What is Proposition 1 on New York ballot in 2024?

The first thing you should know about Proposition 1 is that it won’t provide any additional rights to any groups, although it will put into the New York state constitution protections now provided by statute. Although the proposition wouldn’t enshrine the right to an abortion or any other substantive right into the state Constitution, it would make discrimination, that is, arbitrary unequal treatment on the basis of the exercise of those rights, a violation of the state Constitution.

Currently, Article 1 Section 11 of the New York state Constitution prohibits discrimination based on race, color, creed and religion.

Ballot Proposition 1 would amend the section to also include ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy and pregnancy outcomes, as well as reproductive health care and autonomy.

Here’s some background

Since the U.S. Supreme Court overturned Roe. v. Wade in 2022, the debate over abortion rights has reached a fever pitch across the country. To protect abortion rights in New York, the Democratic-led Legislature drafted a proposition question that will appear on this year’s ballot. If Proposition 1 passes, it would add an additional layer of protection to rights now protected by statute, including abortion rights, by placing them in the constitution.

Money from anti-abortion groups is being spent to sink Proposition 1, but interestingly, critics are not publicly focusing on abortion. Instead, they’re focusing on the proposal’s vague language, arguing that it could undermine parental rights and allow migrants to vote, among other issues.

Lawmakers who crafted the amendment and other proponents say critics are fearmongering.

The following is an attempt to answer some common questions about the proposition in plain English.

Q: How does a proposition question get on the ballot?

A: If it passes, this proposition question will change the state’s Constitution. To present such a question to voters, language must be passed by two consecutive state legislatures, and then be approved by a majority of voters at an election.

That election takes place on Nov. 5.

Q: What’s the proposition’s official name?

A: The official name of Proposition 1 is the “Amendment to Protect Against Unequal Treatment," though advocates and others also refer to it as the “Equal Rights Amendment."

Q: Where can I find it?

A: You can find it on the back of your ballot.

While some localities, including New York City, are asking additional local ballot questions, there is only one statewide ballot question and it is Proposition 1, the “Amendment to Protect Against Unequal Treatment."

Q: What will the question look like on my ballot?

A: “Amendment to Protect Against Unequal Treatment”

“This proposal would protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity and pregnancy. It also protects against unequal treatment based on reproductive healthcare and autonomy.”

A “YES” vote puts these protections in the New York State Constitution.

A “NO” vote leaves these protections out of the State Constitution.

If a voter wishes to see the full text and/or abstract to gather more information, they will be printed and available for viewing at all poll sites.

Q: What will Proposition 1 do?

A: This is a complicated question because legal experts have varying opinions about the impact of the amendment; however, if the proposition question passes, it will not grant any additional rights. It will take existing statutory rights and move them into the constitution, making them harder to limit or remove.

Keep in mind, the fundamental rights and protections against discrimination in both the federal and state constitutions are purposely vague and are subject to court decisions.

“[Constitutional rights] are not precise on the point, but that’s not a good reason to throw them out,” Albany Law School’s Dr. Vin Bonventre told Capital Tonight.

If Proposition 1 passes, the New York state Court of Appeals, the state's highest court, will put its imprint on the amendment the way the Supreme Court of the United States has done with federal constitutional amendments.

Here is a breakdown of what critics and supporters are saying about each element of the proposition question.

==============

“This proposal would protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity and pregnancy. It also protects against unequal treatment based on reproductive healthcare and autonomy.”

Ethnicity and National Origin

CON -- “This amendment also has the term ‘national origin’. What does this mean? Well, it could mean voting rights for non-citizens," says former Republican U.S. Rep. John Faso

PRO -- “The amendment speaks in terms of discrimination. Is there a good reason to limit voting to U.S. citizens? Yes, there is," says Albany Law professor Vin Bonventre

ANALYSIS -- While there have been efforts in New York City to give undocumented immigrants the right to vote, those efforts have failed. That doesn’t mean that advocates won’t try again. However, there is nothing in this amendment that would automatically give non-citizens the right to vote.

===============

Age

CON -- “By putting age in with no distinction for minors, it means a 15 or 16-year-old plaintiff would be able to come into court and say, ‘I would like puberty blockers or gender-affirming care without parental permission,'" says former U.S. Rep. John Faso

PRO -- “Those claims are 100% without merit. New York state requires parental consent for minors to receive any kind of procedural or surgical care. And this certainly will not change that," says Katharine Bodde, interim co-director of policy at NYCLU.

ANALYSIS – While a future case could be brought to court by a minor citing this amendment, there are very good reasons to deny a minor the right to an irreversible surgery without parental permission. As Vin Bonventre told Capital Tonight, “we’re not going to allow a 3-year-old to get a driver’s license or own a gun," the implication being that the courts would most likely not allow a minor to get surgery without parental permission.

================

Disability

This element of the constitutional amendment doesn’t appear to be controversial. It would bolster protections in the state for people with disabilities, something that is already guaranteed under the U.S. Constitution.

==================

Sex, sexual orientation, gender identity

CON -- “If you look at biological males in female sports, they’re now going to have a constitutional right to say, ‘you’re discriminating against me over my gender identity and expression,” says former U.S. Rep. John Faso

PRO – “The purpose of the amendment…is making GENDA harder to change," says Richard Rifkin, legal director of the Governor Law Center at Albany Law School

ANALYSIS – Biological males whose gender expression is female have been allowed to participate in women’s sports in New York state since 2019 when the state’s Human Rights Law was amended through the Gender Expression Non-Discrimination Act (GENDA) to explicitly add gender identity or expression as a protected category. Discrimination based on gender identity or expression is already prohibited in all areas covered by the Human Rights Law. Proposition 1 will not change that.

================

Pregnancy, reproductive healthcare and autonomy

CON – “The amendment doesn’t even use the word abortion," says former U.S. Rep. Lee Zeldin

PRO – “The amendment is designed to strongly protect abortion within our state Constitution. The question looks at reproductive health care within a sex discrimination framework that acknowledges that limitations and bans on abortion are fundamentally about sex discrimination," says Katharine Bodde, interim co-director of policy at NYCLU

ANALYSIS – Opponents of the proposition are correct; the word abortion doesn’t appear in the language of the proposition. But according to advocates, they wanted to protect against all pregnancy outcomes, not just abortion. There are four possible outcomes including miscarriage, stillbirth, live birth and abortion. They also wanted to cover IVF and contraception.

Q: Is it true that some of these rights will be dependent on future court decisions?

A: Yes. Just as the Supreme Court of the United States weights conflicts between constitutional rights at the federal level, the New York State Court of Appeals will do the same with conflicts between constitutional rights at the state level.

Q&A: Proposition 1 – New York's lone statewide ballot measure in 2024