A New York Supreme Court justice ruled this week that an “equal rights” amendment meant to enshrine abortion-related protections in the state constitution cannot appear on the November ballot. New York’s Equal Protection of Law Amendment focused directly on outlawing discrimination based on “pregnancy, pregnancy outcomes, and reproductive health care and autonomy,” as well as “gender identity.” The Court found that state legislators committed a procedural error by approving the amendment’s language before the state’s attorney general could issue a written opinion on the proposal, which violated proper procedures as dictated in the New York Constitution.
While the proposed amendment’s text avoids using the word abortion and does not explicitly guarantee abortion rights in its language, the amendment had raised many pro-life concerns that it would constitutionally protect abortion access in a back door fashion. Essentially, the proposal’s text explicitly protects a person from discrimination for having an abortion, or for any decision related to a “pregnancy outcome.” However, according to the New York Bar Association, the proposal would have prevented the state from restricting a person’s “access” to what it called “reproductive health care.”
In the ruling, State Supreme Court Justice Daniel J. Doyle declared the amendment “null and void” and ordered it to be removed from the ballot due to the legislature’s inappropriate procedures. Justice Doyle noted that the order was solely due to fault in the legislative process and the content of the amendment was not being challenged. Under the state’s constitution, legislators are required to submit amendment proposals to the attorney general for review who in turn must respond within 20 days, and then the legislature can act on passing or rejecting the amendment. In this case, on July 1, 2022, the New York Legislature voted on and approved the amendment on the same day they referred it to the attorney general without waiting the 20 days or giving sufficient time for a response. By the time the legislature received the attorney general’s response and opinion on the amendment within the 20-day period on July 13, the amendment had already been approved for 12 days.
Justice Doyle stated the amendment process, as ratified by the citizens of New York, must have “strict adherence” and that the “flawed procedures” by the legislature “frustrated the deliberative process.”
“The constitution is the supreme will of the people,” wrote Justice Doyle. “The Court must conclude that the intent of the People expressed in [the state Constitution] is to provide the Legislature the authority to act on the proposed amendment only after the Attorney General has provided the opinion….”
Justice Doyle concluded that “voters have no right to vote on an amendment” that was placed on the ballot in violation of the state constitution.
New York’s attorney general has indicated the state will appeal the decision. In New York, the constitutional amendment process requires both legislative chambers to pass the proposed language in two legislative sessions, or two years, in a row. The amendment’s language had passed in both January 2022 and in January 2023. If the decision is upheld, legislators will have to start the whole process over again before the “equal rights” amendment can go before the voters.
Currently, abortion is legal in the state up to 24 weeks of pregnancy.
In 2024, at least 12 other states have citizen-led or legislative efforts underway to amend their state constitutions regarding abortion. These ballot initiatives vary in scope and intent. Eleven of these states, which include Arizona, Arkansas, Colorado, Florida, Maryland, Minnesota, Missouri, Montana, Nebraska, Nevada, and South Dakota have ballot initiatives that are attempting to codify abortion access or enshrine abortion as a state constitutional right.
Currently, only in Maryland is there an initiative that has secured a place on the ballot.
Initiatives in only two states, such as Nebraska and Pennsylvania, are attempting to guarantee the right to life for unborn babies or declare no right to abortion. Notably, Nebraska has two separate and opposing efforts on abortion. In Nebraska, one amendment would provide a “fundamental right to abortion without interference from the state” until fetal viability while the other would protect unborn children from abortion after the first trimester. Pennsylvania’s initiative would declare the state constitution does not provide a right to abortion or a right to public funding for abortion.
Liberty Counsel Founder and Chairman Staver stated, “The right to kill a child should never be up to popular vote. The right to life is an inalienable right that comes from God, not government.”
For more information about the 12 states with proposed constitutional amendments regarding abortion, visit Liberty Counsel’s website here.
