Proponents of Maryland's 2024 ballot question on abortion aim to match success of earlier era

Dec. 26—By Sam Janesch — sjanesch@baltsun.com — The Baltimore Sun

PUBLISHED:December 26, 2023 at 6:00 a.m.| UPDATED:December 28, 2023 at 10:52 a.m.

Three decades ago, it was nearly an even match.

Abortion-rights proponents and anti-abortion activists — at the culmination of a dramatic three-year political battle in the halls of the State House and across Maryland — turned out thousands of volunteers and flooded the airwaves with ads, spending practically dollar for dollar in the lead-up to the 1992 election.

"Privacy, safety, choice," the ads supporting abortion said. "Make them get it right," said the opposition.

The question at hand: whether Maryland would codify the protections of Roe v. Wade in what was then seen as the unlikely event that the 1973 U.S. Supreme Court case would be overturned. That ballot question was ultimately approved by 60% of voters — above expectations at a time when support for abortion rights among the public and elected officials in liberal-leaning Maryland was not automatic.

Now, for the first time since that historic ballot measure, Maryland voters will have the chance to make their voices heard on whether abortion should be protected even further. A question being prepared for the November ballot will ask voters whether reproductive freedom should be enshrined in the state constitution. Once again, supporters are saying Marylanders' expected approval shouldn't be taken for granted.

"Everywhere you turn, individual rights are under attack, and border states like West Virginia have already implemented near total abortion bans. It's critical we take steps now to ensure access in Maryland remains safe and reliable for the future," said Erin Bradley, a top Planned Parenthood staffer in Maryland who is among the leaders of a new organization aimed at raising positive awareness for the 2024 ballot question.

Freedom in Reproduction Maryland, or FIRM, is just beginning to take shape. Among its goals will be to raise money to start a campaign asking voters to support the constitutional amendment in the fall.

Another organization, Health Not Harm MD, has registered with the state elections board to encourage Marylanders to vote against the amendment. Its chair, Maryland Right to Life lobbyist Deborah Brocato of Fallston said proponents of the amendment suggest reproductive health care is "under attack" in Maryland, but adults' access to abortion wouldn't change if the amendment passes. She also believes the "broad" wording of the amendment would make it easier for children to access abortion care, as well as some gender-affirming care, because it describes protections for "reproductive freedom."

"It's about more than just abortion," Brocato said. "It's also about anything that has to do with the reproductive system."

Abortion-rights advocates like Bradley acknowledge Maryland's ballot question starts off on stronger ground than those in other, more conservative states like Ohio and Kansas (although voters in those states eventually showed broad support for keeping access to abortions). Both before and after the Supreme Court's decision in June 2022, Maryland voters elected pro-abortion rights Democrats by overwhelming margins statewide. Elected officials, in turn, passed new laws to expand abortion access, including the language for the proposed constitutional amendment in early 2023.

But veterans of Maryland's last public battle on abortion rights agree — even though Maryland is in a very different place politically than in the early 1990s, one in which Democrats almost unilaterally agree on the issue and where polls show nearly three-quarters of the public support access — the abortion question will require a serious campaign.

"Polls are polls, but people showing up to the ballot box are two totally different things," said Steven Rivelis, who, in 1990, chaired a political action committee with the goal of electing abortion rights candidates and unseating anti-abortion incumbents in the Maryland General Assembly. Rivelis' work that year was spurred by a dramatic eight-day filibuster that killed legislation that would have protected abortion rights. Democrats split along a divide that, at the time, was more religious than partisan.

"Every once in a while an issue comes up that has moral issues attached to it that nobody wants to face, but you have to face it," recalled former Democratic Sen. Frank Kelly, who was one of the anti-abortion floor leaders during the filibuster.

Kelly, of Baltimore County, said his position is based on his Catholic faith and personal history. His mother, he said, chose not to have an abortion when she was five months pregnant with him, even though a doctor discovered a cyst that was potentially cancerous.

"I don't think any of us wanted to deny a woman the right to make a decision," Kelly said of the 16 legislators, 13 Democrats and three Republicans, known as the "blocks of granite" for holding up the bill. "But there are two lives: The mother and the child. And the child can't speak for itself."

The 1990 legislation failed after an attempt to send two versions of the bill — a more expansive abortion-access bill and another more restrictive version — to voters to let them decide.

Rivelis, who had been Planned Parenthood's first full-time lobbyist in Maryland starting in 1981, said he was sitting in the Senate chamber gallery with other activists during the final vote.

"There was a fascinating degree of electricity on that day," Rivelis said. "All of the work that we did up until then seemed to have indicated that we were supposed to win, so there was this sort of heightened sense of being deflated by one vote. Then folks sort of, within nanoseconds, went from this sort of being pissed off to channeling their anger to, 'What do we do next?'"

