Abortion is legal in Massachusetts. The recently-enacted Act providing for access to reproductive health services revised the standards at which an abortion may be performed depending on gestational duration to reflect the following:
1) for a pregnancy at less than 24 weeks, a physician, physician assistant, or nurse practitioner may perform an abortion consistent with the clinician’s scope and practice and license; and
2) for a pregnancy at 24 weeks or later, only a physician may perform an abortion and only if in the physician’s best medical judgment a) it is necessary to preserve the patient’s physical or mental health or b) an abortion is warranted because of a lethal fetal anomaly or the fetus is incompatible with sustained life outside the uterus.
An Act providing for access to reproductive health services also provided that a person 16 years or older may consent to an abortion, but that a person younger than 16 years of age must obtain the consent of at least one parent or guardian or seek a judicial bypass. The Act lowered the age to 16 from 18.
This post reviews federal and state abortion jurisprudence, as well as applicable Massachusetts statutes and regulations on abortion.
FEDERAL ABORTION JURISPRUDENCE
In 1973, the United States Supreme Court issued two decisions (Roe v. Wade , 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973) holding that a woman’s constitutional right to privacy includes her decision to end a pregnancy and limiting states’ ability to regulate abortion by establishing the following parameters: 1) in the first trimester, a pregnant woman and her doctor have the right to make the abortion decision and method based on medical judgment; 2) in the second trimester, the state may regulate the conditions and method under which an abortion will take place to protect the health and welfare of the woman; and 3) in the third trimester, the state may intervene and regulate abortion due to its compelling interest in the welfare of the unborn child to the extent it may prevent abortion altogether if the preservation of the life or health of the mother is not at stake. Massachusetts practice, vol. 17B (Prima facie case, 5th ed.), West Group, 2005, section 53.17, at 78.
The Roe and Bolton decisions indirectly rendered unconstitutional a Massachusetts statute criminalizing abortion (then defined as the unlawful use of an instrument upon the body of a woman with intent to procure abortion). Id. at 77-78. It spurred the Massachusetts Department of Public Health to issue emergency regulations and the General Court to enact legislation regulating abortions within the newly articulated constitutional limits. Id. at 79.
The U.S. Supreme Court issued a trio of decisions related to funding for abortion in 1977: Beal v. Doe, 432 U.S. 438 (1977), which found a state rule constitutional that limited Medicaid payments to abortions to those that were medically necessary; Maher v. Roe, 432 U.S. 464 (1977), which also found a state rule constitutional that limited Medicaid payments to those that were necessary for medical or psychiatric reasons; and Poelker v. Doe, 432 U.S. 519 (1977), which found that a municipality is not obligated to provide abortion services in a public hospital. Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 91. Later, in 1980, the Court held that the federal government was not under any constitutional mandate to fund abortion services. Harris v. McRae, 448 U.S. 297 (1980). Please note below, however, that the Supreme Judicial Court reached a different conclusion than the Supreme Court did in Maher in the Moe decision regarding Medicaid funding of abortion in Massachusetts, based on the Massachusetts Declaration of Rights.
The trimester framework described in Roe was later replaced by an “undue burden” test articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Casey upheld Roe‘s central holding, recognizing the deep, personal character of the liberty interests at stake, as well as the Court’s obligation to follow precedent; it affirmed the basic premise of Roe, finding that a woman has the right prior to viability to terminate her pregnancy free of state interference. Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 97. But the Court abandoned the trimester framework in favor of a new “undue burden” standard: “A finding of an undue burden is shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 98 (citing Planned Parenthood v. Casey). The majority opinion was authored by three justices (Justices O’Connor, Kennedy, and Souter) and delineated some specifics around the undue burden test:
- “An undue burden exists if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
- The state may seek to promote its interest in potential life throughout pregnancy as long as the measures in which it does so do not constitute an undue burden on the woman’s right.
- The state may require medical regulations to promote the safety of a woman seeking an abortion as long as the regulations are not an undue burden.
- Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
- Subsequent to viability, the state may regulate and even proscribe abortion except when it is necessary in appropriate medical judgment, for the preservation of the life or health of the mother. This state power exists so that the State may promote its interest in the potentiality of human life after viability.”
Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 100 (citing Casey). Applying these standards, the Court in Casey upheld the Pennsylvania requirements around informed consent (so long as the information provided is truthful and not misleading) and a 24-hour waiting period prior to obtaining an abortion, data collection on abortions performed, as well as the requirement that minors receive the consent of at least one parent or a judicial order; the Court found, however, that Pennsylvania’s statutory requirement that a married woman affirm that she has notified her husband prior to obtaining an abortion (subject to certain exceptions) created an undue burden and was therefore unconstitutional. Id.
With respect to parental consent and judicial bypass requirements, the U.S. Supreme Court has issued several decisions, some involving Massachusetts. A 1976 Supreme Court case found a Missouri statute unconstitutional which prohibited the performance of an abortion on a minor, finding that states cannot give parents an absolute right to veto their pregnant minor child’s choice to have an abortion. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 104.
In Massachusetts, a minor can consent to care, diagnosis or treatment if “she is pregnant or believes herself to be pregnant” but, unless the minor is at or above the age of 16, cannot consent to abortion or sterilization and instead is subject to a statutory requirement that a minor less than 16 years of age seek parental consent or seek a judicial bypass of said consent requirement. G.L. c. 112, § 12F and §12R (as amended by An Act providing for access to reproductive health services); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 104. This current state of Massachusetts law came to be in part because on the same day the Supreme Court issued the Danforth decision, the Court in Belotti v. Baird, 428 U.S. 132 (1976) (“Belotti I”) also instructed the district court to certify questions to the Supreme Judicial Court of Massachusetts, at which point the SJC held that if parents do not consent, a state court may provide that consent if it is in the best interests of the pregnant child. Baird v. Attorney General, 371 Mass. 741 (1977); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 104-105. (Below, in the “Massachusetts abortion jurisprudence” section of this post, is a description of additional adjudication of the Massachusetts parental consent requirement at the state level.) When the state statute again came before the U.S. Supreme Court in “Belotti II”, the Court held that a state may not constitutionally require every minor to receive parental consent and must provide an alternative judicial bypass through which a minor can obtain authorization for an abortion through the court. Belotti v. Baird, 443 U.S. 622 (1979); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 105.
Other federal abortion law cases of note include Gonzales v. Carhart , 550 U.S. 124 (2007), which upheld a federal statute prohibiting so-called “partial birth” abortion; McCullen v. Coakley , 573 U.S. 464 (2014), which ruled an earlier iteration of the Massachusetts abortion clinic buffer zone unconstitutional; and NIFLA v. Becerra, 585 US __ (June 26, 2018) 138 S. Ct. 2361, which held that crisis pregnancy centers are not obligated to tell women about public programs that provide access to abortion, finding it a “likely” violation of the First Amendment to require clinics lacking a medical license to provide that information.
MASSACHUSETTS ABORTION JURISPRUDENCE
The Massachusetts cases following Roe have focused primarily on the constitutionality of the statutes passed in the wake of Roe. Although some aspects of the statutes have been found unconstitutional, the remainder have been allowed to continue in effect by the Supreme Judicial Court under the theory of severability. Massachusetts practice, vol. 17B (Prima facie case, 5th ed.), West Group, 2005, section 53.17, at 79.
- Moe v. Secretary of Administration and Finance, abortion rights within the Massachusetts constitution, and Medicaid funding for abortion in Massachusetts
Moe v. Secretary of Administration and Finance, 382 Mass. 629 (1980), is effectively the Roe v. Wade of Massachusetts abortion jurisprudence. This Supreme Judicial Court case located the fundamental right to make a decision whether or not to beget a child within the Massachusetts Declaration of Rights under “our constitutional guarantee of due process” implicit in Article 10, Moe at 645, finding that to the extent the state steps into this constitutionally protected space of choice, it must operate on the basis of neutrality: without encouraging or discouraging abortion versus continuation of a pregnancy. Avila, The Right to Choose, Neutrality, and Abortion Consent in Massachusetts, 38 Suffolk U. L. Rev. 511, at 528. See also Moe, at 651. In Moe, the SJC struck down a state statute that limited financing of abortion care for persons on Medicaid “to those cases in which the procedure is necessary to prevent the death of the mother,” Moe, at 638, as one that was not neutral, as the state did finance a full spectrum of pregnancy care for Medicaid recipients. Rather than employing a strict scrutiny or undue burden test, the SJC applies a balancing of interests test. Avila, at 528. See also Moe, at 656. The SJC ordered an injunction to issue prohibiting the enforcement of Section 20B of Chapter 29 of the General Laws (later repealed in 1996). Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 91.
