Republicans are anxious to steer clear of the abortion debate after anti-abortion rights groups lost all seven ballot measures that have taken place since the Supreme Court overturned Roe v. Wade.

By Bill Mahoney

04/21/2024 07:00 AM EDT

ALBANY, New York — New York Democrats hoping to drive turnout to critical House races in November are focused on a state-level Equal Rights Amendment that will, in part, ask voters to protect abortion rights.

Republicans are responding with a provocative opposition campaign that warns “equal rights” could upend society through a litany of unintended consequences — an echo of the 1970s battle that tanked the federal ERA.

Opponents claim the amendment could open the door to minors buying alcohol. They say it would allow children to receive gender-affirming care without parental approval. They even say it could protect sexual predators.

“Let’s take a moment and ask ourselves some questions about what it means to be able to ‘discriminate’ based on things like age,” says the website of Protect Kids NY, a group that will soon be ramping up its efforts against the ERA.

“Should statutory rape laws that protect against sex with minors be weakened?”

The messaging strategy underway in New York is emblematic of the national moment: Republicans are anxious to steer clear of the abortion debate after anti-abortion rights groups lost all seven ballot measures that have taken place since the Supreme Court overturned Roe v. Wade in 2022, most recently in Ohio. Former President Donald Trump earlier this month vowed to let states decide the issue if reelected.

Democrats, who have been stressing the need for abortion protections since the court’s ruling, are aiming to make further inroads in November. Florida is among a dozen states set to have abortion-protection measures on the ballot in November.

The stakes are high in New York: The amendment is being viewed as a way to motivate voters in a presidential election year when five battleground House races could swing who controls the chamber in January.

“We’ve seen how a lot of these swing-district Republicans, no matter what they might say, they regularly and routinely vote to strip rights away from women, to strip rights away from LGBT people, to strip our bodily autonomy,” charged Rep. Alexandria Ocasio-Cortez, the Bronx Democrat.

The Republicans’ tactic is to develop an ad campaign to warn voters about other equal rights measures in the amendment — and to combat a $20 million effort by Democrats to promote the abortion component.

Abortion is a settled issue in New York, state GOP Chair Ed Cox argued, so voters shouldn’t be moved by the Democrats’ efforts.

“That was $15 million wasted by the Hochul campaign trying to make that the issue,” he said, referencing the governor’s attempts to make abortion a main issue in a race Gov. Kathy Hochul narrowly won in 2022.

Language in the ERA protecting rights like “gender expression” could scare away voters.

“To have a minor have a sex change without parental consent — that’s really shocking,” Cox said. “Issues like that are issues that I think may in the end be more important than the abortion issue.”

That’s the gist of opponents’ arguments: Protecting more rights could create an avalanche of unforeseen changes to state laws.

“Upon first reading, who’s against equal rights?” asked Protect Kids Executive Director Greg Garvey. “Nobody.”

But, he said, “the real-life ramifications” of “a poorly written, one-size fits all bill” could threaten laws prohibiting sales to minors and imposing stiff penalties for elder abuse.

Democrats said the constitutional change would do nothing like that and accused Republicans and anti-abortion groups of using scare tactics to rile up voters. Conservatives are trying to deflect attention away from abortion rights — an issue that is popular with New York voters, Democrats said.

“Public opinion polls show that the majority of New Yorkers, regardless of their party, believe in abortion rights for people, and they don’t believe government should be inserting themselves into the health care decisions between women and their medical caretakers,” said state Sen. Liz Krueger, a Manhattan Democrat and the amendment’s architect.

Republicans’ strategy of focusing on potential impacts of an Equal Rights Amendment — even implausible ones — has worked before. A state-level ERA brought before New York voters in 1975 was defeated after opponents argued that banning discrimination based on sex would mandate unisex toilets.
MOST READ
trump-hush-money-02079.jpg

Trump’s New York trial is knocking him off balance
‘We Just Finally Saw the Dam Break’: How House Republicans Embraced the Chaos
‘It can happen again’: Judge set to preside over Trump trial delivers her toughest Jan. 6 sentence to date
Appeals court upholds conviction of GOP operative who steered Russian money to Trump camp
Trump’s super PAC has helped foot his legal bills. That might end soon.

The surprise defeat in 58 of the state’s 62 counties derailed the national effort to add the ERA to the federal constitution, then just four states shy of ratification.

