On May 7, a state court in Rochester removed New York’s Equal Rights Amendment (ERA) from the November ballot. State Supreme Court Justice Daniel Doyle, a Republican, ruled that the Democratically controlled legislature violated procedural requirements set by the state constitution. The decision marks a victory for state Republicans looking to stave off electoral losses in November, though an appeal is imminent.
New York’s ERA seeks to amend the state constitution to extend protections against discrimination based on sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy. Democrats have framed the amendment as urgently needed to strengthen abortion rights and protect transgender individuals in light of legislation passed in other states. Granting gender-based protections, however, threatens to undermine parents’ rights to direct the health care and upbringing of their children.
The legislature failed to follow the New York State Constitution’s procedure for the amendment process. Article XIX, Section 1 requires the legislature to refer an amendment to the state attorney general for a nonbinding legal opinion, which should be produced within 20 days. The failure to render this opinion, however, whether in a timely manner or at all, does not “affect the validity of such proposed amendment or legislative action thereon.” The senate and assembly can then vote on the amendment. If the amendment resolution passes, it is then referred to the next regular legislative session for a second vote by the subsequent legislature. If the amendment secures a second majority vote in both legislative chambers, it must finally be submitted to New York voters as a ballot measure, at a time determined by the legislature. Only after receiving majority approval from voters does the amendment become law, taking effect on the January 1 following the election.
That’s not what happened here. Instead, on July 1, 2022, in a special session convened in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization, both houses introduced the ERA amendment as a concurrent resolution. It was then immediately referred to Attorney General Letitia James for her opinion. Instead of waiting to receive that opinion before voting, the legislature voted that same day to adopt the resolution. James issued her favorable opinion on July 6. On January 24, 2023, in the following legislative session, the amendment passed again via concurrent resolution. Lawmakers could thus have placed it on the off-year local elections ballot in 2023, but they decided to wait until the critical 2024 general election. Republicans filed suit in October 2023.
Because the legislature took its first vote without receiving the attorney general’s opinion or waiting 20 days, Justice Doyle’s opinion held that the procedural deficiency requires removing the amendment from November’s ballot. Upholding the rule of law, he wrote, required respecting all constitutionally required procedures.
Democrats, including James and legislative leaders, vowed to appeal to the Court of Appeals, the state’s highest court. Governor Kathy Hochul painted Doyle as an “extremist judge,” who threatened to “throw off track” the “decades-long fight to protect equality and reproductive freedom.” The legislative defendants insist that the urgency of protecting against discrimination and ensuring abortion access post-Dobbs prevented the legislature from waiting for the attorney general’s opinion.
The Democrats’ claims of urgency don’t hold up to scrutiny. New York State has long had some of the nation’s strictest antidiscrimination laws. Since 1970, state legislation has protected abortion, and in 2019 the legislature expanded access to it with passage of the Reproductive Health Act, which essentially codified Roe v. Wade in state law. Two weeks before the Supreme Court handed down Dobbs, Hochul signed six more bills strengthening abortion access. In a statement reacting to the Court’s decision, Hochul said, “I want everyone to know that abortion remains safe, accessible, and legal in New York.” Abortion access is under no meaningful threat in New York State.
If the ERA’s passage were so urgently necessary to protect abortion, then why would Democratic lawmakers wait to place it on the ballot in November 2024, rather than in 2023? The answer: the ERA is being used strategically on this November’s ballot to drum up Democratic voter turnout.
New York Republicans flipped three congressional seats in 2022, and these will be crucial to control of the House come November. Abortion has been a top issue in many of these “purple” competitive districts, especially for suburban women, a key demographic. Rather than waste this opportunity on local elections in 2023, Democrats calculated that abortion-driven turnout would help them win the seats they need to take back the House of Representatives in a contentious presidential election year. But this may prove a costly miscalculation.
The ERA also touches on another hot-button issue that brought suburban women to the polls in 2021—for Republicans. Parental rights in education and health care were among the most prominent issues in the election of Virginia governor Glen Youngkin. Volatile school-board meetings in Loudoun County and elsewhere demonstrated suburban parents’ frustrations over their lack of say in the education of their children, especially on divisive issues like critical race theory and gender ideology.
New York’s ERA could precipitate the most significant erosion of parental rights ever seen. Its broad, ambiguous language will likely lead to litigation by far-left activist groups seeking to create new “rights” for gender-dysphoric minors, allowing them to transition medically or receive other medical interventions without parental consent. Moreover, it would strengthen the state Education Department’s current policy not to disclose students’ pronoun and name preferences to parents and to prohibit school districts from deciding whether biological males can compete in girls’ sports. The new prohibition against age “discrimination” would subject businesses that use age restrictions—such as car rental firms, hotels, and auto insurers—to litigation risks.
In sum, the ERA is a Trojan horse. It targets a specific voter group using unfounded fear about abortion restrictions, while putting well-established and broadly accepted parental rights at risk. It’s up to the Court of Appeals to determine whether it will appear on New York’s ballot this November.
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