If the Supreme Court overturned Roe v. Wade, would Maryland's old, dormant abortion restrictions automatically come back into force?

Plain-English summary

Two Maryland legislators asked the Attorney General, in late 1989, what would happen to the state's unenforceable abortion restrictions if the U.S. Supreme Court, then considering two parental-notification cases, went on to overrule Roe v. Wade. The opinion concluded that Maryland's dormant statutes, restricting the circumstances, timing, and location of abortions and requiring parental notice for a minor's abortion, would not need to be reenacted; they would automatically spring back into effect for any abortion performed after the date of a decision overruling Roe, because an unconstitutional statute is only suspended, not erased, while it remains on the books. The opinion also concluded that neither the Maryland Constitution nor Maryland's Equal Rights Amendment offered an independent state-law basis to keep the restrictions from reviving, that this office would not have primary enforcement responsibility (State's Attorneys would prosecute the one criminal provision, and two licensing boards would handle professional discipline), and it worked through the referendum-timing mechanics that would apply to any new abortion legislation the General Assembly might pass in response.

Currency note

This opinion was issued in November 1989 and analyzed hypothetical questions about Maryland law in the event the U.S. Supreme Court overruled Roe v. Wade. The opinion's own editor's note records that the two 1990 decisions it anticipated, Ohio v. Center for Reproductive Health, 110 S.Ct. 2972 (1990), and Hodgson v. Minnesota, 110 S.Ct. 2926 (1990), did not change the status of Maryland law, and that the Maryland statutes analyzed throughout this opinion were themselves repealed the following year by Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991. Roe v. Wade was, however, later actually overruled by the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), thirty-three years after this opinion was written. Because the Maryland statutes this opinion discussed no longer existed by 2022, having been repealed in 1991, the revival analysis in this opinion did not end up applying to the actual overruling of Roe when it happened; Maryland's abortion law by 2022 was governed by whatever statutes the General Assembly had enacted in the intervening decades, not by the 1980s-era provisions analyzed here. This page is a historical record of how one Attorney General analyzed a hypothetical legal question in 1989. It describes what the opinion concluded at the time and is not a statement of current Maryland or federal abortion law. Verify current law directly before relying on anything here.

Common questions

Did Maryland's Attorney General predict, back in 1989, what would happen if Roe v. Wade were ever overruled?
Yes. The opinion concluded that if Roe were overruled, Maryland's then-dormant abortion statutes, restricting the circumstances and location of abortions and requiring parental notice, would automatically become enforceable again for abortions performed after the date of the overruling decision, without needing the General Assembly to reenact them, because an unconstitutional statute remains on the books in suspended form rather than being erased.

Would Maryland's own Constitution or its Equal Rights Amendment have blocked the revival of these old abortion restrictions?
The opinion concluded probably not. It found no Maryland case recognizing an independent state constitutional right to abortion (unlike California, New Jersey, or Florida courts, which had found such rights under their own state constitutions), and it reasoned that Maryland's Equal Rights Amendment likely would not apply because the restrictions turned on a physical characteristic unique to one sex, a category the opinion read the E.R.A. as not reaching.

Who would have enforced Maryland's abortion restrictions if they had come back into force?
According to the opinion, the Attorney General's office would not have had primary enforcement responsibility. The State's Attorneys in each county and Baltimore City would have prosecuted the one criminal provision (performing an abortion outside a licensed, accredited hospital), while the State Board of Physician Quality Assurance and the State Board of Examiners of Nurses would have handled professional discipline of physicians and nurses.

Background and statutory framework

The opinion was prompted by two parental-notification cases the Supreme Court was then considering, Ohio v. Akron Center for Reproductive Health and Hodgson v. Minnesota, and by the possibility that the Court might use those cases, or a future case, to overrule Roe v. Wade outright. The Sixth Circuit's Akron Center v. Slaby decision had struck down Ohio's physician-notice and judicial-bypass requirements as insufficiently protective of a mature minor's rights, while the Eighth Circuit's en banc Hodgson decision had upheld Minnesota's two-parent notification law only because it included a judicial bypass option. Maryland's own parental notification statute, HG §20-103, differed from both: unlike Minnesota's law it did not require notice to both parents, and unlike either state's law it imposed no waiting period, but like both it lacked the bypass procedure a 1985 opinion had already found constitutionally required, so it remained unenforceable regardless of how the Supreme Court ruled in the pending cases.

The opinion then catalogued every other Maryland abortion restriction rendered unenforceable by Roe and its progeny: the substantive conditions of HG §20-208(a) restricting when an abortion could be performed (held unconstitutional in Coleman v. Coleman), the post-26-week restriction of HG §20-208(b)(1), the hospitalization requirement of HG §20-208(a) and HG §20-210(a) enforced through discipline under HO §14-504(a)(23) (held unconstitutional applying City of Akron and Planned Parenthood Ass'n v. Ashcroft), the hospital review-authority approval requirement of HG §20-208(b)(2) (unconstitutional under Doe v. Bolton), and recordkeeping statutes permitting disclosure of fetal death certificates.

Turning to the revival question, the opinion explained that under Home Utilities Co. v. Revere Copper & Brass and similar cases, an unconstitutional but unrepealed statute is not abolished but merely suspended, and becomes fully effective again once the constitutional obstacle is removed, without need for reenactment. It reasoned that any revival would apply only prospectively, to abortions performed after the date of a decision overruling Roe, both because Supreme Court decisions state the law as of their decision date and because applying newly-revived criminal or disciplinary sanctions retroactively to conduct undertaken in reliance on Roe would improperly affect substantive rights. On the state constitutional question, the opinion surveyed other states' courts (California's People v. Belous and its later constitutional amendment, New Jersey's Right to Choose v. Byrne, and Florida's then-new In re T.W. decision) that had found an independent state-law right to abortion, and concluded Maryland's Constitution contained no comparable textual privacy guarantee and that no Maryland court had found one under Article 24 of the Declaration of Rights. It likewise concluded that Maryland's Equal Rights Amendment, Article 46, would probably not apply, distinguishing a Connecticut trial court decision that had struck down an abortion-Medicaid restriction under that state's E.R.A. (Doe v. Maher) on the ground that Maryland case law treats disparate treatment based on a physical characteristic unique to one sex as outside the E.R.A.'s reach.

