Did Maryland's 1990 budget bill restrict Medicaid abortion funding differently than the state's own abortion statute did?

Plain-English summary

The Speaker of the Maryland House of Delegates asked the Attorney General, in early 1990, how a Medicaid budget bill restriction on funding abortions would interact with a separate, then-dormant Maryland abortion statute, HG §20-208, if the U.S. Supreme Court were to overrule Roe v. Wade in one of two cases pending before it that term. He also asked what would happen if the Court upheld the laws at issue in those cases without overruling Roe, and whether a future budget bill could restrict all abortions, not just Medicaid-funded ones, by conditioning funding on a facility's receipt of any State money or its being regulated "in some manner" by the State.

The opinion concluded that if Roe were overruled, HG §20-208's substantive restrictions would govern the legality of all abortions, including Medicaid-funded ones, and would in some respects be more permissive than the Medicaid budget language (for example, on funding abortions resulting from incest that did not also involve rape) and in other respects more restrictive (for example, on funding abortions justified by risk to a woman's future mental health alone). Where the two sets of rules diverged, the opinion worked through each clause of the budget restriction against its statutory counterpart to determine which would remain operative. On the second question, the opinion explained that it could not predict how the Court might uphold restrictions without overruling Roe, so it could not forecast the effect on Maryland law in that scenario. On the third question, the opinion concluded that using budget language to regulate abortions performed outside the Medicaid Program, whether by tying restrictions to a facility's receipt of any state funds or to the fact that a facility was regulated by the state in some way, would exceed a budget bill's constitutional role and amount to impermissible "legislating in the budget."

Currency note

This opinion was issued in 1990 and addressed hypothetical questions about what would happen to Maryland law if the U.S. Supreme Court overruled Roe v. Wade in two cases then pending before it, Ohio v. Akron Center for Reproductive Health and Hodgson v. Minnesota. The opinion's own editor's note, attached when Maryland later published the volume, records that neither of those two 1990 decisions overruled Roe v. Wade and that the Maryland abortion statute discussed throughout this opinion was itself repealed the following year by Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991. Since then, the U.S. Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), returning abortion regulation to the states under a different constitutional framework than the one this opinion analyzed. This page is presented strictly as a historical record of how one Maryland budget-versus-statute question was analyzed in 1990, under statutes that no longer exist and case law that has since been overruled. It describes what the opinion concluded at the time; it is not a statement of current Maryland or federal law, and none of its legal analysis should be relied on today. Verify current Maryland and federal abortion law directly before drawing any conclusions about present-day funding or legal restrictions.

Background and statutory framework

Maryland's Medicaid appropriation had included limits on abortion funding since Chapter 44 of the Laws of Maryland 1978, most recently restated in Chapter 14 of the Laws of Maryland 1989 and mirrored in COMAR regulations governing the Medicaid program's administration. Separately, HG §20-208 set out substantive statutory conditions under which an abortion could lawfully be performed at all, including a 26-week gestational cutoff, but the opinion noted that this statute was "currently unenforceable" as written and had been analyzed in a prior opinion, 74 Opinions of the Attorney General 19 (1989), as capable of taking effect again only if Roe v. Wade were overruled. The opinion compared the budget restriction's and the statute's treatment of pregnancies resulting from rape or incest, fetal abnormality, physical and mental health risks, and gestational stage, finding that some differences in wording could be harmonized as expressing the same underlying medical-judgment standard, citing Lane v. State Farm Mutual Auto. Ins. Co. for the meaning of "reasonable degree of medical certainty," while other differences reflected genuine substantive conflicts that would need to be resolved clause by clause if the statute became enforceable again.

