New York voters last week approved Proposition 1, a ballot measure that adds abortion rights to the state constitution and bars discrimination based on pregnancy and pregnancy outcomes.
The measure, passed with 61.9% of the vote, also protects against discrimination based on age, gender identity or sexual orientation, according to CBS News, which said, “Opponents say the vague language opens up a can of worms that could cause more harm than good.”
Indeed, some legal experts argue that instead of promoting equality, the Equal Rights Act, as the measure is officially known, enshrines discrimination and strips away parental rights.
Opponents of the amendment argue it would “open the door to men using women’s bathrooms and transgender athletes to compete on sports teams that match their gender identities” and “allow minors to get abortions without parental consent.”
New York attorney Bobbie Ann Cox campaigned against Proposition 1. She said the amendment was “unnecessary” because “anti-discrimination laws are already in place.”
Cox told The Defender:
“No new rights were endowed by Proposition 1. In fact, it is the opposite, because Proposition 1 actually restricts our rights. The language is clear: It says we (the people) are not allowed to ‘discriminate’ against the named classes, nor are our firms, corporations or organizations.
“This gives the government license to control us, our firms, corporations and organizations — because who do you think will determine what is deemed ‘discrimination’ or ‘hate speech?’ The government will.”
Michael Kane, founder of Teachers for Choice, told The Defender that Proposition 1 is state lawmakers’ response to grassroots efforts supporting medical freedom and parental rights during the COVID-19 pandemic. He said the state needed this law because “Teachers for Choice and our coalition partners have stopped all assaults on medical freedom and parental rights in Albany for the past five years.”
Kane added:
“Because of that, a group of Democrats from New York City put forth this ‘Equal Rights Amendment’ and rolled their wishlist of legislation into it, to go straight to the New York Constitution — because they knew they couldn’t get any of these crazy pieces of legislation passed in a real democratic process.”
Cox said the amendment “will result in complete totalitarian control” over New Yorkers. “It will flip our norms upside down, and give the government license to abolish our freedoms of speech, assembly, religion, family units and so on,” she said. “It is a Trojan Horse of the most epic kind.”
Kane said that despite the many protections the amendment promises, there are “no protections in Proposition 1 for health freedom, religious freedom or parental rights.”
Instead, the amendment “can and will be used to get parents out of the picture of all medical decisions for children,” Kane said. “This is why Proposition 1 says ‘you can’t discriminate’ against anyone based on ‘age.’”
Amendment gives government ‘power to discriminate against anyone’
The measure amends Article 1, Section 11 of the New York State Constitution on the equal protection of laws, which bans discrimination on the basis of “race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
The second paragraph of the amendment adds:
“Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.”
According to Cox, this language enshrines reverse discrimination, giving the government “the power to discriminate against anyone they want, at any time, for any reason.” She also criticized the measure’s “vague” language.
“The language of Proposition 1 is vague and extremely broad,” Cox said. “It’s unconstitutional to have overly broad laws for this very reason — the true intent cannot be known, which then leads to courts making the decisions piecemeal, which causes inconsistencies and massive confusion.”
Cox said the ballot did not provide voters with the full text of the amendment. Voters saw only a summary that described the measure as an amendment that “would protect against unequal treatment.”
Writing on Substack last month, Cox called the summary “a total sham, as it doesn’t even give the whole story.” She said the amendment “will unleash a massive tidal wave of chaos upon our citizenry, upon normalcy, and upon all that we hold dear in our society,”
She said she believes the amendment will weaken parental rights, abolish girls’ sports and single-sex spaces, legalize reverse discrimination and result in the “chilling of free speech.”
Cox said claims that the amendment protects the right to an abortion were a “lie.” She said the word “abortion” did not appear on the ballot and that the measure differs from laws passed in other states that explicitly make clear what the state’s laws are regarding abortion.
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New amendment to face constitutional challenges
According to CBS News, New York joined seven other states that have “passed measures protecting abortion rights” after the 2022 U.S. Supreme Court decision overturning Roe v. Wade.
Organizations including the New York Civil Liberties Union and the League of Women Voters of New York supported the measure.
Opponents of the amendment had difficulty overcoming support from these groups and key state officials, including Attorney General Letitia James. However, in a Substack post last week, Cox said “there is a silver lining.”
“Despite the grossly fraudulent language and fear-mongering campaign the politicians and the media ran to promote Prop 1, almost 3 million New Yorkers voted against it. In a state where Democrats outnumber Republicans 2 to 1, a state that many consider ‘deep blue’ and ‘radical,’ this proposition full of woke ideology only passed by 56%,” Cox wrote.
Cox told The Defender she has formed a task force to explore legal avenues for challenging the amendment. She said policies the new administration may introduce might facilitate legal actions challenging the amendment.
“It’ll depend on what is done by Trump’s administration and how it is done,” Cox said.
Kane said the amendment “can and will be challenged as being a violation of the federal Constitution.”
