After the Supreme Court's 1983 abortion trilogy, which of Maryland's abortion laws on parental notice, hospitalization, and recordkeeping were still constitutional?

Plain-English summary

The Secretary of Maryland's Department of Health and Mental Hygiene asked the Attorney General to analyze how three 1983 Supreme Court decisions, City of Akron v. Akron Center for Reproductive Health, Planned Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, and Simopoulos v. Virginia, affected several Maryland statutes governing abortion: parental notification for minors, mandatory hospitalization, recordkeeping and reporting, and informed consent.

Applying the constitutional framework the Supreme Court had built on Roe v. Wade and Doe v. Bolton, under which a state's interest in maternal health became compelling only after the first trimester and its interest in potential life became compelling at viability, the opinion reached four separate conclusions. First, Maryland's parental notification statute, HG §20-103, was unconstitutional because it required notice for mature and immature minors alike without offering any alternative procedure by which a minor could show a court she was mature enough to decide for herself or that notification would not serve her best interests, a defect the Court had identified in Bellotti v. Baird and Akron. Second, the statutes limiting all abortions to full-service, accredited hospitals, HG §§20-208 and 20-210 and HO §14-504(24), were unconstitutional because they were functionally identical to hospitalization requirements the Court struck down in Akron and Ashcroft, unlike the Virginia statute upheld in Simopoulos, which had been construed to include outpatient facilities within the definition of "hospital." Third, Maryland's fetal death recordkeeping and reporting statutes were constitutional as recordkeeping requirements, since Planned Parenthood of Central Mo. v. Danforth had approved confidential recordkeeping, but were unconstitutional to the extent they allowed the records to be disclosed publicly, since Maryland's statutes lacked the confidentiality safeguards the Supreme Court found essential in Danforth and Ashcroft. Fourth, Maryland's informed-consent statute, HG §20-211, requiring that a woman be advised of available pregnancy and childbirth assistance, was constitutional because, unlike the Akron ordinance, it did not require that only a physician deliver that information.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why did the opinion find Maryland's parental notification law for minors seeking an abortion unconstitutional?
Because it required notice to a parent or guardian in every case except two narrow exceptions, without giving a minor any way to go to a court and show either that she was mature enough to decide for herself or that, even if immature, an abortion would be in her best interests, an alternative the Supreme Court had said was constitutionally required in Bellotti v. Baird and Akron.

Did Maryland require all abortions to be performed in a hospital, and was that allowed?
Maryland law at the time required abortions to be performed in a hospital accredited by the Joint Commission for Accreditation of Hospitals, and the opinion found that requirement unconstitutional because it was materially identical to the hospitalization rules the Supreme Court struck down in Akron and Ashcroft, which found no medical justification for confining abortions to full-service hospitals once outpatient facilities could safely perform them.

Was it constitutional for the state to keep records on abortions performed in Maryland?
Yes, the opinion found recordkeeping itself constitutional, since the Supreme Court in Danforth had upheld confidential recordkeeping as useful to protecting maternal health. The problem the opinion identified was that Maryland's specific statutes allowed the resulting fetal death records to be disclosed to relatives, local officials, and researchers without the confidentiality safeguards the Supreme Court required.

Did the opinion say Maryland could still require a woman to be told about adoption and financial assistance options before an abortion?
Yes. The opinion found HG §20-211, which required a woman be advised of financial and material assistance available for continuing a pregnancy, raising a child, or pursuing adoption, was constitutional because, unlike the Akron ordinance the Supreme Court struck down, it did not require that only a physician provide this information, avoiding the defect that made Akron's comparable provision unconstitutional.

Background and statutory framework

The opinion applied the trimester framework the Supreme Court established in Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973): before the end of the first trimester, a state could not substantially burden a woman's decision; from the second trimester on, a state could regulate the abortion procedure in ways reasonably related to maternal health so long as the regulation did not depart from accepted medical practice or unreasonably burden access; and after viability, a state's interest in potential life became compelling enough to support regulation up to and including prohibition, except where necessary to preserve the woman's life or health. The three 1983 companion cases applied that framework to specific regulatory tools: Akron struck down a hospitalization requirement, a parental notice requirement with no judicial bypass, and a mandated-disclosure informed consent script; Ashcroft struck down a similar hospitalization requirement but upheld a pathology-report requirement and a parental/judicial consent requirement with a judicial bypass; and Simopoulos upheld a Virginia hospitalization requirement because the state's own courts had construed "hospital" broadly enough to include outpatient facilities.

Maryland's statutory scheme under the Health-General Article separately addressed parental notification (HG §20-103), the hospital-only performance requirement and its criminal penalty (HG §§20-208 and 20-210, HO §14-504(24), with "hospital" defined at HG §19-301(f)), fetal death recordkeeping and reporting (HG §§4-204, 4-205, 4-213, 4-217, and 4-222, COMAR 10.03.01.07, with "fetal death" defined at HG §4-101(e) to include abortion), and informed consent regarding available assistance (HG §20-211, its near-duplicate HG §20-209 having been repealed by Chapter 583, Laws of Maryland 1983). The opinion also noted that its hospitalization conclusion echoed earlier holdings from the Maryland Court of Special Appeals and the federal district court in Vuitch v. Hardy and State v. Ingel, and a prior Attorney General opinion at 62 Opinions of the Attorney General 3 (1977), which had already found several of the same hospital-based restrictions unconstitutional.

