ALBANY, N.Y. — The New York State Senate passed a measure on Friday that, if passed in full, would enshrine the right to seek an abortion and access to contraception in the state constitution.
The measure — the Equal Rights Amendment — puts New York at the forefront of judicial efforts to protect reproductive rights after the Supreme Court threw out Roe v. Wade last week, ending long-established abortion protections.
But the scope of the amendment is much wider. It prohibits the government from discriminating against anyone based on a list of qualifications, including race, ethnicity, national origin, disability, or gender — specifically noting sexual orientation, gender identity and expression, and pregnancy on the list of protected conditions.
Parliament is expected to pass the bill, and then voters will have to approve the amendment in a referendum before it takes effect.
Democrats in Albany described the amendment as a crucial protection for those protected classes and a shield against potential government intrusions into contraception, consensual same-sex relationships and same-sex marriage.
“We can no longer afford to play a risky game because the right is not only going to take everything to court, they are starting to control all the courts,” said Sen. Liz Krueger, the amendment’s architect. “So it’s increasingly important to enshrine things in state constitutions as well as state laws.”
Timing, they said, is also important.
“I think this first passage fits the moment when New Yorkers want to show their support for abortion rights and reproductive health care — as well as to protect other New Yorkers,” said Sen. Brad Hoylman, D-Manhattan, who co-sponsored the the bill.
The Catholic Conference, which represents New York State’s bishops, opposed the measure: “Unfortunately, this bill reinforces the message New York has been sending to women for some time: that abortion is positive, empowering and the key to success,” it said in group statement. “Our elected officials must stop promoting abortion as a woman’s best and only choice and instead focus on real support for women, children and families.”
More than a dozen states and the District of Columbia affirmed or expanded abortion rights before the Supreme Court ruling, while another dozen Republican-led states had legislation banning abortions after the ruling.
In the final days of New York’s 2022 legislative session, lawmakers passed a package of bills aimed at protecting abortion seekers and providers. But after the Supreme Court issued rulings on abortion and concealed weapons, Gov. Kathy Hochul, a Democrat, ordered the Legislature to return to Albany on Thursday for a special session.
After a long night of negotiations, the measure passed the Senate without debate. It now heads to the Assembly, where Speaker Carl E. Hastie said Friday he expects it to pass.
However, changes will not happen immediately.
Amending the state constitution is a years-long process in New York, requiring passage by two separately elected legislatures and then voter approval in a referendum. By passing it this year, Democratic leaders hope they can win approval next year and deliver it to voters in 2024, when turnout is expected to be high in a presidential election year.
Although Ms. Hochul had no official role in approving such an amendment, she said she supports the measure and has included the effort in campaign ads.
Supporters had hoped to pass the amendment at the end of the 2022 session, which ended in early June. But the effort failed after several leading religious groups, including the Catholic Conference and the Council on Jewish Community Relations, opposed the measure.
The question was whether the act of listing new protected classes in the state constitution would in any way diminish existing religious protections.
Early versions of the bills did not include religion or belief in the list of protected classes, although religious rights appear elsewhere in the state constitution. Religious groups protested strongly.
Mark Stern, general counsel for the American Jewish Committee, said that while he supports adding protections for transgender and reproductive rights, he believes leaving religion out of the specific list is unacceptable.
“What they’re referring to is the wedding photographer cases, the bakeries,” Mr. Stern said, referring to past lawsuits involving businesses that refused service to gay couples. “That’s why they exclude religion and faith.”
Mr. Stern said he believed lawmakers intended for gay couples to win those cases — which he said was “putting a thumb on the scale.”
By Friday, lawmakers had reached a compromise, adding religion to the list of protected classes so it would be on par with gender and race.
Lawmakers said the compromise would ensure the state has stronger protections than ever before for members of protected classes and that the rights of one group will not diminish the rights of another.
“This amendment is really a shield, not a sword,” Mr. Hoylman said.
A provision that would have lowered the standard for discrimination — to include unintentional discrimination that results in “disparate impact” — was removed from the legislation to the frustration of advocates. But a clause in the law leaves the door open to future changes.
The Catholic Conference released a statement Friday opposing the measure.
Supporters, including the New York Civil Liberties Union, hailed the passage, calling it a crucial first step in responding to the “existential threat” posed by the Supreme Court.
“Our state constitution, if this amendment passes, will say ‘not here in New York and not under our watch.’ Our Equal Protection Clause can serve as a model,” said Lee Rowland, policy director of the New York Civil Liberties Union, adding, “This is a big win.”
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