New York Democrats are considering enshrining abortion rights in the state constitution following the overturn of Roe v. Wade, possibly as part of a broader amendment that would also prohibit discrimination based on gender expression.
Lawmakers held a special legislative session Thursday that Gov. Kathy Hochul called primarily to pass an emergency overhaul of the state's gun permitting rules after they were struck down by a Supreme Court Court ruling.
But the Democrats were talking privately about whether to also use the emergency session to launch the process of amending the state constitution to protect the right to abortions.
State law currently allows abortions up to the 24th week of pregnancy, but abortion rights supporters say they want a guarantee that a future legislature won't be able to pass more abortion restrictions.
Even in a blue state like New York, however, some Democrats have been hesitant to start the process of amending the constitution amid opposition from pro-life Catholic groups.
“There’s a narrative that’s taken hold among Democratic leadership that somehow they can’t win on this issue,” said Katharine Bodde, New York Civil Liberties Union assistant policy director.
Hochul, a Democrat running for her first full term as governor in November, has vowed in campaign ads to protect the right to abortion in the state constitution.
Lawmakers and advocates are also debating the best way to spell out abortion protections.
One approach would be to protect abortion rights indirectly. Leaders of NYCLU and Planned Parenthood’s New York chapter have proposed an amendment they say would guarantee abortion rights by prohibiting discrimination based on “pregnancy and pregnancy outcomes.”
That amendment could also prohibit discrimination based on disability, sex, national origin, gender identity and gender expression. Backers say the intent would also be to create legal grounds for barring the government from trampling on transgender rights, among other things.
Right now, the Equal Protection Amendment in the state constitution currently prohibits discrimination based on “race, color, creed or religion.”
Mike Murphy, spokesperson for Senate Majority Leader Andrea Stewart-Cousins, said lawmakers are considering a combination of both approaches: passing an amendment that explicitly protects abortion rights, and also adding sex, gender identity and other protections to the constitution.
Leaders of the New York State Catholic Conference have expressed concern about the possibility that a constitutional change would weaken protections for health care workers who don’t want to provide abortions or gender transition care for religious reasons.
Health care workers with religious concerns are already somewhat protected under federal and state law, but Catholic Conference Executive Director Dennis Poust said those protections aren't enough.
“Federal conscience protection is limited based on certain funding streams and is dependent totally on federal enforcement since there is no private right of action,” Poust said in an email. “It does not extend to forced referrals or to anything related to gender transition.”
The process of amending the state constitution takes time.
Any amendment approved by the legislature this year would have to be approved a second time in a subsequent legislative session, next year. The proposed amendment would then go before voters in a statewide referendum.
The NYCLU's Bodde said changing the constitution would be worth the effort.
“We are filing gaps where the federal Constitution has shrunk protections over the past 50 years,” Bodde said. “And we are maintaining the balance of religion within our state constitution.”
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