On the budget-bill authority question, the opinion applied the constitutional "legislating in the budget" doctrine, under which Article III, §52(6) of the Maryland Constitution lets the General Assembly reduce or condition appropriations but not use the budget bill to enact substantive legislation that would otherwise require presentment to the Governor under Article III, §30 and be subject to veto under Article II, §17. Citing Bayne v. Secretary of State for the requirement that any budget condition be "directly related to the expenditure of the sum appropriated" and not amount to general legislation, the opinion reasoned that a restriction tied only to a facility's receipt of some unrelated state funds, or to the fact that a health facility was regulated by the State in some manner (as nearly all are, under HG Title 19), would not be tied to the specific Medicaid appropriation at issue and would therefore exceed the budget bill's proper scope. The opinion also noted, citing Harris v. McRae and Maher v. Roe, that the State was never constitutionally required to fund all lawful abortions through Medicaid in the first place, and cited Planned Parenthood v. State of Arizona for the proposition that broader appropriations riders restricting abortions outside the funding context they attach to have been held unconstitutional elsewhere.

Citations and references

Statutes:

• Chapter 44, Laws of Maryland 1978 at 760, the original Medicaid abortion-funding budget restriction
• Chapter 14, Laws of Maryland 1989 at 1388-89, the then-current version of the Medicaid abortion-funding budget restriction discussed in this opinion
• COMAR 10.09.02.04G, a Medicaid regulation mirroring the budget bill's abortion-funding restrictions
• COMAR 10.09.06.04A(5), a Medicaid regulation mirroring the budget bill's abortion-funding restrictions
• COMAR 10.09.06.04G(2), a Medicaid regulation mirroring the budget bill's abortion-funding restrictions
• HG §20-208(a), the then-dormant statutory conditions for a lawful abortion during the first 26 weeks of gestation
• HG §20-208(a)(1) through (4), the four specific statutory conditions analyzed against their budget-bill counterparts
• HG §20-208(b)(1), prohibiting abortions after 26 weeks of gestation absent a threat to the woman's life or fetal death
• HG §20-208(b)(2), requiring hospital abortion review authority approval
• Article III, §52(6) of the Maryland Constitution, authorizing the General Assembly to strike or reduce budget items and attach related conditions
• Article III, §30 of the Constitution, the presentment requirement for legislation the opinion contrasted with the budget process
• Article II, §17, the Governor's veto power the opinion contrasted with the non-vetoable budget bill
• HG Title 19, Subtitles 3 and 3A, cited as the general framework under which nearly every health facility is regulated by the State in some manner
• Chapter 1 (Senate Bill 162) of the Laws of Maryland 1991, the editor's-note-referenced later repeal of the statutory restrictions discussed in this opinion

Cases:

• Roe v. Wade, the U.S. Supreme Court decision whose potential reversal was the hypothetical premise of this entire opinion (later overruled by Dobbs v. Jackson Women's Health Organization in 2022, well after this opinion issued)
• Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989), U.S. Supreme Court decision the opinion described as signaling some justices' willingness to revisit Roe
• Maher v. Roe, 432 U.S. 464 (1977), U.S. Supreme Court decision holding the Constitution does not require state Medicaid programs to fund non-medically-necessary abortions
• Bayne v. Secretary of State, 283 Md. 560, 574, 392 A.2d 560 (1978), Maryland Court of Appeals decision setting the standard for permissible budget-bill conditions and the prohibition on "legislating in the budget"
• Harris v. McRae, 448 U.S. 297, 325 (1980), U.S. Supreme Court decision holding a state need not fund every lawful abortion
• Lane v. State Farm Mutual Auto. Ins. Co., 308 N.W.2d 503, 512 (Neb. 1981), Nebraska Supreme Court decision on the meaning of a "reasonable degree of medical certainty"
• Planned Parenthood v. State of Arizona, 789 F.2d 1348 (9th Cir.), Ninth Circuit decision holding an appropriations rider unconstitutional
• Babbitt v. Planned Parenthood, 479 U.S. 925 (1986), U.S. Supreme Court summary affirmance of Planned Parenthood v. State of Arizona
• Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990), U.S. Supreme Court decision (noted by editor's note not to have overruled Roe v. Wade)
• Hodgson v. Minnesota, 497 U.S. 417 (1990), U.S. Supreme Court decision (noted by editor's note not to have overruled Roe v. Wade)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 3-13 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ABORTIONS

