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36 93
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MARVIN MANDEL, Governor
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absence of a precise statutory definition of what
constitutes an abortion. While the abandoned child
provisions of House Bill 1065 reflect a view that many or
most decisions to have an abortion are based upon the
view of the parent or parents that they do not want the
child, that is certainly not always the case. Many
operations or procedures which all would agree constitute
an abortion are undertaken because of a desire to protect
or safeguard the health and well-being of the aether and
not to prevent the birth of the child. It may well be
that operations will be performed which would not be
called abortions by everyone familiar with the term and
which a particular attending physician may not consider
to constitute an abortion but which are later determined
by a court to fall within the term, thus triggering the
abandoned child provisions of the bill. The existing
Maryland statutes, as well as many statutes of other
states including some which have been before the Supreme
Court, do not provide a precise and clear—cut definition
of the term. Sections 138 and 139 of Article 43 simply
refer to the "termination of human pregnancy" while
Section 137(a) refers to the "termination of a human
pregnancy otherwise than by birth". Literal application
of the Section 137(a) definition to the abandoned child
provision of House Bill 1065 arguably makes no sense
since the latter only becomes operative if the fetus is
born alive. While the absence of a precise statutory
definition of the term "abortion" has not been fatal to
any statutes heretofore considered by the Supreme Court,
and while the meaning of the term may be sufficiently
well established in the medical profession so as to
resolve any possible ambiguities of constitutional
dimension, we believe that you should be aware of the
absence of a specific statutory definition in your
consideration of House Bill 1065.
Neither the Supreme Court nor, to our knowledge, any
other court has considered a statute presenting the
precise issues raised by subsection (b) of this bill. In
considering the facial constitutionality of the
rebuttable presumption created by the bill, we assume
that the State has a legitimate interest in creating this
presumption and that the method chosen by the bill to
deal with the situation is reasonable and necessary to
protect the health and well-being of the fetus and of
society. While we cannot be certain of all of the
interests which the General Assembly perceived as being
furthered by the bill, it does appear that the bill is
prompted by a desire to resolve as promptly as possible
the status of a child who one might expect is not wanted
by his or her parents so as to minimize the presence of
lingering questions as to the responsibility for making
decisions relative to the welfare of the child, and in
particular any necessary medical decisions in connection
with the care and treatment of the child. Insofar as
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