The Reversal of Roe

View recording of zoom call discussing the decision here.

The Decision

In my America and in my reading of our constitution, government may not intrude into our most personal decisions.

Our founding documents enshrine high ideals, ideals which soar beyond the sordid specifics of the still dark age in which they were written. Our history has been a labored climb towards the bright light of those ideals.

I reject the originalist reasoning of that the new majority of the supreme court used in reversing Roe v. Wade: It is absurd to suggest that since abortion was prohibited in 1791 or 1868 the constitution condones that prohibition.

Our Declaration of Independence declares:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

With these words, the founders meant to reject the claimed divinity of European nobility. But their words swept much further. With their words, the founders also indicted themselves for enslaving African Americans, exterminating Native Americans, narrowly circumscribing the lives of women, and prosecuting people for their sexual preferences. The errors and sins of the founders in no way diminish the power of their ideals.

Our Bill of Rights prohibits a number of specific intrusions by government into human personal space and, in the 9th amendment, makes absolutely clear that the list of prohibitions is not a complete list:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment IX of the Bill of Rights

To limit the rights “retained by the people” by surveying the horrors of 18th and 19th century governmental intrusions into human space is to denigrate the ideals embraced in the constitution. Our Bill of Rights broadly embraces human dignity. Many laws in place in the early days were inconsistent with it.

It took a bloody civil war for us to extend the privileges of citizenship to African Americans and to make clear that the Bill of Rights also applied to state governments:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

14th Amendment to the Constitution

The sacred duty of the courts is to uphold all of these words in their fullest meaning. Liberty has risen and fallen through the ages. Martin Luther King spoke an American truth when he said that “the arc of the moral universe is long but it bends toward justice” — our founding ideals steer us towards justice.

While the five most conservative justices who voted to overturn Roe each have subtly different views, some of which were expressed in concurring opinions, as a group they have chosen to overturn a precedent that honors personal reproductive rights, so casting doubt on the long line of Supreme Court decisions that protect personal human dignity. It remains to be seen how much further this court will go to undermine human dignity.

The Response

We have work to do. I hope and believe that Republicans in Congress will never succeed in efforts to impose any national statutory ban on abortion. I also hope and believe that even in most red states at least some reproductive rights will eventually be rescued through politics — most Americans have nuanced views about abortion.

In our own state, we have already anticipated the possibility of the court’s decision and we have firmly secured in statute the right to choose.

Over the next few weeks, the legislature will strengthen access to reproductive health generally and will respond to efforts by other states to create liability for health care professionals who provide reproductive health to people who travel here.

Measures that already appear in the budget document that the senate approved and/or in similar legislation that the House has proposed include:

  • Measures protecting health care providers from litigation filed in other states
    • Creating a new right of action against people who bring abusive litigation in other states suing people for lawful reproductive health care in Massachusetts. If a plaintiff in another state obtains a judgment against a Massachusetts reproductive health care provider, the health care provider will be able to turn around and secure a judgment against that plaintiff, including costs of litigation. The same mechanism would apply to protect gender-affirming care.
    • Protecting the Massachusetts licenses of health care professionals who provide reproductive health care services that would be lawful in Massachusetts from the stain of civil or criminal charges brought in other states. Again, the same mechanism would apply to protect gender-affirming care.
    • Prohibiting Massachusetts law enforcement agencies from providing information or assistance to federal or other-state law enforcement agencies seeking to prosecute lawful health care activity in Massachusetts.
    • Prohibiting insurers from raising rates on health care providers based on their exposure to actions in other states for lawful Massachusetts activities.
    • To the extent allowed by federal law that requires states to respect each other’s judgments, attempting to prohibit the enforcement of discovery orders, summonses, or filing or collection of judgments obtained in abusive litigation in another state.
    • Prohibiting extradition for criminal charges from other states where the conduct would be lawful in Massachusetts and the conduct did not occur in the prosecuting state.
    • Allowing health care providers to make their home address private.
  • More general measures to improve access to abortion
    • Creation of a statewide standing order allowing pharmacists to dispense emergency contraception (“Plan B”).
    • Making insurance coverage for abortion free from deductibles, copays, co-insurance, or unreasonable restrictions or delays.
    • Providing funds for infrastucture and security for reproductive health care services.

