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MARVIN MANDEL, Governor 3891
has been performed shall include certain information. It
is unclear whether this requirement is applicable to all
abortions performed in the State of Maryland or only to
those performed after the twentieth week of pregnancy.
The United States Supreme Court in Roe v. Wade, 410 U.S.
113 (1973), held that a state may not interfere with or
regulate an attending physician's decision, reached in
consultation with his patient, that the patient's
pregnancy should be terminated prior to the end of the
first trimester of pregnancy. The information to be
included in the medical record, in particular the
information required by paragraph 6 relative to
pre-abortion counseling, could be construed as an attempt
by the State to interfere with the relationship between a
physician and a patient if this provision of subsection
(a) is viewed as applicable to the first trimester of
pregnancy. He understand that it was the intent of the
legislature that this provision be applicable only after
the twentieth week, of pregnancy. Since a contrary
construction may put the State in the position of
attempting to require something prohibited by Doe, supra,
because of what we understand to be the legislative
intent, and in light of the indication in the title of
the bill that it regulates "late abortion", we must
therefore advise you that this provision requiring that
certain information be contained in the medical record of
a patient having an abortion is applicable only to those
abortions performed after the twentieth week of
pregnancy.
Subsection (b) also causes us some concern. That
section creates a presumption, albeit easily rebuttable,
that a woman who has decided to have an abortion and the
father of an aborted fetus are not willing to accept the
parental rights and responsibilities for a fetus born
alive. The bill initially provides that a fetus born
alive as a result of an abortion shall be treated as a
"dependent or neglected child". Subsection (b) goes on
to provide as follows:
"The child shall become an abandoned ward of
the State, the same as if the child had been so
adjudicated in a court of law, and the parents shall
have no parental rights or obligations, unless one
or both of the parents of the child agrees within 30
days of the birth to accept the parental rights and
responsibilities for the child."
Before turning to the constitutional problem which
we perceive in the application of this provision to
various circumstances, we should note that it raises
certain interpretive and practical questions. The
initial provision that a fetus born alive as a result of
an abortion is to be treated as a dependent or neglected
child appears to be operative at the moment of birth, but
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