[Baltimore Sun] Maryland abortion-rights opponents say amendment is ‘Trojan horse’; supporters say passage is critical

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Abortion-rights advocates are in the midst of a campaign to enshrine abortion protections in a state constitutional amendment this fall.

Parental rights advocates also are gearing up in opposition — door-knocking and sharing literature with voters, preparing for TV and radio advertisements and fundraising. They say the proposed amendment establishing a right to reproductive freedom isn’t what it seems, making the claim, disputed by abortion-rights advocates, that the amendment would open the door for children to receive gender-affirming care without their parent’s consent.

“This amendment is not about abortion. It is about parental rights,” said Jeffrey Trimbath of the Maryland Family Institute, speaking at a Parental Power Summit earlier this month.

The language passed by the General Assembly last year created the proposed amendment, saying the following: “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.”

Deborah Brocato, chair of Health Not Harm MD and a Maryland Right to Life lobbyist, points to the word “person,” saying this could indicate a child — with no age parameters in the amendment. She also highlights the phrase “including but not limited to,” saying this language leaves the door open to drugs or procedures affecting the reproductive anatomy, including gender-affirming surgeries.

“This would apply to anything that has to do with the reproductive system or reproductive anatomy,” Brocato said. “It is a Trojan horse to trick pro-choice Marylanders into voting away their parental rights.”

But Katie O’Malley, executive director of the Women’s Law Center of Maryland and a retired Baltimore City District Court judge, says that’s a misinterpretation. She said the amendment’s language is meant to encompass issues like abortion, birth control, and in vitro fertilization, and has nothing to do with gender-affirming care.

“This doesn’t open the door to any of that, and that’s just a scare tactic I think that they’re using to confuse voters,” said O’Malley, wife of former Maryland Gov. Martin O’Malley, a Democrat.

Abortion opponents face an uphill battle to get Maryland voters to reject the proposed amendment. In a 2022 poll conducted by Baltimore Sun Media and the University of Baltimore, 71% of respondents said Maryland should bolster abortion rights by amending the state’s constitution.

In addition, California, Michigan, Vermont, and Ohio all passed measures establishing a constitutional right to abortion over the past two years since Roe v. Wade was overturned. Voters in at least three other states — Colorado, Florida, and South Dakota — will have ballot measures related to abortion this November, according to the National Conference of State Legislatures.

Brocato argues that Maryland’s proposed amendment is not necessary to protect abortion, because the state already has broad abortion protections that would not be changed by voting against the amendment.

But abortion rights advocates respond that a constitutional amendment would make it harder to reverse the protections currently in place, especially if there’s a political power shift in the years ahead.

“Since Roe v. Wade was overturned, anti-choice zealots have aggressively pushed abortion bans, undermined access to IVF, and even outright attacked birth control,” said Freedom in Reproduction Maryland, an organization advocating for the amendment, in an emailed statement. “In Maryland, we’ve already witnessed countless attempts in the state legislature to roll back reproductive freedom, and neighboring West Virginia even passed an outright abortion ban.”

Brocato contrasts the amendment with earlier ballot measures that involved more limited language. In 1992, Maryland voters passed the Freedom of Choice Act, which states in specific terms that “the State may not interfere with the decision of a woman to terminate a pregnancy.” In addition, a 2022 ballot measure asked voters if they wanted to legalize cannabis, with specific language regarding age — residents must be at least 21 years old to purchase marijuana.

During the Senate floor debate over the abortion amendment bill last year, Republican Sen. Bryan Simonaire of Anne Arundel County proposed an amendment, which was rejected, specifying that children are not allowed to consent to alteration of their reproductive anatomy without parental consent. Democratic Sen. Dawn Gile of Anne Arundel County countered that current law allows only a few exceptions where a child can receive health care or surgical operations without parental consent – and gender-affirming surgery isn’t one of the exceptions.

Simonaire suggested that if there appears to be a conflict between existing law and the constitution, the issue must be settled in court. “What this bill does – it sets the bar. And if it’s in conflict with Maryland law, the constitution wins,” he said.

Simonaire said in an interview with The Baltimore Sun that his amendment wouldn’t have removed access to gender-affirming care, but only would have required parental consent.

“They had the opportunity to limit this so it wouldn’t allow children to do that without parental consent. And they specifically and purposefully said, ‘We reject that amendment. We want this to be the way it is,’” he said.

Gile told The Sun the amendment was written with broad language on purpose, because “constitutional amendments have to stand the test of many generations.”

Gile also explained that the reason the word “person” was used instead of “woman,” was so it would encompass men’s reproductive freedom when it comes to birth control, such as undergoing a vasectomy.

The Sun also asked Democrat House Speaker Adrienne Jones of Baltimore County about the parental rights concerns. She replied that the amendment “is about protecting access and the right to reproductive health care in Maryland,” and that the legislation was passed “because threats to our reproductive health care are real – even here in our State.”

A wrinkle in the debate is the question of how closely the language in the amendment will reflect the language on the ballot voters will receive this November, since the two aren’t required to exactly match. The final decision is up to Maryland’s Office of the Secretary of State, with a deadline of Aug. 2.

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