University of Maryland Legal Scholars React to Dobbs Leak and Decision

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In the wake of the recent Supreme Court decision overturning Roe vs. Wade and nullifying the federal constitutional right to abortion care, legal scholars at the University of Maryland Francis King Carey School of Law provide sought after expertise in a rapidly shifting reproductive health care landscape. 

Professor Kathleen Hoke, ‘92 penned an op-ed on “Protecting and broadening Maryland’s access to abortion care” in the Baltimore Sun, along with co-authors from The University of Baltimore School of Law Eva Cox, a J.D. candidate, and Margaret Johnson, a professor of law and co-director of the Center on Applied Feminism. Explaining the importance of writing this opinion piece, Professor Hoke noted that “in the aftermath of Dobbs, it is critical that citizens of every state are aware of whether and how their laws protect or infringe access to reproductive health care, particularly abortion care. Margaret, Eva, and I wanted to get that information out so that we know the lay of the land and to suggest we firm up our commitment in Maryland through a constitutional amendment.”

In their piece, the authors break down the existing state laws in Maryland that protect the right to abortion care, noting that “Maryland law allows a person to terminate a pregnancy before viability and any time during pregnancy if necessary to protect a woman’s life and health.” Additional protections in the State include the recently enacted 2022 Abortion Care Access Act, which increases access by ensuring that “qualified providers — including nurse-practitioners and midwives — can provide abortion care along with physicians.” They also note additional criminal law protections for both pregnant persons and abortion providers, as well as state constitutional rights, as “the Due Process and Equal Protection Clauses in the Maryland Declaration of Rights have been construed to be consistent with Supreme Court interpretation of the federal Constitution pre-Dobbs. Maryland also has an Equal Rights Amendment guaranteeing gender equality.” Nonetheless, there are gaps in the state’s abortion-care protections. “For instance, the criminal law does not protect from prosecution a woman who experienced a miscarriage or stillbirth, third parties who assist a person seeking abortion care or the expanded grouping of health professionals now legally permitted to provide abortion care.” Thus, the authors urge state lawmakers and citizens to further enshrine these rights through state legislative action, among other urgent actions.

Professor Hoke, who teaches a course in public health law and directs the Carey Law School’s public health law clinic, explained that “access to reproductive health care—from contraception to childbirth to abortion—is a public health issue. Dobbs and state legislation banning abortion and, in some cases, possibly contraception, will lead to more unintended pregnancies, unsafe abortions, and maternal morbidity. This is particularly among Black people who already suffer less access to care and higher risk of maternal morbidity or mortality in childbirth. Marylanders should be aware that while we enjoy statutory protection for abortion care, a constitutional amendment will better protect pregnant people and abortion care providers.”

You can find the full Guest Commentary here.                                                                                                                    

Other scholars at Carey Law have also shared their expertise with the public. Soon after the draft Dobbs opinion was leaked in May, the University of Maryland Baltimore convened a special session with Professors Mark GraberLeslie Meltzer Henry, and Bob Percival to discuss potential ramifications of the Supreme Court overturning Roe v Wade. You can watch their full discussion here. Professor Henry, an expert in bioethics, constitutional law, and reproductive justice issues, was also quoted in the press discussing the unique position Marylanders are in when it comes to obtaining reproductive healthcare after Dobbs. In a Baltimore Sun article about the likely increased demand for abortion services in Maryland and an expansion of the abortion provider workforce, Professor Henry explained that “in Maryland, the state can’t intervene in the decision to have an abortion before the fetus is viable or any time it’s deemed necessary to save the woman’s life,” which “means we are in a very different place than most people in the country.”

Carey Law Professor Martha M. Ertman also wrote a Guest Commentary in the Baltimore Sun examining a path forward for lawmakers and lawyers frustrated in the wake of the Supreme Court’s ruling in Dobbs. In an apt metaphor comparing lawmaking to gardening, Ertman encourages “smart lawyers” to continue “cultivating good law in the states, Congress and the executive branch.” You can read more here find her full essay here.

In addition to these faculty speakers, the Law & Health Care Program’s 2022/2023 Rothenberg Speaker Series will focus on reproductive justice and the impact of Dobbs. You can register for those events here.