Maryland Abortion Laws: Understanding The Current Landscape

Abortion laws vary from state to state across the US, with some states banning abortion under most circumstances. So, what is the situation in Maryland? Abortion is legal in Maryland, and the state has few restrictions on abortion access.

Parental notification laws

Maryland's abortion laws require parental notification for minors. However, there are exceptions to this rule. A provider may not perform an abortion on an unmarried minor unless they first give notice to a parent or guardian, unless:

• The minor does not live with their parent or guardian, and reasonable efforts to give notice are unsuccessful.
• In the provider's judgement, giving notice to a parent or guardian may lead to physical or emotional abuse.
• In the provider's judgement, the minor is mature and capable of informed consent.
• In the provider's judgement, notification would not be in the minor's best interests.

In addition, if a minor does not wish to involve their parent or guardian, they may be able to obtain a judge's permission to have an abortion without notifying their parents. This is called "judicial bypass".

Maryland's abortion laws provide unrestricted abortion access until fetal viability. Abortion is legal in Maryland until a fetus is viable. After that time, abortion is legal if necessary to protect the life or health of the pregnant person or if the fetus has a genetic defect or serious deformity or abnormality.

Abortion Care Access Act

In 2022, Maryland state lawmakers passed the "Abortion Care Access Act". This legislation was passed in anticipation of the fall of Roe v. Wade, which would see the power to regulate or prohibit abortion returned to the states. The Act expands the group of healthcare providers who are authorised by law to administer abortion care. This now includes any person licensed, certified, or otherwise authorised by the state of Maryland to practice, and for whom abortion falls within the scope of their license or certification. This includes physicians, physician assistants, nurse practitioners, and licensed certified midwives.

The Act also includes funding increases for training related to abortion. The Abortion Care Clinical Training Program will ensure that there are enough health professionals to provide abortion care, with a particular focus on increasing the racial and ethnic diversity of those professionals. The Act calls for an annual allocation of $3.5 million to the Program from July 1, 2023.

The Act also makes changes to insurance law, requiring most insurers that cover labour and delivery services, including the state's Medicaid program, to cover abortion services without imposing restrictions or additional costs. This improves affordability and equity of access to abortion care.

The Abortion Care Access Act is the first of its kind in the United States. It is designed to expand access to abortion by increasing the diversity of providers and improving affordability and equity. The effectiveness of the Act will be evaluated over time, and it could serve as a model for other states looking to increase access and improve patient outcomes and health inequities.

Roe v. Wade

The case was brought by Norma McCorvey, who, in 1969, became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her lawyers filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. The Supreme Court issued a 7-2 decision in McCorvey's favour, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion.

The Supreme Court's decision in Roe was among the most controversial in U.S. history. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision. In June 2022, the Supreme Court overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition". The Court's decision in Dobbs did not have any immediate impact on Maryland abortion laws. Maryland law has included protections for pre-viability abortions without interference from the state, and abortion clinics operate throughout the state.

In 2023, Maryland State House and Senate members passed the "Reproductive Health Protection Act", which was signed into law by Democratic Gov. Wes Moore. The new law protects the confidentiality of patients seeking abortion and will also shield out-of-state patients from criminal investigations from other states.

In November 2024, Maryland voters will decide whether to pass a constitutional amendment establishing reproductive rights in the state constitution. The proposed "Right to Reproductive Freedom" amendment would treat abortion as a fundamental right, stating that a person has "the ability to make and effectuate decisions to prevent, continue, or end one's own pregnancy."

Dobbs v. Jackson Women's Health Organization

In June 2022, the U.S. Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization. The Court's decision in Dobbs held that the Constitution does not protect the right to an abortion and that the issue of abortion regulation should be returned to elected branches. The Court's ruling was 6-3, with Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas in the majority, and Justices Breyer, Kagan, and Sotomayor dissenting. Chief Justice Roberts concurred in the judgment, agreeing to uphold the Mississippi law but disagreeing with the majority's decision to overrule Roe and Casey.

The Dobbs decision returned the issue of abortion regulation to the states, allowing them to prohibit or restrict abortion as they see fit. This shift in authority from the federal to state level had a significant impact on abortion laws across the country, with some states banning abortion under most circumstances while others continued to protect abortion access.

The Court's ruling in Dobbs was based on the interpretation that the Constitution does not explicitly mention abortion and that any implied right to abortion is not protected by the Due Process Clause of the Fourteenth Amendment. The majority opinion, written by Justice Alito, argued that the right to abortion is not "deeply rooted in this Nation's history and tradition" and that the Court's previous decisions in Roe and Casey were "egregiously wrong."

The dissenting opinion, written by Justices Breyer, Kagan, and Sotomayor, criticized the Court for unsettling decades of precedent and undermining the Constitution's promise of freedom and equality for women. They argued that the right to abortion is inherent in the Constitution's guarantee of liberty and equality for all, and that the Court's decision curtails women's rights and their status as free and equal citizens.

Reproductive Health Protection Act

Maryland voters secured the right to abortion in 1992, and abortion remains legal in the state. In 2023, the state passed the Reproductive Health Protection Act, which protects the confidentiality of patients seeking abortions. The Act also shields out-of-state patients from criminal investigations from other states.

The Reproductive Health Protection Act prohibits Maryland agencies and law enforcement from assisting with out-of-state investigations of reproductive health care that is legally protected in Maryland. It also prohibits health occupation boards from disciplining a licensed or certified individual over out-of-state complaints for health care that is legally protected in the state.

The Act requires public colleges and universities to ensure students have access to services that include contraception and all facets of reproductive health care. This includes requiring Maryland's four-year, residential, public institutions of higher education to develop a plan to provide or refer students to comprehensive reproductive health services, including abortions, STI testing and treatment, and FDA-approved contraceptives. The plan should also include wrap-around services, and these campuses must provide 24/7 access to over-the-counter contraceptives.

The Reproductive Health Protection Act is part of Maryland's 2023 Reproductive Freedom Bill Package, which includes a Constitutional Amendment protecting the Right to Reproductive Liberty. This amendment will be voted on in November 2024 and would establish reproductive rights in the state constitution, treating abortion as a fundamental right.

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