The new bill adds legal protections for Massachusetts health care providers giving care to people traveling to Massachusetts. These protections, as well as several expansions of access to reproductive health care, had taken shape in May.
But the new bill does more: It includes an important clarification of the circumstances in which abortions later in pregnancy may be permitted. The clarification is intended to respond to the recent case where a woman carrying a tragically damaged fetus was forced to travel out of Massachusetts for an abortion.
Current law states:
Section 12N. If a pregnancy has existed for 24 weeks or more, no abortion may be performed except by a physician and only if it is necessary, in the best medical judgment of the physician, to preserve the life of the patient, if it is necessary, in the best medical judgment of the physician, to preserve the patient’s physical or mental health or, in the best medical judgment of the physician, an abortion is warranted because of a lethal fetal anomaly or the fetus is incompatible with sustained life outside the uterus.Mass. General Laws Ch.112, S.12N
The revision that now sits on the Governor’s desk states:
Section 12N. If a pregnancy has existed for 24 weeks or more, no abortion may beHouse Bill 5090 as enacted by both branches on July 26, 2022 Section 12 (underline added)
performed except by a physician, and only if in the best medical judgement of the physician it is: (i) necessary to preserve the life of the patient; (ii) necessary to preserve the patient’s physical or mental health; (iii) warranted because of a lethal fetal anomaly or diagnosis; or (iv) warranted because of a grave fetal diagnosis that indicates that the fetus is incompatible with sustained life outside of the uterus without extraordinary medical interventions.
This revision does two things. First, it makes clear that the four possible grounds for an abortion later in pregnancy are independent of each other — any one alone suffices. Additionally, it adds the words “without extraordinary medical interventions” — a phrase which we understand to be clear to treating physicians. A woman should not have to carry to term a child condemned to vegetative life on a respirator.
Additionally, the pending revision adds a section to make sure that the previous paragraph is properly applied.
Section 12N½. (a) Each circumstance permitting an abortion for a pregnancy that has existed for 24 weeks or more under section 12N shall be considered independently by a treating physician and a patient or the patient’s health care proxy. No medical review process shall override a determination by a treating physician and a patient or the patient’s health care proxy to provide an abortion consistent with said section 12N.House Bill 5090 as enacted by both branches on July 26, 2022 Section 13 (underline added)
(b) Annually, not later than September 1, every facility authorized to perform health care services under section 12N shall submit to the department of public health a written report that includes the facility’s procedures and processes for providing services consistent with said section 12N and this section.
The underlined prohibition on second-guessing of physicians responds to a perception that hospital lawyers are often over-cautious.