The principal pre-Roe statute was based on § 230.3 of the Model Penal Code.1 An abortion could be performed at any stage of pregnancy when “continuation of the pregnancy [was] likely to result in the death of the mother.”2 An abortion could be performed within the first twenty-six weeks of gestation when (1) there was “substantial risk that continuation of the pregnancy would gravely impair the physical or mental health of the mother,” (2) there was “substantial risk of the birth of [a] child with grave and permanent physical deformity or mental retardation,” or (3) the pregnancy resulted from a forcible rape.3 The State’s Attorney had to confirm that there was probable cause to believe that the rape in fact occurred.4
Pursuant to Roe and Doe, the limitations on the circumstances under which abortions may be performed and the requirement that all abortions be performed in hospitals were declared unconstitutional by the Maryland Court of Special Appeals in State v. Ingel,5 and Coleman v. Coleman,6 and by the United States Court of Appeals for the Fourth Circuit in Vuitch v. Hardy.7 With the exception of the conscience provisions, all of the provisions of the pre-Roe statutes, recodified in 1987,8 were repealed in 1991.9 These statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason at any stage of pregnancy.10
1 Md. Ann. Code art. 43, § 137 (1971), transferred to Md. Health-Gen. Code Ann. § 20-208 (1990), by 1982 Md. Laws 4184, 4184-85.
2 Id. § 137.
3 Id. Unlike most statutes based on § 230.3 of the Model Penal Code (other than Georgia), the Maryland statute did not expressly authorize an abortion where the pregnancy resulted from incest. As the experience in California demonstrated, mental health exceptions were widely abused. See People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting that more than 60,000 abortions were reported in 1970, more than 98% of which were performed for alleged reasons of mental health).
4 Id. The law imposed other conditions. Abortions could be performed only by licensed physicians in licensed hospitals accredited by the Joint Committee on Accreditation of Hospitals. Id. § 137(a). The procedure had to be approved by a hospital review authority, which was required to keep detailed written records of all requests for authorization and its action thereon. Id. §§ 137(b)(2), -(c).
5 308 A.2d 223 (Md. Ct. Sp. App. 1973).
6 471 A.2d 1115 (Md. Ct. Sp. App. 1984).
7 473 F.2d 1370 (4th Cir. 1973), cert. denied, 414 U.S. 824 (1973).
8 Md. Health-Gen. Code Ann. §§ 20-103, 20-201 to 20-208, 20-210, 20-214 (1990).
9 1991 Md. Laws 1, ch. 1, § 1. In repealing its pre-Roe statutes, Maryland enacted a new statute providing, inter alia, that “the State may not interfere with the decision of a woman to terminate a pregnancy: (1) Before the fetus is viable; or (2) At any time during the woman’s pregnancy, if: (i) The termination procedure is necessary to protect the life or health of the woman; or (ii) The fetus is affected by genetic defect or serious deformity or abnormality.” Id., codified as Md. Health-Gen. Code Ann. § 20-209(b) (Supp. 1991). No such legislative statement is required to make abortion legal in any State. In the absence of specific legislation making abortion criminal (either pre- or post-Roe), abortion would remain legal even if Roe v. Wade were overruled.
10 Current Maryland law places no restriction on the reasons for which an abortion may be performed after viability. See MD. HEALTH-GEN. CODE ANN. § 20-209(b)(2) (2000)
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