ALBANY, NY — A New York judge said Friday he would not force the state’s election officials to tell voters that a proposed anti-discrimination amendment to the state constitution would protect abortion rights, a blow to Democrats who had pushed for the change.
Judge David A. Weinstein’s decision came in a legal dispute over language on the ballots available to voters this November explaining what the proposed Equal Rights Amendment would do if passed.
Democrats wanted the state Board of Elections to add the words “abortion” and “LGBT” to the bill, arguing that doing so would make the amendment’s purpose clearer to voters. Supporters of the measure said it would protect abortion access by expanding the state’s anti-discrimination protections.
Weinstein, however, said he would be reluctant to comment on the amendment’s protection of abortion rights.
“The central problem with these arguments arises from the wording of the amendment itself,” he wrote.
The New York State Constitution currently prohibits discrimination based on race, color, creed or religion. The amendment would expand the list to include ethnicity, national origin, age, disability and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes and reproductive health care and autonomy.”
Weinstein said the actual impact of the change in the law on abortion is complex and will likely be the subject of future court battles.
“I lack the crystal ball necessary to predict how the proposed amendment will be interpreted in particular contexts. Likewise, I do not believe it is appropriate for a court to answer complex interpretive questions about the meaning of a proposal before it has even taken effect, or to compel the Board to do so,” Weinstein wrote.
The New York City Board of Elections, whose job it is to write clear explanations of the measures on the ballot, also decided late last month that it preferred to repeat the technical language of the proposal rather than interpret the change in its description.
Weinstein said the decision was “not inherently misleading and therefore cannot serve as a basis for removing the certified wording.”
It was not immediately clear whether the ruling would be appealed.
An email seeking comment was sent to a representative of the law firm that filed the lawsuit on behalf of two voters.
New Yorkers for Equal Rights, the coalition behind the bill, said the current language on the ballot was a disservice to voters because it did not mention the proposed abortion protections.
The amendment “will permanently protect New Yorkers’ fundamental freedoms, including the right to abortion – and voters have a right to know that at the ballot box,” said Sasha Ahuja, the coalition’s campaign director.
Supporters of the bill and some legal experts have said that if passed, the bill could be used to challenge future abortion bans on the grounds that they amount to discrimination.
Opponents, including many Republicans, counter that the change in the law would give transgender athletes the constitutional right to compete in sports and raise a number of other concerns.
New York Republican spokesman David Laska said Democrats have tried to politicize the wording of the proposal and believes it should be rejected by voters.
“Today’s court decision means voters will be presented with a neutral description of the amendment, and that is a good thing,” Laska said in an emailed statement.
However, the judge ordered minor changes to the wording in the short version of the amendment that will be put to voters. Among other things, he required that the phrase “unequal treatment” be used instead of “discrimination.”
After the U.S. Supreme Court overturned Roe v. Wade, Democrats in several states have put abortion-related issues on the ballot.
Voters have supported abortion access in previous elections, and a recent poll by the Associated Press and NORC Center for Public Affairs Research found that seven in 10 Americans believe the procedure should be legal in all or most cases.
In New York, abortion is currently legal until the fetus is viable, which is usually between 24 and 26 weeks of pregnancy. Democrats have a tight grip on the state government, so new restrictions are unlikely.