Related Issue — Archaic Laws

As noted above, the Supreme Court’s newly-originalist approach raises questions about how the court will handle other cases that protect personal human dignity, including cases that protect private consensual sexual activity. For many years, legislators have been trying to repeal archaic Massachusetts laws that prohibit all sex other than heterosexual coitus. Existing court precedents have made some of these laws unenforceable, but since those precedents are threatened, it is timely to repeal these laws.

The senate will soon consider legislation (developed by me and a group of other legislators) which will repeal:

  • Language prohibiting “the abominable act”
  • Language prohibiting “unnatural and lascivious acts”
  • Language prohibiting being a “common night walker,” which has been disproportionately used to target transwomen.

Prostitution, child abuse, rape, and sex with animals will all remain criminal under modern statutes.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

Join the Conversation

47 Comments

  1. Thank you for your support and continued work in securing and keeping this right for our State!

  2. Will,
    This makes me proud to live in MA. Thank you thank you thank you for this proactive legislation, and all the work ths came before it too.

  3. I’m very pleased with the recent Supreme Court ruling standing up for the rights of the unborn. I feel the tide is turning and we are evolving out of a barbaric practice of killing our own offspring. I do not think it’s a human right to kill another human, no matter how small or dependent it is. This is a separate human with distinct DNA separate from the mother, it’s own heartbeat and brain activity, etc. To treat it as an unwanted parasite is wrong.
    I should also point out the hypocrisy of the my body my choice crowd….where were you when people were being coerced into taking experimental drugs under threat of losing employment, not be able to go to restaurant, travel, get medical treatment (transplants). And don’t give me the argument that I can spread it. Everyone knows the shots do not prevent transmission or work for that matter. Plenty of people getting sick who have had their shots.

    1. Yes people will still get Covid but not with serious consequences. Learn your facts you can spread it to someone who could die from it and the only way to eradicate it is through vaccines have you refused other vaccines? What is the difference. A vaccine is always experimental in the beginning. Should the flu vaccine not have been created to wipe out influenza that killed millions.

      1. Sounds like something Lord Fauci would say, who by the way is sick with Covid after being quadrupled injected with this experimental shot.

    2. You had the right to make the choice not to get the shot, and no one was threatening you with state sponsored murder for not getting one. It’s a ludicrously disingenuous argument to make. At no point was your personal bodily autonomy threatened by a state or federal government, and at no point was the government forcing you to get one under penalty of law. Sorry they wouldn’t let you go to Applebees, Mark, but parroting ignorant right wing “gotcha” talking points doesn’t make for an intelligent argument.

      1. Taking away someone’s career is not a trifling thing. Nor is denying access to a hospital to visit a dying relative, nor is denying an organ transplant, nor is denying ability to travel on planes, etc. In addition, irresponsible politicians and the media have been drumming up hatred of people who do not go along with this groupthink. Very disturbing how easily controlled people really are. This is not a “right wing” thing. It’s a bodily autonomy thing. As long as your team is doing the oppressing you are fine. Very hypocritical.

    3. I have seen data that people are getting sick who are utd on vaccinations, but vaccinations have saved the lives of millions of people.

  4. So my current understanding, perhaps misinformed, is that if the daughter of a friend living in Texas needs an abortion, and she decides to come to Massachusetts for the procedure, and I offer to put her up in my home while she is here, that anybody and everybody in Texas can sue me. Right now. Is that the current state of the law? So the provision about “creating a right of action against people who bring abusive litigation in other states suing people for lawful reproductive health care in Massachusetts” is of interest. Does the phase “lawful reproductive health care” cover the case I mentioned, giving the daughter room and board? I hope so.

    1. I think that you become a legal resident of MA the day you arrive (at least you can register to vote). Another State’s laws would have no power over you. I’m sure a sound method of quickly establishing residency could be developed and disseminated.

  5. Thanks again, Will, for representing the values that many, perhaps most, Massachusetts residents share. The Supreme Court, as it exists currently, has become a danger to the fundamental human values imbued in our founding documents as those documents have been modified in line with historical change. To return us to the 18th century is repugnant. Originalism as practiced by this cherrypicking court is a sham.

