The New York State legislature has passed an “equal rights” amendment to the state Constitution that would bolster protections for “affirmative action” programs and strengthen a woman’s right to abortion by treating denial of the procedure as an act of discrimination based on sex.
The Equal Rights Amendment (S.8797B), which passed the state legislature on July 1, seeks to modify the New York State Constitution by adding a new section that expands the list of classes protected against discrimination and stipulating that one of these classes includes the right to abortion.
“This amendment clarifies that any state action that discriminates against a person based on a pregnancy outcome is a sex-based classification,” states the preamble to the amendment.
“The State shall not use its police power or power of the purse to burden, limit, or favor any type of reproductive decision making,” it adds.
‘Codifying the Right to an Abortion’
Currently, Section 11 of the Bill of Rights of the New York State Constitution contains a provision that tracks the wording of the federal equal protection clause and prohibits discrimination on the basis of race, color, creed, or religion.
The new amendment goes beyond that, introducing additional protected classes by also barring discrimination based on ethnicity, national origin, disability, and sex including pregnancy and pregnancy outcomes, sexual orientation, gender identity, and gender expression.
The preamble makes clear that it considers discrimination based on pregnancy—including abortion—a type of discrimination based on sex and that it seeks to strengthen abortion access by treating “the failure to provide reasonable accommodations” to those seeking to terminate an unwanted pregnancy as an act of discrimination.
Before it becomes law, the amendment still needs to pass again in the next legislative session before being put to a referendum for final approval.
New York Gov. Kathy Hochul hailed the passage of the amendment, which comes on the heels of the recent Supreme Court decision that removed federal protections for abortion.
“In light of the horrifying Supreme Court decision to strip away reproductive rights, New York State is taking an unprecedented step toward codifying the right to an abortion in our State Constitution,” Hochul said in a statement.
Sending the Wrong Message
Kristen Curran, director of government relations for the New York State Catholic Conference, had a critical take on the amendment, arguing that it sends the wrong message on abortion while failing to provide meaningful support to women, children, and families.
“Unfortunately, this bill solidifies the message that New York has been sending women for some time now: Abortion is positive, empowering, and the key to success. This couldn’t be further from the truth,” Curran said in a statement.
“Women, children, and their families deserve support and compassion,” she continued. “Baby formula is scarce, raising a family is unaffordable, and the fallout from the pandemic continues to take its toll. New York State should be pouring resources into helping women and families, not promoting abortion through limitless funding, advertisements, and splashy legislation.”
Boost for ‘Affirmative Action’
Besides seeking to enshrine the right to abortion in the state constitution, the amendment also includes language that expands the definition of discrimination to include not just “intent” but also “effect.”
New York courts have thus far interpreted the state constitution in line with federal equal protections provisions, banning only discrimination that is intentional in nature.
“This amendment goes beyond that by prohibiting discriminatory impacts that result from the actions of government, thus providing a critical legal tool to dismantle acts that in effect perpetuate and/or result in inequality. Enabling the law to recognize disparate impact is a necessary step to eliminate systems of inequality,” the amendment preamble states.
This suggests a shifting of the goal posts in the equal rights debate towards an “equality of outcome” position that critics of progressive policies would argue goes beyond providing a level playing field and amounts to active promotion of the interest of favored groups.
A statement from the New York Senate Majority (pdf) appears to say as much, stating that, “this amendment preserves laws designed to prevent or dismantle discrimination on the basis of these characteristics such as affirmative action.”
Further, the amendment preamble says the legislation reflects “a commitment and pathway to eradicate the systemic racism that is woven through the fabric of our society,” which could raise red flags for some conservatives.
The notion that America’s institutions and social structures are marred by systemic racism is a question of fierce debate and controversy, with those on the right tending to dismiss the idea as a vehicle for reverse discrimination and creeping socialism.
