This week, the New York Daily News editorial board and Governor Kathy Hochul urged New Yorkers to vote yes on Proposal 1, a ballot measure that would amend the New York State Constitution to expand antidiscrimination protections for new and vaguely defined protected classes, including age, national origin, gender identity, gender expression, and more. While the editorial board concedes “confusion as to what the amendment does and what it doesn’t do,” Proposal 1’s supporters seem to believe that establishing a state constitutional right to abortion is more important than the ramifications of a poorly written law.
The state legislature first passed legislation to amend the constitution in 2022, days after the Supreme Court overturned Roe v. Wade. But New York had already codified Roe in a state statute in 2019 and further strengthened abortion access in the weeks and months prior to the Court’s reversal. Supporters argue that the new proposal is necessary to protect abortion rights, but tellingly, the legislature didn’t put the amendment on the ballot as soon as it could, in 2023. Instead, it waited until this year, when Democrats could leverage abortion to their political advantage. Indeed, Hochul’s op-ed appears written to stir fear in purple downstate districts, connecting Proposal 1 to the overturn of Roe and to the unlikely prospect of a federal abortion ban (which would supersede the state constitution, regardless of Prop. 1’s outcome). With a supermajority Democratic legislature, state-level rollbacks to abortion access are not in the cards.
Notably, the word “abortion” doesn’t appear in the proposed amendment’s language. Instead, it would amend the constitution to protect against discrimination based on pregnancy, “pregnancy outcomes,” and “reproductive healthcare and autonomy.” These and the rest of Proposal 1’s new protections will have to be litigated and interpreted by New York state courts, and it’s anyone’s guess what lawsuits will arise or how they will be resolved. The Daily News’s editorial board concedes as much, noting that Albany “wrote the amendment with vagueness,” and predicting that “there will be lawsuits due to its mushy language, and hopefully the judges will get it right.”
Enacting vague language and hoping judges interpret it favorably offends the rule of law by delegating the legislature’s essential job to courts. Lawmakers should be held accountable for the laws they write—not judges, who aren’t supposed to weigh political and policy considerations. Laws should be written in clear, accessible language so that citizens of ordinary intelligence understand their rights and duties. Proposal 1 fails this principle, as its broad language prevents voters from knowing what specific issues it would exempt from the political process.
Outsourcing lawmaking to plaintiffs and courts is undemocratic in principle and hard to reverse in practice. For example, New York City’s right to shelter arose from a 1979 lawsuit grounded in a vague state constitutional guarantee of “aid, care and support” to the “needy.” A 1981 consent decree, initially for 750 homeless men, now underpins a shelter system serving over 130,000. Since March 2024, most single adult migrants in city shelters have been limited to one 30-day stay. Would Proposal 1’s national-origin protection invalidate this limit? No matter how courts decide such questions, the prospect of more civil rights litigation would make it even harder for local governments to manage issues like the migrant crisis.
The editorial board dismisses critics’ concerns about female sports and youth gender issues as “garbage,” but nothing in the amendment prevents those fears from materializing. It’s not hard to imagine how age, gender-identity, and gender-expression protections could give rise to radical new rights. Biological males barred from playing on female sports teams in publicly owned venues could file discrimination claims under the amended constitution. After all, state attorney general Letitia James sued Nassau County following its ban on males from competing on female sports teams in public facilities. Youth transgender advocates may likewise claim that the amendment gives children a right to access puberty blockers and cross-sex hormones without parental consent. Public school officials in Massachusetts used a similar state antidiscrimination law to justify not telling parents when their child was called by different names and pronouns in school.
Proposal 1, Hochul says, sends a message that New York stands for reproductive rights. In fact, the proposal reveals that the governor and most state lawmakers are willing to be deceptive to bolster their party’s turnout, especially in key House races. As one of us and others have rightly claimed, Proposal 1 is a Trojan Horse: it uses vague language to provide a constitutional basis for unpopular, extreme agendas, not enacted through the democratic process but imposed by courts. By voting no, New Yorkers can tell their legislature that they won’t stand for bad law.
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