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.
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 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.