Changing or repealing constitutional amendments is not impossible, but it is rare and can be difficult, according to a law professor who participated in a Sept. 23 panel about Maryland’s Question 1, the “Right to Reproductive Freedom” amendment.
The question, which will be on the state ballot for the November election, would “enshrine that ‘fundamental freedom,’ without really any meaningful limits,” said Elizbeth Kirk, of the Columbus School of Law in Washington, D.C.
The most famous constitutional backpedaling was the 21st Amendment, which in 1933 repealed Prohibition, which had been enacted with the 18th Amendment. “Prohibition was unwound by a constitutional amendment, but it’s a unique circumstance and unlikely. It’s very difficult once something is enshrined in the Constitution to repeal it,” she said.
The webinar on Question 1, presented by the Maryland Catholic Conference, also featured Erika Bachiochi, a fellow at the Ethics and Public Policy Center, also in Washington. Jenny Kraska, executive director of the MCC, based in Annapolis, moderated the discussion.
Kirk explained that a constitutional amendment differs from a statute. Constitutional amendments are supposed to deal with fundamental laws and government principles versus topical circumstances addressed by statutes passed by legislatures. A constitutional amendment would make it harder for future legislatures to change laws about abortion as science and human understanding about the procedure changes.
Constitutional amendments “tend to be much more significant and serious than statutes or laws in terms of their permanence,” Kirk said.
“Maryland, of course, unfortunately already protects abortion to the fullest extent, but this amendment would enshrine it in the state Constitution permanently, as well as usher in a whole new set of protections for whatever else might be meant by the term ‘reproductive freedom,’” she said.
Kirk noted that if the amendment passes, any challenges to the law must then pass a “strict scrutiny” test, rather than a “reasonable” test that is used to measure challenges to legislative laws. “Any existing laws would be subject to this scrutiny, and it would have a chilling effect on any future laws.”
She said, “Because of this strict scrutiny standard, there’s no effective limits on whatever this extraordinarily sweeping freedom is. So other rights – such as religious freedom rights or parental rights or conscience rights of healthcare providers – are all going to butt up right against this newly declared fundamental reproductive freedom. Who knows how that will shake out? But they will certainly be vulnerable to the extent that they infringe on reproductive freedom.
“I think at a minimum, what you’re going to see with the state of Maryland is extensive, expensive litigation to sort out the scope of this amendment.”
Bachiochi – a legal scholar who works at the intersection of constitutional law, political theory, women’s history and Catholic social teaching – noted that the first women who were physicians in this country were also the first women’s rights advocates.
It was “commonplace that abortion was, in their view, the unjust taking of innocent developing life,” she said. In the mid- to late-19th century, women were “demanding access to education, to contract and property rights.”
Around that same time, other major shifts in public life were happening, the end of the Civil War, Reconstruction and the ratification of the 14th Amendment in 1868, which granted rights to formerly enslaved people.
“Language like life and liberty and equal protection laws and all that kind of stuff is then inserted into the Constitution. And everyone at that time understood that abortion was unjust taking of human life, of a developing child,” Bachiochi said. However, pro-life doctors today who try to make arguments about the value of life in the womb are shut down by the media and others. “The country’s first female doctors recognized their responsibility to care for two patients, mother and child.”
Kirk said that the 2022 Dobbs decision from the U.S. Supreme Court that overturned Roe vs. Wade was right to return the question of abortion to the states, but notes that there have already been some cases where prior modest restrictions have been undone.
Unlike Maryland, which does not have informed consent laws on abortion, Kansas had a modest one that required women seeking an abortion to have information about alternatives, the risks of the procedure, fetal and maternal resources, and more.
Despite assurances that abortion advocates would not challenge any existing statutes, after the state Supreme Court found a right to abortion in the state Constitution, informed consent was overturned.
“That law had no impact on the women’s actual choice, right? It was just giving her information to make an informed choice. And that was struck down,” in view of the constitutional right, Kirk said.
Bachiochi said the Christian commission to care for the vulnerable extends not only to the unborn child but also to women seeking abortions and their families.
Kraska asked the panelists why they would vote against Question 1 if they lived in Maryland.
“I think we should vote against it because it doesn’t meet the needs of women,” Kirk said, as she noted that often women choose abortion because they lack support to raise a child. “Abortion is abandoning women and their children to some sort of notion of autonomy or freedom. But it actually leaves them alone and abandoned.”
Bachiochi said constitutional amendments such as Question 1 are “Band-Aids put on something that is gushing, and we haven’t dealt with the things underneath.” Those include building strong family structures, and this encompasses the community at large.
“We have to think about what real freedom is and freedom is for doing the good, carrying out our responsibilities to one another and the duties we owe to the vulnerable,” Bachiochi said.
The webinar is available on YouTube.
The Maryland Catholic Conference represents the bishops and dioceses in Maryland – the Archdioceses of Baltimore and Washington and the Diocese of Wilmington, Del., which includes Maryland’s Eastern Shore. Resources about Question 1 are available on the MCC website at www.mdcatholic.org/voteno.
Email Christopher Gunty at editor@CatholicReview.org
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