Gov. Mills says Maine's constitution may already protect abortion access

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Jul. 27—Gov. Janet Mills said her administration is discussing whether the state constitution needs to be amended to protect a woman's right to have an abortion, or whether that right is already guaranteed.

Mills, who was in Portland on Wednesday to receive the endorsement of Planned Parenthood's political action committee, made the comment in response to a question about what additional measures she would take, if reelected, to further protect abortion access.

"I don't have a legislative plan on that yet, but we are talking about whether or not the Maine Constitution does have those protections that the Supreme Court has ruled the U.S. Constitution does not have," said Mills. "It's a little preliminary to say that it either does or doesn't, or that we need a constitutional amendment at this time, but all of those things are on the table."

It's unclear which part of the state constitution is being discussed as possibly providing protection to abortion access. A spokesperson for the Attorney General's office confirmed they were conducting a review, but declined to identify the specific section or sections of the constitution being reviewed.

"I can confirm that our office has been engaged in conversations about whether the Maine constitution currently provides abortion protections or whether a new provision might be required, however, we are not ready to publicly comment on our analysis and next steps," Danna Hayes, a special assistant to the attorney general, said in an email.

Abortion has become a central issue in Democratic campaigns in Maine and across the country since the U.S. Supreme Court voted in June to overturn Roe V. Wade, which had guaranteed a woman's constitutional right to legal and safe abortions for 50 years. The decision was the culmination of a yearslong effort by Republicans to secure a majority on the nation's highest court to overturn the decision, and potentially others.

Mills expanded abortion access in her first term and signed an executive order protecting women who come from out of state to receive one here. Now she is running for reelection against former Gov. Paul LePage, a Republican who is seeking an unprecedented third nonconsecutive term in office.

LePage opposes abortion and regularly attended anti-abortion rallies as governor, but has downplayed his opposition to the procedure since the court's ruling and has dodged questions about whether he would sign any bills to further restrict abortion access in Maine. He dismissed reporters' questions about abortion after a campaign rally last month, saying he is focusing on much bigger problems such as the economy and energy.

"I don't have time for abortion. It's that simple," he said. "There's just so much that needs to be done that to me is critical for all Mainers. Abortion affects few."

Maine codified a women's right to an abortion in 1993 — an effort led by former Republican Gov. John McKernan. Abortions are allowed in most cases before fetal viability, which generally occurs between 22 and 24 weeks of pregnancy. After that, abortions are allowed only to preserve the life and health of a mother.

Shortly after a draft opinion of the high court was leaked in May, Democratic lawmakers began discussing whether Maine's Legislature should seek to enshrine the right to an abortion in the state's constitution, something already under consideration in Vermont. Among those supportive of such a move is Rep. Lois Galgay Reckitt, D-South Portland, who has repeatedly tried to amend the state constitution to guarantee equal rights for women, only to be blocked by Republican opposition.

"The irony is that the major argument about not passing the Equal Rights Amendment (we) heard from Republicans is that it was going to allow abortions," Galgay Reckitt said at the time. "Never mind that abortions are already legal in this state. There's a part of me that really wants to go ahead with an initiative like Vermont's and I'm certainly going to investigate it."

Amending the state constitution is no easy task. Proposed amendments must receive the support of two-thirds of the Legislature and then be approved in a statewide referendum.

Constitutional amendments are more permanent than state laws, which can be more easily changed when control of state government gets handed from one party to the other.

Dmitry Bam, vice dean and provost at the University of Maine School of Law, said the administration is likely discussing whether the state's due process or equal protection clause could be used to ensure abortion access. The language is similar to the 14th Amendment to the U.S. Constitution. While both guarantee the right to equal protection and due process, neither specifically mentions a right to an abortion.

In 1973, the U.S. Supreme Court cited the due process clause of the 14th Amendment when it ruled that women had a constitutional right to abortion. That decision was upheld in 1992 by the court, but this year the court reversed that opinion, saying the right doesn't exist and handing the issue back to the states to decide.

As of July 1, 22 states had laws that could be used to restrict legal access to abortions, according to the Guttmacher Institution, an abortion rights research group.

Bam said the Maine Supreme Judicial Court would be the final arbiter of any similar case using Maine's constitution — something he said is unlikely to happen because abortion access is currently protected by state law. Such an argument would only be cited to challenge any future laws restricting abortions, he said.

"If the politics of the state change and there was momentum in the state Legislature to limit the right to an abortion to the extent permitted by the federal constitution, then you would have a point of challenging those restrictions," he said.

Bam said it's not unusual for state and federal courts to have different interpretations of parallel clauses, pointing to same sex marriage as an example.

Democrats are expected to face headwinds in races throughout the county this fall, given President Biden's unpopularity, inflation and high gas prices. But Democrats here, and across the U.S., are hoping to harness the outrage over the court's decision to overturn Roe V. Wade to motivate their base.

"Make no mistake about it — reproductive freedom is on the ballot this November here in Maine and Republican candidates have made it clear they will come for abortion rights," Mills said Wednesday. "We know what Paul LePage will do, not matter what he says today or tomorrow."

Nicole Clegg, chair of Planned Parenthood Maine Action Fund PAC, said the court decision has motivated supporters of abortion rights to become more involved in this year's campaign cycle. She touted Mills' efforts to protect abortion access and other reproductive health care and called out LePage for opposing abortion and eliminating funding for family planning services when he was governor.

"This November will be the first time Maine voters will have their voices heard since the loss of Roe, and if this past month is any indication, is any preview, voters are ready to be loud and clear in their views," Clegg said. "They want people who can lead, people who will protect our rights and people who care about our health. That's Janet Mills."