BILL NUMBER: S51002

SPONSOR: STEWART-COUSINS
 
TITLE OF BILL:

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment
to section 11 of article 1 of the constitution, in relation to equal
protection

 
PURPOSE:

New Yorkers deserve a constitution that recognizes that every person is
entitled to equal rights and justice under the law regardless of who
they are, whom they love, or what their families look like.  Because the
New York Constitution's Bill of Rights does not currently contain a
comprehensive equal rights provision, a constitutional amendment is
necessary to realize the promise of legal equality and justice for all
New Yorkers.

Our modern vision of equality demands comprehensive equal protection.
Indeed, many individuals are themselves members of numerous communities,
identities, and protected classes, and true equality and justice demand
protections that recognize the interconnected nature of discrimination.
              

The amendment is our opportunity to ensure that New York's constitu-
tional language reflects that commitment to full equality and justice
before the law - by providing legal protections that go above and beyond
the protections of the federal Constitution.

The purpose of this amendment is to ensure that our state constitution
extends to all New Yorkers the equality right to be free from discrimi-
nation, and in particular those who have faced severe and pervasive
injustice. It does so by expanding the list of classes protected by the
New York Constitution in recognition of the need for comprehensive and
intersectional equality under the law.

 
SUMMARY OF PROVISION:

This section makes clear that no person shall be subjected to discrimi-
nation on account of their race, color, ethnicity, national origin,
disability, creed, religion, or sex including sexual orientation, gender
identity, gender expression, pregnancy, pregnancy outcomes, reproductive
healthcare and reproductive autonomy.

The section applies to discrimination in any "civil rights," and the
courts have made clear that all governmental action is covered by arti-
cle 11's coverage. See generally Dorsey vs. Stuyvesant Corp., 299 N.Y.
512 (N.Y. 1949); 87 N.E.2d 541. And by extending coverage to all govern-
ment actions "pursuant to law," the amendment's coverage extends to any
action with force of law, including action by the executive or legisla-
tive branch, local governments, or any subdivision thereof.

Discrimination with respect to, for instance, disability or pregnancy
would include the failure to provide reasonable accommodations. This
amendment is intended to promote equality of opportunity for people with
disabilities both by banning disability discrimination and by affording
enforceable legal rights to people with disabilities. The term "disabil-
ity" means a physical, mental or medical impairment resulting from
anatomical, physiological, genetic or neurological conditions which
prevents the exercise of a normal bodily function or is demonstrable by
medically accepted clinical or laboratory diagnostic techniques or a
record of such an impairment or a condition regarded by others as such
an impairment. No person because of disability should be subjected to
any discrimination, including but not limited to actions which prevent
them exercising their right to live in the community, to lead an inde-
pendent life, and to be free from institutionalization. Discrimination
with respect to, for instance, disability or pregnancy would include the
failure to provide reasonable accommodations.

Further, by including a prohibition on sex discrimination, this amend-
ment inherently prohibits discrimination on the basis of pregnancy,
pregnancy outcomes, and reproductive healthcare and reproductive auton-
omy. The amendment's explicit clarification however is critical. While
federal courts, Congress, and the EEOC have recognized that sex discrim-
ination includes discrimination based on pregnancy (including abortion),
a lack of clarity on whether pregnancy discrimination transgresses the
federal constitution still exists. See e.g. Geduldig v. Aiello, 417 U.S.
484 (1974). This translates into New York law as well. For example, New
York State courts have failed to recognize the New York State Patient
Bill of Rights as applying to pregnant patients, as well as constitu-
tional and common law protections to privacy, bodily integrity, and
medical decision-making throughout pregnancy. See, e.g., Dray v. Staten
Island University Hospital, Order, Genine Edwards, Supreme Court of the
State of New York, Kings County, October 4, 2019. And increasingly
across the country in virtually every state, including New York, women
face criminal and civil consequences in relationship to their pregnan-
cies and pregnancy outcomes, including abortions, miscarriages, still-
births, or other adverse outcomes. This is particularly important for
women at the intersection of multiple marginalized identities, namely
Black women and women of color, who are not only wrongly seen as less
deserving of or fit for motherhood but further experience dispropor-
tionate discrimination in our criminal law system and health disparities
likely to lead to adverse outcomes that put them under scrutiny and
surveillance.

It is not possible to achieve sex equality while prosecutors and state
agencies single out pregnant people for punishment because of their
pregnancy, the outcomes of their pregnancies and their reproductive
healthcare decision making. And because the right to abortion is central
to a pregnant person's equality, this amendment clarifies that any
action that discriminates against a person based on their pregnancy,
pregnancy outcome, reproductive healthcare, or reproductive autonomy is
a sex-based classification. This is critical given the Supreme Court's
recission of the constitutional right to abortion care. As one protected
pregnancy outcome, abortion care is a fundamental right that is integral
to a person's reproductive autonomy. Indeed, reproductive autonomy is
the power to decide and control one's own contraceptive use, pregnancy,
and childbearing. For example, people with reproductive autonomy can
control whether and when to become pregnant, whether and when to use
contraception, which method to use, whether and when to continue a preg-
nancy, and decisions in childbirth. And this is consistent with our
state's long history of protecting bodily autonomy long enshrined in our
common law, as established in 1914 with Justice Cardozo's famous artic-
ulation of the doctrine in Schloendorff v. Society of New York Hospital,
211 N.Y. 125, 129-130 (1914) that every human being of adult years and
sound mind has a right to determine what shall be done with his own
body. The State shall further not use its police power or power of the
purse to burden, limit, or favor any type of reproductive decision
making at the expense of other outcomes, and, as consistent with section
17 of this article, shall guarantee rights and access to reproductive
healthcare services.

Further, this amendment makes explicit that people are protected on the
basis of their sexual orientation, gender identity, and gender
expression. The Supreme Court further telegraphed the future erosion of
these rights in the Dobbs v. Jackson Women's Health Organization deci-
sion, making it critical to explicitly name these protections in our
state's equal protection provision.

Freedom of belief, expression and religious liberty are fundamental
components of America's democracy. This framework is intended to comple-
ment, and be analyzed consistently with, our New York State Consti-
tution's existing protections for speech, belief, and religious liberty
and practice under Section three of our state Constitution.

This section further protects the validity of efforts to prevent or
dismantle structural forms of inequality and discrimination on the basis
of a protected characteristic. It specifies that the legislature retains
the power to enhance the constitution's equal protection guarantee with
appropriate legislation designed to achieve the full equal rights of any
class listed in this section.

 
EXISTING LAW:

 
JUSTIFICATION:

The concept of equality under the law is a foundational principle of our
democracy, but our understanding of which groups deserve and receive
legal protections has changed dramatically over our history.  The New
York Constitution was last amended to address this topic in 1938 when
section 11 was first adopted, prior to the civil rights movement, the
movement for gender justice, the LGBTQ movement, the disability rights
movement and the many developments in anti-discrimination law. As a
beacon of our future, New York's Constitution must reflect our broad
conception of justice, equal rights and protections against discrimi-
nation.

 
FISCAL IMPLICATIONS:

To Be Determined