Citations

Statutes:

• HG §20-103 (parental notification before abortion on unmarried minor)
• HG §20-208 (hospital-only performance requirement, criminal restrictions)
• HG §20-210 (misdemeanor for aiding abortion outside licensed hospital)
• HO §14-504(24) (disciplinary offense for performing abortion outside licensed hospital)
• HG §§4-204, 4-205, 4-213, 4-217, and 4-222 (fetal death certificate filing, retention, and disclosure)
• COMAR 10.03.01.07 (fetal death record disclosure regulation)
• HG §20-211 (informed consent regarding available pregnancy/childbirth assistance)
• HG §4-215 (burial-transit permits, outside the opinion's scope)
• HG §§20-201 through 20-206 (abortion referral services, outside the opinion's scope)
• HG §20-102 (minor's capacity to consent to pregnancy-related medical treatment)
• HG §19-301(f) (definition of "hospital")
• HG §4-101(e) (definition of "fetal death")
• HG §20-209 (duplicative informed consent provision, repealed)
• Chapter 583, Laws of Maryland 1983 (repeal of HG §20-209)
• HG §20-208(a)(1), (2), (3), and (4) (enumerated conditions limiting abortions)
• HG §20-208(b)(1) (prohibition on abortions after 26 weeks' gestation)
• HG §20-208(b)(2) (hospital abortion review authority approval requirement)
• HG §20-208(b) and (c) (hospital review authority recordkeeping and reporting)

Cases:

• City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)
• Planned Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476 (1983)
• Simopoulos v. Virginia, 462 U.S. 506 (1983)
• Diamond v. Charles, No. 84-1379, prob. juris. noted, 105 S.Ct. 2356 (1985); 106 S.Ct. 1697 (1986)
• Thornburgh v. American College of Obstetricians & Gynecologists, No. 84-495, question of juris, postponed, 105 S.Ct. 2015 (1985); 106 S.Ct. 2169 (1986)
• Charles v. Carey, 627 F.2d 772 (7th Cir. 1980)
• Charles v. Daley, 749 F.2d 452 (7th Cir. 1984)
• American College of Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283 (3d Cir. 1984)
• Maher v. Roe, 432 U.S. 464 (1977)
• Harris v. McRae, 448 U.S. 297 (1980)
• Roe v. Wade, 410 U.S. 113 (1973)
• Doe v. Bolton, 410 U.S. 179 (1973)
• H. L. v. Matheson, 450 U.S. 398 (1981)
• Bellotti v. Baird, 443 U.S. 622 (1979)
• Colautti v. Franklin, 439 U.S. 379 (1979)
• Poelker v. Doe, 432 U.S. 519 (1977)
• Beal v. Doe, 432 U.S. 438 (1977)
• Bellotti v. Baird, 428 U.S. 132 (1976)
• Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)
• Connecticut v. Menillo, 423 U.S. 9 (1975)
• Indiana Planned Parenthood Affiliates Association, Inc. v. Pearson, 716 F.2d 1127 (7th Cir. 1983)
• Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006 (1st Cir. 1981)
• In re Smith, 16 Md. App. 209 (1972)
• Vuitch v. Hardy, Civ. No. 71-1129-Y (D. Md. June 22, 1972), off d per curiam, 473 F.2d 1370 (4th Cir. 1973)
• State v. Ingel, 18 Md. App. 514 (1973)
• Coleman v. Coleman, 57 Md. App. 755 (1984)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ABORTIONS

State Regulation—Effect of Recent Supreme Court Decisions on Requirements Concerning Parental Notification, Hospitalization, Recordkeeping, and Informed Consent.

December 31, 1985

The Honorable Adele Wilzack
Secretary, Department of Health and Mental Hygiene

In three cases decided in 1983, the Supreme Court considered the validity of various state and local statutes regulating the performance of abortions. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Planned Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476 (1983); and Simopoulos v. Virginia, 462 U.S. 506 (1983). You have requested our opinion concerning the impact of those decisions on similar provisions of the Health-General Article ("HG" Article) and the Health Occupations Article ("HO" Article).1

For the reasons stated below, it is our opinion that HG §20-103, which requires parental notification before an abortion may be performed on an unmarried minor; and HG §20-208, HG §20-210, and HO §14-504(24), which restrict performance of all abortions to hospitals, are unconstitutional. HG §§4-204, 4-205, 4-213, 4-217, and 4-222, and COMAR 10.03.01.07 are also unconstitutional, to the extent that they permit public disclosure of the information contained in the records and reports of abortions. However, the recordkeeping requirements of those provisions, in themselves, are constitutional. HG §20-211, which mandates disclosure of information on agencies offering financial and other assistance to a woman who carries her pregnancy to normal delivery, is also constitutional.2

Accordingly, this opinion confirms the advice previously given to your department. See Letter from Jack Schwartz, Assistant Counsel for Opinions and Advice, to Deborah Lewis-Idema, Assistant Secretary for Health Regulatory Services (September 17, 1984).