Finally, on enforcement and timing, the opinion identified HG §20-210 as the only criminal abortion provision (prosecutable by county State's Attorneys under their independent constitutional authority) and the licensing boards as responsible for civil discipline, and it worked through Article XVI, §2 of the Maryland Constitution's referendum-suspension rule to explain that any new legislation the General Assembly passed in response to a revived Roe, if petitioned to referendum, would not take effect until 30 days after the next statewide congressional election, unless enacted as an emergency measure exempt from that suspension under the precedent of First Continental Savings & Loan Ass'n v. Director.

Citations and references

Statutes:

• HG §20-103(a), (b), and (c), Maryland's parental notification requirement and its narrow exceptions
• HG §20-208(a), the pre-26-week substantive conditions for a lawful abortion
• HG §20-208(b)(1), the post-26-week restriction
• HG §20-208(b)(2), the hospital abortion review authority approval requirement
• HG §20-210(a), the criminal hospitalization requirement
• HG §19-301(f), defining "hospital" for purposes of the hospitalization requirement
• HG §§4-201(e), 4-205, 4-213, 4-217, and 4-222, the fetal death certificate recordkeeping requirements
• §14-504(a)(23) of the Health Occupations Article, physician discipline for abortions outside a licensed hospital
• HO §7-313(a)(8), the general professional-standards ground for nurse discipline
• Article XVI, §2 of the Maryland Constitution, the referendum-suspension rule for enacted legislation
• Article 33, §22-l(a), setting the biennial schedule for congressional elections referenced by the referendum timing analysis
• Article 24 of the Maryland Declaration of Rights, Maryland's due process analog considered as a possible independent abortion-rights source
• Article 46 of the Maryland Declaration of Rights, Maryland's Equal Rights Amendment
• Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991, the later repeal (per the editor's note) of the statutes discussed in this opinion
• Article I, §1 of the California Constitution, source of California's independent privacy-based abortion right
• Article I, §1 of the New Jersey Constitution, source of New Jersey's independent privacy-based abortion right
• Article I, §23 of the Florida Constitution, source of Florida's independent privacy-based abortion right

Cases:

• Ohio v. Akron Center for Reproductive Health, No. 88-805, one of the two parental-notification cases then pending before the Supreme Court
• Hodgson v. Minnesota, Nos. 88-1125 and 88-1309, the other pending parental-notification case
• Roe v. Wade, 410 U.S. 113 (1973), the decision whose hypothetical overruling this entire opinion analyzed (later actually overruled by Dobbs v. Jackson Women's Health Organization in 2022)
• Turnock v. Ragsdale, 841 F.2d 1358 (7th Cir. 1988), a third case originally pending before the Court that settled before argument
• Akron Center for Reproductive Health v. Slaby, 854 F.2d 852, 875 (6th Cir. 1988), Sixth Circuit decision striking down Ohio's parental notification law
• Ballotti v. Baird, 443 U.S. 622 (1979), U.S. Supreme Court decision requiring a judicial bypass for parental involvement laws
• Hodgson v. Minnesota, 853 F.2d 1452, 1453-54 (8th Cir. 1988), Eighth Circuit en banc decision upholding Minnesota's two-parent notification law with its bypass procedure
• Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989), the Supreme Court's most recent abortion decision at the time, discussed for its effect on predicting the Court's direction
• Coleman v. Coleman, 57 Md. App. 755, 760, 471 A.2d 1115 (1984), Maryland decision holding HG §20-208(a)'s substantive conditions unconstitutional
• City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), basis for holding Maryland's hospitalization requirement unconstitutional
• Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983), cited alongside City of Akron on the hospitalization requirement
• Doe v. Bolton, 410 U.S. 179, 198 (1973), basis for holding the hospital review-authority requirement unconstitutional
• Bayne v. Secretary of State, 283 Md. 560, 577 n.7, 392 A.2d 67 (1978), cited for Maryland courts treating the abortion right solely as a matter of federal constitutional law
• State v. Ingel, 18 Md. App. 514, 308 A.2d 223 (1973), cited for the same point and for retroactive application of Roe to criminal provisions
• People v. Belous, 80 Cal. Rptr. 354, 359 (Cal. 1969), California Supreme Court decision finding an independent state constitutional abortion right
• Griswold v. Connecticut, 381 U.S. 479 (1965), cited as the privacy-rights foundation for Belous's reasoning
• Committee to Defend Reproductive Rights v. Myers, 172 Cal. Rptr. 866, 883 (Cal. 1981), California Supreme Court decision applying the state's later privacy amendment to abortion
• Right to Choose v. Byrne, 450 A.2d 925, 933 (N.J. 1982), New Jersey Supreme Court decision finding an independent state constitutional abortion right
• In re T. W., No. 74,143 (October 5, 1989), Florida Supreme Court decision finding an independent state constitutional abortion right
• Crawford v. State, 281 Md. 431, 404 A.2d 244 (1979), cited for treating Article 24 of Maryland's Declaration of Rights as equivalent to the Fourteenth Amendment
• Doe v. Maher, 515 A.2d 134, 159 (Conn. Super. 1986), Connecticut trial court decision striking down a Medicaid abortion restriction under that state's Equal Rights Amendment, distinguished by this opinion
• Burning Tree Club, Inc. v. Bainum, 305 Md. 53, 64, 501 A.2d 817 (1985), cited for the scope of Maryland's Equal Rights Amendment
• Brooks v. State, 24 Md. App. 334, 330 A.2d 670, cert. denied, 275 Md. 746 (1975), cited for the physical-characteristic exception to E.R.A. scrutiny
• People v. Green, 514 P.2d 769 (Colo. 1973), cited alongside Brooks
• People v. Medrano, 321 N.E. 2d 97 (Ill. App. 1974), cited alongside Brooks
• State v. Craig, 545 P.2d 649 (Mont. 1976), cited alongside Brooks
• Finley v. State, 527 S.W. 2d 553 (Tex. Crim. App. 1975), cited alongside Brooks
• State v. Burning Tree Club, Inc., 315 Md. 254, 295-96, 554 A.2d 366 (1989), cited for the scope of disparate-treatment claims under Maryland's E.R.A.
• Norton v. Shelby County, 118 U.S. 425, 442 (1886), cited for the general rule that an unconstitutional enactment is void ab initio
• Johnson v. State, 271 Md. 189, 195, 315 A.2d 524 (1974), cited on the effect of an unconstitutional enactment absent express repeal
• Hutchinson v. State, 1 Md. App. 362, 371-72, 230 A.2d 352 (1967), cited alongside Johnson
• Home Utilities Co. v. Revere Copper & Brass, Inc., 209 Md. 610, 619, 122 A.2d 109 (1956), the core Maryland precedent for the suspension-not-abolition revival doctrine
• Jawish v. Morlet, 86 A.2d 96, 97 (D.C. 1952), cited for a revived statute being valid from its first effective date
• United States v. Elliott, 266 F. Supp. 318, 325 (S.D.N.Y. 1967), cited on the (rejected-in-Maryland) doctrine of desuetude
• State v. Mellor, 140 Md. 364, 373, 117 A. 875 (1922), cited for Maryland's rule that nonenforcement does not repeal a penal statute
• Gibson v. State, 204 Md. 423, 438, 104 A.2d 800 (1954), cited alongside Mellor
• Perkins v. Eskridge, 278 Md. 619, 637, 366 A.2d 61 (1976), cited on determining the retroactive effect of an unconstitutional enactment
• Lemon v. Kurtzman, 411 U.S. 192, 199 (1973), cited on the reliance interests at stake when legal rules change
• Gee v. Mass Transit Admin., 75 Md. App. 253, 260-61, 540 A.2d 1194 (1988), cited on the general rule against retroactive application of statutes affecting substantive rights
• Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 428 (1978), cited on when a Supreme Court decision's substantive effect takes hold relative to the formal issuance of judgment
• State v. Aquilla, 18 Md. App. 487, 493, 309 A.2d 44 (1973), cited on State's Attorneys' trial-level prosecutorial responsibility
• Murphy v. Yates, 276 Md. 475, 495, 348 A.2d 837 (1975), cited on State's Attorneys' independent prosecutorial discretion
• First Continental Savings & Loan Ass'n v. Director, State Dep't of Assessments & Taxation, 229 Md. 293, 302, 183 A.2d 347 (1962), cited for the General Assembly's ability to pass emergency legislation notwithstanding a pending referendum

