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New York Moves to Enshrine Abortion Rights in State Constitution

ALBANY, NY — The New York State Senate Friday passed a measure that, if passed in full, would enshrine the right to abortion and access to contraception into 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 ruled last week Roe v. Wade, ending long-standing 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, including race, ethnicity, national origin, disability, or gender – especially sexual orientation, gender identity and expression, and pregnancy on the list of protected conditions.

Democrats in Albany described the amendment as a crucial defense of those protected classes and a shield against potential government raids on birth control, same-sex consensual relationships and same-sex marriage.

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

The timing, they said, was also important.

“I think this first passage aligns with New Yorkers wanting to show their support for abortion rights and reproductive health care — as well as protect other New Yorkers,” said Sen. Brad Hoylman, a Manhattan Democrat who co-sponsored the bill. †

More than a dozen states and the District of Columbia confirmed or expanded abortion rights before the Supreme Court ruling, while a dozen more Republican-led states had legislation banning abortion after the ruling was issued.

In the closing days of the 2022 legislative session in New York, lawmakers passed a package of bills to protect abortion seekers and providers. But after the Supreme Court made decisions about abortion and concealed weapons, Democrat Governor Kathy Hochul ordered the lawmaker to return to Albany on Thursday for an extraordinary hearing.

After a long night of negotiations, the measure passed the Senate without debate. It now goes to the Assembly, where Chairman Carl E. Heastie said Friday he expected it to succeed.

However, there will not be immediate changes.

Amending the state constitution is a years-long process in New York, requiring approval by two separately elected legislators and then voter approval in a referendum. By approving it this year, Democratic leaders hope they can gain approval next year and get it to voters in 2024, when a high turnout is expected in a presidential election year.

While Ms Hochul has no formal role in approving such a change, she has said she supports the measure and has featured the effort in campaign ads.

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

The question was whether the act of incorporating new protected classes into the state constitution would somehow lower existing religious protections.

Early versions of the bills do not include religion or creed on the protected class list, although religious rights do appear elsewhere in the state constitution. Religious groups protested violently.

Marc Stern, general counsel to the American Jewish Committee, said that while he was in favor of adding protections for transgender and reproductive rights, he felt it was unacceptable to omit religion from the specific list.

“What they have in mind is the wedding photographer, bakery business,” Mr Stern said, referring to previous lawsuits involving companies that denied their services to gay couples. “That’s why they exclude religion and belief.”

Mr Stern said he believed lawmakers intended gay couples to win those cases – which he considered putting “a thumbs up on the scale”.

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

Lawmakers said the compromise would ensure that the state has 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,” said Mr. Hoylman.

A provision that would have lowered the standard of discrimination — including unintentional discrimination that has a “disparate impact” — was scrapped from the law, much to the disappointment of proponents. 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, applauded the passage, calling it a critical first step in responding to the Supreme Court’s “existential threat.”

“Our state constitution, if this amendment is passed, 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 of the New York Civil Liberties Union, adding: “That’s a big win.”

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