I
Background

A. The 1983 Decisions

In Akron, the Supreme Court invalidated in its entirety a city ordinance requiring, among other things: (i) that all abortions after the first trimester of pregnancy be performed in a hospital; (ii) that the consent of parents or a guardian be obtained before an abortion could be performed on an unmarried minor; and (iii) that the attending physician disclose specified information to the patient before performing an abortion.3

In Ashcroft, the Supreme Court invalidated a Missouri statute requiring that abortions after 12 weeks of pregnancy be performed in a licensed hospital. However, the Court upheld a provision that required a pathology report for each abortion performed and another that required minors to secure parental or judicial consent for an abortion.4

Finally, in Simopoulos, the Supreme Court affirmed the criminal conviction of a doctor who had been prosecuted for performing a second-trimester abortion in his office, in violation of a statute requiring hospitalization.

In deciding these three cases, the Supreme Court looked to the guidelines and analytical framework established in the landmark decisions of Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as well as to the legal principles enunciated in the Court's subsequent decisions concerning abortion.5 Since the Wade and Bolton decisions, "the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." Akron, 462 U.S. at 420 n. 1. At the same time, the Court has also consistently recognized two separate concerns, protecting public health and preserving potential life, compelling enough, under certain circumstances, to warrant state regulation of abortions.

B. State Regulation of Abortion: Governing Principles

A state has a legitimate interest in protecting the health of pregnant women and in maintaining medical standards. However, that interest becomes compelling only after the end of the first trimester of pregnancy. Roe v. Wade, 410 U.S. at 163. Before that time, the relative simplicity and safety of abortion procedures require that a state permit the pregnant woman to decide, in unfettered consultation with her doctor, whether or not to have an abortion and, also, to effectuate that decision "free of interference by the State." Roe v. Wade, 410 U.S. at 163.6

Thus, for example, in Doe v. Bolton, 410 U.S. 179 (1973), the Supreme Court invalidated a Georgia statute that required (i) that the performance of each abortion be sanctioned by the abortion committee of the hospital where it was to be performed and (ii) that two doctors concur in the attending physician's judgment as to the necessity for the abortion. 410 U.S. at 183-84. These requirements, the Court held, substantially impaired the woman's right to receive medical care according to her physician's best medical judgment, intruded upon the physician-patient relationship, and infringed upon the physician's protected right to practice. 410 U.S. at 197, 199.

From the outset of the second trimester, the state may regulate the abortion procedure in any way that "reasonably relates to the preservation and protection of maternal health." Wade, 410 U.S. at 163.7 Nonetheless, those regulations may not depart from accepted medical practice. Akron, 462 U.S. at 431. The restrictions adopted as health standards must be legitimately and directly related to the health objective. Moreover, they must not be overbroad or unreasonably burdensome upon a woman's access to an abortion, since during this period the state may not seek to "directly restric[t] a woman's decision whether or not to terminate her pregnancy." Colautti v. Franklin, 439 U.S. 379, 386 (1979).

In Doe v. Bolton, for example, the Court invalidated Georgia's requirement that all abortions be performed in hospitals licensed by the state and accredited by the Joint Commission on Accreditation of Hospitals. The Court found that the provision was not based upon differences reasonably related to the statute's purpose. No other type of surgery, the Court noted, was limited to similarly accredited hospitals, and the provision had no particularized concern with abortion as a medical procedure. 410 U.S. at 193-94. Further, the hospitalization requirement applied to abortions performed during the first trimester. 410 U.S. at 195. Accordingly, the Court held that provision to be unconstitutional.

A state also has a legitimate interest in protecting the potentiality of human life. Roe v. Wade, 410 U.S. at 162. This interest becomes compelling only at "viability," when the attending physician, "on the particular facts of the case before him," concludes that there is a reasonable likelihood of the fetus's "sustained survival" and meaningful "life outside the womb." Colautti, 439 U.S. at 387-88; Roe v. Wade, 410 U.S. at 163.8

Thus, after viability, states may regulate abortions even to the point of proscribing them altogether, "except where necessary to preserve the life or health of the mother." Roe v. Wade, 410 U.S. at 163-64.9 Nonetheless, the Court has carefully examined statutes that impose special duties or criminal sanctions on the physician after "viability." Such laws must not be impermissibly vague or overbroad, interfere with the doctor-patient relationship, or have a chilling effect on the woman's exercise of her constitutional right. See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 82-83 (1976) (overbreadth); Colautti, 439 U.S. at 389-400 (vagueness, chilling effect, overbreadth).

II
Analysis of the Maryland Statutes

With these principles in mind, we turn to the relevant provisions of Maryland law.

A. Parental Notification

1. Maryland Statute

HG §20-103 provides as follows:

"(a) Except as provided in subsections (b) and (c) of this section, a physician may not perform an abortion on an unmarried minor unless the physician first gives notice to a parent or guardian of the minor.
(b) The physician may perform the abortion without notice to a parent or guardian if:
(1) The minor does not live with a parent or guardian; and
(2) A reasonable effort to give notice to a parent or guardian is unsuccessful.
(c) (1) The physician may perform the abortion, without notice to a parent or guardian of a minor if, in the professional judgment of the physician, notice to the parent or guardian may lead to physical or emotional abuse of the minor.
(2) The physician is not liable for civil damages or subject to a criminal penalty for a decision under this subsection not to give notice.
(d) The postal receipt that shows an article of mail was sent by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, to the last known address of a parent or guardian and that is attached to a copy of the notice letter that was sent in that article of mail shall be conclusive evidence of notice or a reasonable effort to give notice, as the case may be."

