Question 1: Constitutional Amendment, Declaration of Rights – Right to Reproductive Freedom (Ch. 245 of the 2023 Legislative Session | SB 798 and HB 705
Summary:
The proposal would add a provision to the Maryland Constitution’s Declaration of Rights, for the purpose of establishing that every person, as a central component of an individual’s rights to liberty and equality, has the fundamental right to reproductive freedom. It would prohibit the State from, directly or indirectly, denying, burdening, or abridging that right unless justified by a compelling State interest achieved by the least restrictive means. The constitutional amendment is intended to put limits on state (or local) governmental actions, whether those actions are taken by a future governor’s administration or by a future legislative action.
Ballot Question Text:
Question 1 – Constitutional Amendment – Declaration of Rights – Right to Reproductive Freedom
The proposed amendment confirms an individual’s fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end the individual’s pregnancy, and provides the State may not, directly or indirectly, deny, burden, or abridge the right unless justified by a compelling State interest achieved by the least restrictive means. (Adding Article 48 to the Maryland Declaration of Rights)
Background:
This constitutional amendment was introduced as Senate Bill 798 on February 6, 2023 and cross-filed with House Bill 705. On March 14, 2023, the Senate passed SB 798 by a vote of 32-15 (Democrats voted in favor 32-2). On March 30, 2024, the House passed SB 798 by a vote of 98-38 (Democrats voted in favor 98-0). On March 10, 2023, the House passed HB 705 by a vote of 99-37 (Democrats voted in favor 99-1). On March 31, 2024, the Senate passed HB 705 by a vote of 33-14 (Democrats voted in favor 33-1).
Status of Federal Law
On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, which overturned the longstanding precedent regarding abortion access established by that Court’s 1973 decision in Roe v. Wade. The Court held in Roe that abortions prior to viability were constitutionally protected. In Dobbs, however, the Supreme Court upheld a Mississippi law that prohibited abortions after 15 weeks gestation except for medical emergencies or severe fetal abnormalities, based on its finding that there is no constitutionally protected right to an abortion as it is not a right explicitly granted by the Constitution or a right “deeply rooted” in the country’s history and tradition. Consequently, the Dobbs decision leaves states to decide how to regulate abortion access, resulting in a patchwork of state laws with varying degrees of access to abortion care.
Maryland Abortion Law
The Dobbs decision did not impact current Maryland law, which includes express statutory protections for abortion. Section § 20-209 of Maryland’s Health-General Article codifies the protections of Roe and prohibits the State from interfering with an abortion conducted before the fetus is viable, or at any time during a woman’s pregnancy if the procedure is necessary to protect the woman’s health or life, or if the fetus is affected by a genetic defect or serious deformity or abnormality. A viable fetus is one that has a reasonable likelihood of surviving outside of the womb. The Maryland Department of Health may adopt regulations consistent with established medical practice if they are necessary and the least amount intrusive method to protect the life and health of the woman.
After the Dobbs decision, the Maryland legislature retained the power to enact additional laws that protect access to abortion. It should be noted, however, that, after Dobbs, the legislature would also be authorized to enact laws restricting abortion access that were unconstitutional under Roe v. Wade and subsequent cases. The proposed constitutional amendment to guarantee the right to reproductive freedom would restrict the legislatures’ ability to enact such laws.
In April 2022, Maryland enacted the Abortion Care Access Act (Chapter 56). The Act established the Abortion Care Clinical Training Program to protect access to abortion care by ensuring there are a sufficient number of healthcare professionals to provide abortion services in the State. The Act expanded beyond physicians the types of health care providers who may provide abortions to include nurse practitioners, nurse-midwives, licensed certified midwives, physician assistants, and other qualified licensed health care providers. A qualified provider is not liable for civil damages or subject to a criminal penalty for a decision to perform an abortion made in good faith and in the qualified provider’s best clinical judgment using accepted standards of clinical practice. The Act also requires private insurance plans that cover labor and delivery and public medical assistance programs (Maryland Medicaid) to cover abortion services without a deductible, coinsurance, copayment, or other cost-sharing requirement.
In 2023, Maryland enacted interstate shield laws protecting providers, patients, and people who help others access abortion from professional licensure consequences, the reach of out-of-state investigations and legal actions, and the disclosure of information. The state protects clinic access by preventing interference with entering and exiting a facility. In 2024, the state enacted a data privacy law, which prohibits companies from sharing or selling consumer health data without consumer consent.
In 2024, the Right to Reproductive Freedom amendment will appear on the Maryland ballot, proposing to amend the state constitution to create the right to reproductive freedom, which includes decisions to prevent, continue, or end one’s pregnancy.
Reasons to support State Question 1
● Though Maryland law provides statutory protection for abortion care, Marylanders currently lack broad constitutional protections that would guarantee abortion access and protect reproductive freedom from potential encroachment by the legislature, a Governor, or the courts at some future date. Constitutional protections would grant Marylanders a higher level of security for these rights into the future.
● With an uncertain federal outlook and a Supreme Court that has already shown itself hostile to reproductive freedom after Dobbs, states around the country are acting on reproductive freedom and abortion. While some states seek draconian controls on reproductive health care, Maryland should act to protect our rights and ensure they can’t be curtailed in the future.
● Reproductive autonomy—the power to make and act on decisions about your reproduction—is central to how people shape their lives. Government control of reproductive capacity has long persisted as a tool to subordinate women, people of color, people of lower economic means, and other historically marginalized groups. This amendment protects against that type of encroachment in perpetuity.
● For centuries, our nation’s laws enforced women’s second-class status. Laws and policies perpetuated stereotypes about women’s proper role in society. They enforced their second-class status in myriad ways, including limiting women’s ability to own property, vote, pursue an education, work, and participate fully in civic life. Since Dobbs, hundreds of regressive laws have been passed around the country that take away reproductive freedom but also seek to reinstate a second-class status for women. This amendment would ensure that never happens in Maryland.
Reasons to oppose State Question 1
There are several arguments that could be made in opposition to this constitutional amendment:
● Some may argue that Maryland state law already provides sufficient statutory protection for abortion care and therefore the extension of state constitutional protection is unnecessary to safeguard reproductive freedom.
● Some who believe the amendment is unnecessary to protect reproductive rights might also argue that the effort to pass it is more about the politics of the issue than the protection of reproductive rights which are already well defended in Maryland.
● Some may argue that if the Democratic party take’s an affirmative position on this amendment it unnecessarily risks alienating certain voters whose values and beliefs are otherwise consistent with most Democrats in other areas, but who disagree with the proposed amendment – and that could impact potentially close elections for certain offices.
● Some may argue that the term “reproductive freedom” is too undefined for an amendment of this type.
Reason to be neutral on State Question 1:
Democratic Party officials at all levels have expressed support for the proposed constitutional
amendment. However, if a majority of the local precinct officials did not feel comfortable supporting the amendment it would be better to vote to be neutral on the ballot question than to oppose the principles of reproductive freedom supported by Democrats nationwide and across Maryland, as reflected by the amendment’s support by Governor Moore and its broad support by Democrats in the General Assembly.