  6. As I said in the forum. Encourage our congressional delegation to set up a problem solvers group of Dems and Republicans who are willing to work on a compromise. That compromise in my opinion would include abortions for those due to rape and incest. Abortion if moms life in danger or non viable fetus. Finally negotiated abortions up to 20 weeks give or take. I believe they are enough moderates tgat this could possibly pass

  7. Thank you Senator Brownsberger for your work and dedication to protecting our constitutional rights, I am also proud to live in MA and to support you.

  8. It is so sad that Our country has taken a step back on individual freedom. It is sadder that conservative Christians think that they can tell others what to do. Jesus included everyone and said to love all and shine our light in the world. He also said only God has the right to judge. The court doesn’t want abortion but it’s o.k. to have guns which kill. The Court has become too political which it was never meant to be but to be above politics

  9. Will, I am glad you remind us of the 9th Amendment introduced because some of the Founders were concerned that future interpreters of the Constitution would argue that only the rights it enumerated existed, and others did not. They presciently anticipated precisely what Judges such as Thomas and Alito have done and may expand on. As an immigrant from England it is also baffling to me why decisions reached in 17th century England by judges perceived even then to be unusually misogynist should be cited in favor of a US Supreme Court decision in 2022. It seems that the Independence we will shortly celebrate has not gone far enough in some aspects. I am also concerned about the erosion of the separation of Church and State which this Supreme Court is attacking whenever it has the opportunity, favoring religious rights at the expense of other rights as if the former are meant to take precedence over the latter. This separation is a positive example of American exceptionalism. There are too many countries in which one religion in practice dominates society in ways that discriminate against and make make life difficult, and even dangerous, for its citizens who adhere to other faiths, or to none. I find it ironic that the Christians ignore Matthew 6:6, “But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your Father who sees in secret will reward you.” Hardly consistent with the outward public display of piety by the coach of its football team in the middle of a playing field in a PUBLIC high school funded by taxpayers.

    1. As a recent immigrant from England you have clearly failed to avail yourself of any resources available to you to understand other American constitution, or you would understand much more then you do. Your view is that judges should essentially be free to just make things up, which is dandy until they make up something you don’t like. At minimum you could try reading the opinion, which has nothing whatsoever to do with religion in any form.

  10. Thanks so much, Will, for the clear presentation and for all you are doing to help make Massachusetts a civilized and safe place to live. You do a wonderful job for us all.

  11. I think we need to wrestle much more directly with the possibility of a national ban. It is absolutely the plan and hoping it won’t happen is not enough. We can’t get too comfortable in our MA bubble.

  12. Roe v Wade always stood on shakey constitutional ground. States had 50+years to either fully codify or restrict abortion access within their state yet most failed to do so. Although I am pro-choice I do not support by “abortion on demand” and near full-term abortions for non-medical reasons. I am particularly repulsed by abortion as a birth control method. That said, could our legislature make a proactive (not knee jerk as usual) to provide each neighborhood in Boston and each town in the Commonwealth with low-cost birth control access and pre-natal care center for both woman and men? This could reduce unwanted pregnancy, STDs, and increase the vitality of both mother and child. Could trained professionals conduct reproductive outreach to high schools, colleges, community centers, etc.? How about a plan (or at least a preliminary conversation) which includes men who may want to keep the baby or who may not want to pay for a child that they will rarely see? When will they get a say?
    All medical procedures, even a filling at the Dentist, carry a risk so I find the risk argument moot. Same with the trauma argument–abortion can be traumatic as can pregnancy, birth, and parenthood.

    1. Your solution leaves no room for narcissistic, virtue-signaling screaming to reinforce people’s sense of superiority, so it’s unlikely to go anywhere.

      There is a lot of propaganda that Americans did not want Roe overturned, but if you look more closely it’s clear they do not approve of the maximalist claims of those who want to bring a Hoover into the birthing room either. Most of the Europeans and their wannabes have no idea the Roe regime was vastly more expansive than anything that prevails in Europe.

  13. Where on earth do you get the idea that it is good or moral or popular to allow minor children to have their breasts or penises cut off, or that Massachusetts taxpayers want their courts to participate in the sexual mutilation of children?