2. Supreme Court Decisions

The Supreme Court first addressed statutory parental notification or consent requirements in Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II).10 In that case, the Court held unconstitutional a Massachusetts statute providing that an unmarried minor woman could receive an abortion only by obtaining either parental consent or judicial authorization.

The statute required a court to authorize an abortion if it found that the abortion would serve the minor's best interests. At the same time, it also permitted the court to deny authorization if the court determined that an abortion would not serve the minor's best interest, even if the court had found that the minor had made or was capable of making an informed decision to have an abortion. 443 U.S. at 630. Moreover, unless the need for an abortion constituted an emergency, a minor could not seek judicial authorization without first seeking parental approval. Id. And the minor's parents, if available, were to be notified of the court proceedings in all cases. Id.

The plurality concluded that the statute was unconstitutional for two reasons:

"First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests." 443 U.S. at 651 (footnotes omitted).

The opinion in Bellotti II thus suggested that a state may not require either parental consent or parental notification as a prerequisite to a minor's abortion. Subsequently, the Court addressed the issue of parental notification directly, in H. L. v. Matheson, 450 U.S. 398 (1981).

The Utah statute at issue in that case required the physician to "[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor[,] or the husband of the woman, if she is married". 450 U.S. at 400. The minor plaintiff in Matheson resided with and was dependent on her parents, was not emancipated by marriage or otherwise, and had made no claim or showing as to her maturity or her relationship with her parents.11 The Court held that under those circumstances only the statute's application was not unconstitutional. 450 U.S. at 413. Indeed, two members of the majority, in a separate concurrence, emphasized that the Court did not decide "whether [the statute] unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification." 450 U.S. at 414 (Powell, J., concurring, joined by Stewart J.).

The question whether a notice requirement would be constitutional as applied to emancipated or mature minors, which was left open in Matheson, has now apparently been settled by City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). The ordinance at issue in Akron required a physician to notify the parents of an unmarried minor of her intent to seek an abortion unless the abortion had been ordered by a court having jurisdiction over the minor. 462 U.S. at 422 n. 4. The Supreme Court noted that a state's interest in encouraging parental involvement in a minor's decision to have an abortion "must give way to the constitutional right of a mature minor or of an immature minor whose best interests are contrary to parental involvement". 462 U.S. at 428-29 n. 10. Thus, a procedure whereby parents would be notified when any minor filed a petition seeking court approval of an abortion is unconstitutional as applied to a mature minor or one whose best interests the procedure violates. 462 U.S. at 441, n. 31.

The statute at issue in Planned Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476 (1983), in contrast, permitted a pregnant minor to seek judicial authorization of an abortion without notice to her parents or guardians. 462 U.S. at 479-80 n. 4. Moreover, the statute authorized a court to deny such a petition only if it found that the minor was not mature enough to make the abortion decision herself and that an abortion would not be in her best interests. 462 U.S. at 492. On that basis, the Supreme Court concluded that the statute "avoids any constitutional infirmities." Id.

From these decisions it is clear that, in general, notification statutes applicable equally to mature and immature minors are unconstitutional. Further, states must provide alternative procedures in connection with either consent or notification statutes, for a state may not give a parent absolute veto power over the decision of a pregnant minor to have an abortion. Bellotti II, 443 U.S. at 649-50. Thus, an unemancipated minor must be permitted to demonstrate to an independent decisionmaker that "she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests". Akron, 462 U.S. at 439-40. See also Ashcroft, 462 U.S. at 493; Bellotti II, 443 U.S. at 650. This alternative is particularly important because "there are few [other] situations in which denying a minor the right to make an important decision will have consequences so grave and indelible." Bellotti II, 443 U.S. at 642.

The plurality opinion in Bellotti II described a judicial authorization alternative that would satisfy constitutional requirements:

"[E]very minor must have the opportunity, if she so desires, to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well-informed enough to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion. If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interests, it may decline to sanction the operation." Id. at 647-48.12

Moreover, the Court stated:

"The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. In sum, the procedure must ensure that the provision requiring parental consent does not in fact amount to the 'absolute, and possibly arbitrary, veto' that was found impermissible in [Planned Parenthood v. Danforth, 428 U.S. 52 (1976)]." 443 U.S. at 644.

Lower federal courts have indicated that the alternative approval procedure must include provisions for (i) proceeding pro se or by court-appointed counsel, (ii) an indigency waiver of the filing fee and other court costs, (iii) immediate access to the independent decisionmaker at all times, (iv) a simplified petition form, (v) an expedited confidential appeal available to the minor should the lower court rule against her, and (vi) confidentiality of the record. See, e.g., Indiana Planned Parenthood Affiliates Association, Inc. v. Pearson, 716 F.2d 1127, 1138-39 (7th Cir. 1983); Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1008, 1011 and n. 8 (1st Cir. 1981).

3. Analysis of Maryland Statute

HG §20-103 provides that a physician must give notice to the parents or guardian of a minor prior to performing an abortion unless (i) the minor does not live with the parent or guardian and an attempt to give notice has been unsuccessful or (ii) the physician determines that notice may lead to physical or emotional abuse of the minor. Thus, it requires notification of the parents of emancipated or mature, as well as unemancipated and immature, minors. See Akron, 462 U.S. at 441 n. 31. In addition, it offers no alternative procedure whereby an unemancipated minor may demonstrate that she is mature enough to make an informed decision without parental involvement or that, although immature, notification would not be in her best interests. See Bellotti II, 443 U.S. at 651. Under HG §20-103(b) and (c), neither the minor's maturity nor her best interest necessarily would permit waiving parental notification.

