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3900
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VETOES
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resources of a licensed hospital, rather than those of
some other appropriately licensed facility, were
necessary to meet the legitimate health interests of the
State. Relying on Roe, the Court held that "the hospital
requirement of the Georgia law, because it fails to
exclude the first trimester of pregnancy...is also
invalid". Doe v. Bolton, 410 U.S. at 195. We,
therefore, advise that that portion of Article 43,
Section 137 that requires hospitalization for abortion
has been found unconstitutional.
Article 43, Section 137(b) places further
limitations on termination of pregnancy in the State of
Maryland. The conditions are set out in subsections (1)
it must be less than twenty-six weeks of gestation,
unless continuation of the pregnancy will likely result
in the death of the mother or the fetus is dead, and (2)
there must be authorization by a hospital abortion review
authority. The Supreme Court in Roe, supra., determined
that the State's important and legitimate interest in
potential life is at the compelling point of viability,
when the fetus presumably has the capability of
meaningful life outside the mother's womb.
"State regulation protective of fetal life
after viability thus has both logical and
biological justifications. If the State is
interested in protecting fetal life after
viability, it may go so far as to proscribe
abortion during that period, except when it
is necessary to preserve the life or health
of the mother." Roe v. Wade, 410 U.S., at
163, 164 (emphasis supplied)
Roe, supra., stands for the proposition that there
may be an important and legitimate State interest in
protecting the life of the fetes when the fetus has
become viable, capable of living outside the mother's
womb. This interest is such that the State may proscribe
abortions during the third trimester except where it is
necessary, in appropriate medical judgment, to protect
the life or health of the mother.
The prohibition, and the exceptions applicable only
when the fetus is dead or continuation of the pregnancy
is likely to result in the mother's death, against
termination of pregnancy after the twenty-sixth week of
gestation in Article 43, Section 137(b) does not allow an
exception in situations where continuation of the
pregnancy would endanger the health of the mother. We
therefore advise that Article 43, Section 137(b) has for
all intents and purposes been found to be
unconstitutional to the extent that it prohibits
abortions after twenty-six weeks gestation, except where
the life of the mother is endangered or the fetus is
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