New York Moves to Enshrine Abortion Rights in State Constitution

ALBANY, N.Y. — The New York State Senate on Friday passed a measure that, if fully enacted, would enshrine in the State Constitution the right to seek an abortion and access contraception.

The measure — the Equal Rights Amendment — places New York at the forefront of legal efforts to protect reproductive rights after the Supreme Court struck down Roe v. Wade last week, ending long-established abortion protections.

But the amendment’s reach is far broader. It prohibits the government from discriminating against anyone based on a list of qualifications including race, ethnicity, national origin, disability or sex — specifically noting sexual orientation, gender identity and expression, and pregnancy on the list of protected conditions.

The Assembly is expected to pass the bill, and then voters would have to approve the amendment in a referendum before it would go into effect.

Democrats in Albany described the amendment as a crucial defense of those protected classes and a shield against potential government incursions on contraception, same-sex consensual relations and same-sex marriage.

“We can no longer afford to play a risk game because the right not only is going to take everything to court, they’re starting to control all the courts,” said Senator Liz Krueger, the architect of the amendment. “So it’s just more and more important to enshrine things in state constitutions as well as state laws.”

The timing, they said, was important as well.

“I think this first passage meets the moment that New Yorkers want to express their support for abortion rights and reproductive health care — as well as protect other New Yorkers,” said Senator Brad Hoylman, a Democrat of Manhattan, who co-sponsored the bill.

The Catholic Conference, which represents Bishops of New York State, opposed the measure: “Unfortunately, this bill solidifies the message that New York has been sending women for some time now: Abortion is positive, empowering, and the key to success,” the group said in a statement. “Our elected officials should stop promoting abortion as a woman’s best and only choice, and focus instead on true support for women, children and families.”

More than a dozen states and the District of Columbia affirmed or expanded abortion rights before the Supreme Court ruling, while another dozen or so Republican-led states had legislation in place that outlawed abortion after the ruling was issued.

In the last days of New York’s 2022 legislative session, lawmakers passed a package of bills aimed at protecting abortion seekers and providers. But after the Supreme Court issued decisions on abortion and concealed weapons, Gov. Kathy Hochul, a Democrat, ordered the Legislature to return to Albany on Thursday for an extraordinary session.

Following a long night of negotiations, the measure passed the Senate without debate. It now heads to the Assembly, where Speaker Carl E. Heastie said on Friday that he expected it to pass.

Still, no changes will happen right away.

Amending the State Constitution is a yearslong process in New York, requiring passage by two separately elected Legislatures, and then approval by voters in a referendum. By passing it this year, Democratic leaders hope that they can win approval next year and get it to voters in 2024, when a high turnout is expected in a presidential election year.

Though Ms. Hochul has no formal role in approving such an amendment, she has said that she supports the measure and has included the effort in campaign ads.

Proponents had hoped to pass the amendment at the end of the 2022 session, which concluded in early June. But the effort got bogged down after several leading religious groups, including the Catholic Conference and the Jewish Community Relations Council, opposed the measure.

At issue was whether the act of enshrining new protected classes into the State Constitution would in any way downgrade existing religious protections.

Early versions of the bills did not include religion or creed on the list of protected classes, though religious rights do appear elsewhere in the state Constitution. Religious groups protested mightily.

Marc Stern, general counsel for the American Jewish Committee, said that while he supported adding protections for transgender and reproductive rights, he believed that omitting religion from the specific list was unacceptable.

“What they have in mind are the wedding photographer, bake shop cases,” Mr. Stern said, referring to past court cases involving businesses that denied their services to gay couples. “That’s why they are excluding religion and creed.”

Mr. Stern said he believed that lawmakers intended for gay couples to win those cases — which he considered putting “a thumb on the scale.”

By Friday, lawmakers had reached a compromise, adding religion to the list of protected classes so that it would be on equal footing with sex and race.

Lawmakers said the compromise would ensure that the state had stronger protections than ever for members of protected classes, and that one group’s rights would not diminish another’s.

“This amendment is really a shield, not a sword,” Mr. Hoylman said.

A provision that would have lowered the standard for discrimination — to include unintentional discrimination that results in a ‘disparate impact’ — was removed from the legislation, to the disappointment of advocates. But a clause in the law leaves the door open for future changes.

The Catholic Conference released a statement on Friday, opposing the measure.

Proponents including the New York Civil Liberties Union cheered the passage, calling it a crucial first step in responding to the ‘existential threat” posed by the Supreme Court.

“Our state constitution, if this amendment passes, will say, ‘not here in New York and not on our watch.’ Our equal protection clause can serve as a model,” said Lee Rowland, policy director for the New York Civil Liberties Union, adding: “That’s a big win.”