To be sure, the fact that a minor does not live with a parent or legal guardian might evidence her maturity, and a likelihood of abuse would certainly indicate that notification would not be in her best interests. However, the statute fails to provide a mechanism for waiving notification under any other, equally justifiable circumstances. Consequently, we conclude that HG §20-103 is unconstitutional.13

B. Licensed Hospital Requirement

1. Maryland Statute

HG §20-208 provides in pertinent part:

"(a) No person shall terminate or attempt to terminate or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth, except that a physician licensed by the State of Maryland may terminate a human pregnancy or aid or assist or attempt a termination of a human pregnancy if said termination takes place in a hospital accredited by the Joint Commission for Accreditation of Hospitals and licensed by the State Board of Health and Mental Hygiene. . . .

(b) In no event shall any physician terminate or attempt to terminate or assist in the termination or attempt at termination of a human pregnancy otherwise than by birth unless all of the following conditions exist:

(2) Authorization therefor has been granted in writing by a hospital abortion review authority appointed by the hospital."

HG §20-210 provides:

"(a) A person is guilty of a misdemeanor if he
(1) Sells or gives, or causes to be sold or given, any drug, medicine, preparation, instrument, or device for the purpose of causing, inducing, or obtaining a termination of human pregnancy other than by a licensed physician in a hospital accredited by the Joint Commission for Accreditation of Hospitals and licensed by the State Board of Health and Mental Hygiene; or
(2) Gives advice, counsel, or information for the purpose of causing, inducing, or obtaining a termination of human pregnancy other than by such physician in such a hospital; or
(3) Knowingly assists or causes by any means whatsoever the obtaining or performing of a termination of human pregnancy other than by such physician in such a hospital.
(b) Any person who violates any provision of this section, upon conviction, is subject to a fine of not more than five thousand dollars for each offense, or to imprisonment for not more than three years, or both such fine and imprisonment. The penalties in this section are in addition to and not in substitution for any other penalty or penalties applicable to particular classes of persons under other laws of this State."

Finally, HO §14-504(24) makes it a disciplinary offense for a physician to "perfor[m] an abortion outside a licensed hospital". Under HG §19-301(f), a "hospital" is defined as an institution that:

"(1) Has a group of at least 5 physicians who are organized as a medical staff for the institution;
(2) Maintains facilities to provide, under the supervision of the medical staff, diagnostic and treatment services for 2 or more unrelated individuals; and
(3) Admits or retains the individuals for overnight care."

2. Supreme Court Decisions

In Akron and Ashcroft the Supreme Court held unconstitutional statutory provisions that required all abortions subsequent to the first trimester to be performed in "hospitals," defined as excluding ambulatory or outpatient facilities. Akron, 462 U.S. at 438-39; Ashcroft, 462 U.S. at 481-82 n. 6.14

The Court found that such a requirement "places a significant obstacle in the path of women seeking an abortion." Akron, 462 U.S. at 438. The hospitalization requirement substantially increases the cost of an abortion and might, by requiring a woman to travel to a facility, impose additional health risk. 462 U.S. at 438. Nor can a hospitalization requirement for all second trimester abortions be justified as a reasonable health regulation, because abortions may be performed as safely in an outpatient clinic as in a full-service hospital well into the second trimester. 462 U.S. at 436. Thus, the requirement "has the effect of inhibiting . . . the vast majority of abortions after the first 12 weeks . . . and therefore unreasonably infringes upon a woman's constitutional right to obtain an abortion." 462 U.S. at 438-39 (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 79 (1976)).

The companion decision in Simopoulos upheld a Virginia statute restricting the performance of second trimester abortions to "hospital[s] licensed by the State Department of Health." 462 U.S. at 505. The Supreme Court of Virginia had construed the statute to incorporate a definition of "hospital" contained in the state's general health laws, a definition that included out-patient facilities. Id. Thus, the Virginia statute, in clear contrast to those at issue in Akron and Ashcroft, did not require that all second trimester abortions be performed in full-service hospitals. 462 U.S. at 516. On that basis, the Court concluded that the requirement was "not an unreasonable means of furthering the State's compelling interest in 'protecting the woman's own health and safety.'" 462 U.S. at 519 (quoting Roe v. Wade, 410 U.S. at 150).

3. Analysis of Maryland Statute

It is clear that the Maryland hospitalization requirement embodied in HG §§20-208 and 20-210 and the sanction for its violation in HO §14-504(24) are effectively identical to the provisions invalidated in Akron and Ashcroft.15 Under the Maryland statute, every abortion must be performed in a full-service hospital. In our view, this requirement is unconstitutional insofar as it applies to abortions performed during the first and second trimesters.16

C. Recordkeeping and Reporting

1. Maryland Statutes

Under HG §4-213, a mortician or "the attending individual" must file with the Department of Health and Mental Hygiene a "fetal death certificate," giving personal information and certifying the cause of death, whenever a "fetal death" occurs after a gestation period of 20 weeks. The Secretary of Health and Mental Hygiene must send a copy of each fetal death certificate to the appropriate county registrar, who must preserve it for three years. HG §§4-204, 4-205.

