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What to Know About New York’s ‘Equal Rights Amendment’

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2 months ago

October 17, 2024

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What to Know About New York’s ‘Equal Rights Amendment’

This ballot question guide is part of our full explainer article on all of the six proposals on the ballot in New York City this November.

When you vote in New York State this November, check both sides of your ballot. After the candidates, the first question you’ll see is Proposition 1.

What supporters call the Equal Rights Amendment would amend the state constitution to protect more people from discrimination, and add a clause enshrining the right to abortion — even though that word isn’t mentioned on your ballot.

The measure has drawn out strong feelings — and a lot of money. While supporters have raised significantly more cash than their opponents, they’ve struggled to fight opposition messaging that rarely mentions abortion but instead argues that the amendment would create new rights for trans people and migrants.

Let’s get into the nitty gritty. And don’t forget: If you’re in New York City, you’ll have five more ballot questions to answer in November. Here is our guide on all the proposals.

What is Proposition 1?

This is how Proposition 1 will look on your ballot:

“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.”

The question’s language: How did we get here?

Supporters of the amendment aren’t happy with the question voters are being asked to answer — and that it doesn’t use the word “abortion.”

The state Board of Elections decides ballot language, and as of last November, they’re required to write measures in “plain language:” specifically, as close to an eighth grade reading level as possible. After the BOE released ballot language for Proposition 1 in July, there was an outcry from supporters who found it confusing.

Two New Yorkers filed a lawsuit against the BOE alleging it wasn’t complying with the plain language law if it didn’t add the words “abortion” and “LGBT” to the ballot language. State Sen. Liz Krueger (D-Manhattan), one of the main architects of the amendment, and other members of the legislature urged the BOE to change the language, as did state Attorney General Letitia James.

Ultimately, a judge slightly adjusted the language, but did not add those words.

Hank Sheinkopf, a political consultant and lobbyist, said that people have “some reason to be confused” about an amendment that purportedly is about abortion — something that’s already legal in New York. He thinks even people who support abortion rights might have doubts about the necessity of a constitutional amendment.

“The probability that New York would become an anti-choice state is about as good as Mars and Saturn colliding tomorrow morning,” Sheinkopf said.

Why amend the state constitution?

To pass a law in New York, it must be approved by the state legislature and then signed by the governor.

But to amend the constitution, the legislature must pass the law twice — which Albany lawmakers did for Proposition 1 in July 2022 and January 2023 — and then get it approved in a referendum. That’s where voters come in this November.

An amendment is a lot harder to pass — and to overturn. Supporters of Proposition 1 say that degree of permanence is necessary when it comes to abortion and other protections.

According to Sarah Steiner, a New York-based election attorney who supports the amendment, it would do more to protect New Yorkers’ right to abortion than state law already does in the event of federal laws banning or limiting the procedure.

“If it is a New York constitutional amendment, it’s more likely that our rights here would be preserved,” Steiner said. “It’s the best chance we’ve got.”

What does it mean?

The New York State constitution already protects people from discrimination on the basis of “race, color, creed or religion.” This ballot measure would add ethnicity, national origin, age, disability and sex to the list. The new amendment also makes explicit that pregnancy outcomes, sexual orientation, gender identity, and reproductive autonomy are part of sex as a protected class.

So while the word “abortion” isn’t there, supporters say one big reason the amendment is needed is to put abortion rights in the state constitution.

“Across the country, politicians are restricting people’s rights and reproductive freedoms — including the right to abortion. And here in New York, there are dangerous loopholes in the state constitution that leave us vulnerable to out-of-touch politicians rolling back our rights,” said Sasha Ahuja, the campaign director of New Yorkers for Equal Rights, the primary group campaigning for Proposition 1.

The “loopholes” that Ahuja talks about center on the constitutional right to abortion — a right which does not currently exist, on the federal level or in New York State. Roe v. Wade first established that our constitution gives Americans that right, but its nullification in the 2022 Dobbs decision highlights how quickly a right that isn’t explicitly stated can more easily be taken away.

Like the federal constitution, our state constitution does not include a right to abortion.

Abortion has been legal in New York since 1970, and protections for abortion were increased after the Reproductive Health Act passed in 2019. However, contrary to popular belief, there is no legal “right” to abortion in New York. That’s what the amendment would create, supporters say.

“The Reproductive Health Act, which is in our health law, is a statute that defines the circumstances in which care may be provided,” said Katherine Bodde, the senior policy counsel at the New York Civil Liberties Union, which supports the ballot proposal. “But it is not a right-based framework.”

“We are creating protections for abortion within an equality framework that acknowledges that limitations on abortion access are fundamentally symptoms of sex discrimination,” she added.

The inclusion of “pregnancy outcomes” and “reproductive autonomy” in the constitution’s language would protect pregnant New Yorkers from facing criminal charges for a miscarriage, stillbirth or even using in vitro fertilization.

This isn’t entirely hypothetical. In 2008 a New York pregnant woman was convicted of manslaughter for the death of her fetus in a car accident — one of a dozen cases of pregnancy criminalization in New York tracked in recent decades by the nonprofit Pregnancy Justice.

The amendment would also enshrine the right to not be discriminated against on the basis of sex, gender identity, or sexual orientation.

“If we are opening up our equality protections, we’re not leaving members of our community behind,” said Bodde.

Who’s for Proposition 1?

