The New York State Senate and Assembly advanced the first passage of an amendment, S.51002, to codify the right to an abortion and the right to contraception in the New York State Constitution. After this first step of passing this resolution, it “must be passed by two successive legislatures, and supported by a majority of voters in a public referendum,” said Senator Anna Kaplan, a co-sponsor, with the earliest for a referendum coming to a vote being November 2023.

The Resolution that passed on July 1, 2022 would codify the right to an abortion and the right to contraception, in addition to protecting New Yorkers from various forms of discrimination, as well as protecting from future action by the Supreme Court dismantling rights for LGBTQ+ people, according to a press release by Senator Kaplan. "The resolution expands equal protection under the law to several new identity classes, including on the basis of ethnicity, national origin, age, disability and sex,” she said. “Sex includes sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, reproductive healthcare and autonomy."

The lead sponsor is Andrea Stewart-Cousins.

Is Modifying The State Constitution To Protect Abortion Rights, Women, Girls, And All Birthing People New?

According to the New York Times, 15 states including California are seeking to amend their state constitutions to protect the right to save the life of the woman, girl or birthing person for any reason, including financial, wrong time in life, wrong potential partner, and mental and physical health. New York State had tried this before, but failed. During the creation of that effort back then, the lead sponsor, Senator Liz Krueger, said they learned many things while drafting it.

Back in February 2022, The Times Union reported on that earlier proposal that the "inclusive Equal Rights Amendment" is different than the Equal Rights Amendment (ERA) at the federal level. Said Senator Krueger then, it was very different than the 45-year-old federal effort, because the state-level amendment "would expand on the federal ERA language to include protections for race, ethnicity, national origin, sexual orientation, gender identity, gender expression and pregnancy."

According to reporting in Politico, the earlier version of the proposal stalled because over disagreements of recognition based on religion. Politico pointed out that this version was “modified to address critics’ concerns over potential effects on religious freedom.”

The Assembly passed broad state Equal Rights Amendment with 98-43 vote Friday evening, and the Senate “hours earlier swiftly approved the resolution on a 49-14 vote after just minutes of floor discussion,” reported Politico. “The amendment would add explicit protections for New Yorkers to access abortion care,” as well as the right to contraception.

Why Now?

New York Governor Kathy Hochul called for a special session after the Supreme Court struck down New York's open-carry gun law. The Supreme Court then struck down Roe V. Wade, and New York's Equal Rights amendment was added to the agenda for the special session shortly thereafter.

As reported by Politico, the lead sponsor of this version of the bill, Senate Majority Leader Andrea Stewart-Cousins “told reporters that the Supreme Court’s ruling last week ratcheted up lawmakers’ urgency to finally move the proposal after years of debate in Albany. She noted that Friday’s vote came on the anniversary when New York’s abortion law took effect more than 50 years ago.”

After the extraordinary session on Friday called by New York Governor Kathy Hochul to address New York’s gun laws and abortion, she told reporters: “It’s part of our fighting back to protect women’s reproductive freedoms here in the state of New York. That [amendment] is going to protect reproductive health in the state of New York for generations to come.”

In defense of both votes, Governor Hochul said: “We're not going backwards. They may think that they can change our lives with the stroke of a pen. But we have pens, too," as reported by The Poughkeepsie Journal.

Abortion Rights Protection At The Federal Level In The Constitution

The Times Union interviewed Wilfred Codrington, an assistant professor at Brooklyn Law School and a fellow at the Brennan Center for Justice, to discover more about the federal effort to add an equal rights amendment for women to the U.S. Constitution. According to him, it has been in the works since the 1920s.

Codrington said "the Constitution doesn't require women be treated equally." He explained that "if there’s nothing permanent and enshrined in the Constitution protecting those values, a number of statutes we’re seeing being contested in the courts and eviscerated or struck down that also were meant to be enduring."

Senator Krueger was starting with New York state by attempting a broader reach than just women, which "would make New York state, I believe, the first in the nation to recognize that all of our populations should have nondiscrimination protections within our Constitution ... (for) a broader universe of categories of humans and for a broader range of issues than gender," she said as reported by The Times Union.

With Senator Krueger’s bill “There's all kinds of precedent that we need to make sure we have the language correctly on, that we are not impeding one right by protecting another right. So I have found that attempting a complex change in a Constitution is a much more difficult assignment than I had originally hoped for," Krueger said.

That was then. This is now.