When the U.S. Supreme Court ruled in 1973 that women had a constitutional right to an abortion, Maine lawmakers were outraged.

The state then was so opposed that the Legislature voted overwhelmingly to send a joint resolution protesting the decision in Roe v. Wade to the U.S. Congress.

Twenty years later, public opinion had changed dramatically. Led by a Republican governor, the Legislature took the opposite position, voting to enact into state law a woman’s right to abortion. That law, supporters argued, would be needed if Roe v. Wade was ever overturned.

“We thought it was an important protection to have,” said U.S. Rep. Chellie Pingree, D-1st District, a first-term state senator at that time who voted in favor of the state law. “It was definitely a reaction to our fear of what the Supreme Court was going to look like.”

Today, Maine may be on the precipice of another historic abortion debate, with the Supreme Court poised to overturn its 1973 decision and allow states to ban abortion completely. A leaked draft opinion has sparked outrage among Democrats and supporters of abortion rights and at least one lawmaker is considering a long-shot proposal to enshrine the right to an abortion in the Maine Constitution so that a future Legislature could not simply take it away.

The 1993 law means Maine is one of the states where abortion would continue to be legal if the court rules as expected and ends the constitutional right to abortion.

It allows abortions before viability, which is defined as “the state of fetal development when the life of the fetus may be continued indefinitely outside the womb by natural or artificial life-supportive systems.” Viability generally occurs between 22 and 24 weeks. After viability, an abortion may be performed only when it is necessary to preserve the life or health of the mother.

But laws can be changed depending on who wins elections. And Maine has not always been supportive of abortion rights.

MAINE’S ANTI-ABORTION HISTORY

Abortion was explicitly outlawed in Maine by 1840, except when the mother’s life was in danger.

Administering an abortion by using a drug, medicine, other substance or instrument was punishable by up to five years in jail, or a maximum $1,000 fine – more than $30,000 in today’s dollars – and up to a year in jail.

Attempting to procure an abortion could be punished with up to a year in jail and a $1,000 fine. The same penalties would later also apply to anyone helping a woman procure an abortion.

Damaris Waits, right, holds a sign opposing abortion while standing near the entrance to the Planned Parenthood clinic in Portland where volunteer escorts Marian Starkey, next to Waits, and Joan Paul McDonald wait to assist people into the building on Friday. Gregory Rec/Staff Photographer

Anti-abortion laws expanded in 1907 when the Legislature outlawed the publication or sale of “any circular, pamphlet, or book containing receipts or prescriptions for the cure of chronic female complaints or private diseases, or receipts or prescriptions for drops, pills, tinctures, or other compounds designed to prevent conception, or tending to produce miscarriage or abortion.”

Those restrictions came after a series of high-profile murder convictions of mostly country doctors who had performed abortions that led to the death of their patients, said Mazie Hough, a retired University of Maine professor of history and women’s, gender and sexuality studies.

Before these trials, which were covered extensively by local newspapers, most rural Mainers considered early-term abortion as a part of rural life, said Hough. The rural community not only tolerated abortion but supported it, Hough said.

“You have to remember how small these rural Maine towns were,” Hough said. “Everyone knew each other. The country doctor treated multiple generations of a family, in their homes. They could see the family’s struggle, the poverty. They were often poor and struggling themselves.”

Anti-abortion laws were on the books but not enforced, Hough said. The trials, and resulting convictions, drove abortion underground in even the far-flung corners of Maine.

Maine’s anti-abortion policy was fully developed by 1964, with statutes that made all abortions, other than to save the life of the mother, a felony and any attempt to procure an abortion a misdemeanor.

The tide slowly began to turn in the 1960s, when the first early and albeit unsuccessful attempts to loosen abortion restrictions emerged.

A 1967 bill that would have permitted abortion in cases of rape or incest or when the pregnancy risked “serious permanent impairment” of the woman or “the birth of a child with grave and permanent mental or physical deformity” failed in the Republican-controlled Legislature.

Similar bills were defeated in 1969 and 1971, when the Legislature considered holding a statewide referendum to make abortion a medical decision; it opted not to move forward with the vote.

