Gettin’ It Dunn: Christopher Dunn Leaves the NYCLU After Three Decades
Civil Liberties Union
New York is one of ten states where voters will be able to strengthen abortion rights at the upcoming general election in November. The abortion ballot proposals across the country seek to enshrine in state law the federal constitutional protections for abortion that the Supreme Court erased in June 2022 with its decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), with the proposals having the additional strategic goal of increasing turnout of voters likely to oppose Donald Trump’s re-election bid.
As in other states, the New York proposal to amend its constitution spawned challenges by abortion opponents and supporters. The New York challenges targeted two separate stages of the amendment process: the Legislature’s adoption of the proposed abortion amendment and then, in a second round of litigation, the preparation of ballot language for the proposed amendment. These disputes were not resolved until late August – just weeks before ballots had to be printed — and illustrate the perils of the constitutional amendment process in the cauldron of abortion politics.
The New York Constitution long has had a section that guarantees equal protection and protects against various forms of discrimination. Specifically, Section 11 of Article I provides,
No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.
For many years advocates had pushed to bolster abortion rights in the state constitution. Those efforts came to fruition in June 2022 when the Legislature convened in a special session to amend Section 11 in the immediate aftermath of the Supreme Court’s decision in Dobbs. And though Dobbs dealt expressly with abortion rights, advocates recognized the moment as an important opportunity to bolster other rights.
The Legislature does not have the power to amend the New York Constitution; rather, Article XIX of the Constitution provides that the Legislature can propose an amendment through a resolution adopted in consecutive legislative sessions and then approved by the voters. Pursuant to this process, the Legislature in June 2022 considered a resolution – known as the Equal Rights Amendment or the ERA — that would amend Section 11 to add abortion and other protections. In the following session – in January 2023 – the new Legislature adopted the resolution, thereby clearing it for placement on the November 2024 ballot. As adopted, the resolution would amend the existing protections Section 11 as follows, with the new language underlined and deleted language struck through:
No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed, o̶r̶ religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.
While good reasons explain the terms and structure of the proposed revisions, the absence of the word “abortion” would become an issue. Likewise, the speed with which the Legislature first adopted the ERA after Dobbs loomed large in litigation that would ensue.
Abortion opponents filed their challenge to New York’s proposed Equal Rights Amendment at the end of October 2023, seeking to capitalize on a procedural requirement in Article XIX, the constitutional provision governing the amendment process. In their challenge, they focused on the speed with which the Legislature had passed the initial ERA resolution in the special session after Dobbs.
While the heart of Article XIX is its requirements that the Legislature agree to an amendment in two consecutive sessions and that the voters approve the amendment, the article also identifies a role for the Attorney General. Specifically, it provides that a proposed amendment “shall be referred to the attorney-general whose duty it shall be within twenty days thereafter to render an opinion in writing to the senate and assembly as to the effect of such amendment or amendments upon other provisions of the constitution.” Article XIX further spells out the Legislature “[u]pon receiving such opinion.” Finally, it states that “[n]either the failure of the attorney-general to render an opinion concerning such a proposed amendment nor his or her failure to do so timely shall affect th[e] validity of such proposed amendment or legislative action thereon.”
Working from the Republican playbook that successfully upended the New York Legislature’s congressional redistricting map in 2022, abortion opponents filed their procedural challenge to the ERA in a small upstate locale – in this instance, Livingston County — and predictably drew a favorable judge. And they presented to that judge a simple claim: The ERA was invalid because the Legislature had first adopted it without having waited twenty days after submission of the amendment to the Attorney General for review. It was undisputed that the Legislature proceeded well before the 20-day period had run.
Nonetheless, this challenge faced significant substantive and procedural hurdles – including about what the oblique text of Article XIX actually meant, what remedies might be available for a procedural violation, the long delay in bringing the case, and the standing of the challengers — but the judge swept them all aside. In a May 7, 2024 decision, he declared the ERA “null and void” and ordered that it “shall be removed from the ballot for the general election of November 5, 2024.” Byrnes v. Senate of the State of New York, 2024 WL 2006346 (Livingston County Supreme Court, May 7, 2024).
