New Yorkers may change their constitution to ban discrimination over
‘pregnancy outcomes’
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[November 05, 2024]
By ANTHONY IZAGUIRRE
ALBANY, N.Y. (AP) — An amendment to New York’s constitution that would
bar discrimination based on things including “gender identity” and
“pregnancy outcomes" is up for a final vote Tuesday amid debate over how
much it might affect future abortion and transgender rights.
Supporters and opponents disagree sharply about the potential legal
impact of the Equal Rights Amendment, also known as Proposition 1.
New York’s constitution currently forbids discrimination based on race,
creed or religion. The amendment would add language that says someone
cannot be denied civil rights because of their national origin, age,
disability, sexual orientation, gender identity, gender expression,
pregnancy, pregnancy outcomes or “reproductive healthcare and autonomy.”
Democratic leaders put the amendment on the ballot partly in hopes of
boosting turnout by voters passionate about protecting abortion access,
in an election year where U.S. House races in New York could help decide
which party controls Congress.
Several other states also have abortion-related constitutional
amendments on their ballots Tuesday. Most of those ballot questions
address head-on when it should be legal to end a pregnancy. But in New
York, state lawmakers took the indirect approach of writing the
amendment as an antidiscrimination measure.
Democrats who support the amendment have argued that the new language
would create a legal framework where any restrictions on abortion would
amount to an unconstitutional form of discrimination in medical care.
The New York City Bar Association has agreed with that assessment, as
have some other legal experts.
Still, the fact that the amendment itself does not use the word abortion
has caused headaches for its supporters. It also opened the door for
opponents to claim its other language would lead to a raft of unintended
consequences.
Republicans have run a strong messaging campaign against the amendment,
choosing not to focus on what protections it might provide for abortion,
but to target other parts of the proposal. Their main attack line has
been to argue the amendment would provide a constitutional right for
transgender athletes to play on girls’ sports teams.
They’ve also argued that its language on national origin could result in
noncitizens being allowed to vote, that its ban on age discrimination
might take away price discounts for senior citizens, and that it could
also wind up stopping parents from having a say in their child’s medical
care.
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Previous state court decisions have
found that existing language in the state constitution bars
noncitizens from voting. And the New York City Bar Association says
the amendment would not block existing state laws requiring parental
consent for a child’s medical care.
Legal battles are already underway in New York over
whether existing state and federal laws give transgender people the
right to play on sports teams that match the gender identity.
Democrats in the state legislature voted to put the amendment on the
2024 ballot after the U.S. Supreme Court overturned Roe v. Wade.
Voters elsewhere have shown support for abortion access in previous
elections. An Associated Press-NORC Center for Public Affairs
Research poll recently found that 7 in 10 Americans think abortion
should be legal in all or most cases.
Uncertainty over the New York amendment’s impact on abortion was
pronounced enough, however, that it caused even the state Board of
Elections to throw up its hands. The board is responsible for
writing simple explanations of proposed amendments that voters will
see on their ballots. But rather than interpret the measure or
include the word abortion in its description, the board decided to
reiterate the amendment’s language verbatim.
Supporters of the amendment objected and filed lawsuit, but the
judge in the case, David A. Weinstein, eventually declined to make
the board rewrite its description, in part because he could not say
for certain how courts would interpret the amendment’s language.
Abortion is currently legal in New York up through 24 weeks from the
beginning of pregnancy. After that, it is only legal if the pregnant
person’s life, physical health or mental health is at risk, or if a
medical provider determines the fetus is not viable. Although there
is no defined time frame, viability is a term used by health care
providers to describe whether a pregnancy is expected to continue
developing normally or whether a fetus might survive outside the
uterus.
Democrats have firm control of state government in New York, making
any new abortion restrictions unlikely in the near future.
Backers of the proposal argue that if the amendment passes it would
create a strong layer of abortion protections in New York that would
be difficult for a future legislature to repeal. That's because New
York requires the legislature to pass an amendment to the
constitution two times before it goes to voters for final approval.
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