MARYLAND, USA — In September 2021, the state of Texas enacted a law that allows any private citizen to sue any healthcare providers they believe to be involved in an abortion performed about six weeks after conception. Despite many challenges in many courts, the law is still in place. Now, some states are taking to the legislature to make sure the same doesn’t happen at home.
Washington state was the first to do so. Gov. Jay Inslee signed into law a bill that, starting in June, will prohibit any legal action against someone seeking or assisting in performing an abortion. Some members of the Maryland state legislature want to be next.
State Del. Nicole Williams and her 47 cosponsors are hoping to pass House Bill 626 (HB 626), titled the Pregnant Person's Freedom Act of 2022. Del. Williams told WUSA9 this bill was written as a direct reaction to strict abortion laws like those in Texas.
“The goal is basically to state that you cannot be prosecuted or sued for civil damages for experiencing a pregnancy loss, whether that's a miscarriage, stillbirth or seeking abortion care,” Del. Williams said. “A lot of our clinics have seen a huge uptick of women who aren't necessarily Marylanders coming to our state to seek the care that they need. And so we want to make sure that when they come here to Maryland, they are not penalized, prosecuted or sued civilly for simply doing that.”
Opponents of this bill in Maryland made their voices heard in a March 11 Health and Government Operations Committee hearing and on social media, stating that the bill in question would “allow babies to be killed up to 28 days after birth” with no legal repercussions. Proponents call this a misinterpretation.
The claim is based on a single provision surrounding perinatal deaths, so we dug into what the bill would really do.
Would Maryland HB 626 “allow babies to be killed up to 28 days after birth” as claimed by bill opponents?
This claim is misleading. The bill is intended to prevent criminal penalties for deaths related to pregnancy, like stillbirth or miscarriage. It also protects parents and doctors from litigation if they decide not to apply interventions in extreme cases, like one in which a newborn is unlikely to survive long-term. The bill does not legalize manslaughter or homicide.
The provision in question originally read “This section may not be construed to authorize any form of investigation or penalty for a person…experiencing…perinatal death related to a failure to act…” A new amendment changes this to “…experiencing…perinatal death related to an act or omission during the pregnancy.” This clarifies the bill to only cover deaths related to issues during pregnancy.
It’s important to note this bill is extremely unlikely to pass any time soon. The House Bill has had one committee hearing and no vote has been scheduled. The Senate version of the bill will not get a hearing this session. The Maryland Legislative session ends on April 11 and the next session doesn't begin until Jan. 2023, therefore the Pregnant Person's Freedom Act of 2022 likely will not pass this year.
WHAT WE FOUND
Almost every person who testified against this bill in a March committee hearing spoke in opposition to the provision of HB 626 which references “perinatal deaths.” Before we understand this bill, we need to understand what perinatal death is. Dr. Rajan explained it is not a cause of death, but a time period of death, which she said has varying definitions depending on who you ask.
“That period can be described as the month before delivery to seven days after delivery, while other references will say up to 28 days after delivery,” Dr. Rajan said. “So there's varying definitions of what that phrase means, but the concept is a death that occurs proximately to the delivery.”
The backlash against this bill surrounds the original language which would have shielded a pregnant person from investigation or legal action for a death during the perinatal period as a “failure to act.” In a medical sense, Dr. Rajan reads this to cover situations in which a newborn needs intense or long-term medical intervention in order to survive, and after deliberation with medical professionals, the family decides not to pursue it.
“For instance, someone has an extremely preterm birth—say at 20 weeks gestation—and that infant is born with a heartbeat but really has no meaningful chance of survival down the road, or it would require extreme interventions,” she explained. “A failure to act implies something negative, but really is just a decision that is made to allow for comfort care in those moments instead of the more active resuscitation model. That's the way I would interpret something like that.”
But others interpreted this to mean that any death of a newborn, including by neglect, would be effectively decriminalized by this bill. One opponent who testified to the Health and Government Operations Committee was Olivia Summers, associate counsel for public policy at the American Center for Law and Justice, a group that often advocates for pro-life causes. Summers testified that the bill would prohibit investigations into the death of newborns, contradictory to the state’s efforts to lower the rates of infant mortality.
In response to these critiques, an amendment was proposed to narrow the scope of these protections to specifically protect those involved in the death of a fetus or newborn due to pregnancy complications.
“The intent of this bill is really just to protect women who are experiencing a pregnancy loss. Sometimes that pregnancy loss, the beginning of it, could be the result of something that's happening in the womb, but then the actual loss may occur after the baby is born,” explained Del. Williams, the bill’s primary sponsor. “We put in an amendment just to make it extremely clear.”
You can read the original Pregnant Person's Freedom Act of 2022, without the amendment, HERE.
However, an essential part of this story is the bill's likelihood of becoming law. For 2022, the outlook is not so great. The Senate version of the bill, SB 669, has not been granted a hearing date and likely will not get one before the end of the 2022 legislative session, which ends April 11. And while the House bill did have a hearing, a committee vote is yet to be scheduled. The bill may reappear in the 2023 session, but that’s a story to tell at a later date.