Still, the new measure could leave swing-district Republicans in a difficult position. If they oppose it, they would be criticized for not supporting abortion rights; if they back it, they could face pushback from their own party.

To that point, first-term Hudson Valley Rep. Marc Molinaro took a muted approach when asked Wednesday about the amendment.

“We’ve heard from proponents that some of the push to get the amendment out to the public is political. They’ve said it themselves,” he said. “But my comment is simply: The voters of New York should make their decision. They should vote as they see fit. And I leave the outcome to the people that I serve.”

Asked how he would vote, he simply laughed and walked away down a Capitol hallway.

After decades on the back burner, the concept of a state-level ERA began to reemerge in the run-up to New York’s 2017 referendum on whether there should be a constitutional convention.

Supporters hoped to add a variety of new protected classes to language in the state constitution that currently bans discrimination based on “race, color, creed or religion,” adding categories like “sex” and “age.”

After the Supreme Court overturned Roe, Democrats reframed the messaging around the amendment to focus on one of the dozen potential new protected classes: “pregnancy.” It also prohibits discriminating against “pregnancy outcomes, and reproductive healthcare and autonomy.”

They’re making it the center of a $20 million campaign this November to frame New York’s elections on the question of abortion.

“The NY ERA ballot measure is a historic opportunity for New Yorkers to protect their rights and reproductive freedoms in the state constitution, guaranteeing that New Yorkers, not the government, control their own lives, bodies and futures,” the effort’s organizers, New Yorkers for Equal Rights, said in a memo earlier this month to supporters.

The amendment’s critics want to avoid making the debate solely about reproductive choice and hope their effort can drive conservative voters to the polls in a state with twice as many Democrats as Republicans.

And, they argued, the abortion piece won’t actually affect the state’s laws on the subject. New York already has among the strongest abortion-rights laws in the nation.

“New York has the most liberal policies in the country,” Garvey said. “The idea that suddenly these laws are going anywhere is surely political theater. This is a GOTV ploy by the governor.”

Assemblymember Marjorie Byrnes, a western New York Republican, is launching a legal battle to get the amendment tossed off the ballot. She is arguing that it was improperly rushed through by Democratic majorities eager to make a political point.

Her suit is based on constitutional language that says the Legislature needs to give the state attorney general 20 days to review amendments before voting on them.

“It was introduced and voted on on the same day in both houses,” Byrnes said. “In order to amend the constitution, the majority violated the constitution.”

Both Byrnes and the Protect Kids campaign say their efforts aren’t driven by Republican political interests.

Garvey, a former staffer for ex-Westchester County Executive Rob Astorino, promised it will be multi-partisan because it affects people whether they’re “liberal, conservative, purple, [or] blue.” But there are clearly signs of an appeal to the right — the group was promoted at the state Conservative Party’s convention in February.

The group does not yet have a spending target, and it remains to be seen whether they will come anywhere close to matching the tens of millions of dollars Democrats plan to spend.

Plus, the likelihood that anybody would win the types of legal victories that Protect Kids is warning might be slim.

There are several cases, like one from the Louisiana Supreme Court that found that a ban on age discrimination doesn’t let kids buy alcohol, that indicate that courts allow for reasonable limitations on age groups even in states with equal protection language.

But the Louisiana decision was preceded by judges temporarily striking down drinking age laws. The critics of New York’s broad amendment say that dozens of lawsuits on different subjects could lead to even more conflicting decisions and confusion.

“It would open up Pandora’s Box and clog the courts forever,” Garvey said.

State Conservative Party Chair Gerard Kassar similarly dismissed Democratic claims that warning about unlikely consequences was simple fearmongering.

“I don’t think it’s far-fetched to believe that certain things the state is encouraging and supporting now, relating particularly to the transgender issue, would end up in the state constitution,” Kassar said.

Democrats don’t believe that Byrnes’ lawsuit stands much of a chance by the time it reaches the Democratic-dominated Court of Appeals, New York’s highest court. And they’re confident that abortion is a winning issue for their party in a state where questions on the subject tend to poll by margins around 57 percent to 35 percent.

But they’re not surprised that it’s a subject that opponents don’t want to debate.

“That is data-driven for all parties. If you’re Republican, you believe in abortion rights; if you’re Catholic, you believe in abortion rights,” Krueger said. “Why would anybody try to challenge that from a political perspective?”

Mia McCarthy contributed to this report.