Here's why an abortion rights amendment in Maryland would matter

Even if the Supreme Court takes steps to weaken or overturn Roe v. Wade, as many abortion rights activists are fearful it will do if Judge Brett M. Kavanaugh (or, likely, just about any other appointee of President Donald Trump) is confirmed, abortion will remain legal in Maryland. That’s thanks to a 1991 law and subsequent vote by the electorate in 1992 that codifies the basic rights granted by Roe v. Wade in Maryland statute. But with confirmation hearings for Mr. Kavanaugh approaching — and various cases challenging Roe to one degree or another wending their way through federal courts — House Speaker Michael E. Busch is arguing that Maryland law isn’t strong enough and that a state constitutional amendment is needed. We agree.

A generation ago, codifying abortion rights just in case the Supreme Court put them at risk was a controversial proposition in Maryland. The filibuster that proceeded a vote on the 1991 bill tore the state Senate apart — Senate President Thomas V. Mike Miller still talks about it 27 years later — and the ensuing referendum campaign was a brutal fight between supporters and opponents of abortion rights. Now, though, the early opposition to Mr. Busch’s idea has been tepid. Gov. Larry Hogan, a Republican who personally opposes abortion but who pledged during his first campaign not to seek to change Maryland’s laws on the matter, says he thinks a public vote on abortion is “a great idea.” (His Democratic opponent, Ben Jealous, quickly endorsed such an amendment.) Even the Maryland Catholic Conference, which would likely be a key player in opposing an amendment, offered no stronger condemnation than branding the effort a waste of time and a distraction from more pressing issues.

And actually, that might be the strongest argument against it. Given the solid majorities Democrats hold in the House of Delegates and state Senate, and the decline in the number of socially conservative Democrats since 1991, it’s virtually inconceivable that any meaningful restrictions on abortion could pass the General Assembly, no matter what the Supreme Court does. If Republicans pick up seats in the Senate, as they have good prospects for doing this year, it might make the three-fifths majority needed to send an abortion amendment to the ballot hard to achieve, but mustering a majority of anti-abortion votes in both chambers of the legislature is another matter entirely. An abortion amendment would be a divisive fight in the legislature and would spark at least an attempted filibuster. So why bother?

There are a couple of good reasons. First, if Roe is overturned or substantially weakened, abortion debates in the General Assembly would be an annual affair. The virtue of the 1991-1992 abortion debate in Maryland is that it took the issue largely off the table for a generation. There was not much point in seeking to restrict abortion with the combination of Roe in place and the results of the 1992 referendum in mind. A Supreme Court ruling restricting abortion would change that calculus.

Second, action by states like Maryland to affirm their support for the basic structure of Roe might well sway the high court not to overturn it in the first place. Massachusetts just repealed a long-standing ban on abortions that had remained officially on the books post-Roe; the more states that take action like that the more reluctant the court may be to overturn a 45-year-old precedent. There can be little question that state-level action (including in Maryland) set the stage for the Supreme Court’s same-sex marriage ruling three years ago, and that was a case in which the majority recognized a constitutional right for the first time. In this instance, the task is merely to convince the justices that Roe is settled law.

Maryland’s last great debate about abortion rights came during the last time Roe’s constitutionality appeared at direct risk in the Supreme Court, thanks to the retirement of two justices who had been part of the Roe majority and their replacement by two nominees of Republican President George H.W. Bush. The landmark abortion case of that time, 1992’s Planned Parenthood v. Casey, upheld the basic findings of Roe. There’s no reason to assume a new and more conservative court would come to the same conclusion today. No one relishes having another fight over abortion in the General Assembly, but the time has come. We urge the legislature to act on Speaker Busch’s proposal and allow the people to once again make their views known.

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