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/1989/Volume74_1989.pdf (this opinion appears at printed pages 19-37 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

Abortions - State Regulation - Parental Notification - Revival of
Currently Unenforceable Laws if Roe v. Wade Is Overruled

November 30, 1989

The Honorable Barbara Hoffman
The Honorable Samuel I. Rosenberg
General Assembly of Maryland

In the Supreme Court's current term, it will consider two cases

dealing with parental notification requirements prior to a minor's
abortion: Ohio v. Akron Center for Reproductive Health, No. 88-805;
and Hodgson v. Minnesota, Nos. 88-1125 and 88-1309.1 You have
requested our opinion on the possible effect of the decisions in those
cases on Maryland's laws restricting abortions. Specifically, you ask:

1. What would be the effect on Maryland's laws if the Supreme

Court upheld the state laws at issue in those cases without overruling
Roe v. Wade, 410 U.S. 113 (1973)?

2. What would be the effect on Maryland's laws if Roe v. Wade

is overruled?

3. If any Maryland abortion laws rendered unenforceable by Roe

v. Wade were to become enforceable as a result of the decisions in the
new cases, what steps would this office take to enforce the Maryland
laws?

4. If a Supreme Court decision effectively reviving part or all of

Maryland's abortion laws were issued after the adjournment of the
1990 Session of the General Assembly, and if an enactment of the 1991
Session dealing with abortion were petitioned to referendum, would the

 1
   Until a few days ago, the Supreme Court had before it a third case, Turnock

v. Ragsdale, 841 F.2d 1358 (7th Cir. 1988), cert. granted 109 S.Ct. 3239 (1989)
(No. 88-790). This case involved the constitutionality of various Illinois regulations
affecting clinics at which abortions are performed. It was to have been argued on
December 5, 1989. However, the parties have announced that they have settled the
case. Baltimore Sun, Nov. 23, 1989 at 19A, col. 1. Hence, the Supreme Court will
neither hear nor decide it.

revived Maryland laws remain effective until after the general election
of 1992?2

 For the reasons given below, we conclude as follows:

1. Because Maryland's parental notification requirement differs

from the laws at issue in the two pending cases, and more generally
because we cannot predict what principles the Supreme Court might
adopt to determine the constitutionality of abortion restrictions if it does
not overrule Roe v. Wade, we cannot predict what effect its decisions
in these cases might, in those circumstances, have on Maryland's
currently unenforceable statutes.

 2. If Roe v. Wade were to be overruled, Maryland's currently

unenforceable abortion laws could be applied to all abortions performed
after the date of the Supreme Court's decision.3

3. This office would not have primary responsibility for

enforcement of the abortion restrictions, should they be revived. The
State's Attorneys would be responsible for prosecuting violations of the
one criminal provision at the trial level, and the enforcement of the
noncriminal provisions would be in the hands of the State Board of
Physician Quality Assurance and the State Board of Examiners of
Nurses.

4. Any enactment regarding abortion passed in the 1991 Session

of the General Assembly and petitioned to referendum must be
submitted to the voters at the general election in 1992, and operation
of the enactment would be suspended until 30 days after its approval
by the voters, unless the enactment is an emergency measure. If,

 2
    You have also asked whether the Supreme Court has scheduled oral argument

on the new cases and when decisions in those cases are likely to be announced. The
arguments in the two cases occurred on November 29, 1989. We cannot predict
when the Court will announce its decisions. If the Court decides the cases on
relatively narrow grounds, it might issue its decisions in the spring of 1990. If the
Court uses these cases to write more broadly about a state's power to regulate
abortion, we think it more likely than not that the announcements would not be made
until the end of the Court's term - that is, in June or early July 1990, well after the
end of the 1990 Session of the General Assembly.
3
We thus agree with advice provided to Delegate Rosenberg by Assistant
Attorney General Kathryn M. Rowe on October 6, 1988.

meanwhile, Maryland's prior abortion laws had been revived, those
laws would remain in effect during the referendum process.

