New Yorkers may change their constitution to ban discrimination over ‘pregnancy outcomes’
ALBANY, N.Y. — A change New York’s constitution, which bans discrimination based on things like “gender identity” and “pregnancy outcomes,” faces a final vote Tuesday, amid debate over the extent to which it could affect future abortion and transgender rights.
Proponents and opponents disagree sharp about the potential legal impact of the Equal Rights Amendment, also known as Proposition 1.
The New York Constitution currently prohibits discrimination based on race, creed, or religion. The amendment would add language saying a person cannot be denied civil rights because of their national origin, age, disability, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes or “reproductive health care and autonomy.”
Democratic leaders introduced the amendment on the ballot partly in hopes of boosting turnout among voters passionate about protecting abortion access, in an election year when U.S. House races in New York could help decide which party controls Congress.
Several other states are also abortion-related constitutional changes on their ballot Tuesday. Most voting questions address in the foreground when it should be legal to terminate a pregnancy. But in New York, state lawmakers took the indirect approach of writing the amendment as an anti-discrimination measure.
Democrats who support the amendment have argued that the new language would create a legal framework in which any restrictions on abortion would amount to an unconstitutional form of discrimination in medical care. The New York City Bar Association agrees with that assessment, as do several other legal experts.
Still, the fact that the amendment itself does not use the word abortion has caused headaches for its supporters. It also opened the door for opponents to claim that the different language would lead to a whole series unintended consequences.
Republicans have waged a vigorous campaign against the amendment, choosing not to focus on the protections it could provide for abortion and instead focusing on other parts of the proposal. Their main line of attack was arguing that the amendment would give transgender athletes a constitutional right to play on girls’ sports teams.
They have also argued that language about national origin could prevent non-citizens from voting, that banning age discrimination could eliminate price discounts for seniors, and that it could also ultimately prevent parents from having a say in their decisions. medical care of the child.
Previous state court rulings have found that existing language in the state constitution prohibits noncitizens from voting. And the New York City Bar Association says the amendment would not block existing state laws that require parental consent for a child’s medical care.
Legal battles are already underway in New York over whether existing state and federal laws give transgender people the right to play on sports teams that match their gender identity.
Democrats in the state Legislature voted to place the amendment on the 2024 ballot after the U.S. Supreme Court overturned Roe v. Wade. Voters elsewhere have expressed support for abortion access in previous elections. A Associated Press-NORC Center for Public Affairs Research a recent survey found that seven in ten Americans believe abortion should be legal in all or most cases.
However, uncertainty about the impact of New York’s amendment on abortion was so great that even the state Board of Elections threw up its hands. The board is responsible for writing simple explanations of proposed changes that voters will see on their ballot. But instead of interpreting the measure or including the word abortion in its description, the board decided to repeat the amendment’s wording verbatim.
Proponents of the amendment objected and filed a lawsuit, but the judge in the case, David A. Weinstein, ultimately refused to let the board rewrite the description, in part because he could not say with certainty how courts would interpret the amendment’s language interpret.
Abortion is currently legal in New York until 24 weeks into pregnancy. After that, it is only legal if the life, physical or mental health of the pregnant person is in danger, or if a medical provider determines that the fetus is not viable. Although there is no defined time frame, viability is a term used by healthcare providers to describe whether a pregnancy is expected to continue to develop normally or whether a fetus can survive outside the uterus.
Democrats have firm control of the state government in New York, making new abortion restrictions unlikely in the near future.
Supporters of the proposal argue that if the amendment passes, it would create a strong layer of abortion protections in New York that would be difficult for a future legislature to repeal. That’s because New York requires the Legislature to approve an amendment to the Constitution twice before it goes to voters for final approval.