Constitutional Amendment To Protect Abortion Passed Despite SCOTUS In NY

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An amendment to the New York state Constitution that would protect abortion rights — bringing such protections up to what’s essentially the highest level possible in the state legislative system — passed both chambers of the New York state legislature on Friday.

The measure won’t yet be taking effect. The rules of the process for amending the state Constitution in New York mean it must be approved by the legislature a second time after another round of elections. At that point, two separately elected groups of legislators (likely, of course, including some of the same members) would have thrown their support behind it. After that juncture, the amendment has to be approved by voters. Besides protection for access to abortion, the new amendment would also protect access to contraception and protect New Yorkers from discrimination on the basis of ethnicity, national origin, age, disability, and sex. The category of “sex” includes sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, reproductive healthcare, and autonomy, per a state Democratic summary.

However an individual might be classed in any of these categories would, it seems, be unable to be used against them in governmental decision-making, according to the proposal, and that’s the legal mechanism Democrats in New York are going with to protect abortion rights at the state level. “With these enumerations, this amendment guarantees a constitutional right to reproductive healthcare for any individual in the state of New York. It also protects marriage equality and other rights that the Supreme Court has endangered,” that release from the Democratic majority in the New York state Senate says.

Democrats lead both of New York’s legislative chambers, although they obtained some GOP support in this effort. New York Democrats took this move in the aftermath of the decision by the U.S. Supreme Court to overturn Roe v. Wade, which previously provided broad protections at the federal level for abortion access. Overturning Roe means state officials are now free to regulate abortion according to their personal and political ambitions. There were already safeguards in New York law for abortion, but the changing legal landscape has suddenly left leaders who are concerned with protecting access to it looking for ways to bulk up those protections.

Although she has no direct role in the deliberation process over adding a new amendment to the New York Constitution, New York Democratic Governor Kathy Hochul summoned state legislators for a special session where they later approved the abortion-protecting amendment. An initiative along these lines has previously been debated, but those behind it ran into difficulties over concerns from religious interests about the potential impact on the legal standing of protections against government discrimination on the basis of religious affiliation. Religious rights are outlined in New York’s Constitution, but a specific inclusion of religion and creed as foundations on which authorities can’t discriminate wasn’t initially present in the proposed amendment. Religious protections were apparently added.

Separately, New York legislators approved — at the end of their recently concluded regular session — new measures that sound like they would block potential out-of-state proceedings related to somebody obtaining an abortion in New York in the event it’s banned in their home state. Although there doesn’t appear to be a mechanism currently in place in abortion-restricting states to launch such proceedings, it’s a possibility that’s sparked concern — and preemptive action in states including California, Massachusetts, and New Mexico.