The county records are open to inspection by the Secretary or the Secretary's designee and "an official of a municipal corporation or county." HG §4-205. Copies of fetal death certificates are also available to surviving relatives or their authorized representatives. HG §4-217; COMAR 10.03.01.07. The Hall of Records Commission is entitled to a copy of every death certificate and may make the personal information contained in it available to researchers at the Hall of Records. HG §4-222.

In HG §4-101(e), "fetal death" is defined as the "death of a product of human conception, before its complete expulsion or extraction from the mother, regardless of the duration of the pregnancy." Thus, a "fetal death" includes an abortion. 55 Opinions of the Attorney General 122, 167 (1970).

2. Supreme Court Decisions

In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976), the Supreme Court upheld a statute requiring health facilities and physicians to keep records of all abortions, regardless of the state of pregnancy at which performed, and to maintain the records in the health facility's files for seven years. 428 U.S. at 79. The Court found that "[r]ecordkeeping of this kind, if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment." 428 U.S. at 81.17 Because the statute expressly required that the records be kept confidential and required their retention for only a limited time, the Court concluded that it did not have significant impact on the abortion decision or the physician-patient relationship. Id. The Court noted that, in general, "[r]ecordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible." 428 U.S. at 80 (emphasis added).

In Ashcroft, the Court reaffirmed the need for confidentiality. In that opinion, the Court noted that the pathology reports required by the statute at issue were extended "the identical safeguards found reassuring in Danforth." 462 U.S. at 490 n. 14.

3. Analysis of Maryland Statutes

Maryland's reporting requirement applies to all abortions, without regard to the stage of pregnancy at which they are performed. Insofar as the requirement applies during the first or second trimester, Danforth and Ashcroft clearly establish that it is constitutional only if it (i) has no significant impact on the woman's exercise of her right to choose between abortion and childbirth, (ii) is reasonably related to the preservation of maternal health, (iii) is consistent with generally accepted medical standards, and (iv) protects the woman's privacy. Ashcroft, 462 U.S. at 486-90; Danforth, 428 U.S. at 80-81. Accord Akron, 462 U.S. at 430.

During the third trimester, the State's interest in the potentiality of human life is certainly compelling enough to support the recordkeeping requirement itself, for then the State's interest would support even a prohibition of any abortion not necessary to preserve the woman's life or health. Roe v. Wade, 410 U.S. at 163. However, during that stage also, any recordkeeping requirement must maintain confidentiality to protect the woman's fundamental right of privacy. See Roe v. Wade, 410 U.S. at 152-53.

On this basis, we believe that HG §§4-204, 4-205, 4-213, 4-217, and 4-222 and COMAR 10.03.01.07 are unconstitutional, to the extent that they permit public disclosure of fetal death certificates. Recordkeeping and reporting requirements are permissible only to the extent that they "properly respect a patient's confidentiality and privacy." Danforth, 428 U.S. at 79. As noted, fetal death records are available to surviving relatives and their authorized representatives, to unspecified public officials, and to researchers at the Hall of Records. Unlike the recordkeeping requirements approved in Danforth and Ashcroft, this State's law and regulations afford no safeguards of confidentiality or protection of the woman's privacy. While those decisions clearly establish the State's authority to require that the records of abortions be kept, in our view they also establish that the records must be kept confidential.18

D. Informed Consent

1. Maryland Statute

HG §20-211 provides that:

"(a) This section does not apply if the attending physician certifies that an abortion is necessary to save the life of the woman.
(b) Before a physician performs an abortion, the woman undergoing the procedure shall be advised of the extent to which:
(1) Financial and other material assistance to carry the pregnancy to a normal delivery is available;
(2) Financial and other material assistance to raise and support her child is available; and
(3) Assistance from a licensed and regulated adoption agency is available if she chooses not to keep the baby.
(c) In cooperation with the Department of Health and Mental Hygiene, the Department of Human Resources shall prepare annually, periodically update, and publish a list of federal, State, and private sources of the types and extent of assistance referred to in subsection (b) of this section, and shall distribute this published information to each hospital, clinic, physician's office, and other facility where an abortion is performed.
(d) The signed document, of a woman who seeks an abortion, indicating that she has been counseled concerning the published information referred to in subsection (c) of this section is evidence that the requisite information was given to the woman. The signed document shall become part of the medical record.
(e) A person who willfully violates any provision of subsection (b) of this section is guilty of a misdemeanor and on conviction is subject to a fine of not more than $500."19

2. Supreme Court Decisions

In Akron, the Supreme Court declared unconstitutional a statute requiring that, before an abortion, the woman be "orally informed by her attending physician" of the number of weeks of the pregnancy; the stage of development of the fetus; the date of possible viability; the physical and emotional complications that may result from an abortion; the availability of other agencies to give assistance and advice on birth control, adoption, and childbirth; and the particular risks associated with her pregnancy and the abortion technique to be employed. 462 U.S. at 423 n. 5. The Court acknowledged that a state may require written consent to an abortion to ensure that the woman has been fully informed concerning the procedure and its consequences. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 67 (1976). However, the Court cautioned in Akron that a state does not have "unreviewable authority to decide what information a woman must be given." Akron, 462 U.S. at 443.

