By: Marissa Yelenik
ANNAPOLIS – As Maryland questions whether reproductive rights should appear in the state constitution, advocates for and against the referendum work to sway voters.
The referendum will appear as Question 1 on the 2024 ballot asking voters to decide whether a right to reproductive freedom should be constitutionally guaranteed in the state of Maryland.
Those in support of the referendum say it would more permanently enshrine protections for reproductive freedom in Maryland. Current protections are under state law, which can change by action of the state legislature.
“Maryland already has laws protecting abortion, but we’ve already seen across the nation just how quickly those protections can get ripped away,” said Megan Outten, a board member for Reproductive Justice Maryland. “Statutes can easily be overturned, but giving Marylanders this constitutional amendment is going to provide us with lasting security.”
But the sensitive topic has also invited a plethora of criticism, with those opposing it claiming that this amendment would cut out their voices entirely.
“There’s more than just this blue or red conversation on abortion,” said Jonathan Alexandre, legislative counsel for the Maryland Family Institute. “Individuals should have the opportunity to continue to work through their legislature on these issues. Something like Question 1 cuts out the conversation altogether.”
Across the country, there has been an unprecedented wave of abortion-related legislation since the 2022 ruling in Dobbs. v. Jackson Women’s Health Organization, which determined there is no U.S. constitutional right to abortion. Ten other states have placed abortion-related constitutional amendments on their 2024 ballots.
Maryland lawmakers began working on state constitutional protection for abortion and reproductive rights over a year ago. In 2023, the Maryland General Assembly voted to place the referendum on the 2024 ballot, approving it by large majorities. According to a 2014 Pew Research study, 64% of Maryland adults think abortion should be legal in most cases.
The ballot question says 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.”
It also says 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.”
Opponents of the referendum claim that the language is too vague for voters to understand how it would work in practice.
“I think it’s short-sighted [for] the legislature to put such broad language in and then have people go to the polls and decide something that isn’t clear,” said Alexandre.
Alexandre expressed worry about the expansion of the term “reproductive freedom,” arguing that the unclear terminology will be used to expand the implied protections to gender-affirming care of minors.
“There’s no age limits to this, so it allows minors … to not only procure abortions and participate in that but also reproductive freedom has been stretched to almost include gender identity surgeries and the physical reconstruction of minors,” Alexandre said.
Others believe the amendment will not protect individual rights, but rather act as a barrier to putting additional safety regulations in place.
“Maryland already has extraordinarily permissive access to abortion in the state already, that doesn’t change whether this amendment passes or not,” said Jenny Kraska, executive director of Maryland Catholic Conference. “If it passes, it disallows the ability to ever put safeguards [or] regulations in place that may protect women and children”
But supporters of the referendum claim that voters do not have to worry about safeguards or regulations, as Maryland already has medical malpractice laws to protect individuals from subpar, negligent or outright harmful care.
“It doesn’t mean just because we put this in place that somehow that’s going to change anything that’s existing,” said State Sen. Dawn Gile, D-Anne Arundel County. “We already have in place certain requirements for healthcare, for parental consent.”
Under current law, the parents or guardians of a minor must be notified before a minor has an abortion but their consent is not required. Parental notification can be subverted in certain circumstances at the doctor’s discretion, including concerns that the information may lead to abuse of the minor, belief that the minor is mature and able to give their own informed consent, or belief that notification would not be in the minor’s best interest.
Gile pushed back on criticism of the referendum’s language, emphasizing that constitutional amendments are always broad, providing a standard for future laws rather than imposing restrictions or regulations themselves. The statutes and regulations that are passed, she said, serve to specify what will or will not be allowed.
“When [the founders] were first writing our United States Constitution, they couldn’t grasp or understand all those types of things that we would develop here in the future,” Sen. Gile said. “They have to be broadly written.”
Gile wants to make sure that Maryland maintains access to reproductive care, regardless of whether laws change in the future.
“I want to guarantee that here in Maryland we recognize the right to reproductive freedom, that we recognize the right to make healthcare decisions for our own bodies,” said Gile.
Supporters and opponents are each working with other groups and holding rallies to educate voters on what this referendum would mean for Maryland before they cast their ballots on Nov. 5.
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