What Is New York’s New ‘Abortion’ Amendment Hiding?

As a young public defender in the 1990s, I learned to appreciate that the Constitution is sacrosanct: To remain a free people, we must fiercely guard against any attempt to diminish our constitutional protections. I have been thinking about the Constitution because I, along with every other New York voter, will have the choice to vote on Proposition 1 next month.

Prop. 1, formally known as the ballot proposal for the Equal Rights Amendment, purports to be about guaranteeing abortion rights, which is odd: The Supreme Court’s Dobbs v. Jackson decision that overturned Roe v. Wade had no impact on New York state abortion laws, which are among the most expansive in the nation. So what’s really going on here?

Abortion is good politics in New York. It polls well and can mobilize the base. Which is why Democratic lawmakers, who have a super-majority in the state legislature, used it as a vehicle to include additional categories like ethnicity, national origin, age, disability, sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy in New York state’s Constitution, thereby codifying sectarianism in the Empire State. This sectarian form of government radically subverts equality under the law and erodes our rights as citizens and as parents. New Yorkers should be concerned.

In particular, the “age” category should set off alarm bells with parents. What we’re dealing with here is not age discrimination in the workplace, for which there are already laws on the books. Rather, the target is children. That much has been clear from recent legislation in Democrat-controlled California. After signing into law in 2022 a bill that turned California into a sanctuary state for trans children, in July Gov. Gavin Newsom made his state the first in the country to enact a law that bans requiring school staff to disclose a student’s gender identity or sexual orientation to their parents without the minor’s permission.

A group dedicated to defeating Prop. 1 refers to the ballot measure as the “Parent Replacement Act.” The current New York City guidelines that govern my children’s public schools are explicit about the state’s rights to make potentially irreversible decisions about my children’s mental and physical development without my involvement.

New York state Sen. Liz Krueger, the primary sponsor of Prop. 1, signed a letter in May with 17 other elected federal, state, and city officials condemning a resolution I authored, and my Education Council (NYC’s version of a school board) passed. The resolution merely asked for a review of the NYC public school gender guidelines. The guidelines allow schools to withhold from parents all information about the gender psychosocial transitioning of a minor child in school. Our resolution is just a request for review, of something that’s indisputably controversial, with disturbing new evidence emerging all the time. Yet the elected officials called our mere request for a review “hateful, discriminatory and actively harmful.” The passage of Prop. 1 will make it all but impossible for parents to raise these issues and seek regulatory changes in line with newly emerging evidence.

New York lawmakers have also tried to make an end run around parental rights when it comes to vaccines. Krueger has sponsored a bill that would permit any child who is at least 14 years of age to have vaccines administered to them regardless of parental consent. That a 20-year-old veteran with combat duty under his belt can’t buy a Bud Light in New York state, but a 14-year-old should make novel and potentially far-reaching medical decisions without their parents, is a staggering contradiction unanswered by the lawmakers who want to dismantle parental rights. The state is not only inserting itself between children and their parents, cutting out the latter, but also is granting minors an autonomy that allows them, with the state’s guidance, to bypass their parents. In other words, Prop. 1 represents a mass social-engineering project that completely overhauls fundamental norms and values.

Prop. 1 also upends the functioning of the law and enshrines arbitrariness—the hallmark of third-world societies. Although prohibition on discrimination based on gender identity or gender expression was added to the books in New York in 2019, one question that arises from these categories is how can individuals and entities comply when the very definitions are inherently unstable? For instance, several federal District Courts have enjoined the Biden-Harris rewrite of Title IX after they redefined “sex” to include “gender identity,” changing the intent and the functioning of the law and thus paving the road for males to compete in female collegiate sport. A New York state constitutional right banning discrimination based on both “sex” and “gender identity” creates an unresolvable conflict between a young woman who earned a spot on her federally funded school women’s sports team, against the biological male who identifies as a woman and demands her spot.

Another feature of the third world is the grievance-based structure of sectarianism, which Prop. 1 will enshrine in New York’s Constitution. Section B of the amendment states, “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.” In other words, the newly established categories embed discrimination favoring the interests of some over others based on a grievance hierarchy.

This turns simple proscriptions, like “don’t discriminate on the basis of sex,” into a wide-ranging tool of preferential treatment. What does that look like in practice? My eldest son was not allowed to join the only financial literacy club in his high school (sponsored by Morgan Stanley) because it was only open to “girls and non-binary students.” It is hard to challenge such a practice now. With Prop. 1, it will be impossible to challenge under state law.

Perhaps the category that most explicitly codifies the third-world program of Prop. 1, and its nullification of not just our rights, but our status as citizens, is “national origin.” Do we have a big problem with nation of origin discrimination in New York? My husband and I originate in different countries and we’re doing just fine. As are the 36% of the city’s foreign-born population that make up 44% of its resident labor force, many of whom outearn native-born Americans.

We are, however, in the midst of a migrant crisis, and half the country suspects that Democrats—with an unofficial open border policy—want them for their votes. The very concept of citizenship, by definition, discriminates by national origin. New York City Council recently gave close to a million noncitizens the right to vote in local elections. The law was struck down in court under current law. Under Prop. 1, it would become part of our state Constitution.

Prop. 1’s vision of the state as the creator, implementer, protector, and promoter of a hierarchy of citizen categories is a feudal vision updated with sectarian grievance sensibilities.

New Yorkers who are lukewarm about the First Amendment seem increasingly comfortable with the State as the father who regulates their lives but also restricts the speech of those whom they dislike, and punishes them with school and job loss. It is not a coincidence that the key demographic of Democratic Party supporters are unmarried women, who have embraced the role of the state as a substitute parent and husband. The other demographic are illegal immigrants. Prop. 1, therefore, is the tool with which New York’s political ruling class shores up its in-group allies’ support in an election year by granting them favored status. But Prop. 1 is intended to lock this Democratic Party social program in New York’s Constitution.

I prefer a nation of laws, not men. I prefer true equality to grievance hierarchy. I prefer a nation of free citizens to a third-world sectarian nightmare. So I will vote “no” on Prop. 1.