ALBANY, NY — A proposed amendment to the New York Constitution designed to protect abortion rights could appear on the ballot this fall without the word “abortion” in it.
That’s partly because of fierce disagreements over what the so-called Equal Rights Amendment would actually mean if it were to pass.
The state election board, which is charged with writing understandable explanations of proposed laws on the ballot, decided Monday that rather than attempt to interpret the amendment, it would simply repeat its unclear language in materials provided to voters.
The New York Constitution currently says that no person shall be discriminated against on the basis of race, color, creed, or religion. The proposed amendment would add to that list: ethnicity, national origin, age, disability, and “gender, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.”
How you interpret discrimination based on these factors, however, depends on who you ask.
In New York, both Democrats and Republicans are using the proposal as a means to highlight some of their most pressing policy issues, hoping to draw voters to the polls in November.
Democratic lawmakers in the state put the question on the ballot in response to the U.S. Supreme Court ruling. overturning Roe v. Wade and say the proposal is a way to enshrine abortion rights in the state constitution.
Republicans are trying to portray the amendment as a sly move by Democrats to provide constitutional protections for transgender athletes, among a long list of other concerns.
The proposed amendment is among a handful of abortion-related questions that Democrats have put on the ballot in several states this year, with the party betting that voters will be motivated to vote to protect access to the procedure. Voters have expressed support for access to abortions for all reasons, and 7 in 10 Americans say abortion should be legal in all or most cases, according to a new poll by The Associated Press-NORC Center for Public Affairs Research.
But while some states have explicitly included provisions to ban abortion restrictions in their proposed amendments, Democrats in New York have not done so. Instead, Democrats in the state opted to try to protect abortion access by expanding the list of classes in the state’s anti-discrimination protections.
At first glance, the ban on discrimination against someone who has had an abortion appears to have implications for issues such as employment and housing law.
But supporters of the amendment and some legal experts say it would also provide a way to challenge future restrictions on abortion in New York, arguing that a restriction would discriminate against one form of health care — abortion — over other forms of health care.
“It’s not the ban itself that makes it discriminatory, it’s the fact that the legislature would ban abortion but not other forms of health care, which amounts to health care discrimination,” said Michael C. Dorf, a law professor at Cornell Law School who focuses on constitutional law.
“The idea is that you choose one form of reproductive health care and not other types of health care,” he said.
Sen. Liz Krueger, a leading sponsor of the proposed amendment, had joined other Democrats in asking the Board of Elections to include the words “abortion” and “LGBT” in the ballot explanation that people will see in the voting booth on Election Day.
Democrats wrote a letter to the council saying the amendment “will protect the right to abortion in the state constitution,” adding that “however, this crucial point could be lost if the word ‘abortion’ is not included in the ballot text.”
In a brief meeting Monday, the board instead voted to use an interpretation that lifted language directly from the proposed amendment — except for the terms “abortion” and “LGBT” — with the idea that voters would need to see the actual language of the amendment to understand its purpose. Still, one board member noted that the language of their interpretation could ultimately be the subject of a legal challenge by Democrats.
The decision disappointed activists like Sasha Ahuja, campaign director of the activist group New Yorkers for Equal Rights.
“The board is charged with ensuring that ordinary voters can understand what they are voting on,” she said after the board’s vote, adding that the abortion component “must be clearly reflected and spelled out in the voting language.”
Currently, New York allows abortion until the viability of the fetus, which is usually between the 24th and 26th week of pregnancy.
Further restrictions on abortion in the state seem unlikely for now. Democrats hold a supermajority in the state legislature and Democrats have a firm grip on the governorship. Advocates argue that the state should do everything it can to protect abortion rights no matter what.
“We have good, solid laws in New York state that make all of these things clear, but they can come and go if you have an anti-abortion legislature or governor,” Krueger said.
Meanwhile, Republicans have 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 attempts to add it to the text of the ballot are misleading and wrong,” Laska said.
New York already has strict anti-discrimination laws that block restrictions on trans athletes. The state’s attorney general is currently using those laws in a lawsuit against a Republican county government’s attempt to bar trans athletes from using county sports facilities.