Massachusetts had previously recognized “the formulation of rights” announced by Roe v. Wade as an integral part of its jurisprudence, but Moe represented the first time it recognized abortion rights under the Massachusetts constitution independent of federal jurisprudence. Id. at 647.
- Planned Parenthood League of Massachusetts v. Attorney General and the judicial bypass/parental consent requirement
This SJC case upheld the legislature’s judicial bypass/parental consent requirement as constitutional based on the strength of the state interest in “the welfare of minors and in the promotion of the interests of parents in the care and upbringing of their children”, Planned Parenthood League of Massachusetts v. Attorney General, 424 Mass. 586, at 591, but struck down the requirement that both parents consent to meet the parental consent requirement as one that only served to impose a burden. Id. at 596. The legislature recently lowered the age at which parental consent or a judicial bypass is required to under the age of 16.
3. Matter of Moe (1984 and 1987) and minor child’s choice of location for
In another set of cases dealing with the parental consent/judicial bypass requirement, the Massachusetts Appeals Court reversed a Superior Court judge’s denial of a petition for abortion authorization unless the procedure was done in a hospital, finding the minor was sufficiently mature to decide the question for herself, Matter of Moe, 18 Mass. App. Ct. 727 (1984) and in a later case found that the judge cannot require that the abortion be performed in a general medical services hospital when the minor applicant is sufficiently mature to consent. Matter of Moe, 25 Mass. App. Ct. 931 (1987); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 106.
4. Matter of Moe (1986) and no parental right of appeal
The Massachusetts Appeals Court ruled that parents of a minor seeking authorization for an abortion lack standing to challenge the minor’s decision when the Superior Court judge had found the minor was sufficiently mature to decide the matter for herself. Matter of Moe, 23 Mass. App. Ct. 902 (1984); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 106.
5. Planned Parenthood League of Mass., Inc. v. Bellotti and the 24-hour
waiting period and fetal description requirement
A 1987 judgment of the United District Court for the District of Massachusetts, reaffirmed in 1992, found that state statutory requirements that require pregnant persons to be provided a description of the fetus and wait twenty-four hours before obtaining an abortion were unconstitutional. Avila, “The Right to Choose, Neutrality, and Abortion Consent in Massachusetts,” 38 Suffolk U. L. Rev. 511, at 528, at 5 (citing Planned Parenthood League of Mass., Inc. v. Bellotti, (D. Mass. Nov. 2, 1987). A law review article had advanced a credible argument that it was likely that the judgment would be overturned were it to be revisited, in light of the U.S. Supreme Court’s later holding in Planned Parenthood v. Casey, 505 U.S. 833 (1992), which upheld Pennsylvania’s informed consent and reflection period requirements. Avila, at 5. The legislature, however, recently repealed the 24-hour waiting period and fetal description requirement as part of An Act providing for access to reproductive health services, rendering this argument moot.
6. Commonwealth v. Edelin and manslaughter charges against abortion
In a highly-publicized case, the Supreme Judicial Court found that a doctor cannot be convicted of manslaughter in the death of a fetus for an allegation of engaging in reckless or wanton conduct toward the fetus when performing in abortion; rather, the doctor could only be convicted for manslaughter should such conduct take place after the live delivery of a child as a result of the abortion. Commonwealth v. Edelin, 371 Mass. 497 (1976); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 88.
7. Framingham Clinic. Inc. v. Board of Selectmen of Southborough and local
ordinances banning abortion facilities
The Supreme Judicial Court in this case struck down a municipal ordinance excluding abortion facilities from the municipality; it held that community concerns relative to its property values cannot justify curtailing a woman’s right to seek an abortion. Framingham Clinic. Inc. v. Board of Selectmen of Southborough, 373 Mass. 279 (1977); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 89-90.
