In New York, a ballot referendum meant to protect abortion may not use the word 'abortion'

View of the New York state Capitol on, Jan. 5, 2022, in Albany, N.Y. (AP Photo/Hans Pennink, File)

ALBANY, N.Y. -

A proposed amendment to New York’s Constitution that's intended to protect abortion rights might appear on the ballot this fall without any mention of the word “abortion.”

That’s partly because of sharp disagreements about what the so-called Equal Rights Amendment would actually do, if passed.

The state’s Board of Elections, which is charged with writing easy-to-understand explanations of proposed laws appearing on the ballot, decided Monday that rather than try and interpret the amendment, they would simply repeat its somewhat unclear language in material given to voters.

New York’s Constitution currently says that no person shall be subjected to discrimination based on race, color, creed or religion. The proposed amendment would add to that list: ethnicity, national origin, age, disability and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.”

How to interpret discrimination based on those things, however, changes depending on who you ask.

In New York, Democrats and Republicans are both using the proposal as a vessel for some of their most pressing political issues in the hopes of driving voters to the polls this November.

Democratic state lawmakers put the question on the ballot in response to the U.S. Supreme Court’s overturning of Roe v. Wade and say the proposal is a way to enshrine abortion rights in the state constitution.

Republicans have sought to frame the amendment as an underhanded move from Democrats to provide constitutional protections for transgender athletes, among a laundry list of other concerns.

The proposed amendment is part of a handful of abortion-related questions that Democrats in multiple states have put on the ballot this year, with the party betting that voters will be energized to cast ballots to protect access to the procedure. Voters have shown support for access to abortions for any reason, and seven in 10 Americans think abortion should be legal in all or most cases, according to a new poll from The Associated Press-NORC Center for Public Affairs Research.

But while some states have explicitly included provisions to bar abortion restrictions in their proposed amendments, Democrats in New York did not do so. Instead, state Democrats chose to try to safeguard abortion access by expanding the list of classes in the state’s anti-discrimination protections.

On its face, barring discrimination against someone who has had an abortion would seem to have implications for things like employment and housing law.

But the amendment’s backers, and some legal experts, say it would also provide a way to challenge any future abortion restrictions in New York under the argument that a restriction would amount to discrimination against one kind of health care — abortion — over other kinds of health care.

“It’s not the prohibition itself that makes it discrimination, it’s the fact that the Legislature would be forbidding abortion but not other kinds of health care, which amounts to health care discrimination,” said Michael C. Dorf, a law professor at Cornell Law School who focuses on constitutional law.

“The idea is that you’re singling out one form of reproductive health care and not other kinds of health care,” he said.

State Sen. Liz Krueger, a leading sponsor of the proposed amendment, had joined other Democrats in asking the Board of Elections to include the words “abortion” and “LGBT” in the explanation on the ballot, which people will see in the voting booth on election day.

The Democrats wrote a letter to the board that said the amendment “will protect abortion rights in the state constitution,” adding that “this critical point may be lost, however, if the word ‘abortion’ is not included in the ballot language."

In a short meeting on Monday, the board instead voted to use an explanation that pulled language directly from the proposed amendment — excluding the terms “abortion” and “LGBT" — under the idea that voters should see the actual language of the amendment to understand its purpose. Still, one of the board members noted that the language of their explanation could eventually be subject to a legal challenge from Democrats.

The decision disappointed advocates like Sasha Ahuja, campaign director of the advocacy group New Yorkers for Equal Rights.

“The board has a mandate to ensure everyday voters can understand what they are voting on,” she said after the board’s vote, adding that the abortion component “should be clearly reflected and spelled out in the ballot language.”

Currently, New York allows abortion until fetal viability, which is usually between 24 and 26 weeks of pregnancy.

Further limitations on abortion in the state seem unlikely any time soon. Democrats control a supermajority in the state Legislature and Democrats have a firm hold on the governor's office. Supporters argue the state should do all it can to ensure abortion rights anyway.

“We have good, solid statutes in New York state that make clear all these things but that can come and go if you have an anti-choice Legislature or governor,” Krueger said.

Republicans, meanwhile, have since launched an aggressive campaign against the ballot question, warning that the proposal would allow transgender athletes to play on women's sports teams. A GOP lawmaker also unsuccessfully tried to block the amendment through a legal challenge.

David Laska, a spokesperson for the New York State Republican Party, said the ballot question “isn’t about abortion."

“After all, the word ‘abortion’ isn’t in the text of the amendment and efforts to add it to the ballot language are deceptive and wrong,” Laska said.

New York already has strong anti-discrimination laws that would block restrictions on trans athletes. The state attorney general is currently using those laws in a court case against a Republican county government's attempt to prevent trans athletes from using county sporting facilities.