While hundreds of laws are passed in Albany every year, amendments to the New York State Constitution are rare. Yet, that is just what was proposed by New York legislators last week in an “extraordinary session,” and its results could have significantly weakened religious freedom in the state.

In response to the United States Supreme Court overturning Roe v. Wade, which gave states more leeway to restrict abortions, New York legislators decided to do the opposite, and enshrine abortion rights, as well as that of various gender roles and identities, in its Constitution.

More clearly, the New York State Constitution had an anti-discriminatory policy that noted race, color, creed, and religion. Recently, there had been a push for an “Equal Rights Amendment” that would require specific additional equal rights for each group notated. Some included race, color, LGBTQIA+, pregnancy, pregnancy outcomes, transgender, etc. However, religion and creed were deliberately left out of the mix.

So, as it were, there was not only going to be a new level created for each group, but the most vital of them all – religion and creed – would be omitted. Religion would then have fallen under a protected group, instead of falling under the equal rights category. A group that is in a protected class would ensure that it could not be discriminated against.

In Jewish custom, there are instances when an abortion is the only viable option. “When halachah states that an abortion must be done, we would advocate for the right to the abortion,” stated Rabbi Yeruchim Silber, Agudah’s Director of New York Government Relations. “We do not believe in an outright ban.” These reasons are opposite of the most common reasons – economic, timing, or partner-related concerns – according to a 2004 Guttmacher Institute study where 92% of cases where a woman chose an abortion used these excuses. Rabbi Avi Shafran, in his July 5 article, “Why an Orthodox Jewish organization welcomed the end of Roe v. Wade,” for the Jewish Telegraphic Agency, offered this study as well as a thought: “While such motivations may be endorsed by many Americans as worthy, legitimate reasons to opt for abortion, Judaism rejects them as entirely inappropriate factors to be weighted in a decision of such gravity as the decision to end a developing life.”

“Even though abortion is allowed by law in New York State, a constitutional amendment is much stronger,” explained Rabbi Silber to the Queens Jewish Link. “Currently, the Constitution gives protected class status to race, color, creed, and religion. Section 20 of the Constitution that was proposed offers added categories of protected classes. At the same time, creed and religion were not included.”

To combat these troubling choices of words, Agudath Israel, working with the Jewish Community Relations Council of New York (JCRC), the Orthodox Union, and the New York State Catholic Conference, began an intense lobbying effort to protect religious rights. Their outreach included conversations with the Governor’s Office, counsel to the Senate Majority, and several senators and assemblymembers, where our deep concerns were conveyed. After much deliberation, the Senate agreed to a modified version of the bill, which added religious protections to the amendment and later passed in the Assembly.

“Assembly Member Daniel Rosenthal spoke for religion as a protected category in his conference,” added Silber. “Without this category, healthcare providers could be forced to provide an abortion despite it being against their faith.”

“We protected religion from becoming a second tier, from becoming a protected class,” expressed Rosenthal. “Had we not accomplished this, there may very well have been serious ramifications for religious institutions throughout the State of New York.” Rosenthal was joined by his colleague Assembly Member Simcha Eichenstein in working diligently with their Assembly colleagues to amend the language.

“While the final bill did not address all of our concerns, we are relieved that creed and religion remain protected, as we could not accept having a second-class protection for religion,” concluded Silber. “We thank Governor Hochul as well as members of the Senate and Assembly for listening to those concerns.”

“In this post-Roe world, citizens in each state are charged with, through their elected officials, crafting laws to govern abortion,” added Rabbi Shafran. “Our goal as Jews should be to promote laws that treat developing life with reverence, even while accommodating the protection of women’s lives according to our religious concerns.”

In New York, an amendment is a three-step process, decided by both legislative houses and then in a public ballot referendum measure, available to all eligible voters. So, it is not done yet; we have only reached step one.

 By Sergey Kadinsky
and Shabsie Saphirstein

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