Women’s rights to seek reproductive health care, including contraception and abortion, will remain secure in Massachusetts regardless of what the Supreme Court finally does with the case before it.
The legislature has anticipated the possibility that the Supreme Court could change its views. Over the last two sessions, we have passed legislation to modernize Massachusetts law regarding contraception and abortion.
First, in 2018, we passed the “NASTY Women Act” — an Act Negating Archaic Laws Targeting Young Women. This Act repealed Victorian era morality laws that criminalized adultery, fornication, contraception, and abortion. The Act also made clear that physicians may prescribe, and pharmacists may dispense contraceptive drugs to unmarried persons. The Senate passed it unanimously, the House passed it 138-9, and Governor Baker approved it.
Then in 2020, we passed an Act Providing for Access to Reproductive Health Services, known as the Roe Act. The Roe act fully rewrote our public health laws regulating abortion so as to remove barriers and assure access.
The Roe Act removed charged language that defined abortion as “the knowing destruction of the life of an unborn child” replacing it with more neutral language — “any medical treatment intended to induce the termination of, or to terminate, a clinically diagnosable pregnancy.”
It added an affirmative statement of the right to abortion: “The commonwealth, or a subdivision thereof, shall not interfere with a person’s personal decision and ability to prevent, commence, terminate or continue their own pregnancy consistent with this chapter, or restrict the use of medically appropriate methods of abortion or the manner in which medically appropriate abortion is provided.”
It preserved the need for a finding of necessity in cases involving abortions of a viable fetus (after 24 weeks) but adjusted it to read: “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.”
Previously the late term language was narrower – limiting availability to cases where abortion was “necessary to save the life of the mother, or if a continuation of her pregnancy will impose on her a substantial risk of grave impairment of her physical or mental health.” The legislature gave a lot of thought and discussion to the delicate adjustment in the late-term necessity language.
Additionally, the bill lowered the age of consent to abortion from 18 to 16 and for younger patients allows that one parent or a guardian (instead of both parents) may consent.
The Roe Act was approved over the Governor’s veto, by 107 to 46 in the House and 32 to 8 in the Senate. The Governor stated that he supported access to reproductive care, but had concerns about the lowering of the consent age.
We will continue to look for areas in which young women are running into practical barriers to getting the care they need.
One emerging question is how to protect people who may come from other states to seek reproductive health care and also how to protect the providers of care for them. Some states are purporting to pass laws that would criminalize or create civil liability for conduct in other states. We are currently trying to understand what the actual exposure is and how to address it.
My sense of my colleagues in the legislature is that the overwhelming majority of them support the basic right to choose and I see no possibility that a Supreme Court decision reversing Roe v. Wade would lead to any backsliding in Massachusetts.
See this post for additional background.