By Joseph Edelen

DOVER— A proposal to enshrine abortion rights into the Delaware Constitution was passed by the Senate along party lines on Tuesday, sending the legislation to the House of Representatives for its next step in the legislative process.

The passage of Senate Substitution 1 for Senate Bill 5, which is sponsored by Senate Majority Leader Bryan Townsend, D-Newark, came after over an hour of debate, during which two Republican led amendments were defeated along party lines.

Following the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women's Health Organization which overturned Roe v. Wade, several states have made efforts to establish a constitutional right to abortion – seven of which did so during the 2024 general election via ballot initiatives, including Maryland.

“These are rights and these are protections, and (this is) fundamental dignity and autonomy for women all across our country that states of all political persuasions have decided in the previous few years – with no longer having long accepted federal protections – to step up and enshrine in their constitutions as a way to tell their citizens that these rights are fundamental,” Sen. Townsend said.

Under the legislation, individuals would have a constitutional right to make decisions about their own reproductive healthcare, including prenatal care, contraception, sterilization and abortion.

The constitutional amendment also allows the state to regulate abortion after fetal viability – which is disallowed under current statute – so long as the procedure is in the “good-faith medical judgement of a treating health care professional” and is “medical indicated” to protect the life, physical or mental health of the mother.

For Senate Republicans, the language of the bill was a point of contention, as Sen. Bryant Richardson, R-Seaford introduced his two amendments to the legislation that would ultimately fail along party lines.

The amendments required an abortion for mental health to be approved by the “good-faith judgement” of a healthcare professional and a Delaware-licensed mental health expert, and for physical health, the procedure would need the approval of a treating healthcare professional and another Delaware-licensed healthcare professional who agrees.

“The (treating attending health care professional), he's not a psychologist; he doesn't know how taking the life of a child that can survive outside the womb is going to affect the woman,” Sen. Richardson said.

“So why not take the extra precaution to have the mental condition of this woman evaluated before you're taking the life of a child that can survive outside the womb? I think this is reasonable.”

During debate on the amendments, both Sen. Richardson and Sen. Eric Buckson, R-Camden, vouched for the modifications as a way to strike balance in the case of an abortion after viability, with the Camden Republican emphasizing that the typical 24-week viability is a significant point in the timeline of a pregnancy.

Sen. Richardson argued that, by having such guardrails in place, the health care professionals can determine if a woman’s mental and physical health of the woman would be improved or worsened by going forward with an abortion.

But in response, Sen. Townsend noted the vast majority of abortions occur during the early weeks of pregnancy, and that the framing of later-term abortions his Republican colleagues made was inaccurate, as such procedures largely occur when there is medical doubt for a healthy pregnancy and baby, or a completion of term.

“You're talking about imposing additional healthcare requirements on someone who does not need it, apparently on the basis of a situation that does not exist with regard to medical practice, in terms of procedures being performed in that context he describes,” Sen. Townsend said.

“When this debate occurs, rarely is the reality of that situation acknowledged, and it's unfortunate, because these are heart wrenching moments for families and we are trying to put in place a series of laws that protect them appropriately in those moments, while striking the balance that society has come to accept on this issue.”

After both amendments failed via party-line vote, Republican senators continued to push back on the legislation.

Various members of the minority caucus argued that such a law should not be put in the Delaware Constitution; that abortion laws only consider the woman’s opinion and not the child or the father; and that the legislation contradicts the constitution’s preamble by prioritizing liberty over life.

“I can't be silent, because silence is means that you accept this, and I cannot accept this. I cannot accept the fact that we're going to allow the worst of the worst of the abortionists to practice in Delaware, and this is what this amendment will do,” Sen. Richardson said.

As Republican senators continued to push back on the bill, Sen. Townsend was asked where the line is to allow abortion after viability, to which he said, “That line is certainly not in this chamber.”

“The intent of this is certainly to make sure that, in those excruciatingly painful and saddening situations in which physical risk to the mother has not yet occurred but is going to occur, or late-stage complications might arise, that this provision is supportive of her in those moments in consultation with her doctor. That's what this is about,” Sen. Townsend said.

Following the debate, the substituted version of Senate Bill 5 was passed by a 15 to six party-line vote.

Since it is a constitutional amendment, the bill requires a two-third majority vote in both the Senate and the House this session. If it passes, a duplicate version of the legislation must also be passed by the next General Assembly after the 2026 general election.

As the bill heads to the House, Senate Bill 5 will need to pass committee before reaching the floor.

If it reaches the floor, the constitutional amendment will need backing from at least one Republican to receive two-thirds support if all 27 Democrats vote in favor of the bill.