A ballot initiative that would elevate abortion access and “gender expression” to a protected status across New York will not appear before voters in November, a potential blow to Democrats seeking to campaign on the hot-button issues to win back seats in Congress.
The New York State Constitution currently prohibits discrimination based on “race, color, creed or religion.” The proposed constitutional amendment, referred to as the Equal Rights Amendment, would expand that list to include “ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes,” and “reproductive healthcare and autonomy.”
New York’s Democrat-dominated Legislature gave its initial approval to the amendment in a special session in the summer of 2022, a week after the U.S. Supreme Court eliminated federal protection for abortion and handed the power to regulate abortion back to individual states. The proposal passed the Legislature a second time in January 2023, as required before advancing to a statewide ratification referendum.
Not Following Procedure
In a ruling handed down Tuesday, New York Supreme Court Justice Daniel Doyle sided with Ms. Byrnes, declaring the amendment invalid and ordering its removal from the November 2024 ballot.The question centers around the timing of a review by the state attorney general. The New York State Constitution mandates that when the Legislature introduces a resolution proposing a constitutional amendment, it should forward that proposal to the state attorney general, who will “render an opinion in writing” regarding its potential impact on other provisions of the state constitution. According to Justice Doyle’s interpretation, lawmakers should not vote on the resolution until they receive the attorney general’s opinion.
In this case, New York Attorney General Letitia James did issue a written opinion supporting the amendment on July 6, 2022, but the Legislature had already voted on July 1.
“The same day the Concurrent Resolution was forwarded to the Attorney General, both the senate and the assembly voted to adopt the Concurrent Resolution. At the time of their vote, neither the Senate nor the Assembly had received the opinion from the Attorney General,” Justice Doyle wrote, adding that lawmakers had not received Ms. James’ opinion until July 13.
“As the Court finds that the Legislature violated the procedure required by Article XIX, the appropriate remedy is declaring the Concurrent Resolution adopted in derogation of the constitutional procedures void and removing the proposed amendment from the ballot,” he concluded.
Ed Cox, the chairman of the New York Republican State Committee, congratulated Ms. Byrnes for her victory.
“In their rush to pass this amendment, the legislature never held a single hearing on the proposal, never consulted with outside constitutional experts, and falsely asserted this amendment was necessary to protect abortion rights in the state,” Mr. Cox said in a statement Tuesday.
Gov. Kathy Hochul, who called the 2022 special legislative session, condemned the ruling.
“Our decades-long fight to protect equality and reproductive freedom will not be thrown off track by one extremist judge and I look forward to casting my ballot for the Equal Rights Amendment in November,” the Democrat governor said Tuesday.
Ms. James, a Democrat, vowed to appeal the decision.
“The Equal Rights Amendment was advanced to protect New Yorkers’ fundamental rights, including reproductive freedom and access to abortion care. This is a disappointing court decision, but we will appeal because New Yorkers deserve to be protected by their Constitution, especially as our basic freedoms and rights are under attack,” said Ms. James.
