Vote 'no' on Proposition One, the Equal Rights Amendment

Changing the New York Constitution is a serious endeavor. The aspirations and values to be enshrined in the state’s legal framework should always reflect a deliberate legislative process and an informed decision by voters who understand the consequences that will shape the policies and politics of New Yorkers for generations.

On all ballots this year is the proposed Equal Rights Amendment called Proposition One. It's being marketed as urgently needed to further protect the state's already expansive access to abortion after the Supreme Court reversed Roe v. Wade and ruled abortion laws were to be determined by each state. But the word "abortion" is nowhere to be found in its text.

Opponents of the measure are equally overwrought but correct about some of its potential excesses. The amendment would not overrule any existing laws or create any new rights in the state. But it would start in motion a legal process to give the courts much more power to determine these outcomes and to resolve cultural and political fights that currently cannot get majority support in the State Legislature. It is part and parcel of a parallel effort by legislative leaders to reshape New York's top court by stacking it with extremely liberal and activist judges who likely will provide favorable rulings on the litigation that's sure to follow.

Our deep and disabling partisan divide will not close if either side captures the judiciary to further its social agenda.

VAGUE WORDING

Proposition One would greatly expand categories that deserve the highest level of protection from discrimination. The new wording is in bold: "No person shall, because of race, color, ethnicity, national origin, age, disability, creed [or], religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy be subject to any discrimination ..." 

The phrasing regarding abortion in particular is absurdly vague. In contrast, Ohio voters approved a ballot amendment in 2023 that created new protections for an "individual’s right to make and carry out one’s own reproductive decisions" and specified that this covers birth control, fertility treatments, miscarriage and abortion. Ohio can limit abortion only at the point of fetal viability with exceptions for the health and life of the mother. 

Adopting Proposition One will encourage widespread challenges to existing civil rights and discrimination laws and flood the courts with litigation. Conflicting rulings will destabilize many institutions and individuals as they try to navigate these clashes.

The amendment, for example, opens the door to judicial activism on contentious issues such as overriding parental control of medical decisions for minors. Challenges to 55-and-older age restrictions for some housing are very likely. Could the age of 18 as legal consent to marry or the cutoff for youthful offender treatment by the courts fall by the wayside?

Proposition One is an end run around the will of the people to have these choices made by their elected representatives. Our opposition to the amendment is opposition to the process that produced it. The legislature must be the first crucible in which to test social change. Compromise and consensus on evolving cultural norms should be forged by lawmakers reflecting and incorporating the views of their constituents. It is process that keeps us honest. 

ABORTION PROTECTION HIJACKED

When the reversal of Roe became more likely due to then-President Donald Trump's Supreme Court appointments, steps to safeguard those protections began in New York. The Reproductive Health Act in 2019 permitted abortion up until 24 weeks — and longer if needed to protect the life or health of the mother. The next logical step was a constitutional amendment to make sure no subsequent legislature and governor would repeal that law.

Instead, the most liberal activists in the State Senate moved to make the amendment a grab bag of new civil rights, particularly on gender. The effort was considered too over the top to garner support until the overturning of Roe in 2022. In the uproar that followed, the Senate immediately called a special session to pass the then-dormant Equal Rights Amendment and the Assembly followed. Before any amendment can go on the ballot, it must be passed twice, in consecutive two-year sessions. At the start of a new session in January 2023, it was approved again. 

During that time, there was not one legislative hearing in either chamber, no testimony by legal experts about the scope of what was being passed, or recommendations on a better approach. By the second vote, there was just one hour of debate on the Assembly floor.

The deliberate shunning of good governance was followed by blatant cynicism. If protecting abortion was so urgent, the Equal Rights Amendment should have been placed on the 2023 ballot. Instead, it was held until this year, a presidential election year when having a pro-abortion measure on the ballot was expected to turn out more voters.

That delay was a tacit acknowledgment that there is ample time for the legislature to write a better amendment protecting reproductive rights and, we would advocate, same-sex marriage. Instead, voters are being tricked into approving a wide-ranging blueprint that could reshape some of the most foundational and intimate policies that New Yorkers live by.

Newsday's editorial board recommends a NO vote on Proposition One.