It appears to be a matter of when, not if, the U.S. Supreme Court will hand down a ruling that will overturn the constitutional rights of women as spelled out under Roe v. Wade. It was apparent when the court rejected intervening in a Texas law that bans most abortions by means of vigilante lawsuits, as well as in views key justices expressed during arguments in Dobbs v. Jackson Women’s Health Organization, a case that restricts abortions in Mississippi after 15 weeks. The court’s politically conservative majority is clearly interested in rolling back reproductive rights in a big way. Might Roe be overturned entirely and immediately? It is not beyond the pale despite the landmark decision’s near-half-century of existence, and all those reassurances spouted during the most recent confirmation hearings that precedents (and “super-precedents”) would be respected. Court observers expect a decision in Dobbs to be issued by late June.
Given this unfortunate circumstance and the likelihood of the religious right to immediately promulgate dozens, if not hundreds, of new laws and rules denying women the right to choose on a state-by-state, and perhaps even county-by-county basis, it is not too soon to be looking for ways to reinforce these rights in Maryland. When members of the Maryland General Assembly reconvene in Annapolis on Jan. 12 to open that body’s 444th legislative session, high on the agenda should be passing an amendment enshrining abortion rights in the state constitution. The measure would require a three-fifths majority from both chambers and then be approved by voters in the next general election, which, conveniently, will take place on Nov. 8.
This is not the first time such an amendment has been pondered. In 2019, then-House Speaker Michael E. Busch strongly advocated for such a guarantee merely because of speculation of an adverse Supreme Court ruling on abortion after the appointment of Brett Kavanagh. The legislation — a declaration of rights to privacy and bodily integrity — was eventually withdrawn, but with Speaker Busch vowing to return to it in 2020. He died before that could happen. Now, the circumstances have only worsened. Approving the amendment in 2022 would not only honor his memory but send an unmistakable message to Washington, D.C., and to the rest of the nation that, at least in Maryland, women will have a choice whether to take a new pregnancy to term.
The proposal will generate the usual abortion-related debate with this additional overlay: Why must Maryland add this further guarantee when existing state law already protects these rights? Even some pro-choice advocates expressed reservations in 2019 with the argument that, in essence, they had bigger fish to fry across the country. Why work hard to pass an amendment in a state that’s unlikely to restrict abortion in the near future? Not only is the General Assembly in the control of pro-choice Democrats but opinion surveys have long recognized that Maryland voters are firmly pro-choice as well. A 2020 Pew Research Center poll found about 64% of Marylanders believed abortion should be legal in all or most cases, putting it in the top 10 of pro-choice states.
First, state lawmakers must take this action because it’s the right thing to do. Like it or not, it’s far more difficult to overturn a provision of the state constitution than it is to change a state law. The mechanism of referendum also gives voters an opportunity to make their own statement. A lot of Marylanders are bound to be upset when the Supreme Court abortion ruling is handed down, this gives them the means to fight back, to stand up for their rights and those of their daughters. But make no mistake, this isn’t just about catharsis. Rights can be chipped away over time as elections tip the balance of power. What starts with 24-hour waiting periods or mandatory ultra-sounds can lead to much more restrictive and punitive measures.
And yes, it would also be nice to do something more than shout back at the right-wing extremists, to accomplish something more powerful than sign waving and marching in the streets, to send a message to the Supreme Court and to Congress and to the White House that this latest assault on women, this invasion of their constitutional right to privacy, this contemptible effort to turn back the clock to the bad old days of back alley abortions, is not acceptable, not in this state, not today, not tomorrow and, we hope, not ever.
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