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N.Y. Court Puts Abortion Amendment Back on the Ballot

June 21, 2024

A New York appellate court decided this week to overrule a lower court’s decision and put a proposed amendment enshrining abortion in the Empire State’s constitution back on November’s ballot.

After New York Republicans challenged the proposed amendment, Livingston County Judge Daniel J. Doyle ruled early last month that the state legislature had “violated” the New York constitution in approving the proposed amendment, called the “Equal Rights Amendment” (ERA), due to it appearing too early on ballots. According to New York constitutional procedure, the state’s attorney general must issue a memo on the proposals prior to their approval by the legislature. Since the legislature voted to approve the measures before any memo was delivered, Doyle determined that the proposed amendment would be struck from the ballot.

The Fourth Judicial Department of the New York Appellate Court unanimously decided on Tuesday to reverse that decision. The court ruled that the complaint originally brought was a procedural one, not a constitutional one, and further agreed with the pro-abortion defendants’ argument that the statute of limitations (four months) to bring that procedural complaint had already expired. While the court did admit that there may be a question of whether or not the ERA’s introduction proceeded constitutionally, it ultimately determined that the way in which the complaint was brought was the wrong means of challenging the proposed amendment. “The remaining contentions are academic in light of our determination,” the court concluded.

Republicans intend to appeal the court’s decision, according to an Associated Press report, potentially taking the matter all the way to the state’s highest court. “We continue to believe the legislature violated the constitution when it adopted the proposal,” said GOP spokesman David Laska. “We will fight this proposal in the courts and, if necessary, at the ballot box.” The state’s Democratic attorney general, Letitia James, praised the court’s ruling, saying in a statement, “Today’s decision to put the Equal Rights Amendment back on the ballot in November is a huge victory in our efforts to protect our basic rights and freedoms.” She added, “The ERA was advanced to protect access to abortion care, enshrine this basic right in our constitution, and protect people from discrimination.”

Governor Kathy Hochul (D) had called an extraordinary legislative session in 2022, after the U.S. Supreme Court dismantled Roe v. Wade, to pass the ERA. It has been approved by both chambers of the state legislature and, if the appellate court’s decision is not reversed, will appear before voters on the ballot in November’s general election.

New York is one of five states where abortion amendments will appear on the ballot. A pro-life initiative in Colorado would have protected the unborn from abortion, stipulating in the state’s statutory code that an unborn child “must not be intentionally dismembered, mutilated, poisoned, scalded, starved, stabbed, given toxic injections known to cause death, left to die of the elements for lack of warmth or nutrition.” That measure failed to obtain the required 124,000 signatures before the April 18 deadline, but the Colorado Secretary of State confirmed last month that a pro-abortion initiative had obtained the required signatures and would appear on the ballot. That measure would, if passed in November, codify existing state abortion law into Colorado’s constitution, allowing the fatal procedure through all nine months of pregnancy, formally declaring a legal “right to abortion,” and barring “prohibiting health insurance coverage for abortion.”

In Florida, voters will decide whether to constitutionally enumerate a right to abortion before the point of “viability.” The proposed abortion amendment was challenged by the state’s attorney general but upheld by the state’s supreme court earlier this year. The measure requires 60% support to pass and, according to April polling, just over 40% of Florida voters intend to back the amendment. The amendment would supersede the heartbeat law signed by Governor Ron DeSantis (R), which currently protects the unborn past six weeks of pregnancy.

Voters in deep-blue Maryland will also face an abortion amendment on the ballot in November. The Old Line State currently places no gestational limits on abortion, but the proposed amendment passed by both chambers of the legislature last year would, if passed by Marylanders, not only declare a constitutional right to abortion but automatically bar pro-life legislation in the state. Governor Wes Moore (D) endorsed the proposal last year, saying, “I’ve been very clear from the beginning that as long as I am the Governor of Maryland, our state will be a safe haven for abortion access. This constitutional amendment will make sure it remains that way, no matter who is in office.”

South Dakota’s Secretary of State confirmed last month that an abortion amendment will appear before Mount Rushmore State voters on November’s ballot. South Dakota currently has pro-life protections except in limited circumstances, but the proposed measure would enshrine a constitutional right to abortion throughout all nine months of pregnancy.

Since the Dobbs decision in 2022, abortion amendments have already passed in California, Michigan, Ohio, and Vermont.

S.A. McCarthy serves as a news writer at The Washington Stand.