Budgetary Administration — "Legislating in the Budget" —
Relationship Between Statutory Restrictions on
Abortion and Budgetary Limitation on Medicaid
Funding of Abortions

January 23, 1990

The Honorable R. Clayton Mitchell, Jr.
Speaker, Maryland House of Delegates

 You have requested our opinion on three questions regarding the

inclusion of restrictions on abortion in the annual budget bill. Your
questions are prompted by the possibility that the Supreme Court might
overrule Roe v. Wade in deciding two abortion cases now before the
Court, Ohio v. Akron Center for Reproductive Health, No. 88-805, and
Hodgson v. Minnesota, Nos. 88-1125 and 88-1309. The Court's
decision last term in Webster v. Reproductive Health Services, 109 S.
Ct. 3040 (1989), is regarded by many as signaling a willingness on the
part of at least four members of the Court to overrule Roe.
Specifically, you ask:

 1. If the Supreme Court overrules Roe, with the result that

existing statutory restrictions on abortions are again effective, would
budgetary restrictions on funding abortions through the Maryland
Medical Assistance Program ("Medicaid") like those in the current
budget bill conflict with the statutory restrictions? If so, which
provisions would prevail?

2. If the Court upholds the restrictions at issue in the cases

before it but does not overrule Roe, what is the answer to the first
question?

  3. In either instance, could budget language regulate all abortions,

for example, by regulating the circumstances under which abortions
may be performed in clinics or hospitals that receive any State funds
or that are regulated in some manner by the State?

 For the reasons given below, we conclude as follows:

 1. If Roe v. Wade were overruled, the statutory provisions would

determine the legality of all abortions, including those funded through
the Medicaid Program. In a few respects, the current budget bill
language authorizes Medicaid reimbursement for abortions that would
be prohibited by statute; those budget bill provisions would no longer
be effective. Conversely, in a few other respects the budget bill is
more restrictive than the statute, and the more restrictive provisions
would remain effective for abortions funded through the Medicaid
Program.

  2. Because we cannot predict what principles the Supreme Court

might adopt to determine the constitutionality of abortion restrictions
if it does not overrule Roe v. Wade, we cannot predict what effect its
decisions might have in that situation.

 3. An attempt to regulate all abortions through budget conditions

related to the Medicaid Program would violate the constitutional
prohibition against legislating in the budget.

                               I

        Budgetary and Statutory Restrictions on Abortions

A. Budgetary Restrictions

 Since 1978, the annual appropriation for the Medicaid Program has

included provisions limiting the circumstances under which Medicaid
funds may be used to pay for abortions. See Chapter 44, Laws of
Maryland 1978 at 760 (budget item 32.01.05.03).1

 The current budget language prohibits Medicaid reimbursement for

the cost of an abortion except in the following cases:

      [W]here continuation of the pregnancy is likely to
      result in the death of the woman; or where the
      woman is a victim of rape, sexual offense, or incest
      which has been reported to a law enforcement
      agency or a public health or social agency; or where
      it can be ascertained by the physician with a
      reasonable degree of medical certainty that the fetus
      is affected by genetic defect or serious deformity or
      abnormality; or where it can be ascertained by the
      physician with a reasonable degree of medical
      certainty that termination of pregnancy is medically
      necessary because there is substantial risk that
      continuation of the pregnancy could have a serious
      and adverse effect on the woman's present or future
      physical health; or before an abortion can be
      performed on the grounds of mental health there
      must be certification in writing by the physician or
      surgeon that in his or her professional judgment
      there exists medical evidence that continuation of the
      pregnancy is creating a serious effect on the
      woman's present mental health and if carried to term
      there is a substantial risk of a serious or long lasting
      effect on the woman's future mental health.

