Guaranteeing the right to abortion in Maryland

The Maryland General Assembly Thursday gave final legislative approval to the creation of a referendum asking voters whether to codify a right to abortion into the state constitution. This issue now heads to voters in the 2024 election.

We support both the referendum initiative and also the amendment of the state constitution for this purpose.

The legislation would allow the voters of Maryland the chance to guarantee to “every person … the fundamental right to reproductive freedom,” including the ability to “prevent, continue or end one’s own pregnancy” without interference from the state, “unless justified by a compelling state interest achieved by the least restrictive means.”

A poll conducted by The Baltimore Sun and the University of Baltimore last year showed that over 70% of Maryland voters – a supermajority – favor amending the state constitution to include this.

The referendum will not significantly change existing Maryland law. A law codified in a 1992 referendum already allows abortions to be performed here until a fetus reaches viability. After that, abortions can be performed only if there is a fetal anomaly or to protect the health of the mother.

The 1992 referendum thus guaranteed that Marylanders would have access to abortion regardless of a shift in the U.S. Supreme Court, such as that expressed in Dobbs v. Jackson Women’s Health Organization, where the court struck down Roe v. Wade. By codifying the rights to prevent, continue or end one’s own pregnancy into the state constitution, we can provide even stronger legal protection to patients and health care workers.

Access to health care – particularly reproductive health services such as abortion – is a basic human right, implicating profound issues of privacy, women’s rights and maternal health. This right should be guaranteed in our state constitution, along with the other basic rights already guaranteed there, such as equality because of sex and religion.

The Guttmacher Institute, a health care research and policy organization dedicated to advancing public policy related to reproductive health and rights, has indicated that nearly a quarter of all American women will need an abortion, yet over half of those women live in states that now have draconian anti-abortion laws. Many of the existing prohibitions against abortion in other states were pre-Roe laws or trigger bans that went into effect automatically after the Supreme Court’s decision in Dobbs.

In other states, legislatures and governors reacted to the Dobbs decision by implementing new anti-abortion laws, policies and programs. Many of the newly activated or recently triggered anti-abortion laws criminalize health care decisions that were legal just last year, and make no or inadequate exceptions even for rape, incest, lack of fetal viability or to preserve the health of the mother.

In some states where such laws have been triggered or newly enacted, a majority of the voters oppose the restrictions.

We agree with the American Medical Association’s House of Delegates that clinical assessments such as viability of the pregnancy and safety of the pregnant person are determinations to be made by health care professionals with their patients. We oppose the imposition of criminal and civil penalties and other retaliatory efforts against patients and health care workers for receiving, assisting in or providing reproductive health services.

By enshrining these rights into our state constitution, we can ensure that regardless of how the political winds blow, Maryland will continue to be a haven for basic women’s health care rights.

Editorial Advisory Board members Arthur F. Fergenson, Susan F. Martielli and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.