Maryland lawmakers are expected to consider a number of abortion-related bills in January when the 2023 General Assembly session begins.
The issue is top of mind for legislators in the wake of June’s Supreme Court decision reversing the landmark 1973 Roe v. Wade decision that had established a right to abortion. Democratic lawmakers and advocates said a package of bills will focus on addressing legal issues that may arise from the Dobbs v. Jackson Women’s Health Organization ruling as well as signaling the state’s unwavering stance.
“We made progress last year, but we need to do these things to protect providers and patients,” said Del. Ariana Kelly, D-Montgomery and vice chair of the House Health and Government Operations Committee. “We didn’t ask for this. The Supreme Court did this to us, so we need to do these things.”
Democrats, who control the House and Senate, appear to be coalescing around a package of four proposals.
Topping the likely package of bills is the return of a proposed constitutional amendment sponsored by House Speaker Adrienne Jones. The bill, which died in the Senate last year, enshrines the state’s existing law that provides for a right to abortion in the Maryland Constitution.
“What the Dobbs decision did was take away protections of the constitutional level,” said Kelly. “So, obviously, we need to put them in place at the state level. We have control over that. We can’t control the federal government but we can make sure Marylanders have constitutional protections at the state level.”
Jones will reintroduce the bill in the coming session. A spokesman for the speaker said the chamber’s top Democrat believes the bill’s fate will be different than in 2022.
“I think that what we learned was people were really taking for granted that sense of protection they had with Roe v. Wade, and we lost Roe v. Wade,” said Kelly. “So that protection, between last session and this session, is gone. We have the ability at the state level to give that back to Marylanders.”
Last year, the House passed the constitutional amendment bill by a wide margin on a nearly straight party-line vote. The amendment died when Senate President Bill Ferguson said his chamber would hold a floor vote.
A spokesman for Ferguson declined to say if the Senate leader gave any assurances of a floor vote on the constitutional amendment in the Senate.
The legislation met a similar fate in 2019. Then-Speaker Michael Busch withdrew it after Senate President Thomas V. Mike Miller Jr. blocked the bill.
Miller and others said a 1991 Maryland law codifying the Roe decision in state law made an amendment unnecessary.
The elimination of Roe left in its place a patchwork of abortions laws running the gamut from bans, limitations and full guarantees to the procedure.
The Dobbs decision also allowed states to pass laws going forward to expand or restrict abortions. As of November, 14 states banned the procedure. Another nine have bans on hold.
Maryland is one of 16 states and the District of Columbia that have laws protecting abortion. Maryland’s 1991 law protects the right to an abortion up to the time of fetal viability or later in the case of a risk to the health of the mother.
Given that protection, Republicans questioned the need for the amendment.
“The bottom line is I don’t think (Dobbs) made a bit of difference (this year), said Del. Jason Buckel, R-Allegany and the leader of the House Republican Caucus. “It certainly didn’t make a difference in the election and substantively, legally, it doesn’t make any difference. The abortion laws of Maryland are what they are. They have not been changed in many, many years and they are not likely to be changed in a restrictive way.”
Kelly and other Democrats say the constitutional amendment is more than merely symbolic. Passage — which would require voter approval in 2024 — would send a clear message regarding Maryland’s stance on abortion access policy.
“It’s more than symbolic,” said Kelly. “It has deep meaning.”
It would also, they say, protect abortion access from future challenges or from any who want to use the issue — especially funding — as a bargaining chip in the future.
For the last eight years, abortion in Maryland has been left relatively untouched by two-term Republican Gov. Larry Hogan.
Hogan has described himself as personally opposed to abortion. During his campaigns, he called abortion “settled law” in the state and vowed not to seek changes.
And while he has kept to that promise, Hogan did this year veto a bill expanding access. He has also blocked millions in funding earmarked to train health care providers to perform abortions.
The House and Senate will also likely consider a bill prohibiting law enforcement and prosecutors from assisting other states in prosecuting women who have an abortion.
The bill is expected to be a priority for leaders of the Senate Judicial Proceedings Committee.
Sen. Jeff Waldstreicher, D-Montgomery and vice chair of the Senate Judicial Proceedings Committee, said the bill offers protection to women who flee to Maryland after receiving a legal abortion in a state that later makes the procedure illegal. It would also protect women who come to Maryland seeking the procedure because it is illegal in their home state.
“In both cases, Maryland needs specific legislation to protect women from extradition to states where either an abortion or leaving the state for purposes of receiving an abortion is now illegal,” said Waldstreicher.
Currently, prosecutors in four jurisdictions — Baltimore, Montgomery and Prince George’s counties and Baltimore city — have announced they would not cooperate with other states that attempt to prosecute women who have an abortion.
Without a statewide law, however, other counties would be free to decide for themselves.
Other proposals likely to be included is one that would shield information about patients who have abortions and the health care providers who offer the procedure.
A fourth bill would guarantee access at state university health centers to contraception as well as to medication abortion — pills that can be taken to terminate a pregnancy up to 10 weeks after conception.
How much of the package passes, and in what form, is largely up to Democrats.
Last year, 41 of 42 Republicans in the House voted against the constitutional amendment. Del. Lauren Arikan,R-Baltimore and Harford Counties, was absent the day of the vote. One Democrat, Del. Dalya Attar, D-Baltimore, was the lone Democrat to oppose the amendment.
This term, the House Republican Caucus will seat 39 members, three fewer following the 2022 election. The Senate Republican Caucus shrank by two seats to 13.
Buckel held out little hope of any room for discussion or compromise with Democrats over the abortion issue.
“I pray for good faith down there, and some days I’m rewarded and a lot of the days I am not,” said Buckel, who noted the size and number of votes in the Democratic caucus, calling it “first-grade math.”
“We have 39 members,” he said. “Do I believe that there are 32 members of the Democratic caucus who would be willing to buck the pro-choice lobby and voices in leadership in the legislature who take an absolutist position? Do I think there’s 32 of them who would be willing to stand up and go on the record? Probably not. Probably not.”
In Maryland, Democratic voters outnumber Republicans by roughly a 2-1 margin. Among those voters, there is strong support for protecting abortion access.
“There are a lot of Democrats in the state, and Democrats are largely supportive of abortion access,” said Mileah Kromer, a Goucher College political science professor and director of the Goucher Poll.
Kromer, who has not conducted polling on the proposals headed to the legislature, said answers to questions about the issue this summer are largely consistent with past polls.
Sixty percent of Democrats said abortion should be legal under any circumstance in Maryland, according to a June Goucher Poll. That compares to 18% of Republicans who similarly responded.
Another 57% of Republicans and 28% of Democrats said the procedure should be legal under certain circumstances.
Just 18% of Republicans and 5% of Democrats favored banning abortions in Maryland.
“There’s just no reason to believe there would be any change,” said Kromer. “Marylanders have always been broadly supportive of abortion access.
In July, a Maryland law took effect that expanded who could perform abortions. The law allows nurse practitioners, nurse midwives and physician assistants with special training to perform the procedure.
The law also required allocating $3.5 million for the training.
Hogan vetoed the bill but the General Assembly overrode him. Since then, however, Hogan has refused to release the money.
Gov.-elect Wes Moore takes office in about a month. Legislative Democrats hope Moore reverses Hogan’s decision.
Moore earlier this year called on Hogan to release the money.
‘We are currently assessing and preparing executive actions the governor-elect will take to deliver immediate leadership on issues Marylanders face, including abortion access; and will do everything in our power to make Maryland a safe haven for abortion care,” said Carter Elliott, a Moore spokesman.