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An obscure case may have enshrined abortion rights in the Maine Constitution

troy bennett abortion protest.PNG
Troy R. Bennett
/
BDN
Demonstrators protest outside the federal courthouse in Portland on Tuesday, May 3, 2022.

A little-known Maine court case could guarantee abortion rights here even if permissive state laws on the subject were rolled back.

The June decision by the U.S. Supreme Court to end federal abortion rights had no immediate effect in Maine, where Gov. Janet Mills and a Legislature led by her fellow Democrats have expanded abortion access in recent years. Mills is still making contingency plans while facing a tough 2022 challenge from Gov. Paul LePage, an anti-abortion Republican.

After Mills spoke at a Wednesday abortion-rights rally in Portland, her office said it was working with Attorney General Aaron Frey to determine whether the Maine Constitution shields abortion rights. If they find it does not, Mills would offer an amendment if she is reelected in November.

The idea may be mostly academic for now. No major Maine court cases are pending on abortion rights. Still, any finding that abortion is protected further could take on increased importance or controversy down the road if Republicans control Augusta and advance abortion restrictions.

Maine is among the vast majority of states that have no explicit constitutional protections for abortion. But in a 2013 case on the constitutionality of a sex offender law, the Maine Supreme Judicial Court noted that the 14th Amendment to the U.S. Constitution then protected the right to abortion. It made that equivalent with a mirroring portion of the Maine Constitution.

That decision, along with others in states that recognize abortion rights, make up to a strong case that constitutional protections are already in effect, said Marshall Tinkle, a Portland-based lawyer who wrote an often-cited book on the Maine Constitution and has worked on cases with abortion-rights groups that have wanted to test the theory.

“It would have been nicer if the Law Court had specifically said, ‘Yeah, under the state constitution, there is a right to abortion,’” he said. “They haven’t quite said that, but it can be inferred from the [2013] decision and from similar state decisions.”

Only nine states have abortion codified in their constitutions, NARAL Pro-Choice America said in 2021. That number looks likely to increase in the aftermath of the Dobbs ruling, with Vermont and New York advancing constitutional amendments to enshrine abortion rights.

While Mills could advance one in Maine, two-thirds of lawmakers in both chambers must sign off on a constitutional amendment before it goes to voters. In the current Legislature, Republicans would have the votes to block one. They did so with an equal-rights amendment early this year, citing the possibility that judges could use it to enshrine abortion rights.

NARAL has put Maine on a list of states that does not provide firm constitutional rights to abortion, although Nicole Clegg, the spokesperson for Planned Parenthood of Northern New England, said her group considers the matter unresolved.

It has pushed cases on this issue in the past, including in a 2015 lawsuit in which abortion providers sued the state to overturn a decades-old prohibition on public funding for most abortions. The state’s high court never issued a decision since Mills and Democrats changed the law in 2019 to allow coverage under MaineCare, the state’s version of Medicaid.

“We felt there was enough there in the Constitution to support those rights,” Clegg said.

The idea faces resistance. The Maine Constitution does not provide a right to abortion “and any attempt to create a so-called right to abortion out of thin air should be rejected,” said Denise Burke, senior counsel for the Alliance Defending Freedom, a legal group aligned with evangelicals.

“Government officials should be doing everything they can to protect our most vulnerable Americans and ensure that families have the resources they need and deserve,” she said.

This story appears through a partnership with the Bangor Daily News.