                                    I

                         The Pending Cases

A. Ohio v. Akron Center for Reproductive Health

 1.    Challenged State Law

 This case concerns a parental notification requirement for the

performance of an abortion on an unemancipated minor.4 The Ohio
statute at issue requires that the person performing the abortion give at
least 24 hours' personal notice or 48 hours' notice by both certified and
ordinary mail to the woman's parent, guardian, custodian, or other
specified family member, unless either the person entitled to notice has
given written consent to the abortion or a juvenile court has authorized
the minor to consent to the abortion. Akron Center for Reproductive
Health v. Slaby, 854 F.2d 852, 875 (6th Cir. 1988).5

 The judicial authorization procedure, or "judicial bypass," requires

the minor to specifically make either or both of two allegations: (i)
that she is mature and well-informed enough to decide whether to have
an abortion or (ii) that her parent, guardian, or custodian has engaged
in a pattern of abuse of her or that notification is otherwise not in her
best interest. 854 F.2d at 871. The court may consider both
allegations only if both are actually made, and the minor must prove
her allegations by clear and convincing evidence. 854 F.2d at 872.

4
  An unemancipated minor is a minor who lives with and is financially dependent

upon a parent or guardian.
5
The person who is to perform an abortion on an unemancipated minor may
give the

Failure of the court to hold a hearing and enter judgment within five
business days after the minor files her petition is deemed a constructive
order permitting her to consent to the abortion without notification;
likewise, the failure of an appellate court to act promptly on an appeal
filed by a minor is deemed constructive authorization.

 2.   Holding of Court of Appeals

The United States Court of Appeals for the Sixth Circuit first

considered Ohio's contention that a judicial bypass procedure is not
constitutionally required for a parental notification requirement, unlike
a parental consent requirement. Relying on Ballotti v. Baird, 443 U.S.
622 (1979), and its progeny, the court concluded that judicial
authorization must be available, because a notification requirement may
not constitutionally be imposed on a mature minor or a minor whose
best interests do not include parental notification. 854 F.2d at 861.6

 Despite the inclusion of the bypass procedure, however, the court

concluded that the Ohio parental notification statute is unconstitutional.
The requirement that the attending physician give the notice is invalid,
in the court's view, because it does not advance the state's interest in
providing an opportunity for parental involvement more than would
allowing notification by another qualified, responsible person. 854
F.2d at 862.

 Moreover, several provisions of the bypass procedure itself unduly

burden the minor's right to an abortion. The pleading requirement,
which the court characterized as a "procedural trap," increases the risk
that a minor will be deprived of a full opportunity to establish her
entitlement to proceed without parental notification and is unjustified
by any state interest. 854 F.2d at 862-63.7 The requirement that the
minor establish her entitlement to proceed without parental notification
by clear and convincing evidence significantly increases the risk of

 6 For a detailed discussion of the Supreme Court cases involving parental

consent and notification, see 70 Opinions of the Attorney General 3, 8-12 (1985).
7 Ohio contended that a minor claiming to be mature and well-informed enough
to independently make the decision regarding abortion should also be mature enough
to file the appropriate petition, a contention the court dismissed as absurd. 854 F.2d
at 863.

erroneous deprivation of a mature minor's constitutional right to
proceed without parental intervention. 854 F.2d at 864.

 Moreover, the judicial bypass procedure does not adequately

protect the anonymity of a minor because she must sign her full name
at the end of the petition and, unless she is represented by an attorney,
provide an address where she can be reached throughout the
proceedings. 854 F.2d at 865. Further, the procedure is not
sufficiently expeditious because, if an appeal is necessary, the
procedure may span up to 22 days. 854 F.2d at 867-68.

 Finally, the provision for a "constructive" judicial authorization

may leave a minor and her doctor with no tangible evidence of her
entitlement to an abortion without parental notification. Because
performing an unauthorized abortion would expose the physician to
criminal and civil liability and to disciplinary sanctions, a physician
would be unwilling to proceed under those circumstances. 854 F.2d
at 868.8

B. Hodgson v. Minnesota

 1.    Challenged State Law

 The Minnesota statute at issue in this case requires a physician or

the physician's agent to provide 48 hours' notice in person or by
certified mail of a contemplated abortion upon an unemancipated minor
to the parents, guardian, or conservator of the minor. Notice to the
parents must be to both, unless one parent is deceased or cannot be
located. Hodgson v. Minnesota, 853 F.2d 1452, 1453-54 (8th Cir.
1988).

8
   The statute provides that a physician who violates the parental notification

requirement is guilty of a misdemeanor for a first offense or a felony for a subsequent
offense and is liable to the woman and her parents, guardian, or custodian for
compensatory and punitive damages. 854 F.2d at 878. In addition, the violation is
a ground for the state medical board to limit, suspend, revoke, or refuse to grant or
reinstate the physician's license, to reprimand the physician, or to place the physician
on probation. 854 F.2d at 878-79.

 The statute was intended to require parental notification in virtually

all cases, with no provision for judicial authorization of an abortion.
However, a judicial authorization procedure was enacted conditionally,
to take effect only if enforcement of the notice requirement without that
alternative were restrained or enjoined. The judicial authorization
procedure in general terms requires a prompt and confidential
determination of whether the minor is mature and capable of giving
informed consent to an abortion or whether an abortion without
notification to both parents would be in her best interests, with a right
to court-appointed counsel and an expedited confidential appeal. 853
F.2d at 1454 n.4.

