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Annapolis, MD 21401

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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.

NARAL, formerly known as the National Abortion Rights Action League, gives Maryland an "A" for permissive abortion law and access.  Maryland ranks fifth in the nation as of 2012 for the most permissive laws. By contrast, our neighbors are notably more pro-life: Delaware earns a "C+", Pennsylvania earns an "F", Virginia earns an "F" and West Virginia earns a "B".

Maryland's Pro-Life Accomplishments

 

Treatment Pending Transfer, 1993
This law ensures that a patient in need of lifesaving care receives that care.  If a provider refuses to provide that wanted care, under this law, such care must be provided until the patient can be transferred to a willing provider.

Prohibition of Assisted Suicide, 1999
By making assisted suicide illegal, Maryland law is protective of the most medically vulnerable in our state.  Elsewhere in the world and in our own country where assisted suicide is legal, the policy acts as a cultural (friends, family, society) and financial (insurance, Medicaid, medical facility's costs) coercion on the elderly and disability communities to end their lives.
 

Safe Haven Act, 2002
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.  A list of current Safe Haven locations can be found by clicking here.

Unborn Victims of Violence Act, 2005
Anyone causing the death of a viable fetus may be prosecuted for murder or manslaughter, 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.

Cord Blood Banking, 2011
This bill allows for banking of cord blood, which is rich in ethical, adult stem cells.  This makes Maryland a leader in this area of ethical biotechnology and shines light and emphasis on adult stem cells, which have led to around 80 different cures and treatments of illnesses, disabilities, and injuries.

 

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 the past decade worth of data Maryland taxpayers were forced to pay between $2 million and $3 million for just those abortions in the Medicaid program.  This cost covered between approximately 3300 and 5000 abortions per fiscal year.  Cumulative data from the past decade indicates about 99.8% of all these taxpayer funded abortions in the Medicaid program are justified under the guise of "mental health".  Sadly, Medicaid abortion figures have been on the rise recently.

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 by Maryland.

Because of inconsistent response rates in the voluntary system, the data has not proved valuable in understanding pregnancy in Maryland.  Since the legalization of abortion, Maryland has never known the actual pregnancy rate for women in Maryland and thus has no way to verify efforts to reduce unplanned pregnancy rates in the state.

Maryland General Assembly:
http://mlis.state.md.us/

Legal analysis provided by Mary Spaulding Balch, Attorney-at-law, National Right to Life Committee State Legislative Department. 

Maryland Right to Life • 420 Chinquapin Round Rd., Suite 2-I • Annapolis, MD 21401 • 410-269-6397 • 301-858-8304• www.mdrtl.org