Chapter 14, Laws of Maryland 1989 at 1388-89 (budget item
32.17.01.03).2 The same restrictions are embodied in the regulations
adopted by the Department of Health and Mental Hygiene ("DHMH")
to govern the administration of Medicaid. COMAR 10.09.02.04G,
10.09.06.04A(5), and 10.09.06.04G(2).

 These provisions do not purport to prohibit the performance of any

abortion; rather, they prohibit the use of Medicaid funds to pay for
abortions in cases other than those enumerated. Their limited scope is
consistent with the principle that budgetary provisions may not amount
to substantive legislation. The budget bill's "'function and effect is to
appropriate money, not to legislate generally.'" Bayne v. Secretary of
State, 283 Md. 560, 574, 392 A.2d 560 (1978) (quoting 37 Opinions
of the Attorney General 139, 141 (1952)).

B. Statutory Restrictions

  Section 20-208(a) of the Health-General Article ("HG" Article)

restricts the cases in which abortions may be performed. During the
first 26 weeks of gestation, that statute would authorize an abortion
only if it is performed in an accredited, licensed hospital and only if
one of the following conditions is met:

     (1) Continuation of the pregnancy is likely to result
         in the death of the mother;

     (2) There is a substantial risk that continuation of
         the pregnancy would gravely impair the physical
         or mental health of the mother;

     (3) There is substantial risk of the birth of the child
         with grave and permanent physical deformity or
         mental retardation;

     (4) The pregnancy resulted from a rape committed
         as a result of force or bodily harm or threat of
         force or bodily harm and the State's Attorney of
         Baltimore City or the county in which the rape
         occurred has informed the hospital abortion
         review authority in writing over his signature
         that there is probable cause to believe that the
         alleged rape did occur.

HG §20-208(a). After the first 26 weeks, an abortion would be
prohibited under HG §20-208(b)(1) unless the life of the woman were
threatened or the fetus were dead. In addition, HG §20-208(b)(2)
prohibits any abortion unless it has been authorized in writing by the
abortion review authority of the hospital where the abortion is to be
performed.

 HG §20-208 is currently unenforceable. However, in 74 Opinions

of the Attorney General 19 (1989) we concluded that, if Roe v. Wade
is overruled, Maryland's statutes restricting abortions could be applied
to all abortions performed after the date of the decision.

 In that event, the statutory restrictions would be fully applicable

to all abortions, whether funded through the Medicaid Program or not.
Thus, to the extent that the current budget bill language permits
reimbursement of the cost of abortions that would become illegal, those
provisions of the budget bill would be moot. To the extent that the
budget bill language prohibits reimbursement of the cost of abortions
that would still be legal, those provisions would remain effective.3

 Hence, we must consider in detail the two sets of provisions.

With the exception of the first condition, where continuation of the
pregnancy is likely to result in the woman's death, there are obvious
differences in the wording of the conditions. Some of these differences
can be harmonized. In other instances, those differences in language
reflect substantive differences. In Part II below, we analyze each
portion of the budget restriction together with its statutory counterpart.

                               II

                 Effect of Varying Provisions
                 If Roe v. Wade Is Overruled

A. Pregnancy Resulting From Rape or Other Sexual Offenses

 The budget language authorizes Medicaid reimbursement for an

abortion "where the woman is a victim of rape, sexual offense, or
incest which has been reported to a law enforcement agency or a public
health or social agency ...." The comparable statutory provision allows
an abortion only if the pregnancy resulted from a rape committed by
force or the threat of force and only if the local State's Attorney
provides written confirmation that the alleged rape in fact occurred.
HG §20-208(a)(4).

 These two provisions cannot be harmonized. The budget bill

permits Medicaid reimbursement for an abortion under some
circumstances in which HG §20-208(a)(4), if it were effective, would
prohibit the abortion, for example, when the pregnancy resulted from
an act of incest that was not also a rape.4 If Roe v. Wade were
overruled, the Medicaid Program could no longer fund these abortions.