 2.   Holding of Court of Appeals

The United States Court of Appeals for the Eighth Circuit, sitting

en banc, held that the notification requirement would be
unconstitutional without the judicial bypass procedure. 853 F.2d at
1456-57. However, it upheld the statute in all other particulars.10

The court held that the requirement of notice to both parents, even

when the minor lives with only one parent or when the minor has
voluntarily consulted with one parent, is constitutional because the
minor may seek judicial authorization to proceed without notice to one
or both parents. 853 F.2d at 1464-65. The court also held that the 48-
hour waiting period does not unduly burden the minor's right to an
abortion because the waiting period may run concurrently with the
scheduling of the abortion. 853 F.2d at 1465. In the court's view,
both of these requirements foster the state's interest in ensuring the
involvement of both parents in the minor's abortion decision. Finally,
the Eighth Circuit rejected the plaintiffs' contention that the notification
requirement violates the equal protection rights of minors who wish

 9
   The notice would not be required, however, if an immediate abortion were

necessary to save the woman's life or if she declared that she was a victim of sexual
abuse, neglect, or physical abuse. In the latter case, her physician must notify the
proper authorities of her declaration. 853 F.2d at 1454 n.5.

  10 A panel of the Eighth Circuit had previously held that the statute was

unconstitutional because the two-parent notification requirement did not serve the
state's interest in protecting minors or promoting family communication and because
the 48-hour waiting period was unreasonable. 853 F.2d at 1453.

abortions by singling out abortion as the only medical procedure
requiring third-party notification. 853 F.2d at 1466.11

                                     II

                           Maryland Statutes

A. Parental Notification Requirement

Under §20-103(a) of the Health-General Article ("HG" Article), a

physician ordinarily may not perform an abortion on an unmarried
minor without giving prior notice to a parent or guardian of the minor.
Notice is not required if (i) the minor does not live with a parent or
guardian and an attempt to give notice is unsuccessful or (ii) the
physician judges that notice may lead to physical or emotional abuse of
the minor. HG §20-103(b) and (c).

Unlike the statute at issue in Hodgson, HG §20-103 would not

require notification to both parents. Nor does HG §20-103 impose a
particular waiting period after notification, as do the statutes at issue
in both Hodgson and Akron Center.

However, HG §20-103 makes no provision for a procedure

whereby a minor may demonstrate that she is mature or that
notification would not be in her best interest. In 70 Opinions of the
Attorney General at 12, the Attorney General concluded that this statute
is unconstitutional because of that lack.

B. Other Abortion Restrictions

Other Maryland statutes concerning abortion are also

unconstitutional under Roe and its progeny:

 11
    The plaintiffs also asserted that the requirement impermissibly discriminates

between minors who are able to notify both of their parents and those who are not
able to do so. That assertion was not raised at the trial, and therefore the court did
not consider it.

 1.   Reasons for an abortion

 HG §20-208(a) prohibits any abortion unless (i) continuation of the

pregnancy threatens the woman's life; (ii) there is substantial risk that
the woman's physical or mental health would be gravely impaired; (iii)
there is substantial risk of the birth of a child with grave and permanent
physical deformity or mental retardation; or (iv) the pregnancy resulted
from forcible rape and the State's Attorney provides a written statement
that there is probable cause to believe that the alleged rape did occur.
This statute was held unconstitutional in Coleman v. Coleman, 57 Md.
App. 755, 760, 471 A.2d 1115 (1984). See also 62 Opinions of the
Attorney General at 7.

HG §20-208(b)(1) prohibits any abortion after the 26th week of

gestation unless the pregnancy threatens the woman's life or the fetus
is dead. This statute is unconstitutional because it does not permit
abortions necessary for the woman's health. 62 Opinions of the
Attorney General at 8.

 2.   Hospitalization requirement

 Under HG §20-208(a), all abortions must be performed "in a

hospital accredited by the Joint Commission for Accreditation of
Hospitals and licensed by the State [Department] of Health and Mental
Hygiene ...." HG §20-210(a) makes it a misdemeanor to perform or
assist in an abortion other than in an accredited and licensed hospital.
Under §14-504(a)(23) of the Health Occupations Article ("HO"
Article), any physician who performs an abortion "outside a licensed
hospital" is subject to disciplinary action by the Board of Physician
Quality Assurance.

HG §19-301(f) defines "hospital," in part, to mean a facility that

admits or retains patients for overnight care. Thus, these statutes
purport to prohibit the performance of abortions in outpatient clinics of
any kind.

Applying the Supreme Court's decisions in City of Akron v. Akron

Center for Reproductive Health, Inc., 462 U.S. 416 (1983) and
Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983), the
Attorney General concluded that these provisions are unconstitutional
as applied to abortions performed during the first and second

trimesters. 70 Opinions of the Attorney General 3, 15 (1985). See
also 62 Opinions of the Attorney General 3, 6 (1977).

3.   Review requirement

HG §20-208(b)(2) prohibits any abortion unless it has been

authorized in writing by the abortion review authority of the hospital
where the abortion is to be performed. The Attorney General
concluded that this provision is unconstitutional under Doe v. Bolton,
410 U.S. 179, 198 (1973). 62 Opinions of the Attorney General at 9.

4.     Recordkeeping requirements

 HG §§4-201(e), 4-205, 4-213, 4-217, and 4-222 require that

abortions be reported on "fetal death certificates" to the Department of
Health and Mental Hygiene and the appropriate county registrar. The
records are open to inspection by local public officials, surviving
relatives, and researchers at the Hall of Records. HG §§4-205, 4-217,
and 4-222. The Attorney General concluded that these recordkeeping
requirements are unconstitutional to the extent that they permit
disclosure of the fetal death certificate. 70 Opinions of the Attorney
General at 17-18.

                               III

 Effect on Maryland Laws If Roe v. Wade Is Not Overruled

 The Supreme Court in its last term upheld a Missouri law requiring

testing to determine fetal viability before the performance of an
abortion at or after 20 weeks of gestation. Webster v. Reproductive
Health Services, 109 S.Ct. 3040 (1989). In considering the impact of
that decision on Maryland's law, we commented: "We do not doubt
that Webster is the precursor of a new constitutional doctrine on
abortion, one that will be markedly more open to state regulation than
the doctrine of Roe and its progeny." 74 Opinions of the Attorney
General 3, 14 (1989). Yet because no single rationale for the decision
in Webster commanded a majority of the justices, we were unable to
predict "the legal principles that will determine the constitutionality of
abortion restrictions." Id.

