New York does not enshrine the right to abortion in its constitution. Here’s why some states are hopeful.

And came the Supreme Court’s draft opinion tear down deer.

Abortion rights supporters have urged lawmakers to act, arguing that it is their moral obligation. Governor Kathy Hochul and legislative leaders have promised New York will be a “safe harbor” for people seeking abortions. And the legislature acted quickly pass a series of abortion-related bills.

But the the constitutional amendment has always failed.

Talks broke down again over the final language and its potential effects on religious freedoms in the final days of the state’s legislative session, which ended June 4. Deadlocked lawmakers headed home, leaving some supporters puzzled and angry.

“In a self-proclaimed progressive state, with a Democratic supermajority and the imminent destruction of our reproductive autonomy at stake, it is quite unthinkable that the state legislature has lacked the political will to protect women and pregnant women in our constitution from ‘State,’ said Lee Rowland, policy director for the New York Civil Liberties Union.

New York’s failure to advance its constitutional amendment highlights the challenges other states face when it comes to ensuring abortion rights in their own constitutions. No state explicitly guarantees the right to abortion in its constitution, which means that a change in the partisan makeup of a legislature could allow opponents of abortion rights to untangle laws passed by Democratic lawmakers in during previous years.

Abortion rights advocates, however, have argued that efforts to pass abortion constitutional amendments in other states — which have different legislative processes and thresholds — may not meet the same fate. than that of New York.

“I think states are in different positions,” Rowland said.

Abortion and the Constitutional Battle in the States

Vermont voters will decide in November whether they want to enshrine the right to abortion in the state constitution. Vermont’s Proposition 5, which has been making its way through that state’s legislative process since 2019, would guarantee every resident “personal reproductive freedom” and the ability to exercise “personal autonomy.”

But some abortion-rights supporters have expressed concerns about how the measure could be interpreted because it does not explicitly state the right to abortion.

California, on the other hand, is rush to file a constitutional amendment in the November ballot which would explicitly protect the right to abortion, as well as contraceptives.

Some argue that California’s constitution already protects abortion through its right to privacy, but the legislative leaders behind the ballot effort — which has the backing of Governor Gavin Newsom — plan to clarify that by including specifically the word “abortion”, not just “reproductive freedom”. in their proposal.

If a Senate bill introduced Wednesday is approved by the Legislative Assembly before the end of the month, Californians will be able to vote on the measure when they go to the polls in November.

In Michigan, one of more than 20 states where nearly all abortions would be banned if the Supreme Court overturns deer, abortion rights supporters need to collect more than 425,000 signatures by mid-July to put a constitutional amendment protecting abortion on the November ballot.

“There’s a real focus on state constitutions because people recognize that’s the potential next line of defense,” said Elizabeth Nash, state policy analyst for the Guttmacher Institute. Still, she noted, “it’s hard to change the constitution, in general.”

Courts in several states – including Kansas, Minnesota, Montana, Alaska and Florida – have recognized the right to abortion under their state constitutions, even though their constitutions have not been specifically modified to include this right.

Nash noted that while Vermont is the first state to put constitutional abortion protection on the ballot, others, such as Tennessee, Alabama, Louisiana and West Virginia, have changed their constitution in recent years to not protect abortion. Kansas and Kentucky will have such proposals on their ballots in 2022.

An ongoing fight in New York

New York’s push to pass a state-level Equal Rights Amendment — which would trigger a multi-year process to change the state’s constitution — has stalled for years in Albany.

It must have been a major issue in 2020 before the Covid-19 pandemic took hold. In 2019, then Governor. Andrew Cuomo promoted a version similar to the federal amendment that nearly passed in the 1970s. The measure would have added “sex” to the list of protected classes.

State Senator Liz Krueger’s Equality Amendment S8797 would prohibit discrimination based on a person’s race, color, ethnicity, national origin, disability, or gender, including pregnancy and pregnancy outcome, sexual orientation, gender identity and gender expression.

But that doesn’t include religion, which proponents like the NYCLU say is dealt with in other parts of the New York Constitution.

Critics, however, have raised concerns that not including religion in these protected classes does not provide the same level of protection for religious beliefs.

“It’s very difficult to explain in one short sentence what all of this is,” Krueger said. “This is where we run out of time: to be able to claim in one sentence [that] our disagreement on this issue is neither a disrespect for religious freedom nor an attempt in any way to diminish the religious freedoms we have in our state constitution.

Another proposal, A760, by Assemblywoman Rebecca Seawright (D-Manhattan) included a person’s pregnancy and “creed or religion” among its protections against discrimination. Searight recently introduces a complementary version of Krueger’s bill hoping to move the proposal forward at the end of the session as lawmakers draft the final language.

Those talks eventually collapsed, with religion remaining a “persistent issue.”

“We were trying to translate urgency into action,” Krueger, a Manhattan Democrat, said in an interview. “We’ve run out of time so far.”

Rowland argued that New York’s “equality amendment” could have served as a model for other states because it was inclusive, explicit about protecting pregnancy outcomes, and “tested by experts.” constitutions across the country.

“It really was a brilliant model, where a broad spectrum of progressive groups, who represent the civil rights of a large majority of New Yorkers, came together and said, ‘This is the vehicle we need, not just for a model civil rights provision in our state constitution, but as the ideal constitutional bulwark against the erosion of deer at the federal level,” Rowland said.

“The non-passage [Krueger’s] The Equality Amendment is not only a disappointment for New Yorkers, it also robs us of a great model for protecting abortion rights and civil rights at the state level together.

NYCLU, the National Institute for Reproductive Health Action Fund and the Planned Parenthood Empire State Acts called on Albany lawmakers to return for a special session to pass the constitutional amendment.

Hazel Crampton-Hays, spokesperson for Hochul, said the governor also remains “committed to further enshrining these protections in our constitution and will continue to work with the legislature and advocates to explore how best to do so.”

Hochul is expected to soon sign a six-bill package that would protect abortion patients and providers from out-of-state lawsuits, and on Friday Hochul indicated that negotiations on the constitutional amendment will likely be a problem for 2023.

“Hopefully we can pull ourselves together during this time when they’re out of session and start next January with whatever approach the Legislature – the Assembly and the Senate – might agree to, but until then the New York State women are absolutely protected,” she told reporters on Friday.

In New York, constitutional amendments must be passed by two separately elected legislatures before being submitted to voters in the form of a referendum. Failure to move the proposal forward in early August would mean the issue would not come before voters until at least 2025.

Lawmakers, like Krueger, had hoped to put the issue on the ballot in the 2024 presidential year rather than the low turnout election in 2023.

Although the New York Constitutional Amendment did not pass in the 2022 session, Nash said to “never count New York.”

“I’ve always seen New York as a state where it takes several tries before the bill passes,” she said in an interview. “It may not be this year, but stay tuned for the next one.”

Megan Messerly, Victoria Colliver and Alice Miranda Ollstein contributed to this report.


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