Albany Agenda

Judge tosses abortion rights measure from November ballot

Democrats had been pushing the state constitutional amendment that would protect abortion rights and other civil rights

Gov. Kathy Hochul (center) speaks at the Women’s March ERA Rally in 2023.

Gov. Kathy Hochul (center) speaks at the Women’s March ERA Rally in 2023. Mike Groll/Office of Governor Kathy Hochul

New York Democrats suffered a major blow to their November election strategizing after an upstate judge ruled that the proposed Equal Rights Amendment to the state constitution won’t appear on the ballot in November. 

A Republican state Supreme Court judge in Livingston County found on Tuesday that state lawmakers had acted improperly when approving the amendment, which would enshrine a variety of civil rights protections into the state constitution. In response, state Attorney General Letitia James said that her office will appeal the decision.

The ruling disappointed advocates backing the amendment, who had already launched a $20 million organizing effort to promote the Equal Rights Amendment, with a strong focus on provisions that would protect abortion rights in New York. “Attacks like this are exactly why New Yorkers need the New York ERA,” said Andrew Taverrite, communications director for New Yorkers for Equal Rights. “Our focus will remain on educating and empowering voters so that they can vote to protect their fundamental rights and reproductive freedoms in November.” 

Democratic leaders like Gov. Kathy Hochul hope that abortion rights will be a winning issue in November as the party attempts to flip several House seats. Hochul herself recently fundraised off of conservative abortion measures. “From Seneca Falls to Stonewall, New Yorkers have always led the fight for equal rights,” she said in a statement. “At a time when Donald Trump and his anti-abortion allies in New York are trying to undermine our rights, we have the chance to show them what our state truly stands for.”

Republicans and conservatives launched their own campaign to oppose the Equal Rights Amendment. Republican Assembly Member Marjorie Byrnes brought the lawsuit that got the amendment knocked off the ballot. Ed Cox, chair of the New York Republican Party, congratulated her on the court win and chastised Hochul and the Democratic-controlled state Legislature for its alleged lack of adherence to state regulations. 

“Once again the Legislature and Gov. Hochul are found to have violated the state constitution,” he said in a statement. “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.”

In her lawsuit, Byrnes alleged that Democratic lawmakers had not followed proper procedure before approving the proposed constitutional amendment and sending it off to voters. Specifically, she argued that they did not wait for an official recommendation from the state attorney general before voting on the measure. The state judge agreed, ruling that it could not appear on the ballot due to that procedural mistake. 

In the wake of the decision, state Senate Majority Leader Andrea Stewart-Cousins said she and the state Legislature had no intention of restarting the multiyear process of getting a constitutional amendment on the ballot and would not accept the judge’s decision.

“We’re not starting over the whole process, but we certainly will be appealing. That decision is, according to all of our very competent counsel, the lack of the AG opinion, does not negate the validity of our amendment,” Stewart-Cousins said. 

Even before Tuesday’s court ruling, conservatives and Republicans had already begun their own organizing to counter the campaign promoting the state-level Equal Rights Amendment. That campaign has focused largely on broad interpretations of the gender identity and expression provisions in the amendment. “The New York State Supreme Court’s ruling that Proposition One – AKA, The Parent Replacement Act – is unconstitutional and must be removed from November’s ballot is a major victory for New York parents, children, and for the integrity of girls and womens sports.,” said Coalition to Protect Kids New York Executive Director Greg Garvey in a statement. The group has focused its arguments around the participation of trans female athletes in women’s sports.

Former Rep. Lee Zeldin, now a Republican operative, was in Albany on Monday rallying against the amendment, honing in on the supposed effect of the amendment’s gender expression protections for children’s medical procedures and athletic fairness for female athletes. The ERA doesn’t mention either scenario. He and other Republicans acknowledged that the debate now included political calculus as November nears.