As advocates fret over the future of access to abortion in the U.S. following the death of Supreme Court Justice Ruth Bader Ginsburg, they believe abortion rights are well-protected in Maryland — despite a lack of success for recent efforts to include them in the state’s constitution.
“We’re solid as a state when it comes to abortion access,” said Diana Philip, executive director of NARAL Pro-Choice Maryland.
Republican President Donald Trump already has appointed two justices — Neil Gorsuch and Brett Kavanaugh — and is poised to nominate a third justice to replace the liberal Ginsburg.
But even if a more conservative court modifies or overturns the 1973 Roe v. Wade decision that legalized abortion procedures nationally, Maryland wouldn’t see any changes immediately to abortion access.
It’s been protected in Maryland since 1992, when voters approved enshrining the Roe provisions in state law. The approval came by a wide margin: Nearly 62% supported the law, and about 38% opposed it.
That means it’s exceedingly difficult for abortion opponents to pass laws to ban abortions or restrict access. Several such bills are introduced each year in the General Assembly, but they typically do not gain traction in the legislative process.
That’s why, pro-abortion advocates say, they did not join attempts in the past few years to put abortion rights on the ballot again in the form of an amendment to the Maryland Constitution.
Even with Trump expected to pick another conservative justice to replace Ginsburg, who died of cancer Friday, Philip said, abortion rights are not seriously at risk in Maryland. It’s one of 15 states that has laws preserving access to abortion “if Roe should fall,” Philip said.
It makes more sense to focus on the 35 states without such laws, she said.
“I would rather see more energy and funding go to states engaged in their own statutory protections,” Philip said.
Trump has said he will name his choice Saturday, and the Republican U.S. Senate leaders appear to have the votes in hand to approve a nominee before the Nov. 3 general election.
Back in 2018, Maryland House of Delegates Speaker Michael E. Busch championed the idea of a constitutional amendment on abortion, and the state Democratic Party announced its support, as well. They cited other states passing bills to restrict abortions and concerns that a Supreme Court weighted in the future with Trump nominees might uphold those laws and overturn Roe.
In the 2019 General Assembly session, Busch, a Democrat, proposed adding the following sentence to the Maryland Constitution’s Declaration of Rights: “That the people have the right to bodily integrity and privacy to make personal decisions about childbearing and procreation without unwarranted government intrusion.”
If abortion rights were placed in the state constitution, Busch and others argued, it would take another constitutional amendment — again, approved by voters — to undo the right to an abortion.
But then-Senate President Thomas V. Mike Miller Jr., also a Democrat, threw cold water on Busch’s push, saying lawmakers should only take up referendum bills in the same year that they would appear on the ballot. That happens only in years with elections across the state, such as in 2020.
A lack of support from abortion-rights groups didn’t help the cause, either. NARAL and Planned Parenthood, a nonprofit organization that is the largest abortion provider in the country, did not support the effort.
“A constitutional amendment felt like it was something that was not needed in our state, when other states need so much more than we do," Philip said.
Realizing his effort was futile, Busch withdrew his bill and vowed to try again in 2020.
“I don’t want to see it chipped away bit by bit,” Busch told The Washington Post at the time. “It’s important not only now, but for the next generations.”
Less than two months later, Busch died in office. Adrienne A. Jones, a Democrat who succeeded Busch as speaker, is interested in the issue, but didn’t introduce a proposed constitutional amendment in the 2020 session.
“Both Speaker Busch and Speaker Jones found it frustrating that there wasn’t more vocal and boisterous support for this effort from the advocacy community in a state like Maryland,” said Alexandra Hughes, chief of staff to both Busch and Jones. “Protecting a woman’s right to choose in the state constitution is critical at a time when the federal government continues to erode women’s health care protections.”
A 2020 proposal from Democratic Sen. Susan Lee of Montgomery County was withdrawn shortly before a scheduled hearing. Lee said the hearing was in the final week of the pandemic-shortened session, and she felt there wasn’t enough time to give the proposal sufficient consideration and debate.
Karen Nelson, president and CEO of Planned Parenthood Maryland, said while the odds of anti-abortion legislation passing aren’t zero, the legislature has a strong majority of lawmakers who support abortion rights. That’s why, she said, a constitutional amendment wasn’t necessary before and isn’t strongly under consideration now.
“We’re so lucky to have supportive legislators and supportive leadership that care about reproductive rights and abortion protections in this state,” Nelson said. “So, we feel pretty confident that’s where we would remain going forward.”
The state’s Democratic Party appears less enthusiastic about a constitutional amendment than it was two years ago, saying now it would support a state constitutional amendment “if necessary.”
“We will fight to elect pro-choice Democrats who will uphold these rights, and who will support reproductive rights through legislation, and constitutional amendment if necessary,” said Yvette Lewis, the party’s chair, in a statement.
Maryland Right to Life, which opposes abortion, argues a constitutional amendment would take power away from legislators who are the citizens’ chosen representatives.
“It would prevent elected lawmakers from passing any common-sense health and safety measures for women,” said Laura Bodley, director of legislation for Maryland Right to Life.
Bodley said anti-abortion advocates sent 30,000 emails and letters opposing the constitutional amendment in 2019, and more than 150 people packed a hearing room to testify against it in 2020, just before it was withdrawn.
“We actively opposed it and discouraged its passage,” she said.