New Yorkers for Equal Rights, which describes itself as a “coalition of more than 500 civil and reproductive rights organizations advocating for passage of Proposal 1,” includes the American Civil Liberties Union, the NYCLU, Planned Parenthood Action Fund, National Institute for Reproductive Health Action, and some teachers’ and healthcare workers’ unions.

Gov. Kathy Hochul is also in favor of the amendment. “New Yorkers deserve the freedom to control their own lives and healthcare decisions,” Hochul said in a statement to Politico.

Attorney General Letitia James has also come out in favor, and has been campaigning for the amendment around the state while drumming up support for Democratic candidates more broadly.

Who’s against Proposition 1?

The primary committee fundraising in opposition to Proposition 1, Coalition to Protect Kids NY, doesn’t mention abortion in their messaging at all. Instead, they’ve focused on transgender kids and teens — and the rights of parents.

Their website calls Proposition 1 the “Parent Replacement Act,” because, they argue, adding age as a protected class could strengthen arguments that minors should have more power over their own medical decisions.

“In our society we do have common-sense guardrails on age, you can’t do a lot of things as a minor,” said Ayesha Kreutz, a spokesperson for the Coalition. “And that’s the thing that kind of transcends, and why we have such a large coalition.”

NY GOP Chair Ed Cox said in a statement in July that the proposal “would give minors the right to puberty blockers and transgender surgeries without parental consent.”

But to Kreuger, Proposition 1 wouldn’t have any effect on something like the “guardrails” Kreutz references — and would not reduce parents’ rights.

“Courts have long acknowledged that minors are differently situated to the constitution than adults,” she said, “and that the government can make reasonable decisions about how to, for instance, create licensure schemes for driving, or limitations on lottery tickets, or limitations on accessing medical care.”

New York’s state Republican Party also opposes the proposal, saying that the amendment goes well beyond creating a constitutional right to abortion in the list of protected classes it creates.

“This amendment is a Trojan Horse that would grant illegal immigrants access to benefits paid for by taxpayers, as well as open the door to non-citizen voting,” said Cox. “It would also grant boys and men the right to compete in girls and women’s sports, by elevating ‘gender identity’ to a constitutional right.”

Groups that support the proposal say that those claims are overblown or outright wrong. Lourdes M. Rosado, the president of LatinoJustice, a lawyer-founded nonprofit, says Proposition 1 won’t affect migrants’ benefits or otherwise impact immigration policy “which is the federal government’s exclusive constitutional purview.”

As for the claim that “boys” would be allowed to compete in girls’ sports, both state and federal laws are interpreted as allowing kids to play on the sports team that aligns with their gender identity, according to Bodde, while New York’s existing human rights law and Gender Expression Non-Discrimination Act protect the rights of transgender New Yorkers.

These rights are also protected under Title IX, a federal law that prohibits discrimination based on sex in educational activities that receive federal funding, like school sports teams.

The part of Proposition 1 you won’t see on your ballot

The actual amendment to the constitution has two parts. The first adds the categories mentioned above — like ethnicity, age, and gender identity — to the list of protected classes. The second adds language to attempt to ensure that none of these new protections will infringe on any current ones.

“We’re not overriding existing law. So it’s still allowing the state legislature to pass specific laws in the public interest,” State Sen. Liz Krueger told THE CITY.

Krueger said that it’s an important part of the amendment, and one that has been misread by opponents.

For instance, members of a nonprofit Equal Protection Project have argued the clause would enable discrimination against one class as long as it is for the stated purpose of ending discrimination against another class, comparing that to colleges using affirmative action discriminating against Asian Americans.

“This embeds injustice into the state Constitution, giving carte blanche for the government to discriminate against one group under the guise of “dismantling discrimination” against another,” law professor William A. Jacobson wrote, adding that “The ERA is not about equal rights, but about racial retribution.”

Krueger, however, maintains that this would not be the case. For example, adding age or disability as protected classes doesn’t interfere with New York law allowing job descriptions to state specific eligibility requirements.

“They’re saying things like ‘this will allow disabled people to be firemen because you can’t discriminate against people by disability or age,” Krueger said. But those jobs require physical tests, like for a firefighter, climbing stairs, carrying equipment, raising a ladder, and “forcible entry” into a home.

“So under definition by law you’re not going to be eligible,” she continued.

Following the money: Who’s spending on Proposition 1?

The campaign in favor of Proposition 1 has raised significantly more money than the campaign against.

New Yorkers for Equal Rights, which is for Proposition 1, has received over $5 million in total contributions according to BallotPedia, which compiles donor data from tax filings via the state Board of Elections website.

The biggest donors include the NYCLU, which contributed $1.3 million, and Planned Parenthood Federation of America, which contributed $300,000.

Gov. Hochul said that she would contribute over $1 million from the state Democratic party to assist the campaign.

On the other side, the Coalition to Protect Kids NY has raised a total of slightly less than $400,000, with nearly $300,000 of that coming from Carol Crossed.

Even though the Coalition’s messaging makes no mention of abortion, Crossed has a long history of anti-abortion activism. She’s the vice president of Feminists Choosing Life New York, on the board of directors of Consistent Life International, and co-founded Democrats for Life America in 1999.

Crossed has also donated $100,000 to a similar campaign aiming to stop a ballot measure that would enshrine constitutional abortion protections in Ohio.