ALBANY, NY — The New York State Senate approved a measure Friday that, if enacted in its entirety, would enshrine the right to abortion and access to birth control in the State Constitution.
The measure, the Equal Rights Amendment, puts New York at the forefront of legal efforts to protect reproductive rights after the Supreme Court overturned Roe v. Wade last week, ending long-established abortion protections.
But the scope of the amendment is much broader. It prohibits the government from discriminating against anyone based on a list of qualifications that include 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 goes into effect.
Democrats in Albany described the amendment as a crucial defense of those protected classes and a shield against potential government forays into contraception, consensual same-sex relationships and same-sex marriage.
“We can no longer afford to play a risk game because the right will not only take everything to court, but will begin to control all courts,” said Senator Liz Krueger, the architect of the amendment. “So it’s becoming more and more important to enshrine things in state constitutions as well as state laws.”
Timing, they said, was also important.
“I think this first passage comes at a time when New Yorkers want to express their support for abortion rights and reproductive health care, as well as protect other New Yorkers,” said Sen. Brad Hoylman, a Democrat from Manhattan, who co-sponsored the bill. .
More than a dozen states and the District of Columbia affirmed or expanded abortion rights before the Supreme Court ruling, while another dozen Republican-led states had legislation in place banning abortion after the ruling was issued.
In the final days of the 2022 New York legislative session, lawmakers passed a package of bills aimed at protecting abortion providers and seekers. But after the Supreme Court issued decisions on abortion and concealed weapons, Democratic Gov. Kathy Hochul ordered the Legislature to return to Albany on Thursday for a special session.
After a long night of negotiations, the measure was approved in the Senate without debate. It now heads to the Assembly, where Speaker Carl E. Heastie said Friday that he hoped it would pass.
Still, no changes will come immediately.
Amending the state Constitution is a year-long process in New York, requiring approval by two separately elected legislatures and then approval by voters in a referendum. By passing it this year, Democratic leaders hope they can get it passed next year and get it to voters in 2024, when high turnout is expected in a presidential election year.
Although Ms. Hochul has no formal role in passing such an amendment, she has said she supports the measure and has featured the effort in campaign ads.
The proponents hoped to pass the amendment by the end of the 2022 session, which concluded in early June. But the effort bogged down after several leading religious groups, including the Catholic Conference and the Council on Jewish Community Relations, opposed the move.
The question was whether the act of enshrining new protected classes in the State Constitution would in any way degrade existing religious protections.
Early versions of the bills did not include religion or creed in the list of protected classes, although religious rights appear elsewhere in the state Constitution. Religious groups protested vigorously.
Marc Stern, general counsel for the American Jewish Committee, said that while he supported adding protections for reproductive and transgender rights, he believed omitting religion from the specific list was unacceptable.
“What they have in mind are cases of wedding photographers and bakeries,” Stern said, referring to previous court cases involving companies that denied their services to gay couples. “That’s why they exclude religion and creed.”
Stern said he believed lawmakers intended gay couples to win such cases, which he considered putting “a finger in the balance.”
By Friday, lawmakers had reached a compromise, adding religion to the list of protected classes so that it would be on an equal footing with sex and race.
Lawmakers said the compromise would ensure the state had stronger protections than ever for members of protected classes, and that the rights of one group would not diminish those of another.
“This amendment is really a shield, not a sword,” Hoylman said.
To the disappointment of advocates, a provision that would have lowered the standard for discrimination, to include unintentional discrimination resulting in ‘disparate impact’, was removed from the legislation. But a clause in the law leaves the door open for future changes.
The Catholic Conference issued a statement Friday opposing the move.
Advocates, including the New York Civil Liberties Union, applauded 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 under our control.’ 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 huge victory.”