Abortion rights amendment

New York’s abortion rights amendment thrown off ballot, for now

Democrats plan to appeal with the assumption that Democratic-dominated higher courts will eventually let the ERA stay on the November ballot.

By BILL MAHONEY

A measure that would codify abortion rights in the New York constitution, as well as other equal rights, was tossed off the ballot Tuesday, a blow to efforts to get the question on the November ballot.

A conservative judge in upstate Livingston County rejected the measure in a court ruling, questioning the legality of the ballot question that Democrats hope will drive out turnout in a critical election year where New York will have a half dozen battleground House seats that could determine control of the chamber next year.

Democrats plan to appeal with the assumption that Democratic-dominated higher courts will eventually let the ERA stay on the November ballot — one of a number of states with abortion rights measure on the ballot. They have been preparing to use the ERA and its enshrinement of abortion rights into the state constitution as the core of a $20 million effort to drive out voters.

“This is a disappointing court decision, but we will appeal because New Yorkers deserve to be protected by their Constitution, especially as our basic freedoms and rights are under attack,” Attorney General Tish James said in a statement.

But for now, the decision in the lawsuit brought by Assembly Republican Marjorie Byrnes handed Republicans some momentum on the issue.

“Once again the legislature and Governor Hochul are found to have violated the state constitution,” state GOP Chair Ed Cox 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.”

Byrnes had argued that Democrats failed to follow the proper steps before sending the amendment to voters. The state constitution says that before legislators vote on amendment, the attorney general shall be given 20 days to render an opinion on whether it conflicts with other parts of the constitution.

The amendment was introduced and passed on July 1, 2022, before an opinion had been offered.

“In order to amend the constitution, the majority violated the constitution,” Byrnes said in an interview earlier this year.

Supreme Court Judge Daniel Doyle agreed and dismissed Democratic arguments that they had substantially complied with the constitutional requirements.

“’Substantial’ compliance is not compliance, and this Court cannot condone actions taken by the Legislature in derogation of the expressed will of the People,” he wrote.

In the weeks the case was argued, Democrats accused the GOP of forum shopping and warned that they might be dealt a temporary setback in Livingston County.

But they were confident that they would eventually win once the case reached the Court of Appeals — which has recently handed Democrats victories on issues such as redistricting — and the issue would remain on the ballot.

“This ruling is nothing but a baseless attack by the anti-abortion minority, and we are confident it will be overturned on appeal,” Andrew Taverrite, spokesperson for the pro-ERA New Yorkers for Equal Rights, said in a statement. “Our focus will remain on educating and empowering voters so that they can vote to protect their fundamental rights and reproductive freedoms in November.”

Democrats have tried to focus the debate over the ERA on its pro-abortion language as they attempt to energize their base in a state critical swing races in the New York City suburbs and in upstate.

Republicans, meanwhile, have focused on everything else that the amendment does. That includes its protections of transgender rights, an issue highlighted by former Rep. Lee Zeldin at a Monday appearance in the Capitol.