B. Fetal Abnormality

 HG §20-208(a)(3) permits an abortion when "[t]here is substantial

risk of the birth of the child with grave and permanent physical
deformity or mental retardation ...." Medicaid reimbursement of the
cost of an abortion is authorized "where it can be ascertained by the
physician with a reasonable degree of medical certainty that the fetus
is affected by genetic defect or serious deformity or abnormality ...."

 One obvious difference between the two is that the budget bill

requires "a reasonable degree of medical certainty" about the existence
of the specified conditions; the statute does not contain this explicit
requirement. This difference may be more apparent than real,
however.

  A "reasonable degree of medical certainty" is in general a medical

judgment that the described condition most likely exists. See Lane v.
State Farm Mutual Auto. Ins. Co., 308 N.W.2d 503, 512 (Neb. 1981).
That is, the attending physician may not rely on generalized evidence,
for example, that children born to women in certain age groups are
statistically more likely to suffer from birth defects or mental
retardation, but must make a particularized assessment of the actual
situation of the individual woman.

 Although the statute does not contain similar wording, its

requirement of authorization by a hospital review authority, HG §20-
208(b)(2), might have been intended to achieve the same result. One
main function of review was to assure that the attending physicians had
properly related the patient's condition to the statutory criteria. Thus,
the requirement of a careful exercise of medical judgment on the basis
of objectively ascertainable medical evidence is at least implicit in HG
§20-208(a)(3).

 In any case, the statute is the less restrictive of the provisions, to

the extent of any practical difference. Hence, the budget bill provision
will remain effective if the statute is once again enforceable.

 One other difference in wording merits brief mention. The statute

permits an abortion only if the child would likely be born with "grave
and permanent physical deformity or mental retardation." If the budget
bill language, referring to "genetic defect or serious deformity or
abnormality ...," is intended to encompass cases beyond the statute (for
instance, genetic defects not associated with mental retardation), the
budget bill could no longer be given effect in that respect.

C. Health Effects

 HG §20-208(a)(2) would authorize an abortion when "[t]here is a

substantial risk that continuation of the pregnancy would gravely impair
the physical or mental health of the mother ...." The budget bill
authorizes Medicaid funding of an abortion when the attending
physician can ascertain with a reasonable degree of medical certainty
that there is substantial risk of "a serious and adverse effect on the
woman's present or future physical health ...." Medicaid funding is
also permitted when the physician certifies that, in the physician's
professional judgment, there is medical evidence "that continuation of
the pregnancy is creating a serious effect on the woman's present
mental health and if carried to term there is a substantial risk of a
serious or long lasting effect on the woman's future mental health ...."

 So far as effect on the woman's physical health is concerned, the

wording of the statutory and budgetary provisions varies little. As we
explain in Part IIB above, we think that the requirement of
individualized assessment based on objectively ascertainable medical
evidence embodied in the budget bill restriction's reference to "a
reasonable degree of medical certainty" is implicit in the statutory
restrictions. Hence, the minor variation in the wording of the
restrictions does not amount to any variation in substance.

 With respect to the pregnancy's effect on the woman's mental

health, the difference in the language of the two provisions is greater.
The budget bill's language explicitly requires both medical evidence of
a serious effect on the woman's present mental health and a substantial
risk of a serious or long-lasting effect on her future mental health. HG
§20-208(a) refers more generally to a substantial risk that continuation
of the pregnancy "would gravely impair" the woman's mental health.
Under some circumstances, presumably, continuation of a pregnancy
to full term would have so serious an effect on a woman's future
mental health as to "gravely impair" it, even though that degree of
harm had not yet manifested itself in her present mental health.

Under those circumstances, HG §20-208(a)(2) would permit an

abortion; the budgetary restriction would not. Because the budget bill
may be more restrictive than the statute in limiting the use of State
appropriations, the budgetary restriction could be given effect.5

D. Stage of Pregnancy

Neither the budget bill nor the regulations that govern the

administration of the Medicaid Program distinguish the cases in which
abortions may be funded on the basis of the stage of the pregnancy.
However, HG §20-208(b)(1) would prohibit any abortion after 26
weeks of gestation unless the woman's life is threatened or the fetus is
dead.

