Proposed NYS abortion rights amendment struck down by upstate judge
The New York State Capitol in Albany. Credit: AP / Hans Pennink
ALBANY — An upstate judge ruled Tuesday that a proposed abortion rights amendment should be stricken from the statewide ballot this fall because lawmakers missed a critical constitutional step.
Justice Daniel J. Doyle, a Supreme Court judge in Livingston County, said the Democratic-led Legislature erred when it voted to place the amendment on the ballot before either getting an opinion from the state attorney general or, if no opinion was forthcoming, waiting 20 days before voting.
The proposed Equal Rights Amendment is scheduled to be voted on by New Yorkers on Nov. 5. It would, among other things, enshrine abortion rights in the New York Constitution at a time when other states are seeking to restrict access to abortion services.
Democratic lawmakers vowed to appeal — there isn't time to start the amendment process over and have it appear on this year's ballot — and reverse the ruling by Doyle, whom Gov. Kathy Hochul called an “extremist judge.”
If they don't, it could be not only a blow for abortion-rights supporters, but also New York Democrats who believe the proposed amendment will help drive its supporters to the polls this fall, boosting their congressional candidates.
The push for the amendment began in 2022, just days after the U.S. Supreme Court struck down the Roe v. Wade decision which had guaranteed federal abortion rights for nearly 50 years. Though New York had a strong abortion-rights statute, Democrats wanted to enshrine those rights in the constitution.
As per the state constitution, the state Senate and Assembly had to approve the proposed amendment twice; the chambers did so in 2022 and 2023.
Democrats strategically chose to put it on the 2024 ballot instead of 2023 because it's a presidential election year where turnout is always better and because the abortion issue could help Democrats in swing congressional districts.
Critics of the amendment said it not only focused on abortion rights, but also would allow transgender females to compete in girls' athletic events.
Assemb. Marjorie Byrnes (R-Caledonia), filing a lawsuit in her home county of Livingston, sought to block the amendment referendum. She didn't immediately comment Tuesday.
Doyle, in his ruling Tuesday, said lawmakers committed a fatal procedural error.
He said legislators sent the proposed amendment to Attorney General Letitia James on July 1, 2022 and gave it first passage on that very day — before getting a formal reply from James, which didn't arrive until July 6.
Doyle rejected legislators' legal argument, made amid the lawsuit, that a 1941 constitutional amendment effectively waived the waiting period.
As a result, the judge wrote it is “decreed the New York State Legislature violated Article XIX of the Constitution in adopting the [authorizing] resolution and … [it] is declared null and void, and the proposed amendment shall be removed from the ballot for the general election of Nov. 5, 2024.”
Sen. Liz Krueger (D-Manhattan) said Doyle’s “decision, based on the supposed absence of an attorney general's opinion, grossly misinterprets New York State's constitutional requirements.”
Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) said the legislature will “not start over the whole process.”
“The lack of the AG’s opinion does not negate the validity of our amendment,” the Senate leader said. “So we believe that we will be successful upon appeal, and we will certainly appeal that so the people will have the right, should have the right to vote this November in terms of codifying our reproductive choices.”
Republicans, in contrast, blasted the Democrats for what they called rushing and botching the process.
“Once again the legislature and Gov. Hochul are found to have violated the state constitution,” Republican State Chairman Ed Cox said, referring to a redistricting lawsuit in 2022. “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.”
With Keshia Clukey
