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No, the right to an abortion is not explicitly in Maryland's constitution

A bill that would add abortion rights to the state's constitution was passed in the Maryland House of Delegates but failed to pass the state Senate this past session

WASHINGTON — In light of the leaked Supreme Court draft opinion on the Roe v. Wade decision, lots of people are discussing what state protections exist.

We’re seeing some people talk about whether or not Maryland’s constitution includes a right to an abortion.

THE QUESTION:

Does Maryland's constitution explicitly provide a right to an abortion?

THE SOURCES:

THE ANSWER:

This is false.

WHAT WE FOUND:

Our experts say there's no explicit right to an abortion in the Maryland constitution; however, that was something proposed in House Bill 1171.

Sponsored by House Speaker Adrienne Jones, the bill passed the Maryland House of Delegates, but the measure failed to advance in the state Senate this past legislative season.

The bill proposed adding an article to the Declaration of Rights that protects, "the fundamental right to reproductive liberty."

"If it had passed, it would have been sent to the voters in November to vote on as a referendum," Michele Gilman, law professor at the University of Baltimore, said. "And if passed, it would go into the Maryland constitution, but that will not be happening because it never was voted on by the Senate."

That's all part of the process to add something to the Maryland constitution. You need a three-fifths vote in both chambers, and then it goes to the voters as a ballot question.

"It has to be ratified, approved by a majority of the voters," David Rocah, senior staff attorney at the ACLU of Maryland, said.

But since none of this happened, we can verify, abortion rights are not explicitly enshrined in the Maryland Constitution. 

Our experts say one could argue that existing constitutional provisions protect abortion rights. For instance, Rocah said one could argue Maryland's equal rights amendment protects reproductive rights; Gilman and associate law professor Odena Neal, both say an argument could be made that the state's right to privacy could include abortion rights.

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"There isn't a specific provision in the Maryland or federal constitution[s] that creates the right to privacy," Odena Neal, associate professor of law at the University of Maryland, said. "The federal constitution has been interpreted to create such a right, however, and Maryland has interpreted its state constitution in accordance with the federal constitution so far." 

That’s not to say that Maryland DOESN’T HAVE any abortion rights on the books.

"We have had the right to abortion protected by statute in Maryland since 1991,” Gilman said.

Gilman explained that constitutional amendments are "more secure" than laws that can "change depending on the political winds." Neal agreed.

"This is why people that want to enshrine the right to abortion in the Maryland constitution are so eager to have it done because it's difficult to do, but it's also difficult to undo," Neal said.

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