Massachusetts legislators battle to expand abortion access as legislative session draws to a close

A protester holds up a pro-choice sign at the Women's March on Oct. 17, 2020. Photo by Caitlin Faulds/BU News Service

By Hannah Green 
BU News Service

BOSTON – The Massachusetts House and Senate moved forward with a budget amendment this week that will codify and expand abortion law in the commonwealth, despite recent attempts from Gov. Charlie Baker to dilute the legislation.

The abortion legislation was sent to the governor as an amendment to the 2021 state budget. While Baker approved the $46 billion budget, he requested changes to the abortion amendment that prompted this week’s override vote in the House and Senate.

According to Sen. Harriette Chandler, D-Worcester, this legislation was prompted by the appointment of conservative Justice Amy Coney Barrett to the Supreme Court. Chandler said legislators were concerned about losing federal abortion laws and having few state protections in place.

“It’s an important piece of legislation. We don’t usually do it this way, by putting it into a budget,” said Chandler, who sponsored this amendment in the Senate budget. “But with the appointment of Justice Barrett, the time was now. We had to do it now, otherwise we would start all over again in January when the new session starts.”

The amendment would lower the age at which a pregnant person can seek an abortion without parental consent from 18 to 16. It would also allow an abortion after 24 weeks when a fetus is diagnosed with a fatal anomaly. Current commonwealth laws only allow an abortion after 24 weeks when pregnancy endangers the mother’s health.

This legislation builds on the 2018 Negating Archaic Statutes Targeting Young Women Act, which repealed a 173-year-old law criminalizing abortion.

In a letter to legislators, Baker wrote that while he supported some changes to “protect a women’s reproductive rights and autonomy,” he recommended keeping the age of consent at 18. He also proposed strengthening the language around abortions after 24 weeks and stipulating that pregnancy must post a “substantial risk” to the mother’s health.

With a vote of 49-107 in the House and 8-32 in the Senate, legislators rejected Baker’s proposed changes.

Chandler said she was concerned about returning to a time of limited abortion care.

“I grew up without having [abortion access], and so I am keenly aware of it. There were always backstreet abortions—botched abortions,” she said. “Anybody who could do or would do an abortion was fair game for a desperate woman to go to, even if it meant that they might be maimed for life, or lose their lives in the process.”

Activists fear return to pre-Roe society

Chandler is not the only Massachusetts resident who remembers a time of limited abortion care and fears its return.

Dan Pellegrom lives outside of Boston and recently served on the Planned Parenthood League of Massachusetts’ board of directors.

Fifty years ago, Pellegrom was beginning his career in reproductive rights as the head of Memphis’ Planned Parenthood and an abortion referral counselor in its clinic. 

Each month, he watched 200 to 300 women save up the cash and work up the courage to travel to a state that allowed abortions.

“They could get on a Greyhound bus to get to New York or Washington. They would then meet somebody who would be holding up a sign…that said Eastern Women’s Clinic,” Pellegrom said.

This was before the 1973 Roe v. Wade U.S. Supreme Court decision that prevented statewide bans on abortion. In those days, Pellegrom said women in conservative states risked their financial stability and health trying to access abortion services in other states.

“You could get an abortion in a blue state. People in red states would have to pay extra money and travel extra distances at greater risk to their health,” Pellegrom said.

Roe continues to prevent complete bans on abortion. But federal and state courts have approved some restrictions, creating a patchwork of abortion access across the country.

According to a December report by the Guttmacher Institute, a global reproductive rights research organization, 43 states prohibit abortions after a specific time unless necessary to protect the mother’s life or health.

42 states allow institutions to refuse to perform abortions. When an abortion is performed, 12 states restrict coverage of abortion in private insurance plans; 33 states prohibit the use of state funds for abortions.

Some states have taken it a step further. According to Guttmacher, 21 states have laws that would immediately criminalize abortions if Roe was overturned. Some of these laws may reach the Supreme Court as challenges to Roe.