 By the same token, we are unable to predict what, if any, effect

Akron Center or Hodgson might have on Maryland's laws if the laws
at issue in those cases are upheld without overruling Roe v. Wade. We
do not know whether the Court will focus solely on the discrete
problem of parental notification, or whether it will write more broadly
about the states' power to regulate abortions. And, if the Court does
use these cases to address abortion restrictions generally, we also do
not know whether a majority of the Court will yet be able to agree on
a single doctrine. Under these circumstances, we believe that we
should refrain from speculating on what the Supreme Court might or
might not do.

                                       IV

     Effect on Maryland Laws if Roe v. Wade Is Overruled

A. Introduction

 Roe v. Wade established the federal constitutional right of a

woman, in consultation with her physician, to choose to terminate a
pregnancy. Subsequent Supreme Court decisions that have invalidated
particular abortion restrictions have done so because the restrictions
infringed or unduly burdened the exercise of that federal right. E.g.,
City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S.
416 (1983) (invalidating parental consent requirement). Consequently,
if Roe v. Wade were completely overruled, the United States
Constitution would impose no limit on the power of a state to restrict,
or, indeed, to prohibit altogether, the performance of abortions.12

  12 A state's abortion restriction would merely need to be rational to satisfy equal

protection requirements. Presumably, the state's interest in protecting fetal life would
suffice in most cases, except, perhaps, if a law prohibited an abortion needed to save
the life of the mother.

B. Maryland Constitution

 No reported decision has concluded that the Maryland Constitution

itself grants a right of abortion in addition to that granted by the federal
Constitution. To the contrary, every reported Maryland case that has
considered the constitutional right has addressed it solely as a matter
of federal constitutional law. See Bayne v. Secretary of State, 283 Md.
560, 577 n.7, 392 A.2d 67 (1978); Coleman v. Coleman, 57 Md. App.
755, 471 A.2d 1115 (1984); State v. Ingel, 18 Md. App. 514, 308
A.2d 223 (1973).

 Courts in other states have concluded that their state constitutions

grant a right to abortion. The Supreme Court of California, for
example, four years before the decision in Roe v. Wade, concluded that
the California and federal constitutions imply "[t]he fundamental right
of the woman to choose whether to bear children ...." People v.
Belous, 80 Cal. Rptr. 354, 359 (Cal. 1969). The California court did
not identify a specific provision of the state constitution as the source
of that right, but based its conclusion on cases acknowledging a privacy
or liberty interest in matters related to marriage and family, such as
Griswold v. Connecticut, 381 U.S. 479 (1965).

 Three years after the decision in Belous, the California Constitution

was amended to provide explicit protection for a broad right of privacy
that encompasses a right to abortion "at least as broad as that described
in Roe v. Wade." Committee to Defend Reproductive Rights v. Myers,
172 Cal. Rptr. 866, 883 (Cal. 1981).13

Article I, §1 of the New Jersey Constitution declares that all

persons "have certain natural and unalienable rights, among which are
those of enjoying and defending life and liberty ... and of pursuing and
obtaining safety and happiness." The Supreme Court of New Jersey
has held that this provision protects the right of privacy, including a
right of abortion. Right to Choose v. Byrne, 450 A.2d 925, 933 (N.J.
1982).

 13
    Article I, §1 of the California Constitution now declares the existence of

"inalienable rights," including the rights of "pursuing and obtaining safety, happiness,
and privacy." City of Santa Barbara v. Adamson, 164 Cal. Rptr. 539, 540 n.1 (Cal.
1980).

Most recently, the Supreme Court of Florida has held that the right

of abortion is protected by that state's Constitution. In re T. W., No.
74,143 (October 5, 1989). That decision is based on Article I, §23 of
the Florida Constitution, declaring that "[e]very natural person has the
right to be let alone and free from governmental intrusion into his
private life ...." Slip op. at 4.

 The Maryland Constitution includes no explicit protection of the

right of privacy; nor does it include a declaration of "natural and
unalienable rights" to life, liberty, and the pursuit of safety and
happiness like that of the New Jersey constitution. To be sure, the
Maryland Court of Appeals might conclude that Article 24 of the
Maryland Declaration of Rights protects the right of abortion, as the
Supreme Court concluded that the Fourteenth Amendment protects that
right. Roe v. Wade, 410 U.S. at 153. See Crawford v. State, 281 Md.
431, 404 A.2d 244 (1979) (Article 24 is equivalent to Fourteenth
Amendment).14 But the Court of Appeals has not yet identified any
right of privacy protected by the Maryland Constitution. Under these
circumstances, we have no basis on which to conclude that Article 24
would prevent the revival of Maryland's previously enacted abortion
restrictions.

 Neither do we think that the Maryland Equal Rights Amendment,

Article 46 of the Maryland Declaration of Rights, would prevent the
revival of those restrictions. We are aware of only one state court
decision holding that a law restricting access to abortion violated an
equal rights amendment. In Doe v. Maher, 515 A.2d 134, 159 (Conn.
Super. 1986), a trial court held that a state regulation prohibiting
Medicaid funding for abortions that were medically necessary, but not
necessary to preserve the woman's life, violated that state's E.R.A.
The state medicaid program paid all other necessary medical expenses,
including all men's expenses "associated with their reproductive health,
for family planning and for conditions unique to [their] sex ...." Thus,
in the court's view, the regulation embodied a classification based on
pregnancy. Because pregnancy is a condition unique to women, the
court concluded that such a classification necessarily is based on sex.

 14 Article 24 of the Maryland Declaration of Rights provides "[t]hat no man

ought to be taken or imprisoned or disseized of his freehold, liberties or privileges,
or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty
or property, but by the judgment of his peers, or by the Law of the land."

515 A.2d at 159. The regulation, in that court's view, violated the
Connecticut E.R.A. because it was not justified by a compelling state
interest. 515 A.2d at 162.

We think it unlikely that the Maryland courts would adopt the

reasoning of Doe v. Maher. To be sure, laws restricting abortions
directly affect only women and thus would appear to fall within the
ambit of the E.R.A., which "flatly prohibits gender-based
classifications ... in the allocation of benefits, burdens, rights and
responsibilities as between men and women." Burning Tree Club, Inc.
v. Bainum, 305 Md. 53, 64, 501 A.2d 817 (1985) (opinion of Murphy,
C. J.).15 However, the E.R.A. does not require absolute equality of
treatment in all circumstances:

       Disparate treatment on account of physical
       characteristics unique to one sex is generally regarded
       as beyond the reach of equal rights amendments.
       See, e.g., Brooks v. State, 24 Md. App. 334, 330
       A.2d 670, cert. denied, 275 Md. 746 (1975), holding
       that it does not violate the E.R.A. to punish only men
       for rape as principals in the first degree because only
       men can commit that crime.