Statutes or regulations that are designed to influence a woman's choice between abortion or childbirth or that interfere with the discretionary judgment of her physician will not be upheld. 462 U.S. at 445. The Court concluded that the lengthy and inflexible list of information required by the Akron ordinance, including a "parade of horribles" concerning the possible physical and psychological complications of abortion, were "designed not to inform the woman's consent but rather to persuade her to withhold it altogether." Id. In addition, the statute intruded upon the physician's exercise of medical judgment as to the information relevant to a particular patient. Id.

The Court included within its holding a section of the ordinance requiring the physician to inform the patient of assistance available to her during pregnancy and after childbirth if she chose not to have an abortion. The Court noted that "[t]his information, to the extent it is accurate, certainly is not objectionable, and probably is routinely made available to the patient". However, the Court concluded, "it is unreasonable for a State to insist that only a physician is competent to provide the information and counseling relevant to informed consent." 462 U.S. at 449. The state's interest is in ensuring that the woman's consent is informed; the identity of the person from whom she obtains information is not critical. 462 U.S. at 448.

3. Analysis of Maryland Statute

The information required under HG §20-211 concerns assistance available during pregnancy and after childbirth. Thus, it is virtually identical to the information required under the analogous section of the Akron ordinance, which the Supreme Court found was not inherently objectionable. Unlike the Akron ordinance, HG §20-211 does not specify the identity of the person who must give the information. Hence, Maryland's law is not subject to the objection that invalidated Akron's ordinance and, in our view, is constitutional.

Conclusion

In summary, it is our opinion that the provisions of Maryland law requiring parental notification of a minor's abortion, requiring the performance of all abortions in hospitals, and permitting public disclosure of information contained in reports of abortions are unconstitutional. Those provisions may not be enforced. The provisions mandating disclosure to the patient of information on agencies offering assistance during pregnancy and after childbirth, however, are constitutional in their present form.

Stephen H. Sachs, Attorney General
Barbara Hull Foster, Assistant Attorney General
Linda H. Lamone, Assistant Attorney General
C.J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 Two additional abortion cases are presently before the Supreme Court: Diamond v. Charles, No. 84-1379, prob. juris, noted, 105 S.Ct. 2356 (1985); and Thornburgh v. American College of Obstetricians & Gynecologists, No. 84-495, question of juris, postponed, 105 S.Ct. 2015 (1985). In both of these cases, federal courts of appeal held state statutes regulating abortions to be unconstitutional, relying on the three Supreme Court cases about which you have inquired. See Charles v. Carey, 627 F.2d 772 (7th Cir. 1980), after remand, Charles v. Daley, 749 F.2d 452 (7th Cir. 1984); American College of Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283 (3d Cir. 1984).

2 Certain other provisions relating to abortions are outside the scope of this opinion: HG §4-215 concerns burial-transit permits required of morticians for final disposition or removal of a body or fetus. HG §§20-201 through 20-206 deal with abortion referral services. Because the Supreme Court did not have comparable provisions before it in Akron, Ashcroft, or Simopoulos, its decisions in those cases have no direct bearing on any of these provisions. Consequently, we will not discuss these sections in this opinion.

You also inquired whether these decisions have any impact on previous opinions of this office concerning Medicaid funding for abortions. We believe they do not. In Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448 U.S. 297 (1980), the Supreme Court upheld the right of governments to implement a policy favoring childbirth over abortion by providing funding for the former while refusing to fund the latter. The Court reaffirmed those holdings in Akron. 462 U.S. at 444 n. 33.

3 The ordinance also included provisions imposing a 24-hour waiting period between a woman's consent to an abortion and performance of the abortion and requiring that fetal remains be disposed of in a "humane and sanitary" manner. The Court also held these provisions to be unconstitutional, finding that no "legitimate state interest is furthered by an arbitrary and inflexible waiting period" and that the disposal provision was impermissibly vague. 462 U.S. at 450-52. Maryland law, however, has no similar provisions.

4 The Court also upheld the validity of a statute requiring the attendance of a second physician during an abortion performed after viability. Under the statute, which permitted an abortion after viability only if necessary to preserve the life or health of the woman, the second physician was charged with giving medical care to the fetus. The Court concluded that the statute was a legitimate protection of the compelling state interest in the life of a viable fetus enunciated in Roe v. Wade, 410 U.S. 113, 164-65 (1973). Ashcroft, 462 U.S. at 486.

5 Those cases include H.L. Matheson, 450 U.S. 398 (1981); Harris v. McRae, 448 U.S. 297 (1980); Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II); Colautti v. Franklin, 439 U.S. 379 (1979); Poelker v. Doe, 432 U.S. 519 (1977) (per curiam); Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977); Bellotti v. Baird, 428 U.S. 132 (1976) (Bellotti I); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam).

6 Because abortion is a medical procedure requiring the advice and assistance of competent, trained medical personnel, a woman cannot exercise her fundamental right alone. For this reason, states must give the physician room to exercise sound medical judgment in assisting the woman to make and implement her decision. See Akron, 462 U.S. at 427; Colautti v. Franklin, 439 U.S. 379, 397 (1979); Doe v. Bolton, 410 U.S. 179, 192 (1973).

7 The Court provided examples of regulations it considered permissible during the second trimester, including requirements as to the qualifications of the person performing the abortion, the licensing of the facility in which the abortion would be performed, and the nature of the facility in which the procedure would take place. 410 U.S. at 163.

