Then-President Donald Trump speaks at the March For Life rally on the National Mall in 2019. Trump, now president-elect, has said he will not sign national abortion restrictions, but Maryland advocates fear he will. Photo by Mark Wilson/Getty Images
Abortion-rights activists celebrated the overwhelming approval Tuesday of a ballot measure that adds reproductive rights to the state constitution, but woke up Wednesday to President-elect Donald Trump and fears that a Republican-controlled Congress could undermine Tuesday’s win.
Even though Trump backed away from previous anti-abortion positions during this campaign, reproductive-freedom activists fear that abortion protections under the state’s new constitutional amendment would be undermined by a federal abortion ban, if one is enacted, and are working out next steps to take.
“It’s pretty bleak,” said Katie Curran O’Malley, executive director of the Women’s Law Center of Maryland Inc. and a retired Baltimore City District Court judge.
Meanwhile, anti-abortion advocates in Maryland who fought unsuccessfully to stop the ballot amendment, said they are not giving up the fight, but are actively looking for opportunities to challenge the change in court, on First Amendment or other grounds.
“There will be a renewed focus for people of faith, and all people of good will, to fight that” amendment, said Jeffrey Trimbath, president of the Maryland Family Institute, in an interview earlier this week.
Maryland votes to enshrine reproductive freedom in state constitution
There was little doubt before Election Day that Question 1 would pass in Maryland, a staunch reproductive rights state. Just over 74% of voters approved the measure, which amends the state constitution to enshrine reproductive freedom in the document, with the goal of defending abortion rights and other reproductive freedoms from future anti-abortion state or presidential administrations.
“I think the (2024) race reminds us why it was so important to codify reproductive freedom into our constitution, because you never know who will be in power or how that influences policy and laws,” said Erin Bradley, chair of Freedom in Reproduction-Maryland (FIRM). She said that abortion rights activists are “doing their research, analyzing and doing their scenario planning,” to forecast potential challenges to Question 1.
But O’Malley says there are ways that an anti-abortion presidency could hinder statewide abortion protections granted under the new constitutional amendment.
Her fear is that an anti-abortion Congress will present a bill to outlaw abortion throughout the country. She believes that such legislation would most likely either ban abortions after six weeks of pregnancy or a completely ban all abortions except under narrow circumstances.
“He (Trump) could sign the bill, and it’d be a federal ban,” O’Malley said. “And … that federal law then preempts state constitutional protections – so, our state constitutional amendment.”
Trump, an abortion opponent, has said during this campaign that the question of abortion regulation should be left to the states, and that he would veto a federal ban. But abortion rights activists fear he may follow policies outlined in the Heritage Foundation’s Project 2025, which heavily criticizes non-emergency abortions, the abortion medication mifepristone, and “mail-order” abortions.
“There are other things that could happen … Trump can now appoint more judges,” O’Malley said. “He could nominate judges that have sympathy for the idea that the federal constitution protects fetal rights.
“And if you have an anti-abortion lawyer saying that our 14th Amendment applies to a fertilized egg, or embryos and fetuses, and they have a right to due process … that could go up to the Supreme Court,” O’Malley said. “And that’s scary.”
In a statement Wednesday, Maryland Attorney General Anthony Brown said that during a Trump presidency, his office would continue its “dedication to protecting the rights and well-being of Maryland’s communities.” That includes reproductive freedoms granted under the new constitutional amendment, the statement said.
Meanwhile, anti-abortion advocates are looking for opportunities to challenge the new constitutional amendment.
Jonathan Alexandre, legal counsel for the Maryland Family Institute, said he expects there will be conflicts between the constitutional amendment and conscience protections for providers who have religious objections against abortion.
“I think a lot of the lawsuits that you see organically develop are from folks who have conscience objections to late-term abortions, such as doctors that are going to be asked to perform them,” Alexandre said.
He pointed to possible conflicts for, “Nurses or other medical practitioners that are going to be asked to assist in that. Pharmacists and prescribers of medicines that are going to be asked to prescribe abortion pills. Nursing or medical students… that will be forced to learn these things.”
Anti-abortion organizations like the Maryland Family Institute are also looking for instances where the amendment compels speech on so-called crisis pregnancy centers or pregnancy resource centers, which are clinics that aim to discourage pregnant people from seeking abortions and instead urge them to carry their pregnancies to term. Those types of clinics have long been scrutinized for providing misleading information to clients about abortion.
“We do anticipate that — as this is a fundamental right in Maryland, as it will be placed in the state constitution — that it will place more pressure on the work of the pregnancy resource centers to push them … to either acquiesce or profess to something that they inherently disagree with,” Alexandre said.
He said it’s unclear how long it will take for lawsuits to challenge the constitutional amendment to emerge. Trimbath said much the same earlier this week.
“Obviously, you have to have standing. You have to sort of wait until someone has been harmed,” Trimbath said of a possible plaintiff in a legal challenge. “But we’re certainly looking at those things and gaming out where we can have the most favorable outcome on that.”
Bradley, with FIRM, said that in the case of future legal challenges to the amendment, reproductive freedom advocates will “cross that bridge and figure it out.”
“Maryland voters … voted in favor of this overwhelmingly,” Bradley said. “If there is a legal challenge, I’m sure advocates in Maryland and legal minds will make sure that the will of Maryland voters is enacted.”
That said, O’Malley and Bradley were less worried about legal challenges, and more concerned about the potential federal actions that could override the abortion protections provided in Question 1.
“Everything can be challenged,” O’Malley said. “I think the biggest threat to our constitutional amendment … is the federal threat. What’s going to happen in these next four years — I think everybody is sort of bracing themselves for it.”