The Washington PostDemocracy Dies in Darkness

With fate of U.S. abortion rights unclear, Md. House speaker aims to strengthen state protections

Speaker of the House Michael E. Busch (D-Anne Arundel) plans to lead an effort to enshrine a woman’s right to terminate a pregnancy in the state constitution.
Speaker of the House Michael E. Busch (D-Anne Arundel) plans to lead an effort to enshrine a woman’s right to terminate a pregnancy in the state constitution. (Jonathan Newton/The Washington Post)

Maryland’s House Speaker Michael E. Busch 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 erode 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.

“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” in the legislative process, Busch said.

Gov. Larry Hogan, a Republican who personally opposes abortion, said that he is not sure a referendum is necessary but that letting voters decide “sounds like a great idea.” Ben Jealous, his Democratic opponent, vowed to campaign in support of the amendment.

“In the Trump era, Maryland’s governor must have the courage to take every step possible to ensure a woman’s right to choose is protected,” Jealous said.

Across the country, state politicians on both sides of the debate have taken action in anticipation of the possibility that — with Justice Anthony M. Kennedy retiring and Brett M. Kavanaugh nominated as his replacement — 45 years of abortion protections could evaporate under the next Supreme Court.

Abortion opponents and abortion rights advocates think a strongly worded dissent Kavanaugh issued last fall, in a case involving a pregnant immigrant teenager in federal custody, indicates he would favor more abortion restrictions and might support overturning the federal protections that began with Roe v. Wade.

Last week, Massachusetts Gov. Charlie Baker (R) signed a bill repealing century-old laws that criminalized abortion there. West Virginia and Alabama have initiatives on the ballot this year to clarify that their state constitutions do not protect the right to an abortion.

Leslie McGorman, deputy director of policy for NARAL Pro-Choice America, said abortion rights advocates are urging state leaders and political candidates across the county to shore up state-level abortion protections now.

“We’re not comfortable taking a wait-and-see approach,” McGorman said. “We absolutely have to take seriously the opportunity to extend protections. . . . We’re ­really looking for other states to follow the lead of Maryland and Massachusetts.”

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 the new makeup of the Supreme Court passes [abortion] decisions down to the states, you’re going to have members on both sides either try to strengthen or weaken the law, and I just think that you don’t want to get into those debates,” Busch said.

Nine other states have abortion protections in their state constitutions, according to the Center for Reproductive Rights: Alaska, California, Florida, Iowa, Massachusetts, Minnesota, Montana, New Jersey and New Mexico.

Busch, who has led the House chamber since 2003, said the amendment would essentially insert Maryland’s existing abortion statute into the state constitution. That law was approved by the General Assembly in 1991. After antiabortion groups petitioned it to a referendum, it passed with 61.7 percent of the vote.

The law allows women to seek abortions without interference from the state if the fetus is not viable outside the womb. A woman may also terminate a pregnancy at any point if the fetus has a “genetic defect or serious anomaly” or if an abortion is necessary to protect the health of the mother.

The influential Maryland Catholic Conference, which is likely to be the most powerful opponent of a constitutional amendment, vowed Thursday to work to defeat it. “We challenge all those who value the dignity and human rights of each Marylander to do the same,” the group’s executive director, Jennifer L. Briemann , said in a statement.

“The proposed abortion initiative is an unconscionable waste of the political energy and enthusiasm needed to address the real issues affecting women in our state,” Briemann said, adding that the proposal introduces “divisive” national debates at a time when it’s clear Maryland lawmakers have shown “no intention” of weakening abortion laws.

Busch, who is Catholic, said he will introduce the amendment proposal when the legislature convenes in January and is confident he can muster the votes from lawmakers on both sides of the aisle. He said he began pitching the idea to his leadership team late Wednesday but had not yet consulted Senate President Thomas V. Mike Miller Jr. (D-Calvert).

Miller, who is also Catholic, was a key architect of a compromise that enabled Maryland’s 1991 abortion protection statue. He did not respond to a request for comment.

Hogan said Maryland has “pretty tough laws already that protect the right to an abortion. . . . I don’t know that [a constitutional amendment is] necessary, but if they want to put it on the ballot to let voters decide, that sounds like a great idea. I trust the voters of Maryland to make the right decision.”

Maryland’s Democratic Party used the proposal as a way to highlight past statements by Hogan opposing abortion, some of which date to the 1980s. Party leaders also called on the governor to unequivocally state whether he would support a constitutional amendment.

“We believe Larry Hogan is equivocating on this issue,” Democratic Party Chair Kathleen Matthews said in a conference call that included Jealous’s running mate, Susan Turnbull; former Democratic gubernatorial candidate Krishanti Vignarajah; and Del. Joseline Peña-Melnyk (D-Prince George’s).

Turnbull said she and Jealous will work with Busch to get the amendment on the ballot and encourage voters to support it.

“When something is at risk, you do everything in your power to protect it,” Turnbull said.

Robert Barnes and Ovetta Wiggins contributed to this report.

Read more:

Kavnaugh’s dissent in abortion case give clues as to how he would rule on Supreme Court

On abortion, other issues, Kavanaugh’s legal heroes are more conservative than Kennedy