Acting Albany state Supreme Court Justice David Weinstein, in a sound opinion on Friday based on the law and common sense, ruled that the state Board of Elections was mostly correct in determining the ballot language for Proposal No. 1 that will be before voters this fall.
Called the Equal Rights Amendment, the offered changes to the state Constitution would expand on this current statement, “No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights” adding new categories of “ethnicity, national origin, age, disability, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
This proposed amendment was rushed forward with no hearings just seven days after the U.S. Supreme Court issued its awful Dobbs opinion on June 24, 2022, overturning Roe v. Wade. The authors probably meant it to cover abortion, but oddly they did not use the word “abortion.” And the Board of Elections voted, with both Republicans and both Democrats all in agreement, to have the language on the ballot reflect the amendment.
A lawsuit was brought saying that “abortion” should be on the ballot, despite not appearing in the amendment, arguing that New York’s 2023 plain language law to explain ballot measures in understandable terms should apply. Weinstein did alter the BOE’s choice of verbiage from “discrimination” to “unequal treatment.” But he properly left out “abortion.”
And that’s on the Democrats in the Legislature. They should have done the same thing that voters in eight other states will see this year for their state constitutions and have the chance to explicitly add “abortion” as a protected right.
Maryland has a somewhat different amendment that says: “That every person, as a central component of an individual’s rights to liberty and equality, has the fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy. The state may not, directly or indirectly, deny, burden, or abridge the right unless justified by a compelling state interest achieved by the least restrictive means.” The Maryland ballot does not use the word “abortion.”
In 2022, Vermonters approved this to their constitution: “That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” There was no mention of “abortion,” on the ballot, but it still easily passed.
There is a lot of junk in New York’s Constitution that the plain language law is useful for. Much of the detritus about archaic law restrictions and canals could have been cleaned up by a state constitutional convention. We were among the few who supported that 2017 convention, but it got smothered by a margin of 5-1 when all the special interests, from left to right, teamed up to protect their turf.
The ERA sponsor, state Sen. Liz Krueger, to her credit, also backed the convention, which could have written a straightforward abortion rights amendment into the Constitution. But New York never seems to do anything the simple way.