Since the Supreme Court struck down Roe v. Wade in the now-infamous Dobbs v. Jackson Women’s Health Organization decision just over two years ago, advocates and elected officials have turned much of their attention to state efforts to protect abortion care.
The ruling made a big show of returning decision-making to the states, and while several have used that power to completely or functionally ban abortion access — more so than they already had managed pre-Dobbs — others have gone explicitly in the other direction, codifying access or prohibiting restrictions in their jurisdictions.
One of the more common forms of this has been ballot initiatives, the closest thing we really have to direct democracy. So far, abortion-related ballot measures have been voted on in six states. In Ohio, Vermont, Michigan, and California, ballot measures inserting abortion rights into the state constitution succeeded. In Kansas and Kentucky, initiatives that would have prohibited abortion failed. That means that the pro-choice side is six for six in state ballot measure fights, a marker of just how unpopular restrictions on care really are.
That trend is snowballing. As per a tracker maintained by the health policy, research, and news organization KFF, there are currently ten states with ballot measures confirmed or under consideration to be voted on this year (Nebraska, oddly enough, will have two initiatives, one creating abortion rights and one restricting such rights). Among these states is our own New York, which is featuring one such amendment this coming November. There is, however, one glaring little issue: the text of the amendment itself does not actually mention abortion as such.
Confused? Let me try to briefly explain: unlike most other states with ballot referendum processes, New York’s cannot be initiated by citizens themselves- i.e., you can’t just go out and gather signatures to put a specific measure on the ballot. Instead, one can only be set in motion by the State Legislature, and that’s exactly what happened with the long process to approve the so-called Equal Rights Amendment to the State Constitution, which Albany lawmakers passed early last year with the goal of having it be on this year’s November ballot.
The change is relatively simple. Approval would modify the constitution’s existing protections against discrimination and add the categories of “ethnicity, national origin, age, disability” as well as “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” Republican Assemblymember Marjorie Byrnes, backed by the state GOP apparatus, sued to have the referendum invalidated under procedural arguments involving a required legal sign-off by the state attorney general’s office, which are legally arcane enough that I won’t detail them here. Suffice it to say that the effort briefly succeeded before it was overturned by a state appeals court.
So now it’s going to be on the ballot, and billed as an abortion rights measure. However, you’ll notice a couple things about the language. First, it goes significantly beyond reproductive healthcare to encompass a wider swath of protections, which I’ll come back to in a minute. Second, it doesn’t actually include the word “abortion” anywhere. Now, you might argue that this is virtually interchangeable with the language about “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy,” but the law is all about detail and interpretation, and there are already reasons to think this is going to be a problem.
Worried that voters wouldn’t fully grasp what the amendment was guaranteeing, state Democrats backed a lawsuit by two voters seeking to have the State Board of Elections clarify its intent by adding references to protections for “abortion” and “LGBT” rights specifically. State Judge David A. Weinstein ruled against them, keeping the language as it is. In his 33-page order, the judge explained his reasoning in part by casting doubt on whether the amendment did, in fact, mean those things, writing that he lacked “the requisite crystal ball to predict how the proposed amendment will be interpreted in particular contexts.” Put another way, the judge is signaling that not only will the language not be clarified, but that it is in fact not clear and could be interpreted not to fully protect abortion rights, or at least not in the way that the framers of the amendment intended.
Here’s the part where I take a deep breath and roll my eyes at the New York State Legislature so hard that I risk corneal injury. Not only did Albany Democrats pass this so sloppily that they risked getting it thrown out on procedural grounds, they didn’t put the word “abortion” in the amendment, and now a judge has already questioned the extent to which it would safeguard abortion rights before it’s even been voted on. Now, that might be a pretty bad-faith interpretation of the amendment’s language, but at this stage I would think we’d have all learned that the anti-choice crowd will latch on to anything left hanging.
Then, there is the other language on the amendment about protections for other groups. Republicans, who know that they’d get crushed trying to fight the amendment’s passage on an anti-abortion argument, have seized on the gender identity and presentation point to paint the amendment as primarily a pro-trans one. They’re deploying the well-worn playbook of fanning fear around the notion that it will allow medical transitions for minors, put female athletes at a disadvantage, and somehow endanger people in bathrooms — all things that both don’t really happen as opponents contend and which are even less specified by the amendment than abortion.
Personally, I think we should absolutely enshrine trans identity protections into our existing anti-discrimination provisions. Still, the fact is that this is a far more controversial issue politically right now than abortion, and both advocates and Democratic consultants are now sounding the alarm about how state Democratic leadership seems pretty tepid about dedicating significant time and resources to the amendment, while the Republicans are mounting an all-hands, top-dollar effort.
This opens up the real possibility that one of the first post-Roe, pro-abortion state ballot amendments to fail might be not in Kentucky, not in Kansas, but in New York, defeated due to lack of clarity and effort and an organized anti-trans campaign. The state already has strong pro-abortion laws and among the most inclusive policy and legislative stances on trans issues in the country, but that’s not quite the same as that being in the State Constitution. Frankly, this would just be embarrassing.
If you want to avoid that, it might be time to start spreading the word of what the amendment is, and why it’s one worth voting for despite its shortcomings.
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