A proposed amendment to New York’s constitution meant to protect abortion access is a crucial part of Democrats’ plans to drive voter turnout in the state this fall and potentially flip vital congressional districts.
But there could be a problem: The ballot question doesn’t mention the word “abortion.”
Arguments began Wednesday in a lawsuit Democrats hope will force election officials to include the term in an explanation of the amendment that voters will see when casting their ballots.
The unusual legal effort begins weeks after the state Board of Elections chose late last month to use the measure’s technical language verbatim rather than interpret it in its explanation to voters.
Filed in state Supreme Court in Albany, the lawsuit argues that the board’s description violates a state law requiring ballot questions to be written in plain language that’s easy to understand — but that’s where things get complicated.
The abortion issue is included but not specifically mentioned in a proposed Equal Rights Amendment. The amendment would broaden the state’s anti-discrimination laws by prohibiting discrimination based on ethnicity, national origin, age, disability and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.” The state currently bans discrimination based on race, color, creed or religion.
Democrats in the state Legislature passed the amendment last year and put it on the ballot in 2024 as a way to enshrine abortion rights in the state constitution. While not explicitly barring abortion restrictions, the amendment could be used to challenge future abortion bans through the argument that such bans would amount to discrimination, according to its backers and some legal experts.
Republicans meanwhile have argued the amendment would provide new constitutional protections for transgender athletes, among other things.
Democrats had urged the Board of Elections to include the terms “abortion” and “LGBT” in its description of the measure, arguing that it would be clearer to voters and better represent its intent.
The lawsuit was brought by two New York voters who want the measure’s description to be changed. The board’s Democrats have filed court documents agreeing that the language of the amendment’s description should include the word “abortion.” Republicans on the board want to keep the current description.
“When you have a legislation that was enacted for the purpose of protecting abortion rights, to be in a situation where we can’t tell voters that they’re voting on abortion rights strikes me as silly and misleading,” Renee Zaytsev, an attorney for the two voters, told the judge in Wednesday’s hearing.
Nicholas Faso, a lawyer for the Republican board members, said, “If the driving force behind this legislation was to enshrine abortion into the Constitution, why didn’t the Legislature just say that specifically? They chose to use these broader categories for whatever reason,” adding that voters should see the specifics of the amendment in the description.
It’s unclear exactly when the court would decide. The Board of Elections must certify what’s on the ballot by Sept. 11, and county election boards have to certify by Sept. 12, a board spokesperson said.
New York currently allows abortion until fetal viability, which is usually between 24 and 26 weeks of pregnancy. New abortion restrictions are highly unlikely to become law, given that Democrats control state government by wide margins.
Democrats in a handful of states have put abortion-related questions on the ballot this year in an attempt to boost turnout following the U.S. Supreme Court’s overturning of Roe v. Wade. Voters have previously shown support for abortion access, and an Associated Press-NORC Center for Public Affairs Research poll recently found that 7 in 10 Americans think abortion should be legal in all or most cases.