8 In Roe v. Wade, the Court observed that most physicians placed viability at about seven months, though some considered it possible as early as six months, the end of the second trimester. 410 U.S. at 160.

9 "Serious ethical and constitutional difficulties" are presented, however, if such measures do not clearly prevent the doctor from "trad[ing] off" the health of the woman for that of the fetus. Colautti, 439 U.S. at 400. See also Ashcroft, 462 U.S. at 485 n. 8 (plurality); 462 U.S. at 501 (dissent).

10 In Bellotti I, the Supreme Court vacated a three-judge District Court's judgment holding the notification requirement unconstitutional. The Supreme Court found that the statute could be construed in a way that "would avoid or substantially modify the federal constitutional challenge". Bellotti v. Baird, 428 U.S. 132, 148 (1976) (Bellotti I). Therefore, the Court held, the District Court should have abstained and certified the question of the statute's meaning to the state court. 428 U.S. at 151.

11 Minors are classified in three ways. Emancipated minors are married women under the age of 18 or minors who do not live with their parents and who are financially independent of their parents. Mature minors are those who, although dependent on their parents, are deemed capable of making an informed decision regarding abortion. Immature minors are those who are dependent upon their parents and are not deemed capable of making an informed decision regarding abortion. See H. L. v. Matheson, 450 U.S. at 407-08.

12 The plurality also noted that, while this parental bypass procedure must be assigned to an independent decisionmaker, a nonjudicial alternative such as an administrative agency or officer might be preferable to a court. 443 U.S. at 643 n. 22. See also Ashcroft, 462 U.S. at 492 n. 20. Arguably, it would be permissible to delegate the maturity determination to the minor's physician. See Indiana Planned Parenthood Affiliates Association, Inc. v. Pearson, 716 F.2d 1127, 1134 (7th Cir. 1983) (noting that Indiana delegated emancipation determination to physician, but holding that delegation of maturity determination to physician is not required by Constitution).

13 Maryland law does not contain a parental consent requirement. In fact, HG §20-102 provides that a minor has the same capacity as an adult to consent to medical treatment for or advice about pregnancy. See In re Smith, 16 Md. App. 209, 224-25, 226 (1972). The constitutionality of this statute is unquestionable.

14 The ordinance at issue in Akron defined "hospital" as "a general hospital or special hospital devoted to gynecology or obstetrics which is accredited by the Joint Commission on Accreditation of Hospitals or by the American Osteopathic Association." 462 U.S. at 432. Because the statute at issue in Ashcroft did not define the term "hospital," the Court assumed that the term had "its common meaning of a general, acute care facility" other than an ambulatory facility. Ashcroft, 462 U.S. at 481-82 n. 6.

15 Indeed, because HG §§20-208 and 20-210 require hospitalization for first-trimester abortions, they are invalid under the much earlier holding in Doe v. Bolton. See 410 U.S. at 193-95.

16 These Supreme Court decisions thus confirm prior holdings of the Maryland Court of Special Appeals and the federal courts in this district, as well as an earlier opinion of this Office, that the provisions of Maryland law requiring performance of abortions exclusively in hospitals accredited by the Joint Commission on Accreditation of Hospitals and licensed by the State are unconstitutional. See Vuitch v. Hardy, Civ. No. 71-1129-Y (D. Md. June 22, 1972), off d per curiam, 473 F.2d 1370 (4th Cir. 1973); State v. Ingel, 18 Md. App. 514 (1973); 62 Opinions of the Attorney General 3, 4 (1977). See also Coleman v. Coleman, 57 Md. App. 755 (1984).

This Office has also pointed out in the past that HG §20-208(a)(1), (2), (3), and (4), which limits abortions to situations where one or more of the enumerated conditions exist; HG §20-208(b)(1), which prohibits abortions after 26 weeks' gestation in virtually all cases; and HG §20-208(b)(2), which requires authorization of abortions by a hospital abortion review committee, are all unconstitutional. 62 Opinions of the Attorney General 3, 7-9 (1977). We continue to believe that these provisions are unconstitutional, for the reasons stated in that opinion. See also Revisor's Note to HO §14-504.

17 The Court also cautioned that recordkeeping provisions must not be "utilized in such a way as to accomplish, through the sheer burden of recordkeeping detail, what we have held to be an otherwise unconstitutional restriction." 428 U.S. at 81.

18 HG §20-208(b) and (c) provide that a hospital review authority at each hospital approve all abortions, require the review authority to maintain written records of all requests for abortion authorization and its decisions, and direct the review authorities to make annual reports. As noted above, these provisions also are unconstitutional. See notes 15 and 16 above and accompanying text.

19 HG §20-209, which essentially was duplicative of HG §20-211, was repealed in 1983. Chapter 583, Laws of Maryland 1983.

Editor's Note: Since the issuance of this opinion, the two cases referred to in note 1 as "presently before the Supreme Court" have been decided. In Diamond v. Charles, 106 S.Ct. 1697 (1986), the Supreme Court held that the appellant, who had intervened in support of a restrictive Illinois law, lacked standing; the Court therefore dismissed the appeal for want of jurisdiction. In Thornburgh v. American College of Obstetricians & Gynecologists, 106 S.Ct. 2169 (1986), the Court affirmed the lower court decision that a restrictive Pennsylvania law was unconstitutional. In so holding, the Court observed that "[t]he States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies." 106 S.Ct. at 2178.