Abortion In Maryland: What Happens If Roe V. Wade Is Overturned

MARYLAND — While state lawmakers in Annapolis recently expanded access to an abortion, a draft majority opinion reportedly leaked to Politico suggests that the U.S. Supreme Court is poised to overturn Roe V. Wade, the landmark abortion ruling.

A final decision on the case is not expected until late June or July.

Politico reported Monday that it had obtained the draft majority opinion written by conservative Justice Samuel Alito and circulated inside the court that strikes down Roe and Planned Parenthood v. Casey, the case that affirmed a woman’s right to obtain an abortion.

If the court strikes down Roe, abortion rights would be left to the states to decide. Right now, 22 states have laws on their books to ban or restrict abortion, and four more appear poised to do so, according to the Guttmacher Institute, an abortion rights policy group.

In Maryland, the legislature recently passed a bill expanding the definition of providers qualified to perform an abortion, establishing an abortion training program funded by the state, and requiring most insurance companies to cover the cost of an abortion, according to a Reuters report. Gov. Larry Hogan vetoed the bill, but the legislature overrode the veto.

Maryland leaders spoke out against the Supreme Court's draft Monday night and Tuesday morning.

“If this draft decision stands, the Supreme Court will strip Americans of their reproductive rights and put the lives & health of millions of women at risk," said Democratic Sen. Chris Van Hollen on Twitter. "The Trump SCOTUS nominees’ claims to respect precedent were lies. We must overcome this and codify Roe V. Wade NOW.”

Maryland Democratic Party Chair Yvette Lewis said the draft should encourage people to elect more Democratic leaders "up and down the ballot and all across the country so that women have representatives who protect their right to choose.”

“The pending decision by the Supreme Court to overturn Roe v. Wade is the culmination of decades long efforts by the Republican Party to deny a woman the right to make decisions about her reproductive health care," said Lewis in a statement. "This decision will subject women and girls to to a sweeping ban on abortion with no exception for rape, incest or whether they live or die."

At the time of publishing, Hogan had not spoken publicly on the Politico report, nor had the Maryland Republican Party.

Much can change before the court publishes its final decision. As draft opinions are circulated among justices, votes can and have changed on controversial cases, Politico reported.

Citing a person familiar with the court’s deliberations, Politico reported four other Republican-appointed justices voted with Alito: Clarence Thomas and three Trump-appointed justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Maryland does not have a "trigger ban," nor is it likely to ban abortions, according to the Guttmacher Institute.

"Elected officials in Maryland have protected women’s rights for more than three decades, and I am proud to have been a part of those efforts both as a legislator and as the Attorney General," said Attorney General Brian E. Frosh in a statement. "I am especially proud of having voted to codify Roe v. Wade in the House of Delegates in 1991 and for the work that our office has done to protect and expand access to reproductive health care services across Maryland. I am optimistic that our state will continue to be a champion for the rights of women to make their own health care decisions, and that it will continue to protect the rights to privacy for all Marylanders.”

Abortion rights advocacy and other groups were quick to react after Politico published its report.

“Let's be clear: This is a draft opinion. It’s outrageous, it’s unprecedented, but it is not final,” Planned Parenthood tweeted. “Abortion is your right — and it is STILL LEGAL.”

The American Civil Liberties Union said overturning Roe “would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions, for over 50 years.”

“The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding,” the ACLU said.

The National Right to Life organization said it would “let the Supreme Court speak for itself” and would wait for its decision before commenting.

The Supreme Court heard oral argument late last year on a Mississippi case challenging Roe. The case, Dobbs v. Jackson Women's Health Association, challenges a Mississippi law that bans abortions in most cases after 15 weeks of pregnancy.

The law undercuts the standard set by Roe that guarantees women access to the procedure up until the fetus is viable outside her womb, typically around 23 or 24 weeks after conception, and longer in cases where the woman's life or health is in jeopardy.

Mississippi’s lawyers argued that striking down Roe, and the Planned Parenthood v. Casey case that affirmed it, is the only means available to enforce the ban.

In Roe, the Supreme Court said an unwanted pregnancy could lead a woman to "a distressful life and future." In the 1992 case, Casey v. Planned Parenthood, the court upheld Roe, finding that abortion rights were necessary for "women to participate equally in the economic and social life of the nation."

Lawyers for the state of Mississippi proposed an array of mechanisms to uphold the 15-week abortion ban but said the court ultimately should overturn the "egregiously wrong" Roe and Casey rulings.

If the court "does not impose a substantial obstacle to 'a significant number of women' seeking abortions," the state argued in December, the justices should reinterpret the "undue burden" standard established in Roe and give the state the authority to "prohibit elective abortions before viability" of the fetus.

The Center for Reproductive Rights, which challenged the law with the Jackson Women's Health Organization, argued that although the Constitution does not address pregnancy, courts have upheld the decision in Roe, which was tied to privacy and personal autonomy.

"Every version of the State's argument amounts to the same thing: a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely," the plaintiffs' brief states.

In oral arguments, Center for Reproductive Rights Senior Director Julie Rikelman said the state's ban on abortion two months before a fetus is viable outside the womb is "flatly unconstitutional under decades of precedent."

"Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy," Rikelman said.

The plaintiffs also argued that denying women access to abortion is detrimental to their physical and emotional health.

Though the leaking of the draft opinion is unprecedented and a blow to an institution that holds the secrecy of its deliberations sacrosanct, the Supreme Court’s shift on abortion rights isn’t unexpected. The 6-3 conservative majority on the court previously signaled that it may be willing to impose new restrictions on abortion.

According to the Politico report, the three Democratic-appointed judges — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are writing dissent opinions. It’s unclear how Chief Justice John Roberts will vote or if he will write an opinion of his own.