Ruling Against New York Abortion Vote Is a Blow to Democrats

Even in states where there’s no imminent threat to the abortion rights that existed under Roe v. Wade, ballot measures are becoming a popular way to protect or even expand the right to choose via constitutional amendments — and also for Democrats to turn out pro-choice voters at the polls. Such ballot tests have uniformly been won by pro-choice activists in recent years, and Democrats hoped to add New York to the list of states expanding abortion rights this November.

But now, they may not get the chance. This week, a conservative upstate New York judge ruled that a proposed state constitutional amendment banning discrimination based on “pregnancy outcomes” and “gender expression,” which includes language to protect abortion rights, cannot appear on the ballot in November due to a procedural error.

State Supreme Court Justice Daniel Doyle ruled that an advisory opinion on the constitutionality of the proposed Equal Rights Amendment from state Attorney General Letitia James was not received before an initial legislative vote (as required by the state constitution, the measure cleared the Legislature twice, in 2022 and in 2023, before being referred to voters). Democrats have argued that the opinion was received during legislative consideration of the amendmen, and that the requirement has been overlooked many times in the past. Now James will have the responsibility of making that case before New York’s appeals courts, where Democratic-appointed judges may be more sympathetic.

In the meantime, Doyle’s ruling has created significant consternation among pro-choice New Yorkers. One fact should mitigate anxiety, though: The current law in New York protects the right to pre-viability abortions, as well as post-viability abortions under significant exceptions. In other words, in New York, it’s as though Roe has never been reversed, though some abortion-rights advocates felt the ERA’s language (prohibiting, among other things, discrimination based on “pregnancy” or “pregnancy outcomes”) might expand reproductive rights beyond those guaranteed by Roe.

Most of the controversy over the ERA (and its ballot counterpart, Proposition 1) actually has involved non-abortion issues; Republicans have argued that by banning discrimination on grounds of “sexual orientation, gender identity and gender expression” and also of national origin, the ERA will lead to transgender participation in women’s sports and expanded rights for undocumented immigrants. There’s not much question New York Republicans believe transphobia is a better bet politically than hostility to abortion rights.

New York Democrats, on the other hand, while supporting protections for LGBTQ citizens, have heavily advertised Proposition 1 as necessary to offer permanent protection for abortion rights, and as a rebuke to national Republicans scheming to impose abortion bans via Congress or perhaps executive order if Donald Trump is returned to office. So they’ve been counting on the ballot measure to drive up Democratic turnout and even to flip some swing voters in their direction. This in turn has drawn the attention of Democrats nationally, who consider New York central to their plans to flip control of the U.S. House of Representatives (the Cook Political Report rates four GOP House seats from New York as highly vulnerable).

The legal and political maneuvering in New York over the proposed ERA will get less attention than ballot fights in other states where the clock has been turned back all the way to the pre-Roe legal regime of near-universal forced birth. But for New Yorkers who simply want constitutional equality, and for Democrats eager to give or deny the next president control over the U.S. House, it’s a big deal that will go down in the courts very soon.