The Attorney General appealed, and the Fourth Department expedited briefing and held argument on June 17, at which it was apparent the challengers no longer were in Livingston County. Sure enough, the following the day the panel of five Appellate Division judges unanimously reversed in a three-page decision. They did so without having to reach the merits, concluding that the challengers had waited too long – they had not filed suit until October 2023 — and should have brought an Article 78 challenge within four months of the Legislature’s final adoption of the ERA in January 2023. Byrnes v. Senate of the State of New York, 228 A.D.3d 1363 (App. Div. 4th Dept., June 18, 2024).
This procedural ruling kneecapped what undoubtedly had been the abortion opponents’ plan to force the Court of Appeals to rule on the validity of the ERA. On July 11 the Court rejected their effort to invoke its mandatory jurisdiction over constitutional claims, stating the appeal presented no substantial constitutional question. And on July 31 the Court denied the challengers’ request that it accept their appeal as a discretionary matter.
With that, the ERA was revived. But the fight was not over.
While the Court of Appeals was disposing of the frontal challenge to the validity of the ERA’s adoption by the Legislature, the New York State Board of Elections was moving forward with its work to prepare the constitutional amendment for the ballot. As a first step, the Board was required to publicly post by July 5 a description of the amendment in “plain language” for public comment, after which the Board would finalize the description for the ballot. This plain-language requirement arose from a new statute that New York enacted just last year that seeks to help voters better understand the impact of proposed constitutional amendments. In relevant part, the Plain Language Law, now codified at Election Law § 4-108, requires “a summary of the text ballot proposal of up to thirty words, written in plain language, that describes the change in policy to be adopted and not the legal mechanism.”
Divided between Democrats and Republicans, the Board of Elections predictably deadlocked over the plain-language summary, with the Republicans refusing to include “abortion.” Staring a midnight deadline, the Democrats yielded late on July 5 and agreed to the following description:
This proposal amends Article 1, Section 11 of the New York State Constitution. It prohibits any person, business, or organization, as well as state and local governments from discrimination pursuant to law. The current protections in the Constitution cover race, color, creed, and religion. The proposal will add ethnicity, national origin, age, disability, and sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.
In response to this proposal the Board received around 1500 public comments – many of them objecting to the Board’s failure to expressly include “abortion” in its summary. Unsurprisingly, these comments did not move the Republicans, and the Board remained deadlocked. The Democrats again yielded, and the Board adopted its original proposal as its final one on July 29.
Four days later two voters sued in Albany County contending the Board’s summary violated the Plain Language Law because, among other claims, the summary did not mention “abortion” and therefore was misleading in the sense it did not, as the statute required, “describe[] the change in policy to adopted.” Following expedited briefing and argument, Albany Supreme Court Justice David Weinstein issued a 33-page decision on August 23 in which he made some modifications to the proposal but did not add “abortion.” Fernandez v. New York State Board of Elections, Index No. 907584-24 (Albany Supreme Court., Aug. 23, 2024). While he recognized the Legislature intended the ERA to encompass abortion, he concluded that his limited scope of review over the Board of Election’s language precluded him from making that particular modification. Following his decision, this is the summary that now will be used:
This proposal amends Article 1, Section 11 of the New York State Constitution. Section 11 now protects against unequal treatment based on race, color, creed, and religion. The proposal will amend the act to also protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy. The amendment allows laws to prevent or undo past discrimination.
Assuming New York’s Equal Rights Amendment passes in November, abortion opponents undoubtedly will resume their challenges, as they likely will to similar abortion reforms that pass in the nine other states that have them on their ballots in November: Maryland, Florida, Missouri, South Dakota, Nebraska, Colorado, Montana, Arizona, and Nevada. Not only do these types of reforms generate enormous political conflict, they present significant procedural challenges for advocates because of the often-detailed provisions governing the amendment process. While it may be impossible to insulate these measures from attack, the New York experience provides important lessons for future efforts to strengthen civil rights through constitutional amendment.
Chris Dunn is the legal director or the New York Civil Liberties Union. He can be reached at cdunn@nyclu.org.
This piece was originally published in New York Law Journal.