Judge Allows Exclusion of Word ‘Abortion’ From New York Ballot Measure

A woman casts her ballot in New York City in a June 28, 2022, file image. Michael M. Santiago/Getty Images

A New York judge has declined to compel state election officials to explicitly mention the word “abortion” in the description of a proposed constitutional amendment aimed at expanding anti-discrimination protections, dealing a setback to Democrats who sought to clarify the measure’s implications for voters ahead of the November election.

In a ruling issued on Aug. 23, Albany County Supreme Court Judge David Weinstein concluded that while the proposed constitutional amendment could impact abortion, it was inappropriate to mandate that the term be included in the ballot’s explanatory text.

The amendment, known as Proposal Number One, seeks to broaden the state constitution’s anti-discrimination provisions by adding protections based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity, gender expression, pregnancy, and reproductive health care and autonomy.

Democrats have argued that including terms like “abortion” and “LGBT” in the ballot description would provide voters with a clearer understanding of the scope of the amendment.

However, the New York State Board of Elections opted to use the proposal’s technical language verbatim in the ballot description, a decision Weinstein upheld in his order.

The original lawsuit, brought by two Democratic voters, argued that the board’s language failed to meet the state law’s requirement for ballot measures to be written in plain language. They contended that without explicit references to abortion and LGBT rights, the ballot wording obscured the true implications of the amendments.

Opponents of the amendment, including many Republicans, have argued that Proposition 1 would enshrine a range of controversial issues, including protections for abortion and transgender athletes, into the state constitution. They welcomed the board’s decision to use more technical phrasing in the amendment.

The judge reasoned that the language of the proposal adopted by the Board of Elections was not inherently misleading and thus could not be legally challenged on those grounds. He also noted that the potential effects of the amendment are difficult to predict and would probably be challenged in court.

“The central problem with these arguments arises out of the language of the amendment itself,” Weinstein wrote. “I lack the requisite crystal ball to predict how the proposed amendment will be interpreted in particular contexts, nor do I believe it appropriate for a court to answer complex interpretive questions regarding the meaning of a proposal before it has even been enacted.”

However, the judge did make some changes to the wording of the proposed amendment and its abstract, which is a brief description of the amendment’s intent.

The original text of the ballot description posted by the Elections Board read as follows:

“Adds Certain Protections to the State Bill of Rights. Adds anti-discrimination provisions to the State Constitution. Covers ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity, and pregnancy. Also covers reproductive healthcare and autonomy.

A ‘YES’ vote puts these protections against discrimination in the New York State Constitution. A ‘NO’ vote leaves these protections out of the State Constitution.”

Weinstein ordered a revised version of the text that now reads as follows:

“Amendment to Protect Against Unequal Treatment. This proposal would protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity, and pregnancy. It also protects against unequal treatment based on reproductive healthcare and autonomy.

A ‘YES’ vote puts these protections in the New York State Constitution. A ‘NO’ vote leaves these protections out of the State Constitution.”

Similarly, the judge revised the abstract of Proposal Number One to provide more clarity. The abstract now reads as follows:

“This proposal amends Article 1, Section 11 of the New York Constitution. Section 11 currently protects against unequal treatment based on race, color, creed, and religion. The proposal will amend the act to also protect against unequal treatment based on ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy. The amendment allows laws to prevent or undo past discrimination.”

David Laska, a spokesperson for the New York Republican Party, said in a statement that the court’s decision is a win for voters who deserve a straightforward and unbiased description of what’s at stake.

“Today’s court decision means that voters are presented with neutral language describing the amendment, and that is a good thing,” he said.

The Epoch Times has reached out with a request for comment on the ruling to the law firm that filed the lawsuit on behalf of the plaintiffs, and to New Yorkers for Equal Rights, the coalition behind the amendment.

A campaign director at New Yorkers for Equal Rights told The Associated Press that the amendment “will permanently protect New Yorkers’ fundamental freedoms, including the right to abortion—and voters deserve to know that at the ballot box.”