  14. One last word on common night walking. In my term at MCI-Framingham (MA State prison and Middlesex County House of Corrections for women) common day and common night walking convictions were for prostitutes working in areas where sex activity was degrading the quality of life of the neighborhood.
    I’ve continued my work out here where I have several women with common night walking charges–and are trans prostitutes. I don’t think excusing trans street prostitutes but not all street prostitutes from common night walking is “equal protection” under the law.

    1. If you’ve ever watched your neighborhood become a “stroll” you would not support the repeal of common day and common night walking.

      1. Then you better find a party that doesn’t view cities as opportunities to virtue signal at others’ expense.

  15. Thank you for your efforts on this issue. Please keep us informed on any efforts in response to the ruling on carrying guns in public.

  16. Thanks so much Will. Again I feel so lucky to have you as our senator.
    I still would love the answer to Fred in how protection against another state litigation for helping others get safe abortion.

  17. First Amendment: Choosing not to gestate is an exercise of symbolic speech.

    Fourth Amendment: seeking ultrasound and other womb-probative data ; forcing a pregnancy deprives an individual of the disposition of their tissue and is a seizure via cervix.

  18. To pray in public is an act of hypocrisy, for you must surely have no faith in god. Do not the writings compiled and edited into, “The New Testament,” define hypocrisy as such?

  19. As far as I am concerned, once the action of cells forms a fetus that will develop into a human being, that fetus IS a human being and abortion is tantamount to murder/homicide of a human being unless carrying the pregnancy to term has fatal consequences for the fetus or the mother. It is my understanding that if an individual kills a pregnant woman and the fetus is also killed, two charges of murder/homicide would be brought forth. Will, your depiction as archaic the language prohibiting abominable sex and unnatural and lascivious acts is curious; why are they “archaic”? You are opening the the door to Pandora’s box and I will not engage in open forum the specific details of sexual beastiallity. Mainline Protestant churches (if one can call them churches) are bending interpretations of biblical scriptures in order to accept/ignore deviant sexual practices of some of their congregants with apparent disregard of the impact on underage children within the congregation. Has anyone devoted any thoughts as to why there is physical pleasure in sexual intercourse? Societies crafted “archaic” guidelines to bring order out of chaos, and the lack of a moral compass by many individuals has devolved their societies into hedonistic seeking of gratification(s), to the extent of introducing children in grade schools to become aware of sexual deviants and their specific sex acts. Outrageous. That is child abuse. As to child abuse to be repealed, does that include sexual child abuse? If so, specifically, what kind of sexual child abuse; incest? rape? I would want you to clarify why you want to repeal child abuse. Lastly, each state’s legislatures are elected by that states eligible voters to represent them. If the individual states pass legislation to accept abortion, that is their right, and if the eligible voters disagree, then they certainly can replace those legislatures. And can anyone tell me why it is acceptable for duly elected representatives of the people to postulate that laws of the land do not have to be obeyed? And more pointedly, protesting in front of a judges home.

    1. As the post explains, “Prostitution, child abuse, rape, and sex with animals will all remain criminal under other statutes.” We have modern statutes that address all of those crimes.

      The archaic statutes sweep much more broadly, criminalizing essentially everything other than coitus. Oral sex is currently a five year felony in Massachusetts. Doesn’t that seem like something to fix?

  20. Will,
    Thank you for taking the time to explain the history of the Constitution. You bring hope with your clear and thoughtful writings in even the most trying times.

  21. Thank you Will for all that you do. I’m encouraged to hear what Massachusetts is doing to protect personal choices about their own bodies from state intrusion. The hypocrisy of those who almost in the same sentence talk about government over-reach yet are protecting that reach into a woman’s body is unbelievable. The same goes for the originalist arguments that so conveniently forget decisions that have happened since then that directly benefit them. It’s so clearly a strained argument to justify preconceived ideas and beliefs – that throw objectivity out of the window.

    Please let us know how we can help support these efforts. I don’t think anyone particularly wants or enjoys the thought of abortion, and I can understand the strong feelings about that. But it’s a matter of a very serious choice that only a woman can make for herself when faced with this situation.

