Maryland's Abortion Law

The History
On February 18, 1991, Maryland Governor William Donald Schaefer signed into law SB 162, an abortion bill that went far beyond Roe v. Wade. Pro-lifers mounted an all-out effort to repeal the law by referendum, but the referendum failed, leaving Maryland with one of the most extreme abortion statutes in the United States.

Since 1992, Maryland law has:

• Permitted abortion on demand, even late in pregnancy;
• Protected abortionists from legal action;
• Allowed abortionists to perform abortions on minors without notifying a parent; and
• Left health care workers who refuse to make abortion referrals as a matter of conscience vulnerable to civil liability and disciplinary action.

Maryland's abortion law is recognized as one of the most permissive in the country by NARAL Pro-Choice America (NARAL), formerly known as the National Abortion Rights Action League. In its evaluation of state abortion laws, NARAL gives Maryland a grade of “A,” and ranks it 5th in the nation for "reproductive rights".

Only California and Washington state have a higher score of "A+." By comparison, the District of Columbia rates a "A-", Delaware rates a "C+," and Pennsylvania and Virginia both rate a grade of "F" (meaning that they are much more pro-life).

Maryland is the only state where an abortionist may act with impunity while health care workers are vulnerable to job discrimination, lawsuits, poor peer reviews, and disciplinary action for refusing to perform or facilitate abortions.

Maryland's Pro-Life Accomplishments

Safe Haven Act
Under this law, a mother (or someone who has the mother's permission) may leave a child up to three days old at a hospital or state or local police department with no questions asked. The mother is immune from prosecution as long as the child is unharmed ”within a reasonable degree of medical certainty.” This law allows a mother who cannot care for her infant to place the child in a safe environment while protecting her anonymity.

Unborn Victims of Violence Act
Since 2005, anyone causing the death of a viable fetus may be prosecuted for murder or mansluaghter, if there was intent to kill or cause serious physical injury to the fetus. The law exempts the pregnant woman herself from liability and explicitly states, “Nothing in this section shall be construed to confer personhood or any rights on the fetus.” Nonetheless, the state of Maryland now recognizes the existence of a human being in the womb, at least after the point of viability.

The Facts
Q: Does Maryland law prohibit abortion after viability (when the child can survive outside the womb with or without artificial support)?
A: No. In fact, Maryland law [Health- General §20-209(b)(2)(i)] allows abortions after viability if needed to protect the “health” of the mother. “Health” is defined very broadly, to include the “distress ... associated with the unwanted child, ... the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it, ... the additional difficulties and continuing stigma of unwed motherhood....”
Under Maryland law, any abortion—even a late abortion well after viability—performed because the unborn child is “unwanted” is considered a legal abortion provided for "health" reasons.

Q: Do Maryland taxpayers pay for abortions under the state Medicaid program?
A: Yes. According to data from fiscal years 2004 and 2005, Maryland taxpayers are forced to pay more than $2 million annually to fund more than 4,000 abortions per fiscal year.
Reports from 2006 indicate that 99.8 percent of Maryland Medicaid abortions performed last year were done for "mental health" reasons.

Q: Does the Maryland law require a parent to be notified before a minor girl has an abortion?
A: No. Although Maryland law does include a "parental notification" clause, this so-called "requirement" is meaningless because Health-General §20-103(c)(1) gives the abortionist sole and unreviewable discretion to disregard parental rights:

(c)(1)    The physician may perform the abortion, without notice to a parent or guardian of a minor if, in the professional judgment of the physician: ...

(iii)    Notification would not be in the best interest of the minor.

The law could more accurately be called an "abortionist consent law" because it gives the abortionist sole discretion in every instance to determine whether or not the parents of a teenager should be kept in the dark about their daughter's pregnancy and need for guidance.

Q: Does Maryland law recognize the legal rights of an unborn child who dies as the result of a criminal assault on the mother?
A: Maryland's criminal law allows prosecution for the killing of a child in the womb by an act of violence against the mother only if the child is past the point of viability. In addition, criminal law §2-103(b) permits prosecution for murder or manslaughter only if it can be shown that there was intent to cause death or serious physical injury to the viable fetus.
The law explicitly states that it may not be construed as conferring personhood on the fetus and specifically exempts a mother from being prosecuted for harming her own fetus.

Q: How does the Maryland law immunize abortionists from civil liability?

A: In every area of medicine other than abortion, a person in Maryland may sue a doctor who fails to give all the information necessary for the person to give informed consent. This means that the doctor must tell the patient all of the risks involved in any surgery or treatment, as well as alternatives to treatment. However, Maryland's abortion law explicitly exempts abortionists from this requirement in § 20-209(d) 

(d)    The physician is not liable for civil damages or subject to a criminal penalty for a decision to perform an abortion under this section made in good faith and in the physician's best medical judgment in accordance with accepted standards of medical practice.

Since abortionists generally choose not to provide women with all the information necessary to make an informed decision, this omission is an "accepted standard of medical practice." Therefore, a woman who later claims that she was not given adequate information has no legal recourse. She cannot sue the abortionist because the law grants the abortionist immunity for "a decision ... made in good faith ... in accordance with accepted standards of medical practice."

Q: What does the Maryland law say about health care workers who, because of their religious faith or personal beliefs, refuse to refer patients to abortionists?
A: On May 14, 1991, Gov. Schaefer signed HB 1217 to amend the existing law. This bill removed protection for health care workers who conscientiously object to making elective abortion referrals.

§20-214(d) of the law specifically subjects health care providers and hospitals to lawsuits, disciplinary action, or other recriminatory action for refusal to make elective abortion referrals if it is determined that failure to refer is “the cause of serious long-lasting injury’ and is “contrary to the standards of medical care.”

Under the law, “serious long-lasting injury” means any claimed adverse impact, including "anxiety" or "emotional distress.”

“Standards of medical care” mean those standards set by abortion providers, whose guidelines call for elective abortion referrals regardless of the moral convictions of other health care professionals.

Q: Does Maryland require that abortion facilities file reports about their activities to the state?
A:    No. Maryland had a "voluntary" abortion reporting system until 2005, which meant that no facility that performs abortions was required by law to report the procedure.

However, because fewer abortion providers were participating each year, the voluntary reporting system was quietly discontinued.  Since 2006, no statistics on abortion have been collected in Maryland.

Even Maryland's Department of Health and Mental Hygiene (DHMH) acknowledges that the data it collects is flawed. Its annual report contains the following disclaimer:

“The State of Maryland has a voluntary abortion reporting system, so the data contained in this report are incomplete. The number of facilities submitting data can change from year to year, making comparisons over time unreliable. The quality of the data is uncertain because no independent verification has been done.”

In 2000, only 14 out of an estimated 42 abortion providers submitted abortion data to DHMH. In the most recent report released by DHMH in 2005, only nine abortion providers reported. (DHMH  stopped collecting voluntary data after 2005.)

Consequently, the state has no accurate data on the number of abortions that occur in Maryland, the demographics of the women having abortions in Maryland, and the frequency of complications resulting from the abortion procedure in Maryland.

Resources

Order a copy of a brochure detailing Maryland's abortion law

Download a PDF copy of SB162

Search the Maryland Code On-line

Visit the Maryland General Assembly web site

Visit the MDRTL Legislative page

Sign up for MDRTL Legislative Action Alerts

Sign the 2011 Petition to Protect Life