New York's abortion-rights constitutional amendment doesn't seem like it'll protect abortion rights

The Equal Protection of Law Amendment does a lot of good, revolutionary things, but guaranteeing abortion as a fundamental right isn't one of them

Last summer, the U.S. Supreme Court overruled Roe v. Wade, proclaiming that it was “return[ing] the issue of abortion to the people’s elected representatives.” Across the country, voters have taken that to heart—by electing pro-choice candidates and adding explicit abortion protections to their state constitutions. Not only that, but state supreme courts around the country have increasingly recognized some form of abortion rights in their state constitutions. The South Carolina Supreme Court did so in January, followed by the North Dakota and Oklahoma supreme courts last month, though to varying extents, and lawsuits challenging other abortion restrictions continue across the country.

Last year, voters in California, Michigan, and Vermont ratified constitutional amendments that added explicit protections of abortion rights. Since then, state legislatures in Maryland and New York have placed constitutional amendments on the ballot in 2024 that would add similar protections.

More states seem likely to do so. After urging the Washington state legislature to propose such an amendment last year, Governor Jay Inslee has pushed for a constitutional amendment this year—though it hasn’t yet advanced out of committee.

As different states advance different amendments, which have different wordings and will be enforced and applied by different judiciaries in different constitutional contexts, we may have different outcomes. But in our federal system, these differences are intentional. If states truly are “laboratories of democracy,” as is repeated ad nauseum, then they should learn from each other’s successes and failures.

That being said, if New York’s Equal Protection of Law Amendment is intended to function as an abortion-rights measure, the language it uses is just plain strange. It encompasses a number of really good ideas that would set New York apart in terms of how it recognizes individual rights and liberties. But if it’s intended as an abortion-rights measure, it’s really unclear what it means.

The constitutional amendment on the ballot in New York next year would amend the state constitution’s equal protection clause—which currently prohibits discrimination on the basis of “race, color, creed or religion”—to include more protections. If the amendment is adopted, the state constitution’s equal protection clause would read:

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in their civil rights . . .

So the amendment adds “ethnicity, national origin, age, disability, or sex,” and then “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy[.]”

At the outset, I want to note that these are good and important additions. Many states around the country have added protections against sex- and gender-based discrimination to their constitutions, and in some states, these protections have been broadly interpreted. New York would be among the first states to prohibit discrimination based on “age,” “disability,” “sexual orientation,” “gender identity,” and “pregnancy.” Given the unlikelihood of expanding the scope of the U.S. Constitution’s Equal Protection Clause, these additions will add substantially to the protections afforded by the New York Constitution.

With respect to the drafters, however, I have to question the choice to apparently include “sexual orientation, gender identity, and gender expression” as subsets of sex-based discrimination. I think that there are good reasons to perceive anti-LGBT discrimination as rooted in something broader than sexism and misogyny—and the use of “sex,” rather than “gender,” embraces too much biological determinism.

And if this is an amendment to constitutionalize abortion rights in New York, I’m puzzled by the choice to link abortion rights to a prohibition on discrimination based on “pregnancy outcomes” or “reproductive healthcare and autonomy.” That strikes me as a roundabout way of protecting abortion rights—and it doesn’t suggest to me that access to abortion or contraceptives would be understood as a fundamental right under the New York Constitution.

So I turned to the “Sponsor Memo,” authored by State Senator Liz Krueger, which outlines the amendment’s purpose and summarizes its provisions. In the memo, she asserts that the purpose behind the reference to “pregnancy outcomes” is to clarify that pregnancy-based discrimination is banned, given the “lack of clarity on whether pregnancy discrimination transgresses the federal constitution.” Again, a fair point—and an excellent, forward-thinking idea to add a constitutional prohibition of pregnancy-based discrimination.

With respect to the amendment’s effect on abortion, Senator Krueger says very little—abortion is really only mentioned in passing, which is surprising, given that this amendment is talked about as an abortion-rights measure. She specifically says:

the right to abortion is also protected in the due process liberty right guaranteed by our State Constitution

But that’s just not true. There’s no explicit ruling by the New York Court of Appeals that establishes any affirmative right to abortion under the state constitution, and while abortion-rights activists may be able to successfully argue that such a right exists, that’s different from saying that the right does presently exist.

So . . . is this an abortion-rights amendment? Is this an expansion of the state’s equal protection clause that has some tertiary effects on abortion rights? I really can’t tell.

If it’s the latter, I think that the text operates just fine as-is. But if it’s the former—and media outlets have certainly treated it like it’s the former—I think that it leaves a lot to be desired.

Contrast the language in New York’s proposed amendment with that of Maryland’s proposed amendment, also on the ballot next year:

That every person, as a central component of an individual’s rights to liberty and equality, has the fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy. The state may not, directly or indirectly, deny, burden, or abridge the right unless justified by a compelling state interest achieved by the least restrictive means.

This is a good amendment! It: (1) identifies a “fundamental right to reproductive freedom”; (2) defines it as including “the ability to make . . . decisions to prevent, continue, or end one’s own pregnancy”; and (3) sets a standard (strict scrutiny) for how courts should review any restrictions. Most other amendments that I’ve seen include more explicit protections for the right of contraception, and it would certainly be better (and wiser, in the long run) for the Maryland amendment to have a protection beyond “the ability to make . . . decisions to prevent . . . one’s pregnancy”—but this is a good, tightly worded amendment that’s likely to have its desired outcome.

Contrast that with New York’s, which doesn’t even go so far as to define an express right to abortion.

If I lived in New York, I’d enthusiastically vote for this measure next year—but I wouldn’t do so with the assumption that it’ll constitutionalize abortion rights.