principal pre-Roe statute was based on § 230.3 of the
Model Penal Code. 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.” 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
State’s Attorney had to confirm that there was probable cause
to believe that the rape in fact occurred.
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, and Coleman
v. Coleman, and
by the United States Court of Appeals for the Fourth Circuit in Vuitch
v. Hardy. With
the exception of the conscience provisions, all of the provisions
of the pre-Roe statutes, recodified in 1987, were
repealed in 1991. 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.
Md. Ann. Code art. 43, § 137 (1971),
transferred to Md.
Health-Gen. Code Ann. § 20-208 (1990), by 1982 Md.
Laws 4184, 4184-85.
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
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),
223 (Md. Ct. Sp. App. 1973).
1115 (Md. Ct. Sp. App. 1984).
1370 (4th Cir. 1973), cert. denied, 414
U.S. 824 (1973).
Md. Health-Gen. Code Ann. §§ 20-103,
20-201 to 20-208, 20-210, 20-214 (1990).
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
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)