 The budget bill thus authorizes Medicaid payment for an abortion

after 26 weeks in some cases in which HG §20-208(b)(1) would
prohibit the abortion, for example, when the pregnancy seriously and
adversely affects the woman's health but is not actually life-threatening.
This authorization could not be given effect if Roe v. Wade were
overruled.

                               III

                Effect of Varying Provisions
              If Roe v. Wade Is Not Overruled

  You have also asked about the relation between the budgetary and

statutory provisions if the laws at issue in the cases now before the
Supreme Court were upheld without overruling Roe v. Wade. In 74
Opinions of the Attorney General 19 at 27-28, we explained that we
cannot predict the basis on which the Court might uphold those laws
if it does not overrule Roe. Consequently, we are unable to speculate
on the status of Maryland's laws in that event.

Likewise, we are unable to provide a precise answer to your

question. The most we can say is that any statutory abortion restriction
again effective as a result of the Court's actions would be applicable to
Medicaid-funded abortions.

                               IV

                 Imposition of Additional
            Abortion Restrictions in Budget Bill

 Article III, §52(6) of the Maryland Constitution authorizes the

General Assembly to "strike out or reduce items" in the budget for the
Executive Branch. That power includes the power to impose
limitations on the use of funds appropriated or on the use of a facility
for which the funds are appropriated.

 However, the General Assembly may not use the budget bill as a

vehicle for the enactment of substantive legislation that is otherwise
subject to the constitutional requirements for the enactment of
legislation. See Article III, §30 of the Constitution (presentment to the
Governor); Article II, §17 (veto power of the Governor). To be valid,
a condition or limitation on an appropriation must be "directly related
to the expenditure of the sum appropriated, [must] not, in essence,
amend either substantive legislation or administrative rules adopted
pursuant to legislative mandate, and [must be] effective only during the
fiscal year for which the appropriation is made." Bayne v. Secretary
of State, 283 Md. 560 at 574. A provision that oversteps these bounds
is an invalid attempt to "legislate in the budget" and is not legally
binding. 74 Opinions of the Attorney General 53, 55-56 (1989).

 You have identified two possible means by which the performance

of all abortions might be restricted by provisions of a future budget
bill: a limitation on the conditions under which abortions may be
performed in clinics or hospitals that receive State funds; or a
limitation on the conditions under which abortions may be performed
in clinics or hospitals that are regulated in some manner by the State.
In our view, either of these would be impermissible "legislating in the
budget."

 A limitation on the use of State funds in the performance of

abortions is certainly permissible. 63 Opinions of the Attorney General
60, 73-74 (1978). However, the limitation must be "directly related to
the expenditure of the sum appropriated." Bayne, 283 Md. at 574.
Here, the "sum appropriated" is for "provider reimbursements", that
is, payments to hospitals, physicians, and other health care providers
pursuant to contracts between the providers and DHMH. See generally
75 Opinions of the Attorney General 3 (1990); 62 Opinions of the
Attorney General 11 (1977). In our view, a budget bill provision
seeking to restrict not only Medicaid reimbursements but also the
availability of medical services wholly outside the Medicaid Program
would be insufficiently related to that item of appropriation.6

 The second kind of restriction about which you inquire, a

restriction on the performance of abortions in clinics or hospitals that
are regulated in some manner by the State, would be even more
clearly "legislating in the budget." That restriction would not be
related to the expenditure of any appropriation. Moreover, every
health facility is regulated "in some manner" by the State. See, e.g.,
HG Title 19, Subtitles 3 and 3A. The attempted imposition of general
abortion restrictions through budget language based on the fact of
regulation alone would thus constitute an attempt to establish general
policy through the budget bill.