8. Doe v. Doe and men’s rights
In an equity action considered under the SJC’s original jurisdiction, the court denied injunctive relief to a man seeking an injunction to prevent his estranged wife from “aborting a non-viable fetus of which he was the father.” Doe v. Doe, 365 Mass. 497 (1976); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 88 (quoted). This decision seemed to anticipate the U.S. Supreme Court’s holding in Planned Parenthood of Central Missouri v. Danforth, which held that a state may not give a husband or parent veto power over the abortion decision by statute by requiring their consent. 42 U.S. 52 (1976); Massachusetts practice, vol. 2 (Family law and practice, 4th ed.); Thomson Reuters, 2013, Chapter 27, at 88.
RECENTLY -AMENDED MASSACHUSETTS STATUTORY FRAMEWORK
The institution of the Massachusetts Trial Court Law Libraries describes a framework of “primary” and “additional” Massachusetts statutes about abortion, and the framework below borrows from the Trial Court Law Libraries, with updates to reflect statutory changes effectuated through An Act providing for access to reproductive health services.
- MGL c.112, § 12M provides that at for a pregnancy at less than 24 weeks, a physician, physician assistant, or nurse practitioner may perform an abortion consistent with their scope and practice and license.
- MGL c.112, § 12N provides that for a pregnancy at 24 weeks or later, only a physician may perform an abortion and only if in the physician’s best medical judgment 1) it is necessary to preserve the patient’s physical or mental health; or 2) an abortion is warranted because of a lethal fetal anomaly or the fetus is incompatible with sustained life outside the uterus.
- St. 2019, c.6 § 2A included an appropriation through line item 1599-0010 to compensate for the lack of federal funding for family planning.
- MGL c.112, § 12K sets out definitions applicable to section 12L to 12R. An Act providing for access to reproductive health services created a new definition for abortion: “any medical treatment intended to induce the termination of, or to terminate, a clinically diagnosable pregnancy except for the purpose of producing a live birth; provided, however, that ‘abortion’ shall not include providing care related to a miscarriage.”
- MGL c. 112, §12L makes clear that the Commonwealth shall not intervene with a person’s personal decision relative to their reproductive rights (specifically the “ability to prevent, commence, terminate or continue their own pregnancy”) or restrict medically appropriate methods of abortion.
- MGL c.112, § 12O specifies that if an abortion is performed after 24 weeks, the facility “shall maintain life-supporting equipment. . . to enable the physician. . . to take appropriate steps, in keeping with good medical practice and consistent with the procedure being used, to preserve life and health of a live birth and the patient.”
- MGL c.112, § 12P requires written informed consent of the proper person before an abortion is performed, except in an emergency requiring immediate action. It also requires abortions performed at or after 24 weeks to be “performed in a hospital duly authorized to provide facilities for obstetrical services,” except in an emergency situation.
- MGL c.112, § 12Q requires the Department of Public Health to collect aggregate data on abortions.
- MGL c.112, § 12R establishes parameters around written informed consent. It also requires patients less than 16 years of age (now that An Act providing for access to reproductive health services has lowered the age from 18) to obtain the consent of one parent or guardian or to otherwise seek a judicial bypass. An Act providing for access to reproductive health services codified existing court practice and allows that a judicial bypass hearing may be held via teleconference at the patient’s option.
- MGL c.266, § 120E1/2 allows that protestors may be required to move back to 25 feet away from the entrance of a reproductive health care facility if law enforcement determine they have “substantially impeded access to or departure from an entrance or driveway to a reproductive health care facility.”
- MGL c.272, § 21B provides that no privately controlled hospital or other health facility shall be required to admit a patient for the purpose of performing an abortion (or, for that matter, performing sterilization, or receiving contraception “devices or information”). It also provides that such facilities are not required to provide family planning services or referrals when said services or referrals “are contrary to . . . [their] religious or moral principles.”
MASSACHUSETTS REGULATIONS ON ABORTION
110 CMR 11.07 provides that the Department of Children and Families cannot consent to an abortion by a child in their care or custody, requiring said child to seek a judicial bypass.
130 CMR 484 sets forth regulations for the payment of abortion services by MassHealth, provides for conscientious objection on the part of MassHealth employees to participation in furnishing information or services relative to abortion care, requires licensing of ambulatory abortion clinics, and establishes a right against coercion for MassHealth recipients.