ALBANY, N.Y. — The New York State Legislature on Friday passed a measure that, if fully enacted, would enshrine in the State Constitution the right to seek an abortion and access contraception.
The measure — the Equal Rights Amendment — places New York at the forefront of legal efforts to protect reproductive rights after the Supreme Court struck down Roe v. Wade last week, ending long-established abortion protections.
But the amendment’s reach is far broader. It prohibits the government from discriminating against anyone based on a list of qualifications including race, ethnicity, national origin, disability or sex — specifically noting sexual orientation, gender identity and expression, and pregnancy on the list of protected conditions.
“We can no longer afford to play a risk game because the right not only is going to take everything to court, they’re starting to control all the courts,” said Senator Liz Krueger, the architect of the amendment. “So it’s just more and more important to enshrine things in state constitutions as well as state laws.”
The timing, they said, was important as well.
“I think this first passage meets the moment that New Yorkers want to express their support for abortion rights and reproductive health care — as well as protect other New Yorkers,” said Senator Brad Hoylman, a Democrat of Manhattan, who co-sponsored the bill.
Republicans were divided on the amendment, particularly in the Senate, where seven voted in favor and 13 against. Some of those who opposed it, including Senator Andrew Lanza of Staten Island, argued that Democrats had overreached and produced text that could, in effect, discriminate against certain religious views.
“I don’t think anybody should be discriminated against — whatever your views on abortion,” Mr. Lanza said.
More than a dozen states and the District of Columbia affirmed or expanded abortion rights before the Supreme Court ruling, while another dozen or so Republican-led states had legislation in place that outlawed abortion after the ruling was issued.
In the last days of New York’s 2022 legislative session, lawmakers passed a package of bills aimed at protecting abortion seekers and providers. But after the Supreme Court issued decisions on abortion and concealed weapons, Gov. Kathy Hochul, a Democrat, ordered the Legislature to return to Albany on Thursday for an extraordinary session.
Following a long night of negotiations, the measure passed the Senate without debate. The Assembly voted to pass it late Friday evening.
Still, no changes will happen right away.
Amending the State Constitution is a yearslong process in New York, requiring passage by two separately elected Legislatures, and then approval by voters in a referendum. By passing it this year, Democratic leaders hope that they can win approval next year and get it to voters in 2024, when a high turnout is expected in a presidential election year.
Though Ms. Hochul has no formal role in approving such an amendment, she has been a vocal champion of the measure and has included the effort in campaign ads.
Proponents had hoped to pass the amendment at the end of the 2022 session, which concluded in early June. But the effort got bogged down after several leading religious groups, including the Catholic Conference and the Jewish Community Relations Council, opposed the measure for a variety reasons.
One key issue was whether the act of enshrining new protected classes into the State Constitution would in any way downgrade existing religious protections.
Early versions of the bills did not include religion or creed on the list of protected classes, though religious rights do appear elsewhere in the state Constitution. Religious groups protested mightily.
Marc Stern, general counsel for the American Jewish Committee, said that while he supported adding protections for transgender and reproductive rights, he believed that by omitting religion from the specific list was unacceptable.
“What they have in mind are the wedding photographer, bake shop cases,” Mr. Stern said, referring to past court cases involving businesses that denied their services to gay couples. “That’s why they are excluding religion and creed.”
Mr. Stern said he believed that lawmakers intended for gay couples to win those cases — which he considered putting “a thumb on the scale.”
By Friday, lawmakers had reached a compromise, adding religion to the list of protected classes so that it would be on equal footing with sex and race.
Lawmakers said the compromise would ensure that the state had stronger protections than ever for members of protected classes, and that one group’s rights would not diminish another’s.
“This amendment is really a shield, not a sword,” Mr. Hoylman said.
A provision that would have lowered the standard for discrimination — to include unintentional discrimination that results in a ‘disparate impact’ — was removed from the legislation, to the disappointment of advocates. But a clause in the law leaves the door open for future changes.
While the Catholic Conference continued to oppose the measure, other religious groups, including the Jewish Community Relations Council voiced their support, saying that they were gratified to have found “common ground to add these protections for all New Yorkers including the protection of the right to religious freedom.”
Other proponents, including the New York Civil Liberties Union, also cheered the passage, calling a crucial first step in responding to the ‘existential threat” posed by the Supreme Court.
“Our state constitution, if this amendment passes, will say, ‘not here in New York and not on our watch.’ Our equal protection clause can serve as a model,” said Lee Rowland, policy director for the N.Y.C.L.U., adding: “That’s a big win.”
