Summary
Maryland Question 1, the Right to Reproductive Freedom Amendment, would add a new section to the Declaration of Rights in the Maryland Constitution establishing a right to reproductive freedom in the state:
That every person, as a central component of an individual’s rights to liberty and equality, has the fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy. 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.
Fiscal Impact
There is no fiscal impact on the state from this measure.
Proponents’ Arguments
Arguments in favor of the amendment come from advocates of abortion rights and are targeted to pro-choice Maryland voters who oppose the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Clinic decision. State polling shows 64% approval for legal abortion in Maryland in all or most cases. Most of the state’s prominent Democrat leaders and organizations support the amendment, including Gov. Wes Moore, Lt. Gov Adrienne Jones, Common Cause Maryland, Pro-Choice Maryland, and major labor unions.
Proponents argue that while abortion rights are already a part of Maryland law, enshrining them in the state constitution would add another layer of protection. In a statement, Common Cause Maryland said, “”As reproductive rights are being eroded across the country, the General Assembly must act affirmatively to ensure that all Marylanders have the fundamental right to reproductive liberty, regardless of what the Supreme Court or any other state determines.”
Sharon Blugis, interim executive director of Pro-Choice Maryland, further highlights the public-health and social implications of abortion rights:
Access to safe, legal, and accessible abortion and reproductive health care is not only a moral imperative, but it also has enormous social, economic, and health benefits to individuals, families, and communities. Bans and restrictions on abortion and reproductive care harm pregnant people with particular impact on people of color, inappropriately interfere in the trusted doctor-patient relationship, are linked to negative maternal health outcomes, and serve an agenda that would have all pregnancy outcomes scrutinized, controlled, and criminalized.
Former Maryland Governor Larry Hogan, the Republican U.S. Senate candidate in November, has signaled to voters his overall support of abortion rights and opposition to the Supreme Court’s overturning of Roe. His campaign-trail comments on abortion have focused on the national questions he would face in Washington, but he pledged to Maryland voters that he would not support a national legislative abortion ban.
Opponents’ Arguments
Socially conservative organizations and clergy lead the opposition to the Maryland amendment. In addition to general opposition to the extra layer of constitutional projection, opponents have focused on the potential for the amendment to protect late-term abortions, currently restricted under Maryland law.
The Maryland Catholic Conference wrote that the amendment “would establish a fundamental right to reproductive freedom and would enshrine abortion, at any stage, into our State Constitution. We believe that every person is created in the image and likeness of God and all life should be protected and respected from conception to natural death.”
Maryland doctor Frank Arlinghaus said, “Amending the Maryland Constitution is an unusual and extreme measure, and this bill would take an extreme position on abortion, restricting the legislature’s opportunities to pass reasonable restrictions on abortion in late pregnancy or to restrict it as other healthcare.”
Discussion
Abortion in Maryland is currently legal until the point of fetal viability, with exceptions for the health of the mother after viability.
Like several other state initiatives in the wake of the U.S. Supreme Court’s May 2022 Dobbs v. Jackson Women’s Health Clinic decision overturning Roe vs. Wade, the Maryland ballot measure seeks to further protect abortion rights already written into law by enshrining them in the state constitution. In 2022 and 2023, voters in four states (California, Vermont, Michigan, and Ohio) passed similar measures, while voters in three other states (Kansas, Kentucky, and Montana) defeated measures that would have restricted abortion rights. Maryland is one of at least six states with abortion-related measures on the 2024 ballot.
The Right to Reproductive Freedom Amendment is legislatively referred, meaning it was passed by Maryland’s state Senate and House with 60% supermajorities before being put to voters. Both chambers passed the measure, with near-unanimous support from majority Democrats and unanimous opposition from Republicans.
Many ballot initiatives require the informed voter to familiarize themselves with details of fiscal policy and regulation that are not usually at the forefront of political debate, and on which voters may not have strong opinions when walking into the voting booth. Maryland’s Right to Reproductive Freedom Amendment is just the opposite. Most voters nationwide already have pro-choice or pro-life views–often firmly held–and will vote on the measure according to those views.
The Maryland amendment is widely expected to pass. Polling data shows Maryland clearly in the pro-choice camp.
If passed, this amendment would change Maryland law on abortion in two ways. First, it would enshrine Maryland’s clear cut abortion rights in the state constitution, making it far more difficult for future legislatures to reverse or restrict them. Second, it would ostensibly provide the same protections to abortions after the point of fetal viability, currently allowed under state law only in very limited circumstances.
The latter reflects a pattern in post-Dobbs state ballot initiatives protecting abortion rights. Solidly blue or pro-choice states have passed (California and Vermont) or will vote this year (Maryland and New York) on measures offering wider abortion protections and not mentioning the issue of fetal viability. States with voters more divided on abortion, such as Missouri, Colorado, and South Dakota, face initiatives allowing for restrictions on abortion rights after viability or some other point during pregnancy. The latter approach is more consistent with the precedent set down in Roe, while the former approach offers more protections for mothers’ choices.
Maryland’s pro-life voters strongly oppose both changes to state law described above, and are likely, as in other states, to vote against the amendment in overwhelming numbers.
Pro-choice voters will heavily favor the extra protections on abortion rights overall, but may be divided to some degree on the amendment’s extension of protections to abortion rights after fetal viability. Polling typically shows many voters who identify as pro-choice and oppose Dobbs but also favor restrictions in some cases, including the length of the pregnancy and viability.
Some basic facts may add useful perspective. Over 99% of abortions occur before the 24th week of pregnancy, the most common estimate of fetal viability. The vast majority of the less than 1% of abortions happening after viability are motivated by the mother’s health or fetal anomalies. Many such procedures are medical emergencies where time is of the essence. Bans on late-term abortions, or protections requiring often-subjective circumstances can and in some instances have cost critically needed time.