In 1991, legislation was passed in the Maryland House and signed into law by then-governor, William Donald Schaffer, that allowed abortion to stay legal on a state level regardless of whether or not Roe v. Wade is overturned. Since that date, Maryland has been known for being one of the least restrictive states when it comes to abortion regulation. The state currently allows abortion through the third trimester.[i]
In 2017, bills to ban one of the most brutal and inhumane abortion practices – Dismemberment Abortions- were cross-filed in both the Maryland House and Maryland Senate. After failing to receive a vote in committee hearings, these bills, were reintroduced in Maryland’s 2018 General Assembly as House Bill 1355 and Senate Bill 1067 and are more commonly referred to as the Unborn Child Protection from Dismemberment Abortion Act of 2018.
Dismemberment Abortions are a common type of D&E abortion which involves dismembering a living unborn child piece by piece and is typically performed on living, developing, unborn children after the second trimester; a stage in fetal development where medical science has demonstrated the unborn child has the necessary structures to experience pain.
Had it been enacted; The Unborn Child Protection from Dismemberment Abortion Act of 2018 would have protected living unborn children from the dismemberment abortion procedure. It would not have banned all D&E Abortions, only the ones performed on living unborn children. D&E Abortions would still be allowed if patients first undergo another procedure to stop the fetus’ heart.
Similar bills which ban this specific Dismemberment Abortion procedure have been passed in eight states and are in litigation in six of those states. However, these bills are likely to be upheld by the Supreme Court as constitutional in light of its decision upholding the Partial-Birth Abortion Ban Act of 2003, Gonzales v. Carhart.[ii]
The Gonzales Court quotes a Congressional Finding from the Partial-Birth Abortion Ban Act, “Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life. The same principle applies to Dismemberment Abortions, in which a sharp instrument is used to slice up a living unborn child.”
Opponents of House Bill 1355 and Senate Bill 1067 say a procedure to stop the fetus’ heart is medically unnecessary and exposes patients to additional risks.
In the second and third trimester a feticide procedure prior to a D&E abortion is usually accomplished with an injection of potassium chloride, injection of digoxin, or by cord transection which all result in the death of a fetus within two minutes.[iii]
A hearing for House Bill 1355 took place late on a Friday afternoon in March and was scheduled to be heard by the House Health and Government Operations Committee on the same day that two other abortion regulation bills, House Bill 1424 and House Bill 1335, had been scheduled.
As the committee hearings began, Committee Chair Delegate Shane Pendergrass (D-Howard County), called up sponsors to both House Bill 1355 and House Bill 1424 (The Pain Capable Unborn Child Protection Act, sponsored by Delegate Barrie Ciliberti, R-Frederick and Carroll Counties) and began proceedings asking to combine hearings for both bills stating that she “thought these bills were similar enough” and that sponsors probably had the same people testifying to have them heard at the same time.[iv]
Bill sponsors were quick to defend that each bill needed to be heard separately and were different in nature although the subject matter of both bills were similar in nature – creating abortion regulation in Maryland and protecting the unborn from painful and inhumane deaths.
Testimonies in support of passing Maryland’s Unborn Child Protection from Dismemberment Abortion included opening remarks from bill sponsor, Delegate William Wivell (R-Washington County), blatantly shared with the committee and those in attendance that “all this bill does is require the unborn child be killed by injection before it is brutally ripped apart.”
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Other testimonies in support of House Bill 1355 countered the opposition’s argument ‘that stopping the heart of a fetus exposes patients to additional risks” by sharing studies that showed no difference in complications between women injected with a feticidal agent prior to a D&E Abortion and those injected with a placebo.[v]
House Bill 1355 was never brought to a vote by the House Health and Government Operations Committee after hearings commenced for the day and Senate Bill 1067 (sponsored by Senator Justin Ready, R-Carroll County) was never brought out of Senate Rules Committee to allow for public committee hearings.
The response to Maryland’s Unborn Child Protection from Dismemberment Abortion Act of 2018 by Maryland lawmakers in the General Assembly continues to show what little regard many of the elected officials have in upholding the duty of the state to protect its most vulnerable citizens.
The aforementioned Gonzales case justified the federal law protecting unborn children based on the government’s “interest in protecting the integrity and ethics of the medical profession,[vi] and on the “premise…that the State, from the interpretation of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child…where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including the life of the unborn.”[vii]
Main bill sponsors weren’t surprised by the committees’ lack of response to their bills but plan on reintroducing similar legislation in Maryland’s 2019 General Assembly. “It’s disheartening to see how so many fellow lawmakers are aware of how brutal and inhumane this practice of Dismemberment Abortion is but won’t speak out or address the reality of what we are continuing to allow happening,” said Delegate William Wivell.
[ii] 550 U.S. 124 (2007).
[iii] Centre for Fetal Care, L Pasquini, V Pontello, S Kumar, November 2007.
[v] Patricia A. Lohr, “Surgical Abortion in the Second Trimester,” Reproductive Health Matters 151, 152 (2006).
[vi] Id. At 157, quoting Washington v. Glucksberg, 521 U.S. 702, 731 (1997).
[vii] Gonzales, 550 U.S. at 158