A final push to keep the so-called Equal Rights Amendment, known as Proposition 1, off the New York ballots in November will be put to the test during an appeals court hearing Monday. 

The proposal, touted by Democrats as a means to reinforce abortion access in the wake of the overturning of Roe v. Wade, has faced pushback from Republicans who view the broad set of protections as a constitutional Trojan horse.

The legal challenge, however, hinges on the claim that the Democrats violated New York’s constitutionally mandated process when they fast tracked the amendment by taking it to a vote before the attorney general provided an opinion on the proposal back in July of 2022. 

The Independent Women’s Forum, a non-profit organization dedicated to protecting women’s rights, is championing the final appeal request, which will be heard by the court next week. If denied, the legal battle to keep the proposal off the ballot is over — Proposition 1 will be voted on by the public in November. 

This latest effort to thwart the so-called Equal Rights Amendment follows months of litigation. The proposal was initially knocked off of the ballot by a New York Supreme Court justice, Daniel Doyle, in May when he, siding with a Republican assemblywoman, Marjorie Byrnes, argued that “the constitution is the supreme will of the people. Its amendment should be undertaken by strict adherence to the will of the people.”

“Once again the legislature and Governor Hochul are found to have violated the state constitution,” said the state GOP chairman, Ed Cox, celebrating the removal of Prop 1 from the ballot. Governor Hochul denounced the ruling and pledged not to let the proposal “be thrown off track by one extremist judge.”

A month later, Judge Doyle’s decision was overturned by a panel of mid-level appellate judges on the grounds that the GOP had filed the legal challenge late and missed the four month deadline, a claim which Republicans deny and will be placed at the center of the appeal. 

An initial effort to take an “as of right” appeal against the ruling, however, was shot down by the Court of Appeals just a few weeks ago when the court declined to take the case “upon the ground that no substantial constitutional question is directly involved.” 

In a recent New York Sun Op-Ed, one senior legal advisor to the Independent Women’s Law Center who is part of the appeal effort, Beth Parlato, railed against the appeals court’s ruling, arguing plainly: “this case centers around an unconstitutional process.” 

“We’re not done fighting. The Independent Women’s Forum is making a final request to New York’s highest court to hear the appeal because this is madness,” she wrote. 

The amendment, which bars discrimination over “gender identity” and “pregnancy outcomes,” is being pushed by the Democrats as a necessary reinforcement to abortion access after Roe v. Wade was struck down by the Supreme Court. 

“Proposal 1 will keep New Yorkers — not politicians — in charge of our personal decisions and will enshrine equal rights into our state constitution,” the New York Civil Liberties Union argues. 

Republicans, however, claim that the vaguely worded proposal offers a constitutional “pandora’s box.” 

“The amendment is filled with vague and undefined terms that would be up to the courts to construe,” a former New York Congressman, John Faso, tells the Sun. 

“What do a lot of these terms mean? Frankly it’s anyone’s guess,” he adds.  

Such terms include “gender identity,” “gender expression,” “ethnicity,” “national origin,” “age,” among others.   

Providing constitutional rights on the basis of age and gender expression, Mr. Faso warns, could lead to laws being passed that infringe on parental rights, particularly as it relates to kids undergoing transgender treatments without the permission of their parents.

It could also provide biological males a constitutional right to participate in women’s high school and college sports. 

Given the amendment’s reference to ethnicity and national origin, the proposal could be construed to provide public benefits to illegal non-citizens, Mr. Faso suggests. 

Lastly, Republicans worry that the amendment could create a new constitutional right to “reverse discrimination programs” that could be used to create a constitutional justification for paying reparations for slavery, or creating quotas for admissions to specialized high schools in New York City. 

Further, the claim made by Democrats that the amendment is meant to address threats to abortion access in New York, Mr. Faso says, is “categorically false.” Legislation to protect abortion has been in place in New York since 1970. 

“Oh, and by the way,” he adds, “the word abortion doesn’t even appear in the constitutional amendment.”

In the case that Monday’s appeal is unsuccessful and the amendment doesn’t get thrown off the ballot before November, Mr. Faso and others opposed to the bill plan to launch a “grassroots effort” to make sure that New Yorkers actually know

“It’s really grossly out of touch with where the vast majority of New Yorkers are, regardless of their party,” he says. “But oftentimes, with these ballot measures, a significant majority of the voters don’t even understand what’s being presented to them.”

Even if their appeal is denied, the Independent Women’s Forum  “will be staying on the case” to challenge ongoing efforts by the Democrats to change the language of the amendment, Ms. Parlato says.

They are gunning to include specific mention of LGBTQ and abortion — “to drive people to the polls” — before November. 

“They can’t change it,” says Ms. Parlato. “But they are. So the next step will be to fight it in court.”