  22. Dear Will,
    Thank you for your support on this. The people who are going to get hurt the most are poor people in the states that are repealing this. I am relieved to be living in a state with legislatures who support a woman’s right to choose. Thank you again.
    Best wishes,
    Sandra

  23. I make MB’s words mine: “Thanks again, Will, for representing the values that many, perhaps most, Massachusetts residents share.”

    Thank you, thank you, thank you!

  24. > Language prohibiting being a “common night walker,” which has been disproportionately used to target transwomen.

    Just a note that standard usage is “trans women”, where “trans” in an adjective that modifies the noun “woman”, rather than a compound word noun.

  25. Thank you for sharing this information about what the reversal of ROE means in Massachusetts, and for fighting for abortion access here.

    I’m glad to hear that the house passed a bill to protect abortion care and gender affirming care in Massachusetts! I’m not 100% clear on the language and implications, but from what I’ve read, this bill does not go as far as similar ones in Connecticut and DC. Specifically, I would encourage you to add language in the Senate version of the bill to state that MA will use NO resources to enforce out of state warrants and subpoenas for abortion seekers and trans people seeking care.

    I’m also glad to hear that you have developed legislation repealing several queerphobic archaic laws. I hope you will also support advocates in pushing for the decriminalization of sex work, including prostitution.

    Beyond the legislation already in the works, I would like to see some more proactive legislation to counter the misinformation and coercion from so-called Crisis Pregnancy Centers. There are more CPCs in Massachusetts than abortion clinics, meaning that it is very easy for people seeking abortion care (or even wanting to learn their options in a non-judgmental space) to end up in one of these Centers; particularly if they live closer to a CPC than a real clinic. Somerville City Council has banned these centers – the state should too.

    1. 21 Crisis Pregnancy Centers have been firebombed, windows smashed, burned since the overturning of Roe. There has been multiple riots and an attempted insurrection of the capital in Phoenix and several other cities. I would hope any legislation proposed would include language to stiffen the penalties for anyone who would do such a heinous act. Increasing funding for these Pregnancy Centers would be an excellent use of public funds. It would assist women who need assistance and do not want to terminate the baby.
      With the recent assassination attempt on Justice Kavanaugh we need to tamper down some of the radical violent language and actions of some on the Left.

  26. It’s a sad day when our elected officials justify the killing of innocents in the womb. May God have mercy on you and show you the error of your ways before it is too late.

  27. According to science life begins at conception. If you choose to ignore that, take into account when the nervous system is developed, and the fetus can feel pain. While performing an abortion the arms and legs are torn off and then the head is crushed, all parts are laid out in a try to make sure they have not left any pieces are left behind. Can you imagine the pain of having your limbs pulled off while you are still conscious? Maybe our legislature should witness an abortion and what the procedure actually is before deciding to support it. Funny but you can watch open heart surgery, or any other surgery on the internet, but you will not find a video showing the procedure for abortion. The Supreme Court was correct in overturning Roe because it is an issue that belongs to the states. This way it is your political career that is on the line in the next election. Even people who support abortion are against abortion up to the day of birth. If a child can exist and thrive outside the whom, it is murder to leave it to starve.

  28. The respective male and female gametes are, “potential life,” what’s next, forced marriage?

    Perhaps a nation-wide work stoppage through September 30 will show SCOTUS where the American people are on this issue.

    And, while we’re discussing a defiled Supreme Court and the panoply of degenerate political antics of our time, we should be discussing, whatever the outcome of the 1/6 hearings, what people who enter into treasonous conspiracy against the United States of America are right to fear. Never in her history has she been so attacked so, and now is the time to have ideal discussions of punishments that are historically suitable for the conspirators such that our credulous, malleable and directionless MAGA brethren who rally to the false fathers of fascist voices feel the impact and cry of The Constitution and country putting to right the improper actions against her.

  29. …directionless, but for the fraudulent banners waved before their eyes MAGA …

  30. The physiological aspects of the zygote cum fetus, cum baby such as: heartbeat, movements, “breathing,” are autonomous processes guiding the inanimate DNA, RNA, proteins and fats to develop along the set patterning and not the mark of a “living individual.” Everything biological is living.

    There is no, “scientific,” moment when this gestating tissue becomes its own being. What there is are values and beliefs. Love and choice. Oppression and freedom.

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