On August 2, 2018, Maryland House Speaker, Michael E. Busch, announced plans to lead an effort to enshrine in the state constitution a woman’s “right” to terminate a pregnancy, joining a number of other states attempting to preempt any move by the Supreme Court to disembark abortion protections.

 

Busch (D-Anne Arundel) said he will personally introduce and garner support for legislation asking voters to approve a constitutional amendment, probably in the next presidential election. An amendment would mean that even if the Supreme Court overturned its ban on state laws prohibiting abortion, no such legislation could be passed in Maryland. Should Busch succeed in persuading three-fifths of each chamber of the General Assembly to approve the constitutional amendment next year, Maryland voters would see it on the 2020 ballot.

 

“If [voters] decide that this becomes part of the constitution, a woman’s right to choose will never be debated; it will never be a bargaining chip,”i in the legislative process, Busch said.

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This would not be the first time Maryland voters would be faced with a referendum regarding abortion.

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The Maryland Abortion Law Revision Amendment, also known as Question 6, was on the November 3, 1992 ballot in Maryland as a legislatively referred constitutional amendment, where it was approved by 61.74% of the vote.ii The measure revised Maryland's abortion law to prohibit state interference with a woman's abortion decision before the fetus is viable, or, under certain conditions, at any time and to provide certain exceptions to the requirement that a physician notify an unmarried minor's parent or guardian prior to the abortion. The measure also repealed pre-abortion information requirements about abortion alternatives and repealed or clarified other provisions related to abortion referral. The measure required that abortions be performed by licensed physicians and provided good-faith immunity under certain conditions to physicians. Finally, the measure authorized the state to adopt abortion regulations and repealed certain penalty and disciplinary provisions related to the performance of abortions.

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In the time that has followed, Maryland has come to be known for having the strongest protections for abortion “rights” in the nation written into its current law.  

 

Maryland General Health Code §20.2.207 leaves the interpretation of the current law to be “physician defined” allowing any physician practicing abortion and licensed in Maryland to legally perform abortions at any time in a woman’s pregnancy based on viability. These abortion “rights” are further protected in §20-209 which leaves the definition of viability in the hands of the licensed abortionist as well as the definition of a woman’s health further allowing intentional termination to be legal at any gestational age.

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Proponents of Busch’s proposed amendment say it is necessary to put further protections in place with all the changes coming to the U.S. Supreme Court in regard to President Trump’s nomination of Judge Brett Kavanaugh.  Many fear if Kavanaugh is confirmed, the U.S. Supreme Court will be able to overturn Roe v. Wade.

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At face value, this is not the way the U.S. Supreme Court works.  The only thing that would further disembark abortion “rights” set forth by Roe v. Wade (and Planned Parenthood v. Casey) would be a new case brought forth that allows the U.S. Supreme Court Justices to interpret and rule based on their understanding of the U.S. Constitution. So what really is Speaker Busch’s motivation for proposing to amend Maryland’s constitution regarding abortion just three months before general elections?

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Politics, of course. 

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Following the 2014 elections, Democrats kept control of the House by a 91-50 margin, but Republicans flipped seven seats in the election. As of June 2017, Democrats held 91 seats, six more than the 85 seats required to override a gubernatorial veto. Republicans would need to flip seven seats in 2018 to break up the Democrats' veto-proof majority in the House.

 

Maryland became a divided government in 2014 after Gov. Larry Hogan (R) was elected to the governor's office. Prior to the 2014 election, Democrats controlled both chambers of the state legislature and the governor's office, but Maryland has general elections for all Senate and House seats including the governor’s office this fall.

 

Because state delegates in Maryland serve four-year terms, winning candidates in this election will serve through 2022 and play a role in Maryland's redistricting process. In Maryland, the primary authority to draw both congressional and state legislative district lines rests with the state legislature.  If Maryland can be redistricted, this will further allow future Republican candidates to pick up votes, which has been circumvented by the state’s current partisan gerrymandering.

 

In short, using the threat of Roe v. Wade being overturned is a simple way to motivate Democrats to come out and vote in this year’s general election as the topic of abortion has become a wide-divide between parties.

 

While it doesn’t seem like much would be gained by passing Busch’s amendment to Maryland’s constitution, there is much to be gained – and lost – depending on who shows up to vote this fall.

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[i] https://www.washingtonpost.com/local/md-politics/maryland-house-speaker-to-push-for-amendment-protecting-abortion-rights/2018/08/01/435dd6d8-95d5-11e8-80e1-00e80e1fdf43_story.html?noredirect=on&utm_term=.0eca781e4898

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[ii] https://ballotpedia.org/Maryland_Abortion_Law_Revision,_Question_6_(1992)