305 Md. at 64 n.3.16 See also Comment, Comparable Worth and the
Maryland E.R.A., 47 Md. L. Rev. 1129, 1172 (1988) (laws based on
physical characteristics would survive even if E.R.A. is absolute
because basis for those laws' differentiation is not individual's sex but
physical characteristic possessed by only one sex). Accord Brown,
Emerson, Falk, and Freedman, The Equal Rights Amendment: A
Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871,
873 (1971) (proposed federal E.R.A. would permit law relating to wet
nurses or regulating donation of sperm, because law would deal only
with characteristic exclusive to one sex).

 15
    However, it might also be argued that a law like HG §20-210, which

criminalizes performing or assisting in an abortion other than by a licensed physician
in a licensed and accredited hospital, is not gender-based because the criminal
sanction applies equally to members of both sexes.
16
To the same effect as Brooks are People v. Green, 514 P.2d 769 (Colo.
1973); People v. Medrano, 321 N.E. 2d 97 (Ill. App. 1974); State v. Craig, 545 P.2d
649 (Mont. 1976); and Finley v. State, 527 S.W. 2d 553 (Tex. Crim. App. 1975).

Thus, the Maryland E.R.A. prohibits disparate treatment of men

and women based on generalizations about differences between "most"
or "average" men and women. See State v. Burning Tree Club, Inc.,
315 Md. 254, 295-96, 554 A.2d 366 (1989). However, it does not
reach distinctions based on immutable, inarguable physical
characteristics never found in one sex.

 In short, the very feature that led the Connecticut court to find a

violation of that state's E.R.A., the statutory classification's basis on
a physical characteristic unique to one sex, would appear to put a
restriction on abortion outside the reach of Maryland's E.R.A.

C. Effect on State Statutes

 An unconstitutional enactment is invalid and unenforceable; indeed,

the enactment may be void ab initio, "as inoperative as though it had
never been passed." Norton v. Shelby County, 118 U.S. 425, 442
(1886). See e.g., State v. Ingel, 18 Md. App. at 522-23 (giving fully
retroactive effect to Roe v. Wade with respect to criminal provisions of
state law). In this sense, it does not matter whether the General
Assembly expressly repeals an unconstitutional enactment. See
Johnson v. State, 271 Md. 189, 195, 315 A.2d 524 (1974); Hutchinson
v. State, 1 Md. App. 362, 371-72, 230 A.2d 352 (1967).

Nonetheless, so long as the enactment is not repealed, it is not

abolished but merely suspended. Home Utilities Co. v. Revere Copper
& Brass, Inc., 209 Md. 610, 619, 122 A.2d 109 (1956). See also
Jawish v. Morlet, 86 A.2d 96, 97 (D.C. 1952).17 If the basis of the
enactment's invalidity is later removed, the enactment is again fully
effective. For example, a Maryland statute held invalid because it
conflicted with the Sherman Act was revived by a subsequent
amendment of the Sherman Act, without the need for reenactment by

 17 It has sometimes been said that a statute may become a nullity through long

disuse. See United States v. Elliott, 266 F. Supp. 318, 325 (S.D.N.Y. 1967) (citing
commentators). However, this doctrine of desuetude does not appear to have been
adopted in Maryland. To the contrary, the Court of Appeals has long held that
failure to enforce a penal statute does not repeal it. State v. Mellor, 140 Md. 364,
373, 117 A. 875 (1922). See also Gibson v. State, 204 Md. 423, 438, 104 A.2d 800
(1954) ("[T]he fact that the reason for a statute has ceased to exist, of course, does
not mean that the statute is no longer in force ....").

the General Assembly. Home Utilities Co., 209 Md. at 619. By the
same token, if Roe v. Wade were overruled, all unrepealed statutes
restricting abortions would again be effective.

However, we think that any revived restrictions on abortions would

be applicable only to abortions performed after the date of a decision
overruling Roe v. Wade.18 Cf. Jawish v. Morlet, 86 A.2d at 97
(revived statute "is valid from its first effective date").

In Perkins v. Eskridge, 278 Md. 619, 637, 366 A.2d 61 (1976),

the Court of Appeals concluded that the question whether an enactment
declared unconstitutional is thereby invalidated retroactively must be
determined in light of the circumstances of the case. The effect of a
revived statute must likewise be determined in light of the
circumstances, bearing in mind that "statutory or even judge-made
rules of law are hard facts on which people must rely in making
decisions and in shaping their conduct." Lemon v. Kurtzman, 411 U.S.
192, 199 (1973).

Because violation of the revived abortion restrictions would subject

health care providers to administrative or criminal sanctions, we
conclude that those restrictions could not be applied retroactively to
abortions performed in reliance on Roe and its progeny. See Gee v.
Mass Transit Admin., 75 Md. App. 253, 260-61, 540 A.2d 1194
(1988) (statute affecting substantive rights does not apply retroactively).

 18
    Supreme Court Rule 52.3 provides that the judgment of the Court is not

ordinarily sent to the lower court until the expiration of 25 days after the date of the
decision. However, the sending down of the judgment is merely a routine matter of
directing the lower court to take any steps necessary to carry the Supreme Court's
decision into effect in the particular case decided. Vendo Co. v. Lektro-Vend Corp.,
434 U.S. 425, 428 (1978). That is, the Court's decision itself declares the substance
of the law; sending down the judgment is but a procedural step directing the final
disposition of the particular case before the Court in accordance with that substantive
law. Hence, the Court's decision states what the law is as of the date of the decision
and should be adhered to from that date.

                                V

             Enforcement of Abortion Restrictions

Of the abortion restrictions that are presently unconstitutional, only

HG §20-210 is a criminal enactment: It provides that any person who
performs, assists, or in any way facilitates the termination of a
pregnancy other than by a licensed physician in a licensed and
accredited hospital is subject to a fine of $5,000, three years'
imprisonment, or both.

