly and misleading.”

However, a lawyer for the Republican board members argued that “if the driving force behind this legislation was to enshrine abortion into the Constitution, why didn’t the Legislature just say that specifically?”

It’s unclear exactly when the court would decide. The Board of Elections must certify what’s on the ballot by Sept. 11, and county election boards have to certify by Sept. 12.

Democrats in a handful of states have put abortion-related questions on the ballot this year in an attempt to boost turnout following the U.S. Supreme Court’s overturning of Roe v. Wade. Voters have previously shown support for abortion access, and an Associated Press-NORC Center for Public Affairs Research poll recently found that 7 in 10 Americans think abortion should be legal in all or most cases.