Supporters of a referendum that could enshrine abortion rights in New York’s state constitution won another round in court on Thursday, possibly clearing the way for the measure to remain on the ballot this November.
The Equal Rights Amendment, as the measure is known by supporters, survived another round of legal challenges on Thursday afternoon when the state Court of Appeals ruled against Republicans who were trying to bring their case to the state’s top court.
Last month, the GOP attempted to challenge a midlevel court’s ruling that kept the amendment on the ballot. But the Court of Appeals rejected the party’s argument that it had an automatic right to appeal.
Now, Republicans will have to seek the top court’s permission to proceed with their case. The legal longshot is far from a given, and the added step significantly bolsters the chances that the amendment will be put to voters this fall.
The state Republican Party could not immediately be reached for comment.
The proposed amendment would expand the state constitution’s existing anti-discrimination protections, which currently prohibit discrimination based on “race, color, creed or religion.”
If approved by voters, the amendment would add protections based on “ethnicity, national origin, age, disability and sex.“
It would also protect against discrimination based on “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, reproductive health care and autonomy,” a move that would effectively ensure the right to an abortion is protected by the state constitution.
The Democrat-led state Legislature first passed the amendment in 2022, not long after the U.S. Supreme Court overturned the abortion protections provided by Roe v. Wade. But voters have to give final approval before the measure takes effect, and Democrats hope the ballot measure could help drive turnout at the polls this fall.
Republicans and conservatives largely oppose the amendment. The GOP held a rally at the state Capitol in May, arguing that the measure was overly broad and would infringe on parents’ rights.
The GOP sued over the ballot initiative on the grounds that Democratic lawmakers didn’t follow the proper procedure for approving it. A state Supreme Court justice — the lowest-level state judge — agreed, ruling in the GOP’s favor in May.
But the midlevel Appellate Division overturned the decision in June and unanimously ruled that the GOP waited too long to file its lawsuit.
Republicans could have appealed directly to the Court of Appeals if the Appellate Division had issued a split ruling, or if their lawsuit had focused solely on a constitutional question. The top court ruled that wasn’t the case and dismissed the automatic appeal on Thursday.
Now, the GOP has 30 days to submit its request for “leave,” which essentially seeks permission to appeal to the top court.
The party’s chances of success are slim, based on previous Court of Appeals rulings. Last year, the court handled 636 motions for leave and granted only 43 of them, or about 7%, according to the court’s annual report. And even if one is granted in this instance, the GOP would still have to win the case.
