On Tuesday, a judge in Livingston County, New York ordered the removal of a proposed constitutional amendment that would protect and enshrine abortion into the state constitution from the November ballot, citing a procedural error in the passage of the amendment in the state legislature. In his ruling, Supreme Court Justice Daniel J. Doyle found in favor of the plaintiff in a lawsuit that was brought shortly after the proposed amendment was passed out of the state legislature. 

Named the Equal Rights Amendment, it was introduced in June of 2022, when Governor Kathy Hochul called an emergency session of the legislature immediately following the Supreme Court's ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and returned the issue to the states. The Equal Rights Amendment would not only enshrine the right to an abortion, it would also put in place protections against discrimination related to gender or gender identity. Something the Democratic Party has fully embraced as an integral part of their platform to win back the House in the upcoming general election. 

One week after the proposed amendment was introduced, it was passed on July 1st, 2022. The speed or hastiness of the effort to pass the bill is where the issue lies. According to one of the plaintiffs of the lawsuit, Assemblymember Marjorie Byrnes, a Republican from Western New York, the state did not follow proper procedure when passing proposed constitutional amendments. New York state law requires that any proposed amendment be reviewed by the state attorney general, in this case, Letitia James, and determine how it would affect any other provision of the state's constitution, if at all. After the review, a decision must be sent in writing to the state legislature, and only then can the body vote on it. In this case, AG James did issue an opinion in writing, however, it was issued five days after the amendment was passed by the legislature. 

The ruling is “an important check on the legislature,” said Christian Browne, an attorney for the plaintiffs.

“This isn’t the express line. You have to introduce the amendment, wait for the opinion to come down,” he said. “The constitution is supreme, not the legislature. The legislature has to follow the rules. If they follow the rules, they can pass whatever they’d like.”

Other Republicans in New York also expressed their disapproval of how the amendment was introduced and passed. According to some, the amendment was introduced and voted on without any hearings on it, no debate or insight from constitutional experts was allowed either. It was rammed through in what Democrats decided was an emergency in order to protect abortion in the state. 

However, the pro-abortion lobby and other Democrats in the state are slamming the ruling as unfair and more. They claim that several other constitutional amendments were passed and put on ballots without having the Attorney General render a written opinion first, or at all. 

“More than a dozen constitutional amendments have proceeded in this exact manner in the last 50 years — and all made it on the ballot,” said Andrew Taverrite of New Yorkers for Equal Rights, a coalition that has backed the amendment. “This ruling is nothing but a baseless attack by the anti-abortion minority, and we are confident it will be overturned on appeal.” 

State Democrats are expected to appeal this ruling and ask that it be expedited so that a decision can be made prior to the November election.