Two years later, the U.S. Supreme Court issued its ruling in Roe v. Wade, which legalized abortion throughout the country, including Maine.

And it was not a popular decision in the Maine Legislature.

RESISTANCE CONTINUES AFTER ROE

A month after the Supreme Court’s landmark decision, the Legislature passed a resolve by a 118-19 vote condemning the ruling and the loss of protections for unborn babies, calling for changes to the Fourth and Fourteenth amendments to the U.S. Constitution to consider a fetus a person at the moment of conception.

“The Maine Legislature has supported and shown concern for the life of the unborn child by rejecting all attempts to liberalize, modify or change the State’s abortion law,” the resolution stated. “The United States Supreme Court has withdrawn all legal protection from an entire class of human beings, namely, the unborn (and) … the Maine Legislature wishes to voice its disapproval of the United States Supreme Court’s decision.”

That same Legislature adopted laws to provide immunity to doctors and nurses who refused to provide abortion care. Future Legislatures adopted rules to increase reporting requirements for each abortion, require parental notification and consent for a minor to receive an abortion.

A law signed by Democratic Gov. Joseph Brennan in 1979 required doctors to inform women of the risks of and alternatives to abortion at least 48 hours prior to receiving an abortion. However, the 48-hour wait period was never enforced because it was deemed unconstitutional in light of Roe v. Wade.

It was Brennan’s successor, Republican Gov. John McKernan, who several years later would introduce the legislation that ultimately affirmed a woman’s right to an abortion.

POLITICAL TIDE  TURNS

McKernan, who was governor from 1987 to 1995, said in an interview with C-SPAN during the National Governors Association’s annual meeting in 1989 that he supported Roe v. Wade. He said he believed the government had no right to interfere with a woman’s right to end a pregnancy or carry it to term until there was a “protectable life,” meaning the fetus could survive outside the womb.

It was a controversial position for a Republican to take at the time, McKernan admitted, but he said “it’s one of those issues that I feel so strongly about that it’s just not a gray issue to me.” McKernan did not respond to requests for interviews for this story.

McKernan introduced his bill four years after those comments following the U.S. Supreme Court’s ruling in a Pennsylvania case, Casey v. Planned Parenthood. The opinion affirmed a woman’s constitutional right to an abortion but gave states more leeway to enact restrictions. That judicial leeway made many women nervous, Pingree recalled.

The country also was still reeling from the divisive 1991 confirmation hearings of Justice Clarence Thomas, who was accused of sexually harassing law professor Anita Hill and became a staunch anti-abortion addition to the court.

“It felt like women were under attack,” Pingree said. “It felt like we had do something.”

Proponents said the bill would guarantee a women’s right to abortion, regardless of whether a future Supreme Court were to reverse course. They also framed it as a way to limit government intrusion into private decisions.

“The women of my district and of your districts should not be in a position where they have to fear who is sitting on the U. S. Supreme Court,” said Sen. Gerald Conley Jr., D-Portland. “It ought not to be whatever somebody decides tomorrow from that particular body that controls what happens to women’s bodies. That is why it is important that we go proactive, that we take a stand here today, and that we pass this law which the governor has given to us for our consideration.”

But opponents cited a deep personal conviction against abortion and expressed concerns that the bill removed the 48-hour waiting period and the requirement that a parent provide consent before a minor could receive an abortion.

Senate President Dennis Dutremble, D-Biddeford, noted that the law could be easily changed by a future Legislature.

“You cannot bar any future Legislature from doing anything,” he said. “It can be on the books and it can be changed the very next day, the very next day.”

But for Senate Minority Leader Pamela Cahill, R-Harpswell, who sponsored the governor’s bill, the 1993 law was not a political issue.

“I’m sure we’ve all really searched our souls to find the answer on how we will vote on this issue,” Cahill said in a Senate floor speech. “One thing I think we can all agree on is it shouldn’t be a partisan issue, and it never has been and I hope it never will be.”