 Because the budget bill is not subject to gubernatorial veto and its

function is solely to appropriate money, it may not be used to "legislate
generally." 37 Opinions of the Attorney General at 141 (1952).
Hence, we believe that budget bill language restricting the activities of
all clinics or hospitals regulated by the State would be impermissible
"legislating in the budget."

                               IV

                            Conclusion

 In summary, our opinion is as follows:

 1. If Roe v. Wade were overruled, the statutory provisions would

determine the legality of all abortions, including those funded through
the Medicaid Program. In a few respects, the current budget bill
language authorizes Medicaid reimbursement for abortions that would
be prohibited by statute; those budget bill provisions would no longer
be effective. Conversely, in a few other respects, the budget bill is
more restrictive than the statute, and the more restrictive provisions
would remain effective for abortions funded through the Medicaid
Program.

  2. Because we cannot predict what principles the Supreme Court

might adopt to determine the constitutionality of abortion restrictions
if it does not overrule Roe v. Wade, we cannot predict what effect its
decisions might have in that situation.

 3. An attempt to regulate all abortions through budget conditions

related to the Medicaid Program would violate the constitutional
prohibition against legislating in the budget.

                                       J. Joseph Curran, Jr.
                                       Attorney General

                                       C. J. Messerschmidt
                                       Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note:

 The two Supreme Court decisions referred to at the beginning of

this opinion, Ohio v. Akron Center for Reproductive Health, 497 U.S.
502 (1990), and Hodgson v. Minnesota, 497 U.S. 417 (1990), did not
overrule Roe v. Wade and had no effect on Maryland law.

The statutory restrictions on abortion discussed in this opinion

were repealed by Chapter 1 (Senate Bill 162) of the Laws of Maryland
1991.

1
In 1977, the Supreme Court for the first time held that the United States
Constitution does not require state medical assistance programs to pay for
abortions that are not medically necessary, even if those programs do pay all
medical expenses incident to pregnancy and childbirth. Maher v. Roe, 432
U.S. 464 (1977). In 62 Opinions of the Attorney General 11, 12 (1977),
Attorney General Burch concluded that the Maryland Constitution likewise
does not require Medicaid funding for nontherapeutic abortions.

2
The first restrictions on Medicaid funding for abortions limited
payments to cases in which continuation of the pregnancy was likely to cause
the woman's death or posed a risk of "a detrimental effect on the health of the
woman"; when there was "a risk of the birth of the child with permanent
physical deformity, genetic defect or mental retardation"; or when the
pregnancy resulted from rape, sexual offense, or incest reported to a law
enforcement agency or public or private health or social agency. Chapter 44,
Laws of Maryland 1978 at 760. As originally introduced, the restrictions
would have permitted Medicaid funding only when the woman's life would
be endangered, when the pregnancy resulted from rape or incest promptly
reported to a law enforcement agency, or when two physicians determined
that "severe and long lasting physical health damage to the mother would
result if the pregnancy were carried to term." Chapter 44, Laws of Maryland
1978 at 759-60.

3
The State is not required to use its funds to pay for all abortions that
may lawfully be performed. Harris v. McRae, 448 U.S. 297, 325 (1980).

4
In some cases, presumably, continuation of a pregnancy resulting from
incest "would gravely impair the ... mental health of the mother"; if so, HG
§20-208(a)(2) would permit the abortion. In other cases of pregnancy
resulting from incest, however, presumably this standard would not be met
and the abortion would be illegal.

5
The budget bill's requirement that the physician provide written
certification of his or her judgment would also be effective.

6
In light of this conclusion, we need not consider whether a restriction
of this kind would violate the federal constitution, assuming that Roe v. Wade
is not overruled. See Planned Parenthood v. State of Arizona, 789 F.2d 1348
(9th Cir.), aff'd mem. sub nom. Babbitt v. Planned Parenthood, 479 U.S. 925
(1986) (holding unconstitutional a comparable appropriations rider).