The new 6-3 conservative majority on the Supreme Court has left some longtime activists fearing an exponential increase in restrictions, essentially guaranteeing a return to a pre-Roe society.

“This nomination may create the tilt that changes everything,” Pellegrom said. “I’m concerned about a national return to risky behavior.”

Restrictions on the rise

Monica Teixeira de Sousa, a professor at New England Law, said the growth of these state specific restrictions on abortion access are the result of a Supreme Court case two decades after Roe. 

“People in the general population talk about it as if there’s a Roe rule of law that has remained unchanged. And it’s really a misnomer,” she said.

Teixeira de Sousa said Roe v. Wade established the first trimester of pregnancy as a period of noninterference from the government. Abortions in the second and third trimester could be restricted by state laws in certain cases.

But in the 1992 Planned Parenthood v. Casey decision, the Supreme Court ruled the government can pass abortion restrictions as long as they don’t create an “undue burden” for the pregnant person.

Teixeira de Sousa said states have used this decision to systematically restrict abortion access. These new laws could be a straightforward ban on abortions after a certain gestational period. They could also appear inconsequential, such as requiring clinic hallways be a certain width.

She said a combination of these restrictions can amount to a statewide ban because it’s difficult to prove that a single, standalone law creates a “substantial obstacle” for a pregnant person.

“Almost half of the states have been imposing hundreds of these regulations and they make it very difficult for clinics that do provide abortions to remain open,” she said. “It’s kind of analogized to being death by a thousand papercuts.”

Teixeira de Sousa said Barrett’s previous public statements indicate that when on the Supreme Court, she would rule in favor of increasing restrictions on abortion access.

“She’s been very open about her Catholic faith and in 2015 she was one of a number of Catholic women who signed this letter that talked about the value of human life from conception. So that’s kind of a big signal in the abortion debate,” she said. “All signals point to more of these targeted restrictions.”

Will time run out on abortion amendment?

Massachusetts legislators are trying to move forward without Baker’s approval.

The Senate and House will now send a final version of the amendment to Baker. The governor can accept or veto the legislation. A two-thirds majority vote in the legislature would be needed to override Baker’s veto.

With a required review period of 10 days for the governor and the legislative session ending on Jan. 5, 2021, Baker could also refuse to act and let the clock run out on this legislation.

Based on this week’s votes, the House and Senate have the majority needed to override Baker’s veto. It remains to be seen whether they’ll need to use it.

Not all Bay Staters want the legislation to move forward.

Massachusetts Citizens for Life is a statewide pro-life organization with educational and lobbying programs. Spokesperson C.J. Williams said its members were angered that this major policy item was added to the state budget legislation.

“The initial reaction was disgust from MCFL and our members,” Williams said. “Gov. Baker said he did not want any major policy decisions added to the state budget because you have someone’s hands tied—you can’t not pass the state budget. It’s an underhanded way of getting your agenda through.”

Williams said MCFL wants to see the state provide resources to pregnant women so they don’t feel compelled to get an abortion. 

“One of the major issues with abortion as a solution is that it takes one life and doesn’t really offer any extra support to the woman,” she said. “[The woman] should be able to go to school. [She] should be able to pay rent, and all of that without having to sacrifice your child’s life.”

Williams said the organization encouraged its 20,000 active members to tell Baker to veto the legislation.

Rep. Patricia Haddad, D-Bristol, said Massachusetts’ outdated laws have already left some residents with no option but to seek care elsewhere.

“Even now there’s people from Massachusetts who go to Rhode Island because it’s easier there,” she said. “And I think that’s unfortunate.”

Haddad emphasized the budget amendment would only allow later-term abortions when the fetus is not able to survive outside the womb.

“It is strictly, very narrowly, for that family who gets that very awful diagnosis so that they now have a choice,” she said.

Haddad also defended the decision to lower the age of consent for an abortion from 18 to 16 and removing the requirement to get a judge’s signoff when parental consent isn’t an option.

“At 16 years old, whether we think you should or not, you do have the ability to consent [to sex],” Haddad said. “And so, then they should also have the ability to terminate the pregnancy.”

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