The bill passed with large vote margins after much debate, including a 10-hour public hearing that drew a crowd of about 1,000 people to the Augusta Civic Center and numerous floor debates in the House and Senate, which were both controlled by Democrats. The legislative record shows that abortion was not a partisan issue at the time, with lawmakers voting across party lines based on personal beliefs.

The vote was 97-44 in the House and 25-9 in the Senate.

ABORTION RIGHTS UPHELD

The law has remained essentially unchanged. Abortion opponents later made several unsuccessful attempts to enact waiting periods, limit state and federal funding to agencies that provide abortions, require parental consent for minors to receive abortions and add penalties for crimes against unborn children.

Four anti-abortion bills were proposed in 2011 and 2012, when Republican Gov. Paul LePage occupied the Blaine House and Republicans controlled the House and Senate. Those bills would have added a 24-hour wait on abortions to educate women about abortion risks, strengthened consent laws for minors and added crimes against unborn children. None passed.

In more recent years, Democratic Gov. Janet Mills has signed bills from the Democratic-controlled Legislature increasing access to abortion by allowing MaineCare – the state’s Medicaid program – to cover abortions and allowing licensed physician assistants and advanced practice registered nurses to perform abortions in addition to licensed allopathic or osteopathic physicians.

LOOKING AHEAD

The impending Supreme Court decision is now expected to trigger a new round of legislative battles, in Maine and across the country.

In Maine, the governor’s office and every seat in the House and Senate are up for election this fall. While Democrats and Mills have vowed to protect a women’s right to abortion, Republicans have been less clear about their plans.

LePage, who is seeking to unseat Mills, has spoken out against abortion in the past and expressed a willingness to add restrictions.

“As a child of a severely dysfunctional family, with domestic abuse that left me homeless, I know my mother faced difficult decisions and I am glad she chose life,” LePage said in a written statement last week. “Maine law already prohibits abortion after viability and our laws should keep pace with modern, medical technology.”

LePage refused to elaborate or grant interviews last week. The Maine Republican Party also would not discuss potential efforts to restrict abortion, although the platform that the party adopted last month is firmly against abortion.

In the most recent legislative session that began last year, Republicans sponsored six bills that would have restricted abortion access, but most of them failed largely along party lines because Democrats controlled the House, Senate and Blaine House. The bills range from requiring burial or cremation of fetal remains, changing informed consent and prohibiting MaineCare funding for abortions.

The conservative Christian Civic League sent a message to supporters last week saying the court’s impending decision is the beginning of the fight to outlaw abortion in Maine.

“Even if Roe is overturned, it only will only mean that states are allowed to protect the unborn,” the group said. “It will not actually stop abortion in Maine. Furthermore, we emphasized that the fight to save unborn children is something that only begins with the overturning of Roe. It doesn’t end.”

Democrats, meanwhile, have been energized by the news about the Supreme Court opinion.

Both Mills and the Maine Democratic Party have blitzed supporters with warnings that Republicans could restrict abortion rights if they win control of the State House and the court does in fact overturn Roe v. Wade.

“Paul LePage and his anti-abortion allies are celebrating the pending overturning of Roe v. Wade for one reason – they know it means they are closer to taking away Mainers’ abortion rights,” party chairman Drew Gattine said. “If LePage and the Maine GOP take over in Augusta next year, they would have essentially unlimited power to limit access to abortion in Maine, and they won’t be afraid to use it. We must re-elect Gov. Mills to protect the basic reproductive freedoms of all Mainers.”

Hough, the UMaine historian, worries about Maine returning to desperate times, with the pendulum swinging from one extreme to the other yet again.

“I’m old enough to have been around before Roe v. Wade and know people who had illegal abortions,” Hough said. “They describe in detail the loneliness, the isolation and the fear that all involved. It’s not that different than what I read in the old court transcripts from a hundred years ago.”

It was enough to lure Hough to a “Bans Off Our Bodies” rally in Bangor on Tuesday, the day after the draft Supreme Court ruling leaked. “As women, we’ve worked so hard to get control over our bodies, and now they want to take it all away from us,” Hough said. “We just can’t go back.”

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