Rivelis' answer to that question was Choice PAC, a first-of-its-kind campaign committee in Maryland. He and others targeted legislators at the center of the filibuster and recruited candidates to unseat them. The results were unequivocal. Four of the five targeted Democrats lost in the primary six months later, including multiterm incumbents like Kelly, who sought a fourth four-year term. Kelly soon afterward switched his party affiliation to Republican.

"My faith required me to stand up," Kelly said. "I knew I was going to lose and I stuck with it."

Democratic Del. Sandy Rosenberg of Baltimore, then a young lawyer not far removed from sitting in Ruth Bader Ginsburg's class on sex discrimination at Columbia Law School, entered the House of Delegates in 1983 as a staunch supporter of abortion rights, quickly becoming a prime sponsor of annual budget language requiring Medicaid to cover abortion care. A floor leader in the House debates on codifying Roe's protections, he called the filibuster a "bitter" fight that led directly to the sweeping changes in the election.

"They lost — without a doubt, no question — because of their opposition to the bill and their support for the filibuster," Rosenberg said of the lawmakers. "We knew we had the votes after that election."

That proved true just a few months later. When the General Assembly convened for its annual 90-day session in early 1991, the legislation quickly passed and, in a rare bill signing ceremony early in the session, Gov. William Donald Schaefer approved the bill just 35 minutes after the final vote. Schaefer, a Democrat, had refused to take a position during the filibuster a year earlier.

Anti-abortion activists then successfully petitioned the bill to go to voters before taking effect, collecting nearly 143,000 signatures, more than four times the required amount.

Rivelis recalled "there was a great deal of nervousness" heading into what became the November 1992 ballot question campaign.

"It's one thing to line up the votes. You need the 24 in [the Senate] and 72 in the [House]. It is another thing to win in every precinct of the state," Rivelis said, noting the financial resources needed to reach voters. "Everyone was nervous and biting their fingernails at that point."

Both sides came out in full force, nearly evenly splitting $3 million in combined fundraising and spending in the weeks before Election Day, according to news reports at the time. Torrents of radio and television ads were unleashed. Thousands of volunteers knocked on doors and "churchgoers found political flyers in their weekly bulletins," according to a report from The Baltimore Sun.

"It was definitely a national cause for the anti-choice forces," said Maura Keefe, who worked on the Maryland for Choice campaign and went on to a long career on Capitol Hill as a chief of staff for lawmakers. Keefe said her group was "ecstatic" by the eventual win with 60% of the vote, which she attributes in part to the turnout generated by having Democratic presidential nominee Bill Clinton and Democratic U.S. Sen. Barbara Mikulski on the same ballot.

"We were very happy to be striking the old law off the books and preparing for what we thought was a remote possibility," Keefe said, referring to the idea that national abortion protections could be wiped out with Roe. "It turned out to be less than remote."

Keefe said it will be important for advocates to run a strong educational campaign again in 2024, especially as misinformation and attempts to "muddy the waters" spread in an attempt to make the question fail.

"You can't just sort of expect that people will be pro-choice" and automatically come out to vote for the referendum, Keefe said. "You still need to tell them and get them to come out."

Rosenberg similarly said advocates "can't take anything for granted" because of false accusations that the language will allow for "abortions on demand." Those claims were made at times by Republicans as lawmakers worked to pass the constitutional amendment language in early 2023.

It's not yet clear what kind of messaging Freedom in Reproduction Maryland, still in its early stages of developing a strategy for 2024, will include in its campaign — or how much money it will need to get that message across.

In Ohio this fall, the state constitutional amendment to protect abortion access drew $70 million in combined fundraising and spending. In Kansas in 2022, the ballot question asking voters to remove abortion protections had a $22 million price tag. The abortion rights side overwhelmingly won in both cases, by 13 percentage points and 18 percentage points, respectively.

Brocato, of the opposing Health Not Harm MD group, said she's hopeful the constitutional amendment will fail if voters realize it wouldn't change access to abortion care and if they learn about what she considers "vague" wording that could threaten parents' roles in helping children with reproductive health care decisions. The amendment seeks to guarantee rights to "every person" — not specifically women or adults — and it promises "reproductive freedom, including but not limited to" decisions about pregnancies.

Bradley, the executive director of Planned Parenthood Advocates of DC, Maryland and Virginia who is helping lead the new FIRM group, said more information about its effort in Maryland will be shared in the coming weeks. But she said the campaign is expected to be costly, even in a state that looks far different in its stance on abortion rights than it did the last time the issue was on the ballot.

"With hundreds of millions of dollars spent on this fight nationally, we know this will be expensive and take the support of all of Maryland's advocates," Bradley said.

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