NY considers adding abortion rights to constitution

ALBANY — A right to abortion would be part of the state’s constitution under a proposal that has gained more attention this week after a leaked document showed the U.S. Supreme Court might overturn the Roe v. Wade decision that made abortion legal nationwide.

“We think it’s important to go beyond statute into the constitution not only because of the Supreme Court but because of a potential Republican Congress,” state Sen. Liz Kruger (D-Manhattan) told Newsday. She is proposing the measure.

On Thursday, Gov. Kathy Hochul said she is also considering a constitutional amendment as well as more safeguards for abortion in state law this election year.

“Roe is on the ballot now,” Hochul said Thursday in an interview with MSNBC.

A bill to begin the process could be passed before the scheduled end of the legislative session on June 2. The Legislature would have to approve the bill again after Jan. 1. A referendum could appear on the Nov. 2023 ballots, where voters could approve the amendment.

The proposal has gained steam this election year along with more than 20 bills to augment and create state laws after Monday’s leak of the draft decision by the U.S. Supreme Court.

Krueger said a constitutional amendment is crucial. She said state laws are more easily challenged by lawsuits, which could eventually be decided by the U.S. Supreme Court. Krueger also said that if Republicans win control of Congress in November’s midterm elections, federal laws could be enacted that try to supersede New York’s abortion laws.

An amendment to the state constitution would be the strongest measure the state could take to protect abortion rights, said Albany Law School Professor Vincent Bonventre, who studies state constitutional issues. He said that the amendment couldn’t be undone by future legislatures, governors or state courts. Only another amendment approved by voters could repeal the measure.

Congress could enact laws that further restrict or ban abortion that conflict with the state constitution, but the U.S. Supreme Court would have a narrow route to strike down the New York amendment, Bonventre said. He said some federal jurisdiction would have to be established such as national health, safety or welfare.

“I guess they could do it, but it’s really a stretch,” Bonventre said.

Assembly Republican leader Will Barclay (R-Pulaski) opposed the idea.

“Abortion rights in New York are already protected,” Barclay said. “They’ve been expanded here repeatedly and even if Roe v. Wade is overturned, those rights remain unchanged.”

The Senate’s Republican minority agreed.

“Any potential decision from the Supreme Court will have no impact on the laws here in New York,” said Katy Delgado, communications director for the conference.

In 2019, then-Gov. Andrew M. Cuomo proposed a constitutional amendment to protect abortion rights, but the effort failed. That year, the Legislature passed the Reproductive Health Act that codified all the protections of Roe v Wade into state law.

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.