Abortion access under Trump is ‘a question mark’ – The Mercury

Maryland was one of 10 states that had measures to protect abortion access on the ballot during the presidential election, and one of seven to pass it. But what does it mean when states act to preserve abortion access while the country returns to the White House, Donald Trump, who has previously boasted about appointing the U.S. Supreme Court justices who were instrumental in overturning Roe v. Wade in 2021?

“It’s a conundrum,” said Robyn Elliott, a managing partner at Public Policy Partners in Annapolis. “I think when we, as a public, think about abortion and reproductive health, that we often frame it as a right. The challenge that we are going to be facing almost immediately is that … rights do not equate to access.”

Questions swirl about whether a new Trump administration will block abortion care, especially in states like Maryland that have enshrined access. Many are turning their eyes to Project 2025, which is a presidential transition project created by the Heritage Foundation for conservative administrations.

“The top line: It is about using federal authority in any manner possible to restrict access to reproductive health services, so anything from potentially defunding Medicaid programs to rolling back some of the protections that we currently have through either federal law or, in some cases, regulation,” said Elliott.

‘The fight is not over’

Project 2025, from which Trump distanced himself during the campaign, states that “Abortion and euthanasia are not health care,” and that the U.S. Centers for Disease Control and Prevention should not promote it as such.

Among many anti-abortion measures under Project 2025, it recommends that the CDC fund studies into the risks abortion may pose, and suggests that the U.S. Department of Health and Human Services cut funding from states like Maryland that don’t participate in abortion data collection. The data collection includes how many abortions take place, at what gestational period and for what reason — including spontaneous miscarriage. It also calls for the U.S. Food and Drug Administration, FDA, to reverse the approval of abortion medications like mifepristone and the implementation of the 1873 Comstock Act to prohibit abortion pills from being sent through the mail.

The Victorian-era Comstock Act is a law that prohibits sending lewd or lascivious material, like pornography, or any material intended for producing abortions, like the drug mifepristone, through the mail. It is not typically adhered to in the modern day, but Elliott questions how it will be interpreted under a new Trump administration.

According to the Guttmacher Institute, a research nonprofit that aims to advance sexual and reproductive health and rights, medication abortions account for more than half of U.S. abortions.

Mifepristone’s FDA approval was recently challenged in the federal courts. The U.S. Supreme Court preserved access to the drug earlier this year, deciding that the plaintiffs in the case lacked the legal right or standing to sue.

Ahead of the Supreme Court’s ruling, Gov. Wes Moore, a Democrat, made efforts to stockpile Mifepristone.

“We will see other attempts to test whether or not the Comstock law can be applied in today’s world,” Elliott warned.

Still, many are celebrating enshrining access to reproductive freedom in the state constitution while acknowledging the challenges ahead.

“While this week marked an enormous victory in our work to protect a woman’s right to choose, our fight is not done,” Moore posted on X.com. “The mission continues to keep Maryland a safe haven for abortion access, deliver critical supports centered on protecting bodily autonomy, and provide Marylanders with the resources they need to make their own, informed decisions about family planning and health care.”

House Speaker Adrienne A. Jones, a Baltimore County Democrat who sponsored the legislation creating the ballot question, thanked everyone who voted in its favor.

“But the fight is not over!” she posted on X. “It won’t be until EVERY woman in EVERY state has the same access to the reproductive care they need to stay healthy & safe.”

How Maryland has tried to protect abortion access

Tuesday’s passage of the measure to enshrine access to abortion care in the state Constitution isn’t Maryland’s first attempt at protecting access.

In 1991, Maryland lawmakers passed a bill barring the state from interfering with abortion access until a fetus reaches viability, which occurs around 24 weeks. After that point, abortions can only be performed if there is a fetal anomaly or the pregnant person’s life is at risk. That measure was codified through a statewide ballot referendum in 1992.

In 2019, former state House Speaker Michael E. Busch, an Anne Arundel County Democrat, introduced a bill that would have created a ballot initiative to enshrine abortion access in the state constitution. Busch withdrew the legislation, citing a lack of interest that session from former Senate President Thomas V. “Mike” Miller Jr, a Democrat from Calvert County.

