Proposition 1 would codify abortion rights in the New York State constitution

New York is the latest state to put abortion rights on its statewide ballot since a landmark decision by the U.S. Supreme Court.

But it’s not just abortion rights that are included in Proposition 1 on the ballot for voters, a proposed state constitutional amendment called the Equal Rights Amendment. It covers protections for other forms of discrimination as well. This part of the proposal has been the focus of critics.  

Opponents unleashed a wave of spending in late October. A specially-formed political-action committee, calling itself "Vote No on Prop One," has spent $5 million largely on television, digital and radio ads to campaign against the amendment, according to records filed Friday with the state Board of Elections. A pro-amendment group, New Yorkers for Equal Rights has reported spending $3 million since July.

The push for the proposition began not long after the Supreme Court overturned Roe v. Wade, which, for decades, had provided federal abortion rights. The court’s decision, referred to as the Dobbs case, effectively handed the issue to the states.

Since then, more than 20 states have enacted some ban or tight restrictions on abortion. A handful of states have gone the other way, proposing — and winning approval in a statewide referendum — to put abortion rights in their state constitutions.

New York, where Democrats outnumber Republicans by better than 2-to-1, has been considered a strong abortion-rights state. Republicans and other critics say the proposed amendment is unnecessary here and that its inclusion on the ballot is a "cynical political maneuver" to drive up turnout in a presidential election year.

"No one can credibly argue abortion rights are in jeopardy in New York," John Faso, a former Republican congressman who has been a leading critic of the proposal, told Newsday.

Sen. Liz Krueger (D-Manhattan), who helped shepherd the amendment through the State Legislature, said opponents are trying to downplay the issue.

"Since Dobbs, 24 other states have, for all intents and purposes, banned abortion rights. To say it's not going to be a possibility here is a nice fairy tale, but look what’s been going on in this country for the last two years," Krueger said.

Asked why a constitutional amendment is needed when New York has a strong state law on abortion, Krueger said: "Because courts change. Elections change who is in the executive chamber and who is in the legislative chamber."

Support for the proposition is running strong. In the latest Siena College poll, 69% of voters said they favored the amendment, while 22% opposed it. More than three-fourths of women surveyed said they support it.

But unlike some other states, New York’s proposal is broader than just abortion.

New York’s Constitution already contains prohibitions on discrimination based on race and religion. The amendment would add protections for a person’s ethnicity, age, national origin, disability and sex, which includes pregnancy and pregnancy outcomes, sexual orientation, gender identity and gender expression. Though it doesn’t expressly use the word "abortion," it says it protects "reproductive autonomy" and access to reproductive health care such as in vitro fertilization and contraceptives.

If approved by voters, these rights would be protected by the state constitution and couldn’t be changed simply by the State Legislature passing a new law.

Voters will have to "flip the ballot" over to read the proposition because it is printed on the other side of the paper from the election contests. Proponents have been trying to build awareness, worried that many voters won’t bother to read the back side of the ballot.

Critics say the gender protections could clear the way for transgender athletes to insist on a constitutional right to participate in women’s sports. They also say a minor could go to court and claim a constitutional right to receive puberty-blocking drugs or other transition medical treatment and override any parental rights to object.

"The person could say, 'I have a constitutional right.' Parental rights are statutory rights. Law 101 says constitutional rights override statutory ones," Faso said.

But proponents say this isn’t an accurate representation.

"Prop 1 does not change existing law with respect to parental consent, or parents’ ability to be involved in decision-making about health care or medical procedures for their minor children, including gender-affirming care," the New York City Bar Association said in a report about the proposal.

"Prop 1 does not alter New York's Human Rights Law, which requires parental consent for minors to receive medical procedures," said Susan Cersovsky, cochair of the Bar's Sex and Law Committee, which helped put together the analysis. 

Further, the bar said approval of the proposition won’t "change current law with respect to participation on sports teams."

"Prop 1 is consistent with Title IX, the controlling federal law that has already been interpreted by federal courts to require young people to play on sports teams that match their gender identity and expression," the report said. While Title IX is controlling, it also is the subject of ongoing court battles in multiple states.

Critics say the proposed amendment was initiated, in the legislative process, as focused on abortion and that Democrats muddled it by adding the extra protections.

Krueger doesn’t buy it.

"The people who say it is muddled are really opposing abortion rights, but they don’t dare say that because we are in a pro-choice, blue state so they try to focus on other arguments," Krueger said. "People are trying to intentionally muddle it because they really don’t want abortion rights in the constitution."

By Yancey Roy

yancey.roy@newsday.com@yanceyroy