New York judge tosses abortion-related Equal Rights Amendment from state ballot

May 7, 2024

A Western New York judge on Tuesday invalidated a ballot measure known as the Equal Rights Amendment that would have codified reproductive rights and protections against other discrimination into the state constitution. 

State Supreme Court Justice Daniel Doyle, a Rochester-area Republican, ruled that the state Legislature did not follow correct procedure when it passed the measure last year.  

“The constitution is the supreme will of the people,” he wrote. “Its amendment should be undertaken by strict adherence to the will of the people.” 

The ruling deals a blow to Democrats’ attempt to bring the issues before voters and boost turnout in November, when New Yorkers will vote on a handful of competitive House seats that could determine control of the chamber. 

New York Attorney General Letitia James (D) said her office will appeal the ruling. 

“The Equal Rights Amendment was advanced to protect people’s fundamental rights like reproductive freedom and access to abortion care. The decision to strike the ERA from the ballot in November is disappointing, and we’re appealing to defend New Yorkers’ rights,” James said in a statement. 

State Assemblymember Marjorie Byrnes (R) led the lawsuit, which argued the Democratic-dominated Legislature passed the amendment before receiving a formal opinion from the state attorney general’s office about its constitutionality.  

New York requires potential amendments to pass the chamber twice in different, separately elected legislative sessions before it gets put in front of voters. The AG’s opinion is supposed to be given before that process can begin.  

In this case, the AG’s opinion was issued after the first vote but before the second. But Democrats argued they had substantially complied with the requirements and noted previous amendments had passed by a similar process.  

But Doyle said other amendments weren’t the concern. 

“‘Substantial compliance’ is not compliance, and this court cannot condone actions taken by the Legislature in derogation of the expressed will of the people,” he wrote.  

State GOP Chairman Ed Cox applauded the ruling, and slammed Democrats for focusing on the abortion aspect of the amendment.  

“Once again the legislature and Gov. Hochul are found to have violated the state constitution. In their rush to pass this amendment, the legislature never held a single hearing on the proposal, never consulted with outside constitutional experts, and falsely asserted this amendment was necessary to protect abortion rights in the state,” Cox said. 

The amendment wouldn’t explicitly protect abortion, but it would add protections from discrimination based on pregnancy and reproductive health care. 

New York’s constitution currently bars discrimination based on race, color, creed and religion. The ERA would explicitly prohibit discrimination based on a person’s “ethnicity, national origin, age, disability and sex — including their sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, reproductive health care and autonomy.”  

Democrats have focused on the reproductive health provision in an effort to drive turnout among their base. Republicans have focused attacks on the other provisions, including protections for transgender health.  

“The proposed amendment would permit children to make permanent, life-altering sex change decisions without the need to consult with parents and allow biological males to compete on girls’ sports teams,” Cox said.