“That the people have the right to bodily integrity and privacy to make personal decisions about childbearing and procreation without unwarranted government intrusion,” Busch’s proposed ballot measure read.

In 2019, Busch’s chief of staff Alexandra Hughes said he planned to re-introduce the legislation the following year. Busch died just before the end of the 2019 legislative session.

In 2022, Jones sponsored legislation that would have put the 2024 constitutional amendment on that year’s midterm ballot. Her bill passed out of the House chamber, but stalled in the Senate.

With the knowledge that the U.S. Supreme Court decision that overturned Roe v. Wade was imminent, the Maryland General Assembly made more successful steps in recent years to ensure that access to reproductive health care services in the state would be expanded rather than erased.

In 2022, the legislature passed the Abortion Care Access Act, which requires the state to earmark $3.5 million in its annual budget for training medical professionals, including nurse practitioners, nurse midwives, physician assistants and licensed certified midwives, to provide abortion care. It also made Maryland’s existing abortion care coverage under Medicaid permanent, and mandated that private health insurance plans cover abortion care without cost-sharing or deductibles, save for those with religious or legal exemptions.

Project 2025 seeks to prohibit Planned Parenthood from receiving Medicaid funding.

Elliott said that Maryland pays for abortion care in Medicaid “entirely with state funds.”

“So the legal question that would arise is whether or not the federal government had the legal authority to restrict what Maryland does with its own funding,” she said.

In 2023 — the same year the General Assembly voted in favor of putting Question 1 on the ballot — the legislature passed a bill requiring patient consent in order for records regarding their reproductive health care, including abortion and pharmaceutical dispensing data, to cross state lines via digital health information exchanges. The Reproductive Health Protection Act, which prohibits Maryland from aiding other states’ criminal investigations of and court proceedings against patients and providers involved in abortions, was passed the same year.

A big ‘if’

Though Maryland is well set to protect abortion, the state’s biggest threat to access would be a federal ban.

“All of it goes away, I think, if there’s going to be a federal ban, and that’s a big ‘if’ right now that everybody’s worried about,” said Katie Curran O’Malley, a retired judge and the executive director of the Women’s Law Center of Maryland. “But is there a will?”

Todd Eberly, a political science professor at St. Mary’s College of Maryland, said that Trump stated clearly on the campaign trail that he is not in favor of an all-out ban on abortion access.

“That would be a pretty big reversal for him to embrace it,” he said.

While the U.S. Senate has secured a Republican majority, the party that will lead the House chamber was still unclear as of Friday afternoon.

In terms of Congress passing a federal ban, Eberly said it’s dependent on how serious current Senate Minority Leader Mitch McConnell is about maintaining the filibuster, which allows for prolonged debate and requires 60 of 100 senators to end.

“I know that there are pressures on the Republican Party to look at the victory as proof that they can take a harsher stand on abortion,” Eberly said. “You still have the real math problem of, if the filibuster remains, how do you pass it?”

Elliott said that, should Congress pass a ban that Trump signs, there would be a “very comprehensive nationwide strategy” to utilize the courts to preserve access.

Should it come to pass, Attorney General Anthony Brown said Thursday that the goal of his office and like-minded attorneys general would be to challenge restrictions or bans in court, whether they come in the form of criminalizing the assistance of a pregnant person seeking an abortion or stripping funding from states that don’t accept restrictions.

Through the Maryland Defense Act of 2017, Brown has the authority to proceed with civil or criminal lawsuits against the federal government based on actions or inactions it takes against the public interest. He said his office is planning to submit a budget request for the 2026 fiscal year that is “over the target” to fund his federal litigation unit, and has posted job openings for five attorneys and a paralegal to staff the team.

In his final years in office, Brown’s predecessor, Attorney General Brian Frosh, sent over 90 letters to former Gov. Larry Hogan informing him of actions he was taking against the first Trump administration.

But, even with a prepared attorney general, the impact of a second Trump presidency on abortion access remains unclear.

“We unfortunately don’t know the outcome of what that litigation would be, just like in any other case, given the way that the courts have been appointed during the past Trump administration,” Elliott said. “So what we’re really looking at, unfortunately, is a question mark.”

Originally Published: November 12, 2024 at 12:37 PM EST