The Law

You are not alone. Nearly one million abortions are performed each year in the United States, and many go unreported. The physical and mental consequences of an abortion can be devastating. Medical mistakes can happen during surgery, resulting in injuries such as a perforated uterus, a lacerated cervix, damage to the bowel or bladder, infertility, scarring, infection, chronic pain, pelvic inflammatory disease, incomplete abortion, complications from an ectopic pregnancy or Rh-negative blood type, cervical shock, sepsis (a life-threatening blood infection), pulmonary embolism or even death.

Not all abortions are surgical. Some abortions are “medical” and consist of taking the abortifacient RU-486, also known as “the abortion pill” (consisting of two pills called mifepristone and misoprostol), the drug MTX (consisting of methotrexate and misoprostol), or the “morning-after pill” (levonorgestrel). During a medical abortion, the gestational age of the fetus may not have been properly determined. Parts of the fetus or bone fragments may remain in the uterus leading to yet another abortion or even a hysterectomy, resulting in the inability to ever have children again. You may even remain pregnant following a medical or surgical abortion.

Mistakes can be made in administering anesthesia or dispensing medication. A proper medical history or exam may not have been conducted. The person administering the anesthesia may not have been properly trained or certified. The wrong medication or dosage may have been prescribed.

The abortion provider may not have properly communicated with you before the abortion. The abortion provider is required to obtain your “informed consent” prior to the abortion. This is a legal principle that describes the process of communication that should take place between you and the abortion provider to lead you to an informed decision as to whether or not to undergo the abortion. Sometimes the abortion provider fails to properly communicate with you or allow you to ask questions before the abortion. The abortion provider should not perform an abortion or prescribe drugs without first spending adequate time with you to explain the procedure, risks and consequences.

Sometimes a woman needs emergency medical treatment during an abortion, and an ambulance is not properly called. Sometimes a woman is hurried out of the facility without being properly discharged or evaluated. Other times, the woman finds herself needing emergency attention afterwards, and the abortion provider does not respond to calls for help, or delays in responding, resulting in further injury. Sometimes the surgical room or the medical equipment is not properly sterilized, leading to infection or transmission of communicable diseases. These are only some of the injuries a woman might suffer as a result of an abortion.

The following is meant to give you an understanding of the law in Maryland as it relates to abortion and your legal rights.

As of July 2022, Maryland law changed allowing non-physicians to perform abortions. Prior to July 2022, abortions could only be performed by a licensed Maryland physician. The law that governs in your case will depend on when you had the abortion.

The law now allows “qualified providers” to perform abortions, in addition to physicians. A qualified provider must be properly trained and licensed by the Coordinating Organization appointed by the State of Maryland. A qualified provider must be a health care professional who is certified or authorized by law to practice in the State of Maryland and “for whom the performance of an abortion is within the scope of the individual’s license or certification.”

An abortion may be performed at any point before the fetus is "viable," which means that stage when, in the best medical judgment of the abortion provider, based on the particular facts before the abortion provider, there is a reasonable likelihood the fetus can survive outside the mother’s womb. Most medical experts agree viability begins at 24 weeks after conception, but due to medical advances, a fetus can survive as early as 21 weeks.

An abortion may be performed at any time if: (1) it is necessary to protect the life or health of the woman, or (2) the fetus is affected by a genetic defect or serious deformity or abnormality. An abortion provider may be held liable for civil damages or criminal penalty for a decision to perform an abortion which is not made in good faith and in the abortion provider’s best medical judgment in accordance with accepted standards of clinical practice.

An abortion cannot be performed on a minor under the age of 18 who is not married, unless the abortion provider first gives notice to a parent or guardian. The abortion provider may perform the abortion without notice to a parent or guardian if: (1) the minor does not live with a parent or guardian, (2) a reasonable effort to give notice to a parent or guardian is unsuccessful, or if, in the professional judgment of the abortion provider: (i) notice to the parent or guardian may lead to physical or emotional abuse of the minor, (ii) the minor is mature and capable of giving informed consent to an abortion, or (iii) notification would not be in the best interest of the minor. The abortion provider may be held liable for civil damages or subject to a criminal penalty for violating these notice requirements.

The State of Maryland has imposed regulations on surgical abortion facilities. Under these regulations, all such facilities must be properly licensed and pass State inspections, have an Administrator and Medical Director, have doctors and health professionals that are properly licensed and/or certified, have properly trained staff, keep all patient information confidential, have a separate waiting room and separate recovery room, and have written policies and protocols in place for pre- and post-surgical procedures, anesthesia, discharge, emergency situations, informed consent, safety, infection control, maintenance and sanitation of equipment, as well as transfers to hospitals and other medical facilities.

A medical history and physical examination must be performed before the abortion and on the same day as the abortion. A pre-anesthesia evaluation must be conducted the same day and document the risks relayed to the patient before the procedure. Those administering anesthesia must be qualified and authorized by law. A complete evaluation must be conducted prior to releasing the patient. The patient’s informed consent must be in writing. Medications can only be prescribed by a physician.

A violation of any of the above laws or regulations may be used to prove negligence.

*DISCLAIMER: The foregoing is for general information purposes only, and no attorney-client relationship is formed. Every situation is unique, and laws vary from one jurisdiction to the next. If you have questions about your legal rights or the topics discussed above, you should immediately contact an attorney licensed to practice law in the State or jurisdiction where you reside or in the State or jurisdiction where your injury occurred.