As in the case of virtually all other criminal statutes, the

prosecution of violations of HG §20-210 at the trial level would be the
responsibility of the State's Attorneys in the various counties and
Baltimore City. State v. Aquilla, 18 Md. App. 487, 493, 309 A.2d 44
(1973). The State's Attorneys are independent constitutional officers,
vested with full discretion to determine whether or not to prosecute in
any case. Murphy v. Yates, 276 Md. 475, 495, 348 A.2d 837 (1975).

 The other provisions restricting abortions carry no criminal

sanctions. However, health care providers whose conduct violated the
restrictions would be subject to discipline. The Board of Physician
Quality Assurance may reprimand, place on probation, or suspend or
revoke the license of a physician who "[p]erforms an abortion outside
a licensed hospital." HO §14-504(a)(23). The statute setting out the
grounds for discipline of nurses is less specific. In our view, however,
the Board of Examiners of Nurses may conclude that a nurse's
participation in an illegal abortion is an "act that is inconsistent with
generally accepted professional standards ...." HO §7-313(a)(8).

 The two boards themselves would have the responsibility to

determine what action to take in response to an overruling of Roe v.
Wade. Actions could include the issuance of bulletins or other
publications to notify licensees of the change in the status of the
abortion laws, as well as discipline of particular health care providers
in response to complaints or criminal proceedings. Additionally, the
licensing bodies could determine to await the outcome of the General
Assembly's consideration of the matter before imposing sanctions on
a licensee.

                               VI

       Effective Date of Amendments to Abortion Laws

Your final question concerns the effective date of an enactment

pertaining to abortions if the enactment were petitioned to referendum.

 Article XVI, §2 of the Maryland Constitution provides that, if a

law is petitioned to referendum, it ordinarily "shall not become a law
or take effect until thirty days after its approval ... at the next ensuing
election held throughout the State for Members of the House of
Representatives of the United States." However, if the law was
enacted as an emergency measure, it "shall remain in force
notwithstanding such petition, but shall stand repealed thirty days after
having been rejected by a majority of the qualified electors voting
thereon."

Under these provisions, a nonemergency law regarding abortions

enacted in the 1990 Session and petitioned to referendum could not take
effect until December of 1990. A nonemergency enactment of the
1991 Session petitioned to referendum could not take effect until
December of 1992, for Article XVI, §2 does not authorize a vote on
a referendum other than at a Statewide election for members of the
House of Representatives. See also Article 33, §22-l(a) (elections for
House of Representatives held in November 1966 and every second
year thereafter).

 During the period when an enactment has been suspended by its

referral to the voters, the state of the law on the referred matter is
necessarily as though the enactment had not been passed. Hence, if the
Supreme Court overrules Roe v. Wade next year, the restrictions on
abortion discussed in Part II of this opinion would be in effect until at
least 30 days after the November 1990 election, assuming that new
legislation on abortion enacted in the 1990 Session were petitioned to
referendum. Similarly, the revived laws would remain in effect until
at least 30 days after the November 1992 election, assuming that new
legislation on abortion were not enacted until the 1991 Session and
were petitioned to referendum.

At the same time, the pendency of a referendum would not prevent

the General Assembly from again enacting legislation on the same
subject, including emergency legislation that would take immediate
effect. In 1961 the General Assembly enacted a law regulating savings
and loan associations, which was then petitioned to referendum at the
1962 election. At a special session held in June 1961, the General
Assembly enacted an emergency measure identical in substance to the
referred law. The Court of Appeals held the emergency measure valid
and effective. First Continental Savings & Loan Ass'n v. Director,
State Dep't of Assessments & Taxation, 229 Md. 293, 302, 183 A.2d
347 (1962). In light of the General Assembly's express right under
Article XVI, §2 to enact emergency legislation not subject to
suspension pending a referendum, and the lack of any express
prohibition against legislating on referred matters, "the right of
referendum ... was not frustrated, only the right to suspend the
operation of the law pending the vote thereon." 229 Md. at 304.

                              VII

                          Conclusion

 In summary, we conclude as follows:

 1. Because Maryland's parental notification requirement differs

from the laws at issue in the two cases now pending in the Supreme
Court, and more generally because we cannot predict what principles
the Supreme Court might adopt to determine the constitutionality of
abortion restrictions if it does not overrule Roe v. Wade, we cannot
predict what effect its decisions in these cases might, in those
circumstances, have on Maryland's currently unenforceable statutes.

 2. If Roe v. Wade were to be overruled, Maryland's currently

unenforceable abortion laws could be applied to all abortions performed
after the date of the Supreme Court's decision.

3. This office would not have primary responsibility for

enforcement of the abortion restrictions, should they be revived. The
State's Attorneys would be responsible for prosecuting violations of the
criminal provisions at the trial level, and the enforcement of the
noncriminal provisions would be in the hands of the State Board of
Physician Quality Assurance and the State Board of Examiners of
Nurses.

4. Any enactment regarding abortion passed in the 1991 Session

of the General Assembly and petitioned to referendum must be
submitted to the voters at the general election in 1992, and operation
of the enactment would be suspended until 30 days after its approval
by the voters, unless the enactment is an emergency measure. If,
meanwhile, Maryland's prior abortion laws had been revived, those
laws would remain in effect during the referendum process.

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         C. J. Messerschmidt
                                         Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note:

 The two Supreme Court decisions referred to in this opinion were

issued in 1990. Ohio v. Center for Reproductive Health, 110 S.Ct.
2972 (1990); Hodgson v. Minnesota, 110 S.Ct. 2926 (1990). Neither
decision resulted in a change in the status of Maryland law. See 75
Opinions of the Attorney General [Opinion No. 90-041 (August 30,
1990)].

 In Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991, the

General Assembly substantially revised Maryland's law on abortion;
except for the parental notification provision, the restrictions discussed
in Part I of this opinion are repealed by Chapter 1. The effectiveness
of Chapter 1 has been suspended, however, by the filing of a
referendum petition. Chapter 1 will be approved or disapproved by the
voters at the November 1992 general election.