The stakes of the current Presidential contest are extremely high. Former President Donald Trump has made clear his intention to replace longtime civil servants with servile hacks, immiserate undocumented immigrants, reverse efforts to combat the climate emergency, abandon Ukraine to the untender mercies of Vladimir Putin, and use the organs of government to persecute his perceived political enemies. There is reason to think that he will be more effective in achieving these goals than in his prior Presidential term, having learned the ways of Washington and purged any responsible Republicans willing to stand in his way. Understandably, when Americans go to the polls this coming fall, nearly all eyes will be on the handful of swing states that have been decisive in the last two Presidential elections. Yet Americans will not only vote for (electors for) President, but also for state legislators, governors, and members of Congress who will have an important role in standing up to Trumpian authoritarianism or perhaps even blocking it: in the event that Vice President Harris wins the election but faces a revolt from the Trumpified Congress akin to what we saw in 2020 even after the Capitol insurrection, a Democratic majority could be needed to ensure that her victory is certified. Thus, Senate and House elections in non-swing states may be critical to the outcome of the Presidential race, as well as important in their own right. Meanwhile, those state elections also bear watching. In most states, new legislators are sworn in too late to play a role in sending slates of Presidential electors, but of course state legislatures and governors play a key role in the regulation of nearly everything. Since the Supreme Court eliminated the federal constitutional right to abortion in 2022, the differences have been stark. In the reddest states, abortion is illegal, and even healthcare for people carrying wanted pregnancies has been jeopardized by medical professionals’ warranted fear that they could be caught up in the dragnet of anti-abortion law enforcement. By contrast, abortion remains legal in blue states. In blue New York State, where I live and work, since even before the Supreme Court’s 1973 decision in Roe v. Wade, a statute has made abortion of a viable pregnancy legal up to 24 weeks of pregnancy, and later still with a medical justification. In the November election, voters in New York State will have an opportunity to amend the state’s constitution in a way that supporters of the amendment say will protect the abortion right. As I explain below, however, although I support the measure—known as Proposal 1 or the state Equal Rights Amendment (ERA)—it does not in so many words protect abortion rights. Moreover, Proposal 1 will not keep abortion legal in the Empire State in the face of federal anti-abortion policies.

Proposal 1

An amendment to the state constitution in New York becomes effective after a majority of each house of the state legislature enacts the proposed amendment in two successive legislative sessions and the voters then approve it by referendum. The New York legislature twice voted for Proposal 1. A state court judge blocked it from appearing on the November ballot on procedural grounds, but the state’s high court reversed that decision. Accordingly, if a majority of voters cast a “yes” vote on Proposal 1, it will become effective. The New York State Constitution’s equal protection clause currently forbids discrimination on the basis of “race, color, creed or religion.” Notably, whereas the federal Constitution’s equal protection clause protects only against government infringement, the New York version already limits discriminatory actions by any “person or by any firm, corporation, or institution.” Proposal 1 would expand the clause’s coverage beyond the existing categories to also forbid discrimination based on ethnicity, national origin, age, disability, or “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” Although various state and local laws already forbid discrimination based on most of those characteristics, they do not do so invariably, and enshrining the principles in the state constitution will hedge against backsliding. Accordingly, progressives in the state (including me) support the measure. Notably, however, Proposal 1 is at least a superficially uncertain basis for resting a state constitutional right to abortion. Given the text’s prohibition of discrimination based on “pregnancy outcomes,” it is relatively clear that, say, a public school could not refuse to hire a teacher on the ground that she had an abortion. But Proposal 1 does not in so many words guarantee the liberty to have an abortion in the first place. If the state legislature were to repeal the statutory protection for abortion and replace it with an abortion ban, it could at least be argued that no one was facing discrimination or a denial of equal protection based on any of the proscribed grounds, as everyone would equally be forbidden from having an abortion. Nonetheless, Proposal 1 is best read as in fact protecting a substantive right to abortion. For decades, feminists have argued that denial of the right to abortion is unconstitutional sex discrimination. For example, in a law review article published just as she assumed her seat on the Supreme Court, Justice Ruth Bader Ginsburg described (and effectively endorsed) the view “that disadvantageous treatment of a woman because of her pregnancy and reproductive choice is a paradigm case of discrimination on the basis of sex.” If the federal equal protection clause—which does not expressly mention sex or any other form of forbidden discrimination—is a proper home for an abortion right, then certainly an amended New York State equal protection clause—one expressly forbidding discrimination based on sex, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy—provides a sound basis for the state constitutional right to abortion.

The Federal Threat

Unfortunately, enshrining a right to abortion in the state constitution will not guarantee the continued legality of abortion in New York State. If Congress passes a federal abortion ban, under the federal Supremacy Clause, that will pre-empt state protection for abortion, regardless of what any state statute or state constitutional provision says. To be sure, lately former President Trump has said he does not favor a federal abortion ban. But that is cold comfort. Trump first won the White House in 2016 by promising to appoint Justices who would overturn Roe. He has maintained support from religious conservatives by pointing to the fact that he kept that promise. Having read polls that reveal opposition to an abortion ban, Trump is now saying the issue should be left to individual states. However, should he regain the Presidency, there is no reason to think he would not change course again if doing so were useful to some other goal. As a second-term President, Trump would not be worried about losing support for the subsequent election, and given Trump’s narcissism, he would not care about any long-term damage to the electoral chances of any other Republicans. Indeed, Trump recently told the religious Christians attending the Turning Point Action Believers’ Summit that they should turn out to support him in 2024 and that thereafter they will not “have to vote anymore.” Even without new legislation, a Trump Presidency could severely undercut abortion rights in states like New York. Earlier this year, the Supreme Court dismissed a challenge to the FDA approval of the abortion pill mifepristone on the ground that the plaintiffs lacked standing. Politicians and the media have inaccurately portrayed the ruling as settling the legality of mifepristone, but the FDA under the leadership of a Trump-appointed ideologue could itself revoke the drug’s approval. Or consider another threat to abortion access through purely executive action. In the initial mifepristone ruling, Trump appointee Judge Matthew Kacsmaryk invoked the 1873 Comstock Act as a basis for barring distribution of abortion pills via mail or courier. Some on the right have suggested that a second Trump administration could enforce the Act to shut down distribution of medicines used for what has become the most common type of abortion. In blue states like New York, patients could still obtain abortion pills in person, but hospital and clinic personnel would risk criminal prosecution by ordering their supply. * * * The New York legislators who placed Proposal 1 on the ballot cannot be faulted for failing to protect abortion rights against federal onslaught. Given the Supremacy Clause, state law simply cannot stand in the way of a determined federal government. To protect our civil rights and liberties, we need legal guarantees but also elected officials who value those rights and liberties. In the end, the impact of Proposal 1 will turn on the Presidential and Congressional elections at least as much as it will depend on approval by the voters of New York State.