Summary
New York Proposal 1, the Equal Protection of Law Amendment, would add language to the New York Bill of Rights outlawing discrimination based on “ethnicity, national origin, age, and disability” or “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” The current anti-discrimination clause in New York’s Bill of Rights prohibits the denial of rights based on “race, color, creed, or religion.”
Fiscal Impact
The state has not projected any fiscal impact from this amendment.
Proponents’ Arguments
Prominent New York Democrats support the amendment, including Governor Kathy Hochul, U.S. Senator Kirsten Gillibrand, and U.S. Representative Hakeem Jeffries. New York Civil Liberties Union Executive Director Donna Lieberman believes that expanding the list of groups covered by state anti-discrimination laws, and enshrining those laws in the constitution, is important against the current polarized backdrop in national politics:
While New York has a robust set of anti-discrimination statutes, our state Constitution is inadequate when it comes to ensuring equality. In November 2024, New Yorkers will be able to demand the lasting protections of a constitutional amendment that would prohibit discrimination against groups who have been historically targeted, including those with disabilities, LGBTQI+ individuals, people of color, immigrants, women, and pregnant people. With a Supreme Court empowered to roll back fundamental rights and protections that advance equality, it’s crucial that New York meets the moment by enshrining protections against discrimination in our state Constitution.
At the heart of supporters’ arguments for the amendment is the protection of abortion rights in the wake of the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Clinic decision in 2002. Abortion is currently legal in New York until fetal viability, with few expecting any efforts at further state-level restrictions any time soon. Still, supporters of the amendment believe they can provide an extra robust layer of protection for abortion rights by barring discrimination based on “pregnancy outcomes” and “reproductive health” in the state constitution.
“It’s not the prohibition itself that makes it discrimination, it’s the fact that the Legislature would be forbidding abortion but not other kinds of health care, which amounts to health care discrimination,” explained Cornell law Professor Michael C. Dorf. “The idea is that you’re singling out one form of reproductive health care and not other kinds of health care.”
Opponents’ Arguments
The Coalition to Protect Kids-NY is leading the campaign against the amendment, with the New York Catholic Conference and several Republican state legislators also speaking out in opposition.
Like the amendment’s supporters, some critics have focused on the anti-discrimination measure’s potential impact on abortion rights. “It’s very vague, it’s very broad,” said state Senator George Borello. “In the end, my biggest concern is it will codify late-term abortions into the New York state constitution.”
Opponents have also criticized the long and broad list of protected groups in the amendment. “Democrats are selling this ‘Equal Rights Amendment’ as protecting abortion rights, which are in no way under threat in New York and aren’t really what it’s about anyway,” wrote The New York Post in an Aug. 11, 2024 editorial. “It’s without question the greatest bait-and-switch in Empire State history.”
The Post worries that the amendment could result in, “stripping parents of their rights over allowing minors to go on puberty blockers and undergo transgender surgery.” Others have alleged that the amendment would allow transgender athletes to play on girls’ and womans’ sports teams in the state’s high school and college athletics programs.
Discussion
New York joins a growing number of states that have sought to protect abortion rights through ballot initiatives and constitutional amendments after the Dobbs decision overturned Roe v. Wade in 2022. Abortion rights advocates in New York, however, have chosen a virtually unique approach.
Other state amendments already passed or on the ballot in 2024 directly prohibit future legislative restrictions on abortion, or provide a specific framework for regulation of abortion. Based on the experience of other solidly blue states California, Vermont, and Maryland, New York voters likely would have passed an amendment virtually guaranteeing abortion rights.
Instead, the authors of New York’s proposed amendment seek to expand in scope and constitutional protection the state’s anti-discrimination laws. New categories of discrimination the amendment would ban include, but are not limited to, “pregnancy outcomes” and “reproductive healthcare and autonomy.” Unlike direct and clearly-worded amendments on the ballot in states like Maryland, the mechanisms through which the amendment would protect abortion rights would presumably be left to the courts.
Abortion in New York is already legal until viability (24 to 26 weeks), and unlikely to be restricted further in the state any time soon. The proposed amendment’s fate will not immediately impact New York’s abortion laws, nor its already “robust” anti-discrimination laws. The amendment’s primary appeal appears to lie in the extra layer of constitutional protection, along with the political statement many voters wish to make during this divisive period.
The impact of the inclusion of other groups newly protected under anti-discrimination laws is also uncertain. But claims made by amendment opponents, such as those on gender issues quoted above, are highly dubious and based on vague legal hypotheticals reverse-engineered to scare voters.
Whether or not voters approve New York’s Equal Protection of Law Amendment, the state will almost certainly remain at the center of political and legal controversy over abortion rights for years to come.