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New York Equality Amendment Leaves Abortion Right Fuzzy; California Amendment More Clearly Protects Reproductive Choice

The State of New York celebrates the Fourth of July by offering its residents a chance to affirm the women’s equal dignity and autonomy that the Alito Court would take away. On Friday, the New York Legislature approved a constitutional amendment to guarantee women’s right to abort their pregnancies. As in South Dakota, constitutional amendments take time: per Article 19 Section 1 of the New York Constitution, the amendment must receive majority approval from both chambers of the Legislature in two consecutive Legislative Sessions, then receive majority approval in a statewide referendum. New York’s next crop of legislators could approve the amendment and put it on the November 2023 ballot, allowing the amendment to take effect on January 1, 2024.

Interestingly, unlike the initiated amendment currently under review by the South Dakota Attorney General, New York’s legislators are not simply codifying Roe v. Wade. Their amendment doesn’t even say the word abortion. Instead, New York legislators have folded “reproductive healthcare and autonomy” into a broader broadening of New York’s equal protection clause:

Section 1. Resolved (if the Assembly concur), That section 11 of article 1 of the constitution be amended to read as follows:

§ 11. A. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed or, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in his or her their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.

B. nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section. [New York State Legislature, S51002, first approved 2022.07.01]

Expanding equality is what America celebrates today, so if New York can bolster constitutional protections for women, immigrants, old folks, gay couples, and more in one constitutional swoop, then yee-ha! pass the bottle rockets. (And New York’s single-subject rule, Article 3 Section 15, appears to apply only to private and local bills, not constitutional amendments, so while I will happily argue that this amendment’s single subject is “expanding equality”, Noem-y naysayers can’t defeat this amendment by saying abortion, gay marriage, and disabled rights are separate subjects.)

But New York’s amendment seems to have a problem: it doesn’t actually say that women have a civil right to abort their pregnancies. If we focus on the misogynist constitutional turmoil that brought this amendment to a vote, we can read that this amendment prohibits discrimination in civil rights because of pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy. But nothing in the amendment and nothing in the current New York Constitution says that abortion is a civil right. I can put on my Jon Hansen lawyer hat (ow—a little tight) and argue that the state could (not that New York would) still declare that abortion is murder. It could still ascribe to fetuses civil rights and say that killing a fetus constitutes discrimination and denial of civil rights on the basis of age (because civil rights begin at age –0.75). We cannot construe reproductive healthcare and autonomy as license to deny the civil rights of others. Thus, arguably, the New York amendment does not get to the heart of the problem, restoring the right to abortion that the Alito Court has nullified. The New York amendment requires lawyering to get a judge to say, “Reproductive healthcare and autonomy includes abortion,” and if you need a lawyer to read your desired outcome into constitutional language, someone on the other side could hire a better lawyer to read that outcome out of that constitutional language, and your civil right depends on who persuades the judge, or who appoints the judge.

The California Legislature avoids this problem by offering voters a simpler, abortion-focused amendment. California Senate Constitutional Amendment 10, passed last week and placed on this November’s statewide ballot, would add this language to the California Constitution:

The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the right to privacy or equal protection [California Legislature, SCA 10, approved 2022.06.27].

California puts your reproductive rights in black and white: those rights include abortion and contraception. The state cannot deny nor interfere with your choice to end or avoid pregnancy. California’s Jon Hansens (sad and lonely creatures, if they exist) couldn’t even propose forced fake counseling from their favorite religious zealots the way South Dakota tried, as a court could easily read a mandatory trip to a “pregnancy help center” and the concomitant waiting period as “interference” with a “fundamental right.” California’s direct language seems to offer women clear protection of their bodily autonomy that New York’s language may not.

I appreciate all lawmakers who seek to restore women’s equal citizenship and dignity and protect their people from the resentment, grievance, and anger of the woman-killing Alito theocracy. But we must be absolutely clear in the language we use to beat back this un-American reversal of civil rights and equality. If we want to protect women’s right to prevent, start, control, and end their pregnancies, we have to say so in our laws. If we believe women have a fundamental right to abortion, then we must say, “Women have a fundamental right to abortion.”

5 Comments

  1. John 2022-07-04

    “You are 14 times more likely to die during birth than during an abortion and the leading cause of death during pregnancy is murder. Abortion bans actually erase women. Not symbolically, not linguistically – they remove them from the planet.” @GBBransttetter

  2. Bonnie B Fairbank 2022-07-04

    This is clearly and precisely what Reptilians want. Eew – nasty women.

  3. P. Aitch 2022-07-04

    Uncertain it is where USA will end up but certainly California will arrive first.

  4. Jake 2022-07-04

    “Good” stuff does come out of California!

  5. oldtimerDON 2022-07-04

    Gov Kristi has it all under control. That is what she said on CNN yesterday. People, especially